State v. Maley

[Cite as State v. Maley, 2026-Ohio-1540.]



                    IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO


STATE OF OHIO,                                :        APPEAL NO.        C-250353
                                                       TRIAL NO.         25/CRB/5258
         Plaintiff-Appellee,                  :

   vs.                                        :

THURMELL MALEY,                               :             JUDGMENT ENTRY

         Defendant-Appellant.                 :




          This cause was heard upon the appeal, the record, and the briefs.
          For the reasons set forth in the Opinion filed this date, the judgment of the trial
court is affirmed and the cause is remanded.
          Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs be taxed under App.R. 24.
          The court further orders that (1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial
court for execution under App.R. 27.



To the clerk:
Enter upon the journal of the court on 4/29/2026 per order of the court.


By:_______________________
      Administrative Judge
[Cite as State v. Maley, 2026-Ohio-1540.]



                    IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO


STATE OF OHIO,                              :   APPEAL NO.      C-250353
                                                TRIAL NO.       25/CRB/5258
         Plaintiff-Appellee,                :

   vs.                                      :           OPINION

THURMELL MALEY,                             :

         Defendant-Appellant.               :



Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: April 29, 2026



Emily Smart Woerner, City Solicitor, Susan Zurface, Chief Prosecuting Attorney, and
Erik W. Laursen, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
                 OHIO FIRST DISTRICT COURT OF APPEALS


ZAYAS, Presiding Judge.

       {¶1}    Thurmell Maley appeals her conviction, after a bench trial, for public

indecency. In two assignments of error, Maley contends that the conviction was based

on insufficient evidence and contrary to the weight of the evidence, and that the court

erred in finding her guilty of a third-degree misdemeanor where the evidence failed to

establish any of the circumstances in R.C. 2907.09(C)(2) to raise the offense above a

fourth-degree misdemeanor. For the following reasons, we affirm the judgment of the

trial court and remand the cause for the trial court to issue a nunc pro tunc entry to

correct the clerical error to reflect the conviction was a fourth-degree misdemeanor.

                                Factual Background

       {¶2}    Thurmell Maley was charged with public indecency after a police officer

witnessed her urinating in public. Maley proceeded to a bench trial.

       {¶3}    At the trial, the State’s sole witness was a Cincinnati police officer. The

officer testified that he came into contact with Maley at the intersection of Reading

Road and Dana Avenue. As he was driving down Reading Road at 6:00 p.m., he saw

Maley with her pants and underwear pulled down, fully exposed, urinating in front of

someone. The officer could see her squatting down, with her pants and underwear

completely down, actively urinating. He was able to see the side of her buttocks. The

officer testified that he could not see her vagina, but he could “actively see her urinate,

and it has to come from somewhere.”

       {¶4}    The officer did a double-take, turned his vehicle around, and was able

to capture a snapshot of her with his body-worn camera (“BWC”). His BWC video was

played. By the time he parked and approached her, Maley had finished and was fully

clothed. Maley presented her I.D. and explained that she was 55 years old, and she

could not “hold it” while waiting for the bus. The officer smelled an odor of alcohol,


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and Maley confirmed that she had been drinking. He believed that the consumption

of alcohol played a factor in the urge to urinate.

       {¶5}     Maley urinated next to a bus stop and a sidewalk near some businesses

and apartment complexes. The officer testified that it was one of the most crowded

areas in District 4 with heavy pedestrian and vehicle traffic. The officer did not speak

with the woman standing at the bus stop. Nothing prevented anyone else in the area

from viewing her. Maley was in full view of anyone walking or driving.

       {¶6}     The entire encounter lasted about five minutes. As the officer was

writing her a citation, the bus pulled up, and he did not want her to miss the bus. The

officer wrote down the information about the court date for her so she did not have to

miss her bus.

       {¶7}     Maley testified that she had worked the third shift at the Red’s game the

previous night. That afternoon, at 3:00 p.m., she went to pick up and cash her check.

As she was waiting for a bus, she went to the store next to the bus stop and had some

drinks with a few friends.

       {¶8}     Maley waited for the bus for 40 minutes. It began to rain, and Maley

had to urinate. A woman at the bus stop said she would watch her bag if Maley wanted

to urinate in the bushes. Maley left her bag and began to run toward the bushes.

However, she fell and urinated where she fell instead of in the bushes. At that time,

the officer started screaming from across the street for her to stop urinating, but she

was “already in position” and “already going.”

       {¶9}     The police cruiser made a U-turn, and Maley noticed that the bus was

coming. One officer was mean and accused her of being drunk. The officer who wrote

the ticket was nicer and said he would finish in three minutes, so she asked the bus

driver if he would wait, and he agreed. Maley testified that a storm was coming and


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no one was around when she decided to urinate. Plus, her stomach concealed her

private area, so no one could see anything.

       {¶10} On cross-examination, Maley testified that she had purchased little

bottles of liquor and a couple of beers at a store. Maley went to a tire shop where she

knew the employees, and drank a bottle of vodka and a Pink Lady. Maley insisted that

she was not drunk, she just had to urinate.

       {¶11} The trial court found her guilty after finding that Maley publicly exposed

her genitals when she dropped her pants and urinated at a bus stop at one of the

busiest intersections in that area. The video depicted several cars passing by as she

was urinating, which comports with the legal standard that her conduct was likely to

be viewed by and affront others. Maley could have shielded herself from the public by

entering the bushes or the business right behind her.

             Sufficiency and Manifest Weight of the Evidence

       {¶12} Maley first contends that her conviction was based on insufficient

evidence and was against the weight of the evidence.

       {¶13} A challenge to the sufficiency of the evidence questions whether the

State presented adequate evidence on each element of the offense to sustain the verdict

as a matter of law. See State v. Thompson, 2025-Ohio-4359, ¶ 107 (1st Dist.), citing

State v. Hawn, 138 Ohio App.3d 449, 471 (2d Dist. 2000). “[T]he question is whether,

after viewing the evidence in the light most favorable to the state, any rational trier of

fact could have found all the essential elements of the crime proved beyond a

reasonable doubt.” State v. Ham, 2017-Ohio-9189, ¶ 19 (1st Dist.), citing State v.

Jenks, 61 Ohio St.3d 259, 273 (1991), paragraph two of the syllabus.

       {¶14} In contrast, when challenging the weight of the evidence, the issue is

whether the factfinder created a manifest miscarriage of justice in resolving conflicting


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evidence, even though the evidence of guilt was legally sufficient. State v. Thompkins,

78 Ohio St.3d 380, 386-387 (1997). The reviewing court must be mindful that

credibility generally is an issue for the trier of fact to resolve. State v. Glover, 2019-

Ohio-5211, ¶ 30 (1st Dist.), citing State v. Issa, 93 Ohio St.3d 49, 67 (2002). The trial

court’s credibility determinations are entitled to substantial deference “because the

trier of fact sees and hears the witnesses and is particularly competent to decide

whether, and to what extent, to credit the testimony of particular witnesses.” (Internal

citations omitted.) Id.

       {¶15} Maley was convicted of public indecency in violation of R.C.

2907.09(A)(1), which requires the State to prove that Maley (1) recklessly (2) exposed

her private parts (3) under circumstances in which her conduct was (a) likely to be

viewed by others and (b) likely to affront others (4) not members of her household.

See In re W.S., 2009-Ohio-5427, ¶ 35 (11th Dist.), citing Columbus v. Abdalla, 1998

Ohio App. LEXIS 1861, *10 (10th Dist. Apr. 30, 1998).

       {¶16} R.C. 2907.01(R), which applies to sections 2907.01 through 2907.38,

defines “private area” as “the genitals, pubic area, buttocks, or female breast below the

top of the areola, where nude or covered by an undergarment.”

       {¶17} Maley first contends that the State failed to prove that her private parts

were viewed or likely to be viewed by others when her stomach and shirt shielded her

private areas. Maley does not dispute that she exposed her private areas, rather, she

argues that only her buttocks were publicly visible “and not her genitalia.” She further

contends that “someone would have to be underneath [her] on the sidewalk to be able

to observe her genitalia.”

       {¶18} Buttocks are included in the definition of “private area,” and the officer

testified, and Maley concedes, that he observed the side of her buttocks. Moreover,


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                 OHIO FIRST DISTRICT COURT OF APPEALS


case law confirms that viewing the buttocks is sufficient to prove the exposure of

“private parts.” See In re W.S., 2009-Ohio-5427, at ¶ 38 (11th Dist.), quoting State v.

Butler, 1975 Ohio App. LEXIS 7269, *4 (1st Dist. Sep. 8, 1975) (where the witnesses

saw Butler’s backside, “the inference of Butler’s having exposed his ‘private parts’ was

sufficient to prove his guilt beyond a reasonable doubt”); In re Janoch, 1989 Ohio App.

LEXIS 82, *4 (11th Dist. Jan. 13, 1989) (the common usage and understanding of

“private parts” includes the buttocks); State v. Mackie, 2011-Ohio-2102, ¶ 20 (12th

Dist.), quoting Commonwealth v. Arthur, 420 Mass. 535, 537 (1995) (“defendant

could not be convicted of indecent exposure when witnesses only saw defendant’s

pubic hair and not his “genitalia or buttocks”).

       {¶19} Under the statute, the State is not required to prove that anyone actually

saw the conduct, as long as the conduct was likely to be viewed by others. See State v.

Briers, 2025-Ohio-5727, ¶ 12 (1st Dist.) (the analysis is whether such conduct was

likely to be viewed and not whether the conduct is actually viewed); State v. Fornshell,

2021-Ohio-674, ¶ 26 (1st Dist.) (A public indecency conviction “does not necessitate a

showing that an actual person witnessed the event.”); State v. Henry, 2002-Ohio-

7180, ¶ 70 (7th Dist.) (The state was simply required to prove that defendant’s conduct

was likely to be viewed by others.).

       {¶20} Relying on City of Cleveland v. Pugh, 110 Ohio App.3d 472 (8th Dist.

1996), Maley also argues that answering the call of nature does not constitute publicly

indecency. See id. at 474-475. In Pugh, the court interpreted the legislative comment

which states, “[a]nswering an urgent call of nature alfresco would not be an offense if

the actor takes reasonable precautions against discovery, as creating an exception to

public indecency for public urination.” As this court recently discussed, this analysis

has been rejected by other courts. See Briers at ¶ 19-20, citing Columbus v. Breer,


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                 OHIO FIRST DISTRICT COURT OF APPEALS


2003-Ohio-2479, ¶ 13 (10th Dist.) (“[W]e find as a matter of law that urinating in

public may constitute public indecency and may be a violation of R.C. Section 2307.09.

The statute is unambiguous and definite in language.”); State v. McCall, 2010-Ohio-

4283, ¶ 21 (9th Dist.) (noting that after Pugh was decided, the Ohio Supreme Court

held that courts are “bound by the language of criminal provisions, not unofficial

Legislative Service Commission Notes.”). Urinating in public may constitute public

indecency, and we find no merit to Maley’s argument.

       {¶21} Here, the officer testified that he saw Maley with her pants and

underwear pulled down, fully exposed, while urinating. The conduct occurred at a bus

stop in a location with heavy pedestrian and vehicle traffic. The video showed several

cars driving past her while she was urinating. The officer was able to view the conduct

while driving down the road.

       {¶22} Viewing the evidence in a light most favorable to the State, any rational

trier of fact could have found that Maley exposed her private parts in a manner that

her conduct was likely to be viewed by and affront others. Based on this record, the

factfinder did not clearly lose its way and create a manifest miscarriage of justice.

       {¶23} We overrule the first assignment of error.

                                Degree of Offense

       {¶24} In her second assignment of error, Maley argues that the trial court

erred in finding her guilty of a third-degree misdemeanor where the evidence failed to

establish any circumstances described in R.C. 2907.09(C)(2) to raise the offense above

a fourth-degree misdemeanor. Under R.C. 2907.09(C)(2), “a violation of division

(A)(1) of this section is a misdemeanor of the fourth degree. If the offender previously

has been convicted of or pleaded guilty to one violation of this section, a violation of

division (A)(1) of this section is a misdemeanor of the third degree.”


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                OHIO FIRST DISTRICT COURT OF APPEALS


       {¶25} The record reflects that Maley was charged with a fourth-degree

misdemeanor, and the State did not allege or attempt to prove she had a prior

conviction, to raise the offense to a third-degree misdemeanor. In finding Maley

guilty, the trial court noted that she had no prior convictions for public indecency.

However, the judge’s sheets reflect that Maley was charged with and convicted of a

third-degree misdemeanor.

       {¶26} As the State points out, a trial court retains jurisdiction to correct errors

so that judgment entries reflect the trial court’s decision. See State v. Contes, 2024-

Ohio-2580, ¶ 21 (8th Dist.); State v. Liddy, 2022-Ohio 1673, ¶ 16 (8th Dist.), citing

State ex rel. Cruzado v. Zaleski, 2006-Ohio-5795, ¶ 19; Crim. R. 36.

       {¶27} Accordingly, we sustain Maley’s assignment of error.

                                     Conclusion

       {¶28} We affirm the judgment of the trial court and remand the cause for the

trial court to enter a nunc pro tunc entry reflecting that Maley was convicted of a

fourth-degree misdemeanor.

                                                Judgment affirmed and cause remanded.

CROUSE and BOCK, JJ., concur.




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