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9th District appellate court affirms Medina County voyeurism case
TRACEY BLAIR
Legal News Reporter
Published: December 20, 2017
The 9th District Court of Appeals has affirmed the convictions of a man who spied on a teen trying on clothes in a Medina County Target store.
Kevin Banks appealed his convictions for voyeurism and tampering with evidence. He was sentenced to two years in prison.
According to court records, 17-year-old H.E. went into a fitting room in June 2016 to try on bikinis and dresses. She later testified that an older man who seemed to be “dressed as a teenager” entered the dressing room area shortly after, choosing a room directly across from her.
When H.E. saw clothes already were piled up in her room from a previous shopper, she switched to a different room. Banks also switched rooms, again directly across from her.
While undressed, H.E. saw an arm holding up a cell phone above Banks’ fitting room door, with the phone’s camera facing her. She immediately put her clothes back on, snuck out of the room and told a store employee.
As Banks left his fitting room, H.E. said, `That’s the man.’ “ He then fled the store through the shopping cart only doors, removed his tank top and used it to cover up his rear license plate number.
Meanwhile, a retired police officer who happened to be in the store parking lot and saw Banks running out of the store followed the suspect’s car and called officers.
Banks was arrested during a traffic stop. A jury convicted him on the voyeurism count and a judge found him guilty on the remaining charge.
Afterward, Banks argued the evidence was insufficient to prove he surreptitiously invaded the victim’s privacy to photograph, record or spy on her.
Appellate Judge Thomas A. Teodosio noted in his majority opinion that the state entered several surveillance camera videos into evidence showing H.E. entering the fitting room, followed closely by Banks merely five seconds later.
The video also shows what appears to be Banks quickly exiting the store after noticeably looking toward the room H.E. had been changing in.
A Target employee testified she saw a man run out of the store after another employee told her about the voyeurism incident via walkie-talkie.
The appellate panel also disagreed with Banks’ argument claiming there was no evidence his actions were done for sexual gratification.
The legal opinion cited State v. Haldeman, 2d Dist. Montgomery No. 18199, 2000 Ohio App. LEXIS 5409, which found “The fact that Defendant was neither in a state of undress nor had engaged in masturbation does not prevent a finding that his purpose was sexual gratification or arousal, if that can rationally be inferred from other evidence presented.”
Banks told a Medina city detective that he had been taking photos of himself at Target and ran out of the store because he got scared due to a past OVI case.
On appeal, Banks claimed H.E. triggered his post-traumatic stress disorder by pointing at him.
Judge Teodosio’s opinion stated, “Given Mr. Banks’ secretive tactics and unusual conduct, we conclude that the trier of fact could have reasonably inferred that his actions were done for the purpose of sexual arousal or gratification.”
The defendant also argued concealing his license plate did not constitute tampering because his front license plate number was never hidden.
However, the panel found the evidence at trial showed Banks knew an investigation into the voyeurism incident was likely at the time he concealed his license plate number.
“… It is also worth noting that Mr. Banks’ reliance on his supposed PTSD trance to explain his unusual behavior was not included in the evidence before the jury for his tampering with evidence charge,” according to the opinion. “Mr. Banks only testified that he suffered from PTSD during his bench trial for voyeurism, not during his jury trial for tampering with evidence.”
The panel also rejected Bank’s argument that the trial judge allowed unfairly prejudicial testimony of alleged prior other acts.
Ninth District judges Jennifer Hensal and Donna Carr concurred.
The case is cited State v. Banks, 2017-Ohio-8777.