Background
Thurmell Maley was observed by a Cincinnati police officer urinating in public at the intersection of Reading Road and Dana Avenue, near a busy bus stop. The officer saw Maley with her pants and underwear pulled down, actively urinating in full view of heavy pedestrian and vehicle traffic. Body-worn camera footage captured several vehicles passing during the incident. Maley explained that she was 55 years old, waiting for a bus in the rain, and could not “hold it.” She testified she had been drinking at a nearby store and attempted to reach some bushes but fell and urinated where she fell. She claimed her stomach concealed her private area and that no one was around.
At the bench trial, the State’s sole witness was the police officer, who testified to the location near a bus stop at one of the busiest intersections in the district, with full visibility to passersby. The trial court found Maley guilty, noting that she could have shielded herself by using the bushes or entering a nearby business rather than exposing herself at a busy public location.
The Court’s Holding
The Ohio Court of Appeals affirmed Maley’s conviction for public indecency under R.C. 2907.09(A)(1). The court held that the State proved all elements: Maley recklessly exposed her private parts (buttocks, which the statute expressly defines as a “private area”) under circumstances likely to be viewed by and affront others. The officer’s testimony and body-worn camera evidence established that conduct at a busy intersection with passing vehicles was likely to be viewed. The court rejected Maley’s argument that only her buttocks—not genitalia—were visible, holding that buttocks alone are sufficient under Ohio law.
The court rejected the “call of nature” exception that Maley invoked. Although legislative comments suggest an exception for answering urgent needs if “reasonable precautions” are taken, other Ohio courts have rejected this interpretation as inconsistent with the statute’s plain language. The court found that public urination may constitute public indecency, and Maley’s attempt to go to bushes did not insulate her from liability when she ultimately urinated at the busy intersection. However, the court identified a critical error: Maley was convicted of a third-degree misdemeanor, but the statute elevates the offense to third-degree only upon proof of a prior conviction for the same offense. The trial court’s own findings confirmed no prior conviction existed.
Accordingly, the court affirmed the conviction but remanded for the trial court to issue a nunc pro tunc entry correcting the offense to a fourth-degree misdemeanor.
Key Takeaways
- Buttocks are expressly included in Ohio’s definition of “private area,” and exposure of buttocks alone suffices for public indecency conviction.
- Public indecency does not require proof that someone actually viewed the conduct—only that circumstances made viewing likely.
- The “answering an urgent call of nature” exception cited in legislative comments has been rejected by Ohio courts and does not override the statute’s plain language.
- Public indecency is a fourth-degree misdemeanor; elevation to third-degree requires proof of a prior conviction, which must be alleged and proven at trial.
Why It Matters
This decision clarifies Ohio’s public indecency statute and rejects the “call of nature” defense. It establishes that exposure of buttocks alone constitutes public indecency and that the State need not prove actual observation by witnesses—only that the location and circumstances made viewing likely. This forecloses an argument that emergency bathroom needs excuse public exposure, even if the defendant takes some precautions.
The remand also reinforces a critical procedural safeguard: trial courts must ensure that the degree of offense charged and convicted matches the evidence presented. Without proved prior convictions, defendants cannot be elevated to third-degree misdemeanor status. The nunc pro tunc procedure allows correction of clerical errors but underscores that sentencing must rest on facts proven at trial, protecting against inadvertent penalty enhancement.