STATE OF OHIO, Plаintiff-Appellee v. ANGELA R. CARSON, Defendant-Appellant
Appellate Case No. 27566
Trial Court Case No. 2016-CRB-3935
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
October 26, 2018
2018-Ohio-4352
(Criminal Appeal from Municipal Court)
Rendered on the 26th day of October, 2018.
AMY B. MUSTO, Atty. Reg. No. 71514 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, Dayton Prosecutors Office, 335 W. Third Street, Room 390, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
CARLO MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419 Attorney for Defendant-Appellant
{¶ 1} Defendant-appellant Angela R. Carson appeals her conviction for two counts of criminal damaging, in violation of
{¶ 2} The incident which forms the basis of the instant appeal occurred late at night on June 10, 2016, and during the early morning hours of June 11, 2016, at the Somewhere Lounge located in Dayton, Ohio. Kayleigh Mullins testified that she was bartending that night, and that at approximately 10:00 p.m., she observed an individual named Adam Manning enter the bar with a female. Mullins testified that she was well acquainted with Manning as he was a patron of the bar. Thereafter, at approximately 12:30 а.m., Mullins testified that she observed the defendant, Carson, enter the bar along with a female friend. Mullins further testified that she knew Carson as another patron of the bar and was aware that Carson was also Manning‘s ex-girlfriend.
{¶ 3} Thereafter, Carson, who was already apparently intoxicated, began making vulgar comments directed at Manning. At some point, Manning and his female friend got up and went outside in order to smoke cigarettes. Mullins testified that she took a brеak and followed Manning outside in order to smoke. Mullins testified that when they began to walk back into the bar, Carson exited the bar and started calling Manning names. Mullins testified that she got in between Manning and Carson in order to defuse the situation. Upon becoming aware of the altercation, Anna Prince, the manager of the bar, came outside and was able to get Manning and his friend to go back into the bar. Prince also directed Mullins to go back inside the bаr and resume her duties. Prince testified that she then told Carson to leave the premises.
{¶ 5} After going outside to observe the damage, Manning observed that his truck had also been “keyed” in a similar manner. Manning testified that he also observed Carson and another individual walking away from the scene through another section of the parking lot. Kinsler testified that the damage to his truck similar to the damage to Manning‘s truck, and that the vehicles were parked only two spaces apart. Prince also testified that both trucks appeared to have sustained similar damage caused by the same implement. Significantly, Manning testified that the “keying” damage to his vehicle did not exist prior to his verbal altercation with Carson.
{¶ 6} Dayton Police Officer Seth Gabbard was dispatched to the Somewhere Lounge on а criminal damaging complaint. Mullins testified that Officer Gabbard arrived at the bar at approximately 1:45 a.m. Officer Gabbard testified that, upon his arrival, he interviewed both Manning and Kinsler regarding the damage done to their trucks. Officer Gabbard testified that the key damage to the trucks was similar and appeared to him that the damage was likely caused by the same person.
{¶ 7} On June 13, 2016, Carson was charged by way of complaint in Dayton Municipal Court with two counts of criminal damaging. At her arraignment on June 23,
{¶ 8} On September 21, 2016, Carson filed a “Waiver of Time for Trial Pursuant to
{¶ 9} Initially, we note that Carson‘s first appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), in which he argued that he could “find no meritorious issues having arguable merit.” However, appointed counsel set forth two potential assignments of error regarding evidentiary issues and Carson‘s right to speedy trial. In a decision and entry issued on February 2, 2018, we found that appointed counsel had in fact raised at least one non-frivolous issue in his Anders brief. Therefore, we set aside the Anders brief and appointed new appellate counsel to represent Carson. The instant appeal followed.
{¶ 10} Carson‘s first assignment of error is as follows:
THE TRIAL COURT COMMITTED ERROR IN ALLOWING OPINION
{¶ 11} In her first assignment, Carson contends that the trial court erred when it allowed Prince, Kinsler, Mullins, and Officer Gabbard to render opinion testimony regarding the similarity between the damage done to both trucks. Specifically, Carson argues that it was improper for the trial court to allow Prince to testify that she believed Carson “keyed” Manning‘s truck after mistakеnly “keying” Kinsler‘s truck. Carson argues that it was error for the trial court to allow Kinsler to testify, over objection, that it was his opinion that the same person (Carson) “with the same aggression perpetuated matching damage to both trucks.” Carson also argues that it was improper for the trial court to allow Mullins and Officer Gabbard to testify that the scratches on both trucks were similar in appearance.
{¶ 12}
{¶ 13} The line between expert testimony under
{¶ 14} The trial court has “considerable discretion in admitting the оpinion testimony of lay witnesses.” (Citation omitted.) State v. Marshall, 191 Ohio App.3d 444, 2010-Ohio-5160, 946 N.E.2d 762, ¶ 43 (2d Dist.). An abuse of discretion implies that the trial court‘s attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 15} Initially, we note that Prince testified that she directly observed Carson “key” Kinsler‘s truck, which was very similar to Manning‘s truck. After she witnessed Carson “key” Kinsler‘s truck, Prince went back inside the bar and told Mullins to call the police. Prince also mistakenly told Manning that Carson was damaging what she thought was his truck. Prince, Mullins, Kinsler, Manning, аnd Officer Gabbard all had an opportunity to view the damage done to both trucks, and they all testified that the damage done to both trucks was similar in appearance. These opinions were rationally based upon their
{¶ 16} We agree, however, that the following question and answer from Kinsler should have been excluded, because it sought to answer the very question as to the existence or non-existence of an ultimate fact to be determined by the jury, i.e. did Carson also “key” Manning‘s truck as well:
Thе State: Ok. And you were able to view the damage to Manning‘s vehicle that happened that evening?
Kinsler: Yes.
The State: And was it similar to the damage caused to your vehicle?
A: Yes.
Q: Did it appear to be done by the same person?
A: Could have been.
Defense Counsel: Objection, Your Honor. Speculation.
Trial Court: I am going to overrule.
(Emphasis added.) In our view, any reasonable inference to be drawn from the facts was to be drawn by the jurors, not Kinsler. However, given the entirety of the record and considering all of the facts adduced, we cannot say that this response standing alone prejudiced Carson. On these facts, the jury could have readily and easily drawn the same inference made by Kinsler. Thus, the error was harmless.
{¶ 18} Carson‘s first assignment of error is overruled.
{¶ 19} Because they are interrelated, Carson‘s second and third assignments will be discussed together as follows:
THE CONVICTIONS OF CRIMINAL DAMAGING FOR COUNT ONE AND COUNT TWO WERE WITHOUT SUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
TRIAL COURT ERRONEOUSLY OVERRULED APPELLANT‘S CRIMINAL RULE 29 MOTION FOR DIRECTED VERDICT WHERE NO EVIDENCE WAS PRESENTED BY [THE] STATE TO PROVE [THE] ESSENTIAL ELEMENTS OF CRIMINAL DAMAGING.
{¶ 20} In her second assignment, Carson argues that her convictions for criminal damaging were not supported by sufficient evidence and were against the manifest weight of the evidence. In her third assignment, Carson contends that the trial court erred when it overruled her
{¶ 21} Although the State does not raise the issue, we note that the record fails to establish that Carson renewed her
{¶ 22}
{¶ 23} “A challenge to the sufficiency of the evidence differs from a challenge tо
{¶ 24} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court оf appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 25} This court will not substitute its judgment for that of the trier of fact on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997).
{¶ 26} Evidence presented to prove the elements of a crime may be direct or
{¶ 27}
{¶ 28} In the instant case, Carson does not dispute that the damage to Kinsler‘s and Manning‘s trucks constituted harm to property. Rather, Carson argues that the weight of the evidence failed to establish that she was the individual who damaged the trucks. Carson also argues that the evidence adduced at trial failed to establish that she damaged Manning‘s truck without his consent.
{¶ 29} In the instant case, the jury was presented with both direct and circumstantial evidence of Carson‘s guilt. With respect to the direct evidence adduced at trial, Prince testified that she personally observed Carson walk over to Kinsler‘s truck and use a key to scratch the paint on the sides and hood of the truck. Kinsler testified
{¶ 30} Regarding the damage done to Manning‘s vehicle, the evidence adduced, both direct and circumstantial, supported Carson‘s conviction for criminal damaging. Specifically, evidence was adduced which established that immediately prior to the “keying” of the trucks, Carson had initiated a verbal altercation with Manning, who had recently ended a relationship with her. Prince had just witnessed Carson “key” Kinsler‘s truck, and Manning‘s truck was parked only two spaces away. Prince, Mullins, Kinsler, Manning, and Officer Gabbard all had an opportunity to view the damage done to both trucks, and they all testified that the damage done to both trucks was similar in appearance and pattern. Manning testified that, other than some distinct preexisting damagе to the hood of his truck, the truck was otherwise undamaged prior to Carson‘s appearance at the bar. Although Manning did not specifically testify that Carson lacked consent to “key” his truck, the circumstantial evidence adduced at trial clearly supported that Carson did not have Manning‘s consent to damage his vehicle. See State v. Drane, 2d Dist. Montgomery No. 21626, 2007-Ohio-2591, ¶ 14-15 (finding that where the State properly established that appellant acted “without consent” through cirсumstantial evidence in a conviction for criminal damaging, the trial court did not err in overruling her motion for an acquittal). Therefore, we find that Carson‘s convictions for criminal damaging were supported by sufficient evidence.
{¶ 31} Having reviewed the record, we find no merit in Carson‘s manifest-weight
{¶ 32} Carson‘s second and third assignments of error are overruled.
{¶ 33} Carson‘s fourth assignment of error is as follows:
THE TRIAL COURT ERRED THAT [sic] APPELLANT WAS DENIED A RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY [THE] SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY SECTION 10, ARTICLE 1, OHIO CONSTITUTION.
{¶ 34} In her fourth assignment, Carson argues that her right to a sрeedy trial was violated “by virtue of the lengthy span of time between service of the Complaint on June 17, 2016, and the trial [held] on January 19, 2017.” Therefore, Carson contends that the record fails to establish that she was brought to trial within a reasonable time.
{¶ 35} As this Court has noted:
The right to a speedy trial is guaranteed by the United States and Ohio Constitutions. State v. Adams (1989), 43 Ohio St.3d 67, 68, 538 N.E.2d 1025. The speedy trial provisions of the Ohio statutes must be strictly construed against the State. Brecksville v. Cook (1996), 75 Ohio St.3d 53, 55, 661 N.E.2d 706. A defendant can establish a prima facie case for a speedy trial violation by demonstrating that the trial was held past the time limit set by statute for the crime with which the defendant is charged. State v. Price (1997), 122 Ohio App.3d 65, 68, 701 N.E.2d 41. If the defendant can make this showing, the burden shifts to the State to establish that some exception[s] applied to toll the time and to make the trial timely. Id. If the State does not meet its burden, the defendant must be discharged.
R.C. § 2945.73 . See, also, State v. Coatoam (1975), 45 Ohio App.2d 183, 185-186, 341 N.E.2d 635.
State v. Gray, 2d Dist. Montgomery No. 20980, 2007-Ohio-5449, ¶ 15.
{¶ 36}
* * *
(B) Subject to division (D) of this section, a person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial as follows:
* * *
(2) Within ninety days after the person‘s arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.
{¶ 37} The docket reflects that Carson was served with her summons on June 17, 2016. After 27 days elapsed, she requested and was granted a continuance on July 14, 2016, and a second pretrial was scheduled for July 28, 2016. Even without analyzing
{¶ 38} Carson fourth assignment of error is overruled.
{¶ 39} Carson‘s fifth and final assignment of error is as follows:
THE TRIAL COURT ERRED IN AMENDING THE TWO COUNTS OF CRIMINAL DAMAGING AT BEGINNING OF TRIAL THEREBY MATERIALLY PREJUDICING APPELLANT‘S DEFENSES UPON THE MERITS AND RESULTING IN A FAILURE OF JUSTICE.
{¶ 40} In her final assignment, Carson argues thаt the trial court erred when it allowed the amendment of the complaint to insert the names of Kinsler and Manning, the victims whose trucks were criminally damaged.
{¶ 41} Initially, we note that Carson failed to object to the trial court‘s decision to amend the complaint to include Kinsler and Manning‘s names. In the absence of an objection, we review the trial court‘s decision for plain error. In order to constitute plain error, the error must be an obviоus defect in the trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22;
{¶ 42}
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant‘s motion, if a jury has been impaneled, and to a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant‘s rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury.
* * *
{¶ 43} As previously stated, Carson argues that the addition of Manning and Kinsler as the named victims in the complaint violated her substantial rights and resulted in a failure of justice. However, this Court has held that an amendment to identify the name of a victim does not change the identity of the offense. See, e.g., State v. Phillips, 75 Ohio App.3d 785, 600 N.E.2d 825 (2d Dist.1991), citing State v. White, 2d Dist. Greene No. 85 CA 38, 1986 WL 4613 (Apr. 17, 1986); see also State v. Owens, 51 Ohio App.2d 132, 149, 366 N.E.2d 1367 (9th Dist.1975) (“An amendment to an indictment which changes the name of the victim changes neither the name nor the identity of the crime charged.“).
{¶ 45} Carson‘s fifth and final assignment of error is overruled.
{¶ 46} All of Carson‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
. . . . . . . . . . . . .
FROELICH, J. and HALL, J., concur.
Copies sent to:
Amy Musto
Andrew D. Sexton
Carlo McGinnis
Hon. Carl S. Henderson