STATE OF OHIO v. RICKY CONLEY
CASE NO. CA2013-06-055
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
4/21/2014
[Cite as State v. Conley, 2014-Ohio-1699.]
CRIMINAL APPEAL FROM FRANKLIN MUNICIPAL COURT Case No. 12-12-CRB-6947
Andrea G. Ostrowski, 25 East Central Avenue, Suite 4, Springboro, Ohio 45066, for defendant-appellant
HENDRICKSON, J.
{1} Defendant-appellant, Ricky Conley, appeals from a judgment rendered by the Franklin Municipal Court convicting him of criminal damaging. For the reasons discussed below, the trial court‘s judgment is reversed, Conley‘s conviction is vacated, and Conley is discharged.
{2} A criminal damaging complaint was filed against Conley in violation of
{3} At a bench trial, Officer Jesse Shannon of the Franklin Police Department testified that on December 9, 2012, he was called to the Emerald Edge Apartments to investigate a criminal damaging complaint because tires had been slashed on a vehicle belonging to one of the residents. Officer Shannon was given a description of the suspect by dispatch. The suspect was said to be a dark-haired white male wearing a dark jacket, gray “hoodie,” and blue jeans. Officer Shannon observed a man matching this description in front of a store near the apartments. Within five minutes of the call, Officer Shannon took Conley into custody.
{4} Ashley Kirby, a witness for the state, testified that she lived near Peters. On December 9, 2012, she was sitting in her apartment with the windows open when she heard several loud booms. She ran out her front door and saw a man leaning down by the back tires of Peters’ vehicle. Kirby testified that she had the opportunity to see the man‘s face and recognized him as Conley because they had attended the same school. Over Conley‘s objection, Kirby‘s identification testimony was allowed by the trial court. While Kirby was present at the motion to suppress hearing, she was not called to testify. If she had been called to testify, the trial court later bemused that Kirby‘s identification testimony would have
{5} The defense called Stephens, the eyewitness who had testified at the motion to suppress hearing. Stephens testified that she had called the police and had given a description of the perpetrator. While she did not clearly see the perpetrator‘s face, she had observed what the perpetrator was wearing.
{6} After defense counsel made a
{7} Conley now appeals, setting forth two assignments of error for review.
{8} Assignment of Error No. 1:
{9} THE TRIAL COURT ERRED IN FINDING [CONLEY] GUILTY.
{10} Assignment of Error No. 2:
{11} THE TRIAL COURT ERRED WHEN IT MODIFIED ITS SUPPRESSION DECISION OF EYE WITNESSES [sic] TESTIMONY IN THE MIDDLE OF TRIAL.
{12} In his first assignment of error, Conley argues that the trial court erred in overruling his
{13} Regarding sufficiency, Conley specifically asserts that there was no direct
{14} An appellate court reviews the denial of a
{15} Conley was charged with committing criminal damaging in violation of
(A) No person shall cause, or create a substantial risk of physical harm to any property of another without the other person‘s consent:
(1) Knowingly, by any means[.]
{16} Circumstantial and direct evidence have the same probative value, and in some instances, certain facts can be established only by circumstantial evidence. State v. Gragg, 173 Ohio App.3d 270, 2007-Ohio-4731, ¶ 17 (12th Dist.). “[C]ircumstantial evidence is
{17} Conley relies on State v. Gray, 7th Dist. Belmont No. 99 BA 35, 2001 WL 641126 (June 8, 2001), in support of his claim that circumstantial evidence is not enough to convict him of criminal damaging. In Gray, the defendant proposed to stipulate to certain facts. The language of the stipulation created confusion as to whether damage to a rental property occurred without a victim‘s consent. The trial court found that the element of “without the other person‘s consent” was met. When the defendant argued on appeal that this element had not been met, the appellate court held that the defendant had invited the error. The appellate court did not hold that the element “without the other person‘s consent” could not be met through circumstantial evidence.
{18} Furthermore, in State v. Drane, 2d Dist. Montgomery No. 21626, 2007-Ohio-2591, the appellate court found that there was sufficient evidence to establish that victims’ vehicles were damaged without their consent even though there was no direct testimonial evidence regarding the consent element. There was evidence presented that the victims contacted the police immediately after finding damage to their vehicles and received estimates as to the cost of repairs. Accordingly, the trial court can rely on circumstantial evidence to establish the consent element of criminal damaging.
{19} In this case, nevertheless, there was no evidence, direct or circumstantial, that Conley damaged Peters’ vehicle without his consent. There was no testimony from Peters that he did not consent to Conley damaging his vehicle. In fact, there was no testimony from Peters at all. There was no testimony or evidence that Peters called the police, filed an
{20} Given our disposition of Conley‘s first assignment of error, it is unnecessary to reach the merits of his second assignment of error as it is rendered moot. See
{21} Judgment reversed, Conley‘s conviction is vacated, and Conley is discharged.
RINGLAND, P.J., and S. POWELL, J., concur.