STATE OF OHIO v. SAMUEL W. FEASTER, III
C.A. No. 26239
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
September 26, 2012
[Cite as State v. Feaster, 2012-Ohio-4383.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 07 1759
BELFANCE, Judge.
{¶1} Defendant-Appellant Samuel Feaster, III appeals from his conviction in the Summit County Court of Common Pleas. For the reasons set forth below, we reverse.
I.
{¶2} Based upon events that took place on June 17, 2011, Mr. Feaster was ultimately indicted on one count of sexual battery in violation of
{¶3} Mr. Feaster filed a motion for a delayed appeal, which was granted. He now raises four assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED FEASTER‘S CRIM.R. 29(A) MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR CRIMINAL DAMAGING.
{¶4} In his merit brief, Mr. Feaster asserts that, in reviewing all of the evidence, his conviction for criminal damaging was based on insufficient evidence. Specifically, he asserts that the State failed to establish that the property was the property of another and that Mr. Feaster lacked consent to damage the property.
{¶5} While Mr. Feaster frames his argument in terms of both the denial his
{¶6} In determining whether the evidence presented was sufficient to sustain a conviction, this Court reviews the evidence in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore:
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
{¶7}
{¶8} We initially observe that the vast majority of the testimony in this case focused upon the rape and sexual battery charges. Upon careful review of the record and when viewing the evidence in a light most favorable to the prosecution, we conclude that the State failed to elicit testimony connected to all of the elements of the offense of criminal damaging.
{¶9} The testimony revealed that, on June 17, 2011, Mr. Feaster was living at 341 Talbot Avenue with the mother of his child and girlfriend, L.Y., L.Y.‘s mother, L.Y.‘s and Mr. Feaster‘s son, and L.Y.‘s son. At the time, Mr. Feaster was on house arrest. During the day prior to the alleged assault, L.Y.‘s adult daughter, S.O., came over with her two children. L.Y., S.O., and Mr. Feaster spent much of the afternoon and evening playing cards, eating, and drinking in the garage. S.O. became very intoxicated. L.Y. testified that she put S.O. to bed on the couch and went to bed with Mr. Feaster at 3:40 a.m. on June 17, 2011. Sometime in the middle of the night, L.Y. noticed Mr. Feaster get out of bed and leave the room. L.Y. dozed off and awoke to find Mr. Feaster still gone. She got up and proceeded to look for him. L.Y. asserted that she found Mr. Feaster performing oral sex on S.O., who was unconscious. L.Y. began to hit Mr. Feaster and scream at him, demanding that he leave. L.Y. woke up both Mr.
{¶10} While there was testimony which indicated in passing that the house and/or the door was L.Y.‘s or L.Y.‘s mother‘s, there was no testimony discussing who owned the house, whether it was owned or rented, whether Mr. Feaster was on the lease (if there was one), or whether Mr. Feaster paid rent. All that is really known from the evidence is that Mr. Feaster lived in the house, that he was on house arrest, and that his child and girlfriend also lived in that same house, along with L.Y.‘s mom and L.Y.‘s other son. It is not possible to determine who, if anyone, had superior rights of possession or ownership in the property. Further, there is no evidence to suggest that Mr. Feaster had anything but the unfettered right to access and use the house. Thus, when considering the extremely limited evidence in a light most favorable to the prosecution, we conclude that the State failed to present evidence establishing beyond a reasonable doubt that the door at issue was “any property of another[.]”
{¶11} By its plain language,
ASSIGNMENT OF ERROR II
FEASTER‘S CONVICTION FOR CRIMINAL DAMAGING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST FEASTER WITHOUT COMPLYING WITH
ASSIGNMENT OF ERROR IV
FEASTER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S IMPOSITION OF COURT COSTS UNDER
{¶12} Mr. Feaster asserts in his second assignment of error that his conviction for criminal damaging is against the manifest weight of the evidence. Mr. Feaster asserts in his third assignment of error that the trial court committed plain error in imposing court costs without complying with
III.
{¶13} In light of the foregoing, we sustain Mr. Feaster‘s first assignment of error and reverse his conviction for criminal damaging. Mr. Feaster‘s remaining assignments of error are moot. Therefore, we reverse the judgment of the Summit County Court of Common Pleas.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
DICKINSON, J. CONCURS.
WHITMORE, P. J. CONCURRING IN PART, AND DISSENTING IN PART.
{¶14} I agree that this case must be remanded, but would do so only to allow Feaster to seek a waiver of costs in the court below. The record reflects that Feaster waived his
{¶15} “We have repeatedly held that when an [a]ppellant sets forth specific grounds in his
[DEFENSE COUNSEL:] * * * At this point in time, sir, pursuant to Ohio criminal rules, I am moving for a directed verdict of judgment of acquittal with respect to all charges. You‘ve heard the evidence in this case. It is sketchy at best. The victim testifies she has no recollection of the events that happened, and the rape charge seems to have no support whatsoever, given the fact that the DNA testimony and the DNA [expert] that came in and spoke * * * indicated all the possibilities for that DNA. I don‘t think it‘s been borne out in any way, shape, or form sufficient to go to a jury that my client engaged in rape with the victim.
That also goes for sexual battery.
I would reserve -- I would concede, I would say, the criminal damaging charges. I would just concede that. That‘s not the element of my case.
As to the charges of a sexual nature we‘re asking for a directed verdict and judgment of acquittal.
(Emphasis added.) Accordingly, Feaster conceded the charge that the majority now seeks to reverse. Feaster‘s acquittal argument is not properly before this Court, as the record reflects that he waived that argument. State v. Reed, 9th Dist. No. 07CA0026-M, 2008-Ohio-1880, ¶ 15 (“By deciding not to seek an acquittal pursuant to
{¶16} In his second assignment of error, Feaster argues that his criminal damaging conviction is against the manifest weight of the evidence. His argument, however, is that the State presented no evidence on certain elements of his conviction. “[H]e fails to set forth ‘any argument concerning the credibility of the evidence presented or the weight of the credible evidence.‘” State v. Schmitz, 9th Dist. Nos. 11CA010043 & 11CA010044, 2012-Ohio-2979, ¶ 36, quoting State v. Wilson, 9th Dist. No. 25100, 2011-Ohio-4072, ¶ 21. Because Feaster only
{¶17} In his third assignment of error, Feaster argues that the court erred by imposing costs upon him without first orally informing him of his obligation to pay costs and affording him an opportunity to seek a waiver of payment. Feaster is correct that the court imposed costs upon him without first allowing him to seek a waiver. “A trial court commits reversible error when it imposes costs * * * against a defendant in the absence of such a notification.” State v. El-Jones, 9th Dist. No. 26136, 2012-Ohio-4134, ¶ 37. Accordingly, I would sustain Feaster‘s third assignment of error and remand the matter to allow him to seek a waiver of court costs. And, in light of the resolution of Feaster‘s third assignment of error, I would conclude that his ineffective assistance of counsel argument is moot and overrule it as such. Id. at ¶ 39.
{¶18} Because I would overrule all but Feaster‘s third assignment of error, I concur in part and dissent in part.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.