STATE OF OHIO, Plaintiff-Appellee, vs. KEVIN TODD, Defendant-Appellant.
APPEAL NO. C-220380
TRIAL NO. 22CRB-2430
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 28, 2023
[Cite as State v. Todd, 2023-Ohio-2139.]
WINKLER, Judge.
Criminal Appeal From: Hamilton County Municipal Court. Judgment Appealed From Is: Affirmed.
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant Public Defender, for Defendant-Appellant.
{1} Following a bench trial in municipal court, defendant-appellant Kevin Todd was convicted of criminal damaging in violation of
Facts and Procedural History
{2} On February 16, 2022, Cincinnati Police responded to a call that someone was breaking into the laundry machines at 323 Terrace Avenue. When an officer arrived at that address, he entered the basement where the laundry machines are located. There, the officer could hear sounds of tools banging against the laundry machines indicative of someone breaking into them. The officer shouted to identify himself as a police officer, and the banging noise stopped. The officer shouted verbal commands into the now-silent basement, but no one appeared. Eventually, after the officer shouted more commands, Todd appeared.
{3} The basement was extensively damaged. The outside window to the basement was broken in and the laundry-room floor had water damage. The laundry machines were torn from the walls, their electrical components were damaged, their coin apertures were broken into and removed, and coins were scattered on the floor. The gas line was torn from the dryer. The officer did not see Todd strike anything, but Todd was the only person found in the basement. Todd admitted to the officer he was trying to get money from the coin-operated laundry machines. Todd was arrested and charged with criminal trespass and criminal damaging.
Analysis
{5} In his sole assignment of error, Todd contends his conviction was based on insufficient evidence and against the manifest weight of the evidence. There are two issues presented for review (1) whether the state produced sufficient evidence as to each element of the criminal-damaging offense and (2) whether the state proved that Todd committed the offense beyond a reasonable doubt.
{6} A challenge to the sufficiency of evidence supporting a conviction requires a reviewing court to determine whether the state has met its burden of production at trial. State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring). The relevant inquiry, when reviewing the sufficiency of the evidence, 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 offense proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Ojile, 1st Dist. Hamilton Nos. C-110677 and C-110678, 2012-Ohio-6015, 48. In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of the witnesses. State v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, 45. It is a question of law for the court to determine and an appellate court is not to weigh the evidence unless, after viewing the evidence, it weighs heavily against conviction. Id.
{7} In contrast to a challenge to the sufficiency of evidence, in deciding whether a conviction is against the manifest weight of the evidence, an appellate court determines whether the state has appropriately carried its burden of persuasion. Thompkins at 390 (Cook, J., concurring). In reviewing the manifest weight of the evidence, an appellate court must review “the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, 59, quoting Thompkins at 387.
{8} The weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. Porter, 1st Dist. Hamilton No. C-200459, 2021-Ohio-3232, ¶ 25. In reviewing a challenge to the weight of the evidence, this court sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-180493, 2020-Ohio-1230, ¶ 17, quoting Thompkins at 387. However, a reviewing 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. Porter at 25.
{9} To prove the offense of criminal damaging, the state must show that the defendant (1) knowingly (2) caused physical harm (3) to any property
Sufficiency of the Evidence
{10}
{12} This case is unlike Akron v. Garrett, 9th Dist. Summit No. 24412, 2009-Ohio-1522. In that case, the Ninth District reversed a conviction for criminal damaging for throwing rocks at a bar‘s surveillance cameras for lack of evidence of the consent element when the state presented the testimony of bartenders and the responding officer and not the bar‘s owner. Id. at 3-5, 12. The Ninth District concluded the bartenders could not testify to the lack of consent because there was no evidence the two bartenders had the authority to give or withhold consent on behalf of the bar‘s owner. Id. at 12. The bar‘s owner did not testify, though police interviewed him. Id. The owner did not sign the complaint, though he was present at the scene and ordered the cameras repaired. Id. From those facts, the Ninth District inferred only the bar‘s owner, and not the bartenders, had the authority to give or withhold consent to matters regarding the surveillance cameras. Id. Because
{13} Garrett is distinguishable from the instant case because it can be inferred from Luck‘s employment as the maintenance coordinator at 323 Terrace Avenue, that the owner of that property authorized Luck to give or withhold consent to damage the building‘s laundry machines and Luck testified that no consent was given. While it may be outside a bartender‘s normal duties to consent to any repairs or damage to a bar‘s surveillance cameras, it is well within a maintenance coordinator‘s normal duties to consent to any repairs or damage to the property the coordinator oversees. Thus, the state has avoided the problem in Garrett by producing direct evidence of the lack of consent element from an employee of the owner duly authorized to give or withhold consent.
{14} Even if the maintenance coordinator was not qualified to testify as to consent, there is also circumstantial evidence suggesting Todd was not authorized to damage the laundry machines. Circumstantial evidence and direct evidence have the same probative value. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus. Consequently, a defendant may be convicted of criminal damaging solely based on circumstantial evidence. See State v. Drane, 2d Dist. Montgomery No. 21626, 2007-Ohio-2591, ¶ 14, citing
{15} Here, the circumstantial evidence of Todd‘s actions and statements suggest he was not authorized to damage the laundry machines. Again, the appellate court must view this evidence in the light most favorable to the prosecution. Jenks, at paragraph two of the syllabus; Ojile, 1st Dist. Hamilton Nos. C-110677 and C-110678, 2012-Ohio-6015, at ¶ 48. The moment the responding officer identified himself as a police officer, the banging noises in the laundry room ceased. Instead of explaining to the officer that Todd was repairing the machines, Todd hid in the darkness and did not appear until ordered multiple times. This implies that Todd was surprised by the arrival of the police and his first thought was to hide from the officer. Todd admitted he was trying to get money from the laundry machines’ coin slots. No other evidence was offered suggesting that the owner consented to Todd damaging the laundry machines or offering any other reason for his actions. The maintenance coordinator specifically testified he did not authorize any damage to the machines. Viewing the evidence in the light most favorable to the prosecution, a reasonable factfinder could infer from Todd‘s actions and statements that the building owner did not consent to Todd damaging the laundry machines.
{16} Additionally, the broad scope of damage is inconsistent with a consented-to repair, replacement, or modification and the ordinary wear and tear from tenant use. Here, the laundry machines were torn from the walls, their electrical components were damaged, their coin apertures were broken
{17} After a review of the entire record in the light most favorable to the prosecution, the state presented sufficient evidence such that a rational trier of fact could have found beyond a reasonable doubt that Todd did not have consent to damage the machines. There is no cognitive dissonance between the trial court convicting Todd of criminal damaging and acquitting him of criminal trespass even though both crimes share an element of consent. At trial, there was no evidence addressing whether Todd had permission to be in the building. However, there is ample direct and circumstantial evidence that Todd did not have consent to damage the laundry machines.
Manifest Weight of the Evidence
{18} The manifest weight of the evidence properly shows that Todd caused the damage to the laundry machines. Unlike a review of the sufficiency of the evidence, we must consider in determining the manifest weight of the evidence the credibility of the witnesses and determine whether, in resolving
{19} While there is no direct evidence that Todd damaged the laundry machines, the circumstantial evidence supports an inference that Todd did. The maintenance coordinator for the building testified that the laundry machines were in working condition a few days prior to February 16. On February 16, a 9-1-1 call reporting a potential crime in progress brought the police. The responding officer heard the noise of tools banging against the machines coming from the laundry room. The responding officer identified himself as a police officer and the banging ceased. Todd was the only person found in the laundry room, hidden in the darkness, where he admitted that he was trying to get money out of the machines. Todd was not found with any laundry or cleaning supplies to suggest he was using already-broken machines. The coin slots on the laundry machines were pried open, consistent with someone trying to get money out of them. While the responding officer did not directly observe Todd damage the laundry machines, the proximity in time of
{20} The competing inferences that the machines were damaged sometime before February 16 and that Todd was in the basement to repair or use the laundry machines or for other reasons entirely unrelated to the laundry machines is possible. However, such competing inferences are comparatively implausible. The record is devoid of evidence to support such an inference. There is no indication in the record that the laundry machines were damaged before February 16. The only supporting evidence offered is that Todd stated he was not trying to steal anything. However, this statement occurred after the police officer arrested Todd and placed him in the back of the police cruiser. Todd also admitted, prior to being arrested, that he was trying to get money from the laundry machines. The court was entitled to discount Todd‘s self-serving statement after being arrested and instead believe the police officer‘s testimony that Todd was trying to get money from the laundry machines. After considering the weight and credibility of all the evidence presented at trial, we
Conclusion
{21} We hold that Todd‘s conviction was supported by sufficient evidence and was not against the weight of the evidence and we overrule the sole assignment of error. The judgment of the trial court is affirmed.
Judgment affirmed.
ZAYAS, P.J., and BOCK, J., concur.
Please note: The court has recorded its own entry on this date.