Mentor v. Jarc , 2024 Ohio 891 ( 2024 )

[Cite as Mentor v. Jarc, 2024-Ohio-891.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
CITY OF MENTOR, CASE NOS. 2023-L-085
2023-L-086
Plaintiff-Appellee,
Criminal Appeals from the
- vs - Mentor Municipal Court
ALLEN E. JARC,
Trial Court Nos. 2023 CRB 00541 A
Defendant-Appellant. 2023 CRB 00541 B
OPINION
Decided: March 11, 2024
Judgment: Affirmed
Lisa Klammer, City of Mentor Prosecutor, 8500 Civic Center Boulevard, Mentor, OH
44060 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake and Jamie R.
Eck, Assistant Public Defenders, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).
ROBERT J. PATTON, J.
{¶1} Defendant-Appellant, Allen E. Jarc (“appellant”), appeals the judgment of
the Mentor Municipal Court convicting appellant of Theft and Criminal Damaging. For the
reasons set forth below, we affirm.
{¶2} A complaint was filed in the Mentor Municipal Court on May 11, 2023,
charging appellant with Theft, a first-degree misdemeanor, in violation of R.C.
2913.02(A)(1) and Criminal Damaging, a second-degree misdemeanor, in violation of
R.C. 2909.06.
{¶3} On May 18, 2023, appellant entered a plea of not guilty at arraignment and
a $1,750.00 personal bond was set.
{¶4} A bench trial was held on July 8, 2023. The following facts were presented
at the trial:
{¶5} Stephanie Newman (“Stephanie”) resides at 15 Kimberly Lane in Mentor,
Ohio with her mother Janice K. Newman (“Janice”). On April 24, 2023, she checked the
footage from her Ring Doorbell camera, and saw appellant’s silver Ford Expedition run
over the curb and damage Kelly Looney’s (“Looney”) property. The Ring Doorbell had
captured the motion at midnight.
{¶6} The area of the curb that was hit contained a display with statues and other
items which represented families in the community. Approximately ten minutes after the
damage occurred, Stephanie observed via Ring camera footage, appellant and his dog
walking to the area of the statues and appearing to pick something up. Appellant was also
one of Stephanie’s neighbors. Sometime later that morning, Stephanie and Janice
observed some of the frog statues were missing, and a dog statue, belonging to appellant,
was in their place. Janice testified that the rock with glued frog statues representing the
Wakeoff family was missing from the display.
{¶7} Sonya Harding (“Sonya”) also testified at trial. She is also a member of the
small community residing at 13 Kimberly Lane. Sonya indicated that there was a slab of
frogs missing on April 24, 2023, and that a taller frog was knocked over. In place of the
missing piece was appellant’s dog statue. According to Sonya, appellant told her he
placed the dog there.
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{¶8} Kelly Looney testified that the statue area on her property was originally
created to keep trucks from digging up her yard as they drove through the neighborhood.
After placing frog statues representing her and her husband, the neighbors started
wanting to place statues in the area as well. On April 24, 2023, Sonya’s family frogs were
missing, and Looney’s statute was damaged, the frog’s tongue was detached. Ms.
Looney called the police.
{¶9} Sergeant Jonathan Smelcer (“Sergeant Smelcer”) of the Mentor Police
Department was dispatched to Kimberly Lane. Patrolman Haddad also responded and
took photographs of the scene which were introduced as State’s Exhibits 3 and 4.
Sergeant Smelcer took the dog statue as evidence. The dog had “The Jarcs” written on
the top of the head.
{¶10} Sergeant Smelcer testified that when he went to appellant’s residence,
appellant’s vehicle, the silver Ford Expedition, was parked in the driveway, a dog that
appeared to be the same dog in the video was barking, but no one would answer the
door. According to Sergeant Smelcer, appellant admitted to placing the dog statue in the
area but denied damaging the display or taking the missing frogs.
{¶11} On May 21, 2023, appellant brought the missing frog display to the Mentor
Police Department.
{¶12} At the close of the State’s case-in-chief, appellant made a Crim.R. 29
motion for acquittal as to both charges. The motion was denied.
{¶13} At the conclusion of trial, the court found appellant guilty and sentenced
appellant to 90 days in jail, which was suspended, and six months’ probation. A no contact
order was continued until February 7, 2024. At sentencing, the defendant stated he had
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“no intention of keeping it,” presumably referring to the statue that was missing and later
returned.
{¶14} On August 21, 2023, appellant filed a motion requesting a new trial. That
motion was denied.
{¶15} Appellant timely appeals and raises the following assignments of error:
{¶16} [1]. “The trial court erred to the prejudice of the defendant-appellant when it
denied his motion for acquittal made pursuant to Crim. R. 29(A).”
{¶17} [2]. “The trial court erred to the prejucide [sic] of the defendant-appellant
when it returned a verdict of guilty on all offenses charged against the manifest weight of
the evidence.”
{¶18} In his first assignment of error, appellant argues that the trial court erred
when it denied his Crim. R. 29 motion for acquittal.
{¶19} Crim R. 29(A) provides in relevant part: “[t]he court on motion of a defendant
or on its own motion, after the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such offense or
offenses.”
{¶20} “A Crim.R. 29(A) motion challenges the sufficiency of the evidence to
support a conviction.” State v. Bell, 11th Dist. Portage No. 2020-P-0060, 2021-Ohio-899,
¶ 6, citing State v. Wright, 11th Dist. Portage No. 2000-P-0128, 2002 WL 480328, *2 (Mar.
29, 2002). “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
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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.” State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, citing
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶21} In his second assignment of error, appellant argues that his convictions are
contrary to the manifest weight of the evidence.
{¶22} A determination of whether a conviction is against the weight of the
evidence “necessarily rests on the existence of sufficient evidence to support the
conviction.” State v. McCrory, 11th Dist. Portage No. 2006-P-0017, 2006-Ohio-6348, ¶
40.
{¶23} “[W]eight of the evidence addresses the evidence’s effect of inducing
belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
“In other words, a reviewing court asks whose evidence is more persuasive—the state’s
or the defendant’s?” Id. “‘The court, reviewing the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “‘The
discretionary power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction.’” Id., quoting Martin at 175.
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{¶24} “The [trier of fact] is the sole judge of the weight of the evidence and the
credibility of the witnesses.” State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-
Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). “The
choice between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that of the
finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986), citing
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984); Henkle v.
Salem Mfg. Co., 39 Ohio St. 547 (1883). In other words, this court gives deference to the
weight and factual findings made by the factfinder. State v. Brown, 11th Dist. Trumbull
No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at 390, and State v. DeHass,
10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of the syllabus.
{¶25} In the instant case, the judge found appellant guilty of Theft, a first-degree
misdemeanor, and Criminal Damaging, a second-degree misdemeanor.
{¶26} R.C. 2913.02(A)(1), Theft, provides, “[n]o person, with purpose to deprive
the owner of property or services, shall knowingly obtain or exert control over either the
property or services in any of the following ways: (1) Without the consent of the owner or
person authorized to give consent; * * *.”
{¶27} R.C. 2909.06 (A), Criminal Damaging or Endangering, provides: “[n]o
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; [or], (2) Recklessly, by
means of fire, explosion, flood, poison gas, poison, radioactive material, caustic or
corrosive material, or other inherently dangerous agency or substance.”
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{¶28} Appellant contends that the State presented insufficient evidence to support
his conviction of Theft and Criminal Damaging. He argues that the State failed to present
evidence that appellant removed the frog statue with the intent to permanently deprive
Sonya and failed to prove he knowingly caused damage to the statues. We disagree.
{¶29} Stephanie and Janice testified that their Ring doorbell detected motion at
midnight, and recorded appellant backing out of his driveway in his silver Ford Expedition.
Appellant’s vehicle backed off the roadway, over a curb, and into Ms. Looney’s yard and
the area where the neighbors displayed their statues. Appellant did not have a statue in
the area. Ms. Looney testified that appellant did not need to back that far to pull out into
the roadway. On the video, appellant’s vehicle can be seen backing out of the driveway,
into the area, and appears to run something over. At the time of the incident, appellant
was displeased that he did not have a statue representing his family in the area like the
rest of the families in the community.
{¶30} Stephanie and Janice testified that shortly thereafter, appellant can be seen
walking his dog toward the area. Appellant then appears to bend down and pick
something up. The next morning, there was visible damage to at least two of the statues,
one statue was knocked over, another was missing its tongue. A statue consisting of four
frogs belonging to Sonya was missing from the display. In its place, was appellant’s dog
statue with “The Jarcs” written on top. Ms. Looney, Stephanie, Janice, and Sonya testified
that the statues were damaged, and that Sonya’s statue was missing from the display. A
few weeks after the incident, the missing statue was later returned to the police
department by appellant.
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{¶31} Upon review, we conclude that sufficient evidence was presented to support
appellant’s convictions. Further, the trial court did not lose its way. The record supports
the trial court’s conclusion, and the court’s decision does not create a miscarriage of
justice. Thus, appellant’s convictions are consistent with the manifest weight of the
evidence. His first and second assignments of error are without merit.
{¶32} For the reasons set forth above, we affirm the judgment of the Mentor
Municipal Court.
EUGENE A. LUCCI, P.J.,
MATT LYNCH, J.,
concur.
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