State v. Baldwin ( 2011 )

[Cite as State v. Baldwin, 2011-Ohio-4988.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 10CA0078-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BENJAMIN BALDWIN WADSWORTH MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 07CRB00833-A
DECISION AND JOURNAL ENTRY
Dated: September 30, 2011
MOORE, Judge.
{¶1} Appellant, Benjamin Baldwin, appeals the judgment of the Wadsworth Municipal
Court. This Court affirms.
I.
{¶2} On the evening of August 16, 2007, Anthony Maroni drove his father’s F-150
long-bed truck, which was licensed to his mother, to Amber Baldwin’s home on College Street
in the City of Wadsworth. He arrived around 11:45 p.m. and parked in back of the residence.
He testified that the truck was in “perfect” condition and that there was “nothing wrong with it”
when he arrived. Anthony had met Amber a few days earlier at T Bar in Wadsworth. When he
arrived at her home he found Amber, as well as the appellant, Benjamin Baldwin, and Baldwin’s
friend, Eric, inside of the residence. Amber is Benjamin’s sister. Anthony had never met
Baldwin or Eric before that night. Amber took a shower shortly after Anthony arrived and got
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ready to “hang out.” Anthony, Amber, Baldwin, and Eric listened to music and drank beer in the
residence.
{¶3} A few hours later, Baldwin went to the basement to do his laundry. Around 2:30
a.m., Anthony walked down to the truck to get some CDs. While walking up the exterior stairs
to return to the residence, he saw a red spot on the wall near the top stair. He touched the spot
and concluded that it was wet paint. At that time, Amber and Eric were in the living room.
Anthony showed the red spot to Amber and they decided to clean the wall to avoid getting in
trouble with Amber’s landlord. They then noticed five to six red droplets of paint on the second
or third step.
{¶4} After cleaning the wall, Anthony and Amber returned to the residence. Upon
entering Amber’s bedroom, they found Baldwin in the shower. When Baldwin stuck his head
out of the shower to tell Amber he was in the shower, Anthony saw that Baldwin had red paint
on his shoulder and back. Anthony and Amber spent the remainder of the evening in her
bedroom. They awoke around 1:00 p.m. the next day, and Amber found a note allegedly from
Baldwin. The note purportedly read: “Amber, me and Eric left. We will be back. I have to
work at 5:00. And tell your new boyfriend that something happened to his truck last night and I
stepped in it. That’s why I had tracked red paint all over.”
{¶5} After reading the note, Anthony testified that he ran straight to the truck and
found the cap sliding window smashed, red paint all throughout the bed of the truck, and a red
paint can next to the truck. Anthony called the police and the police arrived on scene to
investigate. Anthony hand-wrote a purported copy of the note into the police report. The police
took a series of photographs of the truck, a spot of red paint on the doorjamb to the basement and
on the basement floor. There was red paint by the lock on the basement door. There were paint
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cans on shelves in the basement, one of which appeared to be similar to the paint can outside of
his truck, but in a different color. Red paint also appeared in the shower and on a towel in
Amber’s bathroom. Anthony testified that he found a white t-shirt in the bathroom that was
“dripping” with red paint. He further testified that Baldwin had been wearing a white t-shirt at
the beginning of the night. Anthony testified that he had not given anyone permission to damage
the truck. After his father found out about the damage, Anthony was no longer allowed to drive
the truck.
{¶6} On August 20, 2007, a complaint was filed against Baldwin in the Wadsworth
Municipal Court for Criminal Damaging, a violation of R.C. 2909.06(A)(1). On February 19,
2010, Baldwin pled not guilty and the case was tried to a jury on April 29, 2010. On April 30,
2010, the jury found Baldwin guilty of criminal damaging. On June 11, 2010, Baldwin was
sentenced to a total of 60 days in jail, which was suspended, one year of probation, 24 hours of
community service, court costs, and restitution to Anthony in the amount of $1,100.
{¶7} Baldwin timely filed a notice of appeal. He raises two assignments of error for
our review.
II.
ASSIGNMENT OF ERROR I
“THE STATE VIOLATED THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT WHEN IT FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT THE PROPERTY OWNER DID NOT
CONSENT TO THE PROPERTY DAMAGE FOR THE CRIME OF CRIMINAL
DAMAGING PURSUANT TO R.C. 2909.06(A).”
{¶8} In his first assignment of error, Baldwin essentially argues that there was
insufficient evidence to support the crime of criminal damaging because the State failed to prove
that the property owner did not consent to the damage. We do not agree.
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{¶9} When considering a challenge to the sufficiency of the evidence, the court must
determine whether the prosecution has met its burden of production. To determine whether the
evidence in a criminal case was sufficient to sustain a conviction, an appellate court must view
that evidence in a light most favorable to the prosecution:
“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 crime proven
beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph
two of the syllabus.
{¶10} In State v. Brewer, “[t]he Ohio Supreme Court emphasized that the interest in the
administration of justice dictates that the appellate court review the issue of sufficiency in
consideration of all evidence presented by the state in its case in chief, whether such evidence
was properly admitted or not.” State v. Freitag, 185 Ohio App.3d 580, 2009-Ohio-6370, at ¶9,
citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, at ¶19.
{¶11} Baldwin was convicted of criminal damaging, a violation of R.C. 2909.06(A),
which states that “[n]o person shall cause, or create a substantial risk of physical harm to any
property of another without the other person’s consent[.]” Baldwin maintains that the State
failed to prove lack of consent because the property owner, Rhonda Maroni, did not testify.
{¶12} The facts indicate that Rhonda’s son, Anthony Maroni, testified in the State’s
case-in-chief. He was the complainant in this action, and had possession of the truck throughout
the evening of the night in question. When asked how he arrived at the residence where the
damage purportedly took place, he responded, “I drove my truck.” After further questioning, he
clarified that it was his father’s truck, and that the title was in his mother’s name. Anthony
testified that he did not give anyone permission to damage the truck. He also testified that after
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this event, his father “took the truck away from [him]” and that he was “without a vehicle for
over a year[.]”
{¶13} Baldwin cites Akron v. Garrett, 9th Dist. No. 24412, 2009-Ohio-1522, to support
his contention that the owner of the vehicle in a criminal damaging action must testify regarding
consent. That case, however, is distinguishable on its facts. There, the defendant was convicted
of criminal damaging for throwing rocks at the surveillance cameras of a bar. Id. at ¶3-5. The
State only presented the testimony of bartenders at the establishment, and the responding officer.
Id. at ¶10. The proprietor of the bar was not called to testify. See id. at ¶12. This Court
concluded that “the State failed to produce any evidence as to the additional element of consent.”
Id. at ¶10. No argument was made that the bartenders had sufficient property interests in the
cameras to protect them against criminal damaging.
{¶14} However, this Court has previously held that “the right of possession alone is a
sufficient property interest to protect one against the crime of criminal damaging.” State v.
Garber (1998), 125 Ohio App.3d 615, 617. See also, State v. Russell (1990), 67 Ohio App.3d
81, 85 (concluding that “possession of a vehicle is a sufficient property interest to protect one
against the crime of criminal mischief”); Dayton v. Wells (May 29, 1992), 2d Dist. No. 12862
(holding that “[t]here is no merit to the position that only the actual owner * * * may assert the
damage or indicate the lack of consent to the unlawful act of appellant. As in the [criminal
damaging] statute, the city ordinance prohibits damaging the proper[ty] of ‘another.’ This
language includes all lesser degrees of possessory rights.”).
{¶15} In addition, lack of consent to damage may be proved by circumstantial evidence.
State v. Maust (1982), 4 Ohio App.3d 187, 188-89 (noting that “the gravamen of the complaint is
not directed to one who is the owner of a motor vehicle which has been damaged. The statute
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deals with ‘physical harm to any property of another.’ R.C. 2909.06. Although not necessary to
the issue raised in this case, it can be argued that a right of possession is a sufficient ‘property’
interest to protect one against the crime of criminal damaging.”). In Maust, the victim had taken
possession of the vehicle on the day of the alleged criminal damaging, but did not receive title
until six days later. Id. at 188. The court concluded that it was not necessary to produce title of
ownership to maintain the action, and that the circumstantial evidence demonstrated lack of
consent by the victim. Id. at 188-89. See also, State v. Stout (Apr. 16, 1997), 9th Dist. No.
96CA0038.
{¶16} The Tenth District, in In re Glenn (Aug. 16, 1979), 10th Dist. No. 79AP-239,
allowed the husband of the automobile owner to testify in a criminal damaging action that he had
not given permission to anyone to damage the automobile, and to his knowledge his wife had not
either. Id. at *2. The court did not require the record of title holder to testify as to her consent.
Instead, the court acknowledged that the court could “further find from the circumstantial
evidence that the owner of the automobile did not give consent to the damage of the automobile
in view of all the circumstances.” Id. See also, Cleveland v. Bacsa (Oct. 29, 1998), 8th Dist. No.
73519, at *6 (holding that the woman in possession of the vehicle had “a sufficient property
interest to protect one against criminal damaging” and thus allowed the defendant, who in fact
owned the vehicle in question, to be convicted of criminal damaging).
{¶17} In this case, there was circumstantial evidence that allowed the jury to conclude
that the damage to the vehicle was done without the consent of the owner. The son of the vehicle
owner testified that he was in possession of the vehicle and that he did not consent to the
damage. As soon as he discovered the damage to the vehicle, he immediately reported it to the
police. He further testified that once his parents discovered the damage, they took away his
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rights to the vehicle. Circumstantial and direct evidence “possess the same probative value[.]”
Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “Furthermore, if the State relies on
circumstantial evidence to prove any essential element of an offense, it is not necessary for ‘such
evidence to be irreconcilable with any reasonable theory of innocence in order to support a
conviction.’” (Internal quotations omitted.) State v. Tran, 9th Dist. No. 22911, 2006-Ohio-4349,
at ¶13, quoting State v. Daniels (June 3, 1998), 9th Dist. No. 18761, at *2.
{¶18} After viewing the evidence in the light most favorable to the State, we conclude
that the trier of fact could reasonably find that the State met its burden of production and
presented sufficient evidence to prove that Baldwin caused harm to the property of another
without the other person’s consent. Accordingly, his first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED
THE STATE TO USE UNAUTHENTICATED HEARSAY EVIDENCE IN
VIOLATION OF OHIO RULE OF EVIDENCE 801.”
{¶19} In his second assignment of error, Baldwin argues that the trial court committed
plain error by admitting the contents of the note from Baldwin. We disagree.
{¶20} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” Plain error is only
to be noticed “under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. “This Court
will apply Crim. R. 52(B) only if it appears on the face of the record that an error was
committed, and the result of the trial clearly would have been different but for the alleged error.”
State v. Dent, 9th Dist. No. 20907, 2002-Ohio-4522, at ¶6, citing State v. Bock (1984), 16 Ohio
App.3d 146, 150.
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{¶21} Baldwin argues that the trial court committed plain error by admitting the contents
of the note allegedly written by him because the “State [] relied heavily on the note during trial to
tie the circumstantial facts of the case together and implicate [] Baldwin.” In particular, “the
contents of the note placed [] Baldwin in contact with the paint which damaged [the vehicle.]”
Because there was direct evidence that connected him to the paint, i.e., Anthony’s testimony that
he saw red paint on Baldwin’s shoulder and back, the admission of the note as circumstantial
evidence connecting him to the paint did not prejudice him. Any error would be harmless.
Accordingly, his second assignment of error is overruled.
III.
{¶22} Baldwin’s assignments of errors are overruled. The judgment of the Wadsworth
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wadsworth
Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, J.
CONCURS
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY, SAYING:
{¶23} I concur in the judgment. In my view, Mr. Maroni’s testimony that he was in
possession of his mother’s truck and that he did not give permission for someone to damage it
satisfied the permission element of R.C. 2909.06(A)(1). Accordingly, I believe the majority’s
discussion of circumstantial evidence is unnecessary.
APPEARANCES:
J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for
Appellant.
PAGE C. SCHROCK, III, Attorney at Law, for Appellee.