State v. Davis , 2021 Ohio 2954 ( 2021 )

[Cite as State v. Davis, 2021-Ohio-2954.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200249
C-200250
Plaintiff-Appellee, : C-200251
C-200252
vs. : TRIAL NOS. 20CRB-1553A, B
20CRB-2220
BRITTANY DAVIS, : 20CRB-7651
Defendant-Appellant. : O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: August 27, 2021
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Elyse Deters, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Following a bench trial, defendant-appellant Brittany Davis was
convicted of one count of theft under R.C. 2913.02 and three counts of criminal
damaging or endangering under R.C. 2909.06. She now appeals those convictions,
presenting two assignments of error for review. We find merit in her second
assignment of error related to the imposition of costs. Consequently, we reverse the
trial court’s judgment in the case numbered 20CRB-7651 regarding costs. We affirm
the trial court’s judgments in all other respects.
I. Factual Background
{¶2} The victim, Jaisha Broner, testified about three separate incidents
involving Davis. The first occurred on December 15, 2019. Broner went out to
dinner with the father of her child, Edward Holmes. Holmes is also the father of one
of Davis’s children. Broner and Holmes returned to Broner’s home after dinner to
get some clothing for her children, who were staying at her mother’s house.
{¶3} After about ten minutes, Broner heard “bamming, like somebody was
beating on something.” Although the noise went on for about two minutes, she
ignored it because she “didn’t know what it was.” When the noise started again
several minutes later, she opened her door and saw Davis in the back seat of her car
with the door open. Davis left in a silver car when she saw Broner and Holmes.
{¶4} When Broner went out to her car, the first thing she noticed was that
her tires were flat. She also saw that there were eggs and a bottle of urine in the back
seat. A bottle of alcohol had been sprayed all over her child’s car seat and the front
seat of the car. The gas tank was open, and Broner believed that something had been
put in the tank because her car would not start. Additionally, she discovered that her
wallet with her identification, credit cards, and $400 to $500 cash was taken.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The second incident occurred on January 24, 2020. Broner testified
that she was taking her children to get something to eat when she saw that her car
windshield was cracked and a brick was sitting on her car.
{¶6} After the first incident, Broner had purchased surveillance cameras for
her home. She was able to rewind the video to the day her windshield was damaged.
The state submitted two videos into evidence. In the first video, an individual that
Broner identified as Davis drove up in a silver car, came up through the sunroof, and
threw a brick at Broner’s car. The second video showed Davis returning a short time
later. She got out of the passenger seat and threw a brick at Broner’s car. Broner
testified that both videos were clearer on her television than they were in the
courtroom and that she was able to identify Davis because she knows Davis’s face.
She also stated that the person in the video was wearing a black leather jacket and a
hood.
{¶7} The third incident occurred on April 26, 2020. At about 8:00 a.m.,
Broner heard someone “bamming” on her door and yelling. She realized it was Davis
because she knows Davis’s voice. When Broner opened her door, Davis was outside
yelling for her to come out so Davis could “beat her ass.” No fight occurred because
Davis left. The state presented a video that Broner had recorded through the blinds
in her son’s bedroom at the front of the house. The video showed a blue Honda
driving away. Broner testified that voice in the video was Davis’s.
{¶8} Following that encounter, Broner called the police. She went to the
police station to make a report in person. When Broner returned home, she saw
Davis parked in a blue Honda at the end of the street. Broner went into the house,
and two minutes later, Davis began “bamming” on the door again. Broner had to
push against the door, which she described as “frail,” to prevent it from breaking.
{¶9} When Broner released the door to get her scared children to the back
of the house, the door suddenly burst open. Davis then walked back to her car and
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OHIO FIRST DISTRICT COURT OF APPEALS
left the scene. Broner presented photographs showing the damage to the door. She
stated that the lock was broken and the “wooden part was kicked in.”
{¶10} Davis testified on her own behalf. She stated that on December 15,
2019, the day of the first incident, she was home. She denied stealing Broner’s wallet
or damaging her car. She further testified that 0n January 24, 2020, the date of the
second incident, she had to write a paper for her English class. She worked on it at
the home of her friend, Tynisha Alford, from 8:00 p.m. to 1:30 a.m. Davis later
admitted that they left Alford’s house about 9:30 to go to Alford’s mother’s house
because Alford “had to grab something.”
{¶11} Davis also denied being the person in the videos. She testified that she
wears glasses, and the person in the video did not have on glasses. She also
presented a photograph taken on January 22, 2020, showing her with long, black
hair to demonstrate that she was not the person in the videos.
{¶12} As to the third incident on April 26, 2020, Davis admitted that she
went to Broner’s house because she was upset about the criminal charges filed
against her. She acknowledged that it was her voice on the video. She denied
returning to Broner’s house and breaking the door.
{¶13} Alford also testified. She stated that Davis had been at her home on
January 24, 2020, from about 7:30 p.m. until 1:00 a.m. But she acknowledged that
they had left the house at around 8:00 p.m. She also acknowledged that she knew
nothing about what had occurred related to the criminal charges filed against Davis.
II. Manifest Weight
{¶14} In her first assignment of error, Davis contends that the trial court
erred in finding her guilty of theft and criminal damaging because those findings
were contrary to the manifest weight of the evidence. She argues that the state failed
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OHIO FIRST DISTRICT COURT OF APPEALS
to prove her guilt beyond a reasonable doubt. This assignment of error is not well
taken.
{¶15} This case rests entirely on credibility. The trial court stated that it
believed the victim’s testimony. The trier of fact may believe all, some or none of any
witness’s testimony. State v. Williams, 1st Dist. Hamilton Nos. C-060631 and C-
060668, 2007-Ohio-5577, ¶ 37. Matters as to the credibility of evidence are for the
trier of fact to decide because the trier of fact sees the witnesses in person and is in a
better position to weigh the witness’s demeanor and credibility. State v. Bryan, 101
Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 116; State v. Cruzbaez, 1st Dist.
Hamilton No. C-180263, 2019-Ohio-2452, ¶ 22-23.
{¶16} After reviewing the record, we cannot say that the trier of fact lost its
way and created such a manifest miscarriage of justice that we must reverse the
convictions and order a new trial. Therefore, the convictions are not against the
manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997); Cruzbaez at ¶ 21. Therefore, we overrule Davis’s first
assignment of error.
III. Court Costs
{¶17} In her second assignment of error, Davis contends that the trial court
erred when it imposed costs in the case numbered 20CRB-7651. She argues that
because the trial court did not impose court costs at the sentencing hearing, it was
contrary to law to impose costs in the sentencing entry. This assignment of error is
well taken.
{¶18} R.C. 2947.23(A)(1) states that “[i]n all criminal cases * * *, the judge or
magistrate shall include in the sentence the costs of prosecution * * * and render
judgment against the defendant for such costs.” The imposition of costs is
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OHIO FIRST DISTRICT COURT OF APPEALS
mandatory, but the trial court has authority to waive the payment of costs at any
time after they are imposed, as long as they are still unpaid. State v. Braden, 158
Ohio St.3d 462, 2019-Ohio-4204, 145 N.E.3d 235, ¶ 18-23; State v. Kinley, 1st Dist.
Hamilton No. C-190270, 2020-Ohio-542, ¶ 11.
{¶19} The trial court did not say anything about costs at the sentencing
hearing, although they were imposed in the judgment entry. The Ohio Supreme
Court has held that a trial court’s failure to address court costs and fees at the
sentencing hearing and to then impose them in the journal entry is reversible error
that requires a remand for the limited purpose of remedying the error. State v.
Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11 and 23; State v.
Geary, 2016-Ohio-7001, 72 N.E.3d 153, ¶ 44 (1st Dist.). Because the trial court did
not discuss the imposition of court costs at the sentencing hearing, Davis was denied
the opportunity to claim indigency and to seek a waiver of the payment of those
costs. See Joseph at 44; Geary at ¶ 45.
{¶20} Consequently, we sustain Davis’s second assignment of error. We
reverse the part of Davis’s sentence that imposes court costs, and we remand the case
numbered 20CRB-7651 to the trial court for the limited purpose of allowing Davis to
move for a waiver of payment of court costs. We affirm the trial court’s judgments in
all other respects.
Judgments affirmed in part, reversed in part, and cause remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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