State v. Barry

[Cite as State v. Barry, 2023-Ohio-750.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 22CA0041-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRENT BARRY MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 21CRB01101
DECISION AND JOURNAL ENTRY
Dated: March 13, 2023
SUTTON, Presiding Judge.
{¶1} Plaintiff-Appellant, Brent Barry, appeals the judgment of the Medina Municipal
Court. For the following reasons, this Court affirms.
I.
Relevant Background
{¶2} This appeal arises due to an incident at Mr. Barry’s residence concerning the
destruction of property belonging to his brother, B.B., including a backpack, clothing, and Nike
Air Jordan sneakers. After an investigation, Mr. Barry was charged with criminal damaging, in
violation of R.C. 2909.06(A)(1), a second degree misdemeanor. Mr. Barry pleaded not guilty and
the matter proceeded to bench trial. At trial, Mr. Barry engaged in self-representation after waiving
his right to counsel both orally and in written form. Mr. Barry also orally stipulated to damaging
the backpack.
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{¶3} In support of its case-in-chief, the State called B.B. and Officer Joseph Calabrese.
Further, Mr. Barry called Dorothy Rudolpho, his grandmother, to testify in his defense.
{¶4} B.B. testified he lives with Mr. Barry and Ms. Rudolpho. Mr. Barry was upset
because he thought B.B. had stolen clothes from him. B.B. came home one day to find his
backpack “ripped to pieces[,]” his clothing ripped up, and water poured into his Nike Air Jordan
sneakers. B.B. further testified he did not give Mr. Barry permission to destroy these items of
personal property.
{¶5} Officer Calabrese testified he responded to a complaint at the Barry residence
regarding the destruction of B.B.’s personal property. At that time, he spoke with Mr. Barry and
B.B. Officer Calabrese further testified:
according to [B.B.], [Mr. Barry] became upset that his clothes were missing,
couldn’t find them, and by thinking that [B.B.] was the one who took them, [Mr.
Barry] intentionally ripped [B.B.’s] clothing up and his backpack and then
subsequently ran [B.B.’s] Air Jordans underneath the sink water in the utility sink.
Officer Calabrese agreed that Mr. Barry admitted to ripping the backpack, although Mr. Barry said
he did not do so “purposely[.]” Mr. Barry also told Officer Calabrese “[t]hat the shoes were
already in the sink, and when he turned on the faucet, the water hit them.” Officer Calabrese
indicated he inspected the relevant items of property, including the backpack, jeans, shirt, and Nike
Air Jordan sneakers, although he did not recall the condition of the shirt. The backpack “looked *
* * as if somebody took it and just ripped at the end of the zippers where they end, and there was
a little bit of rip from that point down.” The jeans “were the most noticeable * * * and it looked
like somebody ripped them apart down to one pant leg.” Officer Calabrese also stated, “[t]he shoes
were still saturated with water.” At the conclusion of his investigation, Officer Calabrese
determined there was probable cause to charge Mr. Barry with “criminal damaging of [B.B.’s]
clothing and backpack.”
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{¶6} Ms. Rudolpho testified she unlocked Mr. Barry’s bedroom door, without Mr.
Barry’s permission, and B.B. took clothing from Mr. Barry’s room and placed it in his backpack.
However, Ms. Rudolpho was not sure if the clothing actually belonged to Mr. Barry or B.B.
According to Ms. Rudolpho, Mr. Barry gave B.B. some clothing and then took it back. B.B. asked
Ms. Rudolpho to unlock Mr. Barry’s bedroom door to retrieve his own clothing. On cross-
examination, Ms. Rudolpho admitted she witnessed Mr. Barry rip B.B.’s backpack with his hands
and pour water on the Nike Air Jordan sneakers. Further, Ms. Rudolpho yelled at Mr. Barry to
“stop” and pulled items of clothing away from him to prevent further damage.
{¶7} The trial court found Mr. Barry guilty of criminal damaging and sentenced him to
a fine of three hundred dollars, plus court costs, with six-months to pay.1
{¶8} Mr. Barry now appeals raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ADMITTING INTO EVIDENCE OTHER ACTS EVIDENCE IN
VIOLATION OF EVID.R. 403 AND 404(B), AND [THE] FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 AND 16 OF THE OHIO
CONSTITUTION.
{¶9} In his first assignment of error, Mr. Barry argues the trial court committed
reversible error by allowing other acts evidence at trial. Specifically, Mr. Barry contends
testimony regarding the destruction of the Nike Air Jordan sneakers should not have been allowed
because this incident occurred at a different time than the destruction of the backpack and clothing.
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The record indicates Mr. Barry has not yet paid the fine or costs associated with this
matter.
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{¶10} The record reveals, at trial, Mr. Barry did not object to the admission of evidence
regarding the Nike Air Jordan sneakers based upon other acts evidence or for any other reason.
See Marsico v. Skrzypek, 9th Dist. Lorain No. 13CA010410, 2014-Ohio-5185, ¶ 6. (“It is well
settled that the failure to timely object to a possible error results in a forfeiture of the issue for
purposes of appeal.”). While a party failing to object in the trial court can argue plain error on
appeal, Mr. Barry has not done so, and this Court will not create an argument for him. Rivenbark
v. Discount Drug Mart, 9th Dist. Medina No. 17CA0089-M, 2018-Ohio-4072, ¶ 24.
{¶11} Accordingly, Mr. Barry’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
[MR. BARRY’S] CONVICTION WAS BASED ON INSUFFICIENT
EVIDENCE AS A MATTER OF LAW.
{¶12} In his second assignment of error, Mr. Barry argues his conviction for criminal
damaging or endangering is not supported by sufficient evidence. Specifically, Mr. Barry argues
the State failed to present sufficient evidence that Mr. Barry knowingly ripped B.B.’s backpack.
For the following reasons, we disagree.
{¶13} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
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allows the trier of fact to reasonably conclude that the essential elements of the crime were proven
beyond a reasonable doubt. Id.{¶14} R.C. 2909.06(A)(1) states: “[n]o person shall cause, or create a substantial risk of
physical harm to any property of another without the other person’s consent: [k]nowingly, by any
means[.]” Further, a person acts “knowingly, regardless of purpose, when the person is aware that
the person’s conduct will probably cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when the person is aware that such circumstances probably
exist.” R.C. 2901.22(B).
{¶15} Here, the record reveals Mr. Barry stipulated to ripping B.B.’s backpack, stating:
“I did rip the book bag.” Moreover, Ms. Rudolpho testified she saw Mr. Barry rip the backpack
with his hands, stating: “[h]e was pulling stuff out of it and * * * then he ripped it. * * * He took
it and just ripped it.” In viewing this evidence in a light most favorable to the State, we cannot say
the Stated failed to prove Mr. Barry knowingly ripped the backpack.
{¶16} Accordingly, Mr. Barry’s second assignment of error is overruled.
III.
{¶17} Mr. Barry’s two assignments of error are overruled. The judgment of the Medina
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 Medina 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.
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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(C). 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.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
STEVENSON, J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
YI MI KIM-REYNOLDS, Attorney at Law, for Appellant.
J. MATTHEW LANIER, Prosecuting Attorney, for Appellee.