State v. Todd

[Cite as State v. Todd, 2023-Ohio-2139.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220380
TRIAL NO. 22CRB-2430
Plaintiff-Appellee, :
O P I N I O N.
vs. :
KEVIN TODD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 28, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Amber H. Daniel, 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
W INKLER , Judge.
{¶1} Following a bench trial in municipal court, defendant-appellant
Kevin Todd was convicted of criminal damaging in violation of R.C. 2909.06.
He appeals that conviction, raising a sole assignment of error that his
conviction was based on insufficient evidence and against the manifest weight
of the evidence. For the reasons set forth below, we affirm the conviction.
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.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} At trial, the maintenance coordinator for 323 Terrace Avenue
testified to the extent of the damage and that he had not authorized any damage
to the laundry machines. The defense argued at trial that there was no direct
evidence that Todd entered the building without consent or that Todd damaged
the laundry machines or that any damage was done without consent of the
laundry machines’ owner. The municipal court convicted Todd of criminal
damaging but acquitted him of criminal trespass. This appeal followed.
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.
3
OHIO FIRST DISTRICT COURT OF APPEALS
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
4
OHIO FIRST DISTRICT COURT OF APPEALS
of another (4) without the other person’s consent. R.C. 2909.06(A)(1). There
are two relevant issues on appeal: first, whether the state produced sufficient
evidence to prove the fourth element, that Todd acted without consent, and
second, whether the manifest weight of the evidence properly showed that
Todd caused the “physical harm” to the laundry machines.
Sufficiency of the Evidence
{¶10} R.C. 2909.06 prohibits harm to “any property of another
without the other person’s consent.” The key element in this case is “without
the other person’s consent.” The statute is not so narrow that only the owner
can testify to the lack of consent. See Dayton v. Wells, 2d Dist. Montgomery
No. 12862, 1992 Ohio App. LEXIS 2763, 3 (May 29, 1992) (holding under
analogous city ordinance, “[t]here is no merit to the position that only the
actual owner of the [property] may assert the damage or indicate the lack of
consent to the unlawful act of appellant”). Where the property is owned by a
corporation, the corporation itself cannot consent. Rather, a corporation may
only consent to damage to its property through its agents. See State v. Murray,
7th Dist. Mahoning No. 07 MA 21, 2008-Ohio-1537, ¶ 28-30 (holding the
owner of the LLC that owned an apartment building properly testified to the
lack of consent to damage to the building’s plumbing); State v. Hill, 8th Dist.
Cuyahoga No. 107058, 2019-Ohio-698, ¶ 18 (finding son of the vehicle owner
who was in possession of the vehicle properly testified to the lack of consent to
the damage to the vehicle). Thus, an agent authorized to consent to property
damage on behalf of the owner or who manages or controls the property on
behalf of the owner may testify to the lack of the owner’s consent.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Here, Don Luck, the maintenance coordinator employed at 323
Terrace Avenue, testified that he did not authorize any damage to the building’s
laundry machines. Under a sufficiency review, we must view this testimony in
the light most favorable to the prosecution. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus; Ojile, 1st Dist. Hamilton Nos.
C-110677 and C-110678, 2012-Ohio-6015, at ¶ 48. While Luck did not testify
that the owner of the building expressly authorized him to consent to damage,
Luck did testify that he was employed at 323 Terrace Avenue as a maintenance
coordinator. Viewed most favorably for the prosecution, a reasonable
factfinder could find that Todd acted without the consent of the owner of 323
Terrace Avenue because the building maintenance coordinator had not
authorized Todd’s actions.
{¶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
6
OHIO FIRST DISTRICT COURT OF APPEALS
the bar owner did not testify that he did not consent to rocks being hurled at
his surveillance cameras, the Ninth District concluded there was no evidence
to the lack of consent element. Id. While the Ninth District recognized both
the “absurdity of the result” in its own opinion and that “simple logic dictates
few property owners would consent to rocks hurled at their property for the
purpose of damaging them,” it concluded there was not sufficient evidence to
the element of consent. Id. at ¶ 15.
{¶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
7
OHIO FIRST DISTRICT COURT OF APPEALS
State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988). Circumstantial
evidence may be more certain, satisfying, and persuasive than direct evidence.
Id., quoting State v. Jackson, 57 Ohio St.3d 29, 38, 565 N.E.2d 549 (1991).
{¶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
8
OHIO FIRST DISTRICT COURT OF APPEALS
into and removed, coins were scattered on the floor, the gas line was removed
from the dryer, and there was water damage. There was no evidence presented
that suggested that the laundry machines were previously nonfunctional, that
access was needed to the laundry room wall, that the gas line needed replacing,
that coins had jammed the apertures, or that the laundry room floor needed to
be washed out. If such extensive damage were authorized, the maintenance
coordinator for the building would presumably have to authorize it or at least
know about it in advance. This is especially true because the damage caused
water to leak in the basement and affected the building’s gas line. Viewing the
evidence of the damage in the light most favorable to the prosecution, a
reasonable factfinder could infer such broad damage was not consented to.
{¶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
9
OHIO FIRST DISTRICT COURT OF APPEALS
conflicts in the evidence, the [trier of fact] clearly lost its way. Bailey, 1st Dist.
Hamilton No. C-140129, 2015-Ohio-2997, at ¶ 59, quoting Thompkins,
78 Ohio St.3d at 387, 678 N.E.2d 541. Identity can be proven with direct and
circumstantial evidence like any other element of an offense. State v. Gibson,
9th Dist. Summit No. 23881, 2008-Ohio-410, ¶ 8. As discussed previously,
circumstantial evidence and direct evidence have the same probative value.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of syllabus. On a
manifest-weight review, we must assess which of the competing inferences is
more believable. State v. Richards, 1st Dist. Hamilton No. C-210656,
2022-Ohio-4698, ¶ 13, quoting State v. Williams, 10th Dist. Franklin No.
10AP-779, 2011-Ohio-4760, ¶ 21.
{¶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
10
OHIO FIRST DISTRICT COURT OF APPEALS
the banging noises to the officer finding Todd alone in the basement, together
with Todd’s admission, and that the damage is consistent with that admission,
provides ample circumstantial evidence to support the inference that Todd
damaged the laundry machines. See City of Cleveland v. Graham, 8th Dist.
Cuyahoga No. 100394, 2014-Ohio-3413, ¶ 28 (finding all elements of criminal
damaging established where witness heard glass shattering, found her window
shattered, and saw the defendant next to her car); Drane, 2d Dist. Montgomery
No. 21626, 2007-Ohio-2591, at ¶ 15 (upholding criminal-damaging conviction
where vehicles were not damaged before defendant arrived but found keyed
after defendant had left).
{¶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
11
OHIO FIRST DISTRICT COURT OF APPEALS
cannot say the trial court patently lost its way in convicting Todd of criminal
damaging.
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.
Z AYAS , P.J., and B OCK , J., concur.
Please note:
The court has recorded its own entry on this date.
12