State v. Ballinger
This text of 2013 Ohio 2274 (State v. Ballinger) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Ballinger, 2013-Ohio-2274.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-10-207
: OPINION - vs - 6/3/2013 :
ROBERT BALLINGER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 12CRB03023
Geoffrey A. Modderman, Hamilton City Prosecutor, 345 High Street, 7th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Fred Miller, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, Robert Ballinger, appeals his conviction and sentence in
the Hamilton Municipal Court for one count of criminal damaging.
{¶ 2} During the evening hours of August 22, 2012, George Roberson observed
Ballinger on the sidewalk in front of the home of Lynn Sauceda, Ballinger's neighbor.
Ballinger, who was visibly intoxicated, approached Sauceda's residence and began knocking
loudly on her door. Sauceda yelled for Ballinger to leave, at which point, Ballinger began Butler CA2012-10-207
taking off his clothes. Ballinger's mother heard the commotion and yelled for Ballinger to
return home.
{¶ 3} Approximately five to ten minutes after Ballinger left Sauceda's door, Roberson
witnessed Ballinger exit his home, take out a knife, and drag it along the fender of Sauceda's
Lincoln Navigator, leaving a large gouge the full length of the fender. Sauceda's vehicle,
which was parked on the street, was illuminated by two street lights so that Roberson was
able to clearly identify Ballinger as the offender.
{¶ 4} Officer John Habig responded to the scene, at which time, Sauceda's neighbors
told him that they had seen Ballinger scratch the vehicle. Officer Habig began to question
Ballinger, and Ballinger stated that he had not done anything to "that car," even though
Officer Habig had not yet mentioned that he had been dispatched because of the scratch to
Sauceda's vehicle.
{¶ 5} Ballinger was charged with one count of criminal damaging. The municipal
court held a bench trial at which Roberson, Sauceda, Officer Habig, and Ballinger testified.
The trial court found Ballinger guilty and sentenced him to 90 days in jail with credit for thirty
days served. Ballinger now appeals his conviction and sentence, raising the following
assignment of error.
{¶ 6} IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO CONVICT
SOMEONE OF CRIMINAL DAMAGING WHEN THE ONLY WITNESS TO THE DAMAGING
HAS HAD A HISTORY OF BAD BLOOD WITH THE DEFENDANT, THE LIGHTING IN THE
AREA WAS POOR, NO KNIFE THAT WAS SUPPOSEDLY USED FOR DAMAGING WAS
EVER FOUND, AND THE DEFENDANT ADAMANTLY DENIES HIS INVOLVEMENT.
{¶ 7} Ballinger argues that his conviction for criminal damaging was against the
manifest weight of the evidence.
{¶ 8} A manifest weight challenge examines the inclination of the greater amount of -2- Butler CA2012-10-207
credible evidence, offered at a trial, to support one side of the issue rather than the other.
State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298.
In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines 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. Cummings, 12th Dist. No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.
{¶ 9} While appellate review includes the responsibility to consider the credibility of
witnesses and weight given to the evidence, "these issues are primarily matters for the trier of
fact to decide since the trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. No. CA2006-
04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a conviction due to
the manifest weight of the evidence only in extraordinary circumstances to correct a manifest
miscarriage of justice, and only when the evidence presented at trial weighs heavily in favor
of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386, (1997).
{¶ 10} Ballinger was convicted of criminal damaging in violation of R.C. 2909.06(A)(1),
which states, "no person shall cause, or create a substantial risk of physical harm to any
property of another without the other person's consent: Knowingly, by any means." Ballinger
asserts that his conviction was against the manifest weight of the evidence because the state
failed to offer the testimony of an unbiased witness to establish that he caused physical harm
to Sauceda's vehicle. However, after reviewing the record, we do not find that the trial court
lost its way in determining that Ballinger caused physical harm to Sauceda's vehicle.
{¶ 11} Sauceda testified that she owns a 2004 Lincoln Navigator and that prior to the
night of the incident, the vehicle did not have a scratch on it. Sauceda further testified that
after she was informed of the incident by her neighbors, she observed a large scratch on her -3- Butler CA2012-10-207
vehicle's front fender. Sauceda testified that she did not give Ballinger permission to scratch
her vehicle.
{¶ 12} The state also presented the testimony of Roberson, who stated that on the
night of the incident, he saw Ballinger approach Sauceda's door, knock on it loudly, and then
begin disrobing after she told him to leave. Roberson testified that he yelled to Ballinger to
put his clothes back on because there were children present in the neighborhood, and that
Ballinger's mother told him to come back home. Roberson testified that he observed
Ballinger leave Sauceda's door and return minutes later, at which time, Ballinger removed a
knife from his pocket and began dragging it along the fender of Sauceda's vehicle. Roberson
testified that he called the police because he was worried that Ballinger, who Roberson
stated was "drunk", would harm someone. During cross-examination, Roberson testified that
he was able to clearly see and identify Ballinger because there are two street lights on either
side of where Sauceda's vehicle was parked.
{¶ 13} Officer Habig testified that when he first observed Ballinger, Ballinger was
"pretty heavily intoxicated," and that Ballinger told him that he did not do anything to the car
even though the officer had not yet spoken to Ballinger about the damage to Sauceda's
vehicle. Officer Habig testified that Ballinger was arrested and searched, and that while no
knifes were found on Ballinger's person, Ballinger had been in his home between the time of
the criminal damaging and the time of arrest.
{¶ 14} Ballinger testified in his own defense. He denied having gone to Sauceda's
door and disrobing, and also denied having a knife or damaging Sauceda's vehicle. Ballinger
testified that Roberson fabricated the story about damaging the vehicle because Roberson
had a vendetta against him because he played his stereo too loudly.
{¶ 15} Given the trial court's guilty verdict, it found Ballinger's testimony lacking in
credibility, and the state's witnesses credible.
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