[Cite as State v. Bittner, 2021-Ohio-4103.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29158 : v. : Trial Court Case No. CRB 2100010 : SHANE K. BITTNER : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :
...........
OPINION
Rendered on the 19th day of November, 2021.
ERIK R. BLAINE, Atty. Reg. No. 0080726, City of Vandalia Prosecutor’s Office, 245 James E. Bohanan Memorial Drive, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant
.............
TUCKER, P.J. -2-
{¶ 1} Defendant-appellant, Shane K. Bittner, appeals from his conviction in the
Vandalia Municipal Court after the trial court held a bench trial and found him guilty of one
count of criminal damaging. Bittner claims his conviction was against the manifest
weight of the evidence. For the reasons outlined below, Bittner’s conviction will be
affirmed.
I. Factual Background and Procedural History
{¶ 2} On January 2, 2021, Brian Humphrey was in his home on Cadie Avenue in
Harrison Township when his dogs began to make noise and run toward the door.
Humphrey opened his front door and observed Bittner, who was known to him, driving his
truck through Humphrey’s front yard. Humphrey reported the incident to the police. On
January 4, 2021, Bittner was charged by complaint with one count of criminal damaging
in violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree.
{¶ 3} A trial was conducted on May 18, 2021. Humphrey testified that he had
dated Bittner’s sister, that he personally knew Bittner, and that he had observed Bittner
in his truck "doing a burnout through my front yard into the street.” Tr. p. 6. Humphrey
testified that his lawn was damaged and he had to purchase grass seed and top soil in
order to repair the damage. Humphrey also testified that Bittner’s actions caused mud
to spray across the façade of his house. Humphrey identified pictures of the damage
caused to his lawn and the mud sprayed on the home (State’s Exhibit 1). The pictures
were taken by police officers who responded to Bittner’s home following the incident.
{¶ 4} Bittner presented the testimony of Avery Moeller, a criminal defense -3-
investigator who worked for the Montgomery County Public Defender’s Office. Moeller
testified that he took pictures of Humphrey’s yard and Bittner’s truck on March 10, 2021;
he also took measurements of Bittner’s tires and the tire marks in Humphrey’s yard.
Moeller testified that the tires on Bittner’s truck were approximately seven and one-half
inches wide, but the marks in Humphrey’s yard were approximately seven inches wide.
Moeller also testified that the width from the outside of one of Bittner’s tires to the outside
of the opposing tire was 65 inches, while the same measurement of the tire marks in the
yard was 65 to 66 inches. Finally, Moeller testified that he took pictures which showed
that the rear cab windows and rear window of Humphrey’s truck were tinted.
{¶ 5} The court found Bittner guilty as charged. The court sentenced Bittner to a
90-day jail term with 90 days suspended. As part of his probation, Bittner was required
to reimburse Humphrey the sum of $92 for the cost to repair the damage to his lawn.
The court also imposed fines and costs of $306.
{¶ 6} Bittner appeals.
II. Analysis
{¶ 7} Bittner’s sole assignment of error states:
THE TRIAL COURT ERRED AS APPELLANT’S CONVICTION IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND SECTIONS 10 AND
16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 8} Bittner challenges his conviction for criminal damaging, asserting that the -4-
conviction was against the manifest weight of the evidence.
{¶ 9} When a conviction is challenged on appeal as being against the weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N .E.2d 541 (1997). A judgment should
be reversed as being against the manifest weight of the evidence “only in the exceptional
case in which the evidence weighs heavily against the conviction.” State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 10} In conducting our review, we are guided by the presumption that the trial
judge, as the trier of fact, “is better situated than an appellate court to view witnesses and
to observe their demeanor, gestures, voice inflections and to use those observations in
weighing credibility.” State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 42 (2d Dist.),
quoting State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 50 (2d Dist.). “A trier of fact
is free to believe all, part or none of the testimony of each witness.” (Citations omitted.)
Id. Accordingly, we afford great deference to the trier of fact's determination of witness
credibility. State v. Redman, 10th Dist. Franklin No. 10AP-654, 2011-Ohio-1894, ¶ 26.
{¶ 11} Bittner was charged with criminal damaging in violation of R.C.
2909.06(A)(1). That statute prohibits a person from knowingly causing, by any means,
physical harm to another’s property without that other person’s consent. “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.” R.C. -5-
2901.22(B). “Physical harm to property” is defined as “any tangible or intangible damage
to property that, in any degree, results in loss to its value or interferes with its use or
enjoyment.” R.C. 2901.01(A)(4). A loss in value may be inferred from observable
damage. State v. Frech, 2d Dist. Champaign No. 2001-CA-23, 2002-Ohio-5592, ¶ 11,
quoting State v. Maust, 4 Ohio App.3d 187, 189, 447 N.E.2d 125 (5th Dist.1982). Also,
the criminal damaging statute is violated “when the damage interferes with [the property’s]
use or enjoyment.” Id.
{¶ 12} Bittner contends the weight of the evidence presented at trial did not
establish that he was the perpetrator of the offense. In support, he argues that the
evidence demonstrated Humphrey could not have seen him in the truck because it was
dark outside at the time of the offense and because Bittner’s truck windows were tinted.
Bittner also claims the trial court expressly stated Humphrey’s testimony lacked credibility.
{¶ 13} According to Humphrey’s testimony, he was familiar with Bittner prior to the
incident. Humphrey also testified that he was able to observe Bittner from the passenger
side rear cab window of the truck, despite the window tinting, because Christmas lights
in Humphrey’s yard illuminated Bittner from the driver’s side of the truck. This testimony,
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[Cite as State v. Bittner, 2021-Ohio-4103.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29158 : v. : Trial Court Case No. CRB 2100010 : SHANE K. BITTNER : (Criminal Appeal from Municipal Court) : Defendant-Appellant : :
...........
OPINION
Rendered on the 19th day of November, 2021.
ERIK R. BLAINE, Atty. Reg. No. 0080726, City of Vandalia Prosecutor’s Office, 245 James E. Bohanan Memorial Drive, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant
.............
TUCKER, P.J. -2-
{¶ 1} Defendant-appellant, Shane K. Bittner, appeals from his conviction in the
Vandalia Municipal Court after the trial court held a bench trial and found him guilty of one
count of criminal damaging. Bittner claims his conviction was against the manifest
weight of the evidence. For the reasons outlined below, Bittner’s conviction will be
affirmed.
I. Factual Background and Procedural History
{¶ 2} On January 2, 2021, Brian Humphrey was in his home on Cadie Avenue in
Harrison Township when his dogs began to make noise and run toward the door.
Humphrey opened his front door and observed Bittner, who was known to him, driving his
truck through Humphrey’s front yard. Humphrey reported the incident to the police. On
January 4, 2021, Bittner was charged by complaint with one count of criminal damaging
in violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree.
{¶ 3} A trial was conducted on May 18, 2021. Humphrey testified that he had
dated Bittner’s sister, that he personally knew Bittner, and that he had observed Bittner
in his truck "doing a burnout through my front yard into the street.” Tr. p. 6. Humphrey
testified that his lawn was damaged and he had to purchase grass seed and top soil in
order to repair the damage. Humphrey also testified that Bittner’s actions caused mud
to spray across the façade of his house. Humphrey identified pictures of the damage
caused to his lawn and the mud sprayed on the home (State’s Exhibit 1). The pictures
were taken by police officers who responded to Bittner’s home following the incident.
{¶ 4} Bittner presented the testimony of Avery Moeller, a criminal defense -3-
investigator who worked for the Montgomery County Public Defender’s Office. Moeller
testified that he took pictures of Humphrey’s yard and Bittner’s truck on March 10, 2021;
he also took measurements of Bittner’s tires and the tire marks in Humphrey’s yard.
Moeller testified that the tires on Bittner’s truck were approximately seven and one-half
inches wide, but the marks in Humphrey’s yard were approximately seven inches wide.
Moeller also testified that the width from the outside of one of Bittner’s tires to the outside
of the opposing tire was 65 inches, while the same measurement of the tire marks in the
yard was 65 to 66 inches. Finally, Moeller testified that he took pictures which showed
that the rear cab windows and rear window of Humphrey’s truck were tinted.
{¶ 5} The court found Bittner guilty as charged. The court sentenced Bittner to a
90-day jail term with 90 days suspended. As part of his probation, Bittner was required
to reimburse Humphrey the sum of $92 for the cost to repair the damage to his lawn.
The court also imposed fines and costs of $306.
{¶ 6} Bittner appeals.
II. Analysis
{¶ 7} Bittner’s sole assignment of error states:
THE TRIAL COURT ERRED AS APPELLANT’S CONVICTION IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION AND SECTIONS 10 AND
16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 8} Bittner challenges his conviction for criminal damaging, asserting that the -4-
conviction was against the manifest weight of the evidence.
{¶ 9} When a conviction is challenged on appeal as being against the weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N .E.2d 541 (1997). A judgment should
be reversed as being against the manifest weight of the evidence “only in the exceptional
case in which the evidence weighs heavily against the conviction.” State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 10} In conducting our review, we are guided by the presumption that the trial
judge, as the trier of fact, “is better situated than an appellate court to view witnesses and
to observe their demeanor, gestures, voice inflections and to use those observations in
weighing credibility.” State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 42 (2d Dist.),
quoting State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 50 (2d Dist.). “A trier of fact
is free to believe all, part or none of the testimony of each witness.” (Citations omitted.)
Id. Accordingly, we afford great deference to the trier of fact's determination of witness
credibility. State v. Redman, 10th Dist. Franklin No. 10AP-654, 2011-Ohio-1894, ¶ 26.
{¶ 11} Bittner was charged with criminal damaging in violation of R.C.
2909.06(A)(1). That statute prohibits a person from knowingly causing, by any means,
physical harm to another’s property without that other person’s consent. “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.” R.C. -5-
2901.22(B). “Physical harm to property” is defined as “any tangible or intangible damage
to property that, in any degree, results in loss to its value or interferes with its use or
enjoyment.” R.C. 2901.01(A)(4). A loss in value may be inferred from observable
damage. State v. Frech, 2d Dist. Champaign No. 2001-CA-23, 2002-Ohio-5592, ¶ 11,
quoting State v. Maust, 4 Ohio App.3d 187, 189, 447 N.E.2d 125 (5th Dist.1982). Also,
the criminal damaging statute is violated “when the damage interferes with [the property’s]
use or enjoyment.” Id.
{¶ 12} Bittner contends the weight of the evidence presented at trial did not
establish that he was the perpetrator of the offense. In support, he argues that the
evidence demonstrated Humphrey could not have seen him in the truck because it was
dark outside at the time of the offense and because Bittner’s truck windows were tinted.
Bittner also claims the trial court expressly stated Humphrey’s testimony lacked credibility.
{¶ 13} According to Humphrey’s testimony, he was familiar with Bittner prior to the
incident. Humphrey also testified that he was able to observe Bittner from the passenger
side rear cab window of the truck, despite the window tinting, because Christmas lights
in Humphrey’s yard illuminated Bittner from the driver’s side of the truck. This testimony,
if believed, was sufficient to establish identity. Further, the record does not support the
claim that the trial court found Humphrey’s testimony lacking in credibility. Indeed, the
trial court, on two occasions, explicitly stated that it found Humphrey credible. Bittner’s
claim to the contrary is at best incorrect, and at worst misleading. Based upon this
record, we conclude there was competent, credible evidence upon which the trial court
could have reasonably concluded that Bittner was the driver of the truck.
{¶ 14} We next turn to the claim that Humphrey’s yard did not sustain substantial -6-
damage, and we note there is nothing in the criminal damaging statute requiring a certain
level of damage.1 Furthermore, the photographs taken by the police on the night of the
offense depicted observable damage to Humphrey’s lawn, thereby permitting an
inference of loss of value.
{¶ 15} Finally, we agree with the trial court’s conclusion that Moeller’s testimony
was not exculpatory. The pictures presented by Moeller were taken a little over two
months after the offense was committed. A comparison of the pictures taken by the
police and those taken by Moeller shows that the grooves in Humphrey’s yard had
improved in appearance during the two-month interim period. Moeller admitted he did
not know whether the grooves had been affected by weather during the time between the
offense and the time he took the pictures and measurements. Therefore, Moeller’s
pictures of the grooves were not necessarily an accurate representation of the damage
in existence at the time of the offense and, thus, his measurements of the grooves did not
compel a conclusion that Bittner’s truck was not involved in the incident. Further, Moeller
admitted he did not know whether the tires he measured on Bittner’s truck were the same
tires on the truck as at the time of the offense. In short, Moeller’s testimony did not
compel a conclusion that the trial court clearly lost its way, and, by so doing, created a
miscarriage of justice.
{¶ 16} The outcome of this case rested on the credibility of the witnesses. After
weighing all the evidence and reasonable inferences, we conclude that the trial court
reasonably concluded that the weight of the evidence established damage was done to
1 In fact, in addition to prohibiting causing harm to another’s property, the criminal damaging statute prohibits a person from creating “a substantial risk” of physical harm to property. R.C. 2909.06(A). -7-
Humphrey’s yard and that Bittner knowingly caused said damage; the evidence also
supported an inference of loss of value as well as a loss of enjoyment. See Frech, 2d
Dist. Champaign No. 2001-CA-23, 2002-Ohio-5592, ¶ 11 (evidence supported a finding
that defendant caused physical harm (loss of enjoyment) by pruning his neighbor’s rose
bushes to half of the height and fullness that they should have been). Thus, we cannot
say the trial court lost its way and created a manifest miscarriage of justice by finding
Bittner guilty of criminal damaging. The trial court's judgment finding Bittner guilty of
criminal damaging was not against the manifest weight of the evidence. Accordingly,
Bittner’s sole assignment of error is overruled.
III. Conclusion
{¶ 17} Bittner’s sole assignment of error being overruled, the judgment of the trial
court is affirmed.
DONOVAN, J. and WELBAUM, J., concur.
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Erik R. Blaine Thomas M. Kollin Hon. Cynthia M. Heck