State v. Clark

2021 Ohio 3048

Opinion

[Cite as State v. Clark, 2021-Ohio-3048.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28972 : v. : Trial Court Case No. CRB2001432 : GEORGE L. CLARK : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the 3rd day of September, 2021.

ERIK R. BLAINE, Atty. Reg. No. 0080726, Assistant Prosecuting Attorney, City of Vandalia Prosecutor’s Office, 245 James E. Bohanan Memorial Drive, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant

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DONOVAN, J.

{¶ 1} Defendant-appellant George L. Clark appeals from his conviction for one

count of criminal damaging, in violation of R.C. 2909.06(A)(1), a misdemeanor of the

second degree. Clark filed a timely notice of appeal on November 30, 2020.

{¶ 2} The incident which formed the basis for Clark’s conviction occurred on July

22, 2020, when the victim, Sarah Voiles, heard a large crash outside of her apartment in

Harrison Township, Ohio. Voiles testified that, when she looked out of her apartment

window, she observed that the windshield and driver’s side window of her motor vehicle

had been broken; she also observed Clark standing next to her vehicle. Voiles

immediately contacted her father, Timothy, who traveled to Voiles’s apartment complex

and went to speak with Clark. Voiles and Clark lived in the apartment complex across

from each other and shared the parking lot. Timothy testified that, during his discussion

with Clark, Clark stated that he did, in fact, cause the damage to Voiles’s vehicle.

{¶ 3} On July 23, 2020, Clark was charged by criminal complaint with one count of

criminal damaging. Clark pled not guilty to the offense. Clark’s case proceeded to trial

on November 18, 2020, before the Vandalia Municipal Court. The State presented the

testimony of Voiles and her father, as well as photographs of the damage to Voiles’s

vehicle. Clark presented the testimony of his girlfriend, Tiffany Gibbons. Gibbons

testified that Clark could not have damaged Voiles’s vehicle because he was spending

time with her in the apartment they shared that same day.

{¶ 4} After hearing the evidence presented by both parties, the trial court found

Clark guilty of criminal damaging. The trial court sentenced Clark to 90 days in jail, with

90 days suspended on the condition that Clark commit no criminal offenses for one year. -3-

The trial court also ordered Clark to pay restitution in the amount of $267.76, courts costs

in the amount of $246, and a fine of $25.

{¶ 5} It is from this judgment that Clark now appeals.

{¶ 6} Clark’s sole assignment of error is as follows:

THE TRIAL COURT’S VERDICT IS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

{¶ 7} Clark contends that his conviction for criminal damaging was against the

manifest weight of the evidence.

{¶ 8} This court has stated that “a weight of the evidence argument challenges the

believability of the evidence and asks which of the competing inferences suggested by

the evidence is more believable or persuasive.” (Citations omitted,) State v. Jones, 2d

Dist. Montgomery No. 25724, 2014-Ohio-2309, ¶ 8. “When evaluating whether a

[judgment] is against the manifest weight of the evidence, the 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.’ ” Id., quoting State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 9} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder's decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684,

*4 (Aug. 22, 1997). However, we extend less deference in weighing competing

inferences suggested by the evidence. Id. The fact that the evidence is subject to -4-

differing interpretations does not render the judgment against the manifest weight of the

evidence. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 14. A

judgment should be reversed as being against the manifest weight of the evidence only

in exceptional circumstances. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983).

{¶ 10} As previously stated, Voiles testified that on July 22, 2020, she heard a large

crash outside of her apartment. When she looked out of her apartment window, she saw

that the windshield and driver’s side window of her vehicle had been broken, and Clark

was standing next to her vehicle. Voiles contacted her father, Timothy, who traveled to

Voiles’s apartment complex and went to speak with Clark. Timothy testified that, during

their discussion, Clark admitted to causing the damage to Voiles’s vehicle. Although not

raised by Clark, his out-of-court statements to Timothy regarding the damage he caused

to Voiles’s vehicle were admissible under Evid.R. 804(B)(3) as a statement against

interest. This oral admission was corroborated by the circumstantial evidence wherein

Voiles observed Clark near her vehicle at the time the damage occurred.

{¶ 11} Although Gibbons testified that Clark could not have damaged Voiles’s

vehicle because he was spending time with her in the apartment they shared that same

day, the trial court was free to determine how much weight to give to Gibbons’s testimony.

The trial court apparently found the testimony of Voiles and her father to be more credible

than that of Gibbons.

{¶ 12} Having reviewed the record, we find no merit in Clark's manifest weight

challenge. It is well settled that evaluating witness credibility is primarily for the trier of

fact. State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294; see also State v. -5-

Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact does not

lose its way and create a manifest miscarriage of justice if its resolution of conflicting

testimony is reasonable. Id. Here, the trial court reasonably credited the State's

evidence, which established that Clark was guilty of the offense. Accordingly, the trial

court did not lose its way and create a manifest miscarriage of justice in reaching a guilty

verdict for criminal damaging.

{¶ 13} Clark’s sole assignment of error is overruled.

{¶ 14} The judgment of the trial court is affirmed.

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HALL, J. and WELBAUM, J., concur.

Copies sent to:

Erik R. Blaine Daniel F. Getty Hon. Cynthia M. Heck