[Cite as State v. Dockery, 2021-Ohio-3123.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200408 TRIAL NO. 20CRB-10448 Plaintiff-Appellee, :
: O P I N I O N. VS. :
NIGHA DOCKERY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 10, 2021
Andrew W. Garth, Cincinnati City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Connor E. Wood, Assistant Prosecuting Attorney, for Plaintiff- Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} With her frustration boiling over towards her boyfriend, defendant-
appellant Nigha Dockery vented her anger by throwing a brick through Chayna
Givens’s patio door, believing him to be at her apartment. The trial court found Ms.
Dockery guilty of criminal damaging, and she argues on appeal that her conviction
was against the weight and sufficiency of the evidence based on inconsistencies in
Ms. Givens’s statements. Because we find the trial court’s credibility determinations
to be reasonable, we overrule Ms. Dockery’s sole assignment of error and affirm her
conviction.
I.
{¶2} The events leading up to this case began after Ms. Dockery became
upset with her boyfriend, Gary Tucker, who is also the father of Ms. Givens’s
daughter. Mr. Tucker stopped by Ms. Givens’s apartment to visit his daughter one
morning, and Ms. Dockery took the opportunity to drive back and forth, hurling
insults at him. Ms. Givens and Mr. Tucker soon left to take their daughter to visit an
aunt. But after Ms. Givens returned later that day, Ms. Dockery again attempted to
confront Mr. Tucker by yelling and blowing her car horn outside Ms. Givens’s
residence. This prompted a texting volley between Ms. Givens and Ms. Dockery in
which Ms. Givens adamantly denied that Mr. Tucker was at her apartment. Ms.
Dockery eventually left but, unsatisfied, she later called Ms. Givens using a blocked
number. Ms. Givens promptly ended the conversation, but Ms. Dockery called back
another ten times within the next few minutes.
{¶3} Ms. Givens testified that, later that evening, she heard a shattering
sound from her patio door and looked outside to see Ms. Dockery running to her car
2 OHIO FIRST DISTRICT COURT OF APPEALS
and fleeing by car. Ms. Givens explained that she saw Ms. Dockery “pretty clearly,”
wearing a t-shirt and jeans and with her hair in a ponytail. However, Ms. Givens
conceded that it was dark outside, which prevented her from ascertaining the color of
Ms. Dockery’s clothes. Ms. Givens’s patio door glass was broken, and a brick was
nearby.
{¶4} The case proceeded to a bench trial, and Ms. Dockery’s defense
endeavored to poke holes in Ms. Givens’s story. In particular, Ms. Dockery
contrasted Ms. Givens’s trial testimony with her 911 call in which she never
mentioned seeing Ms. Dockery. Instead, when the dispatcher asked Ms. Givens why
she believed that Ms. Dockery had thrown the brick, Ms. Givens noted seeing Ms.
Dockery’s car. Nonetheless, the trial court determined that Ms. Givens was
believable and found Ms. Dockery guilty of criminal damaging under R.C.
2909.06(A)(1). This appeal follows.
II.
{¶5} Ms. Dockery presents one assignment of error on appeal,
characterizing her conviction as against the weight and sufficiency of the evidence.
In reviewing whether Ms. Dockery’s conviction runs counter to the manifest weight
of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997). In other words, we review the evidence, the
credibility of witnesses, the entire record. Id. But we will reverse only if the trial
court “ ‘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. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). By contrast, with respect to
sufficiency, “ ‘the relevant inquiry is whether, after viewing the evidence in a light
3 OHIO FIRST DISTRICT COURT OF APPEALS
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’ ” State v.
Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. And
“ ‘[w]here reasonable minds can reach different conclusions upon conflicting
evidence, determination as to what occurred is a question for the trier of fact. It is
not the function of an appellate court to substitute its judgment for that of the
factfinder.’ ” State v. Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57 N.E.3d 1119,
¶ 20, quoting Jenks at 279. Whether the evidence sufficed to support Ms. Dockery’s
criminal damaging conviction presents a legal question that we review de novo.
State v. Ellison, 178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 9 (1st
Dist.).
{¶6} Ms. Dockery’s manifest-weight challenge focuses exclusively on the
inconsistency between Ms. Givens’s testimony and her 911 call. In Ms. Givens’s 911
call, she cited only Ms. Dockery’s identifiable car when asked why she knew Ms.
Dockery tossed the brick, explaining: “I seen her drive off and * * * that is why I
know it was her because I seen that car earlier today.” In contrast, Ms. Givens
recalled at trial that she saw Ms. Dockery leaving the property, even providing a
description of what she wore. In Ms. Dockery’s view, this inconsistency illustrates
that Ms. Givens fabricated her trial testimony—and that the trial court clearly lost its
way in believing her. While we readily acknowledge some inconsistencies between
Ms. Givens’s testimony and her 911 call, it was not different enough to say that the
trial court lost its way in believing her. For one, Ms. Givens’s testimony was not
directly contradictory to her 911 call, as she never relayed that she had not seen Ms.
4 OHIO FIRST DISTRICT COURT OF APPEALS
Dockery. She instead referenced the identifiable vehicle when asked to explain why
she believed Ms. Dockery had thrown the brick. Furthermore, in reconciling the
difference between Ms. Givens’s trial testimony and her 911 call, the trial court
explained: “questions that are posed by the prosecutor are presumably more in-
depth and give the opportunity for more reflection and explanation * * * and proper
context versus the manner in which a 911 dispatcher is trying to gather information
* * * .” Ultimately, we find the trial court’s justification for believing Ms. Givens’s
trial testimony to be reasonable—and certainly well short of constituting a manifest
miscarriage of justice. We thus decline Ms. Dockery’s invitation to view her
conviction as against the weight of the evidence.
{¶7} As to the sufficiency of the evidence, Ms.
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[Cite as State v. Dockery, 2021-Ohio-3123.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200408 TRIAL NO. 20CRB-10448 Plaintiff-Appellee, :
: O P I N I O N. VS. :
NIGHA DOCKERY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 10, 2021
Andrew W. Garth, Cincinnati City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Connor E. Wood, Assistant Prosecuting Attorney, for Plaintiff- Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} With her frustration boiling over towards her boyfriend, defendant-
appellant Nigha Dockery vented her anger by throwing a brick through Chayna
Givens’s patio door, believing him to be at her apartment. The trial court found Ms.
Dockery guilty of criminal damaging, and she argues on appeal that her conviction
was against the weight and sufficiency of the evidence based on inconsistencies in
Ms. Givens’s statements. Because we find the trial court’s credibility determinations
to be reasonable, we overrule Ms. Dockery’s sole assignment of error and affirm her
conviction.
I.
{¶2} The events leading up to this case began after Ms. Dockery became
upset with her boyfriend, Gary Tucker, who is also the father of Ms. Givens’s
daughter. Mr. Tucker stopped by Ms. Givens’s apartment to visit his daughter one
morning, and Ms. Dockery took the opportunity to drive back and forth, hurling
insults at him. Ms. Givens and Mr. Tucker soon left to take their daughter to visit an
aunt. But after Ms. Givens returned later that day, Ms. Dockery again attempted to
confront Mr. Tucker by yelling and blowing her car horn outside Ms. Givens’s
residence. This prompted a texting volley between Ms. Givens and Ms. Dockery in
which Ms. Givens adamantly denied that Mr. Tucker was at her apartment. Ms.
Dockery eventually left but, unsatisfied, she later called Ms. Givens using a blocked
number. Ms. Givens promptly ended the conversation, but Ms. Dockery called back
another ten times within the next few minutes.
{¶3} Ms. Givens testified that, later that evening, she heard a shattering
sound from her patio door and looked outside to see Ms. Dockery running to her car
2 OHIO FIRST DISTRICT COURT OF APPEALS
and fleeing by car. Ms. Givens explained that she saw Ms. Dockery “pretty clearly,”
wearing a t-shirt and jeans and with her hair in a ponytail. However, Ms. Givens
conceded that it was dark outside, which prevented her from ascertaining the color of
Ms. Dockery’s clothes. Ms. Givens’s patio door glass was broken, and a brick was
nearby.
{¶4} The case proceeded to a bench trial, and Ms. Dockery’s defense
endeavored to poke holes in Ms. Givens’s story. In particular, Ms. Dockery
contrasted Ms. Givens’s trial testimony with her 911 call in which she never
mentioned seeing Ms. Dockery. Instead, when the dispatcher asked Ms. Givens why
she believed that Ms. Dockery had thrown the brick, Ms. Givens noted seeing Ms.
Dockery’s car. Nonetheless, the trial court determined that Ms. Givens was
believable and found Ms. Dockery guilty of criminal damaging under R.C.
2909.06(A)(1). This appeal follows.
II.
{¶5} Ms. Dockery presents one assignment of error on appeal,
characterizing her conviction as against the weight and sufficiency of the evidence.
In reviewing whether Ms. Dockery’s conviction runs counter to the manifest weight
of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997). In other words, we review the evidence, the
credibility of witnesses, the entire record. Id. But we will reverse only if the trial
court “ ‘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. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). By contrast, with respect to
sufficiency, “ ‘the relevant inquiry is whether, after viewing the evidence in a light
3 OHIO FIRST DISTRICT COURT OF APPEALS
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’ ” State v.
Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. And
“ ‘[w]here reasonable minds can reach different conclusions upon conflicting
evidence, determination as to what occurred is a question for the trier of fact. It is
not the function of an appellate court to substitute its judgment for that of the
factfinder.’ ” State v. Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57 N.E.3d 1119,
¶ 20, quoting Jenks at 279. Whether the evidence sufficed to support Ms. Dockery’s
criminal damaging conviction presents a legal question that we review de novo.
State v. Ellison, 178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 9 (1st
Dist.).
{¶6} Ms. Dockery’s manifest-weight challenge focuses exclusively on the
inconsistency between Ms. Givens’s testimony and her 911 call. In Ms. Givens’s 911
call, she cited only Ms. Dockery’s identifiable car when asked why she knew Ms.
Dockery tossed the brick, explaining: “I seen her drive off and * * * that is why I
know it was her because I seen that car earlier today.” In contrast, Ms. Givens
recalled at trial that she saw Ms. Dockery leaving the property, even providing a
description of what she wore. In Ms. Dockery’s view, this inconsistency illustrates
that Ms. Givens fabricated her trial testimony—and that the trial court clearly lost its
way in believing her. While we readily acknowledge some inconsistencies between
Ms. Givens’s testimony and her 911 call, it was not different enough to say that the
trial court lost its way in believing her. For one, Ms. Givens’s testimony was not
directly contradictory to her 911 call, as she never relayed that she had not seen Ms.
4 OHIO FIRST DISTRICT COURT OF APPEALS
Dockery. She instead referenced the identifiable vehicle when asked to explain why
she believed Ms. Dockery had thrown the brick. Furthermore, in reconciling the
difference between Ms. Givens’s trial testimony and her 911 call, the trial court
explained: “questions that are posed by the prosecutor are presumably more in-
depth and give the opportunity for more reflection and explanation * * * and proper
context versus the manner in which a 911 dispatcher is trying to gather information
* * * .” Ultimately, we find the trial court’s justification for believing Ms. Givens’s
trial testimony to be reasonable—and certainly well short of constituting a manifest
miscarriage of justice. We thus decline Ms. Dockery’s invitation to view her
conviction as against the weight of the evidence.
{¶7} As to the sufficiency of the evidence, Ms. Dockery maintains that the
state failed to satisfy two of the necessary elements. As relevant here, a person is
guilty of criminal damaging when they “[k]nowingly, by any means” “cause, or create
a substantial risk of physical harm to any property of another without the other
person’s consent.” R.C. 2909.06(A)(1). Here, Ms. Dockery first insists that the
damage element is unsatisfied because no one testified that the patio door was not
damaged beforehand. But Ms. Givens specifically recounted that she heard glass
shatter and that she personally observed the broken glass (the state also submitted
photos of the damage). And interpreting this evidence in the state’s favor, as we
must, a reasonable fact finder could easily infer that the damage had just occurred—
that it did not previously exist. Finally, Ms. Dockery posits that the state failed to
prove the identification element because Ms. Givens’s testimony was too
unbelievable. And excising Ms. Givens’s identification testimony, Ms. Dockery
argues that no rational factfinder could conclude that she broke the patio door where
5 OHIO FIRST DISTRICT COURT OF APPEALS
her vehicle was the only evidence putting her at the scene. We have already
determined that the trial court appropriately believed Ms. Givens’s identification
testimony, so we readily conclude that sufficient evidence established that Ms.
Dockery threw the brick. Thus, we find that Ms. Dockery’s conviction was also
supported by sufficient evidence.
* * *
{¶8} In light of the foregoing analysis, we overrule Ms. Dockery’s sole
assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
ZAYAS, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion