State v. Todd

2023 Ohio 2139

• Court: Ohio Court of Appeals
• Decided: June 28, 2023
• Docket: C-220380
• Status: Published

Opinion

[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.

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{¶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.

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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

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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.

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{¶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

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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

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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

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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

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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

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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

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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.