Toledo v. Byrd

2018 Ohio 2986

• Court: Ohio Court of Appeals
• Decided: July 27, 2018
• Docket: L-17-1175
• Status: Published

Opinion

[Cite as Toledo v. Byrd, 2018-Ohio-2986.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio/City of Toledo Court of Appeals No. L-17-1175

Appellee Trial Court No. CRB-16-16972

v.

Tierra B. Byrd DECISION AND JUDGMENT

Appellant Decided: July 27, 2018

*****

David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellee.

Laurel A. Kendall, for appellant.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Tierra Byrd, appeals the judgment of the Toledo Municipal

Court, following a bench trial, which convicted her of one count of criminal damaging, in

violation of R.C. 2909.06, a second-degree misdemeanor. For the reasons that follow, we

affirm. I. Facts and Procedural Background

{¶ 2} On November 20, 2017, appellant arrived at the home of Jamella Tatum

sometime in the early afternoon. Tatum resided at the home with Kiel Shuler, the father

of appellant’s daughter. Appellant was attempting to pick up her daughter, who was with

Shuler at the time, amidst potential concerns from Lucas County Children’s Services that

the daughter was being physically abused.

{¶ 3} Tatum and Shuler testified that appellant and three other people arrived at

the house, and started banging on the glass screen door. Tatum testified that she heard a

loud bang, and heard appellant yelling for her to come outside. Tatum called 911, and

while on the phone observed appellant kicking and hitting the door, and tugging on the

door handle. At one point, Tatum heard a loud boom, and witnessed appellant break the

top part of the door, and the knob part of the door. Tatum also testified that where the

door was screwed in was also broken. Tatum summarized that the door was cracked on

one side, the top part of the glass was cracked, the door handle had broken off, and the

door would no longer shut properly. She further explained that the door was not

damaged prior to appellant arriving at the house, and that she did not give appellant

permission to damage the door. On cross-examination, Tatum was asked if she had a

firearm on her during the incident, which Tatum denied.

{¶ 4} Shuler testified that he heard banging on the door, and went downstairs

where the front door was open, but the glass screen door was closed. He observed

appellant banging on the rim around the door, and on the door glass. He then closed the

2. front door, and watched through the window as appellant continued to bang on the top

part and kick the bottom part of the screen door. Shuler testified that as a result of the

banging, the doorknob popped out such that the door could no longer be opened from the

inside.

{¶ 5} Toledo Police Officer Mary Makras also testified for the state. She testified

that when she arrived, appellant was back by her car. Tatum showed Makras the damage

to the door, but Makras could not recall any damage to the screen door, only that it might

have been “off kilter.” She did see, however, some plaster and debris down on the porch

and inside of the home.

{¶ 6} At the close of the state’s case, appellant moved for an acquittal pursuant to

Crim.R. 29, which the trial court denied. Appellant then took the stand in her own

defense. Appellant testified to a Facebook post from Tatum on November 21, 2017,

which stated, “Ain’t no fun when a rabbit got a gun. It was all fun and games. Game

over.” Appellant believed that the Facebook post was an admission by Tatum that she

had a gun during the incident and threatened appellant with it. Appellant testified that

she did not even go to the door because of Tatum’s threat, and that no one she was with

went and banged on the door. Appellant denied causing any damage to Tatum’s door.

{¶ 7} Following the presentation of evidence, the trial court found appellant guilty.

The court continued sentencing for a presentence investigation report to look into the

issue of restitution. At the sentencing hearing, the trial court did not award any

restitution because Tatum failed to provide any documentation supporting the amount of

3. damage. The court then sentenced appellant to 90 days in jail, with those days

suspended, and placed appellant on one year of inactive probation.

II. Assignment of Error

{¶ 8} Appellant has timely appealed the judgment of conviction, and now asserts

one assignment of error for our review:

I. Defendant’s conviction for criminal damaging was against the

manifest weight of the evidence when there were no verified damages, and

no restitution was ordered.

III. Analysis

{¶ 9} In her assignment of error, appellant argues that her conviction is against the

manifest weight of the evidence because Tatum failed to provide any evidence to support

her claim for restitution at sentencing that the cost to repair the door was $219.63.

{¶ 10} When reviewing for manifest weight,

The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of 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. The discretionary

power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction. State v. Lang,

4. 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 11} In this case, appellant was convicted of criminal damaging in violation of

R.C. 2909.06, which provides, in pertinent part, “(A) No person shall cause, or create a

substantial risk of physical harm to any property of another without the other person’s

consent: (1) Knowingly, by any means.”

{¶ 12} In essence, appellant argues that the lack of documentary evidence to

establish the cost of the damage to the door for purposes of restitution calls into question

whether there was any damage at all, and thus her conviction is against the manifest

weight of the evidence. However, post-trial evidence, or the lack thereof, for purposes of

determining restitution is irrelevant to the question of guilt, which must be determined

solely by the testimony and evidence presented at trial.

{¶ 13} Here, the evidence at trial included the testimony of Tatum and Shuler that

appellant was forcefully banging and kicking at the glass screen door, and broke the top

of the door and the door handle. Having reviewed the evidence, we agree with the trial

court that Tatum and Shuler’s version of the events is more credible than appellant’s

version, in which she did not even approach the door because Tatum was threatening her

with a gun. Thus, we hold that the trier of fact did not clearly lose its way when it found

beyond a reasonable doubt that appellant knowingly caused or created a substantial risk

of physical harm to Tatum’s property. Therefore, appellant’s conviction is not against

the manifest weight of the evidence.

5. {¶ 14} Accordingly, appellant’s assignment of error is not well-taken.

IV. Conclusion

{¶ 15} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Toledo Municipal Court is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Christine E. Mayle, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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