[Cite as State v. Myles, 2013-Ohio-2227.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :        C.A. CASE NO.     25297

v.                                                  :        T.C. NO.   12CRB403

ROBIN E. MYLES                                      :        (Criminal appeal from
                                                              Municipal Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                         Rendered on the     31st   day of       May         , 2013.

                                            ..........

RAYMOND J. DUNDES, Atty. Reg. No. 0041515, Prosecuting Attorney, City of Trotwood,
195 South Clayton Road, New Lebanon, Ohio 45345
      Attorney for Plaintiff-Appellee

DWIGHT D. BRANNON, Atty. Reg. No. 0021657 and MATTHEW C. SCHULTZ, Atty.
Reg. No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402
      Attorneys for Defendant-Appellant

                                            ..........

FROELICH, J.

                 {¶ 1} Robin E. Myles appeals from a judgment of the Montgomery County
                                                                                            2

Municipal Court, Western Division, which found her guilty of criminal damaging following

a bench trial. She was sentenced to 30 days in jail, which was suspended, and she was

placed on supervised community control for a period of five years; Myles was ordered to pay

restitution as a condition of her community control, in an amount to be determined by the

probation department. For the following reasons, the judgment of the trial court will be

affirmed in part, reversed in part, and remanded for a determination of the amount of

restitution.

         {¶ 2}    Myles’s brief contains a lengthy procedural history involving several cases.

 Insofar as it is relevant to this appeal, Myles was charged with criminal damaging following

an incident at the house of her former husband, Fernando Mason. Mason and Myles have a

contentious relationship. Mason is the residential parent for their son, who has serious

medical conditions and requires professional medical care. On March 16, 2012, after a

confrontation with Mason, Myles was alleged to have deliberately scratched the paint on the

car of a home health nurse, Cynthia Ely, who was caring for the child at Mason’s home.

The facts will be discussed in greater detail below.

         {¶ 3}    On March 19, 2012, a complaint for criminal damaging was filed in the

trial court. On June 20, 2012, Myles was tried to the court and found guilty. After a

presentence report was prepared, Myles was sentenced as described above.

         {¶ 4}    Myles appeals from the trial court’s judgment, raising five assignments of

error.

         {¶ 5}    Myles’s first and second assignments of error state:

                 THE    CONVICTION        OF     APPELLANT        FOR     CRIMINAL
                                                                                          3

       DAMAGING WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

               THE    CONVICTION         OF    APPELLANT        FOR     CRIMINAL

       DAMAGING WAS CONTRARY TO THE MANIFEST WEIGHT OF THE

       EVIDENCE.

       {¶ 6}    Myles contends that her conviction was supported by insufficient evidence

because the “mechanism of damage asserted by the State,” i.e., the dragging of an umbrella

along the side of Ely’s car while Myles drove her own vehicle past it, could not have caused

the damage in question. She contends that her conviction was against the manifest weight

of the evidence in that 1) the same “mechanism of damage * * * lacks any credibility”

because there were two separate scratches on the car, 2) she would not have been in

possession of an umbrella, because it was not a rainy day, 3) the damage to the vehicle was

not properly documented, 4) Ely and Mason, who testified on behalf of the State, were

clearly biased against her, and 5) it would have made no sense for Myles to scratch the

vehicle because she knew that Mason had installed cameras around his home.

       {¶ 7}    “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the

jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997). When reviewing whether the State has presented sufficient evidence to support

a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the

evidence in a light most favorable to the State, could have found the essential elements of

the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683
                                                                                              4

N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless “reasonable

minds could not reach the conclusion reached by the trier-of-fact.” Id.

       {¶ 8}      In contrast, “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.” Wilson at ¶ 12. See Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“‘manifest weight of the evidence’ refers to a

greater amount of credible evidence and relates to persuasion”). When evaluating whether a

conviction is contrary to 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.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 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 (Aug. 22,

1997). However, we may determine which of several competing inferences suggested by

the evidence should be preferred. Id. The fact that the evidence is subject to different

interpretations does not render the conviction against the manifest weight of the evidence.

Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest

weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175,

485 N.E.2d 717.
[Cite as State v. Myles, 2013-Ohio-2227.]
        {¶ 10}     Myles was convicted of criminal damaging, in violation of R.C.

2909.06(A)(1), which provides, in pertinent part, that no person shall knowingly cause

physical harm to the property of another by any means without the other person’s consent.

        {¶ 11}     The State’s evidence at trial established the following facts:

        {¶ 12}     Mason and Myles are divorced and have a strained relationship. Mason is

the residential parent for their son, who has serious medical needs and requires professional

medical care. Pursuant to the divorce decree, Myles’s weekly visitation with the child must

be supervised and must occur at Erma’s House.

        {¶ 13}     Cynthia Ely worked at Mason’s home as a home health nurse, caring for the

child. Ely had also cared for the child prior to the divorce, but was reassigned due to an

altercation with Myles. After the divorce, Ely returned to caring for the child.

        {¶ 14}     According to Mason, Myles came to Mason’s house on the evening of

March 16, 2012, uninvited and unannounced.            Mason has cameras set up around the

exterior of his house which can be monitored from within, and he saw Myles approaching

the house. Mason went outside to talk with Myles, who stated that she wanted to visit her

son. When Mason informed Myles that he would not permit her to see the child outside of

the court-ordered visitations, she “started agitating the situation.” She also asked why Ely,

to whom she referred using an expletive, was at the house, and Myles “went ballistic” when

she learned the Ely was again caring for the child. She “stormed away” very angrily, with

her teeth clenched. Myles was carrying an umbrella.

        {¶ 15}     When Myles got into her car, she drove very slowly along the side of Ely’s

car, which was parked on the street. As she did so, Myles was on the wrong side of the

road, and the drivers’s side doors of the cars were very close together. After she pulled
                                                                                                 6

alongside Ely’s car, Myles “slowed down to a creep,” but did not stop. According to

Mason, Myles’s car window was down. Mason and Ely testified that the cars were less than

one foot apart, and possibly as close as four inches, when Myles “creeped” past. After

Myles left, Mason and Ely found “deep marks” in the paint on both doors on the driver’s

side of Ely’s vehicle. Ely testified that the scratches had not been on her car earlier in the

day.   The State’s theory of the case was the Myles had dragged the umbrella along the side

of Ely’s car as she passed it in her own car.

       {¶ 16}    Trotwood Police Officer Michelle Hudwell investigated the alleged

criminal damaging the next day, March 17, because no officers had been available to

respond to the call on the 16th. She testified that there were two fresh, parallel, “a little bit

wavy” scratches in the paint on Ely’s car on the driver’s side. The height of the scratches

differed by three to four inches; one “went from the driver’s side door slightly onto the

passenger door, maybe one or two inches,” and the other one “started in the middle of the

driver’s door and stretched to the rear passenger door.” At oral argument, Myles’s counsel

stated that the roughly-parallel lines overlapped three to four inches.

       {¶ 17}    Ely testified that she got an estimate of $1,028 to repair and paint her car.

       {¶ 18} Myles testified that she had gone to Mason’s house to deliver toys for her

son, but Mason convinced her to save the presents for the boy’s birthday, which was in a few

weeks. According to Myles, she knew she would not be allowed to see her son and had not

tried to see him. She also stated that she knew Mason had cameras outside his home, and

she “wouldn’t intentionally * * * incriminate myself” by doing anything that could be caught

on camera. She denied having an umbrella in her hand and that it had been raining at any
                                                                                                 7

time that day. She also denied having a problem with Ely’s watching her child and stated

that she had never threatened Ely.

        {¶ 19}    In rebuttal, Ely testified that, after a pretrial hearing in the case a few weeks

earlier, when the women were each in their respective cars at a stoplight on the street,

Myles had yelled at her and said she (Myles) “was going to whup [her] * * * fat ass and get

[her] fat ass out of the car.”

        {¶ 20}    The State presented sufficient evidence from which the trial court could

have concluded that Myles had knowingly caused physical damage to Ely’s car, without

Ely’s permission. Although she asserts in her brief that an umbrella could not have caused

the damage in question, the State’s evidence, if believed, supported a contrary conclusion.

Myles’s conviction for criminal damaging was supported by sufficient evidence.

        {¶ 21}    In her argument challenging the weight of the evidence, Myles essentially

contends that the State’s evidence should not have been believed. However, the credibility

of the evidence was for the trial court to determine, because it heard the evidence directly.

        {¶ 22}    Myles contends that the testimony of Mason and Ely should not have been

believed because of the contentiousness of her past relationship with them; however, her

own testimony suffered from the same infirmity. Myles claims that she would not have had

an umbrella because it was not a rainy day, but Mason and Ely testified that it had rained

earlier in the day and that Myles had an umbrella in her hand at the door of the house.

Myles asserts, without any evidence, that an umbrella could not have caused the damage in

question, because there were two scratches on the doors, at different levels.              Officer

Hudwell testified that the scratches were three to four inches apart. Based on the evidence
                                                                                              8

presented, there was no basis to conclude that an umbrella could not have caused such

marks; in fact, the trial court could have drawn a reasonable inference that an umbrella could

cause such marks. And, although it may follow that one would not commit a crime in an

area in which cameras are in operation, the existence of cameras in this case did not preclude

a finding of guilt, based on the testimony of Mason and Ely that Myles had driven her car in

a manner consistent with causing the damage to Ely’s vehicle.

       {¶ 23}    Based on the evidence presented in this case, we cannot conclude that the

trial court clearly lost its way and created a manifest miscarriage of justice when it convicted

Myles of criminal damaging.

       {¶ 24}    The first and second assignments of error are overruled.

       {¶ 25}    Myles’s third assignment of error states:

                TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO

       REQUEST A JURY TRIAL AND BY FAILING TO OBJECT TO

       INADMISSIBLE TESTIMONY.

       {¶ 26}    Myles claims that her trial attorney was ineffective in failing to request a

jury trial. She contends that, because the evidence was “so close, and indeed insufficient,”

the failure to request a jury trial “is the difference between conviction and exoneration.”

She also contends that allowing the judge to hear the case was “simply incomprehensible,”

because he (the judge) was aware of and/or had adjudicated other cases in which Myles was

involved.

       {¶ 27}    Although Myles’s statement of this assignment of error also includes a

suggestion that counsel failed to object to inadmissible hearsay, her argument with respect to
                                                                                                9

this issue is contained entirely under the fourth assignment of error, and we will address it

there.

         {¶ 28}    Trial counsel is entitled to a strong presumption that his or her conduct falls

within the wide range of reasonable assistance. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373.       To reverse a conviction based on ineffective assistance of counsel, it must be

demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness

and that his or her errors were serious enough to create a reasonable probability that, but for

the errors, the result of the trial would have been different. Strickland at 688.

         {¶ 29}     Myles acknowledges in her brief that this court has repeatedly held that the

decision not to request a jury trial is normally viewed as a matter of trial strategy and does

not constitute ineffective assistance of counsel.        See, e.g., Pierson v. Rion, 2d Dist.

Montgomery No. 23498, 2010-Ohio-1793, ¶ 28; and Beavercreek v. Levalley, 2d Dist.

Greene No. 06-CA-51, 2007-Ohio-2105, ¶ 19. However, she contends that she “objected”

to proceedings without a jury in a motion to set aside the trial court’s judgment and a

petition for post-conviction relief. She argues that this “objection” distinguishes this case

from others in which we have found that the failure to request a jury trial was a matter of

trial strategy.

         {¶ 30}    Myles’s appeal must be decided based on the record that was before the

court at the time of trial. Her post-trial motions cannot properly be characterized as timely

objections to proceeding without a jury. Thus, we find her case indistinguishable from the

other cases in which we have held that proceeding without a jury is a matter of trial strategy.
                                                                                            10

 Moreover, we will not assume, without any evidence in support of such a claim, that a

judge’s involvement in or familiarity with other cases involving a defendant compromises

the court’s impartiality.

       {¶ 31}     The third assignment of error is overruled.

       {¶ 32}     Myles’s fourth assignment of error states:

                THE TRIAL COURT ERRED TO THE PREJUDICE OF MS.

       MYLES BY ALLOWING INADMISSIBLE TESTIMONY REGARDING A

       CHARGE THAT WAS DISMISSED.

       {¶ 33}     Myles claims that the trial court erred in allowing the State to question her

about a charge of menacing that was filed against her, based on an altercation between Myles

and Ely after the pre-trial conference in this case; the charge was later dismissed. Myles

claims that this evidence was an improper attack on her credibility.

       {¶ 34}     The relevant testimony during Myles’s cross-examination was as follows:

       Q:       * * * So all those things [Myles backed out of Mason’s driveway,

                passed Ely’s car, and drove to the stop sign] we can agree to. The

                only thing that we disagree on is whether you scratched her car or not,

                is that right?

       A:       Yes.

       Q:       And whether you were mad?

       A.       Yes.

       Q:       Okay, And we would also disagree that you would never threaten Ms.

                Ely any harm at all, is that correct?
                                                                                         11

       A:       Never.

       Q:       Now, you were in court a couple weeks back, right?

       A:       Yes.

       Q:       And when you left here, you threatened her, didn’t you?

       [Defense counsel objected on the basis of relevance, noting that there had been no

conviction. The trial court sustained the objection.]

       Q:       But it’s your testimony that you would never make any threats toward

                Ms. Ely?

       [Objection based on relevance, overruled.]

       A:       No.

       {¶ 35}    The State then called Ely on rebuttal, and Ely stated that she had been

threatened by Myles after the pretrial conference.

       {¶ 36}    Evid.R. 404 provides that character evidence is not admissible for the

purpose of proving that a person acted in conformity therewith on a particular occasion.

However, there are exceptions, including that evidence of other crimes, wrongs, or acts,

though “not admissible to prove the character of a person in order to show action in

conformity therewith, [may be] admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Evid.R. 404(B).

       {¶ 37}    A trial judge has considerable discretion to determine whether the specific

evidence is of such a nature that it falls within one of the other purposes under Evid.R.

404(B) for which the evidence may be admitted. State v. Morris, 132 Ohio St.3d 337,
                                                                                            12

2012-Ohio-2407, 972 N.E.2d 528, ¶ 19.        Although the trial court did not expressly state

its basis for overruling Myles’s objection, it could have reasonably concluded that evidence

of the prior altercation was admissible to prove motive (the hostility between the women),

that the scratches on the car were intentionally made, that Myles planned the act, or that

there had been no mistake in Myles’s scratching her umbrella along the car. The court also

could have reasonably concluded that the question about Myles’s threats toward Ely

constituted proper impeachment of Myles’s assertion, on cross-examination, that she

(Myles) would never have done anything to upset or threaten Ely.             Evid.R. 607(A).

Moreover, even if such evidence were not properly admitted, we would presume that the

trial court, as the finder of fact, did not rely on prior bad acts in reaching its verdict. See

State v. Blakely, 2d Dist. Montgomery No. 25120, 2012-Ohio-3841, ¶24 (“We will not

presume that the trial court relied on improper evidence, when there is nothing in the record

to support such a conclusion.”)

       {¶ 38}    The fourth assignment of error is overruled.

       {¶ 39}    Myles’s fifth assignment of error states:

       THE TRIAL COURT ERRED BY ALLOWING HEARSAY TESTIMONY

       AS TO THE REPAIR COST OF THE DAMAGE TO THE VEHICLE AND

       IN RELYING ON THIS HEARSAY IN ORDERING RESTITUTION.

       {¶ 40}    Myles argues that there are several problems with the court’s restitution

order: 1) Ely’s testimony about the amount of damage to her car was inadmissible hearsay

upon which the trial court could not rely in ordering restitution, 2) the trial court did not

properly award restitution because it referred the determination of the amount to the
                                                                                              13

probation department, and 3) Ely was entitled to recover only the amount of her deductible,

which was less than the total amount of damage to the car.

        {¶ 41}     First, we note that Myles did not object at trial to Ely’s testimony about the

estimate she had received on the cost of repairing the scratches in her car doors. Thus,

Myles waived all but plain error. State v. Williams, 2d Dist. Montgomery No. 24548,

2012-Ohio-4179, ¶ 38. Plain error does not exist unless it can be said that, but for the error,

the outcome of the trial clearly would have been different. Id., citing State v. Lang, 129

Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108.          Notice of plain error, therefore,

“is to be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.” Id. Ely’s evidence about the cost of the damage to her

vehicle did not clearly affect the outcome of the case. Thus, we find no plain error.

        {¶ 42}     Second, Myles disputes the manner in which restitution was awarded. The

sentencing entry stated that Myles was sentenced to serve 30 days in jail and fined $100 plus

court costs.     The jail sentence and fine were suspended, and Myles was placed on

supervised community control for five years. One of the conditions of community control

was “Restitution, if any, to be paid as determined by probation department.”

        {¶ 43}     R.C. 2929.28 provides for financial sanctions for misdemeanor offenses. It

states, in pertinent part:

                 * * * If the court requires restitution, the court shall order that the

        restitution be made to the victim in open court or to the adult probation

        department that serves the jurisdiction or the clerk of the court on behalf of

        the victim.
                                                                                             14

                If the court imposes restitution, the court shall determine the amount

       of restitution to be paid by the offender. If the court imposes restitution, the

       court may base the amount of restitution it orders on an amount

       recommended by the victim, the offender, a presentence investigation report,

       estimates or receipts indicating the cost of repairing or replacing property,

       and other information, provided that the amount the court orders as restitution

       shall not exceed the amount of the economic loss suffered by the victim as a

       direct and proximate result of the commission of the offense.

       {¶ 44}    In accordance with R.C. 2929.28(A)(1), the trial court was required to

determine the amount of restitution to be paid by Myles. Although the court was permitted

to rely on the presentence report prepared by the probation department, it was not permitted

to delegate this responsibility for determining the amount of restitution to the probation

department after imposition of sentence. The trial court erred in failing to determine the

amount of restitution. See, also, State v. Purnell, 171 Ohio App.3d 446, 2006-Ohio-6160,

871 N.E.2d 613, ¶ 9 (1st Dist.); State v. Wilson, 1st Dist. Hamilton No. C-061000,

2007-Ohio-6339, ¶17; and State v. Sheehan, 12th Dist. Butler No. CA2006-10-285,

2008-Ohio-2737, ¶ 19 (analogizing the felony financial sanctions imposed under R.C.

2929.18(A)(1) to the misdemeanor financial sanctions imposed under R.C. 2929.28(A)(1));

State v. Moore, 7th Dist. Carroll No. 00AP0741, 2002-Ohio-5047, ¶ 14.

       {¶ 45}    R.C. 2929.28(A)(1) also provides that, “[i]f the court decides to impose

restitution, the court shall hold an evidentiary hearing on restitution if the offender, victim,

or survivor disputes the amount of restitution.”          In her third argument under this
                                                                                               15

assignment, Myles does dispute the amount of restitution on appeal.                (She had no

opportunity to dispute it at trial.) Myles claims that Ely was not entitled to collect more

than the amount of her deductible if the insurance company paid to repair the car. The State

concedes that, if the insurance company fixed the vehicle, Myles “should only be required to

pay Ms. Ely’s deductible. * * * If not, [Myles] should pay the full amount ordered by the

court.”

          {¶ 46}   In Myles’s case, restitution was ordered as a condition of community

control, and not as a part of her sentence. But the trial court should not be able to do

indirectly what it is not permitted to do directly, i.e., delegate to the probation department the

responsibility for determining after the imposition of sentence the amount of restitution, and,

in doing so, deprive a defendant of a hearing on any disputed issue related to restitution.

The trial court was required to determine the amount of restitution and, because the

appropriate amount of restitution is disputed, the trial court was required to hold a hearing

on this issue.

          {¶ 47}   The fifth assignment of error is sustained.

          {¶ 48}   The judgment of the trial court will be reversed with respect to its order of

restitution, and the matter will be remanded for a determination of this issue by the trial

court. In all other respects, the judgment of the trial court will be affirmed.

                                           ..........

FAIN, P.J. and HALL, J., concur.

Copies mailed to:

Raymond J. Dundes
Dwight D. Brannon
                                            16

Matthew C. Schultz
Hon. James L. Manning
Hon. William H. Wolff, Jr.,Visiting Judge
