[Cite as State v. Saunders, 2013-Ohio-3771.]




                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                  HOCKING COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case Nos. 13CA10
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
ROBERT SAUNDERS,               : ENTRY
                               :
    Defendant-Appellant.       : Released: 08/27/13
_____________________________________________________________
                         APPEARANCES:

William T. Cramer, Westerville, Ohio, for Appellant.1

Laina Fetherolf, Hocking County Prosecutor, and Jonah M. Saving,
Assistant Hocking County Prosecutor, Logan, Ohio for Appellee.
_____________________________________________________________

McFarland, P.J.

           {¶1} Defendant-Appellant Robert E. Saunders, Jr., appeals the

judgment entry of conviction and sentence in the Hocking County Municipal

Court dated February 25, 2013. Appellant was convicted after a trial to the

court on a charge of criminal mischief, in violation of R.C. 2909.07(A)(1), a

misdemeanor of the third degree. On appeal, he contends: (1) there was

insufficient evidence that he knowingly damaged property, and (2) the

judge’s finding was against the manifest weight of the evidence. Having

1
    Appellant had other counsel at his trial.
Hocking App. No. 13CA10                                                                                   2


reviewed the record and the pertinent law, we affirm the judgment of the

trial court and overrule Appellant’s assignments of error.

                                                 FACTS

         {¶2} Appellant was charged with criminal mischief subsequent to

events which occurred on July 30, 2012. The case eventually proceeded to a

trial which took place on February 25, 2013 in the Hocking County

Municipal Court. The State of Ohio presented testimony from two witnesses,

Harry Santiago, Jr., the victim of the alleged criminal damaging, and Heidi

Forrest. Appellant testified on his own behalf.

         {¶3} Santiago testified on the incident date, his car, a 2011 Toyota

Corolla,2 was parked in front of his house in a dirt pull-off spot, parallel to

the roadway. The pull-off spot was approximately four feet from the

roadway. Santiago was inside the house when he heard a “really loud noise

kind of spinning out.” Santiago looked outside his window and saw

Appellant, his neighbor, “spinning out” next to his car.3 Appellant’s car was

2
  Appellant has not raised any issue as to ownership of the vehicle. We note Santiago testified the Toyota
Corolla was his car. Heidi Forrest referenced the vehicle as “our” car, although she also indicated she was
not familiar with it. The estimate submitted for damages lists the vehicle as belonging to Heidi Forrest. In
State v. Clouser, 4th Dist. No. 652, 1988 WL 4420, (Jan. 19, 1988), this court overruled appellant’s
assignment of error that the State failed to establish the property involved in a criminal damaging case was
“the property of another.” R.C. 4505.04 provides “No court in any case at law or equity shall recognize the
right, title claim, or interest of any person in or to any motor vehicle * * * unless evidence * * * by a
certificate of title* * *.” In Clouser, we cited State v. Rhodes, 2 Ohio St. 3d 74 (1982) in which the
Supreme Court of Ohio held R.C. 4505.04 does not require evidence of a certificate of title in a prosecution
for theft of an automobile.
3
 We infer that “spinning out” indicates Appellant accelerated while in park, spinning the tires on his
vehicle and causing the gravel to fly up or out.
Hocking App. No. 13CA10                                                         3


next to Santiago’s car, not moving. The gravel hit the car and Santiago’s

house, approximately 20 feet from the roadway. Santiago, his girlfriend

Heidi Forrest, and another neighbor, Anthony Smith, walked outside and

saw Appellant in his vehicle, still spinning. Santiago testified the incident

lasted for approximately 45 seconds. After Appellant drove away, Santiago

looked at his vehicle, but it was dark.

      {¶4} Santiago testified the next day, he saw rocks and gravel all over

his car from where Appellant had spun his tires, and a black mark on the

actual roadway where Appellant’s car had been. The paint on Santiago’s car

was scratched on the hood, the top of the car, and the sides. Santiago

testified he considered Appellant a friend and had no idea why he operated

his car in such a way.

      {¶5} Heidi Forrest testified she and Santiago were in the kitchen

around midnight when they could hear “somebody come flying up the hill.”

They looked out the window to see Appellant slow down and stop when he

reached where the Toyota was parked. After Appellant stopped, he

“punched” the gas and they could hear and see rocks hitting the car. Forrest

testified Appellant spun the gravel for 15-20 seconds. Forrest testified they

ran outside with a flashlight. Appellant pulled up to the side of the road and

walked to his house while Santiago and she surveyed the damage. They
Hocking App. No. 13CA10                                                           4


then called the police. No one moved the car. It was in the exact spot when

the police arrived.

      {¶6} Forrest described the Toyota as having gravel on the hood and

trunk, and scratch marks up and down the side of the car and hood. Forrest

acknowledged she was not familiar with the car and could not say if the

scratches were there prior to the incident. She also testified she did not think

any of the gravel hit Santiago’s house. Forrest testified she did not know

Appellant personally. Although it was dark, nothing obstructed her view

and she indicated she could clearly see the vehicle and, necessarily, the

events which occurred.

      {¶7} Appellant testified he was going to feed his dog around 1:00 a.m.

when he found the road blocked by Santiago’s car. He had to go into the

ditch on the left side to get past Santiago’s car. When he slid into the ditch,

he spun a little gravel as he passed the car. Appellant emphasized

Santiago’s driver’s side tires were sitting on the blacktop, about two feet

onto the right side of the road. He also testified Santiago’s house was

approximately 75 feet from the roadway.

      {¶8} When asked if he ever kicked up the gravel, Appellant

responded: “I couldn’t swear to it, no.” When asked if he ever intentionally

spun the gravel, he answered “No, sir, absolutely not.” Appellant explained
Hocking App. No. 13CA10                                                         5


that at the time the State’s witnesses said he was stopped, spinning out his

tires, he was actually sliding into the ditch. Appellant testified he did not

know there was any damage until he came by approximately 30 minutes

later and an officer stopped him.

      {¶9} Appellant also testified before the incident, Santiago’s car was

parked in the roadway every day. Neighbors complained about Santiago’s

repeated blocking of the road. On cross-examination, Appellant admitted he

was “a little upset” that he could not get home without going through the

ditch, but “it’s not enough to make me want to damage anything.” Appellant

offered that he had been arguing with his girlfriend, but “wasn’t agitated”

with Santiago. Appellant also testified he considered them to be friends.

The defense offered one exhibit, a picture of the roadway which showed one

spin track.

      {¶10} The trial court found Appellant guilty of criminal mischief

beyond a reasonable doubt. Appellant was fined $100.00 plus court costs,

and sentenced to 60 days in jail, all suspended. He was referred to mental

health court and ordered to have no contact with Santiago. A hearing on
Hocking App. No. 13CA10                                                                                      6


restitution was set for April 4, 2013.4 The trial court ordered restitution in

the amount of $700.00.

         {¶11} On March 20, 2013, Appellant filed a timely notice of appeal.

On May 1, 2013, this Court granted Appellant’s motion to stay execution of

sentence pending appeal.

                              ASSIGNMENT OF ERROR ONE

I.       APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE
         PROCESS AS GUARANTEED BY THE FIFTH AND
         FOURTEENTH AMENDMENTS TO THE UNITED STATES
         CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I,
         SECTION 16, BECAUSE THERE WAS INSUFFICIENT
         EVIDENCE THAT APPELLANT KNOWINGLY DAMAGED
         ANYONE’S PROPERTY.

                                 A. STANDARD OF REVIEW

         {¶12} An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable

doubt. State v. Dennison, 4th Dist. No. 06CA48, 2007-Ohio-4623, 2007 WL

2570736, ¶ 9. See, e.g. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus (superseded by on other grounds by

constitutional amendment). See State v. Smith, 80 Ohio St. 3d 89, 684 N.E.

4
  The front page of the trial transcript indicates the restitution hearing came on April 3, 2013. At page 56 of
the transcript, the restitution hearing date is listed as Thursday, April 4, 2013.
Hocking App. No. 13CA10                                                           7


2d 668 (1997). The relevant inquiry 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 crime proven beyond a reasonable

doubt. Id., citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979).

      {¶13} A sufficiency of the evidence challenge tests whether the state’s

case is legally adequate to satisfy the requirement that it contain prima facie

evidence of all elements of the charged offense. See State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), and Carter v. Estell (CA

5, 1982), 691 F.2d 777,778. It is a test of legal adequacy, rather than a test

of rational persuasiveness. Dennison, supra at ¶ 10.

      {¶14} The sufficiency of the evidence test “raises a question of law

and does not allow us to weigh the evidence,” Hollis, at ¶ 21; Smith, at ¶ 34,

citing State v. Martin, 20 Ohio App.3d 172, 175, 484 N.E.2d 717 (1983).

Instead, the sufficiency of the evidence test “gives full play to the

responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.’” Smith, at ¶ 34, citing State v. Thomas, 70 Ohio St. 2d 79,

79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus.

                               B. LEGAL ANALYSIS
Hocking App. No. 13CA10                                                       8


      {¶15} Appellant was convicted of criminal mischief, a violation of

R.C. 2909.07(A)(1) which provides: “(A) No person shall: (1) without

privilege to do so, knowingly move, deface, damage, destroy, or otherwise

improperly tamper with the property of another.” “Knowingly” is defined in

R.C. 2901.22 (B) as: “A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.”

      {¶16} Appellant contends he had to have been aware that he would

probably scatter gravel all over Santiago’s car when he accelerated up the

hill, and there is insufficient evidence of such knowledge. Commonly, there

is no direct evidence of a defendant’s state of mind so the State must rely on

circumstantial evidence to satisfy this element of its case. In re Horton, 4th

Dist. No. 04CA794, 2005-Ohio-3502, 2005 WL 1595241, ¶ 22. A

defendant’s state of mind may be inferred from the totality of the

surrounding circumstances. Id., citing In re Pollit, (Oct. 10, 2000), 4th Dist.

No. 00CA687, citing State v. Ratajczak (Aug. 5, 1992) , 9th Dist. No.

91CA005245.

      {¶17} Circumstantial and direct evidence possess the same probative
Hocking App. No. 13CA10                                                         9


and evidentiary value. Horton, supra, citing State v. Jenks, 61 Ohio St. 3d

259, 272, 574 N.E.2d 492 (1991). “When viewing circumstantial evidence,

‘the weight accorded an inference is fact-dependent and can be disregarded

as speculative only if reasonable minds can come to the conclusion that the

inference is not supported by the evidence.’” Jenks, supra, quoting Wesley v.

The McAlpin Co.,(May 25, 1994), 1st Dist. No. C9305286, citing

Donaldson v. Northern Trading Co., 82 Ohio App. 3d 476, 483, 612 N.E. 2d

754(1992). While Appellant argues there is insufficient evidence he acted

knowingly, he conveniently ignores the testimony of both State’s witnesses,

that demonstrated once he drove up the hill, he stopped for an albeit short

period of time (15-20) seconds, and spun his tires on the gravel. This

circumstantial evidence of his intent is enough to pass the sufficiency test.

A reasonable trier of fact could infer that Appellant knowingly caused

damage to the property of another.

      {¶18} In State v. Kessler, 8th Dist. No. 93340, 2010-Ohio-2094, 2010

WL 1910064, appellant was charged and convicted of felonious assault. On

appeal, she argued the State was required to present evidence that she knew

or should have known that [the victim] was about to cross in front of her

vehicle. Kessler argued the evidence presented at trial showed the incident

was an accident, and she was merely turning her car slowly into a driveway
Hocking App. No. 13CA10                                                        10


and the victim merely happened to run in front of her car. The victim

specifically testified at trial that Kessler pulled the vehicle into the driveway

only after she saw him running across it. The appellate court found Kessler

acted with knowledge. Again, “a person acts knowingly when he is aware

that his conduct will probably cause a certain result.” R.C. 2901.22(B). Both

Santiago and Forrest testified Appellant stopped and spun his tires. Forrest’s

testimony was that stopped and “punched” the gas. Based on this

testimonial evidence, we find the State presented sufficient evidence from

which the trial court could reasonably conclude Appellant acted knowingly.

      {¶19} Under this assignment of error, Appellant also argues the only

testimony that might support the conviction was Santiago’s, which

Appellant argues, is not credible. Appellant points out: (1) he had no reason

to want to damage Santiago’s property because they had always been

friendly; (2) Santiago’s girlfriend’s testimony was contradictory; and (3)

because Santiago may have exaggerated his request for restitution, his

testimony as to other facts of the incident is not reliable.

      {¶20} We are mindful the weight of evidence and credibility of

witnesses are issues to be decided by the trier of fact. State v. Dye, 82 Ohio

St. 3d 323, 329, 695 N.E.2d 763 (1998); State v. Frazier, 73 Ohio St. 3d

323,339, 652 N.E.2d 1000 (1995); State v. Williams, 73 Ohio St. 3d 153,
Hocking App. No. 13CA10                                                        11


165, 652 N.E.2d 721 (1995); State v. Vance, 4th Dist. No. 03CA27, 2004-

Ohio-5370, 2004 WL 2260498, ¶ 9. We also acknowledge that the trier of

fact is in a much better position than an appellate court to view witnesses

and observe their demeanor, gestures, and voice inflections, and to use those

observations to weigh the credibility of the testimony. See Myers v. Garson,

66 Ohio St. 3d 610, 615, 614 N.E.2d 742 (1993); Seasons Coal. Co. v.

Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984); Vance, ¶ 9. The

trial court made these comments when finding Appellant guilty:

              You look at the totality of the facts in a case like this, you
      listen to witnesses, you try to compare what’s going on. First
      of all, there is knowingly intent- - knowingly part of the statute.
      That’s my quersh (sic.) here. Your picture to me is totally
      irrelevant and I’ll tell you why. That picture does not display
      the whole road. It is a very selective picture. It’s just part of
      the road and it does show a spin track without any recognition
      of where the tire was.

              Despite your testimony, you also said the car swerved to
      your right, however, in your own evidence presents a straight
      tire track in there and swerved to the - - I’m sorry, you say you
      swerved to the left when you were on the stand. There was no
      swerve to the left. I try to listen very closely to what’s being
      said here, sir.

      {¶21} Appellant argues the two had always been friendly and he had

no reason to want to damage Santiago’s property. We do not find this

persuasive as to a lack of credibility for the reason that Santiago himself also

testified the two had been on friendly terms prior to the incident.
Hocking App. No. 13CA10                                                          12


      {¶22} Appellant also argues Heidi Forrest’s testimony contradicted

Santiago’s testimony on every detail. Appellant points to Forrest’s

testimony that she watched Appellant driving up the hill; that the gravel

spinning took place for 15-20 seconds; that no gravel hit the house; and that

she could not see dents on the vehicle. The fact that Santiago testified that he

saw Appellant’s car spinning out next to his as contrasted with Forrest’s

testimony that they watched Appellant drive up the hill and stop next to

Santiago’s car makes no material difference. Nor do we find it problematic

that Forrest estimated the time differently than Santiago did, did not testify

gravel hit the house (as did Santiago), and did not testify she saw dents.

Persons may perceive events differently. What is crystal clear is that both

Forrest and Santiago saw Appellant’s car stopped for a period of time, next

to their vehicle, spinning the gravel which caused damage.

      {¶23} Finally, Appellant argues Santiago is not a credible witness

because his request for restitution was exaggerated. Therefore, Appellant

contends other facts Santiago testified to should not have been relied upon.

Indeed, the transcript does reflect the trial court found the restitution figures

to be inflated. However, the trier of fact is free to believe all, part or none of

the testimony of each witness who appears before it. See State v. Long, 127

Ohio App.3d 328, 335, 713 N.E.2d 1 (4th Dist. 1998); State v. Nichols, 85
Hocking App. No. 13CA10                                                        13


Ohio App.3d 65, 76, 619 N.E.2d 80 (4th Dist. 1993); State v. Harriston, 63

Ohio App.3d 58, 63 577 N.E.2d 1144 (8th Dist. 1989); Vance, ¶ 9.

      {¶24} For the foregoing reasons, we find there was sufficient evidence

that Appellant acted knowingly when he spun his tires and caused damage to

Santiago’s car. As such, we overrule assignment of error number one and

affirm the judgment of the trial court.

                     ASSIGNMENT OF ERROR TWO

II.   THE JUDGE’S FINDING THAT APPELLANT COMMITTED
      CRIMINAL MISCHIEF IN VIOLATION OF R.C. 2909.07(A)(1)
      WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

      {¶25} In determining whether a criminal conviction is against 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 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. Dennison, supra

at ¶ 11; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

citing State v. Martin, supra, at 175. A reviewing court will not reverse a

conviction where there is substantial evidence upon which the court could

reasonably conclude that all the elements of an offense have been proven

beyond a reasonable doubt. State v. Johnson, 58 Ohio St. 3d 40, 41, 567,
Hocking App. No. 13CA10                                                       14


N.E.2d 266 (1991); State v. Eskridge, 38 Ohio St. 3d 56, 526 N.E.2d 304

(1988), paragraph two of the syllabus. We realize that the evidence may

pass a sufficiency analysis and yet fail under a manifest weight of the

evidence test. Dennison, supra at ¶ 15. See, State v. Brooker, 170 Ohio

App.3d 570, 868 N.E.2d 683, 2007-Ohio-588, ¶ 16, citing Thompkins, supra.

                           B. LEGAL ANALYSIS

       {¶26} For the sake of brevity, Appellant relies on his prior arguments

as set forth in assignment of error one that the conviction is against the

manifest weight of the evidence. Appellant reiterates Santiago was a poor

witness whose exaggerated version of events was contradicted by his own

girlfriend and undermined by his attempt to use or abuse the restitution

process. Despite his assertions, we find this assignment of error must also

fail. In making this finding, we have had to consider the same arguments.

      {¶27} It is well-established that when conflicting evidence is

presented at trial, a conviction is not against the manifest weight of the

evidence simply because the trier of fact believed the prosecution testimony.

State v. Lunsford, 12th Dist. No. CA2010-10-021, 2011-Ohio-6259, 2011

WL 6382534, ¶ 17. See State v. White, 12th Dist. No. CA2003-09-240,

2004-Ohio-3914. Further, “[t]he decision whether, and to what extent, to

credit the testimony of particular witnesses is within the peculiar
Hocking App. No. 13CA10                                                          15


competence of the factfinder, who has seen and heard the witness.”

Lunsford, supra, citing State v. Rhines, 2nd Dist. No. 23486, 2010-Ohio-

3117, ¶ 39. (upholding a conviction for aggravated menacing following a

bench trial.)

      {¶28} In State v. Matthews, 8th Dist. No. 97916, 2012 WL 5463037,

the defendant was charged and convicted of six counts of felonious assault.

On appeal, she argued there was no evidence she acted knowingly in hitting

victims with her car. In the alternative, she argued her convictions were

against the manifest weight of the evidence. The facts showed Matthews

drove her vehicle in reverse at a high rate of speed in a crowded parking lot,

thereby hitting the victims. Matthews contended her actions were by

accident and she was merely trying to escape the area because she believed

she was in danger from the crowd present. The appellate court reiterated

“The choice between credible witnesses and their conflicting testimony rests

solely with the finder of fact and appellate court may not substitute its

judgment for that of the trier of fact.” Matthews, Id. at ¶34, quoting State v.

Awan, 22 Ohio St. 3d 120, 123, 489 N.E. 2d 277 (1986). Here, the trial

court opted to believe the prosecution’s version of the facts. We cannot say

the trial court clearly lost its way and created such a miscarriage of justice
Hocking App. No. 13CA10                                                  16


that the conviction must be reversed. As such, we overrule Appellant’s

second assignment of error and affirm the judgment of the trial court.

                                               JUDGMENT AFFIRMED.
Hocking App. No. 13CA10                                                                     17


                                JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Municipal Court to carry this judgment into execution.

         IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.

Hoover, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

                                                       For the Court,

                                                       BY:     _______________________
                                                               Matthew W. McFarland
                                                               Presiding Judge




                                 NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
