[Cite as In re Huff, 2010-Ohio-3669.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PAULDING COUNTY



IN THE MATTER OF:                                       CASE NO. 11-10-01

      NATHAN R. HUFF,
                                                            OPINION
ALLEGED DELINQUENT CHILD.



                Appeal from Paulding County Common Pleas Court
                                Juvenile Division
                            Trial Court No. 2009 2089

                                        Judgment Affirmed

                             Date of Decision: August 9, 2010




APPEARANCES:

        Timothy C. Holtsberry, for Appellant

        Matthew A. Miller, for Appellee
Case No. 11-10-01




PRESTON, J.

      {¶1} Defendant-appellant, Nathan R. Huff (hereinafter “Huff”) appeals

the judgment of the Paulding County Court of Common Pleas, finding him a

delinquent juvenile for committing criminal damaging.        For the reasons that

follow, we affirm.

      {¶2} This matter stems from the events that occurred on September 11,

2009, when allegedly Huff (d.o.b. 4/17/92), operated his pickup truck in a manner

which caused damage to another person’s garage door. On September 24, 2009, a

complaint was filed against Huff alleging that he was a delinquent under R.C.

2152.02(F) for violating R.C. 2909.06(A)(1), criminal damaging, a misdemeanor

of the second degree if committed by an adult. On October 8, 2009, Huff was

arraigned, an answer of “not true” was entered on his behalf, and he was appointed

counsel.   Pre-trial conferences were conducted on November 3, 2009 and

November 24, 2009. Subsequently, adjudication and disposition hearings were

held on December 22, 2009, and after the presentation of evidence, the trial court

found Huff to be a delinquent juvenile. In addition, the trial court ordered him to

serve ten (10) days in a juvenile facility, which was suspended on the condition

that he attend school, pay restitution, and report to a probation officer until his

eighteenth birthday. A motion for written findings of fact and conclusions of law




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was filed on December 30, 2009, and the trial court entered its findings of fact and

conclusions of law on January 4, 2010.

        {¶3} Huff now appeals and raises three assignments of error. For ease of

our discussion, we elect to address Huff’s assignments of error out of the order in

which they were presented in his brief.

                          ASSIGNMENT OF ERROR NO. III

        THE ADJUDICATION IS AGAINST THE MANIFEST
        WEIGHT OF THE EVIDENCE

        {¶4} In his third assignment of error, Huff claims that his adjudication

was against the manifest weight of the evidence.1

        {¶5} A review of the manifest weight of the evidence in a juvenile

delinquency adjudication is the same as for criminal defendants. In re B.O.J., 10th

Dist. Nos. 09AP-600, 09AP-601, 09AP-602, 2010-Ohio-791, ¶6. In determining

whether a conviction is against the manifest weight of the evidence, a reviewing

court must examine 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

and a new trial ordered.’” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678

N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d


1
  In light of Huff’s first assignment of error, we will address the manifest weight analysis without
considering Deputy Deitrich’s rebuttal testimony.


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717.   A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of

the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, 231, 227 N.E.2d 212.

       {¶6} Here, Huff was accused of committing criminal damaging. In order

to be found delinquent for criminal damaging, the State had to prove beyond a

reasonable doubt that Huff knowingly caused physical harm to property of another

without consent. R.C. 2909.06(A). “A person acts knowingly * * * when he is

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

“‘Physical harm to property’ means any tangible or intangible damage to property

that, in any degree, results in loss to its value or interferes with its use or

enjoyment.” R.C. 2901.01(A)(4).

       {¶7} At the adjudication hearing, the State called Keith Myers

(hereinafter “Myers”), who testified that he was the owner of the property in

question and that at the time of the incident he had been building a house. (Nov.

22, 2009 Tr. at 5-6). On September 11, 2009, he said that he received a phone call

from his niece informing him that someone had been back on the property and had

been spinning around. (Id. at 6). As a result, Myers and his son-in-law went to

the property and noticed that there was damage to his garage, specifically dents

and punctures in the garage door. (Id. at 6-7); (State’s Exs. 1 & 2). Myers

identified several photographs which depicted numerous “punctures” and

“indentions” in his garage door. (Id. at 8-9); (State’s Exs. 1 & 2). In addition,


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Myers stated that there were tracks in the stone driveway in front of his garage

door and that “there were stones laying against the garage door too.” (Id. at 8);

(State’s Exs. 1 & 2). Myers specifically testified that the damage shown in the

photographs to the garage door had not been there before the incident. (Id. at 10).

       {¶8} On cross-examination, Myers stated that he was having “a lot of

people” help him build the house, and that his son-in-law and his father had been

the ones that had installed the garage doors originally. (Id. at 12-13). Moreover,

Myers acknowledged that the first time he went to the property after his niece had

called he did not see any noticeable damage to the garage, and that it was only

after his son-in-law had been out to the property and called Myers back out that he

then noticed the indentations in the doors. (Id. at 13-14). Nevertheless, Myers

testified that there had not been any tracks in the stone driveway up by the garage

door prior to the incident. (Id. at 16-17).

       {¶9} Next, the State called Brenda Smith (hereinafter “Smith”), Myers’

niece who had called him the day of the incident to tell him that she had witnessed

a two-toned truck pull into the driveway of his property. (Id. at 19-20). Smith

explained that there had been prior reports of a two-toned blue pickup truck

spinning around the neighborhood, and on the day of the incident, while she was at

her grandmother’s house, she noticed a two-toned blue pickup truck come up to

the end of the stone road and “then all of a sudden they backed way up and then

just started tearing up the stones and everything the whole way out.” (Id. at 19).


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Upon witnessing the actions of the pickup truck, Smith got into her car and

decided to follow the truck. (Id.). Smith stated that the truck drove to another

stone road; however, because of the dust that the truck was creating from driving

on the stone road, Smith had to slow down. (Id.). When the dust cleared, she

noticed tire tracks in the stones of Myers’ driveway and that the tracks were

headed onto Myers’ property. (Id. at 20). So, Smith backed out on the road and

waited to see what the truck was going to do. (Id.). Smith said that the truck

eventually “came slowly out and then all of a sudden they just spun out and landed

over in the ditch.” (Id.). She took a few pictures of the two-toned blue pickup

truck, one of which depicted the truck in the ditch, and both of which clearly

showed the truck’s license plate. (Id.); (State’s Exs. 4 & 5). Next, Smith stated

that she pulled up to the truck, but took off after the driver eventually noticed her

and asked to talk to her. (Id.); (State’s Exs. 4 & 5). At the adjudication hearing,

Smith identified the driver of the two-toned blue pickup truck as Huff. (Id. at 21).

       {¶10} On cross-examination Smith acknowledged that she could not see

the truck while it was back by the house because the driveway curved around in

the woods towards the house. (Id. at 25). Consequently, Smith did not see

whether the truck had spun its tires by the house. (Id.). The only time she

witnessed the truck spin its tires was when the truck came out of the driveway and

landed in a ditch after spinning its tires. (Id.).




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       {¶11} The State additionally called Deputy Gary Deitrich of the Paulding

County Sheriff’s Office who was the officer that had responded to Myers’ phone

call regarding a pickup truck on his property. (Id. at 29). During this phone call,

Deputy Deitrich was given the license plate number of the truck, and he said that

Myers had just asked him to tell whomever the owner was of the truck to stay off

his property. (Id.). Subsequently, Deputy Deitrich ran the license plate number

and it came back as being registered to Gena Huff. (Id. at 29-30). He contacted

Gena Huff and informed her about the complaint, at which time she admitted that

her son Nathan would have been driving the truck at that time and said that she

would talk to him about not going back on the property. (Id. at 30). The next day,

Myers called the sheriff’s office again, but this time it was to inform them that he

had found some damage to his garage door. (Id.). While another deputy went

over to the property to take some photographs, Deputy Deitrich went over to the

Huff’s residence and talked to Huff about the incident. (Id. at 31). Deputy

Deitrich said that Huff acknowledged that he and two of his friends had been back

on Myers’ property, but that Huff denied spinning his tires. (Id. at 32).

       {¶12} Finally, the State called Huff’s friend, Joshua Sharp (hereinafter

“Sharp”), to testify about the incident on September 11, 2009. Sharp stated that he

had been with Huff that day in his truck, but while Huff had performed “donuts”

in Myers’ driveway, he stated that it had been at the beginning part of the stone

driveway, not back by Myers’ garage door. (Nov. 22, 2009 Tr. at 34-35). Sharp


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Case No. 11-10-01


said that Huff had “turned around in the back. Just did them [donuts] coming out

of the driveway.” In particular, on cross-examination, Sharp testified as follows:

       Q. Then you drove back the driveway to check things out back
       there, drove back out, ahm, apparently you drove out slowly,
       then you saw this car setting there?
       A. Yeah
       Q. And then at the end of the driveway, Nathan punched and did
       a fishtail, half a donut and ended up in the ditch?
       A. Yeah
       Q. After you were, from the driveway to the road
       A. Yeah
       Q. No where near the house
       A. no, just turned around, looked back there at the nice house
       they had back there, turned around and
       Q. Okay, that’s all I have

(Id. at 37-38). Sharp acknowledged that he had told Deputy Deitrich that Huff had

been doing donuts in Myers’ driveway, but he said that he had never told Deputy

Deitrich where in the driveway Huff had performed the donuts. (Id. at 36). On

redirect, the State showed Sharp State’s exhibits 1 and 2, which were photographs

of Myers’ garage door and the tire tracks in front of the garage door in the stone,

and asked Sharp the following questions:

       Q. Okay, does there appear to be burnout tracks in front of
       that?
       A. Yeah
       Q. And is that were abouts you turned your truck around?
       A. Yeah
       Q. Is it possible that you turned your truck around, or Mr. Huff
       turned his truck around in a manner that could have caused
       those marks?
       A. He might have turned a little sharply.
       Q. A little sharp?
       A. Yeah


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Case No. 11-10-01


      Q. He could have thrown some stones?
      A. Yeah
      Q. Maybe was going a little faster turning around?
      A. Yeah

(Id. at 38-39). However, Sharp said he was not certain whether Huff had caused

the damage to Myers’ garage door, since he never saw or heard any stones hit the

house when they turned around. (Id. at 40).

      {¶13} Based on the above evidence we believe that finding Huff to be a

delinquent child for committing criminal damaging was not against the manifest

weight of the evidence. There was testimony that the damage occurred to a house

that was in the process of being built. Moreover, Myers identified the indentations

and punctures along his garage door and specifically testified that these

indentations had not been there prior to the incident. Additionally, there were

photographs that depicted half circle track marks in the loose stone driveway and

loose stones right next to the garage door, which again had not been there prior to

the incident. Furthermore, even though she could not see the pickup truck by the

house, Smith observed the two-toned pickup truck spin its tires twice, one time

being when it subsequently slid into a ditch. Also, it is undisputed that Huff was

the driver of this pickup truck. Finally, despite Sharp’s testimony that Huff had

not done any donuts by the house, upon being shown the photograph depicting two

half-circled track marks in the stones, Sharp admitted that Huff may have “turned

a little sharply” by the house, and that stones could have been thrown as a result.



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Therefore, based on the above, we find that Huff’s adjudication was not against

the manifest weight of the evidence.

       {¶14} Huff’s third assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       ALLOWING KEITH MEYERS TO GIVE OPINION
       TESTIMONY REGARDING THE DAMAGE TO THE
       GARAGE

       {¶15} In his second assignment of error, Huff claims that the trial court

abused its discretion in allowing Myers to testify about the cause of the damage to

his garage door.

       {¶16} To begin with, the admissibility of relevant evidence rests within the

sound discretion of the trial court. City of Columbus v. Taylor (1988), 39 Ohio

St.3d 162, 164, 529 N.E.2d 1382, citing Calderon v. Sharkey (1982), 70 Ohio

St.2d 218, 436 N.E.2d 1008. Absent an abuse of discretion, as well as a showing

that the appellant suffered material prejudice, an appellate court will not disturb a

trial court’s ruling as to the admissibility of evidence. State v. Martin (1985), 19

Ohio St.3d 122, 129, 483 N.E.2d 1157. An abuse of discretion implies that the

court’s decision was unreasonable, arbitrary, or unconscionable, and not merely an

error of judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840

N.E.2d 1032, ¶¶129-130, citations omitted. When applying the abuse of discretion




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standard, an appellate court may not substitute its judgment for that of the trial

court. State v. Herring (2002), 94 Ohio St.3d 246, 255, 762 N.E.2d 940.

       {¶17} Lay witnesses may render a lay opinion on the ultimate issue to be

decided by the trier of fact upon satisfaction of Evid.R. 701. State v. McGovern,

6th Dist. No. E-08-066, 2010-Ohio-1361, ¶33, citing Lee v. Baldwin (1987), 35

Ohio App.3d 47, 49, 519 N.E.2d 662. “Pursuant to Evid.R. 701, lay opinion must

be: (1) ‘rationally based on the perception of the witness,’ i.e., the witness must

have firsthand knowledge of the subject of his testimony and the opinion must be

one that a rational person would form on the basis of the observed facts; and (2)

‘helpful,’ i.e., it must aid the trier of fact in understanding the testimony of the

witness or in determining a fact in issue.” Id., quoting Lee, 35 Ohio App.3d at 49,

citing Wheeler v. Hendershot (Nov. 28, 1984), 1st Dist. No. C-830891.

       {¶18} Here, Huff claims that the trial court abused its discretion when it

allowed Myers to testify about what he believed had caused the damage to his

garage door. In particular, after identifying the indentations in his garage door, the

stones in front of his garage door, and the track marks in his stone driveway,

Myers testified that it looked like someone had “spun around” in his driveway and

“threw stones against [his] garage door.” (Id. at 9-11). Generally, non-experts can

state their opinion formed from facts that are based on matters within common

observation and experience in cases where it is not practical to place before the

trier of fact all the primary facts upon which they are founded. State v. Hairston


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(1977), 60 Ohio App.2d 220, 223, 396 N.E.2d 773. We believe that Myers’

statement was a rational opinion based on facts that were matters within common

observation and experience.     First of all, Myers’ testimony demonstrated his

familiarity with stone driveways. Second, Myers testified that neither the stones in

front of the garage door, the damage to the garage door, nor the tracks in the stone

driveway had been there prior to the incident. Moreover, after Smith had observed

the two-toned truck drive back by the garage, Myers said that there were several

indentations in his garage door, stones laying in front of his garage door, and two

half circled track marks in the stones of his stone driveway.

       {¶19} Given the evidence in the record, we believe that the trial court’s

decision to allow Myers’ testimony was reasonable and not an abuse of discretion.

       {¶20} Huff’s second assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       ALLOWING HEARSAY TESTIMONY FROM DEPUTY
       DEITRICH REGARDING JOSHUA SHARP’S STATEMENT

       {¶21} In his first assignment of error, Huff argues that the trial court

abused its discretion when it allowed Deputy Deitrich to be recalled on rebuttal

and testify as to what Huff’s friend, Joshua Sharp, had told him regarding the

incident on September 11, 2009.         However, as we found in Huff’s third

assignment of error, Huff’s adjudication was not against the manifest weight of the




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evidence even without Deputy Deitrich’s rebuttal testimony. Therefore, we find

that Huff’s first assignment of error is rendered moot.

       {¶22} Accordingly, Huff’s first assignment of error is overruled.

       {¶23} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, J., concurs.

ROGERS, J., concurs in Judgment Only.

/jnc




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