[Cite as State v. Monsour, 2014-Ohio-1607.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      27039

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TIMOTHY C. MONSOUR                                   COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 13 02 0389

                                DECISION AND JOURNAL ENTRY

Dated: April 16, 2014



        HENSAL, Judge.

        {¶1}    Timothy Monsour appeals his conviction for criminal damaging from the Summit

County Court of Common Pleas. For the following reasons, this Court affirms.

                                                I.

        {¶2}    Steve Cavanaugh, an assistant pastor at the Community Baptist Temple, testified

that, on November 16, 2012, he was driving with his family by a building that the church had

been remodeling when he noticed a flatbed tow truck on the side of the building. He drove over

to see what was going on and saw that there were straps from the truck hooked onto one of the

building’s heating units. He also saw that the heating unit had been pulled away from the

building, that some electrical wires had been disconnected, and that the gas line had been cut and

bent. Near the truck were two men of different ages. Mr. Cavanaugh testified that he asked the

men if he could help them, and the older man replied that they were taking the unit for scrap.

When Mr. Cavanaugh explained that it was “obviously not scrap,” the man mumbled something,
                                                 2


removed the straps from the unit, and the two men drove away.            Mr. Cavanaugh’s wife,

meanwhile, took down the license plate of the truck. Police determined that the truck belonged

to one of Mr. Monsour’s relatives. After Mr. Cavanaugh identified Mr. Monsour from a series of

photographs as the younger of the two men that had attempted to take the heating unit, the Grand

Jury indicted him for vandalism. Mr. Monsour waived his right to a jury trial, the trial judge

found him guilty of the lesser-included offense of criminal damaging, and the court sentenced

him to 60 days in jail and two years of community control. Mr. Monsour has appealed his

conviction, assigning two errors.

                                                II.

                                    ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY IMPROPERLY ADMITTING HEARSAY
       TESTIMONY AT TRIAL.

       {¶3}    Mr. Monsour argues that the trial court improperly allowed Mr. Cavanaugh to

testify that the older of the two men he saw at the church’s building told him that “[w]e are just

taking this unit for scrap.”        Mr. Monsour argues the statement was hearsay because it

demonstrated that he and the other man were attempting to move the unit, and one of the

elements the State had to prove was that he knowingly caused physical harm to the property of

another. Mr. Monsour also argues that the trial court’s finding that the State met its burden was

based, to some measure, on the fact that the older man “had admitted to moving, and thereby

damaging, the unit.” We review the trial court’s decision to allow Mr. Cavanaugh’s testimony

for an abuse of discretion. State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the

syllabus (“The admission or exclusion of relevant evidence rests within the sound discretion of

the trial court.”); State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 92. An abuse of discretion
                                                3


means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶4}    “‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R.

801(C). Consequently, a prior statement is not hearsay if it is not offered in evidence to prove

the truth of the matter asserted. State v. McDonald, 9th Dist. Medina No. 12CA0093-M, 2013-

Ohio-4972, ¶ 40. The State argues that Mr. Cavanaugh’s statement was not offered for the truth

of the matter asserted. It also argues that, even if the statement was hearsay, it was admissible

under the exception for present sense impressions. See Evid.R. 803(1).

       {¶5}    It is not necessary to resolve whether Mr. Cavanaugh’s testimony was hearsay or

fell within an exception to the hearsay rule because any error from the admission of the

testimony was harmless under Criminal Rule 52(A). What Mr. Cavanaugh saw when he drove

over to the church building was just as probative, if not more so, as what the man said to him.

According to Mr. Cavanaugh, when he arrived at the side of the building, he saw that a heating

unit had been pulled away from the building, that electrical wires had been disconnected, and

that the gas line had been cut and bent. He also saw that there were straps from the tow truck

hooked onto the unit. He further testified that, after he told the men that the unit was not scrap

metal, they undid the straps and drove away in the tow truck. According to Mr. Cavanaugh, “[i]t

was obvious that the intent of the vehicle * * * was to remove the unit from the slab it was on.”

We agree that it can be inferred from Mr. Cavanaugh’s observations alone that the men used the

tow truck to move the heating unit, which Mr. Cavanaugh testified caused damage to it. The

older man’s statement about their intentions was merely cumulative evidence. See State v.

Tramble, 9th Dist. Lorain No. 97CA006928, 1999 WL 33806 *2 (Jan. 27, 1999); State v. Pierce,
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9th Dist. Summit No. 17684, 1997 WL 72098 *2 (Feb. 12, 1997). We, therefore, conclude that

any error in allowing the testimony was harmless. See State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, ¶ 59. Mr. Monsour’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
       SUPPORT APPELLANT’S CONVICTION FOR CRIMINAL DAMAGING OR
       ENDANGERING.

       {¶6}    Mr. Monsour next argues that the State did not present sufficient evidence to

support his conviction. In particular, he argues that it failed to present evidence that he knew his

conduct would cause physical harm to the property of another. He argues that, since he believed

the heating unit to be merely scrap metal, he could not have thought that moving the unit would

cause any damage to it.

       {¶7}    Whether a conviction is supported by sufficient evidence is a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this

determination, we must view the evidence in the light most favorable to the prosecution:

       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. 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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “Circumstantial

evidence and direct evidence inherently possess the same probative value * * *.”              Id. at

paragraph one of the syllabus.

       {¶8}    In order to convict Mr. Monsour of criminal damaging, the State had to prove

beyond a reasonable doubt that he knowingly caused or created “a substantial risk of physical
                                                 5


harm to any property of another without the other person’s consent[.]” R.C. 2909.06. “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.” R.C. 2901.22(B).

       {¶9}    From what Mr. Cavanaugh observed, it can be inferred that Mr. Monsour and the

other man disconnected the heating unit’s electrical connections, cut and bent the building’s gas

line, and used the tow truck to pull the heating unit away from the concrete slab where it was

located. While there is no direct evidence of Mr. Monsour’s intent, it can be inferred from his

actions and the surrounding circumstances. Viewing the evidence in a light most favorable to the

prosecution, there is sufficient evidence that Mr. Monsour knew that dislodging and pulling the

unit from the building and trying to take it away created a substantial risk of harm to the unit.

Accordingly, we conclude that there was sufficient evidence to support his conviction. Mr.

Monsour’s second assignment of error is overruled.

                                                III.

       {¶10} Mr. Monsour’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

NICHOLAS J. HORRIGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
