[Cite as State v. Maxson, 2018-Ohio-4515.]


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

STATE OF OHIO,                                  :    Case No. 18CA3

        Plaintiff-Appellee,                     :

v.                                              :    DECISION AND
                                                     JUDGMENT ENTRY
RODNEY MAXSON,                                  :

        Defendant-Appellant.                    :    RELEASED 11/08/2018


                                             APPEARANCES:

Paul Croushore, Cincinnati, Ohio, for appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. Anderson,
Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio, for appellee.


Hoover, P.J.
        {¶1}    Defendant-appellant, Rodney Maxson (“Maxson”), appeals his conviction of

criminal damaging following a bench trial in the Ironton Municipal Court. On appeal, Maxson

contends that the State failed to prove that he acted with the culpable mens rea. He also contends

that his conviction is against the manifest weight of the evidence, because given the evidence

presented at trial, it would have been “physically impossible” for him to have damaged the

victim’s property in the manner alleged. After a careful review of the record, we conclude that

both of Maxson’s assignments of error are without merit. Accordingly, we affirm the judgment

of the trial court.


                                   I. Facts and Procedural History
Lawrence App. No. 18CA3                                                                             2


       {¶2}    A criminal complaint was filed in the Ironton Municipal Court charging Maxson

with one count of criminal damaging in violation of R.C. 2909.06(A)(1). Thereafter, an amended

criminal complaint was filed in the trial court to correct the name of the victim, and to correct the

degree of the offense. Specifically, the amended complaint alleged that Maxson “did, knowingly

by any means cause, or create a substantial risk of physical harm to a VEHICLE, the property of

GREG TAYLOR, without consent, in violation of Section 2909.06(A)(1) of the Ohio Revised

Code, Criminal Damaging, M-2.” (Emphasis sic.) Maxson apparently entered a not guilty plea,

although documentation of his plea does not exist in the provided record; and the matter

proceeded to a bench trial.

       {¶3}    The following facts are adduced from Maxson’s trial.

       {¶4}    Steven Simpson testified that he is Maxson’s neighbor, and lives “within half a

city block” of Maxson. Simpson testified that on January 17, 2017, his vehicle had run out of

gas, so he and his son walked to a nearby gas station. Simpson testified that on the way back

from the gas station, another neighbor, Greg Taylor, was driving by and offered him and his son

a ride home. On the way to Simpson’s house, Taylor stopped his vehicle at his mailbox to

retrieve his mail. Simpson testified that as Taylor was checking his mail, Maxson pulled his

vehicle just barely into Maxson’s driveway, which is close to Taylor’s mailbox, and stopped.

Simpson testified that as soon as Taylor began to pull away from the mailbox Maxson began

spinning his tires and flung mud and gravel at Taylor’s vehicle. Simpson testified that some mud

and rock actually entered Taylor’s vehicle, through the driver side window that had been rolled

down, and chipped both of Simpson’s two front teeth. Simpson also testified that a rock had

flung and caused the windshield of Taylor’s vehicle to crack. During Simpson’s testimony, the

prosecution offered an exhibit containing four photographs depicting mud splatter on Taylor’s
Lawrence App. No. 18CA3                                                                                            3


truck, and tire ruts1 in the area of Maxson’s driveway. The trial court ultimately admitted the

exhibit as evidence.

         {¶5}     Taylor also testified at trial. Taylor verified that he saw Simpson and his son

walking down the street, and that he stopped to give them a ride to their house. He also verified

that before he dropped them off at their house, he stopped his vehicle at his mailbox to check the

mail. According to Taylor, while he was checking the mail, Maxson “pulled in, stopped right up

to the end of his driveway”, and “[t]hen as soon as I pulled out, got almost right behind him, he

gunned it and pulled on up in his driveway.” Taylor testified that the driver side window of his

vehicle was rolled down when Maxson gunned his vehicle and spread gravel and mud at

Taylor’s vehicle. Taylor testified that he got mud splattered on the left side of his face, and that a

rock flew into his vehicle’s windshield causing it to crack. Taylor also testified that the glass on

his side view mirror was damaged; and he verified that a rock chipped Simpson’s front teeth.

Taylor testified that he received an estimate to fix the damage done to his vehicle, and that the

estimate totaled $457.

         {¶6}     Maxson testified in his own defense. Maxson testified that he has to pull into his

driveway slowly, because “there is a little bit of a ditch and it goes up into a hump[,] [s]o * * *

every time when I pull into the driveway I got to go slow[,] * * *I pull in slow not to damage my

vehicle.” Maxson testified that he pulls slowly into his driveway “all the time.” He also testified

that on the day of the incident it was muddier than usual, because the road across the street had

just been paved, which “caused more of a washout.” He also testified that it was his first time

driving in a while because he had suffered a stroke in October 2016 that affects his balance.




1
 During Taylor’s testimony, Taylor clarified that he had actually caused the ruts and tire marks depicted in the
exhibit, and that they were not marks caused by Maxson’s vehicle.
Lawrence App. No. 18CA3                                                                                          4


        {¶7}     Maxson admitted to seeing Taylor’s vehicle at the mailbox when he pulled into

the driveway, but denied that he spun his tires intentionally. Maxson actually testified that he did

not believe that his tires spun at all, and that he did not even realize that Taylor had passed

behind him while he was parking his vehicle.

        {¶8}     During Maxson’s testimony, a video recording of the incident recorded from a

nearby security camera was played for the trial court. The trial court ultimately admitted the

video into evidence.

        {¶9}     Upon the completion of the presentation of evidence, the trial court found Maxson

guilty of criminal damaging as alleged in the complaint. The trial court then sentenced Maxson

to thirty days jail-time, but suspended the jail sentence and placed Maxson on one-year

probation.2 The trial court also ordered Maxson to pay restitution to Taylor in the amount of

$457, and to Simpson in the amount of $570. Finally, the trial court ordered that Maxson pay

court costs. The trial court had ordered Maxson to pay a $200 fine at first; but ultimately it

ordered the fine suspended.


                                          II. Assignments of Error


        {¶10} Maxson assigns the following errors for our review:


First Assignment of Error:




2
 R.C. 2929.25(A)(1)(b) states:
        Except * * * when a jail term is required by law, in sentencing an offender for a misdemeanor,
        other than a minor misdemeanor, the sentencing court may do * * * the following: * * * Impose a
        jail term under section 2929.24 of the Revised Code from the range of jail terms authorized under
        that section for the offense, suspend all or a portion of the jail term imposed, and place the
        offender under a community sanction or combination of community control sanctions authorized
        under section 2929.26, 2929.27, or 2929.28 of the Revised Code.
R.C. 2929.27(A)(6) authorizes the sentencing court to “impose upon the offender any nonresidential sanction or
combination of nonresidential sanctions * * * [including] * * * [a] term of basic probation supervision.”
Lawrence App. No. 18CA3                                                                                                5


         THE TRIAL COURT ERRED WHEN IT CONVICTED THE (sic) MR.
         MAXSON OF CRIMINAL DAMAGING WITHOUT EVIDENCE OF A
         CULPABLE MENTAL STATE.

Second Assignment of Error:

         THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT MR.
         MAXSON’S ALLEGED ACTION OF SPINNING HIS TIRES WHEN
         PULLING INTO HIS DRIVEWAY COULD HAVE CAUSED DAMAGE TO
         MR. TAYLOR AND MR. SIMPSON.


                                             III. Law and Analysis


         {¶11} In his first assignment of error, Maxson contends that the State failed to prove that

he “knowingly” caused harm to Taylor’s vehicle. Rather, Maxson argues that he had no intent to

spin his tires towards Taylor’s vehicle, and suggests that he did not even know that Taylor had

pulled behind him while he was parking his vehicle. Because the issue of whether the State

proved that Maxson acted knowingly goes to an essential element of the offense of criminal

damaging, we review Maxson’s first assignment of error under the sufficiency of the evidence

standard of review.3

         {¶12} Whether a conviction is supported by sufficient evidence is a question of law that

we review de novo. State v. Allah, 4th Dist. Gallia No. 14CA12, 2015–Ohio–5060, ¶ 8. In

making this determination, we must determine whether the evidence adduced at the trial, if

believed, reasonably could support a finding of guilt beyond a reasonable doubt. State v.

Davis, 4th Dist. Ross No. 12CA3336, 2013–Ohio–1504, ¶ 12. “The standard of review is

whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the

light most favorable to the prosecution, any rational trier of fact could have found all the


3
  In his appellate brief, Maxson contends that we should review his first assignment of error under the plain error
standard, however, given the substance of his argument in support of the error, we believe that a sufficiency of the
evidence review is most appropriate.
Lawrence App. No. 18CA3                                                                            6


essential elements of the offense beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶13} Maxson was convicted of a violation of R.C. 2909.06(A)(1), which states that no

person shall knowingly, by any means, “cause, or create a substantial risk of physical harm to

any property of another without the other person’s consent[.]”

       {¶14} Maxson argues that the State failed to prove that he “knowingly” caused harm to

Taylor’s vehicle. “A person acts knowingly, regardless of purpose, when the person is aware that

the person’s conduct will probably cause a certain result or will probably be of a certain nature.”

R.C. 2901.22(B). Maxson claims, “[t]here was no testimony indicating that [he] was aware of

Mr. Taylor or Mr. Simpson. The only evidence was that [he] had no idea of their presence until

after the supposed event.”

       {¶15} Maxson’s argument, however, that he had no idea of Taylor and Simpson’s

presence, is misplaced. In fact, Maxson himself testified at trial that he saw Taylor’s vehicle

stopped at the mailbox as he entered his driveway. Given this evidence, coupled with the

evidence regarding the proximity of the mailbox to Maxson’s driveway, and Maxson’s testimony

that it was especially muddy on the day of the incident and that his driveway had a large hump, a

fact finder could reasonably conclude that Maxson was aware that his conduct would probably

result in his spraying of mud and gravel towards Taylor’s vehicle. Thus, Maxson’s conviction is

supported by sufficient evidence. We overrule his first assignment of error.

       {¶16} In his second assignment of error, Maxson contends that his conviction is against

the manifest weight of the evidence because the photograph of Taylor’s vehicle and the video of

the incident introduced at trial and admitted as evidence “combine to demonstrate that the facts

as alleged by the prosecution and testified to by its witnesses are simply physically impossible
Lawrence App. No. 18CA3                                                                             7


and thus against the manifest weight of the evidence.” Specifically, Maxson argues that the

photograph of Taylor’s vehicle shows the driver’s side window is rolled up and mud is visible on

the window; and thus, the window could not have been rolled down as alleged by Taylor and

Simpson. He also argues that given the angle of the mud splatter pattern, as shown in the

photograph, it would have been physically impossible for any debris to have struck the driver’s

sideview mirror. Finally, Maxson argues that the “angles and photographic evidence” as depicted

in the video “are completely inconsistent” with Taylor’s and Simpson’s testimony.

       {¶17} 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. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011–Ohio–6524, 960 N.E.2d 955, ¶

119. “Although a court of appeals may determine that a judgment of a trial court is sustained

by sufficient evidence, that court may nevertheless conclude that the judgment is against the

weight of the evidence.” Thompkins at 387. But the weight and credibility of evidence are to be

determined by the trier of fact. State v. West, 4th Dist. Scioto No. 12CA3507, 2014–Ohio–1941,

¶ 23. A trier of fact “is free to believe all, part or none of the testimony of any witness who

appears before it.” Id. We defer to the trier of fact on these evidentiary weight and credibility

issues because it is in the best position to gauge the witnesses’ demeanor, gestures, and voice

inflections, and to use these observations to weigh their credibility. Id.

       {¶18} First, we disagree with Maxson’s contention that the photographic evidence is

wholly inconsistent with the testimony of Taylor and Simpson. While there does appear to be a
Lawrence App. No. 18CA3                                                                            8


small amount of mud on the upper part of the front driver side window, as depicted in the

photograph, it is a much smaller amount as compared to the rear driver side window, or to the

rest of the driver side body of the vehicle. Viewing the photograph objectively, it appears

possible that the window could have been partially rolled down, with only a few inches of the

upper part of the window exposed. More importantly, at trial, both Simpson and Taylor provided

explanations as to why a small amount of mud is visible on the window. Simpson explained that

the photograph was taken by law enforcement two days after the incident, and that the window

had been rolled up before the picture was taken causing the small amount of mud on the window.

But, he was emphatic that the window was rolled down when the incident occurred. Taylor

provided more detail, testifying that “[the] window was down [during the incident], it had been

rolled up a couple of times after that, I roll the windows up and lock the doors every night on the

vehicle.” Taylor also verified that the photograph was taken two days after the incident, at law

enforcement’s request, and that the mud transferred to the window when he rolled the window

up.

       {¶19} We also disagree with Maxson’s contention that the angle of the mud splatter

pattern, as shown in the photograph, and the angles and photographic evidence as depicted in the

video “are completely inconsistent” with Taylor and Simpson’s testimony. Rather, after having

reviewed the photograph and video, we believe the exhibits are actually consistent with Taylor’s

and Simpson’s testimony and the damage they alleged occurred to the vehicle. Maxson seems to

take great issue with the testimony concerning damage to the sideview mirror of the vehicle,

contending it would be impossible for any gravel to crack the mirror if Taylor’s vehicle was

directly behind and perpendicular to his vehicle, when the incident occurred. However, this issue

was addressed at trial, and Taylor explained that he believed the gravel “bounce[d]” off other
Lawrence App. No. 18CA3                                                                                 9


parts of the vehicle and hit the glass part of the mirror. The trial court apparently thought this

explanation was reasonable, and as the trier of fact, it was free to do so. See State v. Erickson,

12th Dist. Warren No. CA2014-10-131, 2015-Ohio-2086, ¶ 42 (Citations omitted.) (“However, *

* * a conviction is not against the manifest weight of the evidence simply because the [trier of

fact] believed the prosecution testimony. * * * [A]s the trier of fact, the [trial court] was free to

believe or disbelieve all, part, or none of the testimony of the witnesses presented at trial.”); State

v. Shirley, 4th Dist. Ross No. 16CA3562, 2017-Ohio-1520, ¶ 23 (trier of fact found the State’s

version of events more credible than defendant’s; and it was free to do so). The trial court was

able to observe the witnesses on the witness stand, and was in the best position to judge and

weigh the credibility of the witnesses. Put simply, the trial court had before it sufficient facts to

ascertain the witnesses’ credibility and to weigh it against the other evidence presented at trial.

We will not substitute our judgment for that of the trial court.

        {¶20} After a thorough review of the record, we cannot say that this is an exceptional

case where the evidence weighs heavily in favor of Maxson and where it is clear that the trier of

fact lost its way or created a manifest miscarriage of justice. Accordingly, we overrule Maxson’s

second assignment of error.


                                           IV. Conclusion


        {¶21} Having overruled both of Maxson’s assignments of error, we affirm the judgment

of the trial court.


                                                                          JUDGMENT AFFIRMED.
Lawrence App. No. 18CA3                                                                               10


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

        The Court finds that reasonable grounds existed for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Ironton 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.

Harsha, J. and Abele, J.: Concur in Judgment and Opinion.


                                                For the Court


                                                By: ____________________________
                                                    Marie Hoover, 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.
