[Cite as Cleveland v. Battles, 2018-Ohio-267.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 104984



                                 CITY OF CLEVELAND
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                     LA’SHA BATTLES
                                                        DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2015 CRB 026858

               BEFORE:           Blackmon, J., Keough, P.J., and Celebrezze, J.

              RELEASED AND JOURNALIZED:                     January 25, 2018
                                         -i-




ATTORNEY FOR APPELLANT

Leigh S. Prugh
P.O. Box 450678
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Cleveland Law Director

By: Omar Lebron Siddiq
Assistant Prosecutor City of Cleveland
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

      {¶1} La’Sha Battles (“Battles”) appeals from her conviction for criminal

damaging and assigns the following errors for our review:

      I. The trial court erred in denying La’Sha Battles’ Crim.R. 29(A) motion
      for acquittal in the face of insufficient evidence to prove guilt of the offense
      of criminal damaging beyond a reasonable doubt.

      II.   The trial court erred in finding La’Sha Battles guilty because her

      conviction is agains[t] the manifest weight of the evidence.

      Having reviewed the record and pertinent law, we affirm the decision of the trial

court. The apposite facts follow.

      {¶2} On December 14, 2015, Battles was charged with criminal damaging, in

violation of Cleveland Codified Ordinance 623.02(a)(1), based on events that occurred on

November 22, 2015. After a bench trial, the court found Battles guilty, and it is from this

judgment that Battles appeals.

      {¶3} Precious Earley testified that she lives at 3503 Capers Avenue, in

Cleveland. At some point, she allowed Battles to temporarily stay with her for “about a

week, two.”    However, Earley’s lease did not permit other tenants to live in the

apartment, and when she learned of an upcoming inspection, Earley asked Battles to

leave. According to Earley, Battles “caught a [sic] attitude” about being asked to leave,

although Battles ultimately agreed.

      {¶4} On November 22, 2015, Earley went to the store. Battles, Battles’s best

friend, Ronesha, and Battles’s and Ronesha’s kids were in Earley’s house. Although
Earley’s testimony about how many people this totaled is somewhat confusing, she

concluded that there were “about seven people” in her home when she left. It was

Earley’s understanding that everyone would be gone when she got back from the store.

Battles did not have a key, and Earley instructed her to leave the door unlocked when she

left.

        {¶5} Earley was gone for “an hour or so.” When she got back, the door was

unlocked and nobody was in the apartment. Earley testified that the condition of the

apartment was “a mess * * * the house was a wreck.” Asked about the condition of her

home when she left for the store, Earley testified, “Normal.           Everything was in

condition.”   Earley explained that this meant everything was “fixed, working” and

“[n]othing was broken.”

        {¶6} Earley further testified as follows: “I seen [sic] make up all over the walls.

 I seen, [sic] like, black shampoo/conditioner all that stuff poured in the sink; TV

knocked on the floor; the other TV scattered like somebody kicked it; and then the pipes

in my little closet broke all up. That’s what I saw when I got there.” Earley called the

police and when they got to her apartment, she stated that Battles “did this.” Ultimately,

Earley had to pay $70 for the damages to avoid eviction. According to Earley, that same

day or the day after, Battles sent Earley the following message via Facebook: “I hope you

pass your inspection.”

        {¶7} Nicketia, who is Battles’s aunt, testified on behalf of Battles. Nicketia

testified that on November 22, 2015, Battles called and asked Nicketia to pick up Battles

at Earley’s apartment. When Nicketia arrived, Battles had her “stuff sitting at the door
waiting to be picked up.” According to Nicketia, the following people were present

when she arrived: Battles, Battles’s friend, Earley’s boyfriend, “another guy and some

other person,” and two kids. Nicketia went inside Earley’s apartment and saw “[n]othing

but — she don’t have no furniture [sic], so basically nothing.” Nicketia testified that she

did not see any damage to or mess in the apartment.

       {¶8} Nicketia testified that as they were driving away, Battles’s friend said she

left her phone at Earley’s, so they went back to get it. “The friend had too much stuff in

her lap, so [Battles] got out and went in the house, went in came right back out [sic] she

said that she didn’t see the phone * * * and we left again.” According to Nicketia,

Battles was in Earley’s apartment “[n]ot even two minutes.” The next day, Nicketia

received a phone call from Earley accusing Battles of “mess[ing] up her apartment.”

       {¶9} In finding Battles guilty, the court stated: “I had my doubts until [Nicketia]

testified. I couldn’t figure out how this happened. So [Battles is] found guilty because

the witness said [Battles] went back to get the phone and there was no phone. Only have

one bag or basket of stuff.”

       {¶10} On August 24, 2016, the court sentenced Battles to “90 days, $750. * * * So

$750 is the fine. I’m going to suspend $550. Well, six months probation, active, pay

restitution, $280, lipstick, whatever. * * * — and inactive probation when the restitution

is paid and the fee, fine is paid. Goodbye.”

                               Sufficiency of the Evidence

       {¶11} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where

the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.
29(A) and sufficiency of the evidence require the same analysis. State v. Taylor, 8th

Dist. Cuyahoga No. 100315, 2014-Ohio-3134. “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.

Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 101, citing State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

      {¶12} 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. Vickers, 8th Dist.

Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991).

                           Manifest Weight of the Evidence

      {¶13} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

¶ 25, the Ohio Supreme Court addressed the standard of review for a criminal manifest

weight challenge, as follows:

      The criminal manifest-weight-of-the-evidence standard was explained in

      State v. Thompkins (1997), 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d

      541. In Thompkins, the court distinguished between sufficiency of the

      evidence and manifest weight of the evidence, finding that these concepts

      differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The

      court held that sufficiency of the evidence is a test of adequacy as to
       whether the evidence is legally sufficient to support a verdict as a matter of

       law, but weight of the evidence addresses the evidence’s effect of inducing

       belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court

       asks whose evidence is more persuasive — the state’s or the defendant’s?

       We went on to hold that although there may be sufficient evidence to

       support a judgment, it could nevertheless be against the manifest weight of

       the evidence. Id. at 387, 678 N.E.2d 541. “When a court of appeals reverses

       a judgment of a trial court on the basis that the verdict is against the weight

       of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees

       with the factfinder’s resolution of the conflicting testimony.” Id. at 387, 678

       N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211,

       72 L.Ed.2d 652.

       {¶14} An appellate court may not merely substitute its view for that of the jury, but

must find that “in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Thompkins at 387. Accordingly, reversal on manifest weight grounds

is reserved for “the exceptional case in which the evidence weighs heavily against the

conviction.” Id.

                                   Criminal Damaging

       {¶15} Cleveland Codified Ordinance 623.02(a)(1) states that “[n]o person

shall * * * knowingly * * * cause * * * physical harm to any property of another without

his or her consent * * *.”
                                        Analysis

      {¶16} Upon review, we find that there is sufficient evidence to convict Battles of

criminal damaging. Additionally, Battles’s conviction is not against the manifest weight

of the evidence. In State v. Apanovitch, 33 Ohio St.3d 19, 27, 514 N.E.2d 394 (1987),

the Ohio Supreme Court held the following:

      A conviction based on purely circumstantial evidence is no less sound than
      a conviction based on direct evidence. Consideration of circumstantial
      evidence as a mitigating factor would inevitably lead to undercutting the
      underlying conviction itself by implying that a conviction based on
      circumstantial evidence is inherently less reliable than a conviction based
      on direct evidence.

      In fact, a conviction based upon purely circumstantial evidence may be just

      as reliable as a conviction based on direct evidence, if not more so.

      {¶17} In the case at hand, there was direct evidence of the criminal damaging to

Earley’s apartment and circumstantial evidence that Battles was the offender. Nicketia

testified that Battles was the last person inside Earley’s apartment before it was damaged,

and Earley testified that Battles had an “attitude” when asked to leave. Furthermore,

Battles sent a Facebook message to Earley stating that she hoped Earley’s apartment

“passed inspection.”

      {¶18} Despite the court’s comments regarding Nicketia’s testimony — which the

court heard after Battles moved for a Crim.R. 29 acquittal — we find sufficient evidence

in the record to sustain Battles’s conviction for criminal damaging. Earley’s testimony

that Battles had an “attitude,” Battles’s social media message, and the circumstantial
evidence, if believed, support the trial court’s ruling. Accordingly, Battles’s conviction

is affirmed, and her two assigned errors are overruled.

       {¶19} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cleveland Municipal Court to

carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
