[Cite as Toledo v. Carter, 2016-Ohio-3505.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


City of Toledo                                    Court of Appeals No. L-15-1128

        Appellee                                  Trial Court No. CRB-14-11651

v.

Marcus J. Carter                                  DECISION AND JUDGMENT

        Appellant                                 Decided: June 17, 2016

                                              *****

        David Toska, City of Toledo Chief Prosecutor, and
        Jimmie Jones, Assistant Prosecutor, for appellee.

        Karin L. Coble, for appellant.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Marcus Carter, appeals his conviction in the Toledo Municipal

Court, Housing Division, of one count of house stripping in violation of Toledo
Municipal Code 541.14(a), a misdemeanor of the first degree.1 For the following

reasons, we affirm, in part, and remand the matter for further proceedings regarding the

imposition of restitution.

       {¶ 2} On April 21, 2015, a bench trial was held on the charge of house stripping.2

The first witness called by the state was Detective Richard Holland of the Toledo Police

Department. Holland testified that in the early morning hours of July 25, 2014, he

responded to a call relating to a property at 705 Belmont in the city of Toledo. An

anonymous caller had described that she saw an individual breaking into the back door of

the house. The caller later stated that it was not a burglary, but rather two individuals

were removing downspouts off of the house, and walking back and forth between that

house and a house across the alley on Elizabeth Street. Holland testified that he and his

partner approached in a limited-marked vehicle, which was an all-black Crown Victoria

that was equipped with lights and a siren. When they approached, Holland observed two

individuals in the roadway, who fled in opposite directions on foot. Holland and his

partner apprehended one of the men, who was later identified as appellant.

       {¶ 3} In describing the scene, Holland testified that there was a garbage can near

the abandoned house on Elizabeth Street that contained an amount of scrap metal


1
 On April 28, 2015, Toledo Municipal Code 541.14(a) was repealed. The offense is
currently prohibited under Toledo Municipal Code 545.21.
2
 The transcript indicates that appellant was also facing charges of obstructing official
business and possession of criminal tools. Although not indicated in the transcript,
appellant and the state agree that appellant was found not guilty of those charges.




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including downspouts, eaves troughs, and aluminum siding. Holland testified that the

contents of the garbage can were consistent with the materials on the house at 705

Belmont, and that it appeared to him that the items came off of that house. Next to the

garbage can was a maroon bicycle, which appellant claimed was his.

       {¶ 4} On cross-examination, Holland conceded that he did not observe appellant

removing any property from the house on Belmont, nor did he see appellant depositing

any items into the trash can.

       {¶ 5} On re-direct, Holland also testified that while he was pursuing appellant, he

observed appellant dropping a stocking cap and a pair of work gloves.

       {¶ 6} The state then called Officer Melvin Haney of the Toledo Police

Department. Haney was working with Holland on the night of the incident. Similar to

Holland, Haney testified that appellant fled when they approached. He also testified

regarding the garbage can of items that appeared to have been taken from the house on

Belmont, as well as the proximity of appellant’s bicycle to that garbage can. Haney also

confirmed that appellant dropped the stocking cap and work gloves while he was fleeing.

       {¶ 7} As its final witness, the state called Brenda Baker, the owner of the house on

Belmont. Baker testified that she was on vacation at the time of the incident. She stated

that when she returned home, she found that her privacy fence had been broken down,

that one of the windows on the side of her house was broken, and that some siding near a

window was missing, as well as the eaves troughs.




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       {¶ 8} In addition to the testimony, the state entered the police report and a

photograph of appellant as evidence. The state then rested.

       {¶ 9} Appellant testified in his own defense. Appellant stated that he was home in

the early morning hours of July 25, 2014, but that he left around 1:30 a.m. when he

received a call informing him that there was some possible scrap that was left around the

Elizabeth and Belmont area. Appellant testified that he was a scrapper, and he wanted to

check out the potential scrap before he picked it up to make sure he was not getting in

trouble. Because of some issues with his driver’s license, appellant rode his bicycle to

the location to determine whether he should come back over with his truck.

       {¶ 10} Appellant testified that he fled as the car approached because he was

concerned for his safety given the reputation of the neighborhood and the fact that a car

was slowly driving up to him with no lights on. He stated that two other individuals were

with him, who also fled. One of the individuals was the person who alerted him to the

presence of the scrap metal. Appellant testified that he did not personally take anything

off of the house on Belmont and he did not observe the other individuals take anything

off of the house.

       {¶ 11} On cross-examination, appellant explained that he was out scrapping at

1:30 a.m. because it is very competitive and people often go out at 3:00 a.m. or 4:00 a.m.

Appellant even took the police to his home to show them the pile of scrap that he had that

he was waiting to deposit. Appellant also admitted that he dropped the hat and gloves,




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but explained that he had the gloves to avoid getting cut from the aluminum; the hat was

just something that he wore.

       {¶ 12} Following the presentation of testimony and evidence, the court found

appellant guilty. The court proceeded immediately to sentencing, and ordered appellant

to serve 180 days in jail, with 90 days suspended, and with credit for 90 days served. The

court required appellant to perform 50 hours of community service and pay a $250 fine

plus court costs. The court also ordered appellant to pay restitution to the victim for

damage to the siding, fence, and downspouts. However, no amount was specified. In its

subsequent, typed judgment entry on July 31, 2015, the trial court ordered “restitution to

the victim for the siding that was removed, fence and downspouts.”

       {¶ 13} Appellant has timely appealed the trial court’s judgment of conviction,

setting forth the following two assignments of error:

              1. Appellant’s conviction for house stripping is unsupported by

       sufficient evidence and is against the manifest weight of the evidence.

              2. The trial court erred in imposing restitution.

                                         Analysis

       {¶ 14} In his first assignment of error, appellant contends that his conviction is

based on insufficient evidence and is against the manifest weight of the evidence.

       {¶ 15} Insufficiency and manifest weight are distinct legal theories. “In essence,

sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a

verdict is a question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d




5.
541 (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.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 16} In contrast, when reviewing a manifest weight claim,

              The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       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. The discretionary

       power to grant a new trial should be exercised only in the exceptional case

       in which the evidence weighs heavily against the conviction. State v. Lang,

       129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting

       Thompkins at 387.

       {¶ 17} Former Toledo Municipal Code 541.14(a) provided,

              No person, without privilege to do so, shall knowingly dismantle

       and/or remove by any means, any fixtures, building or construction

       materials attached to, installed on, in, or over the interior or exterior of any

       new or existing vacant residential, commercial, industrial, accessory or

       other structure and the property on which the structure is sited.




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       {¶ 18} Here, appellant contends that there is no evidence showing that he

knowingly removed any property from the house. In fact, the only evidence suggesting

that a person removed property that night was a statement by the anonymous caller, and

the caller did not give a description of the alleged perpetrator. Furthermore, appellant

notes that no evidence was admitted showing the contents of the garbage can, no

evidence indicates that appellant touched anything in the garbage can or touched the

house, and no evidence demonstrates that the contents of the garbage can were at one

time on the house other than Holland’s and Haney’s assertions that the material looked

“consistent.”

       {¶ 19} Appellant argues that the circumstantial evidence of being present on the

scene, late at night, with work gloves is consistent with his explanation that he is a

legitimate scrapper, and thus is insufficient to support his conviction. In support of his

argument, appellant quotes State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990),

wherein the Ohio Supreme Court recognized that “Circumstantial evidence relied upon to

prove an essential element of a crime must be irreconcilable with any reasonable theory

of an accused’s innocence in order to support a finding of guilt.” However, the court

continued, “[O]nce the [trier of fact] has reached its decision, an appellate court, in a case

where circumstantial evidence is relied upon, will reverse only where the evidence is

insufficient as a matter of law to enable the [trier of fact] to exclude a reasonable

hypothesis of innocence.” Id. at 167-168, quoting State v. Graven, 54 Ohio St.2d 114,

119, 374 N.E.2d 1370 (1978).




7.
       {¶ 20} In this case, we do not find that the evidence is insufficient as a matter of

law to enable the trial court to exclude appellant’s explanation as a legitimate scrapper.

The evidence revealed that appellant’s presence at the location was related to the scrap

metal, that appellant was there around 2:00 a.m., that he was wearing all black and a

stocking cap in the middle of July, that he rode a bicycle to the location and did not drive

a truck to haul the material, that an anonymous call was received that two people were

taking downspouts off of a house in the middle of the night, that he fled when a car

approached him, and that while he was fleeing he dropped his work gloves and stocking

cap. We find that this evidence is consistent with the prosecution’s theory that appellant

was engaged in house stripping, and is sufficient to enable the trial court to exclude

appellant’s explanation that he was a legitimate scrapper as a reasonable alternative.

Moreover, we hold that the trial court did not lose its way, creating a manifest

miscarriage of justice, as this is not the exceptional case where the evidence weighs

heavily against the conviction.

       {¶ 21} Accordingly, because we hold that appellant’s conviction is based on

sufficient evidence and is not against the manifest weight of the evidence, appellant’s

first assignment of error is not well-taken.

       {¶ 22} In his second assignment of error, appellant argues that the court erred in

imposing restitution without specifying an amount, stating only that it was for “siding,

fence, [and] downspouts.” Appellant asserts that by ordering restitution without

specifying an amount he was deprived of the opportunity to request an evidentiary




8.
hearing to contest the amount of restitution. The state, for its part, concedes that the

restitution order was not properly granted, noting that the court did not hold a hearing on

the amount as required by R.C. 2929.28(A)(1).

       {¶ 23} R.C. 2929.28(A)(1) provides, in pertinent part,

              [T]he court imposing a sentence upon an offender for a

       misdemeanor * * * may sentence the offender to any financial sanction or

       combination of financial sanctions authorized under this section. * * *

       [T]he financial sanctions that may be imposed pursuant to this section

       include, but are not limited to, the following:

              (1) * * * [R]estitution by the offender to the victim of the offender’s

       crime or any survivor of the victim, in an amount based on the victim’s

       economic loss. * * *

              If the court imposes restitution, the court shall determine the amount

       of restitution to be paid by the offender. If the court imposes restitution, the

       court may base the amount of restitution it orders on an amount

       recommended by the victim, the offender, a presentence investigation

       report, estimates or receipts indicating the cost of repairing or replacing

       property, and other information, provided that the amount the court orders

       as restitution shall not exceed the amount of the economic loss suffered by

       the victim as a direct and proximate result of the commission of the offense.

       If the court decides to impose restitution, the court shall hold an evidentiary




9.
       hearing on restitution if the offender, victim, or survivor disputes the

       amount of restitution. If the court holds an evidentiary hearing, at the

       hearing the victim or survivor has the burden to prove by a preponderance

       of the evidence the amount of restitution sought from the offender.

       {¶ 24} Here, the trial court did not determine the amount of restitution to be paid

by appellant.3 Accordingly, appellant’s second assignment of error is well-taken.

                                        Conclusion

       {¶ 25} For the foregoing reasons, the judgment of the Toledo Municipal Court,

Housing Division, is affirmed, in part. The matter is remanded to the trial court for a

period of 30 days to determine the amount of restitution, and if that amount is disputed, to

conduct a hearing in accordance with R.C. 2929.28(A)(1). If the trial court fails to

determine an amount of restitution within that time, that portion of the sentence shall be

considered void. Appellant and the state are ordered to split the costs of this appeal

evenly pursuant to App.R. 24.


                                                                 Judgment affirmed, in part.




3
 The judgment entry also does not indicate the crime of which appellant was found
guilty.




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                                                                      Toledo v. Carter
                                                                      C.A. No. L-15-1128




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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