[Cite as State v. Vancleef, 2014-Ohio-2144.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                    :

                 Plaintiff-Appellant,             :
                                                                  No. 13AP-703
v.                                                :          (C.P.C. No. 13CR-01-0418)

Quentin Vancleef,                                 :        (REGULAR CALENDAR)

                 Defendant-Appellee.              :



                                          D E C I S I O N

                                       Rendered on May 20, 2014


                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellant.

                 Robert E. Cesner, Jr., for appellee.

                   APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.
        {¶ 1} Plaintiff-appellant, State of Ohio, appeals from the decision of the Franklin
County Court of Common Pleas, which dismissed defendant-appellee Quentin Vancleef's
indictment for domestic violence. For the following reasons, we reverse the decision of
the trial court and remand the matter for further proceedings.
I. BACKGROUND
        {¶ 2} On January 28, 2013, appellee was indicted on one count of domestic
violence, a third-degree felony, in violation of R.C. 2919.25. According to the indictment,
appellee was previously convicted of both domestic violence, in violation of R.C. 2919.25,
and criminal mischief, a third-degree misdemeanor, in violation of R.C. 2909.07,
involving a person who was a family or household member at the time of the violation.
No. 13AP-703                                                                             2


      {¶ 3} In the trial court, appellee filed a "Motion to Dismiss Indictment" and
argued because his conviction for criminal mischief did not involve the "risk of harm to a
person," there was no "victim," and, therefore, the conviction did not qualify to enhance
the degree of domestic violence from a misdemeanor offense to a felony offense of
domestic violence.    According to appellee, only first-degree misdemeanor criminal
mischief convictions, which include a risk of harm to a person, were intended to enhance
offenses of domestic violence. Appellee did not challenge that his prior conviction of
domestic violence qualifies as an enhancing offense under R.C. 2919.25(D)(3). Appellant
filed a response and argued that a "common sense reading of R.C. 2919.25 shows that the
enhancement part of the statute includes all of R.C. 2909.07, regardless of the degree of
misdemeanor." (Emphasis omitted.)
      {¶ 4} In granting appellee's motion to dismiss, the trial court agreed with the
reasoning of appellee and determined "Defendant's third degree misdemeanor conviction
for criminal mischief may not be used to enhance Defendant's domestic violence
indictment to a felony of the third degree." (Decision and Entry Granting Defendant's
Motion to Dismiss Indictment Filed April 8, 2013, 4.) This appeal followed.
II. ASSIGNMENTS OF ERROR
      {¶ 5} Appellant brings the following assignments of error for our review:
             [I.] The common pleas court erred in dismissing the charge of
             third-degree felony domestic violence based on its conclusion
             that defendant's prior conviction for criminal mischief could
             not serve as a cognizable prior conviction raising the degree of
             the offense.

             [II.] The common pleas court erred in dismissing the entire
             indictment when the court only should have dismissed the
             challenged prior-conviction allegation, thereby leaving in
             place the lesser-included offense of fourth-degree felony
             domestic violence.

III. DISCUSSION
      A. First Assignment of Error
      {¶ 6} Appellant's first assignment of error involves a question of statutory
interpretation, namely the application of R.C. 2925.19 and 2901.04(C).            Statutory
interpretation is a question of law that we review de novo. Aubry v. Univ. of Toledo Med.
No. 13AP-703                                                                              3


Ctr., 10th Dist. No. 11AP-509, 2012-Ohio-1313, ¶ 10, citing State v. Banks, 10th Dist. No.
11AP-69, 2011-Ohio-4252, ¶ 13.       The primary goal of statutory interpretation is to
determine and give effect to the General Assembly's intent in enacting the statute. Id. To
determine legislative intent, we first consider the statutory language in context,
construing the words and phrases according to rules of grammar and common usage.
Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, ¶ 16. However,
" ' "[w]here the language of a statute is plain and unambiguous and conveys a clear and
definite meaning there is no occasion for resorting to rules of statutory interpretation. An
unambiguous statute is to be applied, not interpreted." ' " Banks at ¶ 13, quoting State v.
Palmer, 10th Dist. No. 09AP-956, 2010-Ohio-2421, ¶ 20, quoting Sears v. Weimer, 143
Ohio St. 312 (1944), paragraph five of the syllabus.
       {¶ 7} Appellant asserts that the trial court erred in concluding appellee's
conviction for criminal mischief in violation of R.C. 2909.07 could not enhance the
offense of domestic violence. Specifically, appellant argues both that a conviction for
criminal mischief under R.C. 2907.09, no matter the degree of offense, qualifies to
enhance the offense of domestic violence and that a victim of third-degree misdemeanor
criminal mischief is a "victim" for purposes of R.C. 2919.25(D)(3).
       {¶ 8} In support of the trial court's decision, appellee argues that his conviction
for third-degree misdemeanor criminal mischief does not qualify as an enhancing offense
because R.C. 2901.04(C), a rule of statutory construction, requires a conviction that
enhances an offense of domestic violence to be "substantially equivalent" to said offense.
According to appellee, domestic violence and third-degree misdemeanor criminal
mischief are not substantially equivalent offenses because criminal mischief does not
involve the risk of physical harm to a person. Additionally, appellee claims because
victims of third-degree misdemeanor criminal mischief do not suffer a risk of physical
harm, they are not "victims" for purposes of R.C. 2919.25(D)(3).
       {¶ 9} R.C. 2919.25(A) entitled "Domestic Violence" provides "[n]o person shall
knowingly cause or attempt to cause physical harm to a family or household member."
Generally, a violation of R.C. 2919.25(A) is a first-degree misdemeanor. However, R.C.
2919.25(D)(4) provides that a violation of R.C. 2919.25(A) will be enhanced to a felony of
the third degree if:
No. 13AP-703                                                                              4


              [T]he offender previously has pleaded guilty to or been
              convicted of two or more offenses of domestic violence or two
              or more violations or offenses of the type described in division
              (D)(3) of this section involving a person who was a family or
              household member at the time of the violations or offenses.

       {¶ 10} Under R.C. 2919.25 (D)(3), "offenses" that enhance a violation of section (A)
to a higher offense include previous convictions for:
              [D]omestic violence, a violation of an existing or former
              municipal ordinance or law of this or any other state or the
              United States that is substantially similar to domestic
              violence, a violation of section 2903.14, 2909.06, 2909.07,
              2911.12, 2911.211, or 2919.22 of the Revised Code if the victim
              of the violation was a family or household member at the time
              of the violation.

(Emphasis added.)
       {¶ 11} R.C. 2909.07(A)(1), entitled "Criminal mischief," provides "[n]o person
shall: [w]ithout privilege to do so, knowingly move, deface, damage, destroy, or otherwise
improperly tamper with the property of another." R.C. 2901.04(C), a rule of statutory
construction, states:
              Any provision of a section of the Revised Code that refers to a
              previous conviction of or plea of guilty to a violation of a
              section of the Revised Code * * * shall be construed to also
              refer to a previous conviction of * * * a substantially
              equivalent offense under an existing or former law of this
              state, another state, or the United States or under an existing
              or former municipal ordinance.

       {¶ 12} We first address appellee's argument that, under R.C. 2901.04(C), a
conviction for third-degree misdemeanor criminal mischief cannot enhance the offense of
domestic violence because they are not substantially equivalent offenses. As stated above,
R.C. 2901.04(C) provides that a prior conviction under a now expired statute may still
qualify as an enhancing conviction if the prior offense is "substantially equivalent" to the
present version of said offense. Here, appellee was not convicted of criminal mischief
under a now expired statute. Indeed, appellee was convicted of criminal mischief in
violation of R.C. 2909.07, the present version of the criminal mischief statute. As such,
we find R.C. 2901.04(C) to be inapplicable.
No. 13AP-703                                                                             5


       {¶ 13} Because the plain and unambiguous language of R.C. 2919.25(D)(3) states
without qualification that a previous conviction in violation of R.C. 2909.07 enhances the
degree of domestic violence, we find appellee's prior conviction for third-degree
misdemeanor criminal mischief, in violation of R.C. 2909.07, qualifies to enhance the
offense of domestic violence from a first-degree misdemeanor to a third-degree felony.
       {¶ 14} We next address appellee's argument that, because a third-degree
misdemeanor violation of R.C. 2909.07 does not involve the risk of physical harm to a
person, there is no "victim" as required by R.C. 2919.25(D)(3).         R.C. 2919.25(D)(3)
provides, in relevant part, that a previous conviction for a violation of R.C. 2909.07 will
enhance the offense of domestic violence "if the victim of the violation was a family or
household member at the time of the violation."
       {¶ 15} This court has previously described a property owner as a "victim" of
criminal mischief in violation of R.C. 2909.07(A)(1). State v. Guade, 10th Dist. No. 11AP-
718, 2012-Ohio-1423, ¶ 1, 17. Several other Ohio courts have similarly described property
owners as "victims" of third-degree misdemeanor criminal mischief, in violation of R.C.
2909.07. See State v. Krutowsky, 8th Dist. No. 81545, 2003-Ohio-1731, ¶ 4; State v.
Saunders, 4th Dist. No. 13CA10, 2013-Ohio-3771, ¶ 1-2. These cases are consistent with
Black's Law Dictionary, which defines "victim" as "[a] person harmed by a crime, tort, or
other wrong." Black's Law Dictionary 1703 (9th Ed.2009).
       {¶ 16} Here, the trial court concluded that a victim of third-degree misdemeanor
criminal mischief did not meet the definition of "victim" for purposes of R.C.
2919.25(D)(3). In light of the definition of "victim" espoused by this court, as well as
several other Ohio courts, we find that victims of third-degree misdemeanor criminal
mischief are "victims" for purposes of R.C. 2919.25(D)(3).
       {¶ 17} Having found both that a third-degree criminal mischief conviction qualifies
to enhance a charge of domestic violence and that victims of third-degree criminal
mischief are "victims" for purposes of R.C. 2919.25, we find the trial court erred in
concluding that appellee's criminal mischief conviction cannot enhance the offense of
domestic violence.
       {¶ 18} Accordingly, appellant's first assignment of error is sustained.
No. 13AP-703                                                                             6


      B. Second Assignment of Error
      {¶ 19} Our disposition of appellant's first assignment of error renders appellant's
second assignment of error moot.
IV. CONCLUSION
      {¶ 20} For the foregoing reasons, appellant's first assignment of error is sustained,
and appellant's second assignment of error is rendered moot. The judgment of the
Franklin County Court of Common Pleas granting the motion to dismiss indictment is
reversed, and this matter is remanded to that court for further proceedings.
                                                    Judgment reversed; cause remanded.

                          BROWN and DORRIAN, JJ., concur.
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