[Cite as State v. Baldwin, 2011-Ohio-4988.]


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

STATE OF OHIO                                       C.A. No.       10CA0078-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BENJAMIN BALDWIN                                    WADSWORTH MUNICIPAL COURT
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   07CRB00833-A

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2011



        MOORE, Judge.

        {¶1}     Appellant, Benjamin Baldwin, appeals the judgment of the Wadsworth Municipal

Court. This Court affirms.

                                               I.

        {¶2}     On the evening of August 16, 2007, Anthony Maroni drove his father’s F-150

long-bed truck, which was licensed to his mother, to Amber Baldwin’s home on College Street

in the City of Wadsworth. He arrived around 11:45 p.m. and parked in back of the residence.

He testified that the truck was in “perfect” condition and that there was “nothing wrong with it”

when he arrived. Anthony had met Amber a few days earlier at T Bar in Wadsworth. When he

arrived at her home he found Amber, as well as the appellant, Benjamin Baldwin, and Baldwin’s

friend, Eric, inside of the residence. Amber is Benjamin’s sister. Anthony had never met

Baldwin or Eric before that night. Amber took a shower shortly after Anthony arrived and got
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ready to “hang out.” Anthony, Amber, Baldwin, and Eric listened to music and drank beer in the

residence.

        {¶3}     A few hours later, Baldwin went to the basement to do his laundry. Around 2:30

a.m., Anthony walked down to the truck to get some CDs. While walking up the exterior stairs

to return to the residence, he saw a red spot on the wall near the top stair. He touched the spot

and concluded that it was wet paint. At that time, Amber and Eric were in the living room.

Anthony showed the red spot to Amber and they decided to clean the wall to avoid getting in

trouble with Amber’s landlord. They then noticed five to six red droplets of paint on the second

or third step.

        {¶4}     After cleaning the wall, Anthony and Amber returned to the residence. Upon

entering Amber’s bedroom, they found Baldwin in the shower. When Baldwin stuck his head

out of the shower to tell Amber he was in the shower, Anthony saw that Baldwin had red paint

on his shoulder and back. Anthony and Amber spent the remainder of the evening in her

bedroom. They awoke around 1:00 p.m. the next day, and Amber found a note allegedly from

Baldwin. The note purportedly read: “Amber, me and Eric left. We will be back. I have to

work at 5:00. And tell your new boyfriend that something happened to his truck last night and I

stepped in it. That’s why I had tracked red paint all over.”

        {¶5}     After reading the note, Anthony testified that he ran straight to the truck and

found the cap sliding window smashed, red paint all throughout the bed of the truck, and a red

paint can next to the truck. Anthony called the police and the police arrived on scene to

investigate. Anthony hand-wrote a purported copy of the note into the police report. The police

took a series of photographs of the truck, a spot of red paint on the doorjamb to the basement and

on the basement floor. There was red paint by the lock on the basement door. There were paint
                                               3


cans on shelves in the basement, one of which appeared to be similar to the paint can outside of

his truck, but in a different color. Red paint also appeared in the shower and on a towel in

Amber’s bathroom. Anthony testified that he found a white t-shirt in the bathroom that was

“dripping” with red paint. He further testified that Baldwin had been wearing a white t-shirt at

the beginning of the night. Anthony testified that he had not given anyone permission to damage

the truck. After his father found out about the damage, Anthony was no longer allowed to drive

the truck.

       {¶6}   On August 20, 2007, a complaint was filed against Baldwin in the Wadsworth

Municipal Court for Criminal Damaging, a violation of R.C. 2909.06(A)(1). On February 19,

2010, Baldwin pled not guilty and the case was tried to a jury on April 29, 2010. On April 30,

2010, the jury found Baldwin guilty of criminal damaging. On June 11, 2010, Baldwin was

sentenced to a total of 60 days in jail, which was suspended, one year of probation, 24 hours of

community service, court costs, and restitution to Anthony in the amount of $1,100.

       {¶7}   Baldwin timely filed a notice of appeal. He raises two assignments of error for

our review.

                                               II.

                                ASSIGNMENT OF ERROR I

       “THE STATE VIOLATED THE DUE PROCESS CLAUSE OF THE
       FOURTEENTH AMENDMENT WHEN IT FAILED TO PROVE BEYOND A
       REASONABLE DOUBT THAT THE PROPERTY OWNER DID NOT
       CONSENT TO THE PROPERTY DAMAGE FOR THE CRIME OF CRIMINAL
       DAMAGING PURSUANT TO R.C. 2909.06(A).”

       {¶8}   In his first assignment of error, Baldwin essentially argues that there was

insufficient evidence to support the crime of criminal damaging because the State failed to prove

that the property owner did not consent to the damage. We do not agree.
                                                 4


       {¶9}    When considering a challenge to the sufficiency of the evidence, the court must

determine whether the prosecution has met its burden of production. To determine whether the

evidence in a criminal case was sufficient to sustain a conviction, an appellate court must view

that evidence in a 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 crime proven
       beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph
       two of the syllabus.

       {¶10} In State v. Brewer, “[t]he Ohio Supreme Court emphasized that the interest in the

administration of justice dictates that the appellate court review the issue of sufficiency in

consideration of all evidence presented by the state in its case in chief, whether such evidence

was properly admitted or not.” State v. Freitag, 185 Ohio App.3d 580, 2009-Ohio-6370, at ¶9,

citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, at ¶19.

       {¶11} Baldwin was convicted of criminal damaging, a violation of R.C. 2909.06(A),

which states that “[n]o person shall cause, or create a substantial risk of physical harm to any

property of another without the other person’s consent[.]” Baldwin maintains that the State

failed to prove lack of consent because the property owner, Rhonda Maroni, did not testify.

       {¶12} The facts indicate that Rhonda’s son, Anthony Maroni, testified in the State’s

case-in-chief. He was the complainant in this action, and had possession of the truck throughout

the evening of the night in question. When asked how he arrived at the residence where the

damage purportedly took place, he responded, “I drove my truck.” After further questioning, he

clarified that it was his father’s truck, and that the title was in his mother’s name. Anthony

testified that he did not give anyone permission to damage the truck. He also testified that after
                                                 5


this event, his father “took the truck away from [him]” and that he was “without a vehicle for

over a year[.]”

       {¶13} Baldwin cites Akron v. Garrett, 9th Dist. No. 24412, 2009-Ohio-1522, to support

his contention that the owner of the vehicle in a criminal damaging action must testify regarding

consent. That case, however, is distinguishable on its facts. There, the defendant was convicted

of criminal damaging for throwing rocks at the surveillance cameras of a bar. Id. at ¶3-5. The

State only presented the testimony of bartenders at the establishment, and the responding officer.

Id. at ¶10. The proprietor of the bar was not called to testify. See id. at ¶12. This Court

concluded that “the State failed to produce any evidence as to the additional element of consent.”

Id. at ¶10. No argument was made that the bartenders had sufficient property interests in the

cameras to protect them against criminal damaging.

       {¶14} However, this Court has previously held that “the right of possession alone is a

sufficient property interest to protect one against the crime of criminal damaging.” State v.

Garber (1998), 125 Ohio App.3d 615, 617. See also, State v. Russell (1990), 67 Ohio App.3d

81, 85 (concluding that “possession of a vehicle is a sufficient property interest to protect one

against the crime of criminal mischief”); Dayton v. Wells (May 29, 1992), 2d Dist. No. 12862

(holding that “[t]here is no merit to the position that only the actual owner * * * may assert the

damage or indicate the lack of consent to the unlawful act of appellant. As in the [criminal

damaging] statute, the city ordinance prohibits damaging the proper[ty] of ‘another.’ This

language includes all lesser degrees of possessory rights.”).

       {¶15} In addition, lack of consent to damage may be proved by circumstantial evidence.

State v. Maust (1982), 4 Ohio App.3d 187, 188-89 (noting that “the gravamen of the complaint is

not directed to one who is the owner of a motor vehicle which has been damaged. The statute
                                                 6


deals with ‘physical harm to any property of another.’ R.C. 2909.06. Although not necessary to

the issue raised in this case, it can be argued that a right of possession is a sufficient ‘property’

interest to protect one against the crime of criminal damaging.”). In Maust, the victim had taken

possession of the vehicle on the day of the alleged criminal damaging, but did not receive title

until six days later. Id. at 188. The court concluded that it was not necessary to produce title of

ownership to maintain the action, and that the circumstantial evidence demonstrated lack of

consent by the victim. Id. at 188-89. See also, State v. Stout (Apr. 16, 1997), 9th Dist. No.

96CA0038.

       {¶16} The Tenth District, in In re Glenn (Aug. 16, 1979), 10th Dist. No. 79AP-239,

allowed the husband of the automobile owner to testify in a criminal damaging action that he had

not given permission to anyone to damage the automobile, and to his knowledge his wife had not

either. Id. at *2. The court did not require the record of title holder to testify as to her consent.

Instead, the court acknowledged that the court could “further find from the circumstantial

evidence that the owner of the automobile did not give consent to the damage of the automobile

in view of all the circumstances.” Id. See also, Cleveland v. Bacsa (Oct. 29, 1998), 8th Dist. No.

73519, at *6 (holding that the woman in possession of the vehicle had “a sufficient property

interest to protect one against criminal damaging” and thus allowed the defendant, who in fact

owned the vehicle in question, to be convicted of criminal damaging).

       {¶17} In this case, there was circumstantial evidence that allowed the jury to conclude

that the damage to the vehicle was done without the consent of the owner. The son of the vehicle

owner testified that he was in possession of the vehicle and that he did not consent to the

damage. As soon as he discovered the damage to the vehicle, he immediately reported it to the

police. He further testified that once his parents discovered the damage, they took away his
                                                 7


rights to the vehicle. Circumstantial and direct evidence “possess the same probative value[.]”

Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “Furthermore, if the State relies on

circumstantial evidence to prove any essential element of an offense, it is not necessary for ‘such

evidence to be irreconcilable with any reasonable theory of innocence in order to support a

conviction.’” (Internal quotations omitted.) State v. Tran, 9th Dist. No. 22911, 2006-Ohio-4349,

at ¶13, quoting State v. Daniels (June 3, 1998), 9th Dist. No. 18761, at *2.

       {¶18} After viewing the evidence in the light most favorable to the State, we conclude

that the trier of fact could reasonably find that the State met its burden of production and

presented sufficient evidence to prove that Baldwin caused harm to the property of another

without the other person’s consent. Accordingly, his first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED
       THE STATE TO USE UNAUTHENTICATED HEARSAY EVIDENCE IN
       VIOLATION OF OHIO RULE OF EVIDENCE 801.”

       {¶19} In his second assignment of error, Baldwin argues that the trial court committed

plain error by admitting the contents of the note from Baldwin. We disagree.

       {¶20} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” Plain error is only

to be noticed “under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. “This Court

will apply Crim. R. 52(B) only if it appears on the face of the record that an error was

committed, and the result of the trial clearly would have been different but for the alleged error.”

State v. Dent, 9th Dist. No. 20907, 2002-Ohio-4522, at ¶6, citing State v. Bock (1984), 16 Ohio

App.3d 146, 150.
                                                 8


       {¶21} Baldwin argues that the trial court committed plain error by admitting the contents

of the note allegedly written by him because the “State [] relied heavily on the note during trial to

tie the circumstantial facts of the case together and implicate [] Baldwin.” In particular, “the

contents of the note placed [] Baldwin in contact with the paint which damaged [the vehicle.]”

Because there was direct evidence that connected him to the paint, i.e., Anthony’s testimony that

he saw red paint on Baldwin’s shoulder and back, the admission of the note as circumstantial

evidence connecting him to the paint did not prejudice him. Any error would be harmless.

Accordingly, his second assignment of error is overruled.

                                                III.

       {¶22} Baldwin’s assignments of errors are overruled. The judgment of the Wadsworth

Municipal Court is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

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

Municipal Court, County of Medina, 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.

       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(E). 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.
                                               9


       Costs taxed to Appellant.




                                                    CARLA MOORE
                                                    FOR THE COURT



CARR, J.
CONCURS

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶23} I concur in the judgment. In my view, Mr. Maroni’s testimony that he was in

possession of his mother’s truck and that he did not give permission for someone to damage it

satisfied the permission element of R.C. 2909.06(A)(1). Accordingly, I believe the majority’s

discussion of circumstantial evidence is unnecessary.


APPEARANCES:

J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for
Appellant.

PAGE C. SCHROCK, III, Attorney at Law, for Appellee.
