[Cite as State v. Cooke, 2016-Ohio-3445.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JENNIFER COOKE                               :       Case No. 15-CA-50
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Municipal Court, Case No.
                                                     15CRB00778




JUDGMENT:                                            Affirmed in part, Vacated in part
                                                     Final judgment entered




DATE OF JUDGMENT:                                    June 13, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TRICIA M. MOORE                                      MICHAEL R. DALSANTO
Assistant Law Director                               3 South Park Place, Suite 220
40 W. Main Street                                    Newark, Ohio 43055
Newark, Ohio 43055
Licking County, Case No. 15-CA-50                                                        2




Baldwin, J.

      {¶1}    Appellant Jennifer Cooke appeals a judgment of the Licking County

Municipal Court convicting her of criminal mischief (R.C. 2909.07(A)(1)) and disorderly

conduct while intoxicated (R.C. 2917.11(B)(1)). Appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On May 7, 2015, appellant ran up and down Mound Street and Mound Court

in Newark, Ohio, rapping and dancing. She jumped from one porch to another. Her

behavior frightened several children.

      {¶3}    Joseph Green was working on the brakes of a vehicle. When he said

something about the measurements of the sockets, she would incorporate the numbers

into her rap lyrics, and would use parts of what she heard other people saying in her

songs. At about 10:30 p.m., appellant beat on Green’s door. His 13-year-old daughter

was frightened by appellant’s behavior.

      {¶4}    Police arrived and Officer William Evans located appellant at her mom’s

residence. She had removed a curtain from a common area of her mom’s apartment

building and was wearing it as a cape, while rapping to the police about the state stealing

her innocence and about her husband, who had passed away. Officer Evans could smell

alcohol on appellant, and she did not appear to be “all there” when he tried to

communicate with her. Tr. 25. Police handcuffed her and transported her to the police

station. She continued her rapping while in the cruiser.

      {¶5}    Appellant was charged with criminal mischief, falsification, and disorderly

conduct while intoxicated. The case proceeded to bench trial. In closing argument, the
Licking County, Case No. 15-CA-50                                                             3


State conceded that the evidence did not support the charge of criminal mischief. The

court found appellant not guilty of falsification and guilty of criminal mischief and disorderly

conduct. The court specifically found as to criminal mischief that appellant tampered with

property by being on it, and being a distraction and a nuisance. She was sentenced to

sixty days incarceration for criminal mischief and thirty days incarceration for disorderly

conduct, to be served consecutively, and fined $50.00 on each conviction.

       {¶6}   Appellant assigns two errors:

       {¶7}   “I. THE TRIAL COURT’S RULING THAT THE APPELLANT COMMITTED

CRIMINAL MISCHIEF IN VIOLATION OF SECTION 2909.07(A)(1) OF THE REVISED

CODE IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       {¶8}   “II.   THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO

SUA SPONTE MERGE THE DISORDERLY CONDUCT AND CRIMINAL MISCHIEF

CONVICTIONS BECAUSE THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT.”

                                                  I.

       {¶9}   In her first assignment of error, appellant argues that the judgment

convicting her of criminal mischief is against the manifest weight and sufficiency of the

evidence.

       {¶10} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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,

paragraph two of the syllabus (1991). In determining whether a verdict is against the

manifest weight of the evidence, the appellate court reviews the entire record, weighs the
Licking County, Case No. 15-CA-50                                                          4


evidence and all reasonable inferences, considers the credibility of witnesses, and

determines whether in resolving conflicts in 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.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52,

678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1983).

       {¶11} Appellant was convicted of criminal mischief as defined by R.C.

2909.07(A)(1):

       {¶12} “(A) No person shall:

       {¶13} “(1) Without privilege to do so, knowingly move, deface, damage, destroy,

or otherwise improperly tamper with the property of another[.]”

       {¶14} In State v. Maxwell, 9th Dist. Medina No. 1646, 1988 WL 38075 (April 13,

1988), a juvenile was found delinquent by reason of criminal mischief when he was

observed in the parking lot of the courthouse placing his hands on car windows and

looking inside. He was also observed attempting unsuccessfully to open several vehicles.

In reversing the finding of delinquency, the court held:

              In R.C. 2909.07(A)(1), the general words “otherwise improperly

       tamper” are proceeded by the much more specific terms “move, deface,

       damage, destroy.” Consequently, the rule of statutory construction known

       as ejusdem generis applies. In explaining this rule, the Supreme Court of

       Ohio has stated:

              “Under the rule of ejusdem generis, where in a statute terms are first

       used which are confined to a particular class of objects having well-known
Licking County, Case No. 15-CA-50                                                        5


      and definite features and characteristics, and then afterwards a term having

      perhaps a broader signification is conjoined, such latter term is, as indicative

      of legislative intent, to be considered as embracing only things of a similar

      character as those comprehended by the preceding limited and confined

      terms.”

             State v. Aspell (1967), 10 Ohio St.2d 1, paragraph two of the

      syllabus. See, also, Light v. Ohio University (1986), 28 Ohio St.3d 66, 68.

      Applying ejusdem generis to R.C. 2909.07(A)(1), we conclude that a

      showing of some change in either the physical location or physical condition

      of the property is necessary to sustain a conviction under the statute. This

      interpretation is in accord with the facts present in other decisions

      addressing R.C. 2909.07(A)(1). See, e.g., State v. Isaac (1975), 44 Ohio

      Misc. 87 (door of unattended vehicle forced open with metal instrument);

      State v. Kidwell (Mar. 18, 1981) Clermont App. Nos. 925/927, unreported

      (deep tire marks created in the yard of another); State v. Evans (May 26,

      1982), Hamilton App. No. C-810495, unreported (hose smelling of gasoline

      found near vehicle with gas tank cap about to fall off).

      In the case sub judice, the testimony of the state's witnesses indicates that

      Maxwell merely peered into the vehicles in controversy and tried the door

      handles. There is no indication that Maxwell attempted to force open the

      locked doors and the evidence clearly indicates that Maxwell did nothing to

      change the location or condition of the vehicles. Consequently, the evidence
Licking County, Case No. 15-CA-50                                                         6


       was insufficient to sustain Maxwell's conviction of violating R.C.

       2909.07(A)(1).

       {¶15} Id.

       {¶16} In State v. Collier, 2nd Dist. Montgomery No. 22686, 2010-Ohio-4039, the

defendant was convicted of criminal mischief after he placed a handwritten note on a

neighbor’s trash can, and secured it by placing a stick on top of the note. In reversing his

conviction for criminal mischief, the Court of Appeals for the Second District cited Maxwell

and concluded that there was no evidence that Collier had “tampered” with the trash can:

              The Adkins' trash can was not altered nor rendered “unfit” for use as

       found by the trial court. The trash can was not permanently altered or

       otherwise defaced. While Collier should have utilized a more appropriate

       and tactful approach to resolve any dispute with his neighbors, the record

       does not support Collier's conviction for criminal mischief pursuant to R.C.

       2909.07(A)(1).

       {¶17} Id. at ¶24.

       {¶18} In the instant case, there is no evidence that appellant in any way tampered

with the property of another as defined by the statute. Although the officer testified that

she was wearing a cape made from a curtain taken from the common area of her mother’s

apartment building, there was no evidence presented as to the ownership of the curtain

or whether she had permission to use the curtain.

       {¶19} The State argues that unlike cars or trash cans, there is a sanctity to one’s

dwelling that not only covers the tangible property, but also the right to enjoyment and

safety while in one’s home. The State therefore argues that her presence on Green’s
Licking County, Case No. 15-CA-50                                                          7


porch, frightening his daughter, created a change in the physical condition of the home,

even if only temporarily. We disagree. Had the legislature intended to create a difference

in the definition of criminal mischief to protect the sanctity of one’s home, they could have

done so in the language of the statute. Further, the disturbance, annoyance, and alarm

her behavior caused to the people in the neighborhood was punished by her disorderly

conduct conviction, which she does not challenge as against the weight or sufficiency of

the evidence. There is no evidence to support the court’s finding that she damaged or

altered the condition of the porches on which she was jumping.

       {¶20} The first assignment of error is sustained.

       {¶21} Appellant’s second assignment of error is rendered moot by our disposition

of the first assignment of error.
Licking County, Case No. 15-CA-50                                                     8


      {¶22} Appellant’s conviction and sentence for disorderly conduct while intoxicated

is affirmed.   Appellant’s conviction and sentence for criminal mischief is vacated.

Pursuant to App. R. 12(B), we hereby enter final judgment of acquittal on the charge of

criminal mischief. Costs are assessed to appellee.

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
