[Cite as State v. Pontious, 2014-Ohio-3394.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 13-CA-00016
BRYAN D. PONTIOUS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Perry County Court of
                                               Common Pleas, Case No. CRB 1300273


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         August 1, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


NANCY NASH RIDENOUR                            SONYA S. MARSHALL
Assistant Prosecuting Attorney                 PO Box 509
PO Box 569                                     Logan, Ohio 43138
New Lexington, Ohio 43764
Perry County, Case No. 13-CA-00016                                                     2

Hoffman, P.J.

      {¶1}   Defendant-appellant Bryan D. Pontious appeals his conviction entered by

the Perry County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   Appellant’s parents, Geraldine and Pearl Pontious, owned real property

operated as a family farm in Perry County, Ohio, at 12277 Township Rd. N.E.,

Crooksville, Ohio 43731. Following the death of Pearl Pontious, Appellant’s father,

Geraldine Pontious executed a will providing for the disposition of her estate, including

the family farm. Geraldine Pontious died on April 9, 2012.

      {¶3}   Geraldine and Pearl Pontious had five children. Before Geraldine’s death,

part of the family farm was transferred and titled to Daniel Pontious to use as a

residence. The property owned by Daniel is surrounded on all sides by the family farm.

      {¶4}   Upon Geraldine’s death, Geraldine’s will provided all of Geraldine’s

property, including the family farm, was devised to: Robert Pontious, Bryan Pontious,

Mark Pontious, Deborah Casto and Jason Pontious, per stirpes. Daniel Pontious was

not mentioned in the devise, due to the previous transfer of real estate.

      {¶5}   Located on the family farm is an underground water well, located in a

"pump house" on the property, behind the family farm house. Daniel drilled the well and

used water from the well to provide water to his house trailer. In order to use the water

from the well, Daniel purchased and installed a pressure tank on the water well. Neither

the water well, the pump house, or the pressure tank are located on Daniel’s property.

Daniel used the water well to provide water to his residence for twenty years.
Perry County, Case No. 13-CA-00016                                                    3


      {¶6}   Daniel also tied into a gas line from an oil well located on the farm

property. The gas line was located in one of the outbuildings on the farm property, and

Daniel utilized the gas line to heat his home. He installed gas valves and a gas line to

provide gas to his property from the farm property.

      {¶7}   On May 31, 2013, an argument occurred between Appellant and Daniel,

resulting in Appellant causing damage to the pressure tank, the gas valves, the handles

and stems to the valves and the gas line leading to Daniel’s residence. Appellant shut

the gas line off and sawed off the handles and a section of gas line leading to Daniel’s

property. Appellant shot at the water pressure tank with a shot gun. The damage

resulted in Daniel’s residence having no heat or water.

      {¶8}   As a result of the incident, a complaint was filed against Appellant

charging criminal damaging in violation of R.C. 2909.06. The matter proceeded to a

trial to the court, and Appellant was found guilty on December 20, 2013.

      {¶9}   Appellant appeals his conviction, assigning as error:

      {¶10} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT THE DEFENDANT DAMAGED THE PROPERTY OF ANOTHER IN VIOLATION

OF §2909.06 OF THE OHIO REVISED CODE.

      {¶11} "II. THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED AT TRIAL

TO SUSTAIN THE COURT'S FINDING OF GUILT.

      {¶12} "III. THE DEFENDANT-APPELLANT'S CONVICTION IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."
Perry County, Case No. 13-CA-00016                                                    4


                                         I., II., and III.

      {¶13} Appellant’s assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

      {¶14} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) (stating that “sufficiency is

a test of adequacy”); State v. Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991).

The standard of review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution, any rational

trier of fact could have found all the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492. Furthermore, a reviewing

court is not to assess “whether the state's evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.” Thompkins, 78

Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring).

      {¶15} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate

court must construe the evidence in a light most favorable to the prosecution. State v.

Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d

465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a

sufficiency-of-the-evidence claim unless reasonable minds could not reach the

conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749

N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
Perry County, Case No. 13-CA-00016                                                          5


       {¶16} When an appellate court considers a claim that a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record,

weigh the evidence, and consider witness credibility. A reviewing court must bear in

mind, however, that credibility generally is an issue for the trier of fact to resolve. E.g.,

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio

St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Once

the reviewing court finishes its examination, the court may reverse the conviction only if

it appears that the fact-finder, when resolving the conflicts in evidence, “ ‘clearly lost its

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

reversed and a new trial ordered.' " Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶17} If the prosecution presented substantial evidence upon which the trier of

fact reasonably could conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction is not against the

manifest weight of the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132

(1978), syllabus. Generally, a reviewing court should find a conviction against the

manifest weight of the evidence only in the “ ‘exceptional case in which the evidence

weighs heavily against the conviction.' " Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717; accord State v. Lindsey,

87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

       {¶18} Appellant was convicted of criminal damaging, in violation of R.C.

2909.06, a misdemeanor of the second degree.

       {¶19} The statute reads in pertinent part,
Perry County, Case No. 13-CA-00016                                                          6


       {¶20} "(A) No person shall cause, or create a substantial risk of physical harm to

any property of another without the other person's consent:

       {¶21} "(1) Knowingly, by any means;"

       {¶22} Appellant asserts he did not damage the property of another; rather,

damaged property he himself owned because the items Daniel placed onto the family

farm became fixtures of which Appellant was part owner.

       {¶23} In Funtime, Inc. v. Wilkins 105 Ohio St.3d 74, 80, 822 N.E.2d 781, 786 -

787, 2004-Ohio-6890, the Ohio Supreme Court held,

       {¶24} "Although     we    previously    abandoned      any   consideration    of   the

appropriation-to-use test set forth in Teaff, 1 Ohio St. 511, 1853 WL 54, for classifying

property, the General Assembly has reinstated that test for determining whether a

structure is real or personal property. R.C. 5701.02(E) requires a decision as to whether

the item 'increases or enhances utilization or enjoyment of the land.' Language similar

to that now found in R.C. 5701.02(E) was used by this court in Zangerle, 144 Ohio St. at

515, 30 O.O. 151, 60 N.E.2d 52, wherein we stated:

       {¶25} “'The second requisite of the test of a fixture [real property] is that the

annexed chattel must have such relationship to the land or improvements already

constructed thereon as to be necessary or beneficial to its enjoyment, independent of

the business presently carried on. To illustrate, a silo constructed on a farm is a fixture

[citation omitted]; a heating furnace installed in a residence property is a fixture [citation

omitted]; and motive-power equipment in a mill is likewise a fixture [citation omitted].

Those are fixtures because they would be beneficial, if not necessary, to the use of the
Perry County, Case No. 13-CA-00016                                                    7

land and the structures already placed thereon regardless of the nature of the business

which might be located on such land.” (Emphasis added.)

      {¶26} Here, the pressure tank and gas valves installed on the farm property by

Daniel Pontious did not provide a benefit to the family farm property and were not

necessary to the use of the family farm property or the structures already placed

thereon. Rather, the benefit derived from the pressure tank installed on the water well

and the gas valves and gas line providing water and gas to heat Daniel Pontious'

property, provided a benefit to and were necessary only to the use of Daniel's property.

Accordingly, we find the same were not fixtures and remained Daniel's property.

      {¶27} Appellant's first, second and third assignments of error are overruled.

      {¶28} Appellant's conviction in the Perry County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
