[Cite as State v. Ballinger, 2013-Ohio-2274.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                                BUTLER COUNTY




STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :     CASE NO. CA2012-10-207

                                                      :          OPINION
    - vs -                                                        6/3/2013
                                                      :

ROBERT BALLINGER,                                     :

        Defendant-Appellant.                          :



                  CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
                                Case No. 12CRB03023



Geoffrey A. Modderman, Hamilton City Prosecutor, 345 High Street, 7th Floor, Hamilton,
Ohio 45011, for plaintiff-appellee

Fred Miller, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Robert Ballinger, appeals his conviction and sentence in

the Hamilton Municipal Court for one count of criminal damaging.

        {¶ 2} During the evening hours of August 22, 2012, George Roberson observed

Ballinger on the sidewalk in front of the home of Lynn Sauceda, Ballinger's neighbor.

Ballinger, who was visibly intoxicated, approached Sauceda's residence and began knocking

loudly on her door. Sauceda yelled for Ballinger to leave, at which point, Ballinger began
                                                                         Butler CA2012-10-207

taking off his clothes. Ballinger's mother heard the commotion and yelled for Ballinger to

return home.

       {¶ 3} Approximately five to ten minutes after Ballinger left Sauceda's door, Roberson

witnessed Ballinger exit his home, take out a knife, and drag it along the fender of Sauceda's

Lincoln Navigator, leaving a large gouge the full length of the fender. Sauceda's vehicle,

which was parked on the street, was illuminated by two street lights so that Roberson was

able to clearly identify Ballinger as the offender.

       {¶ 4} Officer John Habig responded to the scene, at which time, Sauceda's neighbors

told him that they had seen Ballinger scratch the vehicle. Officer Habig began to question

Ballinger, and Ballinger stated that he had not done anything to "that car," even though

Officer Habig had not yet mentioned that he had been dispatched because of the scratch to

Sauceda's vehicle.

       {¶ 5} Ballinger was charged with one count of criminal damaging. The municipal

court held a bench trial at which Roberson, Sauceda, Officer Habig, and Ballinger testified.

The trial court found Ballinger guilty and sentenced him to 90 days in jail with credit for thirty

days served. Ballinger now appeals his conviction and sentence, raising the following

assignment of error.

       {¶ 6} IT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO CONVICT

SOMEONE OF CRIMINAL DAMAGING WHEN THE ONLY WITNESS TO THE DAMAGING

HAS HAD A HISTORY OF BAD BLOOD WITH THE DEFENDANT, THE LIGHTING IN THE

AREA WAS POOR, NO KNIFE THAT WAS SUPPOSEDLY USED FOR DAMAGING WAS

EVER FOUND, AND THE DEFENDANT ADAMANTLY DENIES HIS INVOLVEMENT.

       {¶ 7} Ballinger argues that his conviction for criminal damaging was against the

manifest weight of the evidence.

       {¶ 8} A manifest weight challenge examines the inclination of the greater amount of
                                               -2-
                                                                          Butler CA2012-10-207

credible evidence, offered at a trial, to support one side of the issue rather than the other.

State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298.

              In determining whether a conviction is against the manifest
              weight of the evidence, the court, reviewing the entire record,
              weighs the evidence and all reasonable inferences, considers
              the credibility of the 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.

State v. Cummings, 12th Dist. No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.

       {¶ 9} While appellate review includes the responsibility to consider the credibility of

witnesses and weight given to the evidence, "these issues are primarily matters for the trier of

fact to decide since the trier of fact is in the best position to judge the credibility of the

witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. No. CA2006-

04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a conviction due to

the manifest weight of the evidence only in extraordinary circumstances to correct a manifest

miscarriage of justice, and only when the evidence presented at trial weighs heavily in favor

of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386, (1997).

       {¶ 10} Ballinger was convicted of criminal damaging in violation of R.C. 2909.06(A)(1),

which states, "no person shall cause, or create a substantial risk of physical harm to any

property of another without the other person's consent: Knowingly, by any means." Ballinger

asserts that his conviction was against the manifest weight of the evidence because the state

failed to offer the testimony of an unbiased witness to establish that he caused physical harm

to Sauceda's vehicle. However, after reviewing the record, we do not find that the trial court

lost its way in determining that Ballinger caused physical harm to Sauceda's vehicle.

       {¶ 11} Sauceda testified that she owns a 2004 Lincoln Navigator and that prior to the

night of the incident, the vehicle did not have a scratch on it. Sauceda further testified that

after she was informed of the incident by her neighbors, she observed a large scratch on her
                                                -3-
                                                                       Butler CA2012-10-207

vehicle's front fender. Sauceda testified that she did not give Ballinger permission to scratch

her vehicle.

       {¶ 12} The state also presented the testimony of Roberson, who stated that on the

night of the incident, he saw Ballinger approach Sauceda's door, knock on it loudly, and then

begin disrobing after she told him to leave. Roberson testified that he yelled to Ballinger to

put his clothes back on because there were children present in the neighborhood, and that

Ballinger's mother told him to come back home. Roberson testified that he observed

Ballinger leave Sauceda's door and return minutes later, at which time, Ballinger removed a

knife from his pocket and began dragging it along the fender of Sauceda's vehicle. Roberson

testified that he called the police because he was worried that Ballinger, who Roberson

stated was "drunk", would harm someone. During cross-examination, Roberson testified that

he was able to clearly see and identify Ballinger because there are two street lights on either

side of where Sauceda's vehicle was parked.

       {¶ 13} Officer Habig testified that when he first observed Ballinger, Ballinger was

"pretty heavily intoxicated," and that Ballinger told him that he did not do anything to the car

even though the officer had not yet spoken to Ballinger about the damage to Sauceda's

vehicle. Officer Habig testified that Ballinger was arrested and searched, and that while no

knifes were found on Ballinger's person, Ballinger had been in his home between the time of

the criminal damaging and the time of arrest.

       {¶ 14} Ballinger testified in his own defense. He denied having gone to Sauceda's

door and disrobing, and also denied having a knife or damaging Sauceda's vehicle. Ballinger

testified that Roberson fabricated the story about damaging the vehicle because Roberson

had a vendetta against him because he played his stereo too loudly.

       {¶ 15} Given the trial court's guilty verdict, it found Ballinger's testimony lacking in

credibility, and the state's witnesses credible. In fact, the trial court stated that in its
                                              -4-
                                                                         Butler CA2012-10-207

estimation, Roberson was "a hundred percent honest * * * nothing that was brought out on

cross made me think that his testimony was anything other than a hundred percent true* * *."

As the trial court was in the best position to judge the credibility of the witnesses, we will not

question the trial court's specific finding that Roberson was credible and that there was no

indication that he had a vendetta against Ballinger that caused him to concoct a story that

Ballinger scratched Sauceda's vehicle.

       {¶ 16} Having found that the trial court did not lose its way or create a manifest

miscarriage of injustice by convicting Ballinger, Ballinger's conviction is not against the

manifest weight of the evidence. As such, Ballinger's single assignment of error is overruled.

       {¶ 17} Judgment affirmed.


       RINGLAND, P.J., and M. POWELL, J., concur.




                                               -5-
