While the responding officer did not directly observe Mr. Todd damage the laundry machines, the proximity in time of the banging noises to the officer finding Mr. Todd alone in the basement, together with Mr. Todd’s admission, and that the damage is consistent with that admission, provides ample circumstantial evidence to support the inference that Mr. Todd damaged the laundry machines.

State v. Todd

2023 – Ohio – 2139

First District Appellate Court

Hamilton County, Ohio

June 28, 2023

 

Cincinnati Police Responds to Call for Service

On Wednesday February 16, 2022, Cincinnati Police responded to a call that someone was breaking into the laundry machines at 323 Terrace Avenue.  When an officer arrived at that address, he entered the basement where the laundry machines are located.  There, the officer could hear sounds of tools banging against the laundry machines indicative of someone breaking into them.  The officer shouted to identify himself as a police officer, and the banging noise stopped.  The officer shouted verbal commands into the now-silent basement, but no one appeared.  Eventually, after the officer shouted more commands, Mr. Kevin Todd appeared.

Mr. Kevin Todd was dismantling the laundry room at 323 Terrace Avenue in Cincinnati, Ohio when an unnamed Cincinnati Police Officer caught him.  Mr. Todd would later claim he was there to repair the laundry machines but would the doctrine of Circumstantial Evidence be enough to convict him?

Mr. Todd is Arrested based on Probable Cause

The basement was extensively damaged.  The outside window to the basement was broken in and the laundry-room floor had water damage.  The laundry machines were torn from the walls, their electrical components were damaged, their coin apertures were broken into and removed, and coins were scattered on the floor.  The gas line was torn from the dryer.  The officer did not see Mr. Todd strike anything, but Mr. Todd was the only person found in the basement.  Mr. Todd admitted to the officer he was trying to get money from the coin-operated laundry machines.  Mr. Todd was arrested and charged with criminal trespass and criminal damaging.

Can Mr. Todd be Convicted Even if the Officer Did not Witness Him Destroy the Property?

At trial, the maintenance coordinator for 323 Terrace Avenue testified to the extent of the damage and that he had not authorized any damage to the laundry machines.  The defense argued at trial that there was no direct evidence that Mr. Todd entered the building without consent or that Mr. Todd damaged the laundry machines or that any damage was done without consent of the laundry machines’ owner.

Yes!

The municipal court convicted Mr. Todd of criminal damaging but acquitted him of criminal trespass.  This appeal followed.

Feeble Appeal Begins

In his sole assignment of error, Mr. Todd contends his conviction was based on insufficient evidence and against the manifest weight of the evidence.  There are two issues presented for review (1) Whether the state produced sufficient evidence as to each element of the criminal-damaging offense and (2) Whether the state proved that Mr. Todd committed the offense beyond a reasonable doubt.

O.R.C. §2909.06 prohibits harm to “any property of another without the other person’s consent.”  The key element in this case is “without the other person’s consent.”  Thus, an agent authorized to consent to property damage on behalf of the owner or who manages or controls the property on behalf of the owner may testify to the lack of the owner’s consent.

Mr. Luck was not Lucky for Mr. Todd

Here, Mr. Don Luck, the maintenance coordinator employed at 323 Terrace Avenue, testified that he did not authorize any damage to the building’s laundry machines.  While Mr. Luck did not testify that the owner of the building expressly authorized him to consent to damage, Mr. Luck did testify that he was employed at 323 Terrace Avenue as a maintenance coordinator.  Viewed most favorably for the prosecution, a reasonable factfinder could find that Mr. Todd acted without the consent of the owner of 323 Terrace Avenue because the building maintenance coordinator had not authorized Mr. Todd’s actions.

Circumstantial Evidence

Even if the maintenance coordinator was not qualified to testify as to consent, there is also circumstantial evidence suggesting Mr. Todd was not authorized to damage the laundry machines.  Circumstantial evidence and direct evidence have the same probative value.   Consequently, a defendant may be convicted of criminal damaging solely based on circumstantial evidence.

Mr. Todd’s Initial Reaction was to Hide

Here, the circumstantial evidence of Mr. Todd’s actions and statements suggest he was not authorized to damage the laundry machines.  The moment the responding officer identified himself as a police officer, the banging noises in the laundry room ceased.  Instead of explaining to the officer that Mr. Todd was repairing the machines, Mr. Todd hid in the darkness and did not appear until ordered multiple times.  This implies that Mr. Todd was surprised by the arrival of the police and his first thought was to hide from the officer.  Mr. Todd admitted he was trying to get money from the laundry machines’ coin slots.  No other evidence was offered suggesting that the owner consented to Mr. Todd damaging the laundry machines or offering any other reason for his actions.  The maintenance coordinator specifically testified he did not authorize any damage to the machines.  Viewing the evidence in the light most favorable to the prosecution, a reasonable factfinder could infer from Mr. Todd’s actions and statements that the building owner did not consent to Mr. Todd damaging the laundry machines.

The Broad Scope of Damage is Inconsistent with Repair, Replacement, or Modification of Laundry Machines

Additionally, the broad scope of damage is inconsistent with a consented to repair, replacement, or modification and the ordinary wear and tear from tenant use.  Here, the laundry machines were torn from the walls, their electrical components were damaged, their coin apertures were broken into and removed, coins were scattered on the floor, the gas line was removed from the dryer, and there was water damage.  There was no evidence presented that suggested that the laundry machines were previously nonfunctional, that access was needed to the laundry room wall, that the gas line needed replacing, that coins had jammed the apertures, or that the laundry room floor needed to be washed out.  If such extensive damage were authorized, the maintenance coordinator for the building would presumably have to authorize it or at least know about it in advance.  This is especially true because the damage caused water to leak in the basement and affected the building’s gas line.  Viewing the evidence of the damage in the light most favorable to the prosecution, a reasonable factfinder could infer such broad damage was not consented to.

Can Mr. Todd be Convicted of Criminal Damaging Yet be Acquitted of Criminal Trespass?

Yes!

After a review of the entire record in the light most favorable to the prosecution, the state presented sufficient evidence such that a rational trier of fact could have found beyond a reasonable doubt that Mr. Todd did not have consent to damage the machines.  There is no cognitive dissonance between the trial court convicting Mr. Todd of criminal damaging and acquitting him of criminal trespass even though both crimes share an element of consent.  At trial, there was no evidence addressing whether Mr. Todd had permission to be in the building.  However, there is ample direct and circumstantial evidence that Mr. Todd did not have consent to damage the laundry machines.

Court Goes to Great Lengths to State the Obvious

While there is no direct evidence that Mr. Todd damaged the laundry machines, the circumstantial evidence supports an inference that Mr. Todd did.  The maintenance coordinator for the building testified that the laundry machines were in working condition a few days prior to February 16.  On February 16, a 9-1-1 call reporting a potential crime in progress brought the police.  The responding officer heard the noise of tools banging against the machines coming from the laundry room.  The responding officer identified himself as a police officer and the banging ceased.  Mr. Todd was the only person found in the laundry room, hidden in the darkness, where he admitted that he was trying to get money out of the machines.  Mr. Todd was not found with any laundry or cleaning supplies to suggest he was using already-broken machines.  The coin slots on the laundry machines were pried open, consistent with someone trying to get money out of them.  While the responding officer did not directly observe Mr. Todd damage the laundry machines, the proximity in time of the banging noises to the officer finding Mr. Todd alone in the basement, together with Mr. Todd’s admission, and that the damage is consistent with that admission, provides ample circumstantial evidence to support the inference that Mr. Todd damaged the laundry machines.

Established Case Law

See City of Cleveland v. Graham, 2014-Ohio-3413 (finding all elements of criminal damaging established where witness heard glass shattering, found her window shattered, and saw the defendant next to her car); State v. Drane, 2007-Ohio-2591, (upholding criminal-damaging conviction where vehicles were not damaged before defendant arrived but found keyed after defendant had left).

Mr. Todd’s Argument is Devoid of Reasonableness

The competing inferences that the machines were damaged sometime before February 16 and that Mr. Todd was in the basement to repair or use the laundry machines or for other reasons entirely unrelated to the laundry machines is possible.  However, such competing inferences are comparatively implausible.  The record is devoid of evidence to support such an inference.  There is no indication in the record that the laundry machines were damaged before February 16.  The only supporting evidence offered is that Mr. Todd stated he was not trying to steal anything.  However, this statement occurred after the police officer arrested Mr. Todd and placed him in the back of the police cruiser. Mr. Todd also admitted, prior to being arrested, that he was trying to get money from the laundry machines.  The court was entitled to discount Mr. Todd’s self-serving statement after being arrested and instead believe the police officer’s testimony that Mr. Todd was trying to get money from the laundry machines.  After considering the weight and credibility of all the evidence presented at trial, we cannot say the trial court patently lost its way in convicting Mr. Todd of criminal damaging.

Holding

We hold that Mr. Todd’s conviction was supported by sufficient evidence and was not against the weight of the evidence and we overrule the sole assignment of error.  The judgment of the trial court is affirmed.

Information for this article was obtained from State v. Todd, 2023 – Ohio – 2139.

State v. Todd, 2023 – Ohio – 2139 was issued on June 28, 2023 by the First District Appellate Court and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Did Something More Likely than Not Occur? There are many court issued, valid definitions of Probable Cause.  However, the one definition that I instruct that officers can use ‘in the moment’ is simple.  If an officer answer is yes, then s/he has probable cause … “Did something more likely than not occur?”.  If the answer is yes, then the officer has established probable cause.  Here, the unnamed Cincinnati Police Officer heard banging in a basement laundry room, when the officer announced himself, the banging stopped.  After repeated commands to show himself, the suspect, Mr. Kevin Todd emerged.  The officer discovered the pay – laundry machines severely damaged to include the coin slots that were pried open. Consequently, a person does not need to be a legal scholar or complete the police academy to determine that Mr. Todd was a thief caught in the act.  Therefore, both the trial and appellate court came to the reasonable conclusion that the prosecution proved the case Beyond a Reasonable Doubt.
  2. Criminal Charges – An interesting twist to the case is that Mr. Todd was charged with both Criminal Damaging and Trespass. The Criminal Damaging was upheld by this appeal but so was his acquittal for Trespass.  Though there are not many facts about the Trespass acquittal, perhaps the laundry room was accessible without being key entry or by a common hallway that was not restricted to the public?  I do not know the specific reason, but the appellate court did not spend much ink on evaluating the Trespass Acquittal.  Surprisingly, Mr. Todd was not charged with O.R.C. §2923.24 Possession of Criminal Tools.  Clearly, he was using tools to dismantle the laundry machines.  This may have been a valid charge that Mr. Todd could have been charged.
  3. Pre-Sent Arms! Both the unnamed Cincinnati Police Officer, the prosecutor and the appellate prosecutor should be highly commended for the conviction of Mr. Todd!  Well done!

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Robert H. Meader Esq.