State v. Goldberg

[Cite as State v. Goldberg, 2014-Ohio-2453.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2013-A-0063
- vs - :

PATRICIA A. GOLDBERG, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula Municipal Court, Case No. 13 CRB 00617.

Judgment: Affirmed.

Lori B. Lamar, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, 110 West
44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).

Gregory A. Price, 137 South Main, Suite 300, Akron, OH 44308 (For Defendant-
Appellant).

THOMAS R. WRIGHT, J.

{¶1} This appeal is from the final judgment in a criminal proceeding before the

Ashtabula Municipal Court. Following an abbreviated bench trial, appellant, Patricia A.

Goldberg, was found guilty of criminal damaging, a second-degree misdemeanor under

Ashtabula City Ordinance 541.03(A)(1). She contends that her conviction cannot stand

because the city’s evidence did not support a finding that she caused harm to the car of

the complaining witness, Deborah Witek. For the following reasons, the conviction was

not against the manifest weight of the evidence.
 {¶2} The charge against appellant was based upon an incident that took place

in the parking lot of the city municipal building, where the Ashtabula Municipal Court is

housed. On the morning of March 12, 2013, Kimberly Rodriguez came to the municipal

building to testify against her former boyfriend, Floyd Carroll, about an assault complaint

she had brought. At that time, Rodriguez was good friends with Deborah Witek; hence,

the women planned to meet at the municipal court so that Witek could lend Rodriguez

moral support during the proceeding.

{¶3} Witek arrived at the municipal building first, driving a grey Ford Mustang.

She parked in a row of parking spaces which was directly in front of one section of the

building. However, due to the layout of the building, the entrance for the municipal court

was not directly in front of Witek’s car; instead, the entrance was almost at a right angle

to the direction her vehicle was pointing. Thus, if, upon exiting her car, Witek walked in

the direction it was pointing, it would be necessary for her to go across a small section

of grass before reaching a sidewalk that leads to the entrance. But, if Witek went in the

opposite direction and turned left at the back end of her car, she could walk through the

parking lot and enter the building without crossing any grass.

{¶4} Without waiting for Rodriguez to arrive, Witek left her car and went into the

municipal building. Eventually, she was shown into a waiting room on the second floor

of the building, near the courtroom. The waiting room had a window from which Witek

could look down upon the entire parking lot and see her vehicle.

{¶5} Rodriguez pulled into the parking lot next, and parked in the space directly

to the left of Witek’s vehicle in the same row. Almost immediately after Rodriguez had

parked, a third vehicle pulled into the parking lot. This vehicle was driven by appellant,

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and Rodriguez’s ex-boyfriend, Floyd Carroll, was a passenger. Appellant parked her

vehicle directly behind Witek’s car in the next row of parking spaces.

{¶6} After Rodriguez exited her vehicle and began to walk toward the entrance

to the building, Carroll started to yell at her from appellant’s vehicle, asking why she was

still going to testify against him. Rodriguez continued to go into the building, where she

told a court clerk that Carroll was harassing her in the parking lot. Rodriguez was also

told to wait in the same waiting room as Witek.

{¶7} At some point, Witek started to stand by the waiting room window and look

out at the parking lot. First, she saw Carroll exit appellant’s vehicle by himself and walk

through the parking lot directly to the entrance that Witek and Rodriguez had just used.

In doing so, Carroll did not go near Witek’s vehicle.

{¶8} As Carroll was walking toward the building, Witek saw appellant exit her

vehicle and go into the area between the two rows of parking spaces. However, instead

of walking through the parking lot directly toward the building entrance, she went directly

toward Witek’s Mustang. At that juncture, Witek said to Rodriguez that “something” was

about to occur in the parking lot; as a result, Rodriguez got up from her chair and looked

out the waiting room window with Witek.

{¶9} According to Witek and Rodriguez, appellant proceeded to walk between

Witek’s Mustang and Rodriguez’s car. Although neither woman could see appellant’s

right hand while she was between the vehicles, they both subsequently testified that her

right arm was twisted to the side and slightly behind her. They also testified that when

appellant came around the corner of Witek’s vehicle and stepped onto the grass beside

the sidewalk, she had her keys in “her hand.”

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 {¶10} Once appellant walked from the area and went into the municipal building,

Witek used the camera on her cell phone to take a photograph of the parking lot. This

picture essentially showed the relationship of the three vehicles in the parking lot, and

was introduced into evidence at trial.

{¶11} After Rodriguez testified in the scheduled proceeding against Carroll, she

and Witek returned to their vehicles in the parking lot. Since appellant was sitting in her

vehicle at that time, Witek decided not to inspect at the side of her vehicle immediately.

Rather, she and Rodriguez agreed to meet at a restaurant a few miles away. When she

was finally able to inspect her car at that location, Witek concluded that appellant used

her keys to make a scratch in the paint on the majority of the left side of her Mustang.

{¶12} The police investigation into the incident led to the filing of the complaint

against appellant. In charging her with criminal damaging, the complaint asserted that

she knowingly caused a substantial risk of physical harm to Deborah Witek’s property

without Witek’s consent.

{¶13} During the ensuing bench trial, Witek testified that, by going between her

vehicle and Rodriguez’s vehicle, appellant took a longer route to the building entrance

than she would have if she had taken a right and walked directly through the parking lot.

Witek further testified that the route appellant chose caused her to unnecessarily cross

over grass. Additionally, Witek stated that it would cost $973.62 to repair the scratch on

her car, and that the scratch in question did not exist prior to the “parking lot” incident.

{¶14} In testifying on her own behalf, appellant admitted that, as part of her route

to the building entrance, she walked beside the left side of Witek’s vehicle, and that she

was carrying her keys in her right hand while doing so. However, she denied that she

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used the keys to scratch the vehicle. As for the reason why she chose to walk beside

Witek’s car instead of going straight across the parking lot, appellant testified that she

was trying to avoid Carroll, with whom she had been bickering in her car. At the end of

her direct examination, appellant stated that when she saw Carroll inside the building,

he told her that she had been seen walking beside Witek’s vehicle, and that Witek and

Rodriguez were likely to cause “trouble” “because that’s Deborah’s car.” During cross-

examination, the prosecutor asked appellant why Carroll would be concerned about

possible trouble if she had walked by the vehicle without touching it. In response,

appellant testified that his concern was due to the fact that Rodriguez and Witek were

always calling her phone and harassing her.

{¶15} Concluding that the evidence supported the inference that appellant had

“keyed” Witek’s Mustang, the trial court found her guilty of criminal damaging. Initially,

the trial court placed appellant in jail without imposing sentence, based upon her refusal

to be quiet after the verdict was announced. Following a three-day delay, the trial court

convened a new hearing and went forward with sentencing. After imposing a ninety-day

term on the sole charge, the court suspended eighty-seven days of the term and placed

her on probation. As a condition of her release, the trial court ordered appellant to pay

restitution in the amount of $973.62.

{¶16} In appealing her conviction, appellant asserts two assignments of error for

review:

{¶17} “[1.] This matter must be reversed and dismissed as the City failed to

establish that the Ashtabula Municipal Court had jurisdiction to hear this matter.

{¶18} “[2.] The trial court’s decision to find Ms. Goldberg guilty of criminal

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damaging is against the manifest weight of the evidence.”

{¶19} Under her first assignment, appellant argues that her conviction is invalid

because the prosecution failed to present any evidence showing that the alleged crime

occurred within the trial court’s territorial jurisdiction. She further asserts that a finding

of proper jurisdiction could not have been based upon judicial notice because the trial

court never made such a finding upon the record.

{¶20} Since municipal courts are statutory creations, the scope of their subject

matter jurisdiction is governed solely by statute. State v. Jones, 11th Dist. Portage Nos.

2010-P-0051 and 2010-P-0055, 2011-Ohio-5109, ¶24. Regarding criminal matters, “[a]

municipal court has jurisdiction over misdemeanor offenses committed within the limits

of its territory. R.C. 1901.20(A)(1).” State v. Rode, 11th Dist. Portage No. 2010-P-

0015, 2011-Ohio-2455, ¶17.

{¶21} R.C. 1901.02(A) states that municipal courts “have jurisdiction within the

corporate limits of their respective municipal corporations * * *.” In turn, R.C.

1901.01(A) expressly provides for a separate municipal court for the City of Ashtabula.

Thus, since appellant’s case was tried in the Ashtabula Municipal Court, the “territorial

jurisdiction” requirement was met if the underlying crime was committed within the city’s

corporate limits.

{¶22} The testimony of Deborah Witek and Kimberly Rodriguez readily showed

that the incident involving Witek’s vehicle took place in the parking lot of the municipal

building in which the trial court was housed. Furthermore, Rodriguez responded “yes”

when she was asked, as a preliminary matter, whether she was at “this building in the

City of Ashtabula” on the date of the incident. Accordingly, even though the prosecution

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did not ask one precise question establishing the trial court’s territorial jurisdiction over

the case, the evidence was sufficient to prove that: (1) the lot in which Witek parked her

vehicle was directly adjacent to the municipal building; and (2) the building was located

within the city’s corporate limits. Taken as a whole, the evidence demonstrated that the

“keying” of Witek’s vehicle occurred within the trial court’s territorial jurisdiction.

{¶23} Given the state of the evidence, it was not necessary for the trial court to

take judicial notice of its own physical location. Therefore, since the trial court did not

exceed the scope of its subject matter jurisdiction in hearing this case, appellant’s first

assignment lacks merit.

{¶24} Under her second assignment, appellant asserts that the trial court’s guilty

verdict was against the manifest weight of the evidence because the prosecution could

not prove that she made the scratch on Witek’s car. In support, she notes that neither

Witek nor Rodriguez could testify that they could see whether she was actually touching

the side of the car while walking by.

{¶25} In discussing the nature of the evidence prior to rendering its final verdict,

the trial court stated that the fact that appellant scratched the car with her keys could be

inferred from the other evidence in the case. In other words, the court held that the

prosecution had presented sufficient circumstantial evidence to demonstrate that

appellant made the scratch.

{¶26} Regarding the distinction between direct and circumstantial evidence, the

following quote from State v. Cornett, 3d Dist Seneca No. 13-09-13, 2009-Ohio-3531,

¶12-13, is instructive:

{¶27} “Direct evidence is ‘evidence that is based on personal knowledge or

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observation and that, if true, proves a fact without inference or presumption.’ Black’s

Law Dictionary (8 Ed. 2004) 596. Circumstantial evidence is ‘evidence based on

inference and not on personal knowledge or observation.’ Id. at 595. Furthermore,

circumstantial evidence has been defined as ‘the proof of certain facts and

circumstances in a given case, from which the jury may infer other connected facts

which usually and reasonably follow according to the common experience of mankind.’

State v. Duganitz 76 Ohio App.3d 363, 367, * * * citing Black’s Law Dictionary (5 Ed.

1979) 221. Ohio Jury Instructions [provide] the following definitions that are helpful in

understanding the nature of circumstantial evidence:

{¶28} “‘Direct evidence is the testimony given by a witness who has seen or

heard the facts to which he testifies. It includes exhibits admitted into evidence during

the trial; Circumstantial evidence is the proof of facts or circumstances by direct

evidence from which you may reasonably infer other related or connected facts which

naturally and logically follow, according to the common experience of mankind; To infer,

or to make an inference, is to reach a reasonable (conclusion) (deduction) of fact which

you may, but are not required to, make from other facts which you find have been

established by direct evidence. (* * *)’ Ohio Jury Instructions (2008), Section CR

409.01(3), (4), (5).

{¶29} “While an inference may be made from direct evidence that has been

proven beyond a reasonable doubt, it is not permissible to make an inference from

circumstantial evidence, or inference upon inference. See State v. Cowans, 87 Ohio

St.3d 68, 78, * * * [(1999)].”

{¶30} In this case, the following facts were established through direct evidence:

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(1) appellant drove Carroll to the municipal building on the day of his “assault” hearing,

and was with him in her car both before and after his verbal altercation with Rodriguez;

(2) since Witek took good care of her Mustang and washed it often, she knew that there

was no scratch on the car’s left side when she parked it next to the municipal building;

(3) appellant admitted that when she exited her vehicle, she walked beside the left side

of Witek’s car while carrying her own car keys in her right hand; (4) in walking between

Witek’s car and Rodriguez’s car, appellant did not take the most direct route to go into

the building; and (5) when Witek and Rodriguez met afterwards at the local restaurant,

they both saw a scratch which extend across the majority of the Mustang’s left side.

{¶31} When these five facts are viewed as a whole, a reasonable person could

readily infer that appellant caused the new scratch on Witek’s Mustang by scraping her

keys on the car’s left side as she walked by.

{¶32} Additionally, appellant expressly testified that when she ultimately met up

with Carroll inside the building, he stated to her that Witek and Rodriguez were likely to

create more trouble for them “because that’s Deborah’s car.” When asked why Carroll

would make that statement if she had merely walked by Witek’s car, appellant could not

provide a logical explanation. From this, a reasonable person could infer that appellant

and Carroll actually planned for appellant to “key” either Rodriguez’s or Witek’s vehicle

while they were sitting in the parking lot.

{¶33} As a separate challenge to the manifest weight of the evidence, appellant

argues that the existence of the scratch was not properly established. She asserts that

no photograph of the scratch was submitted, and that Witek’s testimony concerning the

scratch was uncorroborated. However, the latter part of appellant’s assertion is simply

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not correct. During her direct testimony, Rodriguez also confirmed that she saw a new

scratch on Witek’s vehicle when they met at the local restaurant. Therefore, the lack of

a photograph of the scratch only raised an issue as to the credibility of Rodriguez’s and

Witek’s testimony. Considered as a whole, the record does not support the conclusion

that the trial court abused its discretion in finding that their testimony was believable.

{¶34} A criminal conviction cannot be reversed on appeal as being against the

manifest weight of the evidence unless the record shows that the trier of fact lost its way

in considering the evidence and assessing witness credibility, thereby creating a clear

miscarriage of justice. State v. Cobb, 11th Dist. Trumbull No. 2013-T-0020, 2013-Ohio-

4630, ¶20, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Pursuant to the

foregoing discussion, there was considerable circumstantial evidence in this case from

which the trial court could reasonable find that appellant knowingly caused a substantial

risk of harm to Witek’s property. That is, the evidence supported the inference that she

“keyed” Witek’s Mustang, thereby scraping the paint on the car’s left side. Thus, since

the trial court did not lose its way in finding appellant guilty of criminal damaging, her

conviction is not against the manifest weight of the evidence. Appellant‘s second

assignment is also without merit.

{¶35} For the reasons set forth in this opinion, the judgment of the Ashtabula

Municipal Court is affirmed.

CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.

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