[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.