State v. Carson

[Cite as State v. Carson, 2018-Ohio-4352.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27566
:
v. : Trial Court Case No. 2016-CRB-3935
:
ANGELA R. CARSON : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
...........
OPINION

Rendered on the 26th day of October, 2018.

...........

AMY B. MUSTO, Atty. Reg. No. 71514 and ANDREW D. SEXTON, Atty. Reg. No.
0070892, Dayton Prosecutors Office, 335 W. Third Street, Room 390, Dayton, Ohio
45402
Attorneys for Plaintiff-Appellee

CARLO MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419
Attorney for Defendant-Appellant

.............
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DONOVAN, J.

{¶ 1} Defendant-appellant Angela R. Carson appeals her conviction for two counts

of criminal damaging, in violation of R.C. 2909.06(A)(1), misdemeanors of the second

degree. Carson filed a timely notice of appeal with this Court on April 24, 2017.

{¶ 2} The incident which forms the basis of the instant appeal occurred late at night

on June 10, 2016, and during the early morning hours of June 11, 2016, at the

Somewhere Lounge located in Dayton, Ohio. Kayleigh Mullins testified that she was

bartending that night, and that at approximately 10:00 p.m., she observed an individual

named Adam Manning enter the bar with a female. Mullins testified that she was well

acquainted with Manning as he was a patron of the bar. Thereafter, at approximately

12:30 a.m., Mullins testified that she observed the defendant, Carson, enter the bar along

with a female friend. Mullins further testified that she knew Carson as another patron of

the bar and was aware that Carson was also Manning’s ex-girlfriend.

{¶ 3} Thereafter, Carson, who was already apparently intoxicated, began making

vulgar comments directed at Manning. At some point, Manning and his female friend got

up and went outside in order to smoke cigarettes. Mullins testified that she took a break

and followed Manning outside in order to smoke. Mullins testified that when they began

to walk back into the bar, Carson exited the bar and started calling Manning names.

Mullins testified that she got in between Manning and Carson in order to defuse the

situation. Upon becoming aware of the altercation, Anna Prince, the manager of the bar,

came outside and was able to get Manning and his friend to go back into the bar. Prince

also directed Mullins to go back inside the bar and resume her duties. Prince testified

that she then told Carson to leave the premises.
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{¶ 4} Prince testified that Carson eventually left and walked out into the parking lot

in front of the bar. While Prince was watching her, Carson walked over to a pickup truck

owned by Christopher Kinsler, another bar patron, and began scraping away the paint on

his truck ostensibly with a car or house key, an act known as “keying.” Prince

immediately went back into the bar and directed Mullins to call the police because Carson

was “keying” the truck. Prince initially thought the truck belonged to Manning and not

Kinsler because both men owned similar looking silver Chevy pickup trucks.

{¶ 5} After going outside to observe the damage, Manning observed that his truck

had also been “keyed” in a similar manner. Manning testified that he also observed

Carson and another individual walking away from the scene through another section of

the parking lot. Kinsler testified that the damage to his truck similar to the damage to

Manning’s truck, and that the vehicles were parked only two spaces apart. Prince also

testified that both trucks appeared to have sustained similar damage caused by the same

implement. Significantly, Manning testified that the “keying” damage to his vehicle did

not exist prior to his verbal altercation with Carson.

{¶ 6} Dayton Police Officer Seth Gabbard was dispatched to the Somewhere

Lounge on a criminal damaging complaint. Mullins testified that Officer Gabbard arrived

at the bar at approximately 1:45 a.m. Officer Gabbard testified that, upon his arrival, he

interviewed both Manning and Kinsler regarding the damage done to their trucks. Officer

Gabbard testified that the key damage to the trucks was similar and appeared to him that

the damage was likely caused by the same person.

{¶ 7} On June 13, 2016, Carson was charged by way of complaint in Dayton

Municipal Court with two counts of criminal damaging. At her arraignment on June 23,
 -4-

2016, Carson pled not guilty. A pretrial conference was scheduled for July 13, 2016, and

a second pretrial conference was held on July 18, 2016. A bench trial was scheduled

for August 15, 2016, and on August 5, 2016, Carson filed a jury demand. A jury trial was

scheduled for September 22, 2016.

{¶ 8} On September 21, 2016, Carson filed a “Waiver of Time for Trial Pursuant to

R.C. 2945.71” and requested a continuance. The continuance was granted, and after

three more continuances, a jury trial was held on January 19, 2017. Carson was found

guilty of both counts of criminal damaging and sentenced to 90 days in jail on each count,

suspended. The trial court also sentenced Carson to community control sanctions,

including basic supervised probation for five years and an aggregate term of 90 days of

electronic home detention with work release. Carson was also ordered to complete

NOVA and MAD and to pay restitution in the amount of $2,987.37, in monthly installments

of $50.

{¶ 9} Initially, we note that Carson’s first appointed counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), in which he

argued that he could “find no meritorious issues having arguable merit.” However,

appointed counsel set forth two potential assignments of error regarding evidentiary

issues and Carson’s right to speedy trial. In a decision and entry issued on February 2,

2018, we found that appointed counsel had in fact raised at least one non-frivolous issue

in his Anders brief. Therefore, we set aside the Anders brief and appointed new

appellate counsel to represent Carson. The instant appeal followed.

{¶ 10} Carson’s first assignment of error is as follows:

THE TRIAL COURT COMMITTED ERROR IN ALLOWING OPINION
 -5-

TESTIMONY BY WITNESSES THAT WERE NOT EXPERTS.

{¶ 11} In her first assignment, Carson contends that the trial court erred when it

allowed Prince, Kinsler, Mullins, and Officer Gabbard to render opinion testimony

regarding the similarity between the damage done to both trucks. Specifically, Carson

argues that it was improper for the trial court to allow Prince to testify that she believed

Carson “keyed” Manning’s truck after mistakenly “keying” Kinsler’s truck. Carson argues

that it was error for the trial court to allow Kinsler to testify, over objection, that it was his

opinion that the same person (Carson) “with the same aggression perpetuated matching

damage to both trucks.” Carson also argues that it was improper for the trial court to

allow Mullins and Officer Gabbard to testify that the scratches on both trucks were similar

in appearance.

{¶ 12} Evid.R. 701 governs opinion testimony by lay witnesses and provides that

such testimony “is limited to those opinions or inferences which are (1) rationally based

on the perception of the witness and (2) helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue.” Under Evid.R. 701, lay opinion

testimony must be “rationally based on the perception of the witness. Perception

connotes sense: visual, auditory, olfactory, etc. Thus, opinion testimony under Evid.R.

701 must be based on firsthand, sensory based knowledge.” Sec. Natl. Bank & Trust Co.

v. Reynolds, 2d Dist. Greene No. 2007 CA 66, 2008-Ohio-4145, ¶ 17.

{¶ 13} The line between expert testimony under Evid.R. 702 and lay opinion

testimony under Evid.R. 701 is not always easy to draw. Id. at ¶ 19. However, as

recognized by the Supreme Court of Ohio, courts have permitted lay witnesses to express

their opinions in areas in which it would ordinarily be expected that an expert must be
 -6-

qualified under Evid.R. 702. State v. McKee, 91 Ohio St.3d 292, 296, 744 N.E.2d 737

(2001). “Although these cases are of a technical nature in that they allow lay opinion

testimony on a subject outside the realm of common knowledge, they still fall within the

ambit of the rule's requirement that a lay witness's opinion be rationally based on firsthand

observations and helpful in determining a fact in issue. These cases are not based on

specialized knowledge within the scope of Evid.R. 702, but rather are based upon a

layperson's personal knowledge and experience.” (Footnote omitted.) Id. at 296-297; see

also State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 107 (2d Dist.) (police detective

could testify about typical behavior of children in child abuse cases based on his training

and experience in such cases); State v. Renner, 2d Dist. Montgomery No. 25514, 2013-

Ohio-5463, ¶ 77.

{¶ 14} The trial court has “considerable discretion in admitting the opinion

testimony of lay witnesses.” (Citation omitted.) State v. Marshall, 191 Ohio App.3d 444,

2010-Ohio-5160, 946 N.E.2d 762, ¶ 43 (2d Dist.). An abuse of discretion implies that

the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 15} Initially, we note that Prince testified that she directly observed Carson “key”

Kinsler’s truck, which was very similar to Manning’s truck. After she witnessed Carson

“key” Kinsler’s truck, Prince went back inside the bar and told Mullins to call the police.

Prince also mistakenly told Manning that Carson was damaging what she thought was

his truck. Prince, Mullins, Kinsler, Manning, and Officer Gabbard all had an opportunity

to view the damage done to both trucks, and they all testified that the damage done to

both trucks was similar in appearance. These opinions were rationally based upon their
 -7-

own observations/perceptions and would be helpful to a determination regarding whether

Carson was the individual who “keyed” both vehicles. This testimony did not contain any

scientific conclusions or specialized knowledge. Simply put, the testimony of the State’s

witnesses primarily consisted of their first hand opinions regarding the nature and

appearance of the scratch marks on the trucks.

{¶ 16} We agree, however, that the following question and answer from Kinsler

should have been excluded, because it sought to answer the very question as to the

existence or non-existence of an ultimate fact to be determined by the jury, i.e. did Carson

also “key” Manning’s truck as well:

The State: Ok. And you were able to view the damage to Manning’s

vehicle that happened that evening?

Kinsler: Yes.

The State: And was it similar to the damage caused to your vehicle?

A: Yes.

Q: Did it appear to be done by the same person?

A: Could have been.

Defense Counsel: Objection, Your Honor. Speculation.

Trial Court: I am going to overrule.

(Emphasis added.) In our view, any reasonable inference to be drawn from the facts was

to be drawn by the jurors, not Kinsler. However, given the entirety of the record and

considering all of the facts adduced, we cannot say that this response standing alone

prejudiced Carson. On these facts, the jury could have readily and easily drawn the

same inference made by Kinsler. Thus, the error was harmless.
 -8-

{¶ 17} Accordingly, we conclude that the majority of the testimony of Prince,

Mullins, Kinsler, Manning, and Officer Gabbard was properly admitted lay testimony under

Evid.R. 701, because the testimony was related to their personal observations and was

helpful to the determination of whether Carson “keyed” both trucks. At a minimum, it was

a reasonable inference to draw given their firsthand observations, and any error in

admitting their testimony on this record would be harmless.

{¶ 18} Carson’s first assignment of error is overruled.

{¶ 19} Because they are interrelated, Carson’s second and third assignments will

be discussed together as follows:

THE CONVICTIONS OF CRIMINAL DAMAGING FOR COUNT ONE AND

COUNT TWO WERE WITHOUT SUFFICIENT EVIDENCE AND AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

TRIAL COURT ERRONEOUSLY OVERRULED APPELLANT’S CRIMINAL

RULE 29 MOTION FOR DIRECTED VERDICT WHERE NO EVIDENCE

WAS PRESENTED BY [THE] STATE TO PROVE [THE] ESSENTIAL

ELEMENTS OF CRIMINAL DAMAGING.

{¶ 20} In her second assignment, Carson argues that her convictions for criminal

damaging were not supported by sufficient evidence and were against the manifest

weight of the evidence. In her third assignment, Carson contends that the trial court

erred when it overruled her Crim.R. 29 motion for acquittal made at the close of the State’s

evidence.

{¶ 21} Although the State does not raise the issue, we note that the record fails to

establish that Carson renewed her Crim.R. 29 motion for acquittal at the close of all the
 -9-

evidence in her jury trial. Here, Carson moved for acquittal at the close of the State's

case-in-chief, the trial court denied the motion, and defense counsel then presented the

testimony of one witness for the defense. After resting, the printed record provided to

this Court does not indicate that Carson renewed her Crim.R. 29 motion for acquittal.

Carson has therefore failed to preserve her insufficiency argument by not renewing it at

the close of evidence. See State v. Zimpfer, 2d Dist. Montgomery No. 26062, 2014-Ohio-

4401, ¶ 42 (appellant preserved his insufficiency argument by making an unsuccessful

Crim.R. 29 motion for acquittal at the close of evidence at trial). It is generally accepted

in Ohio that if counsel fails to make and renew a Crim.R. 29 motion during a jury trial, the

issue of sufficiency is waived on appeal. State v. Richardson, 75 N.E.3d 831, 2016-Ohio-

8081, ¶ 16 (2d Dist.). However, even if Carson had renewed her Crim.R. 29 motion, we

conclude that her argument that her convictions for criminal damaging were based upon

insufficient evidence lacks merit.

{¶ 22} Crim.R. 29(A) states that a court shall order an entry of judgment of acquittal

if the evidence is insufficient to sustain a conviction for the charged offense. “Reviewing

the denial of a Crim.R. 29 motion therefore requires an appellate court to use the same

standard as is used to review a sufficiency of the evidence claim.” State v. Witcher, 6th

Dist. Lucas No. L-06-1039, 2007-Ohio-3960, ¶ 20. “In reviewing a claim of insufficient

evidence, ‘[t]he relevant inquiry is whether, after reviewing 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.’ ” (Citations omitted). State v.

Crowley, 2d Dist. Clark No. 2007-CA-99, 2008-Ohio-4636, ¶ 12.

{¶ 23} “A challenge to the sufficiency of the evidence differs from a challenge to
 -10-

the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-

6046, 837 N.E.2d 315, ¶ 69. “A claim that a jury verdict is against the manifest weight of

the evidence involves a different test. ‘The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way and

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

a new trial ordered. The discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the

conviction.’ ” (Citations omitted.) Id. at ¶ 71.

{¶ 24} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).

{¶ 25} This court will not substitute its judgment for that of the trier of fact on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510 (Oct. 24, 1997).

{¶ 26} Evidence presented to prove the elements of a crime may be direct or
 -11-

circumstantial, and both have the same probative value. State v. Ayers, 194 Ohio App.3d

812, 2011-Ohio-3500, 958 N.E.2d 222, ¶ 11 (2d Dist.). Consequently, a defendant may

be convicted solely on the basis of circumstantial evidence. State v. Nicely, 39 Ohio St.3d

147, 529 N.E.2d 1236 (1988). In fact, we have noted that circumstantial evidence is

often more persuasive than direct evidence. State v. Reed, 155 Ohio App.3d 435, 2003-

Ohio-6536, 801 N.E.2d 862, ¶ 56 (2d Dist.). As stated by the Supreme Court of Ohio,

“circumstantial evidence may be more certain, satisfying, and persuasive than direct

evidence.” State v. Jackson, 57 Ohio St.3d 29, 38, 565 N.E.2d 549 (1991).

{¶ 27} R.C. 2909.06(A)(1) provides: “No person shall cause, or create a substantial

risk of physical harm to any property of another without the other person's consent: (1)

Knowingly, by any means[.]” “A person acts knowingly, regardless of his purpose, when

he is aware that his conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B).

{¶ 28} In the instant case, Carson does not dispute that the damage to Kinsler’s

and Manning’s trucks constituted harm to property. Rather, Carson argues that the

weight of the evidence failed to establish that she was the individual who damaged the

trucks. Carson also argues that the evidence adduced at trial failed to establish that she

damaged Manning’s truck without his consent.

{¶ 29} In the instant case, the jury was presented with both direct and

circumstantial evidence of Carson’s guilt. With respect to the direct evidence adduced

at trial, Prince testified that she personally observed Carson walk over to Kinsler’s truck

and use a key to scratch the paint on the sides and hood of the truck. Kinsler testified
 -12-

that his truck had not been “keyed” prior to his entering the bar. Kinsler learned his truck

had been scratched only 20 minutes later when he went outside in response to Prince’s

suggestion that Carson was “keying” what Prince believed to be Manning’s truck. Kinsler

also testified that he did not give Carson permission to damage his truck.

{¶ 30} Regarding the damage done to Manning’s vehicle, the evidence adduced,

both direct and circumstantial, supported Carson’s conviction for criminal damaging.

Specifically, evidence was adduced which established that immediately prior to the

“keying” of the trucks, Carson had initiated a verbal altercation with Manning, who had

recently ended a relationship with her. Prince had just witnessed Carson “key” Kinsler’s

truck, and Manning’s truck was parked only two spaces away. Prince, Mullins, Kinsler,

Manning, and Officer Gabbard all had an opportunity to view the damage done to both

trucks, and they all testified that the damage done to both trucks was similar in

appearance and pattern. Manning testified that, other than some distinct preexisting

damage to the hood of his truck, the truck was otherwise undamaged prior to Carson’s

appearance at the bar. Although Manning did not specifically testify that Carson lacked

consent to “key” his truck, the circumstantial evidence adduced at trial clearly supported

that Carson did not have Manning’s consent to damage his vehicle. See State v. Drane,

2d Dist. Montgomery No. 21626, 2007-Ohio-2591, ¶ 14-15 (finding that where the State

properly established that appellant acted “without consent” through circumstantial

evidence in a conviction for criminal damaging, the trial court did not err in overruling her

motion for an acquittal). Therefore, we find that Carson’s convictions for criminal

damaging were supported by sufficient evidence.

{¶ 31} Having reviewed the record, we find no merit in Carson's manifest-weight
 -13-

challenge. It is well-settled that evaluating witness credibility is primarily for the trier of

fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. Here, the

jury quite reasonably credited the extensive testimony provided by all of the State's

witnesses, evaluated said evidence and all reasonable inferences related to the elements

of the offenses, and found Carson guilty. Having reviewed the entire record, we cannot

clearly find that the evidence weighed heavily against conviction, or that a manifest

miscarriage of justice occurred.

{¶ 32} Carson’s second and third assignments of error are overruled.

{¶ 33} Carson’s fourth assignment of error is as follows:

THE TRIAL COURT ERRED THAT [sic] APPELLANT WAS DENIED A

RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY [THE] SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND BY SECTION 10, ARTICLE 1, OHIO

CONSTITUTION.

{¶ 34} In her fourth assignment, Carson argues that her right to a speedy trial was

violated “by virtue of the lengthy span of time between service of the Complaint on June

17, 2016, and the trial [held] on January 19, 2017.” Therefore, Carson contends that the

record fails to establish that she was brought to trial within a reasonable time.

{¶ 35} As this Court has noted:

The right to a speedy trial is guaranteed by the United States and

Ohio Constitutions. State v. Adams (1989), 43 Ohio St.3d 67, 68, 538

N.E.2d 1025. The speedy trial provisions of the Ohio statutes must be

strictly construed against the State. Brecksville v. Cook (1996), 75 Ohio
 -14-

St.3d 53, 55, 661 N.E.2d 706. A defendant can establish a prima facie case

for a speedy trial violation by demonstrating that the trial was held past the

time limit set by statute for the crime with which the defendant is

charged. State v. Price (1997), 122 Ohio App.3d 65, 68, 701 N.E.2d 41. If

the defendant can make this showing, the burden shifts to the State to

establish that some exception[s] applied to toll the time and to make the trial

timely. Id. If the State does not meet its burden, the defendant must be

discharged. R.C. § 2945.73. See, also, State v. Coatoam (1975), 45 Ohio

App.2d 183, 185-186, 341 N.E.2d 635.

State v. Gray, 2d Dist. Montgomery No. 20980, 2007-Ohio-5449, ¶ 15.

{¶ 36} R.C. 2945.71 provides in relevant part:

***

(B) Subject to division (D) of this section, a person against whom a

charge of misdemeanor, other than a minor misdemeanor, is pending in a

court of record, shall be brought to trial as follows:

***

(2) Within ninety days after the person's arrest or the service of

summons, if the offense charged is a misdemeanor of the first or second

degree, or other misdemeanor for which the maximum penalty is

imprisonment for more than sixty days.

{¶ 37} The docket reflects that Carson was served with her summons on June 17,

2016. After 27 days elapsed, she requested and was granted a continuance on July 14,

2016, and a second pretrial was scheduled for July 28, 2016. Even without analyzing
 -15-

the effect of Carson’s August 5, 2016 jury demand, Carson filed a speedy trial waiver on

September 22, 2016, at which point only 83 days of speedy trial time had elapsed (27

days from June 17, 2016 until July 14, 2016, plus 56 days from July 28, 2016 until

September 22, 2016). Accordingly, we find that the record fails to support Carson’s

argument that her right to speedy trial was violated.

{¶ 38} Carson fourth assignment of error is overruled.

{¶ 39} Carson’s fifth and final assignment of error is as follows:

THE TRIAL COURT ERRED IN AMENDING THE TWO COUNTS OF

CRIMINAL DAMAGING AT BEGINNING OF TRIAL THEREBY

MATERIALLY PREJUDICING APPELLANT’S DEFENSES UPON THE

MERITS AND RESULTING IN A FAILURE OF JUSTICE.

{¶ 40} In her final assignment, Carson argues that the trial court erred when it

allowed the amendment of the complaint to insert the names of Kinsler and Manning, the

victims whose trucks were criminally damaged.

{¶ 41} Initially, we note that Carson failed to object to the trial court’s decision to

amend the complaint to include Kinsler and Manning’s names. In the absence of an

objection, we review the trial court's decision for plain error. In order to constitute plain

error, the error must be an obvious defect in the trial proceedings, and the error must

have affected substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147, 2015-

Ohio-624, ¶ 22; Crim.R. 52(B). Plain error should be noticed “with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 42} Crim.R. 7(D) provides in part:
 -16-

The court may at any time before, during, or after a trial amend the

indictment, information, complaint, or bill of particulars, in respect to any

defect, imperfection, or omission in form or substance, or of any variance

with the evidence, provided no change is made in the name or identity of

the crime charged. If any amendment is made to the substance of the

indictment, information, or complaint, or to cure a variance between the

indictment, information, or complaint and the proof, the defendant is entitled

to a discharge of the jury on the defendant's motion, if a jury has been

impaneled, and to a reasonable continuance, unless it clearly appears from

the whole proceedings that the defendant has not been misled or prejudiced

by the defect or variance in respect to which the amendment is made, or

that the defendant's rights will be fully protected by proceeding with the trial,

or by a postponement thereof to a later day with the same or another jury.

***

{¶ 43} As previously stated, Carson argues that the addition of Manning and

Kinsler as the named victims in the complaint violated her substantial rights and resulted

in a failure of justice. However, this Court has held that an amendment to identify the

name of a victim does not change the identity of the offense. See, e.g., State v. Phillips,

75 Ohio App.3d 785, 600 N.E.2d 825 (2d Dist.1991), citing State v. White, 2d Dist. Greene

No. 85 CA 38, 1986 WL 4613 (Apr. 17, 1986); see also State v. Owens, 51 Ohio App.2d

132, 149, 366 N.E.2d 1367 (9th Dist.1975) (“An amendment to an indictment which

changes the name of the victim changes neither the name nor the identity of the crime

charged.”).
 -17-

{¶ 44} In the instant case, the inclusion of Manning and Kinsler as the named

victims in the complaint did not change the identity or degree of the criminal damaging

offenses and did not prejudice Carson's defense. Moreover, Carson has failed to

demonstrate any prejudice or harm by an amendment that would identify the victims by

name. Therefore, we conclude that Carson has failed to establish that the trial court

erred, plainly or otherwise, when it amended the complaint to include the names of

Manning and Kinsler as the two victims of criminal damaging.

{¶ 45} Carson’s fifth and final assignment of error is overruled.

{¶ 46} All of Carson’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

.............

FROELICH, J. and HALL, J., concur.

Copies sent to:

Amy Musto
Andrew D. Sexton
Carlo McGinnis
Hon. Carl S. Henderson