[Cite as State v. Thompson, 2017-Ohio-8375.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-812
v. : (M.C. No. 2016 CRB 16315)
Tyon Thompson, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 31, 2017
On brief: Richard C. Pfeiffer, Jr., City Attorney, and Orly
Ahroni, for appellee. Argued: Orly Ahroni.
On brief: Yeura R. Venters, Public Defender, and David L.
Strait, for appellant.
APPEAL from the Franklin County Municipal Court
SADLER, J.
{¶ 1} Defendant-appellant, Tyon Thompson, appeals from a judgment of
conviction and sentence entered by the Franklin County Municipal Court pursuant to a
jury verdict finding him guilty of one count of criminal mischief, a violation of R.C.
2909.07(A)(1).
I. GENERAL FACTS AND PROCEDURAL HISTORY
{¶ 2} The case began with complaints charging appellant with one count of
criminal damaging, in violation of R.C. 2909.06, one count of criminal mischief, in
violation of R.C. 2909.07, and one count of disorderly conduct, in violation of R.C.
2917.11, all three charges arising out of the same incident occurring on June 24, 2016.
The case proceeded to jury trial in which appellant represented himself. The jury
No. 16AP-812 2
returned not guilty verdicts on the criminal damaging and disorderly conduct charges and
a guilty verdict on the criminal mischief count. The court imposed a fine of $250 plus
court costs.
II. ASSIGNMENTS OF ERROR
{¶ 3} Appellant timely appeals and brings the following two assignments of error
for our review:
[1.] The judgment of the trial court was not supported by
sufficient credible evidence.
[2.] The judgment of the trial court is against the manifest
weight of the evidence.
A. First Assignment of Error
{¶ 4} Appellant's first assignment of error asserts that there was insufficient
evidence to convict him as matter of law. Sufficiency of the evidence is a legal standard
that tests whether the evidence is legally adequate to support a verdict. State v.
Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to
support a verdict is a question of law, not fact. Id. In determining whether the evidence is
legally sufficient to support a conviction, " '[t]he relevant inquiry is 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. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus. The verdict will not be disturbed on
appeal on the basis of insufficient evidence unless, after viewing the evidence in a light
most favorable to the prosecution, it is apparent that reasonable minds could not reach
the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484
(2001). A reversal based on insufficient evidence has the same effect as a not guilty
verdict because such a determination "means that no rational factfinder could have voted
to convict the defendant." Tibbs v. Florida, 457 U.S. 31, 41 (1982).
{¶ 5} In a sufficiency-of-the-evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is credible but only whether the evidence, if believed,
supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-
80 (evaluation of witness credibility not proper on review for sufficiency of evidence);
No. 16AP-812 3
State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a
sufficiency of the evidence review, an appellate court does not engage in a determination
of witness credibility; rather, it essentially assumes the state's witnesses testified
truthfully and determines if that testimony satisfies each element of the crime"). As a
result, "the testimony of one witness, if believed by the jury, is enough to support a
conviction." State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42; see also
State v. Clark, 10th Dist. No. 15AP-926, 2016-Ohio-5493, ¶ 25.
{¶ 6} The charges against appellant arose out of an incident in which he allegedly
destroyed a surveillance camera in the common area of his shared office space. The
principal witness for the prosecution was Buffie Patterson, the other occupant of the office
space, who had installed the security camera in question. Patterson testified that she was
the primary tenant for the office space, which included a common area and two individual
offices. Appellant sublet one of the individual offices from her. Because a personal
relationship between the two of them had ended badly some time before, there was some
ongoing tension between Patterson and appellant.
{¶ 7} Patterson testified that she considered the reception area to be common
space to which both would have access but that she had no right to access appellant's
private office nor he to access hers. On June 22, 2016, Patterson had a security company
install a surveillance camera in her private office and another in the common area. She
stated she did so because appellant had accused her of infringing on his office space and
possessions, and Patterson wanted to be able to refute any future allegations of this sort.
In connection with this testimony, the prosecution presented as an exhibit an invoice
from Lincoln Technology, which installed the camera equipment at a total price of
$586.35, including $300 for the two cameras.
{¶ 8} On June 24, 2016, two days after installing the security cameras, Patterson
noted that some filing cabinets in the common area had been moved and replaced with a
couch owned by appellant. A note on the couch said "I dare anyone to touch my stuff
again." (Tr. at 101.) On this occasion, Patterson also noticed that the camera in the
common area had been blinded by turning it toward the wall. Patterson turned the
camera back to cover the common office and commenced to take pictures of the situation.
As she did so, appellant came out of his office, brushed past her, stepped up on his couch,
No. 16AP-812 4
and pulled the security camera from the ceiling. He threw it to the floor in her private
office, where it shattered.
{¶ 9} After the situation calmed down, Patterson called Lincoln Technology,
which was unable to reinstall the camera because of damage to the wires.
{¶ 10} Jenifer Rutherford testified for the prosecution as an eyewitness to the
confrontation. She was friendly with Patterson and also knew appellant, who had
introduced them. Rutherford and her nephew were helping Patterson move some boxes
on the day in question. Rutherford confirmed that initially the camera was pointed
toward the wall, and Patterson attempted to move it. Appellant then came out of his
office, yanked the camera from the wall, and threw it on the floor where it broke into
pieces.
{¶ 11} Officer Kevin Smith of the Columbus Division of Police testified that on
June 24, 2016, he was on routine patrol and responded to a reported disturbance at 750
East Long Street in Columbus. He intervened in a dispute between a landlord, whom he
identified as Patterson, and her tenant, whom he identified as appellant. When Smith
spoke with appellant at the scene, appellant stated that he had taken the camera out of the
ceiling and put it on a desk without breaking it. Smith did observe the camera lying on
the floor in pieces at the scene.
{¶ 12} Appellant testified in his own defense. He confirmed that the office
consisted of two private offices and a common area. He felt that Patterson had no right
under the lease to install a camera in the common area. As an exhibit, appellant
introduced a copy of the lease between himself and Patterson's company, providing for
quiet enjoyment of the premises by the tenant without encumbrance or hindrance from
the landlord. Appellant testified that he reoriented the camera against the wall to
preserve the security and confidentiality of his own office and deemed it an invasion of his
right of privacy as a tenant when she again pointed it at his office door.
{¶ 13} On cross-examination, appellant admitted that the lease did not expressly
prohibit Patterson from installing the camera in the common area. He also admitted that
the lease did not give him the right to tamper with or disturb Patterson's property or
remove the camera. He admitted to moving the camera so that it faced toward the wall.
He stated that after removing the camera from its mounting without causing any
No. 16AP-812 5
breakage, he attempted to hand it to Patterson, who backed up and would not take it.
Because appellant was not allowed in Patterson's office, he tossed the camera into her
office and walked back into his own. When he did so, the camera came apart in two
pieces. When a technician came to reinstall the camera, appellant told him not to do so,
and appellant stated that if the technician had reinstalled the camera, appellant would
have again removed it.
{¶ 14} The state submitted as an exhibit video recordings from the two cameras,
including the one in the common area and the one in Patterson's office. The video from
the camera in the common area shows Patterson adjusting the camera so that it scans the
common area, rather than facing the wall. Appellant is seen walking by Patterson toward
the camera. When he reaches the camera, it ceases recording.
{¶ 15} The video from the camera in Patterson's private office shows Rutherford
and her nephew sitting inside the office with the door to the common area open. An
object is seen being thrown into the office and splitting into two pieces when it hits the
floor. A still shot from the video shows Patterson pointing at the camera parts on her
office floor while a police officer stands in the background.
{¶ 16} After closing arguments, the trial court provided the following jury
instruction as the jury took the case:
As to the charge of criminal mischief, you may consider all of
the evidence before you, including the lease agreement
between [appellant] and Buffie Patterson. If you determine,
after your review of the evidence, that Buffie Patterson had no
legal right to install the camera in question in the location it
was placed, and only if you determine that this prohibition
existed in the lease, you may consider whether [appellant] has
a defense to the charge of criminal mischief and only the
charge of criminal mischief.
(Tr. at 253.)
{¶ 17} Appellant presents two arguments to establish the insufficiency of the
evidence at trial. He first argues that a mistake of fact negates the mens rea necessary to
support conviction for the crime of criminal mischief. In the alternative, he argues that
his action in destroying the camera was self-help to abate a nuisance and therefore
privileged.
No. 16AP-812 6
{¶ 18} R.C. 2909.07(A) defines the offense of criminal mischief:
No person shall:
(1) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with * * *
the following:
(a) The property of another.
{¶ 19} Appellant first argues that a mistake of fact negates the element of
"knowingly" and prevents conviction on the offense. Appellant argues that he believed
that he had a right under the lease to remove the intrusive camera. Appellant does not
argue on appeal that the evidence was lacking regarding the other elements of the offense.
{¶ 20} R.C. 2901.22(B) states that "[a] person acts knowingly, regardless of
purpose, when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature." With respect to the required mental state of
"knowingly," mistake of fact is an affirmative defense. State v. Cooper, 10th Dist. No.
09AP-511, 2009-Ohio-6275, ¶ 9. " '[T]he due process "sufficient evidence" guarantee does
not implicate affirmative defenses, because proof supportive of an affirmative defense
cannot detract from proof beyond a reasonable doubt that the accused had committed the
requisite elements of the crime.' " State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160,
¶ 37, quoting Caldwell v. Russell, 181 F.3d 721, 740 (6th Cir.1999). We can therefore
address the mistake-of-fact defense only in the context of the manifest weight standard
under appellant's second assignment of error.
{¶ 21} Appellant then argues that his actions were not "without privilege" under
R.C. 2909.07(A)(1) because he had the right to exercise self-help in abating the nuisance
constituted by the cameras. Appellant presents no authority for the proposition that Ohio
recognizes abatement of a nuisance as a defense to criminal mischief, and one Ohio court
has rejected the defense in a burglary case: " 'Self-help' replevin is not an affirmative
defense to burglary." State v. Sims, 8th Dist. No. 54278 (Nov. 3, 1988). If we look to
foreign cases for guidance, at least one state specifically rejects this concept, the defense in
a crime similar to the one before us. Barstow v. State, Texas Crim.App. No. 03-10-00142-
CR, 2011 Tex.App. LEXIS 3236 (Apr. 27, 2011) ("[T]o the extent that Barstow is arguing
No. 16AP-812 7
that he had a right under 'the common law' to 'abate the nuisance' * * *, this argument is
without merit. Even if we were to assume * * * a nuisance as that term is defined, abating
a nuisance is not recognized in the penal code as a defense to criminal mischief. Thus, it
is not a valid defense to the commission of the offense."). Others seem to contemplate it
with reservations, such as prior notice or warning before undertaking self-help. See
generally United States v. Heathershaw, 81 F.3d 765 (1996) (reviewing conflicting state
law regarding self-help replevin as a defense to theft).
{¶ 22} Even accepting, arguendo, that Ohio recognizes such a privilege in
connection with the mens rea of criminal mischief, we find that the state presented
sufficient evidence on the mens rea element of the crime. The existence of a "knowing"
state of mind as an element of a criminal offense "is to be determined from all the
attendant facts and circumstances available." State v. Teamer, 82 Ohio St.3d 490, 492
(1998). The jury could conclude from the language of the lease and the testimony
regarding the cameras in the common office area that these simply did not establish a
nuisance redressable through self-help. Under a sufficiency standard, therefore, the
evidence, if believed, could support the requisite mens rea. For the foregoing reasons, we
overrule appellant's first assignment of error.
B. Second Assignment of Error
{¶ 23} We now turn to appellant's second assignment of error. In contrast to our
review of sufficiency-of-the-evidence issues, when presented with a manifest-weight
challenge, we must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine 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.
Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
"Weight of the evidence concerns 'the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be established before them.
No. 16AP-812 8
Weight is not a question of mathematics, but depends on its effect in inducing belief.' "
(Emphasis sic.) Thompkins at 387, quoting Black's Law Dictionary 1594 (6th Ed.1990).
{¶ 24} As the finder of fact, the jury is in the best position to weigh the credibility of
testimony by assessing the demeanor of the witnesses and the manner in which they
testify, the witnesses' connection or relationship with the parties, and their interest, if any,
in the outcome. The jury can accept all, a part, or none of the testimony offered by a
witness, whether it is expert opinion or eyewitness fact, whether it is merely evidential or
tends to prove the ultimate fact. State v. McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-
5894, ¶ 13, quoting State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing
State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 25} When engaged in this limited reweighing, the appellate court may not
merely substitute its view for that of the trier of fact, and in criminal cases should reserve
reversal of a conviction as being against the manifest weight of the evidence for only the
most " 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting Martin at 175.
{¶ 26} Again, appellant only addresses the mental state required for the offense
and does not dispute the weight of the evidence regarding the other elements of the
offense for which he was convicted. Nor can our sua sponte review of the record disclose
any such deficiency. The state presented sufficient evidence as to each element of the
offense: Patterson testified that she owned the camera, that it was installed in the
common area of the office, and that appellant removed and damaged the camera without
her permission. Rutherford testified in support of these essential facts. Appellant's own
testimony contradicted little except the degree of damage to the camera. Although
appellant contests whether the camera was broken, he does not otherwise dispute the
circumstances under which he removed the camera from the ceiling, nor that the camera
did not belong to him and in fact belonged to Patterson. Because there is conflicting
evidence on whether the camera was damaged in the process, the jury was free to believe
Patterson's account that the camera was shattered and could not be repaired and
disbelieve appellant's testimony that it was not in fact damaged.
{¶ 27} We thus consider only the mens rea element under appellant's proposed
mistake-of-fact defense. Mistake of fact may negate a showing of mens rea where there is
No. 16AP-812 9
a requirement that the defendant acted "knowingly." State v. Snowden, 7 Ohio App.3d
358, 363 (10th Dist.1982); State v. Jordan, 2d Dist. No. 17686 (July 30, 1999). Here,
however, appellant does not dispute the essential conduct giving rise to the offense, nor
the context in which it occurred but, instead, asserts that he had the right to so act and
subjectively believed that his actions were legal. See generally State v. Johnson, 12th
Dist. No. CA97-07-006 (Jan. 5, 1998). As such, appellant's arguments actually assert a
mistake of law rather than a mistake of fact. The case is distinguishable from the situation
in Snowden, in which the defendant had reasonable grounds to believe that factual
circumstances supported his actions. Mistake of law is not a defense in Ohio. State v.
Pinkney, 36 Ohio St.3d 190, 198 (1988). We therefore overrule appellant's second
assignment of error.
III. CONCLUSION
{¶ 28} Based on the foregoing, we find that appellant's conviction is supported
both by the manifest weight of the evidence and sufficient evidence to support conviction
as a matter of law. We overrule appellant's two assignments of error and affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
BROWN and BRUNNER, JJ., concur.
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