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Date: 11-07-2018

Case Style:


Case Number: 27566

Judge: Mary E. Donovan


Plaintiff's Attorney: AMY B. MUSTO

Defendant's Attorney: CARLO MCGINNIS


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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.

{¶ 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,

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:

{¶ 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

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

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.

{¶ 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:
{¶ 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
{¶ 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

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

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

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

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

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:
{¶ 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

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

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:
{¶ 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:

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

{¶ 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.

Outcome: All of Carson’s assignments of error having been overruled, the judgment
of the trial court is affirmed.

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