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Date: 06-29-2022
Case Style:
STATE OF OHIO VS. GREGG THOMAS
Case Number: C-210519
Judge:
Pierre H. Bergeron
Court:
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
On appeal from The Hamilton County Municipal Court
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney
Defendant's Attorney:
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Description:
Cincinnati, Ohio - Criminal Defense lawyer represented defendant with a criminal damaging charge.
In January 2021, defendant-appellant Gregg Thomas worked at the
KFC/Taco Bell in Norwood. During one of his shifts, some type of disagreement
erupted between Mr. Thomas and the manager, Ruth Whetstone. Frustrated by his
behavior, Ms. Whetstone sent Mr. Thomas home and assumed that he left the
premises. But about a half hour later, other employees alerted her to the fact that he
was lingering in the parking lot near her car. Prying open the door, Ms. Whetstone
observed Mr. Thomas “ranting and raging” outside the restaurant while “destroying”
her car, which now had a conspicuous pile of trash dumped on its roof. She confronted
Mr. Thomas about the scene and claims that he admitted, “Yeah, I did it”—although it
remains unclear whether he was simply acknowledging littering on her car or actually
inflicting damage to it (that she would soon notice). Ms. Whetstone then called the
Norwood police, who escorted Mr. Thomas off the property. Afterwards, Ms.
Whetstone inspected her car only to discover the bumper kicked in and a windshield
wiper bent backwards.
{¶3} The Norwood police charged Mr. Thomas with criminal damaging
pursuant to R.C. 2909.06(A)(1). Ms. Whetstone was the only witness during the bench
OHIO FIRST DISTRICT COURT OF APPEALS
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trial, and in addition to her testimony, the state produced a photograph of Mr. Thomas
standing near Ms. Whetstone’s car with what appears to be a pile of trash on the roof.
No other damage to Ms. Whetstone’s vehicle is visible in the photograph. The trial
court found Mr. Thomas guilty of criminal damaging and sentenced him to 30 days in
jail suspended, six months of probation, and court costs.
{¶4} Mr. Thomas now appeals, presenting three assignments of error. In his
first assignment of error, Mr. Thomas maintains that the state failed to present
sufficient evidence to sustain a conviction for criminal damaging. His second
assignment of error claims that the trial court erred by considering his alleged
confession before the state established the corpus delicti of the crime. And in his third
assignment of error, Mr. Thomas argues that his conviction was against the manifest
weight of the evidence.
II.
{¶5} For ease of discussion, we address Mr. Thomas’ first and third
assignments of error together, both of which take aim at the state’s evidence (or lack
thereof). Turning first to Mr. Thomas’ sufficiency challenge, “the question is whether
the evidence presented, when viewed in a light most favorable to the prosecution,
would allow any rational trier of fact to find the essential elements of the crime beyond
a reasonable doubt.” State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d
816, ¶ 15. Sufficiency determinations are reviewed de novo but “the court is not to
weigh the evidence.” State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-
Ohio-3595, ¶ 12; Dent at ¶ 15 (“Our [sufficiency-of-the-evidence] review is de novo.”).
To obtain a conviction for criminal damaging, the state must prove that Mr. Thomas
knowingly caused or created a substantial risk of physical harm to Ms. Whetstone’s
OHIO FIRST DISTRICT COURT OF APPEALS
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property. R.C. 2909.06(A)(1) (“No person shall cause, or create a substantial risk of
physical harm to any property of another without the other person’s consent * * *
[k]nowingly, by any means.”). “ ‘Physical harm to property’ means any tangible or
intangible damage to property that, in any degree, results in loss to its value or
interferes with its use or enjoyment.” (Emphasis added.) R.C. 2901.01(A)(4). Since
the defense does not dispute that the damage to the bumper or windshield wiper
constitutes “physical harm to property,” Mr. Thomas’ argument boils down to whether
the evidence sufficed to show that he inflicted the harm.
{¶6} According to Mr. Thomas, the only evidence marshaled by the state was
a photo showing trash on the roof of Ms. Whetstone’s car. Assuming he did confess to
dumping the trash, Mr. Thomas decries the impropriety of using such an admission to
infer that his criminal conduct extended to the bumper and windshield wiper damage.
{¶7} The law does not require the state to produce direct evidence that Mr.
Thomas committed each individual act of vandalism. The elements of a crime may be
proven by circumstantial evidence. “ ‘Circumstantial evidence and direct evidence
inherently possess the same probative value and therefore should be subject to the
same standard of proof.’ ” State v. Lowery, 160 Ohio App.3d 138, 2005-Ohio-1181,
826 N.E.2d 340, ¶ 19 (1st Dist.), quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph one of the syllabus. Less than an hour after being disciplined
and sent home from work by Ms. Whetstone, Mr. Thomas was photographed standing
alone in an agitated state next to her trash-riddled car on a dark, snowy night. No
other cars or individuals appear in the vicinity. That suffices as circumstantial
evidence from which the trial court could conclude that any confession on the part of
OHIO FIRST DISTRICT COURT OF APPEALS
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Mr. Thomas—“Yeah, I did it”—extended beyond the trash to the windshield wiper and
bumper damage.
{¶8} Mr. Thomas also asserts that, assuming we excluded consideration of
his confession, merely being near Ms. Whetstone’s car is not proof that he damaged it.
In this regard, Mr. Thomas features State v. Dotson, 8th Dist. Cuyahoga No. 98884,
2013-Ohio-2200. In Dotson, a jilted boyfriend showed up at his ex-girlfriend’s house
with another individual to collect some belongings left there. Id. at ¶ 4. The exgirlfriend’s father ordered Mr. Dotson and his friend to leave, after which the living
room window shattered. Id. The trial court acknowledged that the state failed to
identify who broke the window, and neither the ex-girlfriend nor her father witnessed
Mr. Dotson commit the act. Id. at ¶ 3-4. The Eighth District reversed the criminaldamaging conviction because “the state’s evidence established merely that Dotson was
present when the window shattered.” Id. at ¶ 13.
{¶9} Mr. Thomas’s conviction is factually distinct from Dotson because he
was the only party involved, and as far as the record discloses, the only person
anywhere near the car. Dotson involved a “who-done-it” scenario where the state
could not identify the culpable party between Mr. Dotson and his friend. Unlike a
scenario with multiple individuals present who could have caused the damage, here,
we have a solitary individual near the vehicle when it was damaged—who,
coincidentally, was the same person Ms. Whetstone dismissed from work shortly
before the damage occurred. “On a sufficiency challenge, we generally defer to the
credibility determinations of the trial court so long as those determinations are
reasonable.” State v. Cole-Walker, 1st Dist. Hamilton No. C-200038, 2021-Ohio1507, ¶ 13. Viewing the evidence in a light most favorable to the state, as we must in a
OHIO FIRST DISTRICT COURT OF APPEALS
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sufficiency challenge, we cannot say that no reasonable trier of fact could conclude that
Mr. Thomas dumped the trash, dented the bumper, and bent the windshield wiper.
Accordingly, Mr. Thomas’ first assignment of error challenging the sufficiency of the
evidence is overruled.
{¶10} Although we find sufficient evidence to support the conviction, we may
nevertheless conclude that the judgment is against the manifest weight of the
evidence. State v. Patton, 1st Dist. Hamilton No. C-190649, 2021-Ohio-295, ¶ 16.
“[T]he sufficiency of the evidence is quantitatively and qualitatively different from the
weight of the evidence.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,
972 N.E.2d 517, ¶ 23. Because we are sitting as a “thirteenth juror” when evaluating
the manifest weight of the evidence, State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997), we will “review the entire record, weigh the evidence and
reasonable inferences, [and] consider the credibility of the witnesses.” State v.
Barnthouse, 1st Dist. Hamilton No. C-180286, 2019-Ohio-5209, ¶ 6. But we will only
reverse and grant a new trial if “the trier of fact clearly lost its way, resulting in a
manifest miscarriage of justice.” Id.
{¶11} On his weight-of-the-evidence challenge, Mr. Thomas argues that his
alleged confession of “Yeah, I did it,” is too vague to be attributed to anything other
than the trash pile on top of the vehicle. Mr. Thomas insists that the trash alone cannot
support the “physical harm” element of criminal damaging, and certainly the trash did
not cause damage to the bumper or the windshield wiper. But it is reasonable to infer
that an employee who is angry enough to lash out by hanging around in freezing
temperatures and dumping trash on a car would also be prompted to inflict damage
on the bumper and bend the windshield wiper.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶12} Finally, in his manifest-weight challenge, Mr. Thomas claims that Ms.
Whetstone failed to testify about any specific damage caused by the trash. In support,
Mr. Thomas relies on State v. Reams, 3d Dist. Auglaize No. 2-04-28, 2005-Ohio-1085,
in which the defendant admitted to kicking the license plate of a car but denied kicking
the body as alleged by the victim. The victim in Reams presented no evidence of
resulting damage from the alleged kick and her daughters gave conflicting testimony
about the prior condition of the car. Id. at ¶ 15. The Third District held that where
“three State witnesses never agree on a single dent on the body of the car,” the
conflicting evidence weighed heavily against the criminal-damaging conviction. Id.
{¶13} Building on Reams, Mr. Thomas’ argument centers on damage caused
by the trash, but he ignores the fact that the trial court found him responsible for all
of the damage. Unlike in Reams, Ms. Whetstone produced an estimate showing that
she suffered $900 worth of damages to her bumper, and we see no conflicting evidence
on this score. Direct evidence against Mr. Thomas may be scarce, but this is far from
being the “exceptional case in which the evidence weighs heavily against the
conviction.” See State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Accordingly, we overrule Mr. Thomas’ third assignment of error
challenging the weight of the evidence.
III.
{¶14} In his second assignment of error, Mr. Thomas avers that the trial court
erred by admitting his confession into evidence before the state established the corpus
delicti of the crime. “Before a confession to a crime is admissible, the state must have
some evidence outside of the confession tending to establish the corpus delicti.” State
v. Kraft, 1st Dist. Hamilton No. C-060238, 2007-Ohio-2247, ¶ 18, citing State v.
OHIO FIRST DISTRICT COURT OF APPEALS
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Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph one of the syllabus.
“The state’s evidentiary burden under the corpus delicti rule is minimal: only a
‘modicum of evidence’ is necessary to satisfy the rule.” Kraft at ¶ 20, quoting State v.
Marshall, 5th Dist. No. 2005CA00052, 2006-Ohio-83, ¶ 19. “This evidence does not
need to relate to every element of the offense and can be circumstantial.” Id.
{¶15} Mr. Thomas insists that because dumping trash on a vehicle is not a
criminal act under R.C. 2909.06(A)(1), the state must produce independent evidence
of the damage to the bumper outside of his alleged trash-dumping confession.
Assuming this point for argument’s sake, it fails to consider the totality of the
evidentiary record. Ms. Whetstone testified that shortly after she ordered Mr. Thomas
to leave work, she and multiple other employees observed him near her car. He
appeared upset, hurled insulting names at her, and no one else was in the vicinity of
the vehicle that now had trash on top of it. After this incident, she discovered the
damage to her car. Is this an open and shut case? No, but this testimony satisfies the
“modicum of evidence,” even if circumstantial, necessary to establish the corpus delicti
of criminal damaging and therefore supports the admission of Mr. Thomas’
confession. Accordingly, Mr. Thomas’ second assignment of error is overruled.
Outcome: In light of the foregoing analysis, we overrule all of Mr. Thomas’
assignments of error and affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: