State v. Nicholson

[Cite as State v. Nicholson, 

.]

                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




STATE OF OHIO,                                  :   APPEAL NOS. C-220076
                                                                C-220077
       Plaintiff-Appellee,                      :   TRIAL NOS. 21CRB-22360A
                                                               22CRB-785
 vs.                                            :

JOSHUA NICHOLSON,                               :
                                                      O P I N I O N.
    Defendant-Appellant.                        :




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in Part, Sentences Reversed in Part, and
                             Cause Remanded

Date of Judgment Entry on Appeal: December 21, 2022



Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Rebecca Barnett, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant
Public Defender, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Presiding Judge.

       {¶1}    Defendant-appellant Joshua Nicholson was convicted of two counts of

criminal damaging that stemmed from his slashing tires on two different vehicles,
including a company truck and a woman’s car. The trial court sentenced Nicholson to
consecutive 90-day jail terms and ordered that he pay restitution to the victims.

       {¶2}    On appeal, Nicholson challenges the trial court’s denial of his motion to
dismiss on speedy-trial grounds, the weight and sufficiency of the evidence supporting
his convictions, and the trial court’s order that he pay restitution. Finding that no

speedy-trial violation occurred, and that Nicholson’s convictions were supported by

the evidence, we affirm his convictions. However, as the state concedes, the trial court
erred by failing to hold a restitution hearing where the amount of restitution was in

dispute. Therefore, we reverse the trial court’s order as to the amount of restitution,

and we remand this matter to the trial court to hold an evidentiary hearing on
restitution.

                                    Speedy Trial
       {¶3}    In his first assignment of error, Nicholson argues that the trial court

erred by denying his motion to dismiss the criminal-damaging charge related to the
company truck. He asserts that the state’s delay in trying him on that charge violated
his right to a speedy trial.
       {¶4}    When Nicholson was first arrested, he was charged with felony
vandalism for damaging the company truck, along with two other misdemeanor
charges unrelated to that truck. Bond was set at $75,000 on the felony charge and at
$2,500 on each of the misdemeanor charges, and the cases were continued to await

the report of the grand jury. The grand jury ignored the felony charge, but Nicholson
remained jailed on the misdemeanors.
       {¶5}    Then, while Nicholson was in jail, the police filed a second felony
vandalism charge for the same damage to the company truck and served him with the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



felony complaint. He received a recognizance bond on the new felony charge, and,
although the prosecutor soon dismissed the new felony charge, he remained in jail on

the misdemeanors.
       {¶6}   While Nicholson was still jailed on the misdemeanors, the police filed
yet another charge against Nicholson for the same damage to the company truck, this

time charging him with criminal damaging, a second-degree misdemeanor. Because
Nicholson had been in jail since his arrest on December 22, 2021, he filed a motion to
dismiss the misdemeanor charge related to the company truck, arguing that he had

been held beyond the speedy-trial time allowed for a person jailed on a second-degree

misdemeanor. He now argues that the trial court erred by denying the motion.
       {¶7}   To answer this question, we must look to R.C. 2945.71, which codifies

the constitutional right to a speedy trial. Generally, a person charged with a felony

must be brought to trial within 270 days after arrest, and a person charged with a
second-degree misdemeanor must be brought to trial within 90 days.                R.C.

2945.71(B)(2) and (C)(2). In computing time, each day during which the person is

held in jail in lieu of bail on the pending charge is counted as three days. R.C.
2945.71(E). So a person held in jail on a pending felony charge must be tried within

90 days, and a person held in jail on a pending second-degree misdemeanor charge
must be tried within 30 days (assuming the person is held in jail on the pending charge
the entire time).
       {¶8}   In this case, we must determine which speedy-trial period applies by
comparing the speedy-trial periods for the original felony charge and the later-filed
misdemeanor charge arising from the same damage to the company truck. Ohio courts

considering this question have held that when an original charge is later reduced to a
lesser offense based upon the same conduct, the speedy-trial limitations in R.C.
2945.71 begin to run anew on the date the defendant is served with the charge on the
lesser offense. See Cleveland v. Gross, 8th Dist. Cuyahoga No. 110669, 2022-Ohio-
193, ¶ 20 (original felony child-endangering charge was dismissed and a reduced


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                        OHIO FIRST DISTRICT COURT OF APPEALS



charge of misdemeanor child-endangering based upon the same conduct was later
filed); State v. Sitko, 11th Dist. Trumbull No. 2020-T-0016, 

(felony OVI charge was reduced by grand jury indictment to two misdemeanor OVI
charges); State v. Holmes, 5th Dist. Stark No. 2016 CA 00137, 

(felony robbery charge was reduced by grand jury indictment to misdemeanor theft);

State v. Smith, 4th Dist. Athens No. 99CA31, 

, 4-5 (Jan. 12,
2000) (felony failure-to-comply charge was dismissed and a reduced charge of
misdemeanor failure-to-comply based upon the same conduct was later filed); State

v. Choate, 1st Dist. Hamilton No. C-870281, 

, 2 (Mar. 23,

1988) (felony theft charge reduced by grand jury indictment to misdemeanor theft);
State v. Phillips, 

, 

 (10th Dist.1984) (felony

drug-abuse charge was dismissed and a reduced misdemeanor drug charge was later

filed).
          {¶9}    But “the additional number of days that the state receives to try the

defendant for the lesser charge cannot exceed the date of the speedy trial deadline of

the original charge.” State v. Clark, 11th Dist. Lake No. 2007-L-139, 

, quoting State v. Besimer, 4th Dist. Ross No. 95CA2110, 

, 6 (Feb. 28, 1996). Therefore, “[w]hen an original charge is reduced to a lesser
charge that carries a shorter speedy-trial time limit, the speedy-trial deadline will be
the earlier of (1) the speedy-trial deadline for the original charge, applied from the date
of the original charge, or (2) the speedy-trial deadline for the lesser charge, applied
from the date that the original charge was reduced to the lesser charge.” State v.
Gasnik, 

, 

 (1st Dist.1998); State v. March,

12th Dist. Butler No. CA2015-08-070, 

. “In other words, to
compute speedy trial time[,] we compare the deadlines for the original charge versus
the reduced charge, and then use the earlier of the two deadlines.” Smith at 5. “This
method of computation effectively balances the competing interests of the accused and
the state.” 

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                        OHIO FIRST DISTRICT COURT OF APPEALS



         {¶10} In this case, Nicholson was arrested on the initial felony vandalism
charge on December 22, 2021. After that felony was ignored by the grand jury and the

later felony was dismissed, he was charged on January 16, 2022, with misdemeanor
criminal damaging arising from the same facts. His trial on the criminal-damaging
charge occurred on February 11, 2022. He remained jailed from the date of his arrest

until his trial date.
         {¶11} For purposes of our calculation, we assume without deciding that the
triple-count provision of R.C. 2945.71(E) applies to the entire period Nicholson was in

jail, even though he was held for some of that period on different charges. The date of

arrest does not count toward the speedy-trial calculation, State v. Covington, 1st Dist.
Hamilton No. C-190731, 

, so the 90-day speedy-trial deadline for

the original felony vandalism charge was March 23, 2022. See R.C. 2945.71(C)(2) and

(E). The 30-day speedy-trial deadline for the lesser charge, starting from the date that
the original felony was reduced to a second-degree misdemeanor, was February 15,

2022. Thus, the speedy-trial deadline applicable in this case was February 15, 2022,

because it was the earlier of the two speedy-trial deadlines. See 

.
Nicholson’s trial began on February 11, several days before the applicable speedy-trial

deadline, so no speedy-trial violation occurred. Consequently, we hold that the trial
court properly denied Nicholson’s motion to dismiss the misdemeanor charge related
to the company truck on speedy-trial grounds. We overrule the first assignment of
error.

                    Sufficiency and Weight of the Evidence
         {¶12} In his second assignment of error, Nicholson challenges the sufficiency
of the evidence supporting his conviction for criminal damaging in the case related to
the company truck, and he challenges the weight of the evidence supporting his
convictions related to both the company truck and the woman’s car.

         {¶13} In reviewing the sufficiency of the evidence, we must determine
whether, “after viewing the evidence in a light most favorable to the prosecution, any


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                        OHIO FIRST DISTRICT COURT OF APPEALS



rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Walker, 

, 

,

, ¶ 12, quoting State v. Jenks, 

, 

 (1991),
paragraph two of the syllabus. When reviewing a challenge to the weight of the
evidence, we must review the entire record, weigh the evidence, consider the

credibility of the witnesses, and determine whether the trier of fact clearly lost its way
and created a manifest miscarriage of justice. State v. Thompkins, 

, 

 (1997).

       {¶14} Nicholson was convicted of criminal damaging in violation of R.C.
2909.06(A)(1), which provides: “No person shall cause, or create a substantial risk of
physical harm to any property of another without the other person’s consent: * * *

Knowingly, by any means[.]” R.C. 2901.01(A)(4) defines “Physical harm to property”

as “any tangible or intangible damage to property that, in any degree, results in loss to
its value or interferes with its use or enjoyment.” “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.” R.C. 2901.22(B).
       {¶15} The state presented the following evidence at trial. On December 20,
2021, Cincinnati Police Lieutenant Timothy Lanter was on patrol in Clifton when a 911
caller reported that a male wearing a winter jacket, beanie cap, and backpack had been
slashing vehicle tires in the area. Then a citizen flagged the officer down to report that
a man walking nearby had been waving a knife in the air. The citizen directed the
officer to Nicholson.
       {¶16} The officer stopped Nicholson, whose clothing fit the description given
in the 911 call: he was wearing a dark, hooded winter jacket, a grey knit hat, dark
pants, two-toned tan and dark boots, and a blue backpack.             The officer asked
Nicholson for identification and told him someone reported that he had been slashing
tires on a car. Nicholson denied it and said that he was on his way downtown. The




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                      OHIO FIRST DISTRICT COURT OF APPEALS



officer asked Nicholson if he had a knife, and Nicholson replied, “No . . . or shit, I might
have a knife on me, but * * *.”

       {¶17} The officer did not conduct a search of Nicholson’s person to discover if
he had a knife. After checking Nicholson’s identification and re-citing him for a traffic
violation, the officer allowed Nicholson to leave. At the time, the officer was not aware

that police would later receive reports that the tires of 57 vehicles had just been slashed
or damaged within a several-block radius of where he had stopped Nicholson.
       {¶18} Collin Lamping, the operation manager for ABM Parking Services
(“ABM”), testified that ABM operated two parking garages, located about a block from

each other, on Calhoun Street in Clifton. ABM owned a company truck, which
Lamping described as a white Ford Ranger, that was parked in the east garage on

Calhoun. On December 20, Lamping learned that the vehicle’s front driver’s side tire

had been slashed and that the vehicle had to be towed from the garage.
       {¶19} Lamping identified video footage from several different cameras in
ABM’s east and west garages taken on the evening of December 19, depicting episodes

occurring within a ten-minute time span. In each, a man wearing a dark hooded
winter jacket, dark pants, two-toned dark and tan boots, and a blue backpack

approached a different vehicle. In one video, the man approached the front bumper
of an off-camera vehicle, which Lamping identified as the ABM company truck. The
man looked around and then bent down at the side of the vehicle. In another video,
the man approached and made a stabbing motion toward the right front tire of a GMC
Terrain vehicle owned by Franky Hendrickson. In another video, the same man
approached a white Toyota Camry owned by Gabrielle Mahar, looked around several

times, and then bent down near the front and then the rear tires on the driver’s side of
her car. Lamping provided the ABM video footage to the police.
       {¶20} Gabrielle Mahar identified her white Toyota Camry as the vehicle in the
ABM video footage. She testified that on December 20, she noticed that both tires on
the driver’s side of her car had been slashed and were completely flat.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



          {¶21} Detective Michael Morrissey was assigned to investigate the tire
slashings that had occurred on December 19 and 20 in the Clifton area. He began his

investigation at the point where Lieutenant Lanter had stopped Nicholson and then
worked his way back toward the ABM parking garages on Calhoun Street, about five
blocks away. He testified that there was a “path of slashed tires” along multiple streets

in the area. He reviewed the ABM video footage, and, as the investigation progressed,
he reviewed footage from other cameras in the area. In a video recorded by a city-
owned surveillance camera, a man dressed similarly to the man seen in the ABM

videos bent down near a vehicle owned by Jacob Pillage, later discovered to have

sustained damage to its tires. The detective identified Nicholson as the man in all the
videos.

          {¶22} Police arrested Nicholson on December 22 and charged him with
damaging the vehicles owned by ABM, Mahar, and Hendrickson. (The charge
involving the ABM vehicle was the first felony vandalism charge and the charges

involving the other two cars were misdemeanors). According to Detective Morrissey,

at the time of the arrest, Nicholson was wearing “[t]he same two-tone boots, darker
pants, darker jacket, beanie hat” that he was seen wearing in the videos. Later, on

January 16, 2022, Nicholson was charged with criminal damaging related to the
Pillage vehicle and with the criminal-damaging charge related to the ABM company
truck.
          {¶23} Neither Pillage nor Hendrickson testified at trial, and the trial court
granted Nicholson’s Crim.R. 29 motion to dismiss the charges related to their vehicles.
The court found him guilty of the charges related to the ABM and Mahar vehicles.

          {¶24} Nicholson now argues that his conviction for criminal damaging related
to the ABM company truck was based upon insufficient evidence. Specifically, he
asserts that the testimony of the ABM manager differed from the allegations in the
complaint as to the model of Ford truck damaged and as to the number of tires that
were damaged.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} The complaint in that case tracked the language of R.C. 2909.06(A)(1),
the criminal-damaging statute—it alleged that Nicholson “did knowingly, by any

means, cause a substantial risk of physical harm to the property of ABM Parking
Services without his [sic] consent[.]”        Additionally, the complaint noted:         “The
complainant states that this complaint is base[d] on did cut [sic] 2 vehicle tires on a

1994 Ford F-150 work vehicle * * * while parked at the location of 211 Calhoun St.”
Although the complaint noted that two tires on a Ford F-150 work vehicle were
damaged and the employee testified that one tire on a Ford Ranger work vehicle was

damaged, the testimony established the elements of the offense as charged in the

complaint—Nicholson caused physical harm to the property of ABM Parking Services.
Any discrepancy between the testimony and the allegations regarding the vehicle

model and number of tires damaged was for the trier of fact to resolve. Therefore, we

hold that Nicholson’s conviction for criminal damaging related to the ABM company
truck was based upon sufficient evidence.

       {¶26} With respect to the weight of the evidence, Nicholson argues that
Detective Morrissey’s belief that Nicholson was the person depicted in the surveillance
videos “lacks credibility.” But the trial court, as the trier of fact, was in the best position

to judge the witness’s credibility. See State v. James, 1st Dist. Hamilton No. C-210597,

; State v. DeHass, 

, 

 (1967),
paragraph one of the syllabus. Following our review of the testimony and the video
evidence, we are convinced that the trial court did not lose its way or commit a
manifest miscarriage of justice in convicting Nicholson of both offenses.                  See
Thompkins, 

, 

.                We hold that Nicholson’s

convictions were supported by the weight of the evidence, and we overrule the second
assignment of error.

                                       Restitution
       {¶27} In his third assignment of error, Nicholson argues that the trial court
erred when it ordered him to pay restitution. Specifically, he asserts that the court


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                      OHIO FIRST DISTRICT COURT OF APPEALS



failed to hold a hearing, even though the amount of restitution was in dispute. The
state concedes the error.

       {¶28} If a trial court decides to impose restitution and the defendant disputes
the amount of restitution, the court must hold an evidentiary hearing.           R.C.
2929.28(A)(1). Because Nicholson disputed the amount of restitution, the trial court

erred by failing to hold an evidentiary hearing. We sustain the third assignment of
error. We reverse Nicholson’s sentences to the extent that they impose restitution,
and we remand the matter to the trial court to hold an evidentiary hearing. Our

disposition renders moot Nicholson’s additional argument about the court’s failure to

impose restitution in open court at the sentencing hearing. We affirm Nicholson’s
convictions and sentences in all other respects.

        Judgments affirmed in part, sentences reversed in part, and cause remanded.

ZAYAS and BERGERON, JJ., concur.

Please note:
       The court has recorded its own entry this date.




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