[Cite as State v. Bowman,
2023-Ohio-2818.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-05-005
: OPINION
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:
PRESTON L. BOWMAN, :
Appellant. :
CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
Case Nos. CRI 20220009 and CRI 20220043
Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.
Steven H. Eckstein, for appellant.
BYRNE, J.
{¶ 1} The Fayette County Court of Common Pleas convicted Preston L. Bowman
of two counts of vandalism, and Bowman appeals those convictions. For the reasons
described below, we affirm Bowman's convictions.
I. Facts and Procedural Background
{¶ 2} In January 2022, a Fayette County grand jury indicted Bowman for one count
of vandalism, a felony of the fifth degree ("Case One"). In February 2022, a Fayette County
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grand jury indicted Bowman for another count of vandalism, a felony of the fourth degree
("Case Two"). Both counts were charged as violations of R.C. 2909.05(B)(2), which makes
it a crime to knowingly cause "serious physical harm" to property owned by a governmental
entity.
{¶ 3} "Serious physical harm" is defined as "physical harm to property that results
in loss to the value of the property of one thousand dollars or more." R.C. 2909.05(F)(2).
Vandalism causing at least $1,000 in loss to the value of property is a felony of the fifth
degree, unless the "value of the property or the amount of physical harm involved" is $7,500
or more but less $150,000, in which case the offense is a felony of the fourth degree. R.C.
2909.05(E).
{¶ 4} Case One involved allegations that Bowman, on October 10, 2021, tore a sink
off the wall of his jail cell at the Fayette County Jail and threw the sink at the narrow pane
of glass in his cell door, cracking the glass. Case Two involved allegations that on
December 22, 2021, Bowman and other inmates in the jail's "G-Pod" broke five large
windows in the pod by repeatedly throwing a metal bolt at the windows. The indictment in
Case Two alleged that the value of physical harm caused by Bowman was more than
$7,500 but less than $150,000.
{¶ 5} The court consolidated Cases One and Two for purposes of a jury trial, which
commenced in May 2022.
A. The Trial
{¶ 6} Bowman does not challenge the state's evidence indicating that he was
responsible for causing the physical harm to government property in Cases One and Two.
Therefore, we need not repeat all the evidence submitted at trial except to say that the state
produced witnesses who testified about observing Bowman damaging his jail cell and the
G-Pod windows.
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{¶ 7} Instead, this appeal concerns the evidence related to the costs of the physical
harm. Of relevance to that issue, Lieutenant Matthew Weidman testified that he was
employed by the Fayette County Sheriff's Office as a jail administrator. Lt. Weidman
testified concerning the costs expended by the sheriff's office to repair the physical harm to
property caused by Bowman in both cases.
{¶ 8} Regarding Case One, Lt. Weidman testified that the sheriff's office replaced
the sink at a cost of $1,250 and replaced a cracked glass panel at a cost of $400, for a total
repair cost of $1,650.
{¶ 9} Regarding Case Two, Lt. Weidman stated that the damaged windows had not
yet been repaired. However, the state introduced Exhibit 18, which was an estimate from
a contractor, Pauly Jail Building Co. The contractor proposed to replace five panels of glass
at a total cost of $10,670, which price included freight, materials, and labor. Lt. Weidman
believed that the estimate from Pauly Jail Building Co. was an accurate estimate for the
cost to repair the five glass panels. Lt. Weidman explained that these were "big" panes of
glass and that they were tempered detention grade glass with a mirrored side.
{¶ 10} Bowman presented no testimony or other evidence in his defense.
{¶ 11} The jury returned guilty verdicts on all charges. Regarding Case One, the jury
found that the physical harm to property was $1,000 or more. Regarding Case Two, the
jury found that the amount of physical harm to the property was $7,500 or more but less
than $150,000.
B. Discovery of Restitution Documents
{¶ 12} While the jury was deliberating, the court informed the attorneys that during
closing arguments the court had located a document in its internal file that was delivered to
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the court sometime during the case.1 We will refer to this document as the "Undisclosed
Document." The prosecutor stated that the Undisclosed Document appeared to have come
from the state and was a restitution document. The prosecutor indicated that it would be
standard practice for that document to be delivered to the court by the victim advocate for
use by the court for victim impact and restitution purposes. The prosecutor represented
that the Undisclosed Document had not been made a part of the original case file and was
not "brought over" to the prosecutor's office from the sheriff's office. The prosecutor claimed
to have never seen the Undisclosed Document and for that reason it was not shared in
discovery. The prosecutor admitted that the Undisclosed Document should have been
provided to the defense but that the failure to share it was an "oversight" by the prosecutor's
office.
{¶ 13} Defense counsel stated that she would need to review the Undisclosed
Document to determine what effect it may have.
C. Motion for a New Trial
{¶ 14} Prior to sentencing, Bowman moved for a new trial pursuant to Crim.R. 33.
The motion recounted the facts related to the discovery of the Undisclosed Document. The
motion noted that one of the pages was an estimate for repairs for the Case One incident
and that Bowman believed this estimate indicated that the value of the glass repaired was
$3,200. Bowman also believed that another page of the Undisclosed Document indicated
that the same glass had been in fact replaced at a much lower cost of $626. (We note that
the testimony at trial was that it was replaced for $400, not $626.) Bowman acknowledged
that the Undisclosed Document "would not have necessarily aided" him in his defense as
to Case One but that the Undisclosed Document might have "led to questions regarding
1. We refer to the six-page "document," in the singular. However, as will be described more fully below, the
"document" appears to actually be a collection of different documents totaling six pages.
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[Case Two]" and whether the windows alleged to have been damaged in the December
incident could have a lesser replacement or restoration value than was testified to at trial.
Bowman's motion did not cite any specific provision within Crim.R. 33 as grounds for a new
trial and Bowman also did not attach any affidavit in support.
{¶ 15} Crim.R. 33 lists six "causes affecting materially [the defendant's] substantial
rights" for which a new trial may be granted. The state opposed Bowman's motion for a
new trial, noting that Bowman had failed to cite which of the six "causes" stated in Crim.R.
33 applied. The state also noted that Bowman failed to file an affidavit in support of his
motion for a new trial. The state argued that the Undisclosed Document would not have
aided Bowman in the preparation of his defense.
{¶ 16} In a hearing immediately prior to Bowman's sentencing, the court announced
that it was denying Bowman's motion for a new trial on the basis that "the authority cited by
the State of Ohio is applicable in this case." The court did not further explain its reasoning
at the hearing, or in the judgment entry of conviction.
{¶ 17} The court sentenced Bowman to a prison term. Bowman appealed, raising
three assignments of error.
II. Law and Analysis
A. Motion for a New Trial
{¶ 18} Bowman's first assignment of error states:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANTAPPELLANT'S MOTION FOR A NEW TRIAL.
{¶ 19} Bowman argues that the court erred by denying his motion for a new trial
because the Undisclosed Document would have permitted him to impeach the state's
evidence concerning damages in Case Two.
1. Applicable Law and Standard of Review
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{¶ 20} Initially, we note that Crim.R. 33 was recently amended with an effective date
of July 1, 2022. The trial court's decision on Bowman's motion for a new trial was issued in
May 2022. As such, we apply the version of Crim.R. 33 in effect at the time of the decision,
not the version of the rule now in effect. State v. Rarden, 12th Dist. Butler No. CA2021-07-
090, 2022-Ohio-873, ¶ 9, fn. 1. All references to Crim.R. 33 in this opinion will be to the
version of the rule in effect at the time of the trial court's decision.
{¶ 21} Crim.R. 33 provides that "[a] new trial may be granted on motion of the
defendant for any of the following causes affecting materially his substantial rights: …,"
and then lists six causes. We will discuss those six possible grounds for relief more fully
below.
{¶ 22} An appellate court may not disturb a trial court's decision denying a motion for
a new trial absent an abuse of discretion. State v. Vore, 12th Dist. Warren Nos. CA2012-
06-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 39. An abuse of discretion implies that the
court's attitude was unreasonable, arbitrary, or unconscionable. State v. Widmer, 12th Dist.
Warren No. CA2012-02-008,
2013-Ohio-62, ¶ 170.
2. Analysis
{¶ 23} In his motion for a new trial, Bowman did not specify which of the Crim.R. 33
grounds for a new trial he believed entitled him to a new trial. Nor has he done so on
appeal. We will therefore review and analyze each of the six possible Crim.R. 33 grounds
for relief in turn in order to analyze whether the trial court abused its discretion in denying
Bowman's motion for a new trial.
{¶ 24} First, Crim.R. 33(A)(1) provides that a new trial may be granted on the basis
of "[i]rregularity in the proceedings, or in any order or ruling of the court, or abuse of
discretion by the court, because of which the defendant was prevented from having a fair
trial …." But Bowman in his Crim.R. 33 motion did not allege that any irregularity occurred
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in the trial proceedings themselves or that any order or ruling of the court prevented him
from having a fair trial. Nor has Bowman argued on appeal how this subsection applies.
Accordingly, we find Crim.R. 33(A)(1) inapplicable.
{¶ 25} Second, Crim.R. 33(A)(2) provides that a new trial may be granted on the
basis of "[m]isconduct of the jury, prosecuting attorney, or the witnesses for the state …."
But Bowman did not allege any "misconduct" by the prosecutor in his Crim.R. 33 motion.
Instead, Bowman argued that a document was not provided in discovery and the state
conceded it should have been. While this perhaps suggests an accusation of prosecutorial
misconduct, the motion did not clearly make such an allegation. Regardless, Crim.R. 33(C),
entitled "Affidavits Required," provides that "[t]he causes enumerated in subsection (A)(2)
and (3) must be sustained by affidavit showing their truth, and may be controverted by
affidavit." (Emphasis added.) The plain language of Crim.R. 33(C), and the word "must"
demonstrate that an affidavit is a mandatory requirement. State v. Carroll, 12th Dist.
Clermont Nos. CA2007-02-030 and CA2007-03-041, 2007-Ohio-7075, ¶ 71 ("Appellant
failed to file an affidavit in support of her motion for a new trial as required by Crim.R.
33[C]"). Bowman filed no affidavit to support any allegations under this subsection. We
conclude Bowman did not bring his motion for new trial pursuant to Crim.R. 33(A)(2), and
we find Crim.R. 33(A)(2) inapplicable.
{¶ 26} Third, Crim.R. 33(A)(3) provides that a new trial may be granted on the basis
of "[a]ccident or surprise which ordinary prudence could not have guarded against …."
But Bowman made no reference to accident or surprise occurring at trial in his Crim.R. 33
motion and, again, filed no affidavit as required by Crim.R. 33(C). We conclude Bowman
did not bring his motion for new trial pursuant to Crim.R. 33(A)(3), and we find Crim.R.
33(A)(3) inapplicable.
{¶ 27} Fourth, Crim.R. 33(A)(4) provides that a new trial may be granted on the basis
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That the verdict is contrary to law. If the evidence shows the
defendant is not guilty of the degree of crime for which he was
convicted, but guilty of a lesser degree thereof, or of a lesser
crime included therein, the court may modify the verdict or
finding accordingly, without granting or ordering a new trial, and
shall pass sentence on such verdict or finding as modified ….
Bowman did not argue that the jury verdict was contrary to law or that the evidence showed
that he was not guilty of vandalism but rather, guilty of a lesser crime, in his Crim.R. 33
motion for a new trial. Nor has Bowman argued on appeal how this subsection applies. We
conclude Bowman did not bring his motion for new trial pursuant to Crim.R. 33(A)(4), and
we find Crim.R. 33(A)(4) inapplicable.
{¶ 28} Fifth, Crim.R. 33(A)(5) provides that a new trial may be granted on the basis
of an "[e]rror of law occurring at the trial …." But Bowman did not argue in his Crim.R. 33
motion that an error of law occurred at trial. We conclude Bowman did not bring his motion
for new trial pursuant to Crim.R. 33(A)(5), and we find Crim.R. 33(A)(5) inapplicable.
{¶ 29} Sixth, Crim.R. 33(A)(6) provides that a new trial may be granted:
When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have
discovered and produced at the trial. When a motion for a new
trial is made upon the ground of newly discovered evidence, the
defendant must produce at the hearing on the motion, in support
thereof, the affidavits of the witnesses by whom such evidence
is expected to be given, and if time is required by the defendant
to procure such affidavits, the court may postpone the hearing
of the motion for such length of time as is reasonable under all
the circumstances of the case. The prosecuting attorney may
produce affidavits or other evidence to impeach the affidavits of
such witnesses.
Given the record before us, we believe the ground for relief set forth in Crim.R. 33(A)(6)
was the basis for Bowman's Crim.R. 33 motion, even if he did not state this explicitly.
Bowman argued in his motion for a new trial that the Undisclosed Document "should have
been disclosed" and constituted new evidence that "could have impacted the outcome of
[Bowman's] trial." This amounts to arguing that the Undisclosed Document was "new
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evidence material to the defense" under Crim.R. 33(A)(6).
{¶ 30} The Ohio Supreme Court has held that to grant a new trial based on newly
discovered evidence, a defendant must show that the new evidence:
(1) discloses a strong probability that it will change the result if
a new trial is granted, (2) has been discovered since the trial,
(3) is such as could not in the exercise of due diligence have
been discovered before the trial, (4) is material to the issues, (5)
is not merely cumulative to former evidence, and (6) does not
merely impeach or contradict the former evidence.
State v. Seiber, 56 Ohio St.3d 4, 17 (1990). The state concedes that two of these elements
were satisfied here. Specifically, the state concedes that the evidence was discovered after
trial (second element) and could not have been discovered in the exercise of due diligence
before the trial by Bowman (third element). Thus, we need not review those two elements.
{¶ 31} Upon our review of the Undisclosed Document, we do not believe that
Bowman has demonstrated the first Seiber element—that is, Bowman has not
demonstrated a "strong probability" that the Undisclosed Document would change the result
if a new trial were granted. The Undisclosed Document is six pages, however, only three
pages appear relevant to the arguments asserted in Bowman's motion for a new trial. Page
One, titled "Fayette County expenses/loss of use" depicts a spreadsheet that appears to
list expenses associated with the damages from Case One. We can infer that Page One
relates to Case One because the page states, "State vs. Preston Bowman" at the top and
lists a cost for a replacement sink, which roughly corresponds to the amount testified to at
trial to replace the sink ($1,267.94 on Page One compared with the $1,250 cost testified to
at trial).
{¶ 32} The spreadsheet includes the following item (among others):
Vendor Description Cost
…
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The Pauly Jail Replacement Glass $ 626.00
Building Co.
…
This amount, $626, does not correspond to the testimony at trial that the glass was repaired
at a cost of $400. But there is nothing else on Page One that informs us that the cost to
replace the pane of glass that Bowman damaged in October 2021 was actually $626 rather
than $400. Nor do we know who prepared this document, the source or basis for listing
$626 as the "cost" of "[r]eplacement [g]lass," or how that amount may or may not relate to
the $400 repair costs testified to a trial. It is possible that the state merely had a different
vendor other than Pauly Jail Building Co. bid on replacing the glass and accepted the lower
bid. Or perhaps there is some other explanation. We simply cannot know in the absence
of an affidavit explaining Page One of the Undisclosed Document, or some other evidence
presented to the trial court and made a part of the record.
{¶ 33} The next relevant page, Page Three, appears to be a proposal dated October
21, 2021, from Pauly Jail Building Co. In it, the company proposes to furnish "4 Panes" of
13/16" Clear Secur-Tem + Poly (2115), Dimensions: 7"x32"
to the Fayette County Jail. This proposal, which includes all the "listed materials" plus
freight, is offered for $1,565. At the bottom of the page, in handwriting, appears the notation
"$626.00 each."
{¶ 34} Page Three perhaps relates to Case One, given the date. But the proposal
does not explain why a quote was needed for four panes of glass when only one pane was
damaged by Bowman in the Case One incident. We also do not know who hand-wrote the
"$626.00 each" notation at the bottom of the page and we do not know why that amount
was written on the document. Additionally, $626.00 is not one quarter of the proposal's
total stated amount of $1,565 (rather, $626 x 4 = $2,504), so it is not clear that the $626
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value at the bottom of the page is even related to the proposal.
{¶ 35} The final relevant page of the Undisclosed Document is Page Four, which is
a form document titled "The Window Man." It is not clear if this document is an estimate, a
proposal, an invoice, or something else, or even if the item or work listed on the document
was provided or performed. However, the form document appears to be directed to the
Fayette County Sheriff's Office and is dated December 22, 2021, which was the same day
as the Case Two incident. The document lists the following: "PC Lexan 3/4-Inch," and lists
the quantity of this item as "1." The price listed is "$3200.00." At the bottom of Page Four,
in handwriting, appears the notation,
7" x 32" = 215.042
{¶ 36} If Page Four relates to Case Two, then we must assume that the jail was able
to obtain a same-day quote to replace damaged windows. This seems unlikely, though
possible. Bowman argues—without explanation—that Page Four relates to the glass at
issue in Case One. But we know little more than what is stated on the document. Is a "PC
Lexan 3/4-Inch" a replacement for the windows damaged in Case Two? If so, why does
Page Four list the quantity of "PC Lexan 3/4-Inch" as "1," not five? Or is it related to the
glass damaged in Case One? Or does the "PC Lexan 3/4-Inch" relate to some other window
replacement, unrelated to either of Bowman's cases? What is the significance of the
handwriting at the bottom of the page? There is no context for what it might indicate, or
whether it is even pricing information.
{¶ 37} Bowman claims that these documents show that the actual cost of replacing
the windowpane in Case One was $626, which he points out is significantly less than the
2. The ".04" could also be ".09." It is not clear whether this handwritten notation appeared on the original "The
Window Man" document, or if that document was scanned and the handwriting appeared on a printed copy
of that scanned image, below the scanned image of the original "The Window Man" document. The second
possibility is suggested by the line that appears on one side of the document image, and by the phrase,
"Scanned with Cam Scanner," which appears at the bottom of the page.
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$3,200 figure mentioned on Page Four, which he believes relates to Case One. Following
this argument, Bowman states that the Exhibit 18 estimate with respect to Case Two, which
was corroborated by Lt. Weidman, may have been much too high, and thus, there is some
possibility that the actual damages with respect to Count Two would have been less than
$7,500 and Bowman could have been found guilty of fifth-degree-felony vandalism rather
than fourth-degree-felony vandalism.
{¶ 38} As described above, Bowman's arguments concerning the meaning and
significance of the Undisclosed Document are based on multiple assumptions about the
meaning of various pages and notations in the Undisclosed Document. Bowman assumes
that the estimated cost to replace the single windowpane in Case One was $3,200 but that
the actual cost ended up being $626. We find this assumption to be questionable. We
cannot reach the same assumptions in the absence of any affidavits or other evidence that
would explain these documents and demonstrate their materiality to Bowman's defense.
Simply put, the documents are unexplained, unclear, and do not indicate one way or the
other whether they would have been helpful in preparing Bowman's defense.
{¶ 39} We are very concerned by the state's failure to provide the Undisclosed
Document to Bowman before trial. And some of the individual documents in the
Undisclosed Document may have deserved investigation or explanation. Nonetheless, it is
Bowman's burden under Crim.R. 33(A)(6) to demonstrate that the newly discovered
evidence was "material to the defense," and Seiber requires Bowman to demonstrate that
the newly discovered evidence "discloses a strong probability that it will change the result
if a new trial is granted …." Seiber at 17. On this record, he has failed to do so. The
import of the Undisclosed Document is, at this point, far too uncertain to make any
assumptions about any support it may or may not have provided with respect to Bowman's
defense if the Undisclosed Document had been provided to Bowman before trial. Nor has
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Bowman demonstrated that the Undisclosed Document "is material to the issues" or that it
"does not merely impeach or contradict the former evidence." Id. For these reasons we
conclude that Bowman has not established that the court abused its discretion in denying
his motion for a new trial. Vore,
2013-Ohio-1490 at ¶ 39 ("An appellate court may not disturb
a trial court’s decision denying a motion for a new trial absent an abuse of discretion"). We
overrule Bowman's first assignment of error.
B. Sufficiency and Manifest Weight of the Evidence
{¶ 40} Bowman's second assignment of error states:
THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST
THE APPELLANT, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 41} Bowman's third assignment of error states:
THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST
APPELLANT WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 42} Bowman presents the same argument in support of his second and third
assignments of error, so we address them collectively. In both assignments of error,
Bowman only challenges his conviction in Case Two. He argues that the state failed to
prove the actual cost of repairs to the windows in Case Two because it only provided
evidence or testimony regarding the estimated cost of repairs, and that the state improperly
included labor costs in the reasonable cost of restoring the property.
{¶ 43} When reviewing the sufficiency of the evidence underlying a conviction, an
appellate court examines the evidence to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt beyond a reasonable doubt. State
v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[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
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proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus.
{¶ 44} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14. To determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving the
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. State
v. Graham, 12th Dist. Warren No. CA2008-07-095,
2009-Ohio-2814, ¶ 66.
{¶ 45} In reviewing the evidence, an appellate court must be mindful that the original
trier of fact was in the best position to judge the credibility of witnesses and determine the
weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-
Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the
manifest weight of the evidence only in the exceptional case in which the evidence weighs
heavily against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-
Ohio-466, ¶ 15.
{¶ 46} "Although the legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different, ‘[a] determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of the
issue of sufficiency.'" State v. Billingsley, 12th Dist. Butler Nos. CA2019-05-075 and
CA2019-05-076, 2020-Ohio-2673, ¶ 15, quoting State v. Jones, 12th Dist. Butler No.
CA2012-03-049,
2013-Ohio-150, ¶ 19.
{¶ 47} In Case Two, the court convicted Bowman of fourth-degree-felony vandalism,
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in violation of R.C. 2909.05(B)(2) and (E). Another statute provides that when a person is
charged with a violation of R.C. 2909.05 involving property valued at more than one
thousand dollars, the jury or court shall determine the value of the property or amount of
physical harm. R.C. 2909.11(A). However, "it is unnecessary to find or return the exact
value or amount of physical harm …." R.C. 2909.11(A). Instead, the jury should find that
the value or amount falls within the specific ranges that are tied to different felony degrees
(here, $7,500 or more but less than $150,000). R.C. 2909.11(A)(2)(b). If "the property can
be restored substantially to its former condition," then the measure of physical harm is "the
reasonable cost of restoring the property." R.C. 2909.11(B)(2). If, on the other hand, the
physical harm "is such that the property cannot be restored substantially to its former
condition," the value of the property is the "cost of replacing the property with new property
of like kind and quality …." R.C. 2909.11(B)(3).3
{¶ 48} Through Exhibit 18 (the Pauly Jail Building Co. estimate for replacing the five
large panes of glass at issue in Case Two) and Lt. Weidman's testimony, the state
presented evidence of the reasonable cost of restoring or replacing the windows broken in
Case Two. Lt. Weidman testified that that cost, $10,670, which included freight, materials,
and labor, was an accurate estimate for the cost to repair all five panes of glass. Lt.
Weidman described these as large panes of glass with certain special properties related to
their use in a detention center.
{¶ 49} Bowman complains that the costs described in Exhibit 18 and testified to by
Lt. Weidman included labor. Bowman suggests that the reasonable cost of restoring or
3. This is the statutory definition for determining the value of personal property in a prosecution under R.C.
2909.05. The same code section provides a different definition for determining physical harm to "real property
or real property fixtures," which is the "difference in the fair market value of the property immediately before
and immediately after the offense." R.C. 2909.11(B)(3). The court instructed the jury that it would determine
the amount of physical harm in this case based on the items damaged being personal property. None of the
parties have raised this as an issue at the trial court or appellate level, and we merely note it here.
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replacing property pursuant to R.C. 2909.11(B)(2) and (3) cannot include labor costs.
Bowman cites no authority for this claim. Nor do we find any support for such an argument
in the language of the statute, which does not exclude labor and only discusses the
reasonable costs of restoration or replacement and the cost of replacing the property with
new property of like kind and quality. R.C. 2909.11(B)(2) and (3). To exclude labor from
these costs would be absurd because labor is, in many instances, a necessary component
in the process of restoring or replacing damaged property. Bowman's argument concerning
labor costs is unsupported and meritless. We conclude that the state presented sufficient
evidence to establish the reasonable cost of restoring or replacing the property pursuant to
R.C. 2909.11(B)(2) and (3), and the jury's finding with respect to the value of the physical
harm was not against the manifest weight of the evidence. The state's reliance on a value
that included labor does not affect these conclusions.
{¶ 50} Bowman also argues that there was insufficient evidence to convict him in
Case Two and that the jury lost its way because the value listed in Exhibit 18 was "only an
estimate." However, the Revised Code expressly provides that "it is unnecessary to find or
return the exact value or amount of physical harm …." R.C. 2909.11(A). Moreover, to
the extent that Lt. Weidman's credibility played a part in convincing jurors of the value of
physical harm, that is a matter for which we defer to the factfinder. State v. Spradlin, 12th
Dist. Clermont No. CA2016-05-026, 2017-Ohio-630, ¶ 68.
{¶ 51} We find that the state provided sufficient evidence to establish the reasonable
restoration or replacement costs in Case Two. And the greater weight of the evidence
supported Bowman's conviction in Case Two. We overrule Bowman's second and third
assignments of error.
III. Conclusion
{¶ 52} Bowman failed to submit evidence necessary to be granted a new trial under
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Fayette CA2022-05-005
Crim.R. 33. Bowman has also failed to demonstrate that the state submitted insufficient
evidence to convict him or that his conviction was against the manifest weight of the
evidence.
{¶ 53} Judgment affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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