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City of Cleveland v. Yontosh

Court of Appeals of Ohio, Eighth District

July 18, 2013

CITY OF CLEVELAND PLAINTIFF-APPELLEE
v.
ASHLEY YONTOSH DEFENDANT-APPELLANT

Criminal Appeal from the Cleveland Municipal Court Case No. 2012-CRB-012875

ATTORNEY FOR APPELLANT Robert L. Tobik Cuyahoga County Public Defender By: Erika B. Cunliffe Assistant Public Defender.

ATTORNEYS FOR APPELLEE Victor R. Perez Chief Assistant Prosecutor City of Cleveland By: Angela Rodriguez Assistant City Prosecutor Justice Center.

BEFORE: EA. Gallagher, J., Stewart, A.J., and S. Gallagher, J.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, J.

{¶ 1} Ashley Yontosh appeals from the decision of the trial court finding her guilty of criminal damaging. Yontosh argues that the city of Cleveland failed to support her conviction with sufficient evidence and that her conviction is contrary to the manifest weight of the evidence. Finding no merit to the instant appeal, we affirm the decision of the trial court.

{¶2} On the evening of April 18, 2012, Cleveland Police Officer Ray O'Connor and his partner responded to a home on Natchez Avenue for a complaint of loud music. When they arrived at the location, they encountered Yontosh in the driveway. Officer O'Connor testified that when he informed Yontosh of the noise complaint, she responded with obscenities and shouting. Officer O'Conner testified that he issued Yontosh a citation for loud music.[1]

{¶3} Officer O'Connor testified that approximately six minutes later, Officer O'Connor received a second dispatch to the Natchez home with complaints of a female in front of the residence shouting obscenities. Officer O'Connor and his partner returned to the home and spoke with Yontosh and Jeffrey Clinigan, Yontosh's live-in boyfriend. Both denied shouting obscenities but as they were speaking to Officer O'Connor, Yontosh pointed at a female on the sidewalk and said "that's the fucking bitch that's been calling the police on us." Officer O'Connor testified that Yontosh had pointed to Kelly Reilly, a Cleveland Police Department dispatcher who lived two doors down from Yontosh. Officer O'Connor spoke with Reilly, who denied calling the police regarding Yontosh that night or at any earlier time.

{¶ 4} Shortly after midnight, Reilly was moving to sit on her couch in the living room of her upstairs apartment when she observed Yontosh run across the neighbor's property and she heard Yontosh run up onto her front porch; after which she heard glass breaking. Reilly then observed Yontosh running off of the porch and into a nearby car. Reilly explained that she lived on the second floor of a duplex and that, although the front porch obstructed her view of the glass being broken, she clearly saw Yontosh immediately before, and after, hearing the glass break. Reilly also testified that no one else was on the porch at the time she heard the sound of glass breaking. Reilly contacted the police and photographed the damage.

{¶5} On April 25, 2012, the city of Cleveland issued a complaint for criminal damaging against Yontosh. Yontosh pleaded not guilty and the case proceeded to a bench trial. The city presented the testimony of Officer O'Connor and Reilly. In response, Yontosh presented the testimony of Micah Wilson and Michael Metcalf Wilson and Metcalf drove to the Yontosh residence together that evening and were guests of Jeff Clinigan, whom they knew from work. Wilson testified that after the police came about the noise violation, everyone, including Yontosh, went inside the house. Wilson also testified that after the police arrived a second time, he heard Yontosh complain that people always called the police when she and Jeff played their music. Wilson testified that he never saw Yontosh leave her house before he left that evening. Wilson did testify that Metcalf left the house and, upon his return, told Wilson that he knocked on the neighbor's window and it broke.

{¶ 6} The defense then called Michael Metcalf to the stand. Metcalf testified that he, Wilson, Clinigan and Yontosh were in the backyard of the residence having a small party, that he was present when the police arrived both times and that between the first and second occurrence, he saw Yontosh yelling obscenities outside of the house. Metcalf testified that after the police came a second time, he told police that he would turn off the music and that he and his friend were leaving. At that point in his testimony, Metcalf requested an attorney because of a fear of self-incrimination. The court assigned counsel and allowed a brief recess. When questioning continued, Metcalf testified that before leaving Yontosh's house, he went to the next door neighbor's house. Metcalf did not testify further and the defense rested.

{¶ 7} The court found Yontosh guilty of criminal damaging and sentenced her to a $750 fine, 90 days in jail, one year active probation, $200 in restitution and ordered her to attend the Community Awareness Program. The court suspended $500 of the fine and all 90 days in jail.

{¶ 8} Yontosh appeals and raises the following assignments of error:

Ashley Yontosh was deprived of her liberty without due process of law where the trial court found her guilty of causing criminal damage to property even though the evidence ...

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