State v. King , 2022 Ohio 4616 ( 2022 )

[Cite as State v. King, 2022-Ohio-4616.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA2
v. :
EDWARD J. KING, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Donald K. Pond, Akron, Ohio, for appellant.1
James Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio,
for appellee.
__________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:12-16-22
ABELE, J.
{¶1} This is an appeal from a Meigs County Common Pleas Court
judgment of conviction and sentence. A jury found Edward J. King,
defendant below and appellant herein, guilty of breaking and
entering in violation of R.C. 2911.13(A).
{¶2} Appellant assigns the following errors for review:
1
Different counsel represented appellant during the trial
court proceedings.
2
MEIGS, 21CA2
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO
DUE PROCESS OF LAW WHERE THE TRIAL COURT FOUND
APPELLANT GUILTY OF BREAKING AND ENTERING, IN
THE ABSENCE OF SUFFICIENT EVIDENCE, CONTRARY TO
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE I,
SECTION 16, OF THE OHIO CONSTITUTION.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO
DUE PROCESS WHEN THE COURT ENTERED A JUDGMENT
OF CONVICTION FOR BREAKING AND ENTERING BECAUSE
THAT JUDGMENT WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE, CONTRARY TO THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE I, SECTION 16, OF THE
OHIO CONSTITUTION.”
THIRD ASSIGNMENT OF ERROR:
“DEFENSE COUNSEL WAS INEFFECTIVE AT TRIAL, AND,
THUS, APPELLANT SUFFERED A DEPRIVATION OF HIS
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL,
PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND ARTICLE
I, SECTION 10, OF THE OHIO CONSTITUTION.”
{¶3} In August 2020, a Meigs County Grand Jury returned an
indictment that charged appellant with one count of breaking and
entering, in violation of R.C. 2911.13(A), a fifth-degree felony.
Appellant pleaded not guilty.
{¶4} At the March 8 and 9, 2021 jury trial, Gary Shamblin
described his property on State Route 143 he co-owns with Deborah
3
MEIGS, 21CA2
Adams: “There is a creek in front of it that gave us problems * *
* and everything sits back about a hundred (100) yards.” Shamblin
stated that on his property sits a trailer, a camper, a couple of
cars and trucks, “[m]ostly just junk over the years that I’ve
gathered up.” Shamblin lived at the property for 20 to 25 years,
but moved six or seven years ago. His age, health, and the
property’s terrain now prevents him from visiting the property.
Shamblin stated that appellant moved some items onto the property
for him in “the early two thousands, I think. I don’t remember.”
About ten years ago, when appellant’s son and wife needed a place
to live, Shamblin gave them an old trailer and an old truck.
Later, Shamblin loaned a truck and trailer to appellant to haul
vehicles. However, when Shamblin looked for his truck and trailer,
“gone * * * gone. Cut up in pieces.” Shamblin was “very unhappy”
with appellant and told him, “if I ever catch him on my property
again, I’d blow his head off.”
{¶5} Shamblin’s property has a cellar house with locked doors,
a building with locked doors, and a box truck with all of the
spaces full of possessions. When Shamblin last visited the
property, he noticed broken locks on the truck and trailer, and the
camper had two or three locks “all broke off of it.” Shamblin did
not, however, know who broke the locks or when it occurred. After
4
MEIGS, 21CA2
Shamblin moved away from the property, he returned “every six
months or so,” and last visited a year and a half ago.
{¶6} James Wooten, a co-defendant, lived a “couple hundred
yards” from the property and he and Shamblin had been friends when
Shamblin was his neighbor. Shamblin testified that on June 24,
2020, the Meigs County Sheriff’s Department asked if he gave Wooten
and appellant permission to “go on my property and take what they
wanted.” Shamblin responded that he gave no one permission to go
onto his property to take anything.
{¶7} Deborah Adams purchased the State Route 143 property with
Shamblin in 1992, and lived there together until Adams moved in
1999. Their 50-acres include a house trailer and a building (the
cellar house) that sit approximately 300 feet from the road. A
bridge once spanned the creek, but has since been washed away.
Adams stated that, after you cross the creek, “[y]ou have to climb
a 5-foot bank and hike up the driveway,” about 250 feet from the
creek. Approximately 90% of the cellar house contents belong to
Adams and Shamblin stores personal property in all the structures.
{¶8} Adams had visited the property the previous week to see
if raspberries had ripened, and she again visited on June 24, 2020
to pick raspberries. When Adams arrived, however, she observed a
vehicle in her driveway, with windows down and keys in the
5
MEIGS, 21CA2
ignition, and could hear men talk and metal clang. Adams said she
“didn’t know exactly what was going on, but * * * had a pretty good
idea.” When Adams parked behind the unknown vehicle and noticed
her neighbor in her driveway, she asked the neighbor to call the
sheriff’s department. Adams then waited for law enforcement to
come to the property.
{¶9} After Meigs County Sheriff’s Department Sergeant Frank
Stewart arrived and prepared to cross the creek, appellant and
Wooten “popped out of the weeds,” climbed down the creek bank and
came to Stewart and Adams. Appellant and Wooten said they had
permission to be on the property, but when Adams said they did not,
the men then said they knew Gary Shamblin but did not “know how to
get ahold of him.” At that point, Adams gave Shamblin’s number to
Stewart, who relayed the number to dispatch, to contact Shamblin.
Stewart then asked Adams to inspect the buildings to see if
anything had been disturbed.
{¶10} Adams explained that, although neither the trailer nor
the cellar house door has a working lock, she kept both doors
closed. Shamblin also keeps belongings in the cellar house, which
has its own door, and Adams does not go into the cellar. In the
past, Adams removed the padlocks on the trailer and the cellar
house because she “wanted to see what was happening inside,” but
6
MEIGS, 21CA2
prior to that particular day, Adams had not seen the downstairs
cellar door open since 1999. That door also typically had a “big
padlock,” but Adams did not see the lock. Also, the cellar house
upstairs door was closed, but the trailer door stood “open and
there was stuff all in it [the doorway]. It couldn’t have been
closed without moving a bunch of stuff.”
{¶11} Adams also observed toolboxes “in the driveway,” “the
cellar house door * * * standing open,” and “a telescope on the
front porch of the trailer that had not been there the previous
week. * * * There was a bunch of stuff pulled out of [the box]
truck that * * * hadn’t been laying in the driveway.” The box
truck contained “a welding machine, tools, and junk and just
everything.” Typically, five-gallon buckets full of tools sat in
the trailer, along with toolboxes, but “those buckets were all
empty, or almost empty, and thrown around inside of the trailer.”
Two toolboxes that sat in the middle of the driveway had not been
in that location the previous week. One toolbox sat open, the
other latched, and leather gloves sat next to the toolboxes. Adams
also took various photographs of the scene.
{¶12} After Adams returned to her car, another officer asked
her to meet him at the Sheriff’s Office. Adams stated that she did
not give appellant or Wooten permission to be on the property, and
7
MEIGS, 21CA2
she had not seen them before that day.
{¶13} Sergeant Stewart testified that he observed two men
through the trees near the buildings and appellant stood “in the
doorway” of one structure. Adams told Stewart that she visited the
property to pick raspberries when she observed the strange vehicle
and heard the men. Adams also told Stewart that she heard “metal *
* * that sounded like tools.” At the point when Adams showed
Stewart the best way to cross the creek, the two men walked down
the hill. Stewart recognized appellant, but not Wooten. When
Stewart asked what they were doing, Wooten said he had Shamblin’s
permission to be on the property, but appellant said nothing.
Stewart then informed the men that both Shamblin and Adams own the
property and asked Wooten if he had Shamblin’s phone number. He
replied he did not. After Adams gave Shamblin’s number to Stewart
and dispatch called Shamblin, Shamblin stated that he gave no one
permission to be on his property. Once Stewart confirmed that
neither man had permission to be on the property, he asked Adams to
determine if anything was missing.
{¶14} At the close of the state’s evidence, defense counsel
made a Crim.R. 29 motion for judgment of acquittal. After
consideration, the trial court denied the motion.
{¶15} Appellant testified that he “dealt with automobiles and
8
MEIGS, 21CA2
worked in junk yards pretty much all my life.” Appellant knows
Wooten, is “somewhat” familiar with Gary Shamblin, “hauled a few
cars for him a few years ago,” cut brush and performed other odd
jobs for him.
{¶16} Appellant stated that on June 24, 2020 he stopped at
Wooten’s to “pick up an old mower and to see if he had gotten ahold
of Gary and he said he hadn’t found his number yet, but we could go
down and look * * *.” Appellant and Wooten had talked “about
trying to get ahold of [Shamblin] and buying some more cars.”
Wooten drove to the property so appellant “could look at the
automobiles to see what was left of them.” Appellant explained he
went to the property
[t]o just see what was left of the automobiles that was
sitting there since I had last been there, because there
had been a lot of them that you could tell from the road,
before it growed up, that you could see people had been
there, things had been stripped off them because I wanted
to see what was there so I knew what kind of price to tell
[Wooten] what’s all for Gary.
{¶17} Appellant testified he “walked around and looked at the
vehicles,” stuck his head in the door of an old motor home, then
crossed the creek to look at an Oldsmobile, a Chevy Blazer, and a
Cadillac to see if the cars had radios or catalytic converters.
Appellant said he and Wooten did not try to be sneaky or quiet.
{¶18} Appellant also described the “cellar house” as a
9
MEIGS, 21CA2
sandstone cellar “pushed under the ground with like a one room
building built on top of it and, uh, if you’d seen it, you’d
understand, ain’t no way I was crazy to go in it.” Appellant said
he did not go into the cellar house, and that, “I wasn’t there
interested in anything other than junk cars. That’s the only thing
there that basically could make any money off of.” Appellant
testified he did not touch any tools, move any tools, enter the
trailer, and that the box truck stood “wide open.” Appellant
explained he found one toolbox “sitting there in the driveway,
which was not far from the back of the box truck * * * sitting
there when we got there.” Appellant said he did not touch it -
“I’ve got my own tools. I own a two car garage. I wasn’t there
for tools.” Appellant also said when he looked at a truck “at the
far end of the trailer,” he heard the deputy and observed Adams.
Appellant explained he did not run because he “had no reason to,”
and “[j]ust walked on over to him.”
{¶19} When asked if he had permission to be on the property,
appellant replied, “[t]he best that I knew, I was. You know,
because we talked about the cars and * * * him and Gary had hung
out a lot * * * all the years I’ve known him. * * * I wasn’t there
to steal nothing.” Later during the trial, when again asked the
same question, appellant replied, “Uh, no I wasn’t the one that got
10
MEIGS, 21CA2
Gary Shamblin’s * * * not since I worked with him.” When asked if
he knew that Shamblin hated him, appellant replied, “Uh, no. That
was my son that he hated.” Also, appellant said he did not meet
Adams until the date of the incident, that he knew Gary Shamblin
would not be at the property that day, and that he did not stand
“in the doorway of nothing.”
{¶20} After hearing the evidence and counsels’ arguments, the
jury returned a guilty verdict. The trial court: (1) sentenced
appellant to serve five years community control (with reserved
underlying sentence of twelve months), (2) ordered appellant to pay
$50 supervision fee per month while on community control, (3)
ordered appellant to have no contact with the victims or the
property, and (4) ordered appellant to pay costs of prosecution.
This appeal followed.
I.
{¶21} In his first assignment of error, appellant asserts that
insufficient evidence supports his conviction for breaking and
entering, contrary to the Fifth and Fourteenth Amendments to the
United States Constitution and Article I, Section 16, of the Ohio
Constitution.
{¶22} In general, a claim of insufficient evidence invokes a
due process concern and raises the question of whether the evidence
11
MEIGS, 21CA2
is legally sufficient to support the verdict as a matter of law.
State v. Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 59 (4th Dist.),
citing State v. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 13 (4th
Dist.); State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-
2756, ¶ 22; State v. Benge, 4th Dist. Adams No. 20CA1112, 2021-
Ohio-152, ¶ 25; State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
541 (1997). When reviewing the evidence's sufficiency, the
adequacy of the evidence is the focus; that is, whether the
evidence, if believed, reasonably could support a finding of guilt
beyond a reasonable doubt. Thompkins, syllabus. An appellate
court’s standard of review is whether, after viewing the probative
evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact could
have found all the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259,
273, 574 N.E.2d 492 (1991); State v. Tibbetts, 92 Ohio St.3d 146,
162, 749 N.E.2d 226 (2001).
{¶23} An assignment of error based on sufficiency of the
evidence challenges the legal adequacy of the state's prima facie
case, not its rational persuasiveness. State v. Anderson, 4th
Dist. Highland No. 18CA14, 2019-Ohio-395, ¶ 13; Benge at ¶ 25.
12
MEIGS, 21CA2
Therefore, when an appellate court reviews a sufficiency of the
evidence claim, the court must construe the evidence in a light
most favorable to the prosecution. State v. Dunn, 4th Dist.
Jackson No. 15CA1, 2017-Ohio-518, ¶ 13; Wickersham, supra, ¶ 23;
State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996);
Benge, supra, at ¶ 26. “In deciding if the evidence was sufficient,
we neither resolve evidentiary conflicts nor assess the credibility
of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-
120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio
App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.); State
v. Bennett, 2019-Ohio-4937, 149 N.E.3d 1045, ¶ 46 (3d Dist.).
{¶24} Furthermore, in reviewing sufficiency of the evidence
claims, courts must remain mindful that the elements of an offense
may be established by direct evidence, circumstantial evidence, or
both. See State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674.
Circumstantial and direct evidence are of equal evidentiary value.
See Jenks, 61 Ohio St.3d at 272 ("Circumstantial evidence and
direct evidence inherently possess the same probative value [and]
in some instances certain facts can only be established by
circumstantial evidence."). When reviewing the value of
circumstantial evidence, "the weight accorded an inference is fact-
13
MEIGS, 21CA2
dependent and can be disregarded as speculative only if reasonable
minds can come to the conclusion that the inference is not
supported by the evidence." Wesley v. The McAlpin Co. (May 25,
1994) Hamilton App. No. C-930286.
{¶25} In the case sub judice, appellant first contends that,
although the evidence adduced at trial reveals two men present on
the property on June 24, 2020, appellee charged appellant as a
principal offender and did not request a R.C. 2913.01(K)(4)
complicity jury instruction. Appellant thus argues that the state
failed to prove, beyond a reasonable doubt, that appellant was a
principal offender.
{¶26} Appellee, however, asserts that the evidence adduced at
trial did not warrant a complicity instruction because the facts
revealed that appellant did, in fact, act as the principal
offender. The state also argues that because appellant failed to
renew his motion for judgment of acquittal at the close of
appellant’s case, he waived any error in the denial of that motion
and the sufficiency of the evidence determination. Appellee points
to State v. Burton, 4th Dist. Ross No. 06CA2892, 2007-Ohio-2320when “[t]his court has previously held that a defendant who is
tried before a jury and brings a Crim.R. 29(A) motion for acquittal
at the close of the state’s case waives any error in the denial of
14
MEIGS, 21CA2
the motion if the defendant puts on a defense and fails to renew
the motion for acquittal at the close of all the evidence.” Id. at
¶ 31, citing State v. Swain, 4th Dist. Ross No. 01CA2591, 2002 WL
146204 (Jan. 23, 2002), citing State v. Miley, 114 Ohio App.3d 738,
684 N.E.2d 102 (4th Dist.1996).
{¶27} Appellant acknowledges Burton, but contends that State v.
Shadoan, 4th Dist. Adams No. 03CA764, 2004-Ohio-1756 held that a
failure to renew a Crim.R. 29(A) motion at the close of all of the
evidence does not waive the right on appeal to challenge the
sufficiency of the evidence.
{¶28} Generally, courts have held over the years that a
defendant who brings a Crim.R. 29(A) motion for judgment of
acquittal at the close of the state's case waives any error in the
denial of the motion if the defendant puts on a defense and fails
to renew the motion at the close of all the evidence. Swain,
supra, at *6; Miley, supra. See, also, State v. Roe, 41 Ohio St.3d
18, 25, 535 N.E.2d 1351 (1989); State v. Hicks, 4th Dist. Ross No.
2292, 1997 WL 802698 (Dec. 29, 1997). However, in State v. Coe,
153 Ohio App.3d 44, 2003-Ohio-2732, at ¶ 19 we wrote:
We initially note that appellant failed to move for a
Crim.R. 29(A) judgment of acquittal. In the past, this
court and numerous other Ohio appellate courts, relying
primarily upon State v. Roe (1989), 41 Ohio St.3d 18, 25,
535 N.E.2d 1351 and Dayton v. Rogers (1979), 60 Ohio St.2d
162, 163, 398 N.E.2d 781, have held that if a criminal
[Cite as State v. King, 2022-Ohio-4616.]
defendant fails to timely file a Crim.R. 29 motion for
acquittal, the defendant waives any error, absent plain
error, as to sufficiency of the evidence. In two
apparently little-recognized cases, however, the Ohio
Supreme Court stated that a failure to timely file a
Crim.R. 29(A) motion during a jury trial does not waive an
argument on appeal concerning the sufficiency of the
evidence. See State v. Jones (2001), 91 Ohio St.3d 335,
346, 744 N.E.2d 1163; State v. Carter (1992) 64 Ohio St.3d
218, 223, 594 N.E.2d 595. In both Jones and Carter, the
Ohio Supreme Court stated that the defendant's "not guilty"
plea preserves his right to object to the alleged
insufficiency of the evidence. Id. Moreover, because "`a
conviction based on legally insufficient evidence
constitutes a denial of due process,'" State v. Thompkins
(1997), 78 Ohio St.3d 380, 386-387, a conviction based upon
insufficient evidence would almost always amount to plain
error. See State v. Hermann, Erie App. No. E-01-039, 2002-
Ohio-7307, ¶ 24; State v. Casto, Washington App. No.
01CA25, 2002-Ohio-6255; State v. Arrowood (Sept. 27, 1993),
Pike App. No. 93CA05, at 6.
Thus, in the case sub judice, although appellant failed to request
acquittal under Crim.R. 29 at the close of the evidence, appellant
did not waive his sufficiency of the evidence challenge on appeal.
Consequently, we will consider his argument that insufficient
evidence supports his conviction.
{¶29} In the case at bar, the jury found appellant guilty of
breaking and entering in violation of R.C. 2911.13(A): “No person
by force, stealth, or deception, shall trespass in an unoccupied
structure, with purpose to commit therein any theft offense, as
defined in 2913.01 of the Revised Code, or any felony.” Appellant
challenges whether the state presented sufficient evidence to
establish that appellant trespassed by force, stealth, or
[Cite as State v. King, 2022-Ohio-4616.]
deception. For the trespass element of the offense, the state
needs to prove “the insertion of any part of defendant's body” into
the structure. State v. Cuthbertson, 1st Dist. Hamilton No. C–
75362, 1976 WL 189781 (June 1, 1976), *5, quoting State v. Harris,
68 N.E.2d 403, 45 Ohio Law Abs. 598 (10th Dist.1943).
{¶30} “Force” is defined as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person
or thing.” R.C. 2901.01(A)(1). “[A]ny effort physically exerted”
satisfies the element of force. State v. Johnson, 2d Dist.
Montgomery No. 26961, 2017-Ohio-5498, ¶ 21, quoting State v.
Snyder, 192 Ohio App.3d 55, 2011-Ohio-175, 947 N.E.2d 1281, ¶ 18
(9th Dist.); State v. Bertram, 4th Dist. Scioto No. 21CA3950, 2022-
Ohio-2488, ¶ 25. Opening a closed, but unlocked, door or window is
sufficient to meet this requirement. E.g., State v. Ball, 2d Dist.
Clark No. 2017-CA-54, 2018-Ohio-605, ¶ 15 (defendant's opening of
closed but unlocked window sufficient to establish entry by force);
State v. Cantrell, 2d Dist. Montgomery No. 26975, 2016-Ohio-7623, ¶
12 (testimony that defendant opened screen door to walk through
victim’s open inner apartment door sufficient to prove force).
“Deception” is defined as
knowingly deceiving another or causing another to be
deceived by any false or misleading representation, by
withholding information, by preventing another from
acquiring information, or by any other conduct, act, or
omission that creates, confirms, or perpetuates a false
[Cite as State v. King, 2022-Ohio-4616.]
impression in another, including a false impression as to
law, value, state of mind, or other objective or subjective
fact.
R.C. 2913.01(A).
{¶31} Although the Ohio Revised Code does not define the word
“stealth,” courts have defined the term as “‘any secret, sly or
clandestine act to avoid discovery and to gain entrance into or to
remain within a residence of another without permission.’” State
v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168 (3d Dist.1993),
quoting State v. Lane, 50 Ohio App.2d 41, 47, 361 N.E.2d 535 (10th
Dist.1976); Bertram, supra, at ¶ 26. Evidence that a defendant
entered through a back entry, secluded from view, can be sufficient
to establish the element of stealth. See State v. Pacific, 2d
Dist. Montgomery No. 28804, 2021-Ohio-973, citing State v. Reeves,
2d Dist. Montgomery No. 16987, 1999 WL 129469 (Mar. 12, 1999) at
*6, citing State v. Wohlfeil, 8th Dist. Cuyahoga No. 51983, 1987 WL
9133 (Apr. 2, 1987); State v. Johnson, 2d Dist. Montgomery No.
26961, 2017-Ohio-5498, ¶ 19. Moreover, the fact that an incident
occurs in broad daylight does not necessarily preclude evidence of
stealth. See, e.g., Johnson at ¶ 20; In re Markunes, 2d Dist.
Montgomery Nos. 15601 & 15617, 1996 WL 531586 (Sept. 20, 1996)
(evidence of stealth exists when sufficient evidence that
defendant's conduct could be construed as looking to see if “coast
was clear” before entering open garage in broad daylight). In
[Cite as State v. King, 2022-Ohio-4616.]
State v. McLeod, 5th Dist. Licking No. 14CA53, 2015-Ohio-93, the
Fifth District considered the definition of “stealth” and held:
This Court and other appellate courts of this state have
used a definition that includes “remaining” on the premises
as opposed to merely “entering” the premises. See State
v. Stone, 5th Dist. No.1999 AP 030012, 1999 WL 1072199(Nov. 10, 1999); State v. Davis, 1st Dist. No. C–010477,
2002–Ohio–1982; State v. Patton, 2d Dist. No.2011 CA 94,
2013–Ohio–961 ¶ 14; In re Predmore, 3d Dist. Nos. 8–09–03,
8–09–04, 8–09–05, 2010–Ohio–1626, ¶ 44; In re Carter, 4th
Dist. Nos. 04CA15, 04CA16, 2004–Ohio–7285, ¶ 24; State v.
DeBoe, 6th Dist. No. H–02–057, 2004–Ohio–403, ¶ 66; In re
J.M., 7th Dist. No. 12 JE 3, 2012–Ohio–5283, ¶ 15; State
v. Isom, 8th Dist. No 78959, 2001 WL 1671432, *4 (Nov. 29,
2001); State v. Trikilis, 9th Dist. Nos. 04CA0096–M,
04CA0097–M, 2005–Ohio–4266, ¶ 31; State v. Lane, 50 Ohio
App.2d 41, 47, 361 N.E.2d 535 (10th Dist.1976); State v.
Sims, 11th Dist. No.2001–L–081, 2003–Ohio–324, ¶ 58; State
v. Lamberson, 12th Dist. No. CA2000–04–012, 2001 WL 273806,
(Mar. 19, 2001).
Id. at ¶ 54.
{¶32} In the case sub judice, both property owners testified
that appellant did not have permission to be on their property and
did not have permission to enter the trailer or cellar house, both
unoccupied structures. Further, property owner Deborah Adams
testified that she visited the property the previous week and found
the cellar house door closed, as it always was. However, on the
date in question, Adams found the cellar door open and items in the
trailer had “been dug through.” Adams also testified about a
telescope on the porch that “wasn’t on the porch before. You can
see that it is clean and whatever and everything else there that
[Cite as State v. King, 2022-Ohio-4616.]
has been outside is filthy.” Adams also observed buckets of tools
out of place from her previous visit and that the tools appeared to
have been “gathered.” Adams also testified about a toolbox
“already packed up and ready to go at the top of the driveway.”
When Adams opened the toolbox, she noticed dry tools and a pile of
dry, clean leather gloves “because * * * they [were] * * * just
freshly dumped out.”
{¶33} Sergeant Stewart testified that he observed appellant in
the cellar house doorway. Although appellant insisted that he
visited the property merely to look at junk cars, appellant
acknowledged he did not believe Shamblin would be at the property.
Also, Shamblin testified that he once told appellant, “if I ever
catch him on my property again, I’d blow his head off.”
{¶34} After our review, and in light of the evidence adduced at
trial, it is difficult to conceive that the property owners would
have welcomed appellant on their property for any reason. Further,
multiple witnesses testified that the bridge no longer spanned the
creek and most of the vehicles appellant claimed he wanted to
inspect sat on the other side of the creek. The evidence also
reveals that items of personal property had been examined and
repositioned, apparently in preparation for removal.
[Cite as State v. King, 2022-Ohio-4616.]
{¶35} Therefore, after our review of the record in the case sub
judice, we conclude that the state presented sufficient evidence
that appellant trespassed on the victims’ property by stealth.
Here, the direct and circumstantial evidence adduced at trial, if
believed by the trier of fact, established that appellant did
trespass by stealth in an unoccupied structure with the purpose to
commit a theft offense. We again emphasize that a trier of fact
may choose to believe all, part, or none of the testimony of any
witness who appears before it and, obviously, in the case at bar,
the jury found the state’s witnesses and the state’s version of the
facts more credible than the appellant’s version of the facts.
{¶36} Accordingly, based upon the foregoing reasons we overrule
appellant’s first assignment of error.
II.
{¶37} In his second assignment of error, appellant asserts his
breaking and entering conviction is against the manifest weight of
the evidence, contrary to the Fifth and Fourteenth Amendments to
the United States Constitution, and Article I, Section 16, of the
Ohio Constitution.
{¶38} In determining whether a criminal conviction is against
the manifest weight of the evidence, an appellate court must review
the entire record, weigh the evidence and all reasonable
[Cite as State v. King, 2022-Ohio-4616.]
inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of
justice that reversal of the conviction is necessary. Thompkins,
78 Ohio St.3d 380 at 387; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶ 119; State v. Smith, 2020-Ohio-5316,
162 N.E.3d 898, ¶ 31 (4th Dist.). To satisfy this test, the state
must introduce substantial evidence on all the elements of an
offense so the jury can find guilt beyond a reasonable doubt.
State v. Setty, 4th Dist. Adams No. 20CA1106, 2020-Ohio-4318, ¶ 17,
State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155, ¶ 22 (4th Dist.).
{¶39} Generally, the weight to be given evidence and the
credibility to be afforded testimony are issues to be determined by
the trier of fact. State v. Hoskins, 4th Dist. Adams No. 19CA1093,
2019-Ohio-4842, ¶ 20, citing State v. Frazier, 73 Ohio St.3d 323,
339, 652 N.E.2d 1000, citing State v. Grant, 67 Ohio St.3d 465,
477, 620 N.E.2d 50. “We defer to the trier of fact on these
evidentiary weight and credibility issues because it is in the best
position to gauge the witnesses' demeanor, gestures, and voice
inflections, and to use these observations to weigh their
credibility.” Id., citing State v. Reyes-Rosales, 4th Dist. Adams
No. 15CA1010, 2016-Ohio-3338, ¶ 17; State v. Wells, 4th Dist.
Lawrence No. 18CA23, 2019-Ohio-3799, ¶ 10-11; State v. Smallwood,
[Cite as State v. King, 2022-Ohio-4616.]
4th Dist. Highland No. 20CA1, 2021-Ohio-1103, ¶ 11.
{¶40} Thus, an appellate court may not reverse a conviction
“when there is substantial evidence upon which the trial court
could reasonably conclude that all elements of the offense have
been proven beyond a reasonable doubt.” State v. Barnes, 4th Dist.
Ross No. 19CA3687, 2020-Ohio-3943, ¶ 18, citing State v. Johnson,
58 Ohio St.3d 40, 42, 567 N.E.2d 266 (1991); citing State v.
Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the
syllabus (1988).
{¶41} In the case sub judice, the jury found appellant guilty
of breaking and entering pursuant to R.C. 2911.13(A). Although
appellant argued that he had permission to be on the victims’
property, both victims testified that appellant did not, in fact,
have permission to enter their property. Moreover (1) Sergeant
Stewart testified he observed appellant standing in the cellar
house doorway, and (2) Deborah Adams testified she noticed the
cellar house door open that particular day when she had not seen it
open since she lived at the property in 1999. Also, Adams
testified that items of personal property had been moved apparently
for the purpose of removal from the premises.
{¶42} “ ‘A jury, sitting as the trier of fact, is free to
believe all, part or none of the testimony of any witness who
[Cite as State v. King, 2022-Ohio-4616.]
appears before it.’ ” Reyes-Rosales, supra, at ¶ 17, quoting State
v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. “ ‘
“A verdict is not against the manifest weight of the evidence
because the [jury] chose to believe the State's witnesses rather
than the defendant's version of the events.” ’ ” State v. Missler,
3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 44, quoting State v.
Bean, 9th Dist. Summit No. 26852, 2014-Ohio-908, ¶ 15, quoting
State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶
16. Thus, courts should defer to the trier of fact on evidentiary
weight and witness credibility issues. State v. Koon, 4th Dist.
Hocking No. 15CA17, 2016-Ohio-416, ¶ 18; State v. Hess, 4th Dist.
Meigs No. 20CA1, 2021-Ohio-1248, ¶ 16.
{¶43} Once again, in the case at bar the jury found the
testimony of Shamblin, Adams and Sergeant Stewart more credible
than appellant’s testimony. Consequently, substantial evidence
exists upon which this jury could have reasonably concluded that
all elements of the offense have been proven beyond a reasonable
doubt. The jury did not lose its way and create a manifest
injustice.
{¶44} Accordingly, based upon the foregoing reasons we overrule
appellant's second assignment of error.
III.
[Cite as State v. King, 2022-Ohio-4616.]
{¶45} In his third assignment of error, appellant asserts that
his trial counsel was ineffective, and, thus, appellant suffered a
deprivation of his right to effective assistance of counsel,
pursuant to the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, Section 10, of the Ohio
Constitution. In particular, appellant contends that his counsel’s
failure to renew the Crim.R. 29(A) motion for judgment of acquittal
constitutes deficient performance.
{¶46} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provides that
defendants in all criminal proceedings shall have the assistance of
counsel for their defense. To establish constitutionally
ineffective assistance of counsel, a defendant must show that (1)
counsel's performance was deficient, and (2) the deficient
performance prejudiced the defense and deprived the defendant of a
fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a
defendant must prove that counsel's performance fell below an
objective level of reasonable representation. State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.
Additionally, a court need not analyze both Strickland test prongs
if it can resolve the claim under one prong. See State v.
[Cite as State v. King, 2022-Ohio-4616.]
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v.
Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 12-13.
{¶47} When a court examines whether counsel's representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689, 466 U.S.
668, 104 S.Ct. 2052. Moreover, because a properly licensed
attorney is presumed to execute all duties ethically and
competently, State v. Taylor, 4th Dist. Washington No. 07CA11,
2008-Ohio-482, ¶ 10, to establish ineffectiveness, a defendant must
demonstrate that counsel's errors were “so serious” that counsel
failed to function “as the ‘counsel’ guaranteed * * * by the Sixth
Amendment.” Strickland at 687, 466 U.S. 668, 104 S.Ct. 2052.
{¶48} In the case sub judice, appellant argues that he
established the first Strickland prong because, to the extent that
Burton governs the case sub judice, appellant’s counsel’s failure
to renew the motion for judgment of acquittal constituted deficient
performance. Furthermore, appellant contends that, if he cannot
challenge the sufficiency of the evidence on appeal, he has
suffered prejudice, the second Strickland prong.
{¶49} In the case at bar we have determined that sufficient
evidence supports appellant's conviction and his conviction is not
[Cite as State v. King, 2022-Ohio-4616.]
against the manifest weight of the evidence. Thus, we do not
believe that appellant's trial counsel rendered ineffective
assistance by failing to renew the motion for judgment of acquittal
at the close of all the evidence. Had counsel renewed the motion,
we believe the trial court would have overruled the motion because
the evidence adduced at trial proved more than sufficient to
sustain appellant's conviction. See, Burton, supra, 2007-Ohio-
2320, at ¶ 37. Moreover, appellant did not have the ability to
challenge on appealt evidence sufficiency. Thus, we conclude that
appellant was not deprived of his right to effective assistance of
counsel pursuant to the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Section 10, of the Ohio
Constitution.
{¶50} Accordingly, based upon the foregoing reasons we overrule
appellant’s final assignment of error and affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
MEIGS, 21CA2
27
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Meigs County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.