State v. Blymiller

2013 Ohio 2494

• Court: Ohio Court of Appeals
• Decided: June 10, 2013
• Docket: 2012CA00171
• Status: Published

Opinion

[Cite as State v. Blymiller, 2013-Ohio-2494.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : ROBERT D. BLYMILLER : Case No. 2012CA00171 : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2012CA00171

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 10, 2013

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JOHN D. FERRERO, JR. BERNARD L. HUNT STARK CO. PROSECUTOR 2395 McGinty Road NW RENEE M. WATSON North Canton, OH 44720 110 Central Plaza South, Ste. 510 Canton, OH 44702-1413 Stark County, Case No. 2012CA00171 2

Delaney, J.

{¶1} Appellant Robert D. Blymiller appeals from the August 21, 2012

judgment entry of conviction and sentence of the Stark County Court of Common

Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on February 15,1 2012 when Donald Cricks noticed a

green pickup truck with “black bars on the side” parked across the street near an

empty apartment at 215 Wertz Avenue N.W., Canton, Stark County, Ohio. Cricks

knows the apartment’s owner, Jim Fricker. Cricks watched as a man with long grey

hair got out of the truck and went up to the door. Cricks then heard a “smash.” Cricks

looked for his camera to take pictures of what was happening but couldn’t find it, and

by the time he went outside the truck was pulling away. Cricks called the police.

{¶3} Cricks was surprised the next day, around 11:45 a.m., when the green

truck returned. Cricks watched the green truck drop the same person off at the corner

of Third Street and continue around the block. Again, the person went up onto the

porch of 215 Wertz Avenue N.W. and tried to get in. This time Cricks was ready with

his camera, and photographed the person as he walked down the sidewalk.

{¶4} Cricks testified that the man “butt[ed] the [basement] door in” and

entered the apartment. Cricks saw him come back out shortly thereafter with copper

1 At trial, this date was described as February 16 and no one questioned it, but Cricks described events on two consecutive days. Kevin Clary apparently took the police report on February 16, 2012, so the first day Cricks observed the green truck was February 15, 2012. Stark County, Case No. 2012CA00171 3

pipe in his hands, and Cricks took another picture. The green truck returned and

picked up the grey-haired man carrying the copper.

{¶5} Cricks called the police again, made a police report, and turned over the

photos he took.

{¶6} James Fricker, the owner of the rental property at 215 Wertz Avenue

N.W., was summoned to the apartment while the police were there. He discovered

that the basement door was splintered and a window was broken. Inside, copper was

missing from the water heater. Fricker estimated the damage at $1200.00. He

testified that he does not know appellant, Kenneth Barnes, or Christopher Reese and

none of these men had permission to enter the apartment or to be on the property.

The Investigation

{¶7} Kevin Clary of the Canton Police Department took a report on the

breaking and entering on Thursday, February 16, 2012. The suspects were no longer

on the scene but Cricks had described the distinctive green truck with what he thought

were black “bars” on the side. Cricks also saw four numbers on the license plate:

2217.

{¶8} Clary was back on duty a few days later, the next Sunday, February 19,

2012. He was on routine patrol on Schroyer S.W., Canton, when a green pickup truck

with black bars on it passed right in front of his patrol car. The numbers on the plate

were 2217. Clary performed a traffic stop and two occupants were in the vehicle:

appellant (the driver) and his passenger Kenneth Barnes.

{¶9} Detective Jerry Fuelling followed up and interviewed appellant, who

stated he picks up Kenneth Barnes periodically in his green truck, just as he picked Stark County, Case No. 2012CA00171 4

him up at 215 Wertz Avenue N.W. on February 16. Appellant said Barnes called him

to come pick him up, and appellant went to get him, along with a friend named

Christopher Reese. Appellant said Barnes came out to get into the truck, said he

forgot something, “walked somewhere,” came back and got in. Upon questioning by

Fuelling, appellant stated Barnes had copper pipe in his hands and “alluded to” the

fact that Barnes claimed someone gave him the pipe as payment for something.

{¶10} Appellant told Fuelling they took the copper to FPT Scrap Metals in

Canton. When Fuelling checked receipts at FPT, he discovered Barnes brought in 42

pounds of copper between February 16 and February 17, 2012.

Barnes’ Account

{¶11} Kenneth Barnes testified on behalf of appellee, having already been

convicted of two counts of breaking and entering, including the offense at 215 Wertz

Avenue N.W., but not yet sentenced. Barnes also has a criminal record of prior felony

and theft offenses.

{¶12} Barnes stated he was living with appellant on February 16, 2012, and

they went about their ordinary routine of driving around looking for “abandoned

houses” to take copper out of. He stated they found the home on Wertz, appellant

dropped him off, and he went in. Barnes removed the copper, appellant picked him

up, and they went to the scrapyard. Barnes stated he split the proceeds evenly with

appellant. Barnes thought he and appellant were the only two occupants of the truck

that day, but he couldn’t remember for sure. Upon cross-examination, Barnes stated

Christopher Reese may have been with them. Barnes said he was not promised

anything by appellee in exchange for his testimony. Stark County, Case No. 2012CA00171 5

The Defense Case

{¶13} Christopher Reese was the only defense witness. He testified that he

knows appellant and Kenneth Barnes, and was with appellant on February 16, 2012.

In fact, Reese claimed he, too, lived with appellant at the time, but could not

remember whether Barnes lived with them as well. Reese said it was common for he

and appellant to pick up Barnes at various locations around the city where he would

be staying temporarily, anytime they needed an extra person on their job site. Reese

said that on February 16, Barnes came out of a house with copper in his hands.

Reese said Barnes’ dad is a plumber and he assumed his dad gave him the copper to

scrap.

{¶14} Reese said he and appellant remained in the truck the entire time and

had no idea the copper was stolen. Upon cross examination, Reese stated he wasn’t

really sure when these events occurred but it was around the “middle of the month.”

Indictment, Conviction, and Sentence

{¶15} Appellant was charged by indictment with one count of breaking and

entering pursuant to R.C. 2911.13(A) for the offense at 215 Wertz Avenue N.W.2 He

entered a plea of not guilty and the case proceeded to jury trial. Appellant moved for

judgment of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence

and at the close of all of the evidence; the motions were overruled. Appellant was

found guilty as charged and sentenced to 5 years of community control, which

included a term of 180 days in the Stark County Jail.

2 Appellee dismissed a second count of breaking and entering prior to trial. Stark County, Case No. 2012CA00171 6

{¶16} Appellant now appeals from the judgment entry of his conviction and

sentence.

ASSIGNMENT OF ERROR

{¶17} Appellant raises one Assignment of Error:

{¶18} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO

GRANT APPELLANT’S CRIMINAL RULE 29, MOTION FOR ACQUITTAL, THE

VERDICT WAS NOT SUFFICIENT, THUS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

ANALYSIS

I.

{¶19} Appellant argues his conviction upon one count of breaking and entering

was against the manifest weight and sufficiency of the evidence. We disagree.

{¶20} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78

Ohio St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The

standard of review for a challenge to the sufficiency of the evidence is set forth in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the

syllabus, in which the Ohio Supreme Court held, “An appellate court's function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the Stark County, Case No. 2012CA00171 7

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.”

{¶21} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

{¶22} Appellant argues appellee failed to establish he assisted or encouraged

Barnes in the theft of the copper. Appellant was convicted of one count of breaking

and entering pursuant to R.C. 2911.13(A), which states in pertinent part, “No person

by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose

to commit therein any theft offense, as defined in section 2913.01 of the Revised

Code.” The jury was instructed upon the elements of aiding and abetting found in

R.C. 2923.03 which provides in relevant part: “No person, acting with the kind of

culpability required for the commission of an offense, shall * * * [a]id or abet another in

committing the offense.”

{¶23} Appellant argues there is no evidence in the record to establish he knew

Barnes stole the copper. We disagree. A person's mere association with a principal

offender is not enough to sustain a conviction based on aiding and abetting. State v. Stark County, Case No. 2012CA00171 8

Sims, 10 Ohio App.3d 56, 58, 460 N.E.2d 672 (8th Dist.1983). Generally, a criminal

defendant has aided or abetted an offense if he has supported, assisted, encouraged,

cooperated with, advised, or incited another person to commit the offense. See State

v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus; State v. Hickman,

5th Dist. No. 2003-CA-00408, 2004-Ohio-6760 at ¶ 45. “‘Participation in criminal intent

may be inferred from presence, companionship and conduct before and after the

offense is committed.’ “ State v. Mendoza, 137 Ohio App.3d 336, 342, 738 N.E.2d 822

(3rd Dist.2000), quoting State v. Stepp, 117 Ohio App.3d 561, 568-569, 690 N.E.2d

1342 (4th Dist.1997); State v. Myers, 5th Dist. No. 03-CA61, 2004-Ohio-3052 at ¶ 116.

{¶24} Further, “[a]iding and abetting may also be established by overt acts of

assistance such as driving a getaway car or serving as a lookout.” State v.

Jackson, 10th Dist. No. 03-AP273, 2003-Ohio-5946, ¶ 32, citing State v. Cartellone, 3

Ohio App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981).

{¶25} In this case, we find sufficient evidence of appellant’s participation in

criminal intent. Not only did appellee present evidence that he dropped off Barnes

twice at the house immediately prior to the break-ins and picked him up immediately

thereafter, but evidence was also presented he shared in the proceeds of the theft at

the scrap yard.

{¶26} Appellant argues that the testimony of Cricks and Barnes are unreliable,

but determining the credibility of witnesses is within the province of the trier of fact.

See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of

the syllabus. Cricks’ account was buttressed by the photographs he took, his

accuracy in viewing the numbers on the license plate, and appellant’s admissions that Stark County, Case No. 2012CA00171 9

he did in fact drive the green truck to 215 Wertz Avenue N.W. to pick up Barnes, as

Cricks related. Whether Reese was present or not makes no difference to the

operative facts, and the jury was free to believe or disbelieve his assertion that he and

appellant didn’t know the copper was stolen, just as it could do with Barnes’ account.

{¶27} Upon our review of the record, we find appellant’s conviction is

supported by sufficient evidence and is not against the manifest weight of the

evidence. Appellant, Barnes, and the green truck were seen at 215 Wertz on two

consecutive days, with no permission to be there. Appellant admits he was there, and

was observed by Cricks dropping Barnes off immediately before the break-in and

picking him up immediately after. Then the two went to the scrapyard where, the

evidence shows, Barnes sold the copper. Appellee presented evidence that Barnes

shared those proceeds with appellant.

{¶28} Appellee presented sufficient evidence to prove appellant guilty of aiding

and abetting the offense of breaking and entering. Nor has appellant shown the jury

was influenced by any improper motivation or consideration such as passion,

prejudice, or bias. Appellant’s conviction, therefore, is not against the weight of the

evidence. Stark County, Case No. 2012CA00171 10

CONCLUSION

{¶29} Appellant’s sole assignment of error is overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Baldwin, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. CRAIG R. BALDWIN

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