State v. Butler

949 N.E.2d 1075, 192 Ohio App. 3d 623
CourtOhio Court of Appeals
DecidedMarch 17, 2011
DocketNo. 94743
StatusPublished

This text of 949 N.E.2d 1075 (State v. Butler) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Butler, 949 N.E.2d 1075, 192 Ohio App. 3d 623 (Ohio Ct. App. 2011).

Opinion

Mary Eileen Kilbane, Administrative Judge.

{¶ 1} Defendant-appellant, Willie Butler, appeals his convictions and sentence. After review, we affirm his convictions, but remand the case for a limited hearing on court costs.

{¶ 2} In October 2009, Butler was charged in a six-count indictment. Counts 1 and 2 charged him with aggravated burglary, Counts 3 and 4 charged aggravated robbery, and Counts 5 and 6 charged him with kidnapping.1 The matter proceeded to a jury trial, at which he was found guilty of all charges as an aider and abettor. The trial court sentenced him to five years on each of Counts 1 and 2, to be served concurrently with each other, five years on each of Counts 3 and 4, to be served concurrently with each other, and five years on each of Counts 5 and 6, to be served concurrently with each other. The court ordered that the counts run concurrently with each other and consecutively to Counts 1 and 3. The trial court also sentenced Butler to three years in prison on the firearm specification on each count, to be served prior to and consecutively to each of Counts 1 through 6, for an aggregate of 18 years in prison.2

{¶ 3} The following evidence was adduced at trial.

{¶ 4} On October 3, 2009, Gilbert Hart and Gerald Jones were refurbishing a house in Lakewood, Ohio owned by John Allen. Hart and Jones were working in the bathroom upstairs when three men entered the bathroom and ordered Jones by gunpoint to bind Hart’s wrists and ankles with duct tape. One of the assailants then restrained Jones in the same manner. The men told Hart and Jones that they were “bounty hunters” looking for Allen. Apparently, Allen had recently won $3,500 in an illegal craps game with the bounty hunters. Hart told the bounty hunters that Allen had left for the day. They ordered Hart at gunpoint to call Allen and request more supplies. Allen responded that he was on the other side of town and that he would be there later.

[628]*628{¶ 5} The bounty hunters then questioned Jones for Allen’s home address. Jones responded that he did not know where Allen lived. While the victims were restrained, the bounty hunters took $4 from Jones and $80 from Hart. During this ordeal, the bounty hunters spoke with someone on their cell phones. Hart testified that he did not see who was outside, but his impression was that there was someone outside the house acting as a lookout because the bounty hunters talked to the lookout on their cell phone and got upset when he did not tell them that the neighbors came home.

{¶ 6} Hart testified that the bounty hunters told the person outside, who was later determined to be Butler, to go to the local convenience store for snacks, drinks, papers to smoke marijuana, and duct tape. The surveillance video from the convenience store revealed that an African-American male exited a white van and entered the store. This male wore a tan baseball cap and a jacket, shirt, pants, and shoes all dark in color. From what could be observed from the video, the male purchased potato chips and a drink. The tan hat worn by the male in the surveillance video was similar to a tan hat found in Hart’s vehicle when Butler was arrested. The DNA on this hat matched Butler’s DNA. Furthermore, the shirt worn by the male in the video appeared to have some sort of white coloring on the front. When Butler was arrested, he was wearing a black shirt with a white design that was very similar to the design observed on the shirt worn by the man in the video.

{¶ 7} The bounty hunters then had Hart call Allen again. Allen responded that he was busy and that he would be there shortly. At one point, the bounty hunters took Hart and Jones to the basement and made Hart call Allen for a third time. Allen said that he was home and that he was not coming to the Lakewood property. After being in the basement for approximately an hour and a half, Jones told the bounty hunters that Allen lived in Lorain. The bounty hunters left Hart in the basement and put Jones in Hart’s car. Jones testified that there were three other men in the car with him, and his hands and feet were bound with duct tape while he was in the car.

{¶ 8} During the drive to Allen’s house, the bounty hunters were on their cell phones, a circumstance that gave Jones the impression that there was another car following them. When they arrived at Allen’s house, Jones was ordered to lie down in the back seat. Approximately ten minutes later, Butler got into the driver’s seat of Hart’s car, with Jones bound and lying down in the back seat. They did not speak, but Jones heard Butler’s cell phone vibrate as if he were receiving calls.3 The police arrived shortly thereafter and found Butler sitting in the driver’s seat and Jones bound in the back seat of Hart’s car.

[629]*629{¶ 9} Butler now appeals, raising nine assignments of error for review, which shall be discussed together and out of order where appropriate.

Assignment of Error One
Butler’s convictions are not supported [by] legally sufficient evidence as required by state and federal due process.
Assignment of Error Four
Butler’s burglary convictions are not supported [by] legally sufficient evidence as required by state and federal due process.

{¶ 10} The Ohio Supreme Court has explained the standard for sufficiency of the evidence in State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113:

Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1977), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing such a challenge, “[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 proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

{¶ 11} In the instant case, Butler was convicted of aggravated burglary under R.C. 2911.11(A)(2), aggravated robbery under 2911.01(A)(1), and kidnapping under 2905.01(A)(2). R.C. 2911.11(A)(2) provides, “No person, by force, stealth, or deception, shall trespass in an occupied structure * * *, when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender has a deadly weapon * * * on or about the offender’s person or under the offender’s control.”

{¶ 12} R.C. 2911.01(A)(1) provides, “No person, in attempting or committing a theft offense,* * * or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]” R.C. 2905.01(A)(2) provides, “No person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person * * * [t]o facilitate the commission of any felony or flight thereafter[.]”

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Bluebook (online)
949 N.E.2d 1075, 192 Ohio App. 3d 623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-butler-ohioctapp-2011.