[Cite as State v. Russell, 2018-Ohio-4524.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-59 : v. : Trial Court Case No. 2017-CR-432 : JEVON C. RUSSELL, JR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 9th day of November, 2018.
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 10 West Second Street, Suite 2400, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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TUCKER, J. -2-
{¶ 1} Defendant-appellant, Jevon Cedric Russell, Jr., appeals from his convictions
for one count of aggravated burglary, a first degree felony in violation of R.C.
2911.11(A)(2), and one count of having weapons while under disability, a third degree
felony in violation of R.C. 2923.13(A)(2). Raising five assignments of error, Russell
argues that his convictions should be reversed because the trial court’s instruction to the
jury on the charge of aggravated burglary was incomplete; because the trial court abused
its discretion by overruling his motion for a mistrial; because the trial court improperly
ruled on objections without apprising the jury; because the State failed to present
sufficient evidence to prove his guilt with respect to each of the elements of aggravated
burglary; and because the verdicts were against the manifest weight of the evidence.
{¶ 2} As Russell argues, the trial court’s instruction did not accurately mirror the
text of R.C. 2911.11(A)(2), but we find on the record of this case that the outcome of the
trial would not otherwise have been different. We find further that the trial court did not
abuse its discretion by overruling Russell’s motion for a mistrial; that the court’s failure to
inform the jury of its rulings on objections did not affect the outcome of the trial; that the
State presented sufficient evidence to prove the elements of aggravated burglary; and
that the verdicts were not against the manifest weight of the evidence. Therefore,
Russell’s convictions are affirmed.
I. Facts and Procedural History
{¶ 3} On the evening of April 10, 2017, Samantha Williamson heard sounds
coming from the front door to her apartment indicating that somebody outside was -3-
attempting to force the door open.1 Trial Tr. 42:5-42:7 and 43:23-44:17. She opened
the door herself, and Russell and another man, Brandon Sparks, entered without her
permission.2 Id. at 44:13-45:21. Russell was carrying two firearms.3 See id. at 46:10-
46:14.
{¶ 4} Once inside, Sparks asked Williamson where her boyfriend was. 4 Id. at
45:22-46:9. Williamson said only that her boyfriend was not there at the time, apparently
prompting Russell and Sparks to try “to walk into one of the spare bedrooms” to verify
Williamson’s answer. See id. They were, however, unable to open the door to the
bedroom, which Williamson told them was broken, so they grew frustrated and left.5 See
id. As the two men departed, Russell turned to Williamson and advised her to inform her
boyfriend “that they had a bullet for his head.” Id. They also helped themselves to
several items of her boyfriend’s personal property, including his wallet.6 See id. at 47:7-
1In his brief, Russell describes the sounds Williamson heard as “a knock at the door.” Appellant’s Br. 5. He mistakenly refers to Williamson as “Samantha Williams” or “Ms. Williams” throughout much of his argument. Id. at 5-8, 10 and 17. 2Sparks testified that he never entered Williamson’s apartment but remained outside near the entrance. Trial Tr. 190:6-192:15. 3 According to Sparks, Russell had a single firearm, not two. Trial Tr. 186:1-187:5, 188:18-189:5 and 191:10-192:19. 4 Sparks testified that Russell made the inquiry. Trial Tr. 191:10-192:2. 5Williamson might have dissuaded Russell and Sparks from forcing their way into the bedroom by telling them that her children were within, rather than by telling them that the door (or the doorknob) was broken. See Trial Tr. 377:1-377:19. 6 The other items were two fishing or hunting knives. See Trial Tr. 47:7-47:11 and 127:14-127:16. Williamson testified that Sparks and Russell each took something, though Sparks denied that he took anything himself and testified that Russell took only the two knives. See id. at 47:7-47:25 and 193:5-193:10. -4-
47:18, 127:7-127:16 and 193:5-193:10. The encounter lasted somewhat less than three
minutes. Id. at 50:4-50:12.
{¶ 5} Shortly afterward, Williamson contacted the Fairborn Police Department, and
officers responded to her residence. See id. at 48:1-48:8 and 50:13-50:18. Williamson
identified Russell and Sparks as the intruders in her spoken account of what had
happened, as well as in a written statement.7 See id. at 57:20-61:18, 377:1-378:16,
383:5-383:24, 394:22-396:11 and 525:2-527:25. Williamson’s boyfriend—who was, in
fact, hidden in the apartment during Williamson’s encounter with Russell and Sparks—
also provided spoken and written statements, as did one of Williamson’s neighbors. Id.
at 42:18-42:20, 122:11-125:13, 157:9-161:11, 333:21-336:18, 338:4-338:10 and 348:1-
348:12. Before Russell and Sparks entered Williamson’s apartment, they had asked the
neighbor whether he knew the whereabouts of Williamson’s boyfriend. See id. at 160:5-
160:19.
{¶ 6} Officers arrested Sparks later that night at his home, not far from where
Williamson lived. Id. at 246:4-249:4. Sparks, who later entered into a plea agreement
with the State, cooperated with the investigation, giving officers information that led to
Russell’s arrest and to the recovery of two loaded handguns hidden near a fence
separating Williamson’s apartment complex from adjacent commercial lots. See id. at
7 Williamson seems to have met Sparks in advance of the incident on April 10, 2017. See Trial Tr. 45:1-45:9 and 60:11-62:9. An officer testified that Williamson initially identified Russell as “Cedric Russell,” apparently because she knew Russell by his middle name, instead of his first name. See id. at 61:8-62:13 and 378:1-378:16. In her testimony at trial, Williamson acknowledged that she had heard her boyfriend refer to Russell as “Ced,” but she otherwise repudiated the statements attributed to her by the officer. Id. at 57:20-60:24 and 62:4-62:13. -5-
209:5-209:22, 253:1-254:8, 259:3-259:9, 262:6-262:20, 273:7-274:22 and 280:13-281:8.
After they recovered the handguns, officers located Russell at a nearby residence and
placed him under arrest. Id. at 262:6-262:20, 280:13-281:5. Inside the residence,
officers discovered an Ohio driver’s license belonging to Williamson’s boyfriend, along
with documents bearing Russell’s name. Id. at 127:17-127:22, 295:1-296:1 and 297:11-
297:20.
{¶ 7} Williamson identified Russell again in a photographic line-up during an
interview at the offices of the Fairborn Police Department on April 14, 2017. See id. at
50:13-55:9 and 57:20-60:4. Yet, on April 17, 2017, Williamson submitted a notarized
affidavit to a detective in which she averred that she knew Russell personally and denied
that she had seen him with Sparks in her apartment. Id. at 64:1-65:13. On the same
date, Williamson’s neighbor viewed photographic line-ups and identified Russell and
Sparks as the men who had asked him about Williamson’s boyfriend. See id. at 161:14-
169:13.
{¶ 8} A Greene County grand jury issued an indictment against Russell on August
11, 2017, charging him as follows: Count 1, aggravated burglary pursuant to R.C.
2911.11(A)(2); Count 2, burglary pursuant to R.C. 2911.12(A)(1); and Count 3, having
weapons while under disability pursuant to R.C. 2923.13(A)(2). Counts 1 and 2 were
each accompanied by a firearm specification under R.C. 2941.145 and a repeat-offender
specification under R.C. 2941.149. Count 3 was accompanied by two forfeiture
specifications directed to the handguns recovered by officers from the grounds of
Williamson’s apartment complex.
{¶ 9} On August 28, 2017, Russell’s case proceeded to a trial by jury on Counts 1 -6-
and 2. At his request, the trial court severed Count 3, which was subsequently tried to
the bench. Russell’s jury trial concluded on August 31, 2017, around which time the
State moved to dismiss Count 2 and the specifications attached to it.8 The trial court
sustained the State’s motion, and the jury found Russell guilty of aggravated burglary as
charged in Count 1, including a separate finding that Russell had had a firearm on or
about his person during the commission of the offense. On September 21, 2017, the
trial court found that Russell was a repeat violent offender pursuant to R.C. 2941.149,
and on September 28, 2017, the court found Russell guilty as charged on Count 3.
{¶ 10} Russell appeared for sentencing on October 25, 2017. The trial court
imposed a sentence of 11 years’ mandatory imprisonment on Count 1; a mandatory term
of three years on the attached firearm specification, to be served consecutively; a
mandatory term of two years on the attached repeat-offender specification, to be served
consecutively; a sentence enhancement of one year pursuant to R.C. 2929.141, to be
served consecutively; 9 and a sentence of three years on Count 3, also to be served
consecutively. In total, the trial court sentenced Russell to 20 years, of which 16 were
mandatory. On November 3, 2017, Russell timely filed his notice of appeal to this court.
II. Analysis
8 In an entry filed on August 31, 2017, memorializing its ruling on the State’s motion, the trial court indicated that the State had moved for dismissal of Count 2 “at the conclusion of its case in chief.” The transcript, however, is inconsistent with this assertion; the motion seems to have been made off the record and then incorporated by reference. See Trial Tr. 637:24-638:11. 9 The trial court imposed the one-year sentence enhancement pursuant to R.C. 2929.141 because Russell was serving a period of postrelease control at the time he committed the offense of aggravated burglary. -7-
{¶ 11} For his first assignment of error, Russell argues that:
THE VERDICT SHOULD BE REVERSED BECAUSE THE JURY
WAS NOT GIVEN A COMPLETE JURY INSTRUCTION FOR
AGGRAVATED BURGLARY[.]
{¶ 12} Russell faults the trial court for failing to instruct the jury that it could not find
him guilty of aggravated burglary unless it determined, in addition to other elements, that
a person—excluding himself and any accomplice of his—was present when he and
Sparks entered Williamson’s apartment without permission. See Appellant’s Br. 10. On
this basis, Russell maintains that his conviction for aggravated burglary should be
reversed. Id. He tacitly acknowledges that his trial counsel did not object to the
omission. See id. at 9-10.
{¶ 13} Apart from “plain error,” an appellate court “ ‘ “will not consider any error
* * * not call[ed] to the trial court’s attention at a time when [the] error could have been
avoided or corrected.” ’ ” (Citation omitted.) See State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15-16, quoting State v. Awan, 22 Ohio St.3d 120,
122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545
(1968), paragraph three of the syllabus. Russell has thus waived all but plain error
because he did not object to the jury instructions at trial. State v. Rhines, 2d Dist.
Montgomery No. 24417, 2012-Ohio-3393, ¶ 9, citing State v. Waddell, 75 Ohio St.3d 163,
166, 661 N.E.2d 1043 (1996); Trial Tr. 712:1-712:7. By the plain-error standard, reversal
is warranted only if “the outcome of the trial would clearly have been different” but for the
alleged error. Waddell at 166.
{¶ 14} Russell was charged in Count 1 with aggravated burglary under R.C. -8-
2911.11(A)(2), according to which:
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
[his] person or under [his] control.
(Emphasis added.) Here, the trial court delivered the following instruction to the jury:
Before you can find the Defendant guilty, you must first find beyond
a reasonable doubt that on or about the 10th day of April, 2017, and in
Greene County, Ohio, the Defendant did, by force, or stealth, or deception,
trespass into an occupied structure located [in Fairborn] with the purpose to
commit the offense of theft when the offender [sic] had a deadly weapon, to
wit a firearm, on or about his person or under his control.
Trial Tr. 698:15-699:3. The court defined the term “occupied structure” as “any house or
building which at the time is occupied as the permanent or temporary habitation of any
person, in which at the time a person is present or likely to be present.” Id. at 700:24-
701:5; see also R.C. 2909.01(C)(4).
{¶ 15} Russell contends that the trial court’s instruction did not accurately define
aggravated burglary in the absence of the element requiring the presence of a person
other than an accomplice of the offender during the commission of the offense.
Appellant’s Br. 10. He characterizes this inaccuracy as reversible error because the
instruction, as delivered, would have allowed the jury to find him guilty of aggravated
burglary even if he and Sparks had trespassed into Williamson’s apartment and were, at -9-
that time, the only two persons present. See id.
{¶ 16} Although Russell’s argument has merit inasmuch as the trial court did omit
an element of the offense, we find that the outcome of the trial would not have been
different had the jury instructions precisely tracked the language of R.C. 2911.11(A)(2).
The jury heard testimony from two witnesses, Williamson herself and her boyfriend, who
were present in Williamson’s apartment when Russell and Sparks intruded.10 Sparks,
for that matter, testified that he witnessed Russell enter the apartment in Williamson’s
presence. See Trial Tr. 191:10-191:25. Moreover, in making his defense, Russell took
the position that Williamson had truthfully identified Sparks as one of two men who
trespassed into her apartment; though Williamson also identified Russell as one of the
two men, he attributed this aspect of her testimony to “external pressure” and called
Sparks “a liar.” See, e.g., id. at 36:5-36:19, 662:21-663:10, 664:21-666:5 and 671:3-
671:17.
{¶ 17} Neither the State nor Russell ever questioned whether Williamson was
present in her apartment when the trespass occurred, and Russell himself expressly
presupposed that she was. The absence of the omitted element, then, had no
discernable impact on the outcome of the trial. Russell’s first assignment of error is
overruled.
{¶ 18} For his second assignment of error, Russell argues that:
IT WAS REVERSIBLE ERROR TO DENY APPELLANT’S
REQUEST FOR A MISTRIAL AFTER A POLICE OFFICER TESTIFIED
10Williamson’s boyfriend testified that he heard Sparks’s voice but did not see either Russell or Sparks during the incident. Trial Tr. 124:3-124:25 and 125:18-127:9. -10-
THAT A WITNESS WAS NOT FEELING SAFE WHILE BEING
TRANSPORTED[.]
{¶ 19} Sparks aided the Fairborn Police Department in its investigation on the night
of April 10, 2017. Trial Tr. 253:1-254:8, 259:3-259:9, 262:6-262:20, 273:7-274:22 and
280:13-281:8. Among other things, he accompanied officers to the residence where he
had indicated Russell would be found. Id. at 273:7-274:25. At trial, one of the officers
testified that before Russell was taken into custody, Sparks was transported away from
the scene because “[h]e was not feeling safe at that time.” Id. at 276:9-276:16. Russell
objected and moved for a mistrial, but the trial court overruled his motion. Id. at 276:17-
277:8. Instead, the court sustained the objection and cautioned the jury “to disregard the
comment about Mr. Sparks not feeling safe,” emphasizing that the comment was “not to
be used in any way as evidence.” Id. at 278:24-279:20. Russell contends that the court
erred by overruling his motion for a mistrial because the officer’s testimony “materially
prejudiced” his case. Appellant’s Br. 13.
{¶ 20} A mistrial should “be declared only when * * * a fair trial is no longer
possible.” (Citations omitted.) See State v. Franklin, 62 Ohio St.3d 118, 127, 580
N.E.2d 1 (1991). Whether “to grant a mistrial is a question left [to] the discretion of the
trial court, and the court’s decision will not be disturbed on appeal absent a finding that
the decision constitutes an abuse of discretion.” (Citation omitted.) State v. Wilkins,
183 Ohio App.3d 824, 2009-Ohio-4575, 919 N.E.2d 241, ¶ 51 (2d Dist.). A decision
satisfies this standard if it evinces “an arbitrary, unreasonable [or] unconscionable attitude
on the part of the court.” (Citation omitted.) Id.
{¶ 21} Russell insists that he was materially prejudiced because the jury heard that -11-
Sparks, “[o]ne of the [S]tate’s primary witnesses, who testified * * * under a plea deal,”
reputedly felt unsafe at the scene of Russell’s arrest. Appellant’s Br. 13. Yet, Sparks
himself had already testified by that point in the trial, meaning that the jury had already
had a first-hand opportunity to observe his demeanor, to evaluate his account of events
and to make an assessment of his credibility. The officer’s statement about Sparks “not
feeling safe,” furthermore, was an isolated remark and seems likely to have had a
negligible impact on the jury. More importantly, the trial court sustained Russell’s
objection to the remark and promptly gave a curative instruction, with which the jury
presumably complied. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995)
(noting that a “jury is presumed to follow the instructions, including curative instructions,
given it by a trial judge”); State v. Goldick, 2d Dist. Montgomery No. 22611, 2009-Ohio-
2177, ¶ 42; Trial Tr. 278:24-279:20. Therefore, we find that the trial court did not abuse
its discretion by refusing to grant a mistrial. Russell’s second assignment of error is
{¶ 22} For his third assignment of error, Russell argues that:
APPELLANT’S SUBSTANTIAL RIGHTS WERE AFFECTED WHEN
THE TRIAL JUDGE DID NOT RULE ON OBJECTIONS ON THE
RECORD[.]
{¶ 23} Russell claims that his “constitutional rights were violated” because the trial
court failed to announce its rulings on objections to the jury.11 Appellant’s Br. 14-16. At
11 Although the State suggests that Russell also challenges the merits of the trial court’s ruling on a specific objection, Russell’s third assignment of error is directed only to the propriety of the trial court’s practice of resolving objections without informing the jury. Compare Appellant’s Br. 14 and 16 with Appellee’s Br. 16. -12-
trial, Russell did not object to this practice, so we review for plain error.
{¶ 24} Appearances to the contrary notwithstanding, Russell acknowledges that
the trial court ruled on objections for the record—he quotes seven examples in his brief.
Id. In one of these, which Russell offers as the prime example of the “fundamental
[un]fairness” of “rul[ing] upon [objections] outside the [hearing] of the jury,” his trial counsel
objected to a question posed to Sparks on direct examination by the State. See id. at 14
and 16. The court ruled on the objection after the following exchange, during which the
State was addressing its plea agreement with Sparks:
THE STATE: And you and I have met before—just to be fair to the
jury and the Defendant. Is that right?
SPARKS: Yes, sir.
THE STATE: Can you let—just tell the ladies and gentlemen of the
jury what it is that I asked you to do every time that we met with each other.
SPARKS: To be honest.
DEFENSE COUNSEL: Your Honor, I’m going to object.
THE COURT: Approach.
Trial Tr. 211:1-211:12. A bench conference began at that point. Id. at 211:13.
{¶ 25} In conference, Russell’s counsel explained that he had objected on the
basis of “improper bolstering,” and the State consented to withdraw the question. Id. at
212:5-212:14. With the issue thus resolved, the trial court sustained the defense’s
objection. Id. at 213:1-213:2. The parties acknowledged the court’s ruling, and the
conference concluded. Id. at 213:3-213:7. Afterward, the State resumed its
examination of Sparks, but rather than formally withdrawing the previous question, it -13-
proceeded to ask a series of questions about Sparks’s connection to Russell and the
circumstances of Russell’s arrest. See id. at 213:8-217:14. Russell argues that the jury
was consequently “left with the answer that [Sparks was] ‘to be honest’ even though that
should have been stricken from the record upon the [c]ourt’s ruling.” Appellant’s Br. 14.
{¶ 26} We agree generally that the trial court should have informed the jury of its
rulings on objections. See, e.g., State v. Green, 2d Dist. Greene No. 2007 CA 2, 2009-
Ohio-5529, ¶ 123-132; State v. Brown, 5th Dist. Richland No. 05 CA 41, 2006-Ohio-3277,
¶ 16-22. Nevertheless, given that the court did not notify the jury of its rulings on either
of the parties’ objections, the lack of notification affected the State and Russell alike,
vitiating the prospect that Russell was unfairly prejudiced. As well, in its opening and
closing instructions, the court told the jury that it “must not speculate as to why” an
objection “to any question” was sustained “or what the answer to such question” would
have been; this is a standard instruction that the jury is presumed to have followed. State
v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995) (noting that juries are presumed
to follow instructions); compare with State v. Thomason, 2018-Ohio-1228, ___ N.E.3d
___, ¶ 16-19 (2d Dist.) (holding that the defendant-appellant was not prejudiced by her
trial counsel’s failure to request an immediate curative instruction after the trial court
sustained counsel’s objection to hearsay testimony, because the “trial court instructed the
jury before and after the presentation of evidence” not to speculate as to why an objection
had been sustained). Russell, then, cannot have been prejudiced by the trial court’s
failure to inform the jury regarding matters not subject to the jury’s consideration.
{¶ 27} With respect to Sparks’s testimony that the State asked him “[t]o be honest,”
we note that Russell’s trial counsel did not request a curative instruction. Trial Tr. 213:1- -14-
213:7. Even if Russell had preserved this issue for review on the merits, however, the
presumption that the jury followed the trial court’s opening and closing instructions
essentially forecloses the possibility that the lack of a curative instruction resulted in
prejudice. See Thomason at ¶ 16-19.
{¶ 28} We find that the outcome of the trial would not clearly have been different
had the trial court notified the jury of its rulings on the parties’ objections. Russell’s third
assignment of error is overruled.
{¶ 29} For his fourth assignment of error, Russell argues that:
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT
APPELLANT OF AGGRAVATED BURGLARY[.]
{¶ 30} Russell contends that his conviction for aggravated burglary should be
reversed because the State did not present sufficient evidence to prove his guilt. In
support of this contention, Russell presents a series of citations to the record that, by
implication, appear to have been intended to cast doubt on the credibility of Sparks’s
testimony. See Appellant’s Br. 17.
{¶ 31} Sufficiency of the evidence “is the legal standard applied to determine
whether * * * the evidence [in a given case] is [adequate] as a matter of law to support
the jury[’s] verdict.” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a
challenge to a conviction based upon the sufficiency of the evidence, the “ ‘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.’ ” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 -15-
(1991), paragraph two of the syllabus.
{¶ 32} Russell’s argument regarding the sufficiency of the evidence lacks merit.
He not only fails to specify which of the elements of aggravated burglary was allegedly
not proven, but more problematically, he bases his argument entirely on the question of
Sparks’s credibility—a matter within the jury’s prerogative. See, e.g., State v. Williams,
2d Dist. Miami No. 2004 CA 6, 2004-Ohio-6218, ¶ 22.
{¶ 33} At trial, Williamson and Sparks testified that Russell forcibly trespassed into
Williamson’s apartment while in possession of a firearm, and Williamson’s neighbor
testified that Russell had asked him about Williamson’s boyfriend moments before the
incident. Trial Tr. 43:23-45:21, 46:10-46:14, 47:7-47:18, 57:20-61:18, 122:11-125:13,
127:7-127:16, 157:9-161:11, 186:1-187:5, 188:18-189:5, 190:6-192:19 and 193:5-
193:10. The testimony further established that Williamson and her boyfriend were
present in the apartment at that time, and that Russell committed a theft offense as he
left the premises. Id. at 47:7-47:18, 127:7-127:16, 191:10-191:25 and 193:5-193:10; see
also R.C. 2913.01(K) (defining “theft offense”). Viewed in a light favoring the
prosecution, any rational trier of fact could have found that this evidence proved Russell’s
guilt beyond a reasonable doubt. See R.C. 2911.11(A)(2). Russell’s fourth assignment
of error is overruled.
{¶ 34} For his fifth assignment of error, Russell argues that:
THE VERDICT SHOULD BE REVERSED BECAUSE IT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 35} Finally, Russell maintains that because Williamson and Sparks gave
inconsistent testimony, his convictions for aggravated burglary and having weapons while -16-
under disability were against the manifest weight of the evidence. Appellant’s Br. 18-19.
He contests his conviction on the latter charge, which was tried to the bench, because
“no * * * evidence or testimony was provided to the [j]udge” that had not already been
introduced at his jury trial on the charge of aggravated burglary. Id. at 19.
{¶ 36} In a challenge based on the weight of the evidence, an “appellate court acts
as a ‘thirteenth juror.’ ” State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 49 (2d
Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
Accordingly, the appellate court must review the record; weigh the evidence and all
reasonable inferences; consider the credibility of witnesses; and determine whether in
resolving conflicts in the evidence, the jury clearly lost its way and created a manifest
miscarriage of justice warranting a new trial. Thompkins at 387, citing State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist.
Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A trial court’s “judgment should be
reversed as being against the manifest weight of the evidence ‘only in the exceptional
case in which the evidence weighs heavily against [a] conviction.’ ” Hill at ¶ 8, quoting
Martin at 175.
{¶ 37} Regarding Williamson’s testimony at trial, Russell observes that Williamson
did not identify him as one of the two men who trespassed into her apartment. Despite
identifying Russell on the night of the incident, and again in a photographic line-up on
April 14, 2017, Williamson also submitted an affidavit to a detective on April 17, 2017, in
which she averred that she knew Russell personally and denied that she had seen him in
her apartment. Id. at 50:13-55:9, 57:20-60:4 and 64:1-65:13. Even so, Williamson also
testified that she was paid $250.00 by a third party in connection with her affidavit of April -17-
17, 2017, and acknowledged that she had told the detective that she would be concerned
for her safety if called upon to testify at Russell’s trial. Id. at 74:23-77:4.
{¶ 38} Regarding Sparks’s testimony, Russell notes that Sparks denied entering
Williamson’s apartment, but instead, testified that only Russell himself crossed the
threshold. See Trial Tr. 190:6-192:15. He contends that the “sharp contrast” between
Williamson’s account of events, and that of Sparks, undermines the reliability of his
convictions. Appellant’s Br. 19.
{¶ 39} We recognize that legitimate questions may be raised about the credibility
of the testimony offered by these two witnesses. Nonetheless, the jury’s resolution of
the conflicts in the evidence was not unreasonable. Whatever motive Sparks had for
denying that he actually entered Williamson’s apartment, Williamson’s equivocation on
the stand with respect to Russell’s involvement in the incident is readily explained by her
concern for her safety, and the fact that she admitted to being paid in connection with her
affidavit of April 17, 2017, renders the affidavit highly suspect. The information that
Sparks provided to the officers of the Fairborn Police Department, furthermore, proved to
be accurate.
{¶ 40} Considering the record as a whole, including circumstantial evidence such
as the testimony of Williamson’s neighbor, this does not appear to be an exceptional case
in which the evidence weighs heavily against Russell’s convictions. We hold that the
jury did not clearly lose its way in finding Russell guilty of aggravated burglary, and
consequently, that the trial court did not clearly lose its way in relying on the evidence
adduced during Russell’s jury trial in finding Russell guilty of having weapons while under
disability. Russell’s fifth assignment of error is overruled. -18-
III. Conclusion
{¶ 41} The trial court’s instruction to the jury on the charge of aggravated burglary
did not precisely mirror the language of R.C. 2911.11(A)(2), but on the record before us,
we find that the outcome of Russell’s trial would not otherwise have been different. We
find further that the trial court did not abuse its discretion by overruling Russell’s motion
for acquittal; that the outcome of the trial was not affected by the trial court’s practice of
ruling on objections without apprising the jury; that the State presented sufficient evidence
to prove the elements of aggravated burglary; and that the verdicts entered against
Russell were not against the manifest weight of the evidence. Therefore, Russell’s
convictions are affirmed.
HALL, J., concurring:
{¶ 42} I agree with the analysis and conclusions written for the majority. With
respect to the issue about a potentially incomplete jury instruction on aggravated burglary,
there was no objection and therefore a plain error analysis applies. In this case, no
construction of the admitted evidence or of the State’s presentation would have resulted
in the outcome of the trial being different.
{¶ 43} The court’s instruction on aggravated burglary did not contain the words
“when another person other than an accomplice of the offender is present.” Breaking
down that phrase there are two parts: 1) another person is present and 2) that an
accomplice does not count as a person present.
{¶ 44} There should be no doubt that the jury was instructed, and they necessarily
found, that another person was present. The statutory definition of an occupied structure -19-
was given to the jury. “Occupied Structure” means any house or building which at the
time is occupied as the permanent or temporary habitation of any person, in which at the
time a person is present or likely to be present.” Trial Tr. 701. Careful review of the
transcript reveals there was absolutely no evidence about when, how or whether
someone was “likely to be present.” Without any “likely to be present” evidence,
therefore, the jury had to conclude that a person was in fact present at the time of the
offense.
{¶ 45} That leaves only the question of whether, theoretically, the jury could have
considered whether the other person present when Russell entered the residence was
Sparks, his accomplice. First, the indictment (Doc. #1) included the “when another person
other than an accomplice of the offender is present” language, so Russell and his counsel
were on notice that Sparks was not claimed to be the other person present. Second, there
was never any factual dispute that Samantha Williamson was present when the men
entered. That was her undisputed testimony. Third, the State, in closing argument, told
the jury, “The State has to prove that Jevon Russell, on or about April 10, 2017, in Greene
County, Ohio, did by force trespass into an occupied structure when another person, other
than an accomplice of the offender, is present with purpose to commit a theft offense,
* * *.” Trial Tr. 648. Fourth, the State argued further that, “There’s no doubt that somebody
other than an accomplice of the offender was present. And the accomplice in this case
was Brandon Sparks. We’ve heard from him. There were actually two other people who
were inside that apartment, one of them being Samantha Williamson and one of them
being [her boyfriend].” Trial Tr. 649-650. Consequently the State not only directed the jury
to the correct statutory language but also pointed to the two persons who were present -20-
and who were not an accomplice. In my opinion, on this record, it is certain that the jury
concluded that the other-person-present was either Williamson or her boyfriend or both,
and they excluded Sparks from that equation. The result would be no different, and there
is no plain error.
{¶ 46} Finally, there is an eerily similar case from the First District Court of Appeals.
In State v. Crawford, 1st Dist. Hamilton No. C-030540, 2004-Ohio-3895, the charge was
aggravated burglary. The court did not instruct on the “when another person other than
an accomplice of the offender is present” language. However, as was done here, the
court did include the “presence of another” language in the definition of “occupied
structure.” The Crawford court observed that there was no objection to the jury
instructions and therefore a plain error analysis was appropriate. With the identical legal
issue that is before us, the First District concluded there was no plain error.
{¶ 47} I agree with Judge Tucker’s analysis herein and with the First District’s
conclusion in Crawford, and therefore I concur.
DONOVAN, J., concurring in part and dissenting in part:
{¶ 48} I disagree with the majority’s resolution of the first, third and fourth
assignments of error. The Ohio Constitution states: “The right of trial by jury shall be
inviolate.” Ohio Constitution, Article I, Section 5. If justice is to be achieved and the jury
recognized for its institutional and historical significance, it is paramount that the court’s
instructions be clear, accurate and complete, particularly with respect to the essential
elements of the alleged crime that must be proved by the government beyond a
reasonable doubt. It is within the peculiar and exclusive province of the jury to determine
any question of fact. R.C. 2945.11. -21-
{¶ 49} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35
(1999), relied upon by the State, Justice Scalia wrote that when we make
pronouncements about the right to trial by jury, we are “operating upon the spinal column
of American democracy.” Id. at 30 (Scalia, J., dissenting). Although we should not
overlook the majority analysis in Neder (albeit a harmless error scenario), we are not
bound by it when interpreting the Ohio Constitution. States are free to interpret their
constitutions as providing greater protection to individual rights than the U.S. Constitution.
The Ohio Constitution “is a document of independent force,” and the U.S Constitution
“provides a floor below which state court decisions may not fall.” Arnold v. Cleveland,
67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993).
{¶ 50} Indeed, the U.S. Constitution does not use the word “inviolate,” but merely
provides the right to an impartial jury in all crimes except as may result in impeachment.
U.S. Constitution, Article III, Section 2, cl. 3; Sixth Amendment to the U.S. Constitution.
Black’s Law Dictionary defines “inviolate” as “free from violation, not broken, infringed or
impaired.” Black’s Law Dictionary 955 (10th Ed. 2014). Webster’s defines “inviolate” as
“free from change or blemish; PURE, UNBROKEN, * * *, free from assault or trespass:
UNTOUCHED, INTACT.” (Emphasis added.) Webster’s Third New International
Dictionary 1190 (1993). The term “inviolate” denotes deserving of the highest level of
protection. It is a function that neither the trial court nor this court should invade. I
cannot think of anything else in our Constitution that is described as “inviolate.”
{¶ 51} It is well settled that:
* * * [T]he right to a jury trial does not involve merely a question of procedure.
The right to a jury trial derives from [the] Magna Charta. It is reasserted -22-
both in the Constitution of the United States and in the Constitution of the
State of Ohio. For centuries it has been held that the right of trial by jury is
a fundamental constitutional right, a substantial right, and not a procedural
privilege.
Cleveland Ry. Co. v. Halliday, 127 Ohio St. 278, 284, 188 N.E. 1 (1933), citing
Martin v. Windsor Hotel Co., 70 N.Y. 101 (1877).
{¶ 52} The majority opinion essentially permits the trial court to direct a verdict on
an essential element of the offense. We are compounding this error, to borrow further
language from Justice Scalia in Neder:
The Court’s decision today is the only instance I know of (or could conceive
of) in which the remedy for a constitutional violation by a trial judge (making
the determination of criminal guilt reserved for a jury) is a repetition of the
same constitutional violation by the appellate court (making the
determination of criminal guilt reserved to the jury).
Neder at 1845 (Scalia, J., dissenting).
{¶ 53} No matter what the evidence against Russell was, he had the right to a jury
determination inviolate.
{¶ 54} I recognize the fact that there is case law in Ohio which addresses the failure
of the trial court to instruct on all the essential elements of the offense. See State v.
Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980), and State v. Wamsley, 117 Ohio
St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45. The latter case, Wamsley, endorsed the
plain error analysis applied in Adams. Wamsley at ¶ 17. The Adams court held that the
failure to instruct on each element of an offense is not necessarily reversible as plain -23-
error. Adams at paragraph two of the syllabus. However, neither Adams nor Wamsley
addressed the distinct language of the Ohio Constitution requiring the right to a jury
determination as “inviolate.”
{¶ 55} Furthermore, Neder, Adams, and Wamsley were all decided prior to a string
of cases, at both the federal and state levels, which hold that it is the jury’s province to
determine whether the prosecution has proven each element of an offense beyond a
reasonable doubt. This includes any fact other than the existence of a prior conviction.
These cases also reject judicial fact-finding when increased punishment is predicated
upon a particular fact. See, e.g., United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,
160 L.Ed. 621 (2005); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004); State v. Willan, 144 Ohio St.3d 94, 2015-Ohio-1475, 41 N.E.3d 366.
{¶ 56} At least two state supreme courts have held that their state constitutions
provide a broader jury trial guarantee than Neder recognized in the U.S. Constitution.
See, e.g., Harrell v. State, 134 So.3d 266, 270-75 (Miss.2014) (holding under the
Mississippi Constitution “that it is always and in every case reversible error for the courts
of Mississippi to deny an accused the right to have a jury decide guilt as to each and
every element”); State v. Kousounadis, 159 N.H. 413, 986 A.2d 603, 616 (2009) (“Neder,
however, has been widely criticized, and we decline to follow it with regard to our
interpretation of the New Hampshire Constitution.”). In addition, at least one state court
has suggested that Neder’s application of harmless error analysis to cases where the jury
did not make a finding of guilt beyond a reasonable doubt on all elements will be “short-
lived” given the Supreme Court’s Sixth Amendment jurisprudence, starting with Apprendi -24-
emphasizing the need for jury findings. See Freeze v. State, 827 N.E.2d 600, 605
(Ind.Ct.App.2005). I would also note that more than half of the state constitutions use
the term “inviolate” with respect to the right to a jury trial.
{¶ 57} Here, absent a jury’s finding of fact that someone other than Russell’s
accomplice was present, Russell’s conviction for aggravated burglary under R.C.
2929.11(A) was unconstitutional. The only thing the jury rendered factual findings on
was burglary, R.C. 2911.12(A)(3), which did not require this additional, omitted element.
The Supreme Court of the United States has repeated its holding that “[i]f a State makes
an increase in a defendant’s authorized punishment contingent on the finding of a fact,
that fact – no matter how the State labels it – must be found by a jury beyond a reasonable
doubt.” (Emphasis added.) Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153
L.Ed.2d 556, citing Apprendi at 482-483. As Justice Scalia noted in his Ring
concurrence, “I believe that the fundamental meaning of the jury-trial guarantee of the
Sixth Amendment is that all facts essential to imposition of the level of punishment that
the defendant receives ̶ whether the statute calls them elements of the offense,
sentencing factors, or Mary Jane ̶ must be found by the jury beyond a reasonable
doubt.” Id. at 610 (Scalia, J., concurring). Accordingly, I would reverse the conviction
for aggravated burglary.
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Nathaniel R. Luken Christopher B. Epley Hon. Michael A. Buckwalter