[Cite as State v. Washington , 2010-Ohio-5366.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 09CA3303 : vs. : Released: October 26, 2010 : JAMES C. WASHINGTON, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:
Luke Brazinski, Luke Brazinski Law Office, Portsmouth, Ohio, for Defendant-Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Cooke Hutchinson, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Plaintiff-Appellee. _____________________________________________________________
McFarland, P.J.:
{¶1} Defendant-Appellant, James C. Washington, appeals the
decision of the Scioto County Court of Common Pleas convicting him of
aggravated burglary. Washington argues the State failed to prove that he
intended to commit a crime when he entered the victim’s home, thus there
was insufficient evidence to support his conviction and that the conviction
was against the manifest weight of the evidence. We disagree. The strong
circumstantial evidence adduced by the State was sufficient for the jury to Scioto App. No. 09CA3303 2
determine that Washington had the requisite intent and, further, that his
conviction was not against the manifest weight of the evidence.
Accordingly, we overrule both assignments of error and affirm the decision
below.
I. Facts
{¶2} In April 2009, Michael Stephenson left his trailer home
between 5:45 a.m. and 6:15 a.m., and drove his girlfriend to work.
Stephenson's 13-year-old child remained sleeping at the residence. When
Stephenson returned home at approximately 6:25 a.m., he saw a man he did
not know come out of the front door. The man immediately fled.
Stephenson chased and caught up with the man, and a struggle ensued.
During the fight, the man struck Stephenson several times with a tire tool.
Stephenson was incapacitated and the man fled the scene. Later, from a
photo lineup, Stephenson identified James Washington as the man who had
invaded his home and beaten him.
{¶3} Washington was charged with two counts of aggravated
burglary, one count of felonious assault, and one count of possession of
criminal tools. The matter proceeded to trial and the jury found him guilty
on all four counts. The trial court merged the two aggravated burglary
convictions as offenses of similar import. The court then sentenced Scioto App. No. 09CA3303 3
Washington to one year for possession of criminal tools, eight years for
felonious assault, and ten years for aggravated burglary, the sentences to run
consecutively.
{¶4} Following sentencing, Washington filed the current appeal.
II. Assignments of Error
First Assignment of Error
THE TRIAL COURT COMMITTED PLAIN ERROR IN CONVICTING APPELLANT ON AGGRAVATED BURGLARY AS NO INTENT OF APPELLANT TO COMMIT A CRIME WAS IN EVIDENCE. Second Assignment of Error THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE APPELLANT THAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. First Assignment of Error {¶5} Washington was convicted of aggravated burglary under R.C
2911.11(A). “No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied portion
of an occupied structure, when another person other than an accomplice of
the offender is present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the structure any
criminal offense * * *.” 2911.11(A). As his first assignment of error, Scioto App. No. 09CA3303 4
Washington alleges there was insufficient evidence to show that his purpose
in entering Stephenson's trailer was to commit a crime.
{¶6} When reviewing the sufficiency of the evidence, an appellate
court examines the evidence admitted at trial to determine whether that
evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus. The test is one of legal
adequacy, not rational persuasiveness. The relevant question is, after
viewing the evidence in a light most favorable to the prosecution, whether
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Id., citing Jackson v. Virginia (1979),
443 U.S. 307, 99 S.Ct. 2781.
{¶7} This test raises a question of law and does not allow us to
weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485
N.E.2d 717. Rather, the test “gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319. The issues of the weight given to the evidence and the credibility of
witnesses are for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79, Scioto App. No. 09CA3303 5
79-80, 434 N.E.2d 1356; State v. DeHass (1967), 10 Ohio St.2d 230, 227
N.E.2d 212, paragraph one of the syllabus.
{¶8} Washington's argument is a narrow one. The only element of
2911.11(A) that he contends was not established is intent. In other words,
he does not contest that he, by force, stealth, or deception, trespassed in
Stephenson's home. Nor does he contest that Stephenson's child was present
during the trespass. Rather, his sole argument is that the State did not
present evidence that Washington's purpose in entering the home was to
commit a criminal offense. We do not find this argument persuasive.
{¶9} “The intent of an accused person dwells in his mind. Not
being ascertainable by the exercise of any or all of the senses, it can never be
proved by the direct testimony of a third person, and it need not be. It must
be gathered from the surrounding facts and circumstances under proper
instructions from the court.” State v. Johnson (1978), 56 Ohio St.2nd 35, 38,
381 N.E.2d 637, quoting State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d
313. “[I]t is difficult to ascertain the intent of a person in forcibly entering
an occupied structure if he is apprehended before he commits any overt act
inside the premises. (Internal citations omitted.) In such a situation, unless
circumstances giving rise to a different inference are present, a reasonable
inference arises that the individual entered the structure with the intent to Scioto App. No. 09CA3303 6
commit a theft offense.” State v. Ridgway, 4th Dist. No. 02CA20, 2003-
Ohio-1152, at ¶17.
{¶10} In the case sub judice, there is abundant circumstantial
evidence from which a jury could reasonably infer that Washington intended
to commit a criminal offense when he entered Stephenson’s home.
Washington and Stephenson did not know each other, and Washington
obviously did not have permission to enter the residence. The trespass took
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[Cite as State v. Washington , 2010-Ohio-5366.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 09CA3303 : vs. : Released: October 26, 2010 : JAMES C. WASHINGTON, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:
Luke Brazinski, Luke Brazinski Law Office, Portsmouth, Ohio, for Defendant-Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Cooke Hutchinson, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Plaintiff-Appellee. _____________________________________________________________
McFarland, P.J.:
{¶1} Defendant-Appellant, James C. Washington, appeals the
decision of the Scioto County Court of Common Pleas convicting him of
aggravated burglary. Washington argues the State failed to prove that he
intended to commit a crime when he entered the victim’s home, thus there
was insufficient evidence to support his conviction and that the conviction
was against the manifest weight of the evidence. We disagree. The strong
circumstantial evidence adduced by the State was sufficient for the jury to Scioto App. No. 09CA3303 2
determine that Washington had the requisite intent and, further, that his
conviction was not against the manifest weight of the evidence.
Accordingly, we overrule both assignments of error and affirm the decision
below.
I. Facts
{¶2} In April 2009, Michael Stephenson left his trailer home
between 5:45 a.m. and 6:15 a.m., and drove his girlfriend to work.
Stephenson's 13-year-old child remained sleeping at the residence. When
Stephenson returned home at approximately 6:25 a.m., he saw a man he did
not know come out of the front door. The man immediately fled.
Stephenson chased and caught up with the man, and a struggle ensued.
During the fight, the man struck Stephenson several times with a tire tool.
Stephenson was incapacitated and the man fled the scene. Later, from a
photo lineup, Stephenson identified James Washington as the man who had
invaded his home and beaten him.
{¶3} Washington was charged with two counts of aggravated
burglary, one count of felonious assault, and one count of possession of
criminal tools. The matter proceeded to trial and the jury found him guilty
on all four counts. The trial court merged the two aggravated burglary
convictions as offenses of similar import. The court then sentenced Scioto App. No. 09CA3303 3
Washington to one year for possession of criminal tools, eight years for
felonious assault, and ten years for aggravated burglary, the sentences to run
consecutively.
{¶4} Following sentencing, Washington filed the current appeal.
II. Assignments of Error
First Assignment of Error
THE TRIAL COURT COMMITTED PLAIN ERROR IN CONVICTING APPELLANT ON AGGRAVATED BURGLARY AS NO INTENT OF APPELLANT TO COMMIT A CRIME WAS IN EVIDENCE. Second Assignment of Error THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE APPELLANT THAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. First Assignment of Error {¶5} Washington was convicted of aggravated burglary under R.C
2911.11(A). “No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied portion
of an occupied structure, when another person other than an accomplice of
the offender is present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the structure any
criminal offense * * *.” 2911.11(A). As his first assignment of error, Scioto App. No. 09CA3303 4
Washington alleges there was insufficient evidence to show that his purpose
in entering Stephenson's trailer was to commit a crime.
{¶6} When reviewing the sufficiency of the evidence, an appellate
court examines the evidence admitted at trial to determine whether that
evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus. The test is one of legal
adequacy, not rational persuasiveness. The relevant question is, after
viewing the evidence in a light most favorable to the prosecution, whether
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Id., citing Jackson v. Virginia (1979),
443 U.S. 307, 99 S.Ct. 2781.
{¶7} This test raises a question of law and does not allow us to
weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485
N.E.2d 717. Rather, the test “gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Jackson at
319. The issues of the weight given to the evidence and the credibility of
witnesses are for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79, Scioto App. No. 09CA3303 5
79-80, 434 N.E.2d 1356; State v. DeHass (1967), 10 Ohio St.2d 230, 227
N.E.2d 212, paragraph one of the syllabus.
{¶8} Washington's argument is a narrow one. The only element of
2911.11(A) that he contends was not established is intent. In other words,
he does not contest that he, by force, stealth, or deception, trespassed in
Stephenson's home. Nor does he contest that Stephenson's child was present
during the trespass. Rather, his sole argument is that the State did not
present evidence that Washington's purpose in entering the home was to
commit a criminal offense. We do not find this argument persuasive.
{¶9} “The intent of an accused person dwells in his mind. Not
being ascertainable by the exercise of any or all of the senses, it can never be
proved by the direct testimony of a third person, and it need not be. It must
be gathered from the surrounding facts and circumstances under proper
instructions from the court.” State v. Johnson (1978), 56 Ohio St.2nd 35, 38,
381 N.E.2d 637, quoting State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d
313. “[I]t is difficult to ascertain the intent of a person in forcibly entering
an occupied structure if he is apprehended before he commits any overt act
inside the premises. (Internal citations omitted.) In such a situation, unless
circumstances giving rise to a different inference are present, a reasonable
inference arises that the individual entered the structure with the intent to Scioto App. No. 09CA3303 6
commit a theft offense.” State v. Ridgway, 4th Dist. No. 02CA20, 2003-
Ohio-1152, at ¶17.
{¶10} In the case sub judice, there is abundant circumstantial
evidence from which a jury could reasonably infer that Washington intended
to commit a criminal offense when he entered Stephenson’s home.
Washington and Stephenson did not know each other, and Washington
obviously did not have permission to enter the residence. The trespass took
place in the early morning hours, under the cover of darkness. The front
door and lock showed signs of forcible entry. Washington immediately ran
from the residence when Stephenson returned, before Stephenson could even
get out of his car. Washington was willing to beat Stephenson with a tire
tool to escape. Stephenson testified that Washington did not have time to
pick up the tool once he left the residence, from which it could be deduced
that he already had the tire tool when he left the residence and that he had
used it to break into the home. Finally, Washington offered no excuse or
justification for entering the home.
{¶11} In such circumstances, there is a reasonable inference that
Washington entered Stephenson's home in order to commit a criminal
offense. Accordingly, we find that, after viewing the evidence in a light
most favorable to the State, the jury could have found all the essential Scioto App. No. 09CA3303 7
elements of aggravated burglary proven beyond a reasonable doubt. As
such, Washington's first assignment of error is overruled.
IV. Second Assignment of Error
{¶12} In his second assignment of error, Washington contends the
jury's verdict was against the manifest weight of the evidence. “The legal
concepts of sufficiency of the evidence and weight of the evidence are both
quantitatively and qualitatively different.” State v. Thompkins (1997), 78
Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency tests the
adequacy of the evidence, while weight tests “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other[.]” State v. Sudderth, 4th Dist. No. 07CA38,
2008-Ohio-5115, at ¶27, quoting Thompkins at 387.
{¶13} “Even when sufficient evidence supports a verdict, we may
conclude that the verdict is against the manifest weight of the evidence,
because the test under the manifest weight standard is much broader than
that for sufficiency of the evidence.” State v. Smith, 4th Dist. No. 06CA7,
2007-Ohio-502 at ¶41. When determining whether a criminal conviction is
against the manifest weight of the evidence, we “will not reverse a
conviction where there is substantial evidence upon which the [trier of fact]
could reasonably conclude that all the elements of an offense have been Scioto App. No. 09CA3303 8
proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d
56, 526 N.E.2d 304, paragraph two of the syllabus. See, also, Smith at ¶41.
We “must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the 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 the conviction must be
reversed and a new trial granted.” Smith at ¶41, citing State v. Garrow
(1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; State v. Martin
(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. However, “[o]n the trial
of a case, * * * the weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of the facts.” DeHass at paragraph one
of the syllabus.
{¶14} In this assignment of error, Washington, once again, focuses
solely upon the element of intent. He reiterates the argument from his first
assignment of error and states that even if there was sufficient evidence of
intent, his conviction was still against the manifest weight of the evidence.
We disagree. Though our standard of review is less stringent in an argument
based upon the manifest weight of the evidence than it is in one based upon
the sufficiency of the evidence, his argument remains unpersuasive.
Because of the factors listed in our analysis of the first assignment of error Scioto App. No. 09CA3303 9
and the reasonable inferences one could derive therefrom, we find that there
is substantial evidence upon which the jury could have reasonably concluded
that Washington intended to commit a criminal offense. Accordingly,
Washington's second assignment of error is also overruled.
V. Conclusion
{¶15} After a complete review of the record below, we overrule both
of Washington's assignments of error. Appellant's sufficiency of the
evidence and manifest weight arguments fail because of the abundance of
circumstantial evidence indicating that Washington entered Stephenson's
home with the intent to commit a criminal offense. Further, because there
was evidence that Washington forcibly entered the home, there is a
presumption that he did so in order to commit theft. Accordingly, we affirm
the decision and judgment of the court below.
JUDGMENT AFFIRMED. Scioto App. No. 09CA3303 10
JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Scioto 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 sixty 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 proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five 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 sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland Presiding 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.