State v. Hall , 2018 Ohio 1676 ( 2018 )

[Cite as State v. Hall, 2018-Ohio-1676.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0032
- vs - :
HARGUS DENNISON HALL, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR
01024.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, Diane Barber and Ashleigh Musick,
Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
Warren, OH 44481 (For Plaintiff-Appellee).
Marrett W. Hanna, 3516 Tallmadge Road, Kent, OH 44240 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Hargus D. Hall, appeals his conviction for a single
count of second-degree Burglary following a jury trial in the Trumbull County Court of
Common Pleas. The issues before this court are whether an instruction on a lesser
degree of Burglary is required when there is merely “some evidence” that the defendant
lacked a criminal purpose when found trespassing in another’s home; whether evidence
must be excluded which was not produced until the day of trial but the existence of
which the defendant was aware; and whether a conviction for Burglary is unsupported
by sufficient evidence and/or against the manifest weight of the evidence where the
defendant is found in another’s home and the homeowner reports finding drawers
opened and a tablet missing. For the following reasons, we affirm the decision of the
court below.
{¶2} On January 20, 2016, Hall was indicted by the Trumbull County Grand
Jury for Burglary, a felony of the second degree in violation of R.C. 2911.12(A)(2) and
(D).
{¶3} On January 26, 2016, Hall entered a plea of “not guilty.”
{¶4} On December 19, 2016, Hall’s case was tried before a jury. The following
relevant testimony was given:
{¶5} Sergeant Harold Wix of the Trumbull County Sheriff’s Department testified
that, on December 10, 2015, he was sent to 336 Mahan Denman Road in Mecca
Township. He arrived at about 3:12 p.m. and met with the homeowner, James Hughes.
Hughes had returned home to find an unknown white male in his home. Hughes
provided Wix a description of the male and his license plate number.
{¶6} Sergeant Wix entered the license plate number into his police cruiser’s
MDT (mobile data terminal) laptop and learned that the vehicle was registered to Hall.
An image of Hall appeared on the laptop screen and Hughes identified him as the
person who was in his house. Wix issued a warrant for Hall’s arrest.
{¶7} Sergeant Wix did not observe any signs of forced entry into the home. At
the time, Hughes did not report any property missing. A couple of days later Hughes
called to report a missing computer tablet.
{¶8} Sergeant Wix described the area around Mahan Denman Road as rural
where ATVs (or four-wheelers) are fairly common.
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{¶9} Douglas J. Machingo testified that he was familiar with Hall from high
school. On December 10, 2015, Machingo was returning home from work a little after
three o’clock in the afternoon when he saw Hall sitting in a car parked on Lakeshore
Drive. Machingo stopped and spoke with Hall for about a minute.
{¶10} Patrolman Tim Parana of the Warren Police Department testified that, on
December 10, 2015, he was sent to the Buckeye Apartments on Tod Avenue in
response to a report of a male passed out in a vehicle in the parking lot. He arrived at
about 9:45 p.m., located the vehicle, and knocked on the window to wake the occupant.
The vehicle was registered to Hall, who was the occupant, and he had an active felony
warrant. Parana placed Hall under arrest without incident. Detective Jolene Marcello of
the Trumbull County Sheriff’s Office testified that, on December 10, 2015, she heard a
call for a white Cadillac with license plate GRP 2221 that had been involved in a
burglary. At about 3:13 p.m. Marcello saw the vehicle travelling southbound on Bazetta
Road. She was not able to effect a stop.
{¶11} Following Hall’s arrest that evening, Detective Marcello recovered a
maroon hoodie and a gray beanie-style hat from his vehicle.
{¶12} James Hughes testified that he lives at 336 Mahan Denman Road in
Mecca Township with his girlfriend and children. On December 10, 2015, Hughes
returned home from work at about 2:30 p.m. to find a white Cadillac in the driveway. He
called his girlfriend to ask if she was expecting company but she was not.
{¶13} Hughes noticed the front door wide open and the screen door closed.
“The glass in the screen door was shaking * * * like somebody was in the house moving
around pretty good.” There was no one in the entranceway. He noted the license plate
number.
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{¶14} A man (Hall) whom Hughes did not recognize came out of the house
wearing a maroon hoodie, sweatpants, and a gray hat. He “had his hands in his pocket,
little bit nervous, fidgety.” Hughes asked if he could help him and he asked if Hughes
had a Raptor four-wheeler for sale. Hughes said no and asked how he entered the
house. Hall said the door was open. Hughes told him it was time to get out of here.
They returned to their vehicles and Hughes backed up so Hall could exit the driveway.
Hall asked if this was Thompson Clark Road and Hughes said no. Hall drove east
toward Bazetta Road.
{¶15} After Hall’s departure, Hughes contacted 911. Hughes did not see signs
of forced entry. He noted that a junk drawer in the kitchen was open and so was a
drawer in the master bedroom upstairs. That evening, Hughes noticed that a seven-
inch Google Nexus tablet was missing from the nightstand next to the bed. Hughes
presented photographs taken of the tablet’s box showing the model and serial number.
{¶16} Hughes testified that his house does not have a house number posted
except on the mailbox which is across the street. He described the area as rural and
agreed that four-wheelers are common in that area.
{¶17} The jury returned a verdict of guilty to Burglary as charged in the
Indictment.
{¶18} On March 8, 2017, a sentencing hearing was held. Hall was sentenced to
a prison term of eight years.
{¶19} On April 6, 2017, Hall filed a Notice of Appeal. On appeal, he raises the
following assignments of error:
{¶20} “[1.] The trial court abused its discretion when it denied the defense
request for an instruction on the lesser-included offense.”
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{¶21} “[2.] The trial court abused its discretion when it overruled the defense
objection to the admission of photographic evidence based upon unfair surprise.”
{¶22} “[3.] The trial court abused its discretion when it denied appellant’s motion
for judgment of acquittal.”
{¶23} “[4.] The jury verdict was against the manifest weight of the evidence.”
{¶24} In his first assignment of error, Hall argues the trial court erred by denying
his request for a jury instruction on the lesser included offense of Burglary in violation of
R.C. 2911.12(B).1
{¶25} “When the indictment or information charges an offense, including
different degrees, or if other offenses are included within the offense charged, the jury
may find the defendant not guilty of the degree charged but guilty of an inferior degree
thereof or lesser included offense.” R.C. 2945.74; Crim.R. 31(C).
{¶26} “Even though an offense may be statutorily defined as a lesser included
offense of another, a charge on such lesser included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio
St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus; State v. Wilkins, 64
Ohio St.2d 382, 387, 415 N.E.2d 303 (1980) (“[t]he mere fact that an offense can be a
lesser included offense of another offense does not mean that a court must instruct on
both offenses where the greater offense is charged”).
{¶27} “The lesser-included-offense instruction is not warranted every time ‘some
evidence’ is presented to support the lesser offense.” State v. Trimble, 122 Ohio St.3d
1. At trial, the State disputed that R.C. 2911.12(B) is a lesser included offense of R.C. 2911.12(A)(2), but
has abandoned this claim on appeal.
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297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 192. “[A] jury instruction must be given on a
lesser included (or inferior-degree) offense when sufficient evidence is presented which
would allow a jury to reasonably reject the greater offense and find the defendant guilty
on a lesser included (or inferior-degree) offense.” State v. Shane, 63 Ohio St.3d 630,
632-633, 590 N.E.2d 272 (1992).
{¶28} With respect to the standard of review, the Ohio Supreme Court has
offered various pronouncements. If, under any reasonable view of the evidence –
“considered in the light most favorable to defendant” – “it is possible for the trier of fact
to find the defendant not guilty of the greater offense and guilty of the lesser offense, the
instruction on the lesser included offense must be given.” Wilkins at 388. Yet, “[a]n
appellate court reviews a trial court’s refusal to give a requested jury instruction for
abuse of discretion.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d
127, ¶ 240. Acknowledging that “[i]t is obviously difficult to reconcile these two
concepts,” this court has deferred to the Ohio Supreme Court’s formula in State v. Wine,
140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207: “whether to include such jury
instructions lies within the discretion of the trial court and depends on whether the
evidence presented could reasonably support a jury finding of guilt on a particular
charge.” State v. Bolden, 11th Dist. Lake No. 2014-L-121, 2016-Ohio 4727, ¶ 51, citing
Wine at ¶ 1.
{¶29} For the purposes of the present analysis, the difference between second
degree Burglary, R.C. 2911.12(A)(2), and fourth degree Burglary, R.C. 2911.12(B), is
that the greater offense requires the commission of a trespass “with purpose to commit
in the habitation any criminal offense” while the lesser offense does not.
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{¶30} Hall maintains that an instruction on fourth-degree Burglary was warranted
based on the testimony of Hughes, Sergeant Wix, and Machingo. We disagree.
{¶31} Only Hughes’ testimony that Hall asked if he was selling a four-wheeler
and whether they were on Thompson Clark Road suggests that Hall did not enter his
home with a criminal purpose. While this is some evidence that would support Hall’s
conviction for fourth degree Burglary, it does little that would render the jury’s rejection
of the evidence supporting a conviction for second degree Burglary unreasonable.
Hughes also testified that Hall was moving around his house so as to shake the glass
panes of the screen door, drawers were found open inside the home, and a tablet was
missing. The effect of Hall’s questioning is also undermined by the time of day (working
hours) and the fact that no four-wheeler was present on the property.
{¶32} Hall finds support for his position in other testimony. He claims that the
facts that he was wearing a hoodie and sweatpants, kept his hands in his pockets, and
stood in close proximity to Hughes “begs the question of where Appellant actually
tucked a seven inch tablet.” Appellant’s brief at 22. On the contrary, it is not difficult to
imagine how a seven-inch tablet could be concealed in a hoodie and sweatpants (such
clothing has been demonstrated more than adequate for concealing, for example,
firearms2). Hall notes that Hughes testified that he was not aggressive, yet Hughes also
described him as nervous and fidgety.
2. “Ideal for carrying your favorite compact pistol, the NRA Concealed Carry Hooded Sweatshirt gives
you an extra tactical edge, because its unstructured, casual design appears incapable of concealing a
heavy firearm ' but it does so with ease!” http://www.nrastore.com/nra-tactical-concealed-carry-hooded-
sweatshirt (accessed April 23, 2018); “the fact is, baggy clothes mean easy concealment” and
“[d]eception is the rule of thumb, and no one suspects anything when a guy has his hands in his hoodie
pocket” http://www.offthegridnews.com/self-defense/how-to-pack-heat-with-absolutely-no-one-knowing/
(accessed April 23, 2018).
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{¶33} Hall also cites the testimony that Sergeant Wix did not observe anything
out of order and that Machingo had a normal conversation with Hall and did not notice
anything in his car such as a tablet. This testimony has little, if any, probative value with
respect to whether Hall entered Hughes’ home with a criminal purpose. Hall recognizes
that Wix’ investigation was perfunctory (“do not forget the fact that the officers
investigating the crime/crime scene, did not actually even conduct an investigation”).
Hall’s failure to ask Machingo for directions or otherwise explain his presence in the
area is more telling than the fact they had a normal conversation.
{¶34} Thus, the only substantive support for the instruction on fourth degree
Burglary were Hall’s questions to Hughes which, given the context, appear awkward
and unconvincing. It was certainly within the trial court’s discretion to conclude that this
testimony did not amount to anything more than “some evidence” that Hall “was simply
at the wrong location.” Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, at
¶ 21 and 26 (“[t]he law, the evidence presented, and the discretion of the trial judge play
a role in whether lesser-included-offense instructions are appropriate,” especially “the
quality of the evidence offered”).
{¶35} The first assignment of error is without merit.
{¶36} In the second assignment of error, Hughes argues that the trial court erred
by allowing the State to present photographic evidence to the jury which had not been
produced in discovery.
{¶37} “Upon receipt of a written demand for discovery by the defendant, * * * the
prosecuting attorney shall provide copies or photographs, or permit counsel for the
defendant to copy or photograph, [all photographs] related to the particular case
indictment, information, or complaint, and which are material to the preparation of a
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defense, or are intended for use by the prosecuting attorney as evidence at the trial * *
*.” Crim.R. 16(B)(3). “If at any time during the course of the proceedings it is brought to
the attention of the court that a party has failed to comply with this rule or with an order
issued pursuant to this rule, the court may order such party to permit the discovery or
inspection, grant a continuance, or prohibit the party from introducing in evidence the
material not disclosed, or it may make such other order as it deems just under the
circumstances.” Crim.R. 16(L)(1).
{¶38} “[T]he trial court is vested with a certain amount of discretion in
determining the sanction to be imposed for a party’s nondisclosure of discoverable
material.” State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983). When
determining the appropriate sanction for a violation of the Rule, “[a] trial court must
inquire into the circumstances surrounding a discovery rule violation and, when deciding
whether to impose a sanction, must impose the least severe sanction that is consistent
with the purpose of the rules of discovery.” (Citation omitted.) State v. Darmond, 135
Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, syllabus.
{¶39} Prior to Hughes testifying at trial, the State proffered two photographic
exhibits containing the model number and serial number of the tablet missing from the
home which had not been produced in discovery. The State explained that, at a
preliminary hearing on December 21, 2015, in central district court, Hughes stated with
respect to the tablet: “I do have the model number and serial number if you need that.”
However, the prosecutor remarked, “no one made a note of it.” A transcript of the
preliminary hearing was in the possession of the defense.
{¶40} On the day of trial, the prosecutor asked Hughes if he could remember the
serial number and he revealed that he had taken pictures of it (and the model number)
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with his phone. The pictures were sent to the prosecutor and printed. The defense
objected to the admission of the photographs, which the trial court overruled, but did not
seek a continuance.
{¶41} We find no error in the admission of the photographs. The discovery
violation was not willful inasmuch as Hughes’ preliminary hearing testimony, “I do have
the model number and serial number if you need that,” does not necessarily presuppose
photographs of those numbers. While the State was dilatory in following up Hughes’
offer to produce the model and serial numbers, this is excusable as these numbers
were irrelevant without the recovery of the tablet itself. The jury had no more (and no
less) reason to believe that the model and serial numbers in the photographs actually
belonged to the missing tablet than it had reason to believe Hughes’ testimony that the
tablet was stolen in the first place. In other words, the photographs did nothing to
corroborate Hughes’ testimony that a tablet was missing. Hall makes no argument as to
how the defense would have benefited from having copies of the photographs in
advance of trial other than to assert that, “certainly, foreknowledge of the serial numbers
* * * would have benefitted Appellant in the preparation of his defense.” Appellant’s
brief at 26.
{¶42} In the absence of demonstrable prejudice, willfulness, or surprise, there
was no abuse of discretion in allowing the admission of the photographs. State v.
Wiles, 59 Ohio St.3d 71, 80, 571 N.E.2d 97 (1991) (“no prejudice to a criminal
defendant results where an objection is made at trial to the admission of nondisclosed
discoverable evidence on the basis of surprise but no motion for a continuance is
advanced at that time”); accord State v. Beaver, 11th Dist. Trumbull No. 2011-T-0037,
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2012-Ohio-871, ¶ 49, and State v. Heilman, 11th Dist. Trumbull Nos. 2004-T-0133 and
2004-T-0135, 2006-Ohio-1680, ¶ 55.
{¶43} The second assignment of error is without merit.
{¶44} In the third and fourth assignments of error, Hall argues that his conviction
was supported by insufficient evidence and was against the manifest weight of the
evidence.
{¶45} The manifest weight of the evidence and the sufficiency of the evidence
are distinct legal concepts. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857
N.E.2d 547, ¶ 44. With respect to the sufficiency of the evidence, “[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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979).
{¶46} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of
the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78
Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “In other words, a reviewing court
asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An
appellate court considering whether a verdict is against the manifest weight of the
evidence must consider all the evidence in the record, the reasonable inferences, the
credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
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must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶47} To convict Hall of second-degree Burglary it was necessary for the State
to prove, beyond a reasonable doubt, that Hall, “by force, stealth, or deception, * * *
[t]respass[ed] in an occupied structure * * * when any person other than an accomplice
of the offender is present or likely to be present, with purpose to commit in the
habitation any criminal offense.” R.C. 2911.12(A)(2).
{¶48} Hall’s argument under both assignments is essentially the same:
[I]t appeared that Appellant was confused about the address and
was looking to buy a used ATV in an area where such vehicles
were prevalent. In addition, Hughes admitted that his house did not
have the address displayed. Rather it appeared on the mailbox,
which was across the street, not directly in front of the Hughes
residence. This taken with the facts that there were no signs of
forced entry, Deputy Wix’s testimony that the house appeared to be
in order, Hughes’ testimony that he did not initially observe that
anything was missing, Hughes’ last minute production of a box that
was allegedly at his mother’s house, Machingo’s testimony that he
did not see anything in Appellant’s car and Appellant did not seem
nervous all point to the conclusion * * * that reversal is required.
Appellant’s brief at 28-29.
{¶49} With respect to the sufficiency of the evidence, there is no question that
the State’s evidence was sufficient to support the conviction, i.e., the State presented
probative evidence as to each element of the offense. The import of Hall’s argument
goes to the weight or persuasiveness of that evidence.
{¶50} Contrary to Hall’s position, we do not find that the State’s evidence weighs
heavily against his conviction. The only positive evidence that Hall was lost or looking
to purchase an ATV were the couple of questions he asked Hughes after being found
inside Hughes’ home. A purported interest in purchasing an ATV does not explain
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Hall’s entry into the home and is wholly inconsistent with the open drawers and missing
tablet. Given that Hall’s presence in Hughes’ home was undisputed, the jury was left to
consider the possibilities that he was there with a criminal purpose or that Hughes
simply lied about the open drawers and missing tablet in order to have Hall prosecuted.
{¶51} Much of the evidence on which Hall relies – the house number on the mail
box across the street, the lack of police investigation, and the encounter with Machingo
– we find has little probative value one way or another.
{¶52} In the absence of compelling reasons to disagree with the jury’s resolution
of the evidence, the third and fourth assignments of error are without merit.
{¶53} For the foregoing reasons, Hall’s conviction for Burglary is affirmed. Costs
to be taxed against the appellant.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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