State v. Blymiller , 2013 Ohio 2494 ( 2013 )

[Cite as State v. Blymiller, 2013-Ohio-2494.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ROBERT D. BLYMILLER : Case No. 2012CA00171
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2012CA00171
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 10, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. BERNARD L. HUNT
STARK CO. PROSECUTOR 2395 McGinty Road NW
RENEE M. WATSON North Canton, OH 44720
110 Central Plaza South, Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00171 2
Delaney, J.
{¶1} Appellant Robert D. Blymiller appeals from the August 21, 2012
judgment entry of conviction and sentence of the Stark County Court of Common
Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on February 15,1 2012 when Donald Cricks noticed a
green pickup truck with “black bars on the side” parked across the street near an
empty apartment at 215 Wertz Avenue N.W., Canton, Stark County, Ohio. Cricks
knows the apartment’s owner, Jim Fricker. Cricks watched as a man with long grey
hair got out of the truck and went up to the door. Cricks then heard a “smash.” Cricks
looked for his camera to take pictures of what was happening but couldn’t find it, and
by the time he went outside the truck was pulling away. Cricks called the police.
{¶3} Cricks was surprised the next day, around 11:45 a.m., when the green
truck returned. Cricks watched the green truck drop the same person off at the corner
of Third Street and continue around the block. Again, the person went up onto the
porch of 215 Wertz Avenue N.W. and tried to get in. This time Cricks was ready with
his camera, and photographed the person as he walked down the sidewalk.
{¶4} Cricks testified that the man “butt[ed] the [basement] door in” and
entered the apartment. Cricks saw him come back out shortly thereafter with copper
1
At trial, this date was described as February 16 and no one questioned it, but Cricks
described events on two consecutive days. Kevin Clary apparently took the police
report on February 16, 2012, so the first day Cricks observed the green truck was
February 15, 2012.
Stark County, Case No. 2012CA00171 3
pipe in his hands, and Cricks took another picture. The green truck returned and
picked up the grey-haired man carrying the copper.
{¶5} Cricks called the police again, made a police report, and turned over the
photos he took.
{¶6} James Fricker, the owner of the rental property at 215 Wertz Avenue
N.W., was summoned to the apartment while the police were there. He discovered
that the basement door was splintered and a window was broken. Inside, copper was
missing from the water heater. Fricker estimated the damage at $1200.00. He
testified that he does not know appellant, Kenneth Barnes, or Christopher Reese and
none of these men had permission to enter the apartment or to be on the property.
The Investigation
{¶7} Kevin Clary of the Canton Police Department took a report on the
breaking and entering on Thursday, February 16, 2012. The suspects were no longer
on the scene but Cricks had described the distinctive green truck with what he thought
were black “bars” on the side. Cricks also saw four numbers on the license plate:
2217.
{¶8} Clary was back on duty a few days later, the next Sunday, February 19,
2012. He was on routine patrol on Schroyer S.W., Canton, when a green pickup truck
with black bars on it passed right in front of his patrol car. The numbers on the plate
were 2217. Clary performed a traffic stop and two occupants were in the vehicle:
appellant (the driver) and his passenger Kenneth Barnes.
{¶9} Detective Jerry Fuelling followed up and interviewed appellant, who
stated he picks up Kenneth Barnes periodically in his green truck, just as he picked
Stark County, Case No. 2012CA00171 4
him up at 215 Wertz Avenue N.W. on February 16. Appellant said Barnes called him
to come pick him up, and appellant went to get him, along with a friend named
Christopher Reese. Appellant said Barnes came out to get into the truck, said he
forgot something, “walked somewhere,” came back and got in. Upon questioning by
Fuelling, appellant stated Barnes had copper pipe in his hands and “alluded to” the
fact that Barnes claimed someone gave him the pipe as payment for something.
{¶10} Appellant told Fuelling they took the copper to FPT Scrap Metals in
Canton. When Fuelling checked receipts at FPT, he discovered Barnes brought in 42
pounds of copper between February 16 and February 17, 2012.
Barnes’ Account
{¶11} Kenneth Barnes testified on behalf of appellee, having already been
convicted of two counts of breaking and entering, including the offense at 215 Wertz
Avenue N.W., but not yet sentenced. Barnes also has a criminal record of prior felony
and theft offenses.
{¶12} Barnes stated he was living with appellant on February 16, 2012, and
they went about their ordinary routine of driving around looking for “abandoned
houses” to take copper out of. He stated they found the home on Wertz, appellant
dropped him off, and he went in. Barnes removed the copper, appellant picked him
up, and they went to the scrapyard. Barnes stated he split the proceeds evenly with
appellant. Barnes thought he and appellant were the only two occupants of the truck
that day, but he couldn’t remember for sure. Upon cross-examination, Barnes stated
Christopher Reese may have been with them. Barnes said he was not promised
anything by appellee in exchange for his testimony.
Stark County, Case No. 2012CA00171 5
The Defense Case
{¶13} Christopher Reese was the only defense witness. He testified that he
knows appellant and Kenneth Barnes, and was with appellant on February 16, 2012.
In fact, Reese claimed he, too, lived with appellant at the time, but could not
remember whether Barnes lived with them as well. Reese said it was common for he
and appellant to pick up Barnes at various locations around the city where he would
be staying temporarily, anytime they needed an extra person on their job site. Reese
said that on February 16, Barnes came out of a house with copper in his hands.
Reese said Barnes’ dad is a plumber and he assumed his dad gave him the copper to
scrap.
{¶14} Reese said he and appellant remained in the truck the entire time and
had no idea the copper was stolen. Upon cross examination, Reese stated he wasn’t
really sure when these events occurred but it was around the “middle of the month.”
Indictment, Conviction, and Sentence
{¶15} Appellant was charged by indictment with one count of breaking and
entering pursuant to R.C. 2911.13(A) for the offense at 215 Wertz Avenue N.W.2 He
entered a plea of not guilty and the case proceeded to jury trial. Appellant moved for
judgment of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence
and at the close of all of the evidence; the motions were overruled. Appellant was
found guilty as charged and sentenced to 5 years of community control, which
included a term of 180 days in the Stark County Jail.
2
Appellee dismissed a second count of breaking and entering prior to trial.
Stark County, Case No. 2012CA00171 6
{¶16} Appellant now appeals from the judgment entry of his conviction and
sentence.
ASSIGNMENT OF ERROR
{¶17} Appellant raises one Assignment of Error:
{¶18} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO
GRANT APPELLANT’S CRIMINAL RULE 29, MOTION FOR ACQUITTAL, THE
VERDICT WAS NOT SUFFICIENT, THUS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
ANALYSIS
I.
{¶19} Appellant argues his conviction upon one count of breaking and entering
was against the manifest weight and sufficiency of the evidence. We disagree.
{¶20} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
syllabus, in which the Ohio Supreme Court held, “An appellate court's function when
reviewing the sufficiency of the evidence to support a criminal conviction is to examine
the evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
Stark County, Case No. 2012CA00171 7
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.”
{¶21} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶22} Appellant argues appellee failed to establish he assisted or encouraged
Barnes in the theft of the copper. Appellant was convicted of one count of breaking
and entering pursuant to R.C. 2911.13(A), which states in pertinent part, “No person
by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose
to commit therein any theft offense, as defined in section 2913.01 of the Revised
Code.” The jury was instructed upon the elements of aiding and abetting found in
R.C. 2923.03 which provides in relevant part: “No person, acting with the kind of
culpability required for the commission of an offense, shall * * * [a]id or abet another in
committing the offense.”
{¶23} Appellant argues there is no evidence in the record to establish he knew
Barnes stole the copper. We disagree. A person's mere association with a principal
offender is not enough to sustain a conviction based on aiding and abetting. State v.
Stark County, Case No. 2012CA00171 8
Sims, 10 Ohio App.3d 56, 58, 460 N.E.2d 672 (8th Dist.1983). Generally, a criminal
defendant has aided or abetted an offense if he has supported, assisted, encouraged,
cooperated with, advised, or incited another person to commit the offense. See State
v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus; State v. Hickman,
5th Dist. No. 2003-CA-00408, 2004-Ohio-6760 at ¶ 45. “‘Participation in criminal intent
may be inferred from presence, companionship and conduct before and after the
offense is committed.’ “ State v. Mendoza, 137 Ohio App.3d 336, 342, 738 N.E.2d 822(3rd Dist.2000), quoting State v. Stepp, 117 Ohio App.3d 561, 568-569, 690 N.E.2d
1342 (4th Dist.1997); State v. Myers, 5th Dist. No. 03-CA61, 2004-Ohio-3052 at ¶ 116.
{¶24} Further, “[a]iding and abetting may also be established by overt acts of
assistance such as driving a getaway car or serving as a lookout.” State v.
Jackson, 10th Dist. No. 03-AP273, 2003-Ohio-5946, ¶ 32, citing State v. Cartellone, 3
Ohio App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981).
{¶25} In this case, we find sufficient evidence of appellant’s participation in
criminal intent. Not only did appellee present evidence that he dropped off Barnes
twice at the house immediately prior to the break-ins and picked him up immediately
thereafter, but evidence was also presented he shared in the proceeds of the theft at
the scrap yard.
{¶26} Appellant argues that the testimony of Cricks and Barnes are unreliable,
but determining the credibility of witnesses is within the province of the trier of fact.
See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus. Cricks’ account was buttressed by the photographs he took, his
accuracy in viewing the numbers on the license plate, and appellant’s admissions that
Stark County, Case No. 2012CA00171 9
he did in fact drive the green truck to 215 Wertz Avenue N.W. to pick up Barnes, as
Cricks related. Whether Reese was present or not makes no difference to the
operative facts, and the jury was free to believe or disbelieve his assertion that he and
appellant didn’t know the copper was stolen, just as it could do with Barnes’ account.
{¶27} Upon our review of the record, we find appellant’s conviction is
supported by sufficient evidence and is not against the manifest weight of the
evidence. Appellant, Barnes, and the green truck were seen at 215 Wertz on two
consecutive days, with no permission to be there. Appellant admits he was there, and
was observed by Cricks dropping Barnes off immediately before the break-in and
picking him up immediately after. Then the two went to the scrapyard where, the
evidence shows, Barnes sold the copper. Appellee presented evidence that Barnes
shared those proceeds with appellant.
{¶28} Appellee presented sufficient evidence to prove appellant guilty of aiding
and abetting the offense of breaking and entering. Nor has appellant shown the jury
was influenced by any improper motivation or consideration such as passion,
prejudice, or bias. Appellant’s conviction, therefore, is not against the weight of the
evidence.
Stark County, Case No. 2012CA00171 10
CONCLUSION
{¶29} Appellant’s sole assignment of error is overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Baldwin, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. CRAIG R. BALDWIN
PAD:kgb/pm5113