State v. Patton , 2013 Ohio 961 ( 2013 )

[Cite as State v. Patton, 2013-Ohio-961.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 94
v. : T.C. NO. 11CR388
PAUL PATTON : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 15th day of March , 2013.
..........
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E.
Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
REBEKAH S. NEUHERZ, Atty. Reg. No. 0072093, 150 N. Limestone Street, Suite 218,
Springfield, Ohio 45501
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Paul Patton was convicted of burglary in violation of R.C.
2
2911.12(A)(2), a second-degree felony, after a jury trial in the Clark County Court of
Common Pleas. The trial court sentenced him to four years in prison and ordered him to
pay restitution of $164 and court costs. Patton appeals from his conviction, claiming that
his conviction was based on insufficient evidence and was against the manifest weight of the
evidence.
{¶ 2} For the following reasons, we agree with Patton that there was insufficient
evidence to support his conviction for burglary. However, we find that the evidence does
support a conviction for the lesser-included offense of criminal trespassing in violation of
R.C. 2911.21. Patton’s conviction for burglary will be vacated, and the matter will be
remanded for the trial court to modify its judgment to indicate that Patton was convicted of
criminal trespassing and for sentencing on that offense.
{¶ 3} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). When reviewing whether the State has presented sufficient evidence to support
a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the
evidence in a light most favorable to the State, could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless “reasonable
minds could not reach the conclusion reached by the trier-of-fact.” Id.{¶ 4} In contrast, “a weight of the evidence argument challenges the believability
3
of the evidence and asks which of the competing inferences suggested by the evidence is
more believable or persuasive.” Wilson at ¶ 12. See Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“‘manifest weight of the evidence’ refers to a
greater amount of credible evidence and relates to persuasion”). When evaluating whether a
conviction is contrary to the manifest weight of the evidence, the appellate court must review
the entire record, weigh the evidence and all reasonable inferences, consider witness
credibility, 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 ordered.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, citing State v. Martin 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 5} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,
1997). However, we may determine which of several competing inferences suggested by
the evidence should be preferred. Id. The fact that the evidence is subject to different
interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest
weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175,
485 N.E.2d 717.
{¶ 6} R.C. 2911.12(A)(2) provides:
(A) No person, by force, stealth, or deception, shall do any of the following: *
**
[Cite as State v. Patton, 2013-Ohio-961.]
(2) Trespass in an occupied structure or in a separately secured or separately
occupied portion of an occupied structure that is a permanent or temporary
habitation of any person 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[.]
An attached garage is part of a home for purposes of the burglary statute. E.g., State v.
Stevens, 2d Dist. Montgomery No. 19572, 2003-Ohio-6249, ¶ 36.
{¶ 7} The State’s evidence at trial established that Gavin Herzog, Jr. returned
home from his high school graduation rehearsal at approximately 12:30 p.m. on May 26,
2011. The main door to the attached single-car garage was open, and his father’s lawn
mower was in the garage near a door at the back of the garage, which led to a patio. At that
time, Herzog noticed that the lawn mower was there, as there were only a few other items on
the floor of the garage.
{¶ 8} At approximately 1:00 p.m., while Herzog was talking on the telephone, he
heard a car door close and thought his mother had come home. Herzog looked out a
window on the front side of the house, and saw a man, later identified as Patton, walking
away on the sidewalk with a lawn mower. Herzog “felt something was wrong” and looked
in the garage. His father’s lawn mower was gone. Herzog walked toward Patton and
shouted, “Hey!” Patton turned and looked at Herzog. Patton then loaded the lawn mower
into the trunk of a silver PT Cruiser (which had a tarp covering a broken rear window), got
into the passenger seat, and rode off in the vehicle. Herzog did not get a good look at the
driver. Herzog contacted the police, and gave descriptions of the lawn mower, the two
perpetrators, and the vehicle to the responding officer.
[Cite as State v. Patton, 2013-Ohio-961.]
{¶ 9} Herzog’s father testified that he had bought his Bolens push mower at
Lowe’s in Springfield in April 2011. The lawn mower had a 5.0 Briggs & Stratton-type
engine with a black plastic case. The body of the mower was hunter green, and it had
regular-sized tires. Herzog stated that the lawn mower he saw Patton pushing was his
father’s mower. Herzog and his father both testified that they did not give anyone
permission to take the lawn mower.
{¶ 10} Through his investigation, Detective Tim Barcus was able to obtain a
license plate number of a vehicle matching Herzog’s description and identified Patton as a
suspect. Barcus prepared a photo array to show Herzog. Another officer who was
unfamiliar with the case showed the photo array to Herzog on June 2, 2011. Herzog
selected Photo #2, which was Patton’s photograph, as the perpetrator.
{¶ 11} At trial, Herzog’s father was asked to compare his lawn mower to one that
Patton brought as an exhibit. The lawn mower brought to the trial by Patton had a smaller
4.75 engine, different model numbers, said Weed Eater, was a different color green, and had
larger tires. Both Mr. Herzog and his son stated that Patton’s exhibit was not their lawn
mower.
{¶ 12} On appeal, Patton argues that the State’s evidence was insufficient to
support his conviction for burglary. He emphasizes that there is no evidence that he
trespassed on the victim’s property. He states: “[T]he evidence established that the victim
kept his lawn mower in a garage, that the garage door was broken and was therefore simply
left open, that the garage was left open for approximately five and a half hours on the date in
question while no one was home, and that, approximately a half an hour after arriving home,
the son of the homeowner (Junior) saw Mr. Patton walking down the sidewalk pushing a
6
dark green lawnmower – a mower he was not even sure was the mower owned by his father.
Even if the jury believed that Junior was able to positively identify the mower being pushed
by Mr. Patton as this father’s mower, no one at trial testified to seeing Mr. Patton anywhere
on the victim’s property at any time.” (Citations to the trial transcript omitted.)
{¶ 13} The State presented sufficient evidence from which the jury could have
concluded that Patton trespassed on the Herzogs’ property and stole the family’s lawn
mower. Herzog and his father both testified that the lawnmower was in the garage and no
one had permission to take the lawnmower. Herzog testified that he saw Patton walking
down the sidewalk with his father’s lawnmower. Although there was no direct evidence
that Patton went into the Herzogs’ garage, the jury could have readily inferred from the
Herzogs’ testimony that Patton went into their garage, without permission, in order to get the
lawnmower and thereby trespassed on the Herzogs’ property.
{¶ 14} However, in order to sustain Patton’s conviction for burglary, the State
was also required to put forth evidence that Patton trespassed “by force, stealth, or
deception.” 1 Stealth has been defined as “any secret, sly or clandestine act to avoid
discovery and to gain entrance into or to remain within a residence of another without
permission.” State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168, 170 (3d Dist.1993).
This court has held that a person’s mere entry into an open, attached garage, in broad
daylight, without evidence of stealthy behavior or deception to gain entry is insufficient to
support a conviction for burglary. State v. Pullen, 2d Dist. Greene No. 91 CA 33, 1992 WL
142271 (June 25, 1992). Accord, e.g., State v. Harris, 6th Dist. Lucas Nos. L-06-1402,
1
At this court’s request, the parties submitted supplemental briefs on this issue.
7
L-06-1403, 2008-Ohio-6168, ¶ 95-96. Compare State v. Bolden, 5th Dist. Stark No.
2002-CA-00235, 2002-Ohio- 6976 (although defendant walked into open garage in broad
daylight, there was evidence of stealth where defendant walked up and down the street to
ensure that he was unobserved while looking for a garage he could easily break into and he
had concealed or disguised his bolt cutters to avoid arousing suspicion); In re Markunes, 2d
Dist. Montgomery Nos. 15601 & 15617, 1996 WL 531586 (Sept. 20, 1996) (evidence of
stealth existed where there was sufficient evidence that defendant’s conduct could be
construed as looking to see if the “coast was clear” before entering the open garage in broad
daylight).
{¶ 15} In this case, the attached garage was open, it was approximately 1:00 p.m.,
and no one observed Patton before he entered the Herzogs’ garage, let alone his entry.
When Herzog saw Patton, Patton was walking down the sidewalk with the lawnmower.
There is no evidence – direct or circumstantial – that Patton engaged in any secret, sly, or
clandestine act to gain entrance to the Herzogs’ open garage, and nothing suggests that
Patton trespassed on the Herzogs’ property by force or deception.
{¶ 16} Because the State failed to produced any evidence that Patton trespassed by
“force, stealth or deception” on the Herzogs’ property, Patton’s conviction for burglary was
based on insufficient evidence and must be vacated.
{¶ 17} The assignment of error is sustained.
{¶ 18} Although there was insufficient evidence to support a conviction for
burglary, the State’s evidence was sufficient to convict Patton of criminal trespassing, in
8
violation of R.C. 2911.21, a lesser-included offense of burglary.2 “When a ‘verdict is not
sustained by sufficient evidence or is contrary to law; but if the evidence shows the
defendant is not guilty of the degree of crime for which he was convicted, but guilty of a
lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict
or finding accordingly, without granting or ordering a new trial.’” State v. Johnson, 188 Ohio
App.3d 438, 2010-Ohio-3345, 935 N.E.2d 895, ¶ 22 (2d Dist.), quoting R.C. 2945.79(D).
See also State v. Jackson, 4th Dist. Ross No. 12 CA 3309, 2012-Ohio-5619; Rutledge v.
United States, 517 U.S. 292, 305-307, 116 S.Ct. 1241, 134 L.Ed.2d 419.
{¶ 19} Patton’s conviction for burglary will be vacated. The matter will be
remanded for the trial court to modify its judgment to indicate that Patton was convicted of
criminal trespassing and for sentencing on that offense.
..........
FAIN, P.J. and HALL, J., concur.
Copies mailed to:
Lisa M. Fannin
Rebekah S. Neuherz
Hon. Richard J. O’Neill
2
“There is a constitutional requirement that a criminal defendant has notice of the offense(s) charged against him.
Sixth Amendment to the United States Constitution; Section 10, Article I of the Ohio Constitution. However, * * * if the offense is
a lesser included offense of the crime charged, notice is presumed. State v. Schmidt (1995), 100 Ohio App.3d 167, 171, 652
N.E.2d 254.” State v. Ebert, 7th Dist. Mahoning No. 07-MA-196, 2008-Ohio-6596, ¶ 11.