State v. Ratliff , 2024 Ohio 61 ( 2024 )

[Cite as State v. Ratliff, 2024-Ohio-61.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
: Case No. 22CA22
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
CAITLIN RATLIFF, :
: RELEASED: 01/05/2024
Defendant-Appellant. :
APPEARANCES:
Tim Young, Ohio Public Defender, and Ohio Assistant Public Defender, R.
Jessica Manungo, Assistant Public Defender for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells,
Ohio Assistant Ross County Prosecutor, Chillicothe, Ohio for appellee.
Wilkin, J.
{¶1} This is an appeal from a Ross County Court of Common Pleas
judgment entry that convicted appellant, Caitlin Ratliff (“Ratliff”), of third-degree
felony burglary. On appeal Ratliff maintains that her conviction is not supported
by sufficient evidence and is also against the manifest weight of the evidence.
After reviewing the parties’ arguments, the record, and the applicable law, we
find her conviction is supported by sufficient evidence and is not against the
manifest weight of the evidence. Therefore, we affirm the trial court’s judgment
of conviction.
BACKGROUND
{¶2} On March 10, 2022, a grand jury indicted Ratliff on a burglary charge
in violation of R.C. 2911.12 (A)(3), a third-degree felony. In a two-day trial
Ross App. No. 22CA22 2
beginning on May 11, 2022, Ratliff was tried on the charge of burglary before a
jury.
{¶3} The state’s first witness was Ross County Sheriff’s Deputy, Ben
Roderick, who testified that on February 2, 2022, he was dispatched to 7149
County Road 550 to investigate a burglary in progress. He stated that it was
“overcast” and the ground was “wet” and “muddy.” Upon arrival, Roderick
noticed a “late model Ford F-150” (pickup truck) parked in the front yard of the
house. Roderick stated that a witness, Shane Morris, informed him two suspects
had taken his phone, shot at him with a gun, and then ran into the woods behind
the house. Roderick and deputy Mitchell attempted to pursue the suspects.
However, because the vegetation was so thick, the deputies set up a perimeter
to the east and south of the woods. They called for a K-9 unit so they could track
the suspects. A third deputy was patrolling nearby roadways looking for the
suspects.
{¶4} While deputy Roderick was waiting for the K-9 unit, Mike Lemaster,
the homeowner showed up. Lemaster informed Roderick that there were a
“bunch of his items” that had been taken from his house that were in the pickup
truck.
{¶5} After unsuccessfully investigating a nearby “ping” on Morris’s stolen
cell phone, Roderick returned to Lemaster’s property. At that time, Morris
informed Roderick that he had just seen an orange-colored vehicle stop about
1/8 of a mile up the road and that two persons who had emerged from the tree
line got into the back of the vehicle. Believing these persons might be the
Ross App. No. 22CA22 3
suspects, Roderick got in his patrol vehicle and attempted to find that vehicle and
investigate. Roderick along with a state trooper executed a “felony stop” of the
vehicle, which contained five persons, including Ratliff who was seated in the
rear of the vehicle. Roderick described Ratliff as “disheveled” and “covered in
mud.”
{¶6} The state’s next witness was Shane Morris who lived in the Frankfort,
Ohio area his entire life. He testified that on February 2, 2022, while taking a
load of scrap down County Road 550 to Pleasant Valley, he noticed a pickup
truck in the front yard of Lemaster’s house that did not belong to Lemaster, who
he had known for 30 years. Morris called Lemaster and told him about the
pickup truck, but Lemaster initially thought that someone’s truck had broken
down.
{¶7} After leaving the scrapyard, Morris again passed Lemaster’s house
and noticed the pickup truck was still there, so he pulled into the property in front
of the truck to investigate. Morris saw two persons coming out of the house
“carrying stuff,” so Morris attempted to call 911 believing he was witnessing a
theft. He described one of the suspects as a male wearing a coat and the other
as a woman wearing a hoodie. Morris attempted to take pictures of the license
plate of the pickup truck. However, the suspects got into the pickup truck,
rammed Morris’s vehicle and then got stuck in the mud. The male suspect
emerged from the pickup truck with a gun and ordered Morris to give him his
phone, and Morris complied. The suspect then ordered Morris to push the
pickup truck out of the mud. Instead of pushing the pickup truck out of the mud,
Ross App. No. 22CA22 4
Morris put his vehicle in reverse and fled the property. The suspect shot at him
as he fled. Morris drove up the road to his friend’s home and called the
authorities on a landline. Neighbors told Morris that they saw the suspects
running through the woods, so he drove down the road to his parents’ house,
which was close by, to warn them of the situation.
{¶8} Morris then returned to Lemaster’s house and spoke with the deputy
about the robbery. Morris identified one of the suspects who had been
apprehended from the orange Honda Element as the defendant herein, Caitlin
Ratliff, whom he had known for approximately 15 years.
{¶9} The state’s next witness was Michael Lemaster, the property owner
whose home was burglarized. Lemaster stated that he received two calls from
Morris with the latter informing him that someone had broken into his house at
the 7149 County Road 550 address. When Lemaster arrived, deputies were
searching for the suspects. The suspects had apparently entered the garage
through an unlocked door and then broke a window between the garage and the
house to gain entry into the house. Lemaster identified personal property that
was missing from the house including guns, hunting knives, coins, and jewelry.
{¶10} Lemaster testified that he had not lived in the house for more than a
year and does not stay overnight there, but he usually stops by the property “at
least once a day” to pick up mail. He also testified that he maintains the utilities
(water, electricity, etc.) at the house. And he makes repairs, e.g., keeping the
sump pump working.
Ross App. No. 22CA22 5
{¶11} The state’s next witness was detective Brenton Davidson of the
Ross County Sheriff’s Office. He conducted an investigation of this burglary. His
investigation included examining the orange Honda Element in which Ratliff was
caught, the residence at the 7149 County Road 550 address, and the pickup that
was at the house at the time of the burglary. He discovered stolen items in the
orange Honda Element. He spoke to Lemaster, took photographs, as well as
marked and inventoried the stolen property from Lemaster’s house that was in
the truck and the orange Honda Element. Davidson also found Morris’s cell
phone in Lemaster’s back yard. A purse was recovered from the truck that
contained Ratliff’s Ohio identification card and her Visa debit card.
{¶12} Detective Addy of the Ross County Sheriff’s Office was the state’s
last witness. He also investigated this burglary. He interviewed all five persons
who were in the orange Honda Element. He found a jewelry box and knives on
the floorboard of the Element that Lemaster identified as his property. He also
found a 9 millimeter pistol that did not belong to Lemaster. He testified that
Ratliff told him that she was with Mr. Stodgel on the day of the burglary but did
not participate in the burglary. She claimed that Stodgel told her that he stopped
at Lemaster’s house because he was looking for a house to rent, but claims that
once they were there, he committed the burglary on his own.
{¶13} Detective Addy testified that Ratliff was wearing a jacket when she
was in the orange Honda Element and a pocket in that jacket contained a
woman’s watch that Lemaster identified as having belonged to his deceased wife
and had been in her bedroom.
Ross App. No. 22CA22 6
{¶14} Prior to retiring to deliberate, the judge instructed the jury on the
applicable law, including R.C. 2909.01(C)(1-4), which defines an “occupied
structure” for purposes of the burglary offense.
{¶15} While deliberating, the jury asked “is there any clarification, apart
from what we have been provided, about temp – temporary dwelling? Is there
any definition?” After conferring with both counsel for the state and the
defendant, the court addressed the jurors and informed them that there was no
legal definition of “temporary dwelling.” “The entire definition of occupied
structure is specifically provided by the Ohio Revised Code Section 2909.01(C)
[sic.] and I gave [sic.] you that entire definition.” The court then proceeded to
reread R.C. 2909.01(C) to the jury.
{¶16} The jury found Ratliff guilty as charged. On May 17, 2022, the court
issued a judgment of conviction and scheduled sentencing for May 26, 2022.
After that hearing, the court sentenced Ratliff to 30 months in prison and up to 2
years of post-release control. It is this judgment that Ratliff appeals.
ASSIGNMENTS OF ERROR
I. CAITLIN RATLIFF’S CONVICTION FOR BURGLARY IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE. FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION R.C. 2911.12(A)(3); R.C. 2909.01(C).
II. CAITLIN RATLIFF’S CONVICTION OF BURGLARY IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF
THE DUE PROCESS CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO
CONSTITUTION. STATE V. THOMPKINS, 78 OHIO ST.3D 380,
387, 678 N.E.2D 541 (1997).
Ross App. No. 22CA22 7
I. First Assignment of Error
{¶17} In her first assignment of error, Ratliff claims that her conviction for
burglary is not supported by sufficient evidence. Ratliff maintains that a third-
degree felony burglary offense requires proof that the offender committed a
trespass in an “occupied structure” to commit a criminal offense. She asserts
four different arguments why Lemaster’s house was not an occupied structure
under R.C. 2909.01(C) to support her burglary conviction.
{¶18} Ratliff first argues that Lemaster’s home was not maintained as a
“permanent or temporary dwelling” under 2909.01(C)(1) because as of the date
the burglary herein occurred, he had not lived in the house for two years. In
other words, Lemaster has not “maintained” his house as a “permanent or
temporary dwelling” so it was not an occupied structure under R.C.
2909.01(C)(1). Therefore, she argues, because there was no “occupied
structure,” which is a necessary element of burglary, there was insufficient
evidence to support her burglary conviction.
{¶19} Ratliff claims that a recent Supreme Court decision, State v.
Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, 207 N.E.2d 677, supports her
argument. In Whitaker, the house in question had been unoccupied for years. It
had been gutted for a renovation so it remained unoccupied. Under these
circumstances, the Court determined that the house was “not maintained as a
permanent or temporary dwelling[,]” so it was not occupied under R.C.
2909.01(C)(1). Id. at ¶ 63
Ross App. No. 22CA22 8
{¶20} Ratliff claims that Whitaker is persuasive in this case because the
evidence herein shows that Lemaster did not live in his house at the time of the
theft in this case and had not lived there for at least two years prior to that date.
Thus, consistent with Whitaker, Lemaster’s house also did not qualify as a
“permanent or temporary habitation” under R.C. 2909.01(C)(1) and therefore was
not occupied under that provision and as a result would not support a burglary
charge.
{¶21} Ratliff also argues that Lemaster’s house was not “occupied as the
permanent or temporary habitation of any person” at the time of the offense so it
was not occupied under R.C. 2909.01(C)(2). Thus, there would be insufficient
evidence to support her burglary conviction.
{¶22} Ratliff further argues that there is no evidence that Lemaster’s
house was specifically adapted for overnight accommodations under R.C.
2909.01(C)(3). Again, there would be insufficient evidence to support her
conviction.
{¶23} Finally, she alleges that “no one was present at the time or likely to
be present at the house at the time of the trespass and theft” because the
incident occurred when Lemaster would likely be at work. Therefore, Lemaster’s
home did not qualify as an occupied structure under 2909.01(C)(4) and would not
support her burglary conviction.
{¶24} In response, the state maintains that “the relevant inquiry in
determining whether a structure is occupied concerns the residential purpose of
the dwelling, rather than the presence or absence of an occupant.” State v.
Ross App. No. 22CA22 9
Green, 18 Ohio App.3 69, 480 N.E.2d 1128 (3rd Dist. 1984). The state argues a
dwelling is “occupied” under R.C. 2909.01(C)(1) “where a dwelling is temporarily
not being occupied as a place of habitation and where persons are likely to be
present from time to time to look after the property to help maintain its character
as a dwelling.” State v. Steen, 2d Dist. Darke No. 19CA16, 2020-Ohio-4598, ¶
33.
{¶25} In this case, the state claims that it has carried the burden of
showing that Lemaster’s house was regularly maintained as a dwelling. The
state asserts that Lemaster is at the house daily, he keeps the utilities on, and he
receives his mail at the house. “It is a residence where he could go and stay.”
{¶26} The state claims that Whitaker is distinguishable from this case. In
Whitaker the house was being “gutted” during its renovation. In this case, unlike
Whitaker, the house was not gutted and Lemaster maintained furniture and
belongings at the house.
{¶27} The state claims that this case is more like State v. Bell, 8th Dist.
Cuyahoga No. 101489, 2015-Ohio-1294. In Bell, even though the owner of the
house died, the court did not find that the home was abandoned. The house still
had a residential purpose even though it was unoccupied because relatives were
maintaining the house when the burglary occurred. The house contained
furniture, appliances, and utilities. Therefore, the court found that it was an
occupied structure under R.C. 2909.01(C)(1).
{¶28} Although Lemaster’s wife had died and he has opted to live in
another home, he has maintained the house at 7149 County Road 550 as a
Ross App. No. 22CA22 10
dwelling. Similar to Bell, Lemaster maintained the utilities at the house, made
repairs, and kept it furnished. Therefore, there is sufficient evidence to support
that Lemaster’s house was an occupied dwelling under R.C. 2909.01(C) at the
time of the burglary herein.
A. Law
1. Standard of Review
{¶29} “When reviewing a case to determine if the record contains
sufficient evidence to support a criminal conviction, we must ‘ “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.” ’
” State v. Knowlton, 2012-Ohio-2350, 971 N.E.2d 395, ¶ 10 (4th Dist.), quoting
State v. Smith, 4th Dist. Pickaway No. 06CA7, 2007-Ohio-502, ¶ 33, quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. Thus, “ ‘ “[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.” ’ ”
Id., quoting Smith, quoting Jenks.
2. Burglary
{¶30} Third-degree-felony burglary requires the state to prove that “by
force, stealth, or deception,” the defendant “trespasses in an occupied structure
with purpose to commit in the structure or separately secured or separately
occupied portion of the structure any criminal offense.” (Emphasis added.) R.C.
Ross App. No. 22CA22 11
2911.12(A)(3) and (D). For purposes of a burglary “ ‘occupied structure’ has the
same meaning as in section 2909.01 of the Revised Code.” R.C. 2911.12(C).
3. R.C. 2909.01(C)
{¶31} R.C. 2909.01(C) provides:
(C) “Occupied structure” means any house, building, outbuilding,
watercraft, aircraft, railroad car, truck, trailer, tent, or other
structure, vehicle, or shelter, or any portion thereof, to which any
of the following applies:
(1) It is maintained as a permanent or temporary dwelling, even
though it is temporarily unoccupied and whether or not any person
is actually present.
(2) At the time, it is occupied as the permanent or temporary
habitation of any person, whether or not any person is actually
present.
(3) At the time, it is specially adapted for the overnight
accommodation of any person, whether or not any person is
actually present.
(4) At the time, any person is present or likely to be present in it.
B. Analysis
{¶32} In the context of a burglary offense, “[a]t common law, the house
had to be ‘occupied’ as a dwelling, although a temporary absence with the
intention of returning would not render it unoccupied.” State v. Green, 18 Ohio
App.3d 69, 71, 480 N.E.2d 1128 (10th Dist.1984). “However, a house that was
permanently abandoned or its use changed to something other than residential,
would cease to be regarded as a dwelling. The offense was said to be one
against the security of habitation, and not an offense against property.” Id., citing
Clark and Marshall, Law of Crimes, Sections 406-407 (1952).
{¶33} However, Green went on to find that in promulgating R.C.
2909.01(A), now R.C. 2909.01(C),
Ross App. No. 22CA22 12
[i]t is obvious that the General Assembly, in adopting the definition
of “occupied structure” found in R.C. 2909.01, intended to broaden
the concept of the offense of burglary from one of an offense
against the security of habitation, to one concerned with the
serious risk of harm created by the actual or likely presence of a
person in a structure of any nature. In that context, it is noteworthy
that the General Assembly utilized the word “maintained” * * * as
opposed to “occupied[.]” * * * We believe that the distinction
between “maintained” and “occupied” is significant, in the sense
that the former alludes more to the character or type of use for
which the dwelling is intended to be subjected, whereas the latter
is more closely related to the actual use to which the structure is
presently being subjected. (Emphasis added.)
Id. at 71-72.
{¶34} We find that the state presented sufficient evidence that the property
was occupied under R.C. 2909.01(C)(1) and (4).
1. R.C. 2909.01(C)(1)
{¶35} Consistent with Green’s recognition in this regard, the Eighth District
Court of Appeals interpreting R.C. 2909.01(C)(1) has held that “the relevant
inquiry in determining whether a structure is occupied concerns the residential
purpose of the dwelling, rather than the presence or absence of an occupant.”
State v. Calderwood, 194 Ohio App.3d 438, 956 N.E.2d 892, ¶ 15 (8th Dist.
2011), citing Green, 18 Ohio App.3d 69, 480 N.E.2d 1128 (10th Dist.1984) (home
left vacant after the owners moved to another residence was still an occupied
structure because it was being maintained as a dwelling); State v. Williams, 8th
Dist. Cuyahoga No. 92668, 2009-Ohio-6826 (the fact that no one lived in the
house for four months is irrelevant in determining whether it was an occupied
structure); State v. Charley, 8th Dist. Cuyahoga No. 82944, 2004-Ohio-3463Ross App. No. 22CA22 13
(structure is still occupied despite the fact that the owner was in a nursing home
and the daughter was having the house restored); State v. Sharp, 8th Dist.
Cuyahoga No. 86827, 2006-Ohio-3158 (structure's status as an occupied
structure depends on the residential purpose of the dwelling rather than the
presence or absence of an occupant); State v. Tornstrom, Cuyahoga App. No.
72898, 1998 WL 811314 (Nov. 19, 1998) (a home uninhabitable while
undergoing major renovations was found to be an occupied structure); Compare
State v. Anderson, 2012-Ohio-3663, 975 N.E.2d 556, ¶ 14 (9th Dist.) (A house
condemned by a municipality as uninhabitable with no evidence of any future
repairs is not maintained as a dwelling for purposes of R.C. 2909.01(C)(1)).
{¶36} We find the case of State v. Bell particularly instructive in the instant
case. 8th Dist. Cuyahoga No. 101489, 2015-Ohio-1294. In Bell, the defendant,
who was convicted of burglary, argued that the house was not occupied at the
time of the offense. The court of appeals found that even though the owner of
the house had died, “her house was not abandoned.” Id. at ¶ 23. Quoting
Calderwood, 194 Ohio App.3d 438 at ¶ 15, the court in Bell found that
[t]he evidence proved that the house maintained its residential
purpose even though it was vacant. “[The decedent’s daughter]
and her husband maintained the property and when the incident
occurred, the house was fully equipped with utilities, appliances,
a furnace, and furniture. Therefore, the house was an ‘occupied
structure’ within the meaning of R.C. 2909.01(C)(1).”
Id.{¶37} Similar to the house in Bell, Lemaster’s house at 7149 County Road
550 maintained its “residential purpose” because Lemaster’s mail was delivered
there, it contained furniture and Lemaster’s belongings, the utilities were on, and
Ross App. No. 22CA22 14
Lemaster made repairs to the house (e.g., he repaired the sump pump).
Therefore, after viewing the evidence in a light most favorable to the prosecution,
we find that the jury could have concluded that Lemaster’s house was an
occupied structure under R.C. 2909.01(C)(1).
{¶38} Contrary to Ratliff’s argument, we find that Whitaker is
distinguishable from the instant case. Instrumental in Whitaker’s holding that the
house therein was not maintained as a permanent residence under R.C.
2909.01(C)(1) was due, at least in part, to the fact that the house was “gutted”
during a renovation making it uninhabitable during that period of time. Whitaker,
169 Ohio St.3d 647, at ¶ 63. No similar activity was occurring at Lemaster’s
house that could have rendered the house uninhabitable during the burglary.
2. R.C. 2909.01(C)(4)
{¶39} R.C. 2909.01(C) also defines an “occupied structure” as including a
“house” where “[a]t any time, any person is present or likely to be present in it.”
R.C. 2909.01(C)(4). “ ‘[A] person is likely to be present [in a house] when a
consideration of all the circumstances would seem to justify a logical expectation
that a person could be present.’ ” (Brackets and emphasis sic.) Bell, 8th Dist.
Cuyahoga No. 101489, 2015-Ohio-1294, quoting State v. Cantin, 132 Ohio
App.3d 808, 813, 726 N.E.2d 565 (8th Dist.1999), citing State v. Green, 18 Ohio
App.3d 69, 480 N.E.2d 1128 (10th Dist.1984). Consequently, “if the evidence
demonstrates that the caretaker in possession of the former occupant's key has
the right of access to the home regularly, then there will be sufficient evidence
that a person is ‘likely to be present’ for purposes” of occupancy. Id., quoting
Ross App. No. 22CA22 15
State v. Cochran, 8th Dist. Cuyahoga No. 50057, 1986 WL 1302 (Jan. 30, 1986);
State v. Robinson, 8th Dist. Cuyahoga Nos. 49501 and 49518, 1985 WL 8499(Oct. 24, 1985) (a person is likely to be present when the homeowner was away,
but had given keys to a neighbor who checked on the house periodically).
{¶40} As the owner of the house at 7149 County Road 550, Lemaster
obviously could access his house at any time. He testified that he typically
stopped at least once a day. When asked if he had stopped by the day of the
burglary, he said he had not because he was at work. However, when asked
what his work hours were, Lemaster responded “usually whatever I want to
work.” Viewing the evidence in a light most favorable to the prosecution, we find
that the jury could have determined that Lemaster’s house was “occupied” under
R.C. 2909.01(C)(4) for purposes of her burglary conviction because he was
“likely to be present” therein.
{¶41} Because Lemaster maintained the residential purpose of his house,
and was “likely to be present” in his house, we find that there was sufficient
evidence for the jury to find that his house was an “occupied structure” under
R.C. 2909.01(C). Consequently, we find that there is sufficient evidence that
Lemaster’s house was “occupied” to support Ratliff’s burglary conviction.
Accordingly, we overrule Ratliff’s first assignment of error.
Second Assignment of Error
{¶42} In her second assignment of error, Ratliff alleges that her conviction
for burglary is against the manifest weight of the evidence because the state did
not submit substantial evidence that she committed burglary. She claims that the
Ross App. No. 22CA22 16
testimony by the deputies and Morris established that Brandon Stodgel
committed the burglary of Lemaster’s home, not her. Ratliff maintains that
Morris’s testimony amounted to guilt by association because he “testified that
because [Ratliff] was with Mr. Stodgel, she must have been an outlaw.” Ratliff
claims that Stodgel was the driver of the pickup truck, while she was only a
passenger. Merely being at the scene is not enough to support Ratliff’s
conviction. Finally, she also maintains that the police and Lemaster testified that
they found only one trash bag of items in the pickup truck, which contradicts
Morris’s testimony that he saw the suspects carrying two trash bags of items.
{¶43} Ratliff also claims that her conviction is against the manifest weight
of the evidence because Lemaster’s house was not an occupied structure. The
only evidence that he presented in support that the house was occupied was that
Lemaster picked up his mail, checked the sump pump, and maintained the
utilities.
{¶44} In response, the state asserts that Ratliff’s conviction for burglary is
supported by the manifest weight of the evidence because of her conduct at the
scene and circumstantial evidence. The state maintains that Morris observed a
male and female carrying “stuff” outside Lemaster’s house, and he identified the
female as the defendant, Caitlin Ratliff. And there was no evidence that Morris
would be motivated to lie in identifying Ratliff as the female suspect. Conversely,
the jury did not believe Ratliff’s testimony that she was not involved in the
burglary, which it may do as the fact-finder. Finally, some of the items stolen
would be of interest to a female, e.g. jewelry and women’s jeans.
Ross App. No. 22CA22 17
{¶45} The state also argues that the manifest weight of the evidence
supports that Lemaster’s house was occupied for purposes of the burglary
because he maintained his residence as a dwelling so he could stay there.
“[Lemaster] keeps the utilities on; he get (sic) his mail there, he goes there every
day to check on things, he maintains the sump pump to make sure it doesn’t
flood the basement.” The state also notes that all the witnesses referred to
Lemaster’s dwelling as his “house.”
{¶46} Thus, the state maintains that Ratliff’s burglary conviction is
supported by the manifest weight of the evidence.
A. Law
{¶47} “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. Stevens, 4th Dist. Highland No. 09CA3, 2009-Ohio-6143,
¶ 18, citing State v. Banks, 78 Ohio App.3d 206, 214, 604 N.E.2d 219 (10th Dist.
1992).
{¶48} “In determining whether a criminal conviction is against the manifest
weight of the evidence, we must review the entire record, weigh the evidence
and all reasonable inferences, [and] consider the credibility of witnesses[.]” State
v. Evans, 4th Dist. Ross No. 22CA31, 2023-Ohio-1879, ¶ 26, citing State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). However, we
“generally must defer to the fact-finder's credibility determinations.” State v.
McNichols, 2020-Ohio-2705, 154 N.E.3d 125, ¶ 10 (4th Dist.), citing Eastley v.
Ross App. No. 22CA22 18
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21. We must
then “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
reversal of the conviction is necessary.” Evans at ¶ 26 “To satisfy this test, the
state must introduce substantial evidence on all the elements of an offense, so
that the jury can find guilt beyond a reasonable doubt.” Id., citing State v.
Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304, syllabus (1988).
B. Analysis
{¶49} We find that the state presented substantial evidence that Ratliff
committed the burglary herein. Morris testified that he saw two suspects at
Lemaster’s house, one male and one female on the day of the burglary “carrying
stuff.” The pickup truck which was used by the suspects for transportation
contained property stolen from Lemaster’s house. After Morris confronted the
suspects and the suspects’ pickup truck got stuck in the mud, the suspects fled
into the woods behind Lemaster’s house.
{¶50} The evidence further established that shortly after the burglary two
persons emerged from the woods about 1/8 of a mile from Lemaster’s house,
crossed a field, and entered an orange vehicle. Believing that those persons
might be the suspects, law enforcement officers stopped an orange Honda
Element. Ratliff was one of the passengers. She was arrested and described as
“disheveled” and “covered in mud,” which is consistent with someone who would
have had to navigate the woods and a field after fleeing from the rear of
Lemaster’s house on a day when the conditions were “wet” and “muddy.” She
Ross App. No. 22CA22 19
was also wearing a coat that had a watch in its pocket that Lemaster identified as
having come from his house and belonged to his deceased wife. Finally, Morris
identified Ratliff, whom he had known for 15 years, as the female suspect who he
saw at Lemaster’s house earlier that day, and there is no evidence in the record
that questions his credibility.
{¶51} We also find that the state submitted substantial evidence that
Lemaster’s house was “occupied” for purposes of the burglary. The state
presented evidence that Lemaster’s house maintained its “residential purpose”
under R.C. 2909.01(C)(1) because he came to the house at least once a day,
received his mail at the house, the house contained furniture and his various
belongings, the utilities were on, and Lemaster undertook repairs to the house,
e.g., the sump pump. The state also presented evidence that Lemaster was
“likely to be present” in his house under R.C. 2909.01(C)(4) because, as its
owner, he had a key so he could access the house at any time, and typically
visited the house at least once a day.
{¶52} After reviewing the entire record, weighing the evidence,
considering all reasonable inferences and credibility of witnesses, we find that
the state presented substantial evidence that Ratliff committed burglary so the
jury did not lose its way in finding Ratliff guilty. Therefore, we overrule Ratliff’s
second assignment of error finding that Ratliff’s conviction is supported by the
manifest weight of the evidence.
Ross App. No. 22CA22 20
CONCLUSION
{¶53} Having overruled both of Ratliff’s assignments of error, we affirm the
trial court’s judgment entry of Ratliff’s conviction.
JUDGMENT AFFIRMED.
Ross App. No. 22CA22 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Ross County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the
date of this entry.
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 60 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 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, 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.