State v. Petefish , 2011 Ohio 6367 ( 2011 )

[Cite as State v. Petefish, 2011-Ohio-6367.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 MA 78
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JOEL PETEFISH )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 10 CR 23
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Megan Graff
Comstock, Springer & Wilson Co.
100 Federal Plaza East
Suite 926
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 7, 2011
[Cite as State v. Petefish, 2011-Ohio-6367.]
WAITE, P.J.
{1} Appellant, Joel Petefish, appeals the judgment of the Mahoning County
Common Pleas Court, convicting him on three counts: one of burglary, a violation of
R.C. 2911.11(A)(2)(B), a first degree felony, and two of abduction, a violation of R.C.
2905.02(A)(2)(C): One count of abduction involved Bette Merrick (“Bette”), and one
involved her daughter, Melissa Merrick (“Melissa”), both third degree felonies. For
the following reasons, Appellant’s conviction and sentence are affirmed.
Factual and Procedural History of the Case
{2} Appellant had been married to Bette and the two had a son, Joel, Jr.
They divorced in the early nineties. After the divorce Bette remarried and had a
daughter, Melissa. Bette and her husband Steven lived together with both children,
Joel, Jr. and Melissa. Appellant moved to Georgia during the early nineties and lived
there for approximately twenty years. (Tr. Vol. III, p. 506.) In the late summer of
2009, he made his way north from Georgia, staying with family along the way. (Tr.
Vol. III, pp. 494-495.) When he returned to the Youngstown area his father refused
to allow him to stay in the family home. Appellant’s mother contacted his ex-wife,
Bette, told her he had nowhere to stay other than to camp in the woods, and asked if
she could help. Bette agreed to let Appellant wash, eat, and nap from time to time,
depending on his behavior and the weather, first at the townhouse she shared with
her husband, and later in the one-bedroom apartment she and her daughter shared.
(Tr. Vol. II, p. 343.) Bette would ask Appellant to leave if his behavior was
inappropriate or if he was using alcohol or drugs. (Tr. Vol. II, pp. 345-346.)
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{3} During October of 2009, Bette and Steven began a trial separation. (Tr.
Vol. II, p. 342.) Bette and her daughter moved to a separate apartment, but Steven
continued to pay for their groceries and upkeep, and set up their phone and cable.
(Tr. Vol. II, pp. 369, 371, 382.) Bette’s apartment had only one set of keys, which she
kept. She, alone, was listed on the lease, and paid rent herself. (Tr. Vol. II, p. 375-
376.) Appellant continued to stay with Bette and her daughter at the apartment,
either several times a week, according to Bette and Melissa, or continuously,
according to Appellant. (Tr. Vols. II & III, pp. 370, 414; cf. 512) In December, Bette
decided to tell Appellant to get a job and leave. (Tr. Vol. II, pp. 345, 381.) It appears
Appellant left when she asked, but continued to return periodically during December.
{4} During the day on December 24, 2009, Bette left the apartment
unlocked, as was her practice, so her son, Joel, Jr., could come in to pick up his
Christmas present. (Tr. Vol. II, pp. 351-352; 376-377.) Bette testified that she
returned to her apartment and found Appellant there: he had her “daughter’s Kool-
Aid all over his face, and ran outside and did these snow angels and urinated on
them.” Bette stated that she was upset by his presence and his behavior, and told
him to leave. (Tr. Vol. II, pp. 381, 387; 347-348.) Bette prepared to pick up her
daughter and go to her parents’ house for the holiday. Bette and Appellant agreed
that he would drop by the gathering so she could take him to his mother’s house
before she and her daughter continued to her husband’s house to celebrate
Christmas. (Tr. Vol. II, p. 349.) Appellant never arrived at her parents’ party.
Instead, when Bette and Melissa stopped at the apartment on their way to Steven’s,
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they were surprised by Appellant, who was drunk. The apartment was in disarray.
Clothing was strewn everywhere, soda and alcohol were spilled on the floor and on
the dining room table, food was left either raw on the counter or burning in the oven.
(Tr. Vols. II & III, pp. 350; 399-400.) Bette told Appellant, again, that he had to leave.
Appellant started “ranting and raging.” (Tr. Vol. II, p. 351.) Appellant remained while
Bette and her daughter prepared to leave. Finally Melissa offered him a few dollars
and he left. (Tr. Vol. III, pp. 400; 407.)
{5} Shortly after Appellant left with her money, Melissa tried to make a
phone call and discovered the house phone was disconnected. The landline was
digital and neither Melissa nor Bette knew how to set it back up. They realized then
that Melissa’s cell phone was missing. They concluded that Appellant had taken the
phone and headed toward the door to borrow a neighbor’s phone. (Tr. Vol. II & III,
pp. 352-354; 411.) As Bette reached the door there was a knock. She saw
Appellant through the peep hole and asked him, through the door, for her daughter’s
phone. He held it up and said she had to open the door so he could hand it to her.
She cracked the door open and, rather than pass her the phone, Appellant pushed
the door more fully open, forcing the two women into the wall as he entered the
apartment. He began mumbling and yelling and screaming. When Bette told him
they were leaving and he also needed to leave, Appellant responded “[y]ou’re not
going anywhere.” (Tr. Vol. II, pp. 355-357.) The two women observed Appellant
enter the kitchen area, take two knives and put them in the pockets of his pants. (Tr.
Vols. II & III, pp. 356; 402.)
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{6} Bette and her daughter ran to the bedroom. As the two were hurrying
away from Appellant, Melissa, to whom Appellant had thrown the cell phone,
pretended to call her grandparents while actually calling her father. Under the guise
of telling her grandmother they had made it home safely, she conveyed to her father
that he needed to call the police. (Tr. Vol. III, p. 403.) As the two entered the
bedroom, Bette told Melissa to pack a bag, but Appellant broke into the bedroom and
stood over the two women “calling us names and said you’re not going anywhere.
I’m not going to allow you. You’re not going anywhere.” (Tr. Vol. II, p. 357.) While
Appellant, who was apparently drunk, alternated between standing over the women
and standing in the doorway shouting at them, he frequently put his hands in his
pockets. Both women were very aware that the knives were in his pockets and were
afraid that he was going to use the knives to hurt them. (Tr. Vol. II & III, pp. 385-386;
403-405.) Bette continually asked Appellant to leave, to leave her daughter alone,
and never come back. (Tr. Vol. II, p. 358.) Because the apartment was on the third
floor there was no exit other than the front door.
{7} Suddenly, something appeared to distract Appellant in the kitchen, and
he left the bedroom. (Tr. Vol. II, p. 384.) Bette took her daughter’s arm and the two
ran to the front door, reaching for her keys from a table as they ran past. (Tr. Vol. II,
359-360.) The two jumped into the car and drove down the street.
{8} Bette and Melissa waited in a parking lot down the block for the police
to arrive. After several cruisers arrived, they returned to the apartment. Meeting
Officer Asad Chaibi, they gave statements at the scene. The first officer to arrive on
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the scene found the apartment a mess with a single chair oddly placed in the center
of the living room. Fearing for his safety, the officer secured Appellant on the chair
while waiting for back-up. (Tr. Vol. III, pp. 426; 440; 459.) All of the officers involved
noted how shaken the women were; that they were reluctant to leave their car and
then reluctant to have to see Appellant again at the hearing seeking a restraining
order. (Tr. Vol. III, pp. 429; 441; 447; 464.)
{9} At trial, Appellant testified that the events described by Bette and her
daughter never happened. He stated that he never threatened them or prevented
them from leaving. He maintained that he returned to the Youngstown area because
Bette asked him to and to be with his son. He testified that Bette and he were in an
intimate relationship and they moved into the apartment together, and that he
regularly contributed to the household and spent more nights in the apartment than
Melissa did. Appellant testified that Melissa was upset by the obvious relationship he
had with her mother, that she always had a problem with him, and that the police
were called that night due to a family disagreement after Melissa became upset when
he asked her mother for a kiss. (Tr. Vol. III, pp. 509-510, 515, 518, 530-531.) Bette
denied any sexual relationship with Appellant. (Tr. Vol. II, p. 363.) She said that she
and her daughter shared the single bedroom in the apartment. (Tr. Vol. II., p. 342.)
{10} Appellant was indicted by the grand jury on January 28, 2010. Count
one was for burglary, a violation of R.C. 2911.11(A)(2)(B), a first degree felony.
Counts two and three charged abduction, violations of R.C. 2905.02(A)(2)(C); count
two was for the abduction of Bette, count three was for the abduction of Melissa, both
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third degree felonies. Appellant did not waive his speedy trial rights. Trial was
initially set for early April, but Appellant requested and received a continuance. The
jury trial commenced on April 19, 2010 and continued through April 22, 2010. Bette
and Melissa testified for the state; as well as responding Officers Chaibi, Ditullio,
Moran, and Quinn. Detective Lodwick, of the child and family crimes division, also
testified. Appellant and his mother testified for the defense.
{11} The defense moved for acquittal on the merits at the conclusion of the
state’s case-in-chief. The motion was overruled.
{12} A verdict on each count was returned by the jury on April 22, 2010.
Appellant was sentenced and judgment entered on May 7, 2010. Appellant received
six (6) years of incarceration on count one and four (4) years of incarceration on
counts two and three, which merged, to be served consecutively. Credit was given
for one-hundred and thirty-five (135) days served, and treatment for alcoholism
recommended. Appellant filed his timely appeal on May 10, 2010.
Assignment of Error No. 1
{13} “The State of Ohio failed to introduce sufficient evidence to prove
beyond a reasonable doubt that defendant-appellant, Joel Petefish, committed
aggravated burglary and abduction.”
Assignment of Error No. 2
{14} “The Jury verdict finding defendant-appellant, Mr. Petefish, guilty of
aggravated burglary and abduction is against the manifest weight of the evidence.”
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{15} Appellant’s two assignments of error challenge the sufficiency and the
manifest weight of the evidence; because the facts and testimony concerned in each
assignment are identical the two assignments will be addressed together.
{16} A challenge to the sufficiency of the evidence tests whether the state
has properly discharged its burden to produce competent, probative, evidence on
each element of the offense charged. An inquiry into sufficiency focuses on whether
any rational trier of fact, viewing the evidence in the light most favorable to the
prosecution, could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus. In contrast, a challenge to the manifest weight of the
evidence addresses not the mere existence of evidence on each element, but the
effect of that evidence in inducing belief. State v. Thompkins (1997), 78 Ohio St. 3d
380, 387, 678 N.E.2d 541. Even where a reviewing court finds a verdict is supported
by sufficient evidence, the same verdict may be found to be against the manifest
weight of the evidence. Id. To evaluate the manifest weight of the evidence, an
appellate court reviews 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 reversed and a new trial ordered.
The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against conviction.’” Id. at
387, quoting State v. Martin (1983), 20 Ohio App. 3d 172, 175, 485 N.E.2d 717. The
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“[w]eight of the evidence concerns ‘the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other * * *
the party having the burden of proof will be entitled to their verdict, if [the jury], on
weighing the evidence in their minds, * * * shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight is not a
question of mathematics * * *’” (Emphasis sic.) Thompkins at 387. Although the
reviewing court is sometimes described as “the thirteenth juror” when conducting this
review; the weight to be given the evidence and the credibility of the witnesses are
still primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St. 2d
230, 227 N.E.2d 212, paragraph one of the syllabus.
{17} In this case Appellant was charged on three counts. The first count
constituted a violation of 2911.11(A)(2)(B), aggravated burglary, by trespassing in an
occupied structure as defined by R.C. 2909.01(C), while in possession of a deadly
weapon or ordnance in violation of R.C. 2923.11, a first degree felony. The second
and third counts are violations of R.C. 2905.02(A)(2)(C), abduction: one count with
regard to Bette, and one count with regard to Melissa, a minor, both third degree
felonies.
{18} Ohio Revised Code Section 2911.11 reads in pertinent part: “[n]o
person, by force, stealth, or deception, shall trespass in an occupied structure * * *
when another person other than an accomplice of the offender is present, with
purpose to commit in the structure * * * any criminal offense, if any of the following
apply * * * (2) The offender has a deadly weapon or dangerous ordnance on or about
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the offender’s person or under the offender’s control.” Pursuant to R.C. 2923.11, a
deadly weapon is defined as “any instrument, device, or thing capable of inflicting
death, and designed or specially adapted for use as a weapon, or possessed,
carried, or used as a weapon.” Finally, R.C. 2905.02(A)(2) and (C) provide, in part:
“No person, without privilege to do so, shall knowingly do any of the following: * * * (2)
By force or threat, restrain the liberty of another person under circumstances that
create a risk of physical harm to the victim or place the other person in fear; * * * (C)
Whoever violates this section is guilty of abduction, a felony of the third degree.”
(A) Sufficiency of the Evidence
{19} Appellant attacks the sufficiency of the evidence with regard to two
elements of the burglary charge, trespass and use/possession of a deadly weapon,
and on the restraint element of the abduction charge.
(1) Trespass
{20} Appellant’s argument that the state failed to present sufficient evidence
establishing the trespass element of burglary rests on the fact that his testimony
conflicts with testimony of other witnesses concerning the extent of his privileges in
Bette’s apartment. It is undisputed that over the years since the end of their marriage
Bette sometimes allowed Appellant to sleep in her place of residence. Bette also
allowed Appellant to shower and eat when necessary, and to store some seasonal
possessions, e.g. golf clubs, that he was unable to carry with him. It is equally
undisputed that Bette required Appellant to follow rules, including abstaining from
alcohol, when he stayed with her, and that he was required to leave when she asked.
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The parties also agree that the apartment is an occupied structure; that Appellant’s
name does not appear on the lease; that Appellant does not pay rent, utilities, or
make regular contributions to the household; and that Appellant does not have his
own set of keys and is unable to come and go without making prior arrangements
with Bette. Appellant admits he receives mail at his mother’s house, not the
apartment. The record also reflects that he sleeps in a variety of places other than
the apartment, including the woods.
{21} Bette testified that on the day of the incident she told Appellant he had
to leave and left the apartment with her daughter for a family party. When Bette and
her daughter returned to the apartment expecting it to be empty, they instead found
Appellant, drunk, and the apartment in disarray. Bette told Appellant to leave, he
became angry, and initially left, taking her daughter’s cell phone with him. Appellant
returned almost immediately, pushed his way into the apartment, picked up two
knives, refused to leave, and prevented Bette and her daughter from leaving.
{22} As we have previously noted, “[a] trespass may occur even after lawful
entry onto the premise if the privilege to remain on the premises has been terminated
or revoked.” State v. Keyes, 7th Dist. Case No. 08 CO 11, 2008-Ohio-6592 ¶24
(finding the quoted instruction concerning revocation proper.) Even where a
revocation of a privilege is not explicit, the termination of the privilege to remain may
be inferred. State v. Steffen (1987), 31 Ohio St. 3d 111, 115, 509 N.E.2d 383.
(“Under the circumstances of this case, even assuming lawful initial entry, the jury
was justified in inferring from the evidence that appellant's privilege to remain in [the
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victim's] home terminated the moment he commenced his assault on her.”) Here, as
in Keyes, there was an actual revocation of privilege and there is no need to resort to
inference of revocation. See State v. Morton, 147 Ohio App. 3d 43, 2002-Ohio-813,
768 N.E.2d 730, ¶38, 51. The fact that Appellant was allowed to store property in the
apartment, had conditional privileges within the property, and may have hung
pictures for Bette or performed other minimal maintenance does not alter her ability
to verbally terminate any privilege to remain. The instruction given the jury on the
trespass element, without objection, was that “[a] spouse may be criminally liable for
trespass and/or burglary in the dwelling of the other spouse who is exercising
custody or control over that dwelling.” (Tr. Vol. III, p. 622.)
{23} Appellant cites Radvansky v. City of Olmstead Falls, 2005 Fed. App.
0024P, 395 Fed. 3d 291 (6th Cir. 2005) for the proposition that a tenant cannot be
prosecuted for trespassing in the leased property, in support of his argument.
Radvansky addresses a situation where a tenant was arrested and indicted without
probable cause. Mr. Radvansky had a verbal rental agreement whereby he paid
$450 a month to share the common areas of a house, excluding his separate locked
bedroom, with the homeowner. Mr. Radvansky was current through April, but $60
dollars short on his May rent. While he was out of town in early May, the owner
changed the locks. When he returned to the property he made multiple attempts to
enter and retrieve property.
{24} On Mr. Radvansky’s third attempt he broke a window and screen to
crawl into the house. A neighbor saw him and called the police who responded to a
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burglary in progress. Mr. Radvansky was arrested on the premises, “[d]espite the
officers’ pre-existing knowledge that he was currently involved in a dispute with his
landlord, his repeated protestations that he lived there, undisputed documentary
evidence which supported his claim [including his mail to that address], and the
presence of his personal property, clothing and furnishings within the house.” Id. at
269; see also 300-301; 304; 307. The Sixth Circuit found that a month-to-month
tenancy had been created by payment and acceptance of rent, and that under the
circumstances the information relied on by the arresting officers did not constitute
probable cause. Id. at 304. The fact that Mr. Radvansky was a bona fide rent-paying
tenant was dispositive.
{25} None of the circumstances and indicia that supported Mr. Radvansky’s
claim of tenancy exist in the matter at bar. Appellant has failed to establish any legal
right to the property that would prevent Bette’s testimony from establishing the
elements of trespass. The jury was instructed on the elements of trespass and the
testimony at trial addresses those elements. Appellant’s argument as to the
credibility of Bette’s testimony and the fact that his own testimony differs is relevant
only to the weight of that testimony, not the question of whether it is sufficient to
establish the elements of the offense. We hold that the state’s evidence is sufficient
as to the trespass element.
(2) Deadly weapon.
{26} Appellant makes two arguments concerning the element regarding his
deadly weapons charge. First, Appellant concedes that he placed two knives in his
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pockets, but argues that the knives are not in and of themselves deadly weapons.
Appellant’s argument is without merit. State’s exhibit two clearly indicates Appellant
had two knives, one in his back right pocket and the second labeled: “FROM HIS
RIGHT CARGO POCKET, A SWITCHBLADE WITH A CLIP VISIBLE.” (State’s Exh.
2, p. 2.) As detailed below, a switchblade is a deadly weapon within the meaning of
R.C. 2911.11, because although not all knives are automatically classified as
weapons, the fact that a switchblade is spring mounted and may be deployed with
one hand places it in the category of “any instrument * * * designed or specially
adapted for use as a weapon.” R.C. 2923.11.
{27} In determining the types of knives that constitute deadly weapons, a
number of courts have found R.C. 2923.20 instructive. The code section, captioned:
“Unlawful transactions in weapons,” prohibits the manufacture of, possession of, and
sale or furnishing “to any person other than a law enforcement agency for authorized
use in police work, any brass knuckles, cestus, billy, blackjack, sandbag, switchblade
knife, springblade knife, gravity knife, or similar weapon.” R.C. 2923.20. (See, e.g.
In re Gochneaur, 11th Dist. No. 2007-A-0089, 2008-Ohio-3987, ¶19, where the court,
citing the statute, concluded “knives opening easily with one hand may be considered
(for obvious reasons), as being designed or adapted for use as weapons.” See also,
State v. Cattledge, 10th Dist. No.10AP-105, 2010-Ohio-4953, inter alia).
{28} Several other appellate courts have found that switchblades are
weapons per se. A switchblade knife, by virtue of its spring-loaded action, is by
definition adapted for use as a weapon. State v. Johnson, 8th Dist. No. 81299, 2003-
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Ohio-4177, at ¶23 (where the knife was “a pocket knife which required both hands to
open” and “not a switch blade,” the state had to present evidence that it was
designed or adapted for use as a weapon); see also State v. Mullins (Dec. 2, 1981),
1st Dist. No. C–810093, 1981 WL 10140 at *4-5 (the fact that “a switchblade knife
can be used as a toothpick” does not remove it from the statutory category of
“designed or specifically adapted for use as a weapon”); and former R.C. 2923.021
(prohibiting possession of ‘any knife fitted with a mechanical device for automatic
release of the blade, opening the knife and locking the knife in the open position,
commonly known as a switch or automatic spring knife’),” as well as State v.
Totarella, 11th Dist. No. 2002-L-147, 2004-Ohio-1175, ¶60 (in which the court also
found that a switchblade was a deadly weapon).
{29} It appears that no court in the state has determined that a switchblade
is not a weapon. In fact, some courts have held that switchblades are, per se,
deadly. The court in State v. Orlett (1975), 44 Ohio Misc. 7, 335 N.E.2d 894
elaborated: “It is further acknowledged that some weapons are per se deadly.
Others, owing to the manner in which they are used, become deadly. A gun, pistol or
switchblade knife are per se deadly. Other weapons can become deadly and
assume deadly character depending upon the manner and circumstances of their
use. There is a question of fact presented in such cases and where such a question
exists, the fact must be resolved by either the jury or the court. In determining
whether an instrument not inherently ‘deadly’ or dangerous assumes these
characteristics, the court may consider the nature of the weapon, the manner of its
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use, the actions of the user, the intent and the mind of the user and the capability of
the instrument to inflict death or serious bodily harm.” Id. at 9. See also State v. Ash,
(May 3, 1979), 8th Dist. No. 38808, (“For purposes of R.C. 2923.11(A), there are two
types of weapons: those which are per se deadly, such as a gun, pistol, or
switchblade knife; and those which can become deadly and assume deadly character
depending upon the manner and circumstances of their use.”) The presence of a
switchblade in a jacket pocket is sufficient to support a conviction for concealing a
deadly weapon in violation of R.C. 2923.12. State v. Simpson (May 22, 1985), 1st
Dist. No. C-840597.
{30} Appellant never disputes that one of the two knives in question is a
switchblade. In fact, Appellant never mentions or addresses that detail, instead
repeatedly referring to it as a “pocket knife” and maintaining that a pocket knife is not
a weapon. Appellant relies on State v. Cathel (1998), 127 Ohio App. 3d 408, 713
N.E.2d 52, mis-citing the case as standing for the proposition that “[c]ircumstances
cannot transform a pocket knife into a weapon.” (Appellant’s Brf., p. 11.) The Ninth
District’s decision actually focused on the fact that although “[t]here is no dispute that
the knife in question is capable of inflicting death,” the pocket knife in that instance
took two hands to open and “was neither a switch or other spring-loaded blade, nor a
gravity blade capable of instant one-handed operation, and differs only in its
somewhat greater length from the familiar type of clasp knife carried as a useful tool
by thousands.” Id. at 411, 413 citing State v. Anderson, 2 Ohio App. 3d 71, 440
N.E.2d 814. The circumstances to which the court refers are those surrounding the
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reasons Mr. Cathel was detained by police and his knife discovered. The Cathel
court concluded, contrary to Appellant’s argument, that although neither hiding from
the police in the early morning hours, nor walking down the street in the early
morning hours (the reasons the defendant was detained) could convert possession of
a folding knife into possession of a deadly weapon, there may exist other
circumstances that could. The fact that the knife Appellant carried, unlike the knives
at issue in Cathel and Anderson, is a switchblade, similar to the knives involved in
Orlett, Simpson, Ash, Totarella, Mullins, Johnson, leads us to find that it is a “deadly
weapon” within the meaning of R.C. 2911.11(A)(2).
{31} Appellant’s second argument concerning the deadly weapon element
focuses on the language of R.C. 2911.11(A)(2). Appellant claims that the statute
requires that the deadly weapon actually be used, not merely carried or possessed,
during the commission of the crime and that its use must be proved beyond a
reasonable doubt. This conclusion is contrary to the plain language of the statute as
well as the very authority cited by Appellant. The statute reads in the disjunctive. A
violation occurs when “[t]he offender has a deadly weapon or dangerous ordnance
on or about the offender’s person or under the offender’s control.” R.C.
2911.11(A)(2).
{32} When the statute was revised in 1973 to consolidate ten separate
breaking and entering offenses into three, the legislature identified the relative
potential for harm as the distinguishing factor among the consolidated offenses. It is
due to the focus on the potential for physical harm that aggravated burglary, which
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“carries the highest degree of risk that someone may be harmed,” “is the most
serious of the three breaking and entering offenses in the new code” because it is
committed by an offender who possesses or controls a deadly weapon or dangerous
ordnance. R.C. 2911.11, LSC Note 1973. The plain language of the statute tracks
the intent of the legislature: the mere possession of a deadly weapon on the person
when unlawfully entering an occupied structure increases the risk of harm to persons,
therefore, it is possession during commission that the enhanced penalty is designed
to deter.
{33} Possession of a deadly weapon is sufficient to satisfy R.C.
2911.11(A)(2), (B). The fact that Appellant never “brandished” the weapon is
irrelevant. Once Appellant has conceded he possessed the knives, the only relevant
question is whether the knives in question are “deadly weapons.” As discussed
above, the fact that one of the two “pocket knives” was, in fact, a switchblade, clearly
places the knife in the prohibited category. Hence, the state’s evidence is sufficient
as to this element.
(3) Abduction.
{34} Appellant’s only “sufficiency” argument with regard to abduction is to
challenge the testimony of Melissa and Bette as “self serving.” Questioning the
motivations of witnesses does not rise to the level of a sufficiency issue. The
relevant inquiry in sufficiency 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 (1991), 61
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Ohio St.3d 259, paragraph two of the syllabus. As Appellant’s own argument
concedes, the state offered probative testimony from both women that he forced his
way into the apartment, took a pair of knives, put them in his pockets, then forced his
way into the bedroom where they had retreated, stood over them, placed his hands
in his pockets where the knives were kept and repeatedly told them they could not
leave. (Tr. Vol. II, p. 355.) Bette further testified she thought at the time that he was
so drunk and in such a rage that either she or Melissa would be killed. (Tr. Vol. II, p.
357.) The testimony given by Melissa tracks that of her mother. Deputy Chaibi
further testified that when the two women met him at the apartment, they were
“terrified.” (Tr. Vol. III, p. 429.) The record of testimony in this instance does not
support a conclusion that the trier of fact lost its way. It is certainly sufficient to
establish the elements of the offense.
(B) Manifest weight of the evidence.
{35} “’Weight is not a question of mathematics, but depends on its effect in
inducing belief.’ (Emphasis sic.)” (Internal citations omitted.) State v. Barnhart, 7th
Dist. No. 09 JE 15, 2010-Ohio-3282, ¶24, quoting Thompkins, supra, at 387. The
weight to be given the evidence and the credibility of the witnesses are primarily for
the trier of fact to determine. State v. DeHass (1967), 10 Ohio St. 2d 230, 227 N.E.2d
212, paragraph one of the syllabus. The state’s case was supported by the
testimony of both victims, who were consistent with one another, consistent with their
statements at the scene, and consistent with their later discussions with Detective
Lodwick. The impressions of all the officers who responded to the call were of two
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extremely frightened women who were reluctant to leave their car when they knew
that Appellant was still inside the apartment, and who were reluctant to go to court
when they knew he would be there. As discussed above, the testimony presented by
the state established all elements of the crimes charged. Although Appellant
attempted in his testimony to suggest an alternative explanation for the events of the
day, the jury did not find this testimony persuasive. Credibility is an issue for the jury
and their decision is to be given due deference. There is nothing in the record, here,
to suggest that the fact finder lost its way. Appellant’s two assignments of error are
overruled.
Conclusion.
{36} Appellant’s two assignments of error, challenging the sufficiency and
the manifest weight of the evidence are overruled and the judgment of the trial court
is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.