State v. Gerde , 2017 Ohio 7464 ( 2017 )

[Cite as State v. Gerde, 2017-Ohio-7464.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2016-11-077
Plaintiff-Appellee, :
OPINION
: 9/5/2017
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:
MATTHEW ALLEN GERDE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2016-CR-00275
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Matthew Allen Gerde, appeals from his conviction in the
Clermont County Court of Common Pleas after a jury found him guilty of one count of
burglary. For the reasons outlined below, we affirm.
{¶ 2} On May 17, 2016, the Clermont County Grand Jury returned an indictment
charging Gerde with two counts of burglary in violation of R.C. 2911.12(A)(2), both second-
degree felonies. According to the bill of particulars, the first charge stemmed from
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allegations Gerde and a co-defendant, Thimothy Whittington, burglarized a residence located
at 1851 State Route 133 on May 5, 2016, whereas the second charge stemmed from
allegations Gerde and Whittington burglarized a residence located at 2954 Clermont Farm
Road on May 8, 2016. It is undisputed that both residences are located in Clermont County,
Ohio. As stated in the bill of particulars, the charges arose after Whittington provided a
confession that implicated both Gerde and himself in the May 5 and May 8 burglaries.
{¶ 3} The matter ultimately proceeded to a three-day jury trial that concluded on
October 5, 2016. Following deliberations, the jury returned a verdict finding Gerde guilty of
burglarizing the residence located on State Route 133, but not guilty of burglarizing the
residence located on Clermont Farm Road. The trial court then held a sentencing hearing
and sentenced Gerde to serve three years in prison. The trial court also notified Gerde that
he was subject to three years of mandatory postrelease control.
{¶ 4} Gerde now appeals from his conviction, raising three assignments of error for
review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ALLOWING THE
JAIL CALL BETWEEN APPELLANT AND HIS MOTHER.
{¶ 7} In his first assignment of error, Gerde argues the trial court erred by admitting a
recording of two jailhouse phone calls between himself and his mother. We disagree.
{¶ 8} Although Gerde argues that a de novo standard of review applies, it is well-
established that we review a trial court's decision to admit or exclude evidence under an
abuse of discretion standard. State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-
Ohio-5202, ¶ 14. In such instances, "[a] reviewing court should not disturb evidentiary
decisions in the absence of an abuse of discretion that has created material prejudice." Id.,
citing State v. Smith, 12th Dist. Fayette No. CA2007-10-035, 2008-Ohio-5931, ¶ 33. An
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abuse of discretion connotes more than an error of law or judgment; it implies that the trial
court's decision was unreasonable, arbitrary, or unconscionable. State v. Grindstaff, 12th
Dist. Clermont No. CA2013-09-074, 2014-Ohio-2581, ¶ 21. A decision is unreasonable when
it is "unsupported by a sound reasoning process." State v. Abdullah, 10th Dist. Franklin No.
07AP-427, 2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St. 3d 157, 161 (1990).
{¶ 9} Gerde initially claims the recording of the jailhouse phone calls between himself
and his mother should have been excluded as inadmissible hearsay. However, after a
simple review of the record, and just as the trial court found, it is clear the jailhouse phone
calls at issue were not hearsay, but instead, non-hearsay admissions by a party-opponent
under Evid.R. 801(D)(2). Pursuant to that rule, a statement is not hearsay if "[t]he statement
is offered against a party and is * * * the party's own statement, in either an individual or a
representative capacity[.]"
{¶ 10} Gerde claims Evid.R. 801(D)(2) is inapplicable to the recordings at issue since
"[n]othing in his statements [to his mother] were an admission." But, as this court has stated
previously, while the term "admission" appears to imply that the out-of-court statement must
be a confession or statement against interest, "'in actuality, any prior statement of a party is
admissible providing it is offered against the party at trial.'" State v. Baker, 137 Ohio App. 3d
628, 652 (12th Dist.2000), quoting Weissenberger's Ohio Evidence (1998) 367, Section
801.33. Such is the case here for the record makes clear the recording at issue was offered
merely to discredit Gerde's alleged timeline of events regarding the burglary at the Clermont
Farm Road residence. Gerde's claim otherwise lacks merit.
{¶ 11} Gerde next claims the recording was unfairly prejudicial, thereby requiring its
exclusion under Evid.R. 403(A). As stated in that rule, evidence, even when relevant, "is not
admissible if its probative value is substantially outweighed by the danger of unfair
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prejudice[.]" Logically, "all evidence presented by a prosecutor is prejudicial." State v.
Wright, 48 Ohio St. 3d 5, 7 (1990). However, "not all evidence unfairly prejudices a
defendant. It is only the latter that Evid.R. 403 prohibits." State v. Skatzes, 104 Ohio St. 3d
195, 2004-Ohio-6391, ¶ 107. The trial court has broad discretion in balancing the probative
value against the danger of unfair prejudice. State v. Barnette, 12th Dist. Butler No. CA2012-
05-099, 2013-Ohio-990, ¶ 31, citing State v. Harcourt, 46 Ohio App. 3d 52, 55 (12th
Dist.1988).
{¶ 12} In support of this claim, Gerde argues the recording of the two jailhouse phone
calls unfairly prejudiced him since it called attention to the fact that he was in jail. However,
"a comment referring to a defendant being in jail is not per se a prejudicial remark." State v.
Ellis, 10th Dist. Franklin No. 05AP-800, 2006-Ohio-4231, ¶ 21. That is particularly true here
considering there was extensive evidence elicited at trial indicating Gerde was in jail,
including from Gerde's own defense counsel. The record also indicates the trial court
provided the jury with a limiting instruction, wherein the trial court specifically instructed the
jury that "the fact that these calls were made from the county jail may not be considered by
you for any reason whatsoever." There is a presumption "that the jury has followed the
instructions given to it by the trial court." State v. Jones, 135 Ohio St. 3d 10, 2012-Ohio-5677,
¶ 194. Gerde's claim otherwise is without merit.
{¶ 13} Gerde also argues the recording of the jailhouse phone calls between himself
and his mother unfairly prejudiced him because it highlighted a possible alibi defense that he
did not pursue at trial. As to this claim, Gerde points to an exchange with his mother wherein
he stated "I can prove I wasn't with them. I can prove that I was with you on Mother's Day."
However, as aptly noted by the state, Gerde's statements refer only to the burglary of the
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Clermont Farm Road residence.1 The jury found Gerde not guilty of this charge. Gerde,
therefore, cannot demonstrate any resulting prejudice by the admission of this portion of the
recording of the jailhouse phone calls. It is well-established that reversal is warranted only on
a showing of prejudice to the accused. State v. Layton, 6th Dist. Lucas No. L-90-345, 1992
Ohio App. LEXIS 843 (Feb. 28, 1992).
{¶ 14} In light of the foregoing, having found no merit to any of the arguments Gerde
raised herein, we find the trial court did not err by admitting into evidence the recording of the
two jailhouse phone calls between Gerde and his mother. Therefore, because we find no
error in the trial court's decision, Gerde's first assignment of error is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE JURY ERRED BY FINDING APPELLANT GUILTY WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION.
{¶ 17} In his second assignment of error, Gerde argues his burglary conviction was not
supported by sufficient evidence. We find no merit to Gerde's claim.
{¶ 18} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt beyond a reasonable doubt. State
v. Intihar, 12th Dist. Warren No. CA2015-05-046, 2015-Ohio-5507, ¶ 9. The relevant inquiry
is "whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
In other words, the test for sufficiency requires a determination as to whether the state has
met its burden of production at trial. State v. Braden, 12th Dist. Preble No. CA2013-12-012,
1. In 2016, Mother's Day was celebrated on Sunday, May, 8, the same day Gerde was alleged to have
burglarized Clermont Farm Road residence.
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2014-Ohio-3385, ¶ 11.
{¶ 19} As noted above, the jury found Gerde guilty of burglarizing the residence
located on State Route 133 in violation of R.C. 2911.12(A)(2). Pursuant to that statute, no
person, by force, stealth, or deception, shall trespass in 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." As defined by R.C. 2909.01(C)(1), the term "occupied structure" includes,
among other things, any "house" that "is maintained as a permanent or temporary dwelling,
even though it is temporarily unoccupied and whether or not any person is actually present."
In analyzing whether a building is an "occupied structure" under R.C. 2909.01(C)(1), this
court has found "the relevant inquiry focuses on the nature for which the building is used, not
the length of a temporary absence." State v. Jackson, 12th Dist. Butler Nos. CA2005-02-033
and CA2005-03-051, 2006-Ohio-1147, ¶ 34.
{¶ 20} Gerde argues his conviction must be reversed because the State Route 133
residence was not an "occupied structure" that served as a "permanent or temporary
habitation" because nobody was living on the property at the time the burglary occurred since
the home was then undergoing extensive renovations. We disagree.
{¶ 21} Contrary to Gerde's claim, while it is true that nobody was then living on the
property, the mere fact that the home did not have a tenant or owner living in the home at the
time the burglary occurred does not mean that the home was unoccupied. State v. Braden,
12th Dist. Preble CA2013-12-012, 2014-Ohio-3385, ¶ 18. This is true even where the home
is undergoing extensive renovations for "[e]ven homes undergoing major renovations have
been found to be occupied structures." State v. Johnson, 188 Ohio App. 3d 438, 2010-Ohio-
3345, ¶ 18 (2d Dist.); see, e.g., State v. Woodruff, 6th Dist. Lucas No. L-04-1125, 2005-Ohio-
3368, ¶ 7-8 (home that was uninhabitable while undergoing major renovations still met the
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definition of an occupied structure). That is because "the definition of 'occupied' in the
Revised Code is far broader than in ordinary usage." Johnson at ¶ 20 (residence that had no
actual tenant or owner living in the home because it was being renovated was still an
occupied structure).
{¶ 22} In this case, at the time the burglary occurred, the State Route 133 residence
was an "occupied structure" as that term is defined by R.C. 2909.01(C)(1). As the record
indicates, the property had not been abandoned, nor had it been without a tenant for a
prolonged period of time, the prior tenants having moved out a mere two months before the
burglary occurred. Moreover, due to the extensive nature of the renovations to the property,
it is apparent that the property owner intended to maintain the home as a temporary or
permanent habitation for either himself or another tenant after the renovations were
complete. In fact, as the property owner even testified, once the renovations to the property
were complete, he intended to "either use it recreationally [as a weekend country house] or
rent it out again depending on how much we use it." Therefore, Gerde's claim that the home
was not an "occupied structure" that served as a "permanent or temporary habitation" is
without merit.
{¶ 23} Gerde also argues his conviction must be reversed because there was no
evidence any other person, besides his co-defendant, Whittington, was present or likely to be
present at the time the burglary occurred. We again disagree.
{¶ 24} Although the term "likely" connotes something more than a mere possibility, it
also connotes something less than a probability or reasonable certainty. State v.
Pennington, 12th Dist. Warren. No. CA2006-11-136, 2007-Ohio-6572, ¶ 29. A person is
likely to be present when a consideration of all the circumstances would seem to justify a
logical expectation that a person could be present. Id. The fact that a permanent or
temporary habitation has been burglarized does not give rise to the presumption that a
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person was present or likely to be present. State v. Fowler, 4 Ohio St. 3d 16, 18-19 (1983).
Likewise, "[t]he fact that a dwelling is used as a residence is not, standing alone, sufficient to
show that someone is 'likely to be present' at the time of a burglary." State v. Jackson, 188
Ohio App. 3d 803, 2010-Ohio-1846, ¶ 9 (4th Dist.). Instead, the state must adduce specific
evidence that a person was present or likely to be present. Pennington at ¶ 28.
{¶ 25} The Ohio Supreme Court has held the "likely to be present" element is satisfied
where the structure is a permanent dwelling house that is regularly inhabited, the occupants
were in and out of the house on the day in question, and the occupants were temporarily
absent when the burglary occurred. State v. Kilby, 50 Ohio St. 2d 21, 23 (1977). On the
other hand, courts, including this one, have found insufficient evidence that the occupants of
a residence were likely to be present when they were absent for an extended period of time,
such as a vacation, and no one else was regularly checking on the house. See, e.g., State v.
Hibbard, 12th Dist. Butler Nos. CA2001-12-276 and CA2001-12-286, 2003-Ohio-707; State
v. Cantin, 132 Ohio App. 3d 808 (8th Dist.1999); and State v. Brightman, 2d Dist. Montgomery
No. 20344, 2005-Ohio-3173.
{¶ 26} Here, the record indicates R.T., the individual doing the renovations to the State
Route 133 residence, lived next door, grew crops on the property, and generally managed
the farm land where the property was located. According to the property owner, R.T. was at
the State Route 133 residence "[p]robably everyday except for the weekends," a sentiment
that was confirmed by R.T. himself who testified he was "in and out [of the property] every
day." In fact, as R.T. testified, he had been at the State Route 133 residence for several
hours on the morning of May 5, 2016, the day the State Route 133 burglary occurred, from
approximately 9:00 a.m. to either noon or 1:00 p.m., with intentions of returning to the
property later that evening. It is undisputed that the burglary of the State Route 133
residence occurred shortly after R.T. left the property at approximately 3:00 p.m. Another
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neighbor, G.S., testified that R.T. was "always up there" at the State Route 133 property.
The state, therefore, provided sufficient evidence that a person, R.T., not merely Gerde's co-
defendant, Whittingham, was present or likely to be present at the time the burglary occurred.
{¶ 27} After a thorough review of the record, we find the state presented sufficient
evidence to support Gerde's conviction for burglarizing the State Route 133 residence.
Therefore, because we find sufficient evidence to support Gerde's burglary conviction,
Gerde's second assignment of error is overruled.
{¶ 28} Assignment of Error No. 3:
{¶ 29} THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 30} In his third assignment of error, Gerde argues his burglary conviction was
against the manifest weight of the evidence. We again find no merit to Gerde's claim.
{¶ 31} Unlike a challenge to the sufficiency of the evidence, a manifest weight of the
evidence challenge examines the "inclination of the greater amount of credible evidence,
offered at a trial, to support one side of the issue rather than the other." State v. Barnett,
12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a
conviction is against the manifest weight of the evidence, the reviewing court must look at the
entire record, weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether in resolving the 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. State v. Graham, 12th Dist. Warren No. CA2008-
07-095, 2009-Ohio-2814, ¶ 66. However, while appellate review includes the responsibility to
consider the credibility of witnesses and weight given to the evidence, these issues are
primarily matters for the trier of fact to decide. State v. Goodwin, 12th Dist. Butler No.
CA2016-05-099, 2017-Ohio-2712, ¶ 24. An appellate court, therefore, will overturn a
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conviction due to the manifest weight of the evidence only in extraordinary circumstances
when the evidence presented at trial weighs heavily in favor of acquittal. State v. Thompkins,
78 Ohio St. 3d 380, 386 (1997).
{¶ 32} Gerde claims his conviction must be reversed because Whittington's testimony
implicating Gerde in the burglary of the State Route 133 residence was not credible,
oftentimes contradictory, and inconsistent. However, while there may be some question as
to Whittington's credibility, "[a]s the trier of fact is in the best position to judge the credibility of
the witnesses, we will not disturb the [jury's] finding in regard to which version of events was
credible, and which was not." State v. Bonner, 12th Dist. Butler No. CA2012-09-195, 2013-
Ohio-3670, ¶ 13. Moreover, as the trier of fact, the jury was free to believe all, part of, or
none of Whittington's testimony. See State v. Widmer, 12th Dist. Warren No. CA2011-03-
027, 2012-Ohio-4342, ¶ 107. "[A] conviction is not against the manifest weight of the
evidence simply because the trier of fact believed the prosecution testimony." State v.
Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.
{¶ 33} In so holding, we note that Gerde's conviction was not based solely on
Whittington's testimony asserting Gerde was a part of the burglary of the State Route 133
residence. Rather, the state introduced evidence from several witnesses who placed Gerde
at the scene at the time the burglary occurred. In fact, although he could not identify Gerde
specifically, one witness testified that he saw someone who fit Gerde's build around the
property at the time the burglary occurred. There was also evidence that a footprint matching
that of Gerde's boot was discovered within the State Route 133 residence. Therefore, as this
is not one of those extraordinary cases where the evidence presented at trial weighed heavily
in favor of acquittal, Gerde's third assignment of error lacks merit. This is true despite the
fact that the jury found Gerde not guilty of burglarizing the Clermont Farm Road residence as
that offense was based on separate, and admittedly weaker evidence introduced by the
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state. Therefore, because Gerde's conviction for burglarizing the State Route 133 residence
was not against the manifest weight of the evidence, Gerde's third assignment of error is
overruled.
{¶ 34} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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