State v. Sherman , 2021 Ohio 4532 ( 2021 )

[Cite as State v. Sherman, 2021-Ohio-4532.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-541
(C.P.C. No. 19CR-3617)
v. :
(REGULAR CALENDAR)
Patrick R. Sherman, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 23, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and
Michael P. Walton, for appellee.
On brief: Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Patrick R. Sherman, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of
attempted burglary, aggravated arson, and menacing by stalking. For the following
reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed July 25, 2019, plaintiff-appellee, State of Ohio, charged
Sherman with one count of attempted burglary in violation of R.C. 2923.02 and 2911.12, a
third-degree felony; one count of aggravated arson in violation of R.C. 2909.02, a second-
degree felony; and one count of menacing by stalking, in violation of R.C. 2903.211, a
fourth-degree felony. Sherman entered a plea of not guilty.
No. 20AP-541 2
{¶ 3} At a trial beginning October 5, 2020, T.J. testified that she began dating
Sherman in December 2016 or January 2017. By September 2017, T.J. said Sherman
moved in with her and her daughter at Varden Court. After learning that Sherman had
been unfaithful, T.J. said she ended her relationship with Sherman and that he moved out
of her home in June or July 2018. A short time later, T.J. and Sherman reconciled.
However, T.J. testified that she learned in November 2018 that Sherman was still being
unfaithful so she again ended their relationship. In the days following their breakup, T.J.
said Sherman made threatening phone calls to her. T.J. said Sherman demanded she
return his property, though she testified she did not have any of his property at her home.
{¶ 4} On November 27, 2018, T.J. said that Sherman called her and told her he
would "go ballistic" on her. (Tr. Vol. 2 at 278.) A few days later, T.J. said Sherman called
again and demanded his property, threatening to "snap [her] neck" if she did not return it.
(Tr. Vol. 2 at 279.) After that second phone call, T.J. called the police. An officer with the
Columbus Division of Police responded and took a report on December 1, 2018.
{¶ 5} Subsequently, T.J. testified she obtained a civil protection order against
Sherman. However, when T.J. did not attend a follow-up hearing, the order lapsed. T.J.
testified she did not attend the follow-up hearing because Sherman had been arrested by
that time and was in prison.
{¶ 6} In June 2019, T.J. said Sherman contacted her to inform her he had been
released from prison and wanted to come "home" to T.J.'s residence. (Tr. Vol. 2 at 287.)
T.J. testified that she told Sherman he was not welcome at her residence and that it was
time for him to move on with his life. After his release from prison, T.J. said she received
regular phone calls from Sherman.
{¶ 7} In late June 2019, T.J. said Sherman came to her residence uninvited,
blocking T.J.'s driveway with the pickup truck he was driving. T.J. testified she spoke to
Sherman in the driveway and that Sherman kept asking her whether she had a new
boyfriend. When T.J. refused to answer the question, she said Sherman told her he had
something for her in his truck and showed her a red gas container in the back of the truck.
T.J. testified that Sherman told her that he kept the gas container just for her and that if he
ever saw her with another man, he would "make [her] unrecognizable." (Tr. Vol. 2 at 291.)
This encounter left T.J. feeling "[t]hreatened, unsafe, [and] alarmed." (Tr. Vol. 2 at 291.)
No. 20AP-541 3
{¶ 8} A few days after the encounter in her driveway, T.J. said Sherman called her
again asking to come collect his property that he believed was at her house. T.J. said
Sherman told her that if she did not return his belongings to him, he "was going to come
and set the apartments on fire." (Tr. Vol. 2 at 292.) Additionally, T.J. said Sherman told
her he would start another fire at the other end of her apartment complex so it would not
be obvious that she was the target.
{¶ 9} T.J. said Sherman then began making repeated phone calls to her with
increasing frequency, testifying he called her up to 125 times in one day starting in July
2019. The phone calls would appear on her phone as "no-caller ID" or as random numbers
based in Mansfield, Ohio, a location T.J. associated with Sherman. (Tr. Vol. 2 at 293.) T.J.
reported the activity to police on July 1, 2019. Officer Janetta Place responded to take a
report and, while Officer Place was with T.J., Sherman called again. Officer Place spoke
directly to Sherman and told Sherman that T.J. did not want to hear from him again and
that Sherman should stop calling. After Sherman told Officer Place he wanted to get his
property back from T.J., Officer Place told Sherman his recourse was to go through the civil
process of recovering property. Even after Officer Place's conversation with Sherman, T.J.
said that Sherman continued to call her repeatedly. T.J. said Sherman always had multiple
cell phones at any given time.
{¶ 10} Around 2:00 a.m. on July 11, 2019, T.J. said her daughter woke her up to tell
her someone was trying to kick in the front door. T.J. testified she heard a "blunt thud
hitting the front door," so she grabbed a firearm she kept in her nightstand and her cell
phone and told her daughter to hide in the closet. (Tr. Vol. 2 at 303.) T.J. testified she
bought the firearm in the summer of 2018 because Sherman had been making her feel
unsafe. T.J. said she joined her daughter in the closet and called 911 to report someone
trying to break into her residence. This first 911 call was placed at 2:02 a.m. Eventually,
T.J. said she left the closet to see who was continually hitting the front door. When she
looked out the window, T.J. said she could see Sherman standing on her front porch.
{¶ 11} T.J. testified she then ran back to the closet to get her daughter, and the two
of them went into the bathroom where she called 911 again and told the dispatcher to hurry.
The second 911 call occurred at 2:20 a.m. T.J. said she could hear more thudding on the
front door, a jingling of the front door handle, and banging sounds against her daughter's
No. 20AP-541 4
bedroom window. Additionally, T.J. testified she could smell gasoline throughout her
residence at this time.
{¶ 12} Columbus Division of Police Officer Alex Zamora responded to the scene after
initially responding to an incorrect address. Officer Zamora testified that the front door
appeared to be smoking and had a large black burn mark on it. Additionally, the door mat
was charred and burning. Officer Zamora said one of the windows at the residence
appeared to have a shimmering substance on it with a paper towel on the ground beneath
it. There was also a light on the exterior of the residence that had been tampered with and
was no longer functional. T.J. testified that, prior to that evening, her exterior light had
been in proper working order.
{¶ 13} Firefighter Lew Smith, with the Columbus Division of Fire, also responded to
the scene with an ignitable liquids detection canine. The ignitable liquids canine alerted to
the presence of an ignitable liquid on multiple areas of the residence, including the front
door mat and the window. Smith testified he took samples and swabs from the areas where
the canine had alerted. Subsequent forensic analysis of the samples tested positive for the
presence of gasoline.
{¶ 14} Derrick Young, an investigator with the Columbus Division of Fire, testified
that his investigation indicated the fire was not caused by natural occurrences or accidental
means. Young explained that the fire was short lived and that an additional fuel source was
present. Additionally, Young testified that T.J. received two calls from the same phone
number shortly before T.J.'s 911 calls. Young testified the phone number that had called
T.J. was from a location consistent with known locations for Sherman. That same phone
number also placed two additional phone calls to T.J.'s phone around 2:00 a.m. using a
caller ID blocking feature.
{¶ 15} Over the objection of Sherman's counsel, the trial court admitted into
evidence a letter that Sherman had written and attempted to mail to Kenyon Selman while
Sherman was incarcerated and awaiting trial. Scott Thompson, an investigator for the Ohio
Department of Rehabilitation and Correction, read the letter as follows:
Man Unc, listen to me. I wrote you another letter. It was too
emotional, so I am rewriting you now. Look, I need the
witnesses' names ASAP. If you can get in touch with Bernie
Davis, let him know that I need my quick and fast speedy trial,
No. 20AP-541 5
and I've been having people trying to contact him of the matter
to no avail. Also, I need this bitch who put the bogus case on
me, I need her clapped ASAP. I need her to be shot in her face
or even set up. Have one of them white girls get a rental, go up
to Columbus and have someone shoot up the rental. Give the
people her description and her plate number and have them
point her out and testify on that hoe. They say the only thing
that beats a double cross is a triple cross. Her address is * * *.
Dude, you can pull up to the spot, park right cross from her spot
and chill. Wait for her to pull out and get the plate number
description of her car. Her description or you can be a random
[derogatory term] and try to knock her off. She ain't nothing
by a homely thirsty hoe. She'll go knock her down and put it
down because she's trying to take my life all because her
feelings got hurt. She tried to control me and allow her ten-
year-old daughter have control over me, disrespect me and if I
buck, she denied me sex after I just came home from doing nine
years. That was degrading and I went for it over almost a year
because my PRC papers was on her house and the type person
she is she called if I left, and she did. So I tried to tough shit
out. Then she wanted me to get my own slot because her
daughter is a brat and we wasn't getting along because the more
the man lived to her, made her think that we wasn't [F word]
because she was trying to teach her that you're not supposed to
be sexting before marriage. Which I went along with her, but
the [little N word] used to keep a glass up against the wall so
she would listen intently. Once she found out her mom was
* * * getting dick, she would totally disrespect me. I'd respond
and go on a * * * pussy restriction for weeks until I swallow my
pride and apologize to the child for talking crazy to her. This
happened weekly. Then she kicked me out about a 22-year-old
who sent pics to my cell phone and she found, so then I went
back to Mansfield bumped into my girl and started rocking
with her. Now that I'm not begging and pleading for sex and to
come home, now she wants to contact me. But I'm in a whole
new relationship. But PRC is still on her crib. Once she found
out about by girl, all hell broke loose.
Look, get with my junior. His number * * *. You all figure out
how to smash this hoe. Her number is * * *. Don't call on your
phone. She is on some other shit. If you trying to reason with
her, let her know that I'm not going to come at her when I get
out if she gets off the hoe shit. Not over the phone, though. Ask
can you take her out for lunch or coffee. She wants to be a
classy person. Do not mention my name over the phone. Ask
No. 20AP-541 6
can you all meet in a public place somewhere to chat about
something. I'm stuck in here until the end of the year. All ready
about this bitch. She's trying to get me more than that * * *
man, I want this hoe knocked the fuck down. And when I get
out, I really wasn't coming after her. That's my word, Unc. But
I got something else for that bitch. Just like I wish I'd never
met her. She's going to feel the same way. This shit is fucked
up. And her complex it states is clearly under surveillance. The
only reason why I am locked now is because it was reportedly
not operational. Whatever that means. I had killer bee talking
to the hoe. She was all emotional on some BS. She said she
acted like she wasn't on it, but she came in here and straight got
down on me. I wasn't someone to knock a chunk out that fat
bitch's head. The world needs to eliminate people like her. She
doesn't play fair. She didn't want me until she found out I
actually had someone else. Now I'm over the fat bitch. Unc, I
ain't [gone drag] your ear. But I'll pay to get it done for sure.
You know I got you. I love you, Unc. Your favorite nephew P.
Give your mom a hug and kiss for me.
PS, you can let her know I put it in on my granddad Billy, I will
leave her completely alone if she gets off the bullshit. And as
far as for you, start checking on your people. You know my
grandma Ann been in the hospital for weeks. I can't even check
on her. Let the bitch know too if you can get a connection with
her.
(Tr. Vol. 2 at 414-19.)
{¶ 16} Following deliberations, the jury found Sherman guilty of all three offenses.
After an October 20, 2020 sentencing hearing, the trial court sentenced Sherman to an
aggregate term of ten to thirteen and one-half years in prison. The trial court journalized
Sherman's convictions and sentence in an October 21, 2020 judgment entry. Sherman
timely appeals.
II. Assignments of Error
{¶ 17} Sherman assigns the following errors for our review:
[1.] Patrick, Sherman was denied the right to a fair trial under
the Sixth and Fourteenth Amendment to the United States
Constitution and Article I, Sections 1, 10, and 16 of the Ohio
Constitutions when inflammatory and unfairly prejudicial
evidence was presented to the jury in violation of Ohio Evid. R.
403.
No. 20AP-541 7
[2.] The trial court erred when it denied Patrick Sherman's Rule
29 Motion for Acquittal.
[3.] The verdicts of guilt as to all three counts were against the
manifest weight of the evidence.
III. First Assignment of Error – Evidentiary Ruling
{¶ 18} In his first assignment of error, Sherman argues the trial court erred in
admitting into evidence the letter he wrote and attempted to mail to Selman while he was
incarcerated. Generally, the admission or exclusion of evidence lies in the sound discretion
of the trial court, and we will not disturb that decision absent an abuse of discretion. State
v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 16, citing State v. Issa, 93 Ohio
St.3d 49, 64 (2001). An abuse of discretion implies that the court's attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
{¶ 19} Sherman's argument under this assignment of error relates to the letter that
he wrote and attempted to mail to Selman while Sherman was in jail awaiting trial. The
letter, as noted above, included requests for the recipient to shoot and/or kill T.J., providing
her address and phone number. The letter also contained details of Sherman's relationship
with T.J. Sherman asserts the letter was unfairly prejudicial.
{¶ 20} Evid.R. 401 defines "relevant evidence" as "evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." However, Evid.R.
403(A) provides that "[a]lthough relevant, evidence is not admissible if its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or
of misleading the jury."
{¶ 21} As to the letter here, Sherman argues that any potential probative value of the
letter was minimal as it did not include an admission of his guilt. Instead, he construes the
letter as demonstrating his anger at being accused of the offenses but not as indicative of
his commission of the offenses. However, Sherman's entire defense was that he was not
the perpetrator of the offenses. Where a defendant disputes that he is the perpetrator,
"identity [is] squarely at issue." State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207,
¶ 118. The letter contained information establishing the relationship between Sherman and
No. 20AP-541 8
T.J. and showed Sherman's connection to Mansfield, the originating location of the
repeated phone calls T.J. received. Additionally, the letter included instructions for the
recipient to harm T.J., thus making her unavailable to testify against Sherman. " 'Evidence
of conduct designed to impede or prevent a witness from testifying is admissible to show
consciousness of guilt.' " State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, ¶ 28,
quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 68. Thus, the letter
contained relevant evidence on both the perpetrator's identity and on Sherman's
consciousness of guilt.
{¶ 22} Despite the letter's relevance, Sherman argues the trial court nonetheless
abused its discretion in admitting the letter into evidence because the danger of unfair
prejudice substantially outweighed the probative value of the evidence. " 'If unfair
prejudice simply meant prejudice, anything adverse to a litigant's case would be excludable
under Rule 403. Emphasis must be placed on the word "unfair." ' " State v. Crotts, 104
Ohio St.3d 432, 2004-Ohio-6550, ¶ 24, quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio
St.3d 169, 172 (2001). Thus, " '[u]nfair prejudice is that quality of evidence which might
result in an improper basis for a jury decision.' " Id., quoting Oberlin at 172. Evidence may
be unfairly prejudicial if it " 'arouses the jury's emotional sympathies, evokes a sense of
horror, or appeals to an instinct to punish.' " Id., quoting Oberlin at 172. Often, though not
always, evidence is unfairly prejudicial if it appeals to the jury's emotions rather than the
jury's intellect. Id. See also Worley at ¶ 125.
{¶ 23} Fairness is subjective and thus the determination whether evidence is
unfairly prejudicial is left to the sound discretion of the trial court. Crotts at ¶ 25, citing
State v. Robb, 88 Ohio St.3d 59, 69 (2000). The state argues the trial court appropriately
determined the probative value of the evidence outweighed the danger of unfair prejudice
and admitted the letter into evidence. Given the inflammatory statements in the letter,
Sherman asserts the letter is "arresting enough to lure a juror into a sequence of bad
character reasoning" and use that character reasoning as the basis for finding him guilty.
State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, ¶ 36. However, Sherman did not
seek to redact certain portions of the letter but instead sought to exclude the entire letter
from evidence. Having reviewed the record, we agree with the state that the letter was
highly probative as to Sherman's consciousness of guilt and was additionally probative as
No. 20AP-541 9
to the perpetrator's identity. See State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, ¶ 50
(" '[a]s the importance of the factual dispute for which the evidence is offered to the
resolution of the case increases, the probative value of the evidence also increases and the
risk of unfair prejudice decreases' ") (emphasis sic), quoting State v. Hartman, 161 Ohio
St.3d 214, 2020-Ohio-4440, ¶ 31.
{¶ 24} Additionally, we note the trial court provided an appropriate limiting
instruction related to the letter as follows:
Evidence was received about the incarceration and parole
status of the defendant in this case. That evidence was received
only for a limited purpose to explain where the Defendant may
have been located at certain times, how certain items were
obtained, et cetera. It was not received, and you may not
consider it, to prove the character of the defendant in order to
show that he acted in conformity with that character.
Testimony has been admitted indicating that the defendant
attempted to instruct someone to intimidate and/or murder
and/or tamper with a witness. You are instructed that this
alone does not raise a presumption of guilt, but it may tend to
indicate the defendant's consciousness of guilt. If you find that
the facts do not support that the defendant attempted to
instruct someone to intimidate and/or murder and/or tamper
with a witness or if you find that some other motive prompted
the defendant's conduct, or if you are unable to decide what the
defendant's motivation was, then you should not consider this
evidence for any purpose. However, if you find that the facts
support that the defendant engaged in such conduct and if you
decide that the defendant was motivated by a consciousness of
guilt, you may, but are not required to, consider that evidence
in deciding whether the defendant is guilty of the crimes
charged. You alone will determine what weight, if any, to give
to this evidence.
(Tr. Vol. 3 at 617-18.) A jury is presumed to follow the instructions of the court, including
limiting instructions. State v. Hicks, 10th Dist. No. 18AP-883, 2020-Ohio-548, ¶ 23, citing
State v. Shipley, 10th Dist. No. 12AP-948, 2013-Ohio-4055, ¶ 62. The limiting instruction
provided here mitigated any danger that the jury would unfairly consider the letter as proof
of Sherman's bad character or that he acted in accordance therewith. Hicks at ¶ 22-23.
No. 20AP-541 10
{¶ 25} Thus, we find the trial court did not abuse its discretion in determining the
probative value from the letter outweighed any potential prejudice. See State v. Jones, 10th
Dist. No. 18AP-33, 2019-Ohio-2134, ¶ 33-34 (finding no error in the admission of
photographs of victim's severe burn injuries, noting "[t]hat the photographs may be
gruesome does not render them inadmissible if they otherwise satisfy the balancing test of
Evid.R. 403(A)"). Further, as Sherman acknowledges in his brief, the state had introduced
ample other evidence of Sherman's guilt. Therefore, even if the letter was inflammatory,
Sherman cannot demonstrate it unfairly affected the jury's verdict. State v. Hughes, 10th
Dist. No. 14AP-360, 2015-Ohio-151, ¶ 41, quoting Darazim at ¶ 16 (stating " '[a] trial court
has broad discretion over the admission or exclusion of evidence, and a reviewing court
generally will not reverse an evidentiary ruling absent an abuse of discretion that materially
prejudices the affected party' ") (emphasis added).
{¶ 26} For these reasons, the trial court did not abuse its discretion in admitting the
letter into evidence. We overrule Sherman's first assignment of error.
IV. Second Assignment of Error – Crim.R. 29 Motion for Acquittal
{¶ 27} In his second assignment of error, Sherman argues the trial court erred when
it denied his Crim.R. 29 motion for acquittal. More specifically, Sherman asserts the state
did not present sufficient evidence to prove the elements of attempted burglary, aggravated
arson, and menacing by stalking.
{¶ 28} Crim.R. 29 provides that the court, "on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction
of such offense or offenses." Review of the denial of a Crim.R. 29 motion and the sufficiency
of the evidence apply the same standard. State v. Fugate, 10th Dist. No. 12AP-194, 2013-
Ohio-79, ¶ 5, citing State v. Turner, 10th Dist. No. 04AP-364, 2004-Ohio-6609, ¶ 8.
Whether there is legally sufficient evidence to sustain a verdict is a question of law. State
v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. Id. The
relevant inquiry for an appellate court is whether the evidence presented, when viewed in
a light most favorable to the prosecution, would allow any rational trier of fact to find the
essential elements of the crime proven beyond a reasonable doubt. State v. Mahone, 10th
No. 20AP-541 11
Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417, ¶ 37.
A. Attempted Burglary
{¶ 29} Sherman asserts there was insufficient evidence to convict him of attempted
burglary in violation of R.C. 2923.02 as it relates to R.C. 2911.12. R.C. 2911.12(A)(2) states
"[n]o person, by force, stealth, or deception shall * * * [t]respass 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."
{¶ 30} Further, R.C. 2923.02(A) defines attempt as "[n]o person, purposely or
knowingly, and when purpose or knowledge is sufficient culpability for the commission of
an offense, shall engage in conduct that, if successful, would constitute or result in the
offense." Additionally, the Supreme Court of Ohio has defined "criminal attempt" as " 'an
act or omission constituting a substantial step in a course of conduct planned to culminate
in [the actor's] commission of the crime.' A 'substantial step' requires conduct that is
'strongly corroborative of the actor's criminal purpose.' " State v. Group, 98 Ohio St.3d
248, 2002-Ohio-7247, ¶ 101, quoting State v. Woods, 48 Ohio St.2d 127 (1976), paragraph
one of the syllabus. Thus, under the pertinent statutes, the state was required to prove
Sherman knowingly engaged in conduct that, if successful, would have constituted burglary
pursuant to R.C. 2911.12(A)(2).
{¶ 31} Sherman asserts the evidence was insufficient to convict him of attempted
burglary because the state did not present any evidence that he attempted, by force, stealth,
or deception, to enter T.J.'s residence. However, T.J. testified she heard a blunt thud hitting
the front door and that she continued to hear someone banging against the door while she
hid in the closet with her daughter. The thudding was strong enough to knock a picture off
the wall that had been hanging by the front door. T.J. further testified she heard the
doorknob jingling and more banging against her daughter's bedroom window. This
testimony constitutes sufficient evidence that Sherman attempted, through force, to
trespass into T.J.'s residence.
{¶ 32} Sherman additionally argues the state did not present any evidence that he
had the intent to commit a criminal offense once inside the habitation. A person acts with
No. 20AP-541 12
a particular purpose when "it is [his or her] specific intention to cause a certain result." R.C.
2901.22(A). "The law has long recognized that intent, lying as it does within the privacy of
a person's own thoughts, is not susceptible of objective proof." State v. Garner, 74 Ohio
St.3d 49, 60 (1995), citing State v. Carter, 72 Ohio St.3d 545, 554 (1995). The trier of fact
may consider the entire set of circumstances surrounding the event and infer intent from
those facts. State v. Loughman, 10th Dist. No. 10AP-636, 2011-Ohio-1893, ¶ 47, citing
State v. Grant, 67 Ohio St.3d 465, 478 (1993).
{¶ 33} In support of his argument, Sherman asserts that because the arson occurred
on the exterior of the home, there was no evidence that he had the intent to commit a
criminal offense inside the home. However, though Sherman was unsuccessful in entering
the residence, the jury nonetheless could have inferred that, had he been successful, he had
the purpose to commit arson or another offense inside the home. T.J. testified that
Sherman had threatened her with a gas can prior to July 11, 2019. Additionally, it was only
after Sherman was not successful in opening the apartment door that he set fire to the
exterior of the apartment. We conclude this is sufficient evidence from which a trier of fact
could infer that Sherman had the requisite intent to commit a criminal offense once inside
the habitation.
{¶ 34} Thus, because there was sufficient evidence to support Sherman's conviction
of attempted burglary, the trial court did not err in denying the Crim.R. 29 motion with
respect to attempted burglary.
B. Aggravated Arson
{¶ 35} Sherman additionally argues there was insufficient evidence to convict him
of aggravated arson. To convict Sherman of aggravated arson pursuant to R.C. 2909.02(A),
the state must prove Sherman, by means of fire or explosion, knowingly caused physical
harm to an occupied structure. R.C. 2909.02(A)(2); State v. Albert, 10th Dist. No. 14AP-
30, 2015-Ohio-249, ¶ 15. "A person acts knowingly, regardless of purpose, when the person
is aware that the person's conduct will probably cause a certain result or will probably be of
a certain nature." R.C. 2901.22(B). When determining whether a defendant acted
knowingly, his state of mind must be determined from the totality of the circumstances
surrounding the alleged crime. State v. Ingram, 10th Dist. No. 11AP-1124, 2012-Ohio-
No. 20AP-541 13
4075, ¶ 22. Culpable mental states are frequently demonstrated through circumstantial
evidence. Id.{¶ 36} Sherman does not assert that the state failed to produce evidence on any of
the specific elements of aggravated arson. Instead, Sherman asserts generally that the
evidence of aggravated arson was "very weak." (Appellant's Brief at 14.) However, having
reviewed the record, we find T.J.'s testimony about Sherman's threatening behavior prior
to July 11, 2019, her testimony that Sherman was outside her house when she heard him
attempting to enter and shortly before she smelled gasoline, and the evidence of the fire at
the front door with the use of gasoline as an accelerant constitutes sufficient evidence to
convict Sherman of aggravated arson. Thus, the trial court did not err in denying Sherman's
Crim.R. 29 motion of acquittal related to the charge of aggravated arson.
C. Menacing By Stalking
{¶ 37} Finally under this assignment of error, Sherman argues there was insufficient
evidence to support his conviction of menacing by stalking. R.C. 2903.211 defines
"menacing by stalking" as "engaging in a pattern of conduct" which will "knowingly cause
another person to believe that the offender will cause physical harm to the other person
* * * or cause mental distress to the other person." R.C. 2903.211(A)(1). A "pattern of
conduct" is "two or more actions or incidents closely related in time." R.C. 2903.211(D).
Further, to support a conviction of menacing by stalking as a fourth-degree felony, the state
must also demonstrate that Sherman made a threat of physical harm to or against T.J. or,
in committing the offense, caused serious physical harm to the premises at which T.J.
resided, to the real property on which the premises were located, or to any personal
property located on that premises. R.C. 2903.211(B)(2).
{¶ 38} Just as he did in his argument related to aggravated arson, Sherman does not
assert the state failed to present evidence on any specific element of menacing by stalking
but instead asserts more generally that the evidence the state presented was "very weak."
(Appellant's Brief at 14.) However, T.J.'s testimony provided sufficient evidence to convict
Sherman of menacing by stalking. T.J. provided detailed testimony about the number of
phone calls and unsolicited encounters she had with Sherman, including his threats to "go
ballistic," "snap [her] neck," and make her "unrecognizable" with a gas can. T.J. further
testified she was afraid of Sherman and purchased a firearm to protect herself from him.
No. 20AP-541 14
The evidence also demonstrated that Sherman set fire to T.J.'s apartment front door,
supporting the conviction as a fourth-degree felony. Accordingly, the trial court did not err
in denying Sherman's Crim.R. 29 motion with respect to the charge of menacing by
stalking.
{¶ 39} Because the state presented sufficient evidence to support Sherman's
convictions of attempted burglary, aggravated arson, and menacing by stalking, the trial
court did not err in denying Sherman's Crim.R 29 motion for acquittal. We overrule
Sherman's second assignment of error.
V. Third Assignment of Error – Manifest Weight of the Evidence
{¶ 40} In his third and final assignment of error, Sherman argues his convictions are
against the manifest weight of the evidence.
{¶ 41} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution
of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42
(1982). Determinations of credibility and weight of the testimony are primarily for the trier
of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Thus,
the jury may take note of the inconsistencies and resolve them accordingly, "believ[ing] all,
part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 42} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, 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." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most " 'exceptional case in which the evidence
No. 20AP-541 15
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 43} Sherman does not point to any conflicts in the evidence. Instead, Sherman
argues his convictions are against the manifest weight of the evidence because T.J. lacked
credibility. However, a conviction is not against the manifest weight of the evidence
because the trier of fact believed the state's version of events over the defendant's version
of events. State v. Szykulski, 10th Dist. No. 19AP-639, 2021-Ohio-2733, ¶ 25, citing State
v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 43, citing State v. Gale, 10th Dist.
No. 05AP-708, 2006-Ohio-1523, ¶ 19. As noted above, the trier of fact remains free to
believe "all, part, or none of a witness's testimony." Raver at ¶ 21. Sherman does not
identify any specific reason that T.J.'s testimony lacks credibility but suggests the jury lost
its way in believing T.J.'s testimony because there were no additional eyewitnesses.
However, evidence corroborating the victim's testimony is not required for a conviction.
State v. Jackson, 10th Dist. No. 06AP-1267, 2008-Ohio-1277, ¶ 16. See also State v. Vinson,
10th Dist. No. 13AP-825, 2014-Ohio-3249, ¶ 17 ("[t]he victim's testimony alone is
satisfactory evidence on which to base a conviction"). Having reviewed the record in its
entirety, we do not find the jury clearly lost its way in finding T.J.'s testimony to be credible.
{¶ 44} Moreover, to the extent Sherman argues his convictions are against the
manifest weight of the evidence due to the lack of physical or forensic evidence connecting
him to the offenses, this court has repeatedly stated that " '[a] lack of physical evidence,
standing alone, does not render [a defendant's] conviction against the manifest weight of
the evidence.' " State v. Murray, 10th Dist. No. 16AP-16, 2017-Ohio-949, ¶ 38, quoting
State v. Peeples, 10th Dist. No. 13AP-1026, 2014-Ohio-4064, ¶ 21, citing State v. Conner,
10th Dist. No. 12AP-698, 2013-Ohio-2773, ¶ 12. " 'If [witness] testimony is believed then
the lack of fingerprints, DNA, footprints or any other [type of] physical evidence does not
render the conviction against the manifest weight of the evidence.' " Peeples at ¶ 21, quoting
State v. Jackson, 7th Dist. No. 09 JE 13, 2009-Ohio-6407, ¶ 16 (concluding a conviction
based on victim's testimony identifying the defendant was not against the manifest weight
of the evidence). As we stated above, T.J. provided credible testimony about Sherman's
conduct throughout 2018 and 2019, including his conduct during the early morning hours
of July 11, 2019.
No. 20AP-541 16
{¶ 45} Thus, in light of the evidence discussed above, as well as the record in its
entirety, we do not find the jury clearly lost its way in concluding the state proved Sherman
committed each of the three offenses. We conclude, therefore, that the manifest weight of
the evidence supports Sherman's convictions of attempted burglary, aggravated arson, and
menacing by stalking. Accordingly, we overrule Sherman's third and final assignment of
error.
VI. Disposition
{¶ 46} Based on the foregoing reasons, the trial court did not abuse its discretion in
admitting Sherman's letter into evidence, the trial court did not err in denying Sherman's
Crim.R. 29 motion for acquittal, and the manifest weight of the evidence supports
Sherman's convictions of attempted burglary, aggravated arson, and menacing by stalking.
Having overruled Sherman's three assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and MENTEL, J., concur.