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State of Ohio v. Earl Banks

November 3, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EARL BANKS DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-539150

The opinion of the court was delivered by: Kathleen Ann Keough, J.:

Cite as State v. Banks,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Keough, J., Celebrezze, P.J., and Sweeney, J.

{¶1} Defendant-appellant, Earl Banks ("Banks"), appeals his convictions. For the reasons that follow, we affirm.

{¶2} In 2010, Banks was charged with one count of burglary in violation of R.C. 2911.12(A)(2) and one count of theft in violation of R.C. 2913.02(A)(1). Banks waived his right to a jury trial and the case was tried to the court. The trial court found Banks guilty of burglary and an amended count of misdemeanor theft and sentenced him to a total prison term of three years.

{¶3} Banks appeals, raising two assignments of error contending that his burglary conviction is not supported by sufficient evidence and that both of his convictions are against the manifest weight of the evidence.

{¶4} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, Cuyahoga App. No. 92266, 2009-Ohio-3598, ¶12. 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 942, paragraph two of the syllabus.

{¶5} A manifest weight challenge, on the other hand, questions whether the prosecution met its burden of persuasion. State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356. A reviewing court may reverse the judgment of conviction if it appears that 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

{¶6} Banks was convicted of burglary in violation of R.C. 2911.12(A)(2), which provides that "no person by force, stealth, or deception shall trespass * * * in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense."

{¶7} Banks contends on appeal that insufficient evidence was presented that he trespassed onto the property by force, stealth, or deception. Specifically, Banks argues that the victim's downstairs exterior door was broken and would not close, thus he did not use force to enter the residence. We disagree.

{ΒΆ8} The victim, Jamie Laskey, testified that she closed and locked her downstairs exterior door prior to leaving her residence. Laskey testified that although this door was damaged from a prior break-in ...


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