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State v. Hartsock

Court of Appeals of Ohio, Second District

June 21, 2013

STATE OF OHIO, Plaintiff-Appellee
ROBERT H. HARTSOCK, II, Defendant-Appellant

(Criminal Appeal from Common Pleas Court) Trial Court Case No. 2011-CR-4375.

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.

NICHOLAS G. GOUNARIS, Atty. Reg. No. 0064527, Attorney for Defendant-Appellant.



{¶ 1} Defendant-Appellant, Robert Hartsock, appeals from his conviction and sentence on charges of Burglary, Robbery, and Failure to Comply With an Order or Signal of a Police Officer. In support of his appeal, Hartsock contends that the State failed to present sufficient evidence to establish his conviction for Burglary. Hartsock also contends that all his convictions are against the manifest weight of the evidence.

{¶ 2} We conclude that the conviction for Burglary is supported by sufficient evidence. We further conclude that the convictions for Burglary, Robbery, and Failure to Comply with an Order or Signal of a Police Officer are not against the manifest weight of the evidence. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On December 29, 2011, at around 4:20 a.m., Miamisburg Police Officer, William Kelly, was on foot patrol in the area of Jefferson Street. The police had received a call about two hours earlier concerning a suspect lurking in the back of a residence on Early Drive, but the investigating officers failed to find anyone in that location. Based on that call, Kelly decided to do a foot patrol in the general area.

{¶ 4} During his foot patrol, Kelly first went up Jefferson Street and then walked east on Range Avenue. While walking east on Range Avenue, Kelly saw an unknown person riding a bicycle south on Wileray Drive. The bicycle turned left onto Range Avenue, and traveled east towards Cherry Hill Drive. Kelly could not tell the sex or race of the rider, but noticed that the person's clothing was dark.

{¶ 5} Due to the lateness of the hour and the prior call in the neighborhood, Kelly contacted Officer Duff, and asked if he could help locate the person on the bicycle. As Kelly continued to walk down Range Avenue toward Cherry Hill Drive, he saw a male getting into a red SUV that was in the parking lot of an apartment building. The SUV had a rather loud muffler. The SUV turned right out of the parking lot and started coming up Cherry Hill Drive toward the area where Kelly was standing. When the driver came out of the parking lot, he accelerated rather quickly and was driving fast. In order to avoid being hit, Kelly got out of the road and shined his flashlight into the vehicle. He was trying to get the driver's attention to stop. The driver did not stop, but Kelly was able to see that a white male was driving, and that no one else was in the vehicle.

{¶ 6} The SUV turned right on Wileray Drive, and within a few seconds, it no longer sounded as if it were traveling away from Kelly. At that point, Kelly radioed for any available unit to come and stop the SUV because he did not know if the driver was intoxicated or was just operating the vehicle extremely recklessly.

{¶ 7} Kelly walked back up Range Avenue, and turned onto Wileray Drive. He then saw that the SUV was stopped in front of 423 Wileray Drive, and was parked illegally, facing the wrong direction. The SUV was a Ford Explorer and the back hatch was open. Kelly saw a person make two or three trips, carrying items in his hands between two houses and the car. The person was a white male, about 30 to 40 years of age, of medium build, and was not clean-shaven. The man was wearing a gray Carharrt-style jacket, dark pants, and a toboggan on his head.

{¶ 8} Believing that a theft was occurring, Kelly again radioed for help, indicating that a theft was in progress and that officers should come that way as quickly as they could. When Kelly reached the house adjacent to 423 Wileray Drive, the suspect saw him. At that point, the suspect had several things in his hands. The suspect walked back between the houses, put the objects down, and ran for the SUV.

{¶ 9} Kelly called for the man to stop, but he failed to do so. Kelly also ran towards the SUV, and met the man just as he was getting into the driver's seat. The man was able to push off enough from Kelly to free up a hand and get the car in gear. Kelly threw his flashlight at the man in an attempt to slow him down, but he just kept going. The SUV then went north on Wileray Drive, with the headlights off

{¶ 10} In the meantime, Miamisburg Police Officer, James Duff, had responded to Kelly's call for assistance. Duff was driving east on Jefferson Street. As he approached Wileray Drive, an SUV came northbound on Wileray Drive, failed to stop at the stop sign, and made a left-hand turn onto Jefferson Street at a high rate of speed. Duff turned his cruiser to the right to avoid a head-on collision, and was struck on the driver's side. The SUV continued down Jefferson and turned on East Early Drive. Duff was able to see the SUV's brake lights go on as the vehicle turned. Duff then tried to follow the vehicle to stop it. He subsequently found the SUV abandoned on West Early Drive, which forms a loop with East Early Drive. A canine unit was summoned and followed a track from West Early Drive to Cherry Hill Drive, where the track ended.

{¶ 11} Officer Kelly indicated that the man in the SUV did not have time to close the back hatch to the SUV when he took off As a result, the road from Wileray Drive to Jefferson Street was strewn with stolen property. After contacting the people who lived at 423 Wileray, officers determined that the property had come from their house. The residents confirmed that various items were missing from their kitchen, living room, and garage, including a TV, DVDs, CDs, a video game system, movies, a purse, a wallet, coin ...

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