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State v. Hall

Court of Appeals of Ohio, Ninth District, Summit

January 11, 2017

STATE OF OHIO Appellee
v.
BRETT H. HALL Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2014-10-3213(B)

          KIMBERLY ANNE VALENTI, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} Appellant, Brett Hall, appeals his conviction for burglary following a jury trial in the Summit County Court of Common Pleas. We affirm.

         I

         {¶2} On October 22, 2014, Wayne Douglas returned to the residence that he rented in Akron, Ohio to discover that a window was broken and a number of his possessions were missing. The missing items included a flat screen television, amplifier, DVD player, radio, karaoke machine, microwave, hot plate, hair clippers, and clothing. Douglas reported the incident to the Akron police.

         {¶3} Several hours later, at about 2:00 a.m. on October 23, 2014, Douglas was trying to fall asleep when he heard noises in his home. A table and lamp that Douglas had placed in front of the broken window had been overturned. Douglas discovered Hall and another man, Larry White, downstairs. Douglas recognized Hall as an acquaintance of his former roommate, Rachael Kerns. A confrontation ensued between Douglas and the two men. Hall and White left when Douglas called the police for the second time that night.

         {¶4} Between Douglas' first and second reports to the police, officers made a traffic stop of a van that Hall was driving. White was a passenger in the van. Kerns also was a passenger. During the traffic stop, Kerns was arrested on an outstanding warrant. The police seized a suitcase from the van for later analysis by the burglary unit, but did not arrest Hall and White for burglary at that time. At trial, Douglas testified that items in the suitcase seized from the van were his personal belongings.

         {¶5} The police stopped the same van again a short time after Hall and White left Douglas' residence on the morning of October 23. Hall was driving and White was a passenger in the van. Douglas identified Hall and White as the men who had been in his residence. The police discovered more of Douglas' personal property in the van.

         {¶6} Hall and White were indicted for burglary in violation of R.C. 2911.12(A)(2) and proceeded to trial as co-defendants. At trial, several witnesses testified. They included: (1) Douglas, (2) Kerns, (3) Douglas' landlord, (4) co-defendant White, and (5) several Akron police officers.

         {¶7} The jury convicted Hall and White of burglary, a second-degree felony. Hall was sentenced to a four-year prison term and three years of post-release control.

         {¶8} Hall now appeals from his conviction. He raises three assignments of error for our review.

         II

         Assignment of Error One

         THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY'S VERDICT, AND APPELLANT'S [SIC] CONVICTIONN [SIC] FOR GURLARY [SIC] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE; THE STATE OF OHIO FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT WHEN VIEWED BY THE MANIFEST WEIGHT OF THE EVIDENCE THAT MR. BRET [SIC] HALL. [SIC] EITHER PARTICIPATED OR WAS AN ACCOMPLICE IN THE BURGLARY; THERE IS INSUFFICIENT EVIDENCE TO SUPPORT MR. HALLS' [SIC] CONVICTION OF BURGLARY AND THUS APPELLANT'S [SIC] CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED UPON INSUFFICIENT EVIDENCE AS PERTAINS TO THE FINDING THAT HE COMMITTED THE CRIME.

         THE TRIAL COURT ERRED IN OVERRULING MR. HALLS' [SIC] RULE 29 MOTION FOR ACQUITTAL; AS ORIGINALLY [SIC] MADE AND RENEWED.

         {¶9} In his first assignment of error, Hall claims that the evidence was (1) insufficient to sustain his conviction and (2) against the manifest weight of the evidence. We will address these arguments separately because "sufficiency and manifest weight are two separate, legally distinct arguments." State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20.

         {¶10} "'We review a denial of a defendant's Crim.R. 29 motion for acquittal by assessing the sufficiency of the State's evidence.'" State v. Smith, 9th Dist. Summit No. 27389, 2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. A sufficiency challenge to a criminal conviction presents a question of law, which we review de novo. See State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review, our "function * * * is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. After such an examination and taking the evidence in the light most favorable to the prosecution, we must decide whether "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. Although we conduct a de novo review when considering a sufficiency of the evidence challenge, we do not resolve evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact. State v. Tucker, 9th Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.

         {¶11} The jury found Hall guilty of violating R.C. 2911.12(A)(2). R.C. 2911.12(A)(2) provides:

No person, by force, stealth, or deception, shall * * * [t]respass 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 ...

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