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State v. Vickroy

Court of Appeals of Ohio, Fifth District, Fairfield

December 21, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ZACHARIAH VICKROY Defendant-Appellant

         Appeal from the Fairfield County Court of Common Pleas, Case No. 2016-CR-404

          For Plaintiff-Appellee R. KYLE WITT Fairfield County Prosecuting Attorney BRIAN T. WALTZ Assistant Prosecuting Attorney

          For Defendant-Appellant SCOTT P. WOOD Conrad/Wood

          Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Hoffman, J.

         {¶1} Defendant-appellant Zachariah Vickroy appeals his convictions and sentence entered by the Fairfield County Court of Common Pleas, on one count of aggravated burglary, in violation of R.C. 2911.11(A)(1), a felony of the first degree; and one count of robbery, in violation of R.C. 2911.02(A)(2), a felony of the second degree, following a jury trial. Plaintiff-appellee is the state of Ohio.

         STATEMENT OF THE CASE AND FACTS

         {¶2} On September 23, 2016, the Fairfield County Grand Jury indicted Appellant on one count of aggravated burglary, in violation of R.C. 2911.11(A)(1), a felony of the first degree; two counts of robbery, in violation of R.C. 2911.02(A)(2), felonies of the second degree; one count of grand theft, in violation of R.C. 2913.02(B)(2), a felony of the fourth degree; and one count of theft, in violation of R.C. 2913.02(A)(3), a misdemeanor of the first degree. Appellant appeared for arraignment on November 8, 2016, and entered pleas of not guilty to all of the charges.

         {¶3} The matter proceeded to jury trial on February 28, 2017. On the first day of trial, prior to the start of trial, the State moved to dismiss Counts Three (robbery), Four (grand theft), and Five (theft) of the Indictment. With no objections from Appellant, the trial court granted the State's motions.

         {¶4} The following evidence was adduced at trial.

         {¶5} Jennifer and Rico Kesterson were asleep in their home at 725 N. Pierce Ave, Lancaster, Fairfield County, Ohio, on August 25, 2016, when they were awoken by the sound of loud crash caused by someone breaking into the residence. Rico got out of bed to investigate. As he entered the kitchen, he encountered Appellant, who sprayed him in the face with bug spray. Jennifer heard Rico say, "Oh!", and proceeded to the kitchen. She found Rico backing up, stating he could not see anything. As she ran toward her husband, Appellant instructed both of them not to move. Appellant had a gun pointed at Rico.

         {¶6} The Kestersons had met Appellant through a mutual friend. After the initial meeting, Appellant appeared unannounced at the Kesterson residence three additional times. Rico asked Appellant not to return. Rico observed another individual standing behind Appellant, whom he recognized from one of Appellant's prior unannounced visits.

         {¶7} While Appellant brandished the gun at the Kestersons, the unidentified male picked up a safe. Thereafter, the men fled the residence. Rico chased the men and ended up in a physical altercation with the unidentified male. Appellant and the other individual man were able to get away.

         {¶8} Rico called 911. During the 911 call, Rico identified Appellant by name as one of the robbers. Officers were dispatched to the Kesterson residence. Officers noted Rico's injuries were consistent with being sprayed by mace or bug spray, to wit: red face; glassy, bloodshot eyes; coughing; and gagging. Officers found the window of the door the perpetrators used to gain entrance into the home had been broken. A can of bug spray was discovered in the house, but no useable fingerprints were obtained from the can. BCI tested the can for touch DNA. The DNA on the can did not belong to Appellant. The testing could not exclude Appellant ...


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