State v. Dillard

[Cite as State v. Dillard, 2018-Ohio-4842.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Nos. 18AP-178

Plaintiff-Appellee, : (C.P.C. No. 16CR-2907)

18AP-179

v. : (C.P.C. No. 16CR-2747)

Twyla M. Dillard, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 6, 2018

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.

Walton, for appellee.

On brief: Blaise G. Baker, for appellant.

APPEALS from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, Twyla M. Dillard, appeals from judgments of the

Franklin County Court of Common Pleas finding her guilty, pursuant to jury verdict, in case

No. 16CR-2907 (18AP-178) of one count of menacing by stalking and, in case No. 16CR-

2747 (18AP-179) of two counts of menacing by stalking and one count of attempted

burglary. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} By indictment filed May 27, 2016 in case No. 16CR-2907, appellant was

charged with one count of menacing by stalking, in violation of R.C. 2903.211, a felony of

the fourth degree. The indictment alleged that appellant committed the offense "[o]n or

about April 24, 2016."

Nos. 18AP-178 and 18AP-179 2

{¶ 3} By indictment filed May 20, 2016 in case No. 16CR-2747, appellant was

charged with two counts of menacing by stalking, in violation of R.C. 2903.211, felonies of

the fourth degree, and one count of attempted burglary, in violation of R.C. 2923.02, a

felony of the third degree. The indictment alleged appellant committed the menacing by

stalking offenses "[o]n or about April 24, 2016" and the attempted burglary offense "[o]n

or about April 25, 2016."

{¶ 4} In both cases, appellant waived the reading of the indictments and entered

not guilty pleas. Appellant requested discovery, and plaintiff-appellee, State of Ohio,

provided or permitted inspection of the same. Appellant did not request a bill of particulars

in either case. The discovery provided by or permitted to be inspected by the state included

"Reports from Peace Officers."

{¶ 5} The cases were consolidated on March 5, 2018. On April 24, 2018, the trial

court conducted a jury trial. At trial, evidence was presented by the state that appellant and

the prosecuting witness, Michael Jackson, had previously dated and their relationship

ended sometime around September 2015. A few months after the relationship with

appellant ended, Jackson began dating prosecuting witness Leslie Perrin. The parties

stipulated that in 2015 the court had granted both prosecuting witnesses a protection order

ordering appellant to stay away from them. The parties further stipulated that on April 21,

2016, appellant was convicted in the Franklin County Municipal Court of menacing by

stalking, in violation of R.C. 2903.211, with Jackson as the prosecuting witness.

{¶ 6} Jackson testified that on April "the 24th, it was early morning" when he heard

a loud noise in front of his home and looked out the window to see appellant standing

between his and Perrin's vehicles. (Tr. at 127.) He went outside to inspect and found that

the vehicles, which were parked not even ten feet from his house, had been damaged. He

observed appellant run to her own vehicle and drive away. Jackson filed a police report.

Jackson and Perrin then went to Perrin's residence out of concern for her safety. On the

following day, April 25th, they heard a loud sound outside Perrin's residence. Jackson

observed a shadow at the back of the house trying to get into the back door and determined

the person went around the side of the house to the front of the house. He then went to the

front of the house, opened the blinds and looked directly at appellant who was on the front

porch. Perrin too looked eye to eye with appellant. Jackson testified that appellant

Nos. 18AP-178 and 18AP-179 3

returned to the back door and again tried to get in the house, and went back and forth

between the back and front of the house trying to get in. The doors were locked and

appellant was "getting frustrated * * * pulling hard, kicking [the doors], whatever [with] an

object in her hand * * * trying to jimmy the lock." (Tr. at 142.) Perrin called police. The

state presented a recording of Perrin's 911 call. (State's Ex. I.)

{¶ 7} At the close of the state's evidence, appellant's counsel moved, pursuant to

Crim.R. 29 and State v. Scruggs, 136 Ohio App.3d 631 (2d Dist.2000), for dismissal with

respect to the menacing by stalking charges. Appellant argued the pattern of conduct was

alleged to have occurred on April 24, 2016 and does not include the April 25th burglary.

The trial court denied the motion. Appellant's sister testified on her behalf. Appellant then

renewed the motion on the same grounds regarding the menacing by stalking charges and

also moved to dismiss the attempted burglary charge generally for insufficient evidence.

The court denied the motion.

{¶ 8} The jury returned guilty verdicts on all counts. Based on the jury's verdict,

the court found appellant guilty on all counts and sentenced appellant. Appellant timely

filed a notice of appeal.

II. Assignments of error

{¶ 9} Appellant asserts the following two assignments of error for our review:

[I.] The Defendant-Appellant's conviction for menacing by

stalking was not supported by sufficient evidence and was

against the manifest weight of the evidence.

[II.] The Defendant-Appellant's conviction for attempted

burglary was not supported by sufficient evidence and was

against the manifest weight of the evidence.

III. Analysis

{¶ 10} Sufficiency of the evidence is a legal standard that tests whether the evidence

introduced at trial is legally adequate to support a verdict. State v. Thompkins, 78 Ohio

St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a verdict is a

question of law. Id.

{¶ 11} In determining whether the evidence is legally sufficient to support a

conviction, " '[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any trier of fact could have found the essential elements of the

Nos. 18AP-178 and 18AP-179 4

crime proven beyond a reasonable doubt.' " State v. Robinson, 124 Ohio St.3d 76, 2009-

Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. A verdict will not be disturbed unless, after viewing the evidence in the light most

favorable to the prosecution, it is apparent that reasonable minds could not reach the

conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484, 2001-Ohio-

4.

{¶ 12} The weight of the evidence concerns the inclination of the greater amount of

credible evidence offered to support one side of the issue rather than the other. Thompkins

at 387. Although there may be sufficient evidence to support a judgment, a court may

nevertheless conclude that a judgment is against the manifest weight of the evidence. Id.

{¶ 13} When presented with a challenge to the manifest weight of the evidence, an

appellate court 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. Id. at 387. An appellate court should

reserve reversal of a conviction as being against the manifest weight of the evidence for only

the most " 'exceptional case in which the evidence weighs heavily against the conviction.' "

Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); State v. Strider-

Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.

{¶ 14} In addressing a manifest weight of the evidence argument, we are able to

consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-

Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the presumption that

the jury, or the trial court in a bench trial, " 'is best able to view the witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.' " Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio

St.3d 77, 80 (1984). Accordingly, we afford great deference to the jury's determination of

witness credibility. State v. Redman, 10th Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing

State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55. See also State v.

DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus (credibility

determinations are primarily for the trier of fact).

Nos. 18AP-178 and 18AP-179 5

{¶ 15} Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency. State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 11,

citing State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. "[T]hus, a

determination that a conviction is supported by the weight of the evidence will also be

dispositive of the issue of sufficiency." Id.

{¶ 16} In support of her first assignment of error, as she did at trial, appellant

specifically argues that because the state did not include the April 25, 2016 date in the

indictment regarding the menacing by stalking charges, a pattern of conduct was not

established. Appellant suggests, pursuant to Scruggs, the convictions for menacing by

stalking were not supported by sufficient evidence and were against the manifest weight of

the evidence because evidence presented regarding what took place on April 25, 2016 could

not be considered to find a pattern of conduct.

{¶ 17} Pursuant to R.C. 2903.211, menacing by stalking is defined 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." A "pattern of conduct" means "two or more actions or incidents closely related in

time." R.C. 2903.211(D)(1). " 'A court must take everything into consideration when

determining if a respondent's conduct constitutes a pattern of conduct, even if some of the

person's actions may not, in isolation, seem particularly threatening.' " Joy v. Letostak,

10th Dist. No. 14AP-1040, 2015-Ohio-2667, ¶ 22, quoting Miller v. Francisco, 11th Dist. No.

2002-L-097, 2003-Ohio-1978.

{¶ 18} We are not persuaded that Scruggs mandates a finding the convictions for

menacing by stalking were not supported by sufficient evidence and were against the

manifest weight of the evidence.

{¶ 19} In Scruggs, the Second District Court of Appeals found that a conviction for

menacing by stalking was not supported by sufficient evidence because the complaint

alleged that the pattern of conduct occurred on one date, May 29, 1998, the evidence

presented, however, showed that a number of incidents took place between the defendant

Nos. 18AP-178 and 18AP-179 6

and the prosecuting witness and her children, between July 1997 and May 29, 1998. The

Scruggs court found the following:

The prosecutor introduced * * * evidence [regarding incidents

which took place between July 1997 and May 29, 1998] to

establish "the two or more actions or incidents" needed to

make up the pattern of conduct element. The trial court, over

defense counsel's objections, admitted the evidence for this

purpose. This constituted error. While the State may

introduce evidence of "uncharged misconduct" or "other

acts," in order to prove, among other things, that a defendant's

seemingly innocent acts, in reality, amounted to knowing

attempts to cause mental distress, those other acts cannot be

used to establish the "two or more actions or incidents"

requirement of the pattern of conduct element. See State v.

Bilder (1994), 99 Ohio App.3d 653, 658, 651 N.E.2d 502.

Thus, evidence regarding events that are not the subject of the

complaint cannot be used to establish the "two or more

actions or incidents" needed to prove the pattern of conduct

element. Here, the events that were the subject of the

complaint, occurred "on or about May 29, 1998." Therefore,

the State was required to prove that Scruggs engaged in two

or more actions or incidents, on or about May 29, 1998,

knowing they would cause Morris to believe that she would

cause physical harm to her, or knowingly causing Morris

mental distress. For the reasons set forth above, the State

failed to meet its burden.

The State could have avoided the result reached in this case if

it had simply set forth the date of the offense in the complaint

as having occurred between July, 1997 and May 29, 1998, or

if it had simply adduced testimony from Morris regarding the

incident on May 29th, which led her to file a complaint against

Scruggs.

(Emphasis added.) Id. at 635.

{¶ 20} We are not persuaded that Scruggs applies to the case before us. There is a

significant difference between the indictment in this case and the complaint in Scruggs.

The indictments here allege that "on or about April 24, 2016" appellant committed the

offenses of menacing by stalking. The evidence presented here spans two days, April 24-

25, 2016; whereas, the evidence presented in Scruggs spans almost one year, July 1997 to

May 29, 1998. Furthermore, the Scruggs court used the same "on or about" qualifier as the

state did herein. Scruggs opined that "the state was required to prove that Scruggs engaged

Nos. 18AP-178 and 18AP-179 7

in two or more actions or incidents on or about May 29, 1998." (Emphasis added.) Id. at

635.

{¶ 21} We also note appellant requested and was provided or permitted to inspect

discovery including police reports and recordings of the police interview with appellant and

of the 911 call. Taking into consideration the "on or about" qualifier and the discovery

provided, appellant cannot say she was not on notice of the dates of the alleged incidents

constituting a pattern of conduct alleged in the three counts of menacing by stalking. There

is no indication in the record appellant was prejudiced in preparing her defense by the

failure of the indictment to specifically list April 25, 2016 as the date of the offense. See

State v. Plants, 5th Dist. No. 2009 AP 10 0054, 2010-Ohio-2930, ¶ 36.

{¶ 22} Accordingly, we overrule the first assignment of error.

{¶ 23} In support of the second assignment of error, appellant argues no evidence

was presented that she entered Perrin's home on April 25, 2016. However, appellant was

not charged with burglary, but rather attempted burglary. She was found guilty of

attempted burglary, a violation of R.C. 2923.02 as it relates to 2911.12, a felony of the third

degree. R.C. 2911.12(A)(2) states: "No person, by force, stealth, or deception, shall do any

of the following: * * * Trespass 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." R.C. 2911.21(A) outlines the offense of trespass as: "No person, without

privilege to do so, shall do any of the following: (1) Knowingly enter or remain on the land

or premises of another; (2) Knowingly enter or remain on the land or premises of another,

the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when

the offender knows the offender is in violation of any such restriction or is reckless in that

regard." (Emphasis added.)

{¶ 24} R.C. 2923.02(A) defines attempt as follows: "No 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." (Emphasis added.) The Supreme Court of Ohio has further 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'

Nos. 18AP-178 and 18AP-179 8

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.

{¶ 25} The statutes did not require the state to prove appellant was successful in

entering the home of Perrin in order to establish attempted burglary. Rather, the state was

required to prove appellant knowingly engaged in conduct that, if successful, would have

constituted burglary pursuant to R.C. 2911.12; as relevant here, i.e., if successful, would

have constituted entering the home.

{¶ 26} Accordingly, we overrule the second assignment of error.

{¶ 27} Finally, although not asserted as an assignment of error on appeal, the state

has pointed out in footnote 1 of its brief that the two counts of menacing by stalking in case

No. 16CR-2747 were alternative counts involving Jackson as the prosecuting witness and

were based on precisely the same conduct committed by appellant. The state informed the

trial court of this at trial, however the court did not merge the two counts but, rather,

imposed a sentence on both counts. The state requests this court modify the judgment

entry as we did in State v. Smith, 10th Dist. No. 17AP-649, 2018-Ohio-1937, ¶ 19-21,1 and

merge count one and count two in case No. 16CR-2747. We decline to modify the sentence,

however, we will remand the judgment in case No. 16CR-2747 for the sole purpose of

1 In Smith, at ¶ 20-21, we stated:

"The state requests that this court modify the sentence to consecutive 10

year prison terms, for a total of 20 years, to be served consecutively to the

Michigan and Cuyahoga County sentences. The state claims that this case

illustrates perfectly the Supreme Court of Ohio's observation that

"[c]orrecting the defect without remanding for resentencing can provide an

equitable, economical, and efficient remedy for a void sentence." [State v.]

Fischer [128 Ohio St.3d 92, 2010-Ohio-6238] at ¶ 30. (Appellee's brief at 4-

5.) We agree.

Having found an error of law in appellant's sentencing, we are specifically

empowered by both App.R. 12(A)(1)(a) and R.C. 2953.08(G)(2) to "modify"

the sentence imposed by the trial court. For the sake of judicial economy,

rather than require a new sentencing hearing, we exercise that power and

hold that appellant's sentence is hereby modified to reflect consecutive

sentences of 10 years each for appellant's convictions for aggravated

burglary and rape, resulting in a total sentence of 20 years, to run

consecutive to prior convictions in Michigan and Cuyahoga County, Ohio,

as stated in the trial court's judgment entry. In all other respects, we affirm

the judgment of the trial court.

Nos. 18AP-178 and 18AP-179 9

modifying the sentence as the state requests to merge the two counts of menacing by

stalking.

IV. Conclusion

{¶ 28} Having overruled appellant's two assignments of error, the judgments of the

Franklin County Court of Common Pleas are affirmed. However, we remand the judgment

in case No. 16CR-2747 for the sole purpose of modifying the sentence as the state requests

to merge the two counts of menacing by stalking in that case.

Judgments affirmed;

judgment in case No. 16CR-2747 remanded.

BRUNNER and HORTON, JJ., concur.