State v. Fisher

[Cite as State v. Fisher, 2022-Ohio-3424.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

NOBLE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JUSTIN W. FISHER,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 NO 0486

Criminal Appeal from the

Court of Common Pleas of Noble County, Ohio

Case No. 221-2051

BEFORE:

David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.

JUDGMENT:

Affirmed.

Atty. Jordan C. Croucher, Noble County Prosecuting Attorney, 150 Courthouse,

Caldwell, Ohio 43724, for Plaintiff-Appellee and

Atty. Clifford N. Sickler, 508 North Street, Caldwell, Ohio 43724, for Defendant-

Appellant.

Dated: September 19, 2022

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D’APOLITO, J.

Appellant, Justin W. Fisher, appeals from the December 6, 2021 judgment

of the Noble County Court of Common Pleas convicting him for burglary, obstructing

official business, and criminal trespass following a trial by jury and sentencing him to a

total of 12 months in prison. On appeal, Appellant asserts that Appellee, the State of

Ohio, presented insufficient evidence to support his burglary conviction. Finding no

reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 5, 2021, Appellant was indicted by the Noble County Grand Jury

on five counts: count one, burglary, a felony of the fourth degree, in violation of R.C.

2911.12(B); count two, obstructing official business, a misdemeanor of the second

degree, in violation of R.C. 2921.31(A); and counts three, four, and five, criminal trespass,

misdemeanors of the fourth degree, in violation of R.C. 2911.21(A)(1). Appellant was

appointed counsel and entered a not guilty plea at his arraignment.

A trial by jury was held on October 20, 2021.

The State presented ten witnesses: (1) Leanne Fogle, Deputy Sheriff with

the Noble County Sheriff’s Department (“NCSD”); (2) William Morris, Enforcement

Division Sergeant with NCSD; (3) and (4) Clayton and Jacqueline Brown, husband and

wife property owners of 14788 Brown Road; (5) Rita Mika, property owner of 15250

Johnny Woods River Road; (6) Nelson Roe, neighbor of Robert and Connie Bond; (7)

and (8) Robert and Shawna Lowry, husband and wife property owners of 50895 Wargo

Road and neighbors of Roe; and (9) and (10) Robert and Connie Bond, husband and wife

property owners of 15200 Johnny Woods River Road.

The incident at issue occurred on or about July 19, 2021 in Noble County,

Ohio. Deputy Fogle responded to a call around 2:20 p.m. that reported a suspicious man,

later identified as Appellant, was trespassing on the Brown’s property located on Brown

Road. Another call was received from the Bonds that a suspicious man, also later

identified as Appellant, was trespassing on their property located on Johnny Woods River

Road.

Case No. 21 NO 0486

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Prior to trespassing on the Bonds’ property, Deputy Fogle made contact

with Appellant as he was walking through Mika’s field. Deputy Fogle yelled for Appellant

to stop and come talk with her. Appellant ignored her request and took off into the

neighboring woods. Sergeant Morris testified the only way for Appellant to have entered

the Bonds’ property from the woods would have involved him crossing the Bonds’ electric

fence.

Sergeant Morris made contact with the Bonds, who had a video of Appellant

walking around in their garage for about 15 seconds. The video recording was submitted

into evidence and played for the jury. (State’s Exhibit E). Mr. Bond testified that their

security sensor was triggered which set off an alarm and initiated the video recording of

Appellant as he trespassed through their yard and into their attached garage. Mr. Bond

asked Appellant what he was doing and Appellant responded that he was just looking

around.

Mr. Bond indicated the camera was installed on their outbuilding facing their

home. Mr. Bond said that people who normally come to their home simply travel up the

driveway from the road. Mr. Bond noted that based on when and how the security sensor

was triggered, Appellant would have had to traverse through a 60-acre field and through

their backyard before coming into view of the camera. Once Appellant neared the home

and was on camera, he was seen looking around to see if anyone was watching him. Mr.

Bond stated Appellant had no reason nor any privilege to be on their property. Mr. Bond

believed Appellant took measures to avoid detection because walking through the field

the distance Appellant did would have been about one mile. Mr. Bond indicated Appellant

complied with his request to leave the garage and Appellant asked for a ride home.

Mrs. Bond testified that by obtaining access to their home from the direction

that Appellant did, he was able to avoid detection by their security system for a longer

period of time than would have been possible had he approached their home from the

road. Mrs. Bond said there are no windows in the garage leading into the home where

Appellant could have been seen and that the approach Appellant took from the field into

the garage was the best method to avoid detection. Neither Mr. Bond nor Mrs. Bond

knew Appellant prior to this incident.

Case No. 21 NO 0486

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At the conclusion of the State’s case, Appellant moved for an acquittal

pursuant to Crim.R. 29, which was overruled by the trial court. The defense did not

present any witnesses.

The jury found Appellant guilty on counts one (burglary), two (obstructing

official business), and three and four (criminal trespass), and not guilty on count five

(criminal trespass).

On December 6, 2021, following a sentencing hearing, the trial court

concurrently sentenced Appellant to a total term of 12 months in prison, with 108 days

credit for time served.

Appellant filed a timely appeal and raises one assignment of error.

ASSIGNMENT OF ERROR

THE CONVICTION FOR BURGLARY WAS NOT SUPPORTED BY THE

SUFFICIENCY OF EVIDENCE AS THE ELEMENTS OF STEALTH,

FORCE, OR DECEPTION WERE NOT PROVEN BEYOND A

REASONABLE DOUBT.

In his sole assignment of error, Appellant only takes issue with his burglary

conviction, arguing that it was not supported by sufficient evidence because the elements

of stealth, force, or deception were not proven beyond a reasonable doubt. Appellant

stresses his encounter with the property owner was no more than 15 seconds, he did not

remove anything from the garage, he ultimately left the property, and he requested a ride

home.

“When a court reviews a record for sufficiency, ‘(t)he 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.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two

of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979).

Case No. 21 NO 0486

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State v. T.D.J., 7th Dist. Mahoning No. 16 MA 0104, 2018-Ohio-2766, ¶ 46.

For the reasons addressed below, we determine that the burglary conviction

is supported by sufficient evidence.

Appellant takes issue with the guilty finding for burglary, a felony of the

fourth degree, in violation of R.C. 2911.12(B), which states: “No person, by force, stealth,

or deception, shall trespass in 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.”

“Stealth is regularly defined as ‘any secret, sly or clandestine act to avoid

discovery and to gain entrance into or to remain within a residence of another without

permission.’ State v. Sims, 8th Dist. No. 84090, 2005-Ohio-1978; State v. Ward, 85 Ohio

App.3d 537, 540, 620 N.E.2d 168 (3d. Dist.1993).” In re J.M., 7th Dist. Jefferson No. 12

JE 3, 2012-Ohio-5283, ¶ 15.

The record establishes that the element of “stealth” was supported by

competent, probative evidence. See State v. Petefish, 7th Dist. Mahoning No. 10 MA 78,

2011-Ohio-6367, ¶ 16. Appellant did not use the main road to come up the Bonds’

driveway to access their garage. Rather, Appellant made significant efforts to conceal

himself in a wooded area in order to avoid law enforcement, went under or through an

electric fence, traveled about one mile through a 60-acre pasture and the Bond’s

backyard, looked around to see if he was being watched, and made entry into the

attached garage. Appellant chose the route and access method that provided the most

cover to avoid detection. Despite the presence of two vehicles in the garage indicating

the homeowners were present, Appellant made no attempt to speak to them or gain their

attention before entering their garage as a means to avoid detection. See, e.g., Ward,

supra, at *540 (the appellant’s burglary conviction was affirmed because the trespass was

committed by stealth since his appearance in the victim’s backyard at a time when she

was mowing her lawn and had her back to the home, coupled with the appellant’s failure

to make contact, evidenced his desire to avoid detection as he entered the garage); R.C.

2911.12(B). Appellant knew that the home was the habitation of another and it was likely

that someone was present at the time he entered the property.

Case No. 21 NO 0486

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Pursuant to Jenks, supra, there is sufficient evidence upon which the jury

could reasonably conclude beyond a reasonable doubt that the elements of burglary were

proven. Thus, the trial court did not err in overruling Appellant’s Crim.R. 29 motion.

CONCLUSION

For the foregoing reasons, Appellant’s sole assignment of error is not well-

taken. The December 6, 2021 judgment of the Noble County Court of Common Pleas

convicting Appellant for burglary, obstructing official business, and criminal trespass

following a trial by jury and sentencing him to a total of 12 months in prison is affirmed.

Donofrio, P.J., concurs.

Waite, J., concurs.

Case No. 21 NO 0486

[Cite as State v. Fisher, 2022-Ohio-3424.]

For the reasons stated in the Opinion rendered herein, the assignment of error

is overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Noble County, Ohio, is affirmed. Costs to be waived.

A certified copy of this opinion and judgment entry shall constitute the mandate

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

a certified copy be sent by the clerk to the trial court to carry this judgment into

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.