[Cite as State v. Gilbreath, 2011-Ohio-2310.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2010-CA-31
Plaintiff-Appellee :
: Trial Court Case No. 09-CR-1014
v. :
:
RICHARD GILBREATH : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 13th day of May, 2011.
...........
ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
KATHRYN L. BOWLING, Atty. Reg. #0084442, Bowling Law Office, LLC, 111 West First
Street, Suite 518, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Richard Gilbreath appeals from his conviction and sentence on one count of
burglary in violation of R.C. 2911.12(A)(1).
{¶ 2} In his sole assignment of error, Gilbreath challenges the legal sufficiency and
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manifest weight of the evidence to support his conviction.
{¶ 3} The record reflects that Gilbreath’s case proceeded to a jury trial in March
2010. The State presented three witnesses. The first witness was police officer Jerrod Osborne.
He testified about responding to a burglary-in-progress call in the early morning hours of
November 29, 2009. Upon arriving at the scene, a residence, Osborne went inside and saw
Gilbreath being held against a wall by another man, later identified as Dwight Weber. The
officer proceeded to handcuff Gilbreath, who was visibly intoxicated.
{¶ 4} The State’s second witness was Weber, who identified himself as the owner of
the house where the incident occurred. Weber testified that he was awakened around 3:00 a.m.
by his son-in-law, David Jones, who was yelling about someone being in the house. Weber
arose and encountered Gilbreath in the living room. Weber testified that he grabbed Gilbreath
and held him against the wall. Although Gilbreath did not resist, he said, “Just let me go, let
me go, I’m cool.” On cross examination, Weber testified that he never found any signs of
forced entry into his home. He was uncertain, however, whether he had locked his back door
that night. Weber also testified that he had various tools in the area where he encountered
Gilbreath.
{¶ 5} The State’s final witness was Jones, who testified that he also was living in the
house on the night in question. He was awakened by the sound of his dogs barking. After
grabbing a flashlight and exiting his bedroom, he saw Gilbreath inside the house. Jones
confronted Gilbreath and asked what he was doing. Gilbreath did not respond verbally but
placed his hands in his pockets and moved toward the front door. Jones testified that Weber
intercepted Gilbreath and held him against a wall until police arrived. When Jones first saw
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him inside the house, Gilbreath was “playing with some stuff on the end table.” On cross
examination, Jones testified that the end table “had some stuff on it,” including keys,
“what-knots,” and a ratchet. But Jones never found anything missing.
{¶ 6} Following Jones’s testimony, the State rested. The trial court then overruled a
Crim.R. 29 motion. Gilbreath presented no defense. The jury found him guilty of burglary, and
the trial court imposed a four-year prison sentence. This appeal followed.
{¶ 7} As set forth above, Gilbreath contends his conviction is based on legally
insufficient evidence and is against the weight of the evidence. Although he raises those issues
separately, he has briefed and argued them together. His argument is that the State failed to
prove each element of the burglary charge.
{¶ 8} When a defendant challenges the sufficiency of the evidence, he is arguing that
the State presented inadequate evidence on each element of the offense to sustain the verdict
as a matter of law. State v. Hawn (2000), 138 Ohio App.3d 449, 471. “An appellate court‘s
function when reviewing the sufficiency of the evidence to support a criminal conviction 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. The 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. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
{¶ 9} Our analysis is somewhat different when reviewing a manifest-weight
argument. When a conviction is challenged on appeal as being against the weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
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reasonable inferences, consider witness credibility, 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.’” State v.
Thompkins, (1997), 78 Ohio St.3d 380, 387 (citations omitted). A judgment should be
reversed as being against the manifest weight of the evidence “only in the exceptional case in
which the evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio
App.3d 172, 175.
{¶ 10} Having reviewed the record, we conclude that Gilbreath’s conviction is based
on legally sufficient evidence and is not against the weight of the evidence. Gilbreath was
convicted of violating R.C. 2911.12(A)(1), which provides:
{¶ 11} “(A) No person, by force, stealth, or deception, shall do any of the following:
{¶ 12} “(1) Trespass in an occupied structure * * * when another person other than an
accomplice of the offender is present, with purpose to commit in the structure * * * any
criminal offense.”
{¶ 13} Gilbreath concedes that he trespassed in an occupied structure when someone
else was present.1 He contends, however, that the State failed to prove he entered the home by
force, stealth, or deception. He also claims the State failed to prove that he trespassed with the
intent to commit any criminal offense. We disagree.
{¶ 14} The jury reasonably could have inferred that Gilbreath entered the home by
stealth even if the entry door was unlocked or open. This court has defined stealth as “‘a
1
Parenthetically, we note that the phrase “occupied structure” is statutorily defined. It describes particular types of structures
without necessarily requiring anyone to be present at a given time. See R.C. 2911.12(B) and R.C. 2909.01(C). Therefore, it is not redundant to
allege that Gilbreath trespassed in an occupied structure when someone else was present.
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secret, sly, or clandestine act to avoid discovery and to gain entrance into or to remain within a
residence of another without permission.’” In re Markunes (Sept. 20, 1996), Montgomery
App. Nos. 15601, 15617 (citations omitted). In the present case, Weber and Jones testified that
Gilbreath did not have permission to be in their home. The fact that Gilbreath entered under
the darkness of night when the occupants were likely to be asleep supports an inference of
stealth. This inference is strengthened by the fact that Gilbreath made little noise. Neither
Weber nor Jones was awakened by any sound they heard him make. Instead, Jones heard his
dogs barking, and Weber heard Jones yelling. Cf. State v. Buelow, Clark App. No. 2004 CA
18, 2004-Ohio-6052, ¶64 (“Buelow entered an unlocked house in the middle of night while
everyone inside the house was apparently asleep. He had not been invited into the house and,
in entering the house, he did not wake the guests sleeping on the couches in the front room.
Although there is no direct evidence that Buelow attempted to prevent the discovery of his
presence in the house, the jury could have reasonably drawn this inference from his
behavior.”).
{¶ 15} The jury also reasonably could have inferred that Gilbreath trespassed in the
home with the intent to commit a crime, namely theft. The same facts that support a finding of
stealth also may support an inference of criminal intent. State v. Washington, Scioto App. No.
09CA3303, 2010-Ohio-5366, ¶10. Although Gilbreath was apprehended before he could steal
anything, he quietly had entered the home in the middle of the night and was discovered in the
vicinity of tools while “playing with” objects on a table. These facts support an inference of an
intent to steal. Moreover, in State v. Levingston (1995), 106 Ohio App.3d 433, 436, this court
reasoned that “[w]here a defendant is apprehended within a structure that he has forcibly
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entered, there is a reasonable inference that he did so with the intent to commit a theft offense
in the absence of circumstances giving rise to a different inference.” We reach the same
conclusion here with regard to Gilbreath’s entry by stealth.
{¶ 16} If not to commit a crime, the only other conceivable reason he might have
entered the home was due to a mistake. As set forth above, however, he entered in the middle
of the night while everyone was asleep, did not attempt to wake anyone, made little noise,
was found touching items on a table, and began moving toward the front door when he was
discovered. Under these circumstances, the jury fairly could have inferred that Gilbreath had
the requisite intent to commit a crime.
{¶ 17} Having reviewed the record, we believe a rational trier of fact could have found
Gilbreath guilty of burglary, and the evidence does not weigh heavily against his conviction.
Accordingly, we overrule his assignment of error and affirm the judgment of the Clark County
Common Pleas Court.
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GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Andrew R. Picek
Kathryn L. Bowling
Hon. Richard J. O’Neill