[Cite as State v. Hogue, 2011-Ohio-3806.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
RICKY A. HOGUE : Case No. 10-CA-136
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 2009CR00367
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL H. HUSTON ERIN J. MCENANEY
20 South Second Street 21 West Church Street
4th Floor Suite 201
Newark, OH 43055 Newark, OH 43055
Licking County, Case No. 10-CA-136 2
Farmer, J.
{¶1} On July 31, 2009, the Licking County Grand Jury indicted appellant, Ricky
Hogue, on one count of aggravated burglary in violation of R.C. 2911.11. Said charge
arose from an incident wherein appellant entered his former girlfriend's residence via a
back window, entered her bedroom, and punched her companion in the face.
{¶2} A jury trial commenced on April 8, 2010. The jury found appellant guilty of
burglary in violation of R.C. 2911.12 and assault in violation of R.C. 2903.13. By
judgment entry filed June 9, 2010, the trial court sentenced appellant to three years of
community control which included a sentence of ninety days in jail.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE CONVICTION OF THE DEFENDANT-APPELLANT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED BELOW."
I
{¶5} Appellant claims his conviction for burglary was against the manifest
weight of the evidence because he had "privilege" to be inside the residence and
therefore he could not have committed a trespass.1 We disagree.
{¶6} On review for manifest weight, a reviewing court is to examine 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 jury clearly
1
We note appellant does not challenge his conviction for assault.
Licking County, Case No. 10-CA-136 3
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.
See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new
trial "should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction." Martin at 175.
{¶7} Appellant was convicted of burglary in violation of R.C. 2911.12 which
states the following:
{¶8} "(A) No person, by force, stealth, or deception, shall do any of the
following:
{¶9} "(1) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when another person other than
an accomplice of the offender is present, with purpose to commit in the structure or in
the separately secured or separately occupied portion of the structure any criminal
offense;
{¶10} "(2) Trespass 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 be present, with purpose to commit in the habitation any criminal
offense;
{¶11} "(3) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, with purpose to commit in the
structure or separately secured or separately occupied portion of the structure any
criminal offense;
Licking County, Case No. 10-CA-136 4
{¶12} "(4) 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."
{¶13} "Trespass" is defined in R.C. 2911.21(A)(1) in pertinent part as, "[n]o
person, without privilege to do so, shall***[k]nowingly enter or remain on the land or
premises of another."
{¶14} During opening statement, defense counsel admitted appellant was in the
residence of his girlfriend, Stacey Wise, on the evening in question, and agreed that the
facts were essentially uncontested; however, defense counsel argued appellant had
privilege to be there:
{¶15} "Now, you have heard the prosecutor say that he anticipates he's going to
present evidence that on July 25, 2009, that Mr. Hogue came into the house of Stacey
Wise. And we don't deny that.
{¶16} "***
{¶17} "But I also anticipate you're going to hear evidence that Mr. Hogue and
Stacey Wise were not an ex-boyfriend/girlfriend and that, in fact, they had maintained a
relationship. Not only that but Mr. Hogue had consent to be in the residence and was
there on a regular basis." T. at 54.
{¶18} "Privilege" is defined in R.C. 2901.01(A)(12) as, "an immunity, license, or
right conferred by law, bestowed by express or implied grant, arising out of status,
position, office, or relationship, or growing out of necessity."
{¶19} Appellant admitted he was no longer living at Ms. Wise's residence when
he climbed in through the back window on July 25, 2009. T. at 221. He had signed a
lease for his own apartment on April 24, 2009. T. at 136; State's Exhibit 4-A and 4-B.
Licking County, Case No. 10-CA-136 5
Appellant described their relationship from May 2009 to July 25, 2009 as "sometimes
apart." T. at 221. However, he "always felt that I lived there." T. at 222. Appellant
testified that he spent the night at the residence on July 22, 2009. T. at 224. Ms. Wise
testified that appellant moved out of her residence in April of 2009, but admitted to
having contact with him after the move, and that he sometimes continued to sleep there.
T. at 60-64. Sometimes appellant's twelve year old son stayed too. T. at 60-63.
However, while Ms. Wise provided them a place to sleep, she testified appellant was
not allowed to "come and go as he pleased" in regard to her residence. T. at 64.
Appellant was not a resident there and as far as Ms. Wise knew, appellant never had a
key to her residence. Id.
{¶20} Within the facts is specific testimony about the nature of the residence as
it bears on "privilege." Appellant stated he had a key to the residence, but never used it
because the doors were never locked. T. at 225. However, Ms. Wise testified to
changing the locks on the doors after appellant moved out. T. at 64. She specifically
recalled locking the entry doors to the residence on July 25, 2009 which appellant
conceded to as he admitted to going in through a window. T. at 85, 87, 232-233, 261.
The police officer who investigated the scene found a screen out of a large back
window, and mud on the interior floor by the window and on the bedroom door which
was kicked in by appellant. T. at 161-163. Appellant admitted to taking the screen out
and gaining access to the residence via the back window. T. at 234.
{¶21} On July 24, 2009, appellant went over to Ms. Wise's residence to retrieve
some fishing gear. T. at 227. While there, appellant observed an overnight bag next to
the room used by his son. T. at 229. It had a bag tag on it with the name "Jimmy
Licking County, Case No. 10-CA-136 6
Jones." Id. Appellant then left the residence, but returned a short time later to see if
Ms. Wise had returned. T. at 230, 232. Upon seeing that she had returned, appellant
exited his vehicle, found the doors locked, walked by the open bedroom window
overhearing sounds of intimacy, removed the screen from the back window and entered
the residence. T. at 232-234. Appellant wanted to gain entry to the residence to find
out "what was going on." T. at 235. He wanted to "confront" Ms. Wise. Id.
{¶22} We find the diminished relationship between appellant and Ms. Wise, the
separate residences, the locked doors, and the presence of another lover in Ms. Wise's
residence all substantially impacted on the credibility of appellant and his claim of
privilege. The weight to be given to the evidence and the credibility of the witnesses are
issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied
(1990), 498 U.S. 881. The trier of fact "has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on the
written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶23} Upon review, we find sufficient credible evidence of a forcible entry into a
locked home without privilege to do so, and no manifest miscarriage of justice.
{¶24} The sole assignment of error is denied.
Licking County, Case No. 10-CA-136 7
{¶25} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ William B. Hoffman________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 714
Licking County, Case No. 10-CA-136 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RICKY A. HOGUE :
:
Defendant-Appellant : CASE NO. 10-CA-136
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer__________________
_s/ William B. Hoffman________________
_s/ Patricia A. Delaney________________
JUDGES
State v. Hogue
Combined Opinion