State v. Petefish

[Cite as State v. Petefish, 2011-Ohio-6367.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 10 MA 78
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JOEL PETEFISH )
)
DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 10 CR 23

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Megan Graff
Comstock, Springer & Wilson Co.
100 Federal Plaza East
Suite 926
Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 7, 2011
[Cite as State v. Petefish, 2011-Ohio-6367.]
WAITE, P.J.

{1} Appellant, Joel Petefish, appeals the judgment of the Mahoning County

Common Pleas Court, convicting him on three counts: one of burglary, a violation of

R.C. 2911.11(A)(2)(B), a first degree felony, and two of abduction, a violation of R.C.

2905.02(A)(2)(C): One count of abduction involved Bette Merrick (“Bette”), and one

involved her daughter, Melissa Merrick (“Melissa”), both third degree felonies. For

the following reasons, Appellant’s conviction and sentence are affirmed.

Factual and Procedural History of the Case

{2} Appellant had been married to Bette and the two had a son, Joel, Jr.

They divorced in the early nineties. After the divorce Bette remarried and had a

daughter, Melissa. Bette and her husband Steven lived together with both children,

Joel, Jr. and Melissa. Appellant moved to Georgia during the early nineties and lived

there for approximately twenty years. (Tr. Vol. III, p. 506.) In the late summer of

2009, he made his way north from Georgia, staying with family along the way. (Tr.

Vol. III, pp. 494-495.) When he returned to the Youngstown area his father refused

to allow him to stay in the family home. Appellant’s mother contacted his ex-wife,

Bette, told her he had nowhere to stay other than to camp in the woods, and asked if

she could help. Bette agreed to let Appellant wash, eat, and nap from time to time,

depending on his behavior and the weather, first at the townhouse she shared with

her husband, and later in the one-bedroom apartment she and her daughter shared.

(Tr. Vol. II, p. 343.) Bette would ask Appellant to leave if his behavior was

inappropriate or if he was using alcohol or drugs. (Tr. Vol. II, pp. 345-346.)
 -2-

{3} During October of 2009, Bette and Steven began a trial separation. (Tr.

Vol. II, p. 342.) Bette and her daughter moved to a separate apartment, but Steven

continued to pay for their groceries and upkeep, and set up their phone and cable.

(Tr. Vol. II, pp. 369, 371, 382.) Bette’s apartment had only one set of keys, which she

kept. She, alone, was listed on the lease, and paid rent herself. (Tr. Vol. II, p. 375-

376.) Appellant continued to stay with Bette and her daughter at the apartment,

either several times a week, according to Bette and Melissa, or continuously,

according to Appellant. (Tr. Vols. II & III, pp. 370, 414; cf. 512) In December, Bette

decided to tell Appellant to get a job and leave. (Tr. Vol. II, pp. 345, 381.) It appears

Appellant left when she asked, but continued to return periodically during December.

{4} During the day on December 24, 2009, Bette left the apartment

unlocked, as was her practice, so her son, Joel, Jr., could come in to pick up his

Christmas present. (Tr. Vol. II, pp. 351-352; 376-377.) Bette testified that she

returned to her apartment and found Appellant there: he had her “daughter’s Kool-

Aid all over his face, and ran outside and did these snow angels and urinated on

them.” Bette stated that she was upset by his presence and his behavior, and told

him to leave. (Tr. Vol. II, pp. 381, 387; 347-348.) Bette prepared to pick up her

daughter and go to her parents’ house for the holiday. Bette and Appellant agreed

that he would drop by the gathering so she could take him to his mother’s house

before she and her daughter continued to her husband’s house to celebrate

Christmas. (Tr. Vol. II, p. 349.) Appellant never arrived at her parents’ party.

Instead, when Bette and Melissa stopped at the apartment on their way to Steven’s,
 -3-

they were surprised by Appellant, who was drunk. The apartment was in disarray.

Clothing was strewn everywhere, soda and alcohol were spilled on the floor and on

the dining room table, food was left either raw on the counter or burning in the oven.

(Tr. Vols. II & III, pp. 350; 399-400.) Bette told Appellant, again, that he had to leave.

Appellant started “ranting and raging.” (Tr. Vol. II, p. 351.) Appellant remained while

Bette and her daughter prepared to leave. Finally Melissa offered him a few dollars

and he left. (Tr. Vol. III, pp. 400; 407.)

{5} Shortly after Appellant left with her money, Melissa tried to make a

phone call and discovered the house phone was disconnected. The landline was

digital and neither Melissa nor Bette knew how to set it back up. They realized then

that Melissa’s cell phone was missing. They concluded that Appellant had taken the

phone and headed toward the door to borrow a neighbor’s phone. (Tr. Vol. II & III,

pp. 352-354; 411.) As Bette reached the door there was a knock. She saw

Appellant through the peep hole and asked him, through the door, for her daughter’s

phone. He held it up and said she had to open the door so he could hand it to her.

She cracked the door open and, rather than pass her the phone, Appellant pushed

the door more fully open, forcing the two women into the wall as he entered the

apartment. He began mumbling and yelling and screaming. When Bette told him

they were leaving and he also needed to leave, Appellant responded “[y]ou’re not

going anywhere.” (Tr. Vol. II, pp. 355-357.) The two women observed Appellant

enter the kitchen area, take two knives and put them in the pockets of his pants. (Tr.

Vols. II & III, pp. 356; 402.)
 -4-

{6} Bette and her daughter ran to the bedroom. As the two were hurrying

away from Appellant, Melissa, to whom Appellant had thrown the cell phone,

pretended to call her grandparents while actually calling her father. Under the guise

of telling her grandmother they had made it home safely, she conveyed to her father

that he needed to call the police. (Tr. Vol. III, p. 403.) As the two entered the

bedroom, Bette told Melissa to pack a bag, but Appellant broke into the bedroom and

stood over the two women “calling us names and said you’re not going anywhere.

I’m not going to allow you. You’re not going anywhere.” (Tr. Vol. II, p. 357.) While

Appellant, who was apparently drunk, alternated between standing over the women

and standing in the doorway shouting at them, he frequently put his hands in his

pockets. Both women were very aware that the knives were in his pockets and were

afraid that he was going to use the knives to hurt them. (Tr. Vol. II & III, pp. 385-386;

403-405.) Bette continually asked Appellant to leave, to leave her daughter alone,

and never come back. (Tr. Vol. II, p. 358.) Because the apartment was on the third

floor there was no exit other than the front door.

{7} Suddenly, something appeared to distract Appellant in the kitchen, and

he left the bedroom. (Tr. Vol. II, p. 384.) Bette took her daughter’s arm and the two

ran to the front door, reaching for her keys from a table as they ran past. (Tr. Vol. II,

359-360.) The two jumped into the car and drove down the street.

{8} Bette and Melissa waited in a parking lot down the block for the police

to arrive. After several cruisers arrived, they returned to the apartment. Meeting

Officer Asad Chaibi, they gave statements at the scene. The first officer to arrive on
 -5-

the scene found the apartment a mess with a single chair oddly placed in the center

of the living room. Fearing for his safety, the officer secured Appellant on the chair

while waiting for back-up. (Tr. Vol. III, pp. 426; 440; 459.) All of the officers involved

noted how shaken the women were; that they were reluctant to leave their car and

then reluctant to have to see Appellant again at the hearing seeking a restraining

order. (Tr. Vol. III, pp. 429; 441; 447; 464.)

{9} At trial, Appellant testified that the events described by Bette and her

daughter never happened. He stated that he never threatened them or prevented

them from leaving. He maintained that he returned to the Youngstown area because

Bette asked him to and to be with his son. He testified that Bette and he were in an

intimate relationship and they moved into the apartment together, and that he

regularly contributed to the household and spent more nights in the apartment than

Melissa did. Appellant testified that Melissa was upset by the obvious relationship he

had with her mother, that she always had a problem with him, and that the police

were called that night due to a family disagreement after Melissa became upset when

he asked her mother for a kiss. (Tr. Vol. III, pp. 509-510, 515, 518, 530-531.) Bette

denied any sexual relationship with Appellant. (Tr. Vol. II, p. 363.) She said that she

and her daughter shared the single bedroom in the apartment. (Tr. Vol. II., p. 342.)

{10} Appellant was indicted by the grand jury on January 28, 2010. Count

one was for burglary, a violation of R.C. 2911.11(A)(2)(B), a first degree felony.

Counts two and three charged abduction, violations of R.C. 2905.02(A)(2)(C); count

two was for the abduction of Bette, count three was for the abduction of Melissa, both
 -6-

third degree felonies. Appellant did not waive his speedy trial rights. Trial was

initially set for early April, but Appellant requested and received a continuance. The

jury trial commenced on April 19, 2010 and continued through April 22, 2010. Bette

and Melissa testified for the state; as well as responding Officers Chaibi, Ditullio,

Moran, and Quinn. Detective Lodwick, of the child and family crimes division, also

testified. Appellant and his mother testified for the defense.

{11} The defense moved for acquittal on the merits at the conclusion of the

state’s case-in-chief. The motion was overruled.

{12} A verdict on each count was returned by the jury on April 22, 2010.

Appellant was sentenced and judgment entered on May 7, 2010. Appellant received

six (6) years of incarceration on count one and four (4) years of incarceration on

counts two and three, which merged, to be served consecutively. Credit was given

for one-hundred and thirty-five (135) days served, and treatment for alcoholism

recommended. Appellant filed his timely appeal on May 10, 2010.

Assignment of Error No. 1

{13} “The State of Ohio failed to introduce sufficient evidence to prove

beyond a reasonable doubt that defendant-appellant, Joel Petefish, committed

aggravated burglary and abduction.”

Assignment of Error No. 2

{14} “The Jury verdict finding defendant-appellant, Mr. Petefish, guilty of

aggravated burglary and abduction is against the manifest weight of the evidence.”
 -7-

{15} Appellant’s two assignments of error challenge the sufficiency and the

manifest weight of the evidence; because the facts and testimony concerned in each

assignment are identical the two assignments will be addressed together.

{16} A challenge to the sufficiency of the evidence tests whether the state

has properly discharged its burden to produce competent, probative, evidence on

each element of the offense charged. An inquiry into sufficiency focuses on whether

any rational trier of fact, viewing the evidence in the light most favorable to the

prosecution, could have found the essential elements of the crime proven beyond a

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

paragraph two of the syllabus. In contrast, a challenge to the manifest weight of the

evidence addresses not the mere existence of evidence on each element, but the

effect of that evidence in inducing belief. State v. Thompkins (1997), 78 Ohio St.3d

380, 387, 678 N.E.2d 541. Even where a reviewing court finds a verdict is supported

by sufficient evidence, the same verdict may be found to be against the manifest

weight of the evidence. Id. To evaluate the manifest weight of the evidence, an

appellate court reviews the entire record, “‘weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against conviction.’” Id. at

387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The
 -8-

“[w]eight of the evidence concerns ‘the inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the issue rather than the other * * *

the party having the burden of proof will be entitled to their verdict, if [the jury], on

weighing the evidence in their minds, * * * shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight is not a

question of mathematics * * *’” (Emphasis sic.) Thompkins at 387. Although the

reviewing court is sometimes described as “the thirteenth juror” when conducting this

review; the weight to be given the evidence and the credibility of the witnesses are

still primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d

230, 227 N.E.2d 212, paragraph one of the syllabus.

{17} In this case Appellant was charged on three counts. The first count

constituted a violation of 2911.11(A)(2)(B), aggravated burglary, by trespassing in an

occupied structure as defined by R.C. 2909.01(C), while in possession of a deadly

weapon or ordnance in violation of R.C. 2923.11, a first degree felony. The second

and third counts are violations of R.C. 2905.02(A)(2)(C), abduction: one count with

regard to Bette, and one count with regard to Melissa, a minor, both third degree

felonies.

{18} Ohio Revised Code Section 2911.11 reads in pertinent part: “[n]o

person, by force, stealth, or deception, shall 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, if any of the following

apply * * * (2) The offender has a deadly weapon or dangerous ordnance on or about
 -9-

the offender’s person or under the offender’s control.” Pursuant to R.C. 2923.11, a

deadly weapon is defined as “any instrument, device, or thing capable of inflicting

death, and designed or specially adapted for use as a weapon, or possessed,

carried, or used as a weapon.” Finally, R.C. 2905.02(A)(2) and (C) provide, in part:

“No person, without privilege to do so, shall knowingly do any of the following: * * * (2)

By force or threat, restrain the liberty of another person under circumstances that

create a risk of physical harm to the victim or place the other person in fear; * * * (C)

Whoever violates this section is guilty of abduction, a felony of the third degree.”

(A) Sufficiency of the Evidence

{19} Appellant attacks the sufficiency of the evidence with regard to two

elements of the burglary charge, trespass and use/possession of a deadly weapon,

and on the restraint element of the abduction charge.

(1) Trespass

{20} Appellant’s argument that the state failed to present sufficient evidence

establishing the trespass element of burglary rests on the fact that his testimony

conflicts with testimony of other witnesses concerning the extent of his privileges in

Bette’s apartment. It is undisputed that over the years since the end of their marriage

Bette sometimes allowed Appellant to sleep in her place of residence. Bette also

allowed Appellant to shower and eat when necessary, and to store some seasonal

possessions, e.g. golf clubs, that he was unable to carry with him. It is equally

undisputed that Bette required Appellant to follow rules, including abstaining from

alcohol, when he stayed with her, and that he was required to leave when she asked.
 -10-

The parties also agree that the apartment is an occupied structure; that Appellant’s

name does not appear on the lease; that Appellant does not pay rent, utilities, or

make regular contributions to the household; and that Appellant does not have his

own set of keys and is unable to come and go without making prior arrangements

with Bette. Appellant admits he receives mail at his mother’s house, not the

apartment. The record also reflects that he sleeps in a variety of places other than

the apartment, including the woods.

{21} Bette testified that on the day of the incident she told Appellant he had

to leave and left the apartment with her daughter for a family party. When Bette and

her daughter returned to the apartment expecting it to be empty, they instead found

Appellant, drunk, and the apartment in disarray. Bette told Appellant to leave, he

became angry, and initially left, taking her daughter’s cell phone with him. Appellant

returned almost immediately, pushed his way into the apartment, picked up two

knives, refused to leave, and prevented Bette and her daughter from leaving.

{22} As we have previously noted, “[a] trespass may occur even after lawful

entry onto the premise if the privilege to remain on the premises has been terminated

or revoked.” State v. Keyes, 7th Dist. Case No. 08 CO 11, 2008-Ohio-6592 ¶24

(finding the quoted instruction concerning revocation proper.) Even where a

revocation of a privilege is not explicit, the termination of the privilege to remain may

be inferred. State v. Steffen (1987), 31 Ohio St.3d 111, 115, 509 N.E.2d 383.

(“Under the circumstances of this case, even assuming lawful initial entry, the jury

was justified in inferring from the evidence that appellant's privilege to remain in [the
 -11-

victim's] home terminated the moment he commenced his assault on her.”) Here, as

in Keyes, there was an actual revocation of privilege and there is no need to resort to

inference of revocation. See State v. Morton, 147 Ohio App.3d 43, 2002-Ohio-813,

768 N.E.2d 730, ¶38, 51. The fact that Appellant was allowed to store property in the

apartment, had conditional privileges within the property, and may have hung

pictures for Bette or performed other minimal maintenance does not alter her ability

to verbally terminate any privilege to remain. The instruction given the jury on the

trespass element, without objection, was that “[a] spouse may be criminally liable for

trespass and/or burglary in the dwelling of the other spouse who is exercising

custody or control over that dwelling.” (Tr. Vol. III, p. 622.)

{23} Appellant cites Radvansky v. City of Olmstead Falls, 2005 Fed. App.

0024P, 395 Fed. 3d 291 (6th Cir. 2005) for the proposition that a tenant cannot be

prosecuted for trespassing in the leased property, in support of his argument.

Radvansky addresses a situation where a tenant was arrested and indicted without

probable cause. Mr. Radvansky had a verbal rental agreement whereby he paid

$450 a month to share the common areas of a house, excluding his separate locked

bedroom, with the homeowner. Mr. Radvansky was current through April, but $60

dollars short on his May rent. While he was out of town in early May, the owner

changed the locks. When he returned to the property he made multiple attempts to

enter and retrieve property.

{24} On Mr. Radvansky’s third attempt he broke a window and screen to

crawl into the house. A neighbor saw him and called the police who responded to a
 -12-

burglary in progress. Mr. Radvansky was arrested on the premises, “[d]espite the

officers’ pre-existing knowledge that he was currently involved in a dispute with his

landlord, his repeated protestations that he lived there, undisputed documentary

evidence which supported his claim [including his mail to that address], and the

presence of his personal property, clothing and furnishings within the house.” Id. at

269; see also 300-301; 304; 307. The Sixth Circuit found that a month-to-month

tenancy had been created by payment and acceptance of rent, and that under the

circumstances the information relied on by the arresting officers did not constitute

probable cause. Id. at 304. The fact that Mr. Radvansky was a bona fide rent-paying

tenant was dispositive.

{25} None of the circumstances and indicia that supported Mr. Radvansky’s

claim of tenancy exist in the matter at bar. Appellant has failed to establish any legal

right to the property that would prevent Bette’s testimony from establishing the

elements of trespass. The jury was instructed on the elements of trespass and the

testimony at trial addresses those elements. Appellant’s argument as to the

credibility of Bette’s testimony and the fact that his own testimony differs is relevant

only to the weight of that testimony, not the question of whether it is sufficient to

establish the elements of the offense. We hold that the state’s evidence is sufficient

as to the trespass element.

(2) Deadly weapon.

{26} Appellant makes two arguments concerning the element regarding his

deadly weapons charge. First, Appellant concedes that he placed two knives in his
 -13-

pockets, but argues that the knives are not in and of themselves deadly weapons.

Appellant’s argument is without merit. State’s exhibit two clearly indicates Appellant

had two knives, one in his back right pocket and the second labeled: “FROM HIS

RIGHT CARGO POCKET, A SWITCHBLADE WITH A CLIP VISIBLE.” (State’s Exh.

2, p. 2.) As detailed below, a switchblade is a deadly weapon within the meaning of

R.C. 2911.11, because although not all knives are automatically classified as

weapons, the fact that a switchblade is spring mounted and may be deployed with

one hand places it in the category of “any instrument * * * designed or specially

adapted for use as a weapon.” R.C. 2923.11.

{27} In determining the types of knives that constitute deadly weapons, a

number of courts have found R.C. 2923.20 instructive. The code section, captioned:

“Unlawful transactions in weapons,” prohibits the manufacture of, possession of, and

sale or furnishing “to any person other than a law enforcement agency for authorized

use in police work, any brass knuckles, cestus, billy, blackjack, sandbag, switchblade

knife, springblade knife, gravity knife, or similar weapon.” R.C. 2923.20. (See, e.g.

In re Gochneaur, 11th Dist. No. 2007-A-0089, 2008-Ohio-3987, ¶19, where the court,

citing the statute, concluded “knives opening easily with one hand may be considered

(for obvious reasons), as being designed or adapted for use as weapons.” See also,

State v. Cattledge, 10th Dist. No.10AP-105, 2010-Ohio-4953, inter alia).

{28} Several other appellate courts have found that switchblades are

weapons per se. A switchblade knife, by virtue of its spring-loaded action, is by

definition adapted for use as a weapon. State v. Johnson, 8th Dist. No. 81299, 2003-
 -14-

Ohio-4177, at ¶23 (where the knife was “a pocket knife which required both hands to

open” and “not a switch blade,” the state had to present evidence that it was

designed or adapted for use as a weapon); see also State v. Mullins (Dec. 2, 1981),

1st Dist. No. C–810093, 1981 WL 10140 at *4-5 (the fact that “a switchblade knife

can be used as a toothpick” does not remove it from the statutory category of

“designed or specifically adapted for use as a weapon”); and former R.C. 2923.021

(prohibiting possession of ‘any knife fitted with a mechanical device for automatic

release of the blade, opening the knife and locking the knife in the open position,

commonly known as a switch or automatic spring knife’),” as well as State v.

Totarella, 11th Dist. No. 2002-L-147, 2004-Ohio-1175, ¶60 (in which the court also

found that a switchblade was a deadly weapon).

{29} It appears that no court in the state has determined that a switchblade

is not a weapon. In fact, some courts have held that switchblades are, per se,

deadly. The court in State v. Orlett (1975), 44 Ohio Misc. 7, 335 N.E.2d 894

elaborated: “It is further acknowledged that some weapons are per se deadly.

Others, owing to the manner in which they are used, become deadly. A gun, pistol or

switchblade knife are per se deadly. Other weapons can become deadly and

assume deadly character depending upon the manner and circumstances of their

use. There is a question of fact presented in such cases and where such a question

exists, the fact must be resolved by either the jury or the court. In determining

whether an instrument not inherently ‘deadly’ or dangerous assumes these

characteristics, the court may consider the nature of the weapon, the manner of its
 -15-

use, the actions of the user, the intent and the mind of the user and the capability of

the instrument to inflict death or serious bodily harm.” Id. at 9. See also State v. Ash,

(May 3, 1979), 8th Dist. No. 38808, (“For purposes of R.C. 2923.11(A), there are two

types of weapons: those which are per se deadly, such as a gun, pistol, or

switchblade knife; and those which can become deadly and assume deadly character

depending upon the manner and circumstances of their use.”) The presence of a

switchblade in a jacket pocket is sufficient to support a conviction for concealing a

deadly weapon in violation of R.C. 2923.12. State v. Simpson (May 22, 1985), 1st

Dist. No. C-840597.

{30} Appellant never disputes that one of the two knives in question is a

switchblade. In fact, Appellant never mentions or addresses that detail, instead

repeatedly referring to it as a “pocket knife” and maintaining that a pocket knife is not

a weapon. Appellant relies on State v. Cathel (1998), 127 Ohio App.3d 408, 713

N.E.2d 52, mis-citing the case as standing for the proposition that “[c]ircumstances

cannot transform a pocket knife into a weapon.” (Appellant’s Brf., p. 11.) The Ninth

District’s decision actually focused on the fact that although “[t]here is no dispute that

the knife in question is capable of inflicting death,” the pocket knife in that instance

took two hands to open and “was neither a switch or other spring-loaded blade, nor a

gravity blade capable of instant one-handed operation, and differs only in its

somewhat greater length from the familiar type of clasp knife carried as a useful tool

by thousands.” Id. at 411, 413 citing State v. Anderson, 2 Ohio App.3d 71, 440

N.E.2d 814. The circumstances to which the court refers are those surrounding the
 -16-

reasons Mr. Cathel was detained by police and his knife discovered. The Cathel

court concluded, contrary to Appellant’s argument, that although neither hiding from

the police in the early morning hours, nor walking down the street in the early

morning hours (the reasons the defendant was detained) could convert possession of

a folding knife into possession of a deadly weapon, there may exist other

circumstances that could. The fact that the knife Appellant carried, unlike the knives

at issue in Cathel and Anderson, is a switchblade, similar to the knives involved in

Orlett, Simpson, Ash, Totarella, Mullins, Johnson, leads us to find that it is a “deadly

weapon” within the meaning of R.C. 2911.11(A)(2).

{31} Appellant’s second argument concerning the deadly weapon element

focuses on the language of R.C. 2911.11(A)(2). Appellant claims that the statute

requires that the deadly weapon actually be used, not merely carried or possessed,

during the commission of the crime and that its use must be proved beyond a

reasonable doubt. This conclusion is contrary to the plain language of the statute as

well as the very authority cited by Appellant. The statute reads in the disjunctive. A

violation occurs when “[t]he offender has a deadly weapon or dangerous ordnance

on or about the offender’s person or under the offender’s control.” R.C.

2911.11(A)(2).

{32} When the statute was revised in 1973 to consolidate ten separate

breaking and entering offenses into three, the legislature identified the relative

potential for harm as the distinguishing factor among the consolidated offenses. It is

due to the focus on the potential for physical harm that aggravated burglary, which
 -17-

“carries the highest degree of risk that someone may be harmed,” “is the most

serious of the three breaking and entering offenses in the new code” because it is

committed by an offender who possesses or controls a deadly weapon or dangerous

ordnance. R.C. 2911.11, LSC Note 1973. The plain language of the statute tracks

the intent of the legislature: the mere possession of a deadly weapon on the person

when unlawfully entering an occupied structure increases the risk of harm to persons,

therefore, it is possession during commission that the enhanced penalty is designed

to deter.

{33} Possession of a deadly weapon is sufficient to satisfy R.C.

2911.11(A)(2), (B). The fact that Appellant never “brandished” the weapon is

irrelevant. Once Appellant has conceded he possessed the knives, the only relevant

question is whether the knives in question are “deadly weapons.” As discussed

above, the fact that one of the two “pocket knives” was, in fact, a switchblade, clearly

places the knife in the prohibited category. Hence, the state’s evidence is sufficient

as to this element.

(3) Abduction.

{34} Appellant’s only “sufficiency” argument with regard to abduction is to

challenge the testimony of Melissa and Bette as “self serving.” Questioning the

motivations of witnesses does not rise to the level of a sufficiency issue. The

relevant inquiry in sufficiency 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
 -18-

Ohio St.3d 259, paragraph two of the syllabus. As Appellant’s own argument

concedes, the state offered probative testimony from both women that he forced his

way into the apartment, took a pair of knives, put them in his pockets, then forced his

way into the bedroom where they had retreated, stood over them, placed his hands

in his pockets where the knives were kept and repeatedly told them they could not

leave. (Tr. Vol. II, p. 355.) Bette further testified she thought at the time that he was

so drunk and in such a rage that either she or Melissa would be killed. (Tr. Vol. II, p.

357.) The testimony given by Melissa tracks that of her mother. Deputy Chaibi

further testified that when the two women met him at the apartment, they were

“terrified.” (Tr. Vol. III, p. 429.) The record of testimony in this instance does not

support a conclusion that the trier of fact lost its way. It is certainly sufficient to

establish the elements of the offense.

(B) Manifest weight of the evidence.

{35} “’Weight is not a question of mathematics, but depends on its effect in

inducing belief.’ (Emphasis sic.)” (Internal citations omitted.) State v. Barnhart, 7th

Dist. No. 09 JE 15, 2010-Ohio-3282, ¶24, quoting Thompkins, supra, at 387. The

weight to be given the evidence and the credibility of the witnesses are primarily for

the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d

212, paragraph one of the syllabus. The state’s case was supported by the

testimony of both victims, who were consistent with one another, consistent with their

statements at the scene, and consistent with their later discussions with Detective

Lodwick. The impressions of all the officers who responded to the call were of two
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extremely frightened women who were reluctant to leave their car when they knew

that Appellant was still inside the apartment, and who were reluctant to go to court

when they knew he would be there. As discussed above, the testimony presented by

the state established all elements of the crimes charged. Although Appellant

attempted in his testimony to suggest an alternative explanation for the events of the

day, the jury did not find this testimony persuasive. Credibility is an issue for the jury

and their decision is to be given due deference. There is nothing in the record, here,

to suggest that the fact finder lost its way. Appellant’s two assignments of error are

overruled.

Conclusion.

{36} Appellant’s two assignments of error, challenging the sufficiency and

the manifest weight of the evidence are overruled and the judgment of the trial court

is affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.