State v. Russell

[Cite as State v. Russell, 2018-Ohio-4524.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-59
:
v. : Trial Court Case No. 2017-CR-432
:
JEVON C. RUSSELL, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 9th day of November, 2018.

...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee

CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 10 West Second Street, Suite 2400,
Dayton, Ohio 45402
Attorney for Defendant-Appellant

.............

TUCKER, J.
 -2-

{¶ 1} Defendant-appellant, Jevon Cedric Russell, Jr., appeals from his convictions

for one count of aggravated burglary, a first degree felony in violation of R.C.

2911.11(A)(2), and one count of having weapons while under disability, a third degree

felony in violation of R.C. 2923.13(A)(2). Raising five assignments of error, Russell

argues that his convictions should be reversed because the trial court’s instruction to the

jury on the charge of aggravated burglary was incomplete; because the trial court abused

its discretion by overruling his motion for a mistrial; because the trial court improperly

ruled on objections without apprising the jury; because the State failed to present

sufficient evidence to prove his guilt with respect to each of the elements of aggravated

burglary; and because the verdicts were against the manifest weight of the evidence.

{¶ 2} As Russell argues, the trial court’s instruction did not accurately mirror the

text of R.C. 2911.11(A)(2), but we find on the record of this case that the outcome of the

trial would not otherwise have been different. We find further that the trial court did not

abuse its discretion by overruling Russell’s motion for a mistrial; that the court’s failure to

inform the jury of its rulings on objections did not affect the outcome of the trial; that the

State presented sufficient evidence to prove the elements of aggravated burglary; and

that the verdicts were not against the manifest weight of the evidence. Therefore,

Russell’s convictions are affirmed.

I. Facts and Procedural History

{¶ 3} On the evening of April 10, 2017, Samantha Williamson heard sounds

coming from the front door to her apartment indicating that somebody outside was
 -3-

attempting to force the door open.1 Trial Tr. 42:5-42:7 and 43:23-44:17. She opened

the door herself, and Russell and another man, Brandon Sparks, entered without her

permission.2 Id. at 44:13-45:21. Russell was carrying two firearms.3 See id. at 46:10-

46:14.

{¶ 4} Once inside, Sparks asked Williamson where her boyfriend was. 4 Id. at

45:22-46:9. Williamson said only that her boyfriend was not there at the time, apparently

prompting Russell and Sparks to try “to walk into one of the spare bedrooms” to verify

Williamson’s answer. See id. They were, however, unable to open the door to the

bedroom, which Williamson told them was broken, so they grew frustrated and left.5 See

id. As the two men departed, Russell turned to Williamson and advised her to inform her

boyfriend “that they had a bullet for his head.” Id. They also helped themselves to

several items of her boyfriend’s personal property, including his wallet.6 See id. at 47:7-

1In his brief, Russell describes the sounds Williamson heard as “a knock at the door.”
Appellant’s Br. 5. He mistakenly refers to Williamson as “Samantha Williams” or “Ms.
Williams” throughout much of his argument. Id. at 5-8, 10 and 17.
2Sparks testified that he never entered Williamson’s apartment but remained outside
near the entrance. Trial Tr. 190:6-192:15.
3 According to Sparks, Russell had a single firearm, not two. Trial Tr. 186:1-187:5,
188:18-189:5 and 191:10-192:19.
4 Sparks testified that Russell made the inquiry. Trial Tr. 191:10-192:2.
5Williamson might have dissuaded Russell and Sparks from forcing their way into the
bedroom by telling them that her children were within, rather than by telling them that the
door (or the doorknob) was broken. See Trial Tr. 377:1-377:19.
6 The other items were two fishing or hunting knives. See Trial Tr. 47:7-47:11 and
127:14-127:16. Williamson testified that Sparks and Russell each took something,
though Sparks denied that he took anything himself and testified that Russell took only
the two knives. See id. at 47:7-47:25 and 193:5-193:10.
 -4-

47:18, 127:7-127:16 and 193:5-193:10. The encounter lasted somewhat less than three

minutes. Id. at 50:4-50:12.

{¶ 5} Shortly afterward, Williamson contacted the Fairborn Police Department, and

officers responded to her residence. See id. at 48:1-48:8 and 50:13-50:18. Williamson

identified Russell and Sparks as the intruders in her spoken account of what had

happened, as well as in a written statement.7 See id. at 57:20-61:18, 377:1-378:16,

383:5-383:24, 394:22-396:11 and 525:2-527:25. Williamson’s boyfriend—who was, in

fact, hidden in the apartment during Williamson’s encounter with Russell and Sparks—

also provided spoken and written statements, as did one of Williamson’s neighbors. Id.

at 42:18-42:20, 122:11-125:13, 157:9-161:11, 333:21-336:18, 338:4-338:10 and 348:1-

348:12. Before Russell and Sparks entered Williamson’s apartment, they had asked the

neighbor whether he knew the whereabouts of Williamson’s boyfriend. See id. at 160:5-

160:19.

{¶ 6} Officers arrested Sparks later that night at his home, not far from where

Williamson lived. Id. at 246:4-249:4. Sparks, who later entered into a plea agreement

with the State, cooperated with the investigation, giving officers information that led to

Russell’s arrest and to the recovery of two loaded handguns hidden near a fence

separating Williamson’s apartment complex from adjacent commercial lots. See id. at

7 Williamson seems to have met Sparks in advance of the incident on April 10, 2017.
See Trial Tr. 45:1-45:9 and 60:11-62:9. An officer testified that Williamson initially
identified Russell as “Cedric Russell,” apparently because she knew Russell by his middle
name, instead of his first name. See id. at 61:8-62:13 and 378:1-378:16. In her
testimony at trial, Williamson acknowledged that she had heard her boyfriend refer to
Russell as “Ced,” but she otherwise repudiated the statements attributed to her by the
officer. Id. at 57:20-60:24 and 62:4-62:13.
 -5-

209:5-209:22, 253:1-254:8, 259:3-259:9, 262:6-262:20, 273:7-274:22 and 280:13-281:8.

After they recovered the handguns, officers located Russell at a nearby residence and

placed him under arrest. Id. at 262:6-262:20, 280:13-281:5. Inside the residence,

officers discovered an Ohio driver’s license belonging to Williamson’s boyfriend, along

with documents bearing Russell’s name. Id. at 127:17-127:22, 295:1-296:1 and 297:11-

297:20.

{¶ 7} Williamson identified Russell again in a photographic line-up during an

interview at the offices of the Fairborn Police Department on April 14, 2017. See id. at

50:13-55:9 and 57:20-60:4. Yet, on April 17, 2017, Williamson submitted a notarized

affidavit to a detective in which she averred that she knew Russell personally and denied

that she had seen him with Sparks in her apartment. Id. at 64:1-65:13. On the same

date, Williamson’s neighbor viewed photographic line-ups and identified Russell and

Sparks as the men who had asked him about Williamson’s boyfriend. See id. at 161:14-

169:13.

{¶ 8} A Greene County grand jury issued an indictment against Russell on August

11, 2017, charging him as follows: Count 1, aggravated burglary pursuant to R.C.

2911.11(A)(2); Count 2, burglary pursuant to R.C. 2911.12(A)(1); and Count 3, having

weapons while under disability pursuant to R.C. 2923.13(A)(2). Counts 1 and 2 were

each accompanied by a firearm specification under R.C. 2941.145 and a repeat-offender

specification under R.C. 2941.149. Count 3 was accompanied by two forfeiture

specifications directed to the handguns recovered by officers from the grounds of

Williamson’s apartment complex.

{¶ 9} On August 28, 2017, Russell’s case proceeded to a trial by jury on Counts 1
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and 2. At his request, the trial court severed Count 3, which was subsequently tried to

the bench. Russell’s jury trial concluded on August 31, 2017, around which time the

State moved to dismiss Count 2 and the specifications attached to it.8 The trial court

sustained the State’s motion, and the jury found Russell guilty of aggravated burglary as

charged in Count 1, including a separate finding that Russell had had a firearm on or

about his person during the commission of the offense. On September 21, 2017, the

trial court found that Russell was a repeat violent offender pursuant to R.C. 2941.149,

and on September 28, 2017, the court found Russell guilty as charged on Count 3.

{¶ 10} Russell appeared for sentencing on October 25, 2017. The trial court

imposed a sentence of 11 years’ mandatory imprisonment on Count 1; a mandatory term

of three years on the attached firearm specification, to be served consecutively; a

mandatory term of two years on the attached repeat-offender specification, to be served

consecutively; a sentence enhancement of one year pursuant to R.C. 2929.141, to be

served consecutively; 9 and a sentence of three years on Count 3, also to be served

consecutively. In total, the trial court sentenced Russell to 20 years, of which 16 were

mandatory. On November 3, 2017, Russell timely filed his notice of appeal to this court.

II. Analysis

8 In an entry filed on August 31, 2017, memorializing its ruling on the State’s motion, the
trial court indicated that the State had moved for dismissal of Count 2 “at the conclusion
of its case in chief.” The transcript, however, is inconsistent with this assertion; the
motion seems to have been made off the record and then incorporated by reference.
See Trial Tr. 637:24-638:11.
9 The trial court imposed the one-year sentence enhancement pursuant to R.C. 2929.141
because Russell was serving a period of postrelease control at the time he committed the
offense of aggravated burglary.
 -7-

{¶ 11} For his first assignment of error, Russell argues that:

THE VERDICT SHOULD BE REVERSED BECAUSE THE JURY

WAS NOT GIVEN A COMPLETE JURY INSTRUCTION FOR

AGGRAVATED BURGLARY[.]

{¶ 12} Russell faults the trial court for failing to instruct the jury that it could not find

him guilty of aggravated burglary unless it determined, in addition to other elements, that

a person—excluding himself and any accomplice of his—was present when he and

Sparks entered Williamson’s apartment without permission. See Appellant’s Br. 10. On

this basis, Russell maintains that his conviction for aggravated burglary should be

reversed. Id. He tacitly acknowledges that his trial counsel did not object to the

omission. See id. at 9-10.

{¶ 13} Apart from “plain error,” an appellate court “ ‘ “will not consider any error

* * * not call[ed] to the trial court’s attention at a time when [the] error could have been

avoided or corrected.” ’ ” (Citation omitted.) See State v. Quarterman, 140 Ohio St.3d

464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15-16, quoting State v. Awan, 22 Ohio St.3d 120,

122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545

(1968), paragraph three of the syllabus. Russell has thus waived all but plain error

because he did not object to the jury instructions at trial. State v. Rhines, 2d Dist.

Montgomery No. 24417, 2012-Ohio-3393, ¶ 9, citing State v. Waddell, 75 Ohio St.3d 163,

166, 661 N.E.2d 1043 (1996); Trial Tr. 712:1-712:7. By the plain-error standard, reversal

is warranted only if “the outcome of the trial would clearly have been different” but for the

alleged error. Waddell at 166.

{¶ 14} Russell was charged in Count 1 with aggravated burglary under R.C.
 -8-

2911.11(A)(2), according to which:

No 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 * * * [t]he offender has a deadly weapon * * * on or about

[his] person or under [his] control.

(Emphasis added.) Here, the trial court delivered the following instruction to the jury:

Before you can find the Defendant guilty, you must first find beyond

a reasonable doubt that on or about the 10th day of April, 2017, and in

Greene County, Ohio, the Defendant did, by force, or stealth, or deception,

trespass into an occupied structure located [in Fairborn] with the purpose to

commit the offense of theft when the offender [sic] had a deadly weapon, to

wit a firearm, on or about his person or under his control.

Trial Tr. 698:15-699:3. The court defined the term “occupied structure” as “any house or

building which at the time is occupied as the permanent or temporary habitation of any

person, in which at the time a person is present or likely to be present.” Id. at 700:24-

701:5; see also R.C. 2909.01(C)(4).

{¶ 15} Russell contends that the trial court’s instruction did not accurately define

aggravated burglary in the absence of the element requiring the presence of a person

other than an accomplice of the offender during the commission of the offense.

Appellant’s Br. 10. He characterizes this inaccuracy as reversible error because the

instruction, as delivered, would have allowed the jury to find him guilty of aggravated

burglary even if he and Sparks had trespassed into Williamson’s apartment and were, at
 -9-

that time, the only two persons present. See id.

{¶ 16} Although Russell’s argument has merit inasmuch as the trial court did omit

an element of the offense, we find that the outcome of the trial would not have been

different had the jury instructions precisely tracked the language of R.C. 2911.11(A)(2).

The jury heard testimony from two witnesses, Williamson herself and her boyfriend, who

were present in Williamson’s apartment when Russell and Sparks intruded.10 Sparks,

for that matter, testified that he witnessed Russell enter the apartment in Williamson’s

presence. See Trial Tr. 191:10-191:25. Moreover, in making his defense, Russell took

the position that Williamson had truthfully identified Sparks as one of two men who

trespassed into her apartment; though Williamson also identified Russell as one of the

two men, he attributed this aspect of her testimony to “external pressure” and called

Sparks “a liar.” See, e.g., id. at 36:5-36:19, 662:21-663:10, 664:21-666:5 and 671:3-

671:17.

{¶ 17} Neither the State nor Russell ever questioned whether Williamson was

present in her apartment when the trespass occurred, and Russell himself expressly

presupposed that she was. The absence of the omitted element, then, had no

discernable impact on the outcome of the trial. Russell’s first assignment of error is

overruled.

{¶ 18} For his second assignment of error, Russell argues that:

IT WAS REVERSIBLE ERROR TO DENY APPELLANT’S

REQUEST FOR A MISTRIAL AFTER A POLICE OFFICER TESTIFIED

10Williamson’s boyfriend testified that he heard Sparks’s voice but did not see either
Russell or Sparks during the incident. Trial Tr. 124:3-124:25 and 125:18-127:9.
 -10-

THAT A WITNESS WAS NOT FEELING SAFE WHILE BEING

TRANSPORTED[.]

{¶ 19} Sparks aided the Fairborn Police Department in its investigation on the night

of April 10, 2017. Trial Tr. 253:1-254:8, 259:3-259:9, 262:6-262:20, 273:7-274:22 and

280:13-281:8. Among other things, he accompanied officers to the residence where he

had indicated Russell would be found. Id. at 273:7-274:25. At trial, one of the officers

testified that before Russell was taken into custody, Sparks was transported away from

the scene because “[h]e was not feeling safe at that time.” Id. at 276:9-276:16. Russell

objected and moved for a mistrial, but the trial court overruled his motion. Id. at 276:17-

277:8. Instead, the court sustained the objection and cautioned the jury “to disregard the

comment about Mr. Sparks not feeling safe,” emphasizing that the comment was “not to

be used in any way as evidence.” Id. at 278:24-279:20. Russell contends that the court

erred by overruling his motion for a mistrial because the officer’s testimony “materially

prejudiced” his case. Appellant’s Br. 13.

{¶ 20} A mistrial should “be declared only when * * * a fair trial is no longer

possible.” (Citations omitted.) See State v. Franklin, 62 Ohio St.3d 118, 127, 580

N.E.2d 1 (1991). Whether “to grant a mistrial is a question left [to] the discretion of the

trial court, and the court’s decision will not be disturbed on appeal absent a finding that

the decision constitutes an abuse of discretion.” (Citation omitted.) State v. Wilkins,

183 Ohio App.3d 824, 2009-Ohio-4575, 919 N.E.2d 241, ¶ 51 (2d Dist.). A decision

satisfies this standard if it evinces “an arbitrary, unreasonable [or] unconscionable attitude

on the part of the court.” (Citation omitted.) Id.

{¶ 21} Russell insists that he was materially prejudiced because the jury heard that
 -11-

Sparks, “[o]ne of the [S]tate’s primary witnesses, who testified * * * under a plea deal,”

reputedly felt unsafe at the scene of Russell’s arrest. Appellant’s Br. 13. Yet, Sparks

himself had already testified by that point in the trial, meaning that the jury had already

had a first-hand opportunity to observe his demeanor, to evaluate his account of events

and to make an assessment of his credibility. The officer’s statement about Sparks “not

feeling safe,” furthermore, was an isolated remark and seems likely to have had a

negligible impact on the jury. More importantly, the trial court sustained Russell’s

objection to the remark and promptly gave a curative instruction, with which the jury

presumably complied. State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995)

(noting that a “jury is presumed to follow the instructions, including curative instructions,

given it by a trial judge”); State v. Goldick, 2d Dist. Montgomery No. 22611, 2009-Ohio-

2177, ¶ 42; Trial Tr. 278:24-279:20. Therefore, we find that the trial court did not abuse

its discretion by refusing to grant a mistrial. Russell’s second assignment of error is

overruled.

{¶ 22} For his third assignment of error, Russell argues that:

APPELLANT’S SUBSTANTIAL RIGHTS WERE AFFECTED WHEN

THE TRIAL JUDGE DID NOT RULE ON OBJECTIONS ON THE

RECORD[.]

{¶ 23} Russell claims that his “constitutional rights were violated” because the trial

court failed to announce its rulings on objections to the jury.11 Appellant’s Br. 14-16. At

11 Although the State suggests that Russell also challenges the merits of the trial court’s
ruling on a specific objection, Russell’s third assignment of error is directed only to the
propriety of the trial court’s practice of resolving objections without informing the jury.
Compare Appellant’s Br. 14 and 16 with Appellee’s Br. 16.
 -12-

trial, Russell did not object to this practice, so we review for plain error.

{¶ 24} Appearances to the contrary notwithstanding, Russell acknowledges that

the trial court ruled on objections for the record—he quotes seven examples in his brief.

Id. In one of these, which Russell offers as the prime example of the “fundamental

[un]fairness” of “rul[ing] upon [objections] outside the [hearing] of the jury,” his trial counsel

objected to a question posed to Sparks on direct examination by the State. See id. at 14

and 16. The court ruled on the objection after the following exchange, during which the

State was addressing its plea agreement with Sparks:

THE STATE: And you and I have met before—just to be fair to the

jury and the Defendant. Is that right?

SPARKS: Yes, sir.

THE STATE: Can you let—just tell the ladies and gentlemen of the

jury what it is that I asked you to do every time that we met with each other.

SPARKS: To be honest.

DEFENSE COUNSEL: Your Honor, I’m going to object.

THE COURT: Approach.

Trial Tr. 211:1-211:12. A bench conference began at that point. Id. at 211:13.

{¶ 25} In conference, Russell’s counsel explained that he had objected on the

basis of “improper bolstering,” and the State consented to withdraw the question. Id. at

212:5-212:14. With the issue thus resolved, the trial court sustained the defense’s

objection. Id. at 213:1-213:2. The parties acknowledged the court’s ruling, and the

conference concluded. Id. at 213:3-213:7. Afterward, the State resumed its

examination of Sparks, but rather than formally withdrawing the previous question, it
 -13-

proceeded to ask a series of questions about Sparks’s connection to Russell and the

circumstances of Russell’s arrest. See id. at 213:8-217:14. Russell argues that the jury

was consequently “left with the answer that [Sparks was] ‘to be honest’ even though that

should have been stricken from the record upon the [c]ourt’s ruling.” Appellant’s Br. 14.

{¶ 26} We agree generally that the trial court should have informed the jury of its

rulings on objections. See, e.g., State v. Green, 2d Dist. Greene No. 2007 CA 2, 2009-

Ohio-5529, ¶ 123-132; State v. Brown, 5th Dist. Richland No. 05 CA 41, 2006-Ohio-3277,

¶ 16-22. Nevertheless, given that the court did not notify the jury of its rulings on either

of the parties’ objections, the lack of notification affected the State and Russell alike,

vitiating the prospect that Russell was unfairly prejudiced. As well, in its opening and

closing instructions, the court told the jury that it “must not speculate as to why” an

objection “to any question” was sustained “or what the answer to such question” would

have been; this is a standard instruction that the jury is presumed to have followed. State

v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995) (noting that juries are presumed

to follow instructions); compare with State v. Thomason, 2018-Ohio-1228, ___ N.E.3d

___, ¶ 16-19 (2d Dist.) (holding that the defendant-appellant was not prejudiced by her

trial counsel’s failure to request an immediate curative instruction after the trial court

sustained counsel’s objection to hearsay testimony, because the “trial court instructed the

jury before and after the presentation of evidence” not to speculate as to why an objection

had been sustained). Russell, then, cannot have been prejudiced by the trial court’s

failure to inform the jury regarding matters not subject to the jury’s consideration.

{¶ 27} With respect to Sparks’s testimony that the State asked him “[t]o be honest,”

we note that Russell’s trial counsel did not request a curative instruction. Trial Tr. 213:1-
 -14-

213:7. Even if Russell had preserved this issue for review on the merits, however, the

presumption that the jury followed the trial court’s opening and closing instructions

essentially forecloses the possibility that the lack of a curative instruction resulted in

prejudice. See Thomason at ¶ 16-19.

{¶ 28} We find that the outcome of the trial would not clearly have been different

had the trial court notified the jury of its rulings on the parties’ objections. Russell’s third

assignment of error is overruled.

{¶ 29} For his fourth assignment of error, Russell argues that:

THERE WAS INSUFFICIENT EVIDENCE TO CONVICT

APPELLANT OF AGGRAVATED BURGLARY[.]

{¶ 30} Russell contends that his conviction for aggravated burglary should be

reversed because the State did not present sufficient evidence to prove his guilt. In

support of this contention, Russell presents a series of citations to the record that, by

implication, appear to have been intended to cast doubt on the credibility of Sparks’s

testimony. See Appellant’s Br. 17.

{¶ 31} Sufficiency of the evidence “is the legal standard applied to determine

whether * * * the evidence [in a given case] is [adequate] as a matter of law to support

the jury[’s] verdict.” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a

challenge to a conviction based upon the sufficiency of the evidence, 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.’ ” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
 -15-

(1991), paragraph two of the syllabus.

{¶ 32} Russell’s argument regarding the sufficiency of the evidence lacks merit.

He not only fails to specify which of the elements of aggravated burglary was allegedly

not proven, but more problematically, he bases his argument entirely on the question of

Sparks’s credibility—a matter within the jury’s prerogative. See, e.g., State v. Williams,

2d Dist. Miami No. 2004 CA 6, 2004-Ohio-6218, ¶ 22.

{¶ 33} At trial, Williamson and Sparks testified that Russell forcibly trespassed into

Williamson’s apartment while in possession of a firearm, and Williamson’s neighbor

testified that Russell had asked him about Williamson’s boyfriend moments before the

incident. Trial Tr. 43:23-45:21, 46:10-46:14, 47:7-47:18, 57:20-61:18, 122:11-125:13,

127:7-127:16, 157:9-161:11, 186:1-187:5, 188:18-189:5, 190:6-192:19 and 193:5-

193:10. The testimony further established that Williamson and her boyfriend were

present in the apartment at that time, and that Russell committed a theft offense as he

left the premises. Id. at 47:7-47:18, 127:7-127:16, 191:10-191:25 and 193:5-193:10; see

also R.C. 2913.01(K) (defining “theft offense”). Viewed in a light favoring the

prosecution, any rational trier of fact could have found that this evidence proved Russell’s

guilt beyond a reasonable doubt. See R.C. 2911.11(A)(2). Russell’s fourth assignment

of error is overruled.

{¶ 34} For his fifth assignment of error, Russell argues that:

THE VERDICT SHOULD BE REVERSED BECAUSE IT WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 35} Finally, Russell maintains that because Williamson and Sparks gave

inconsistent testimony, his convictions for aggravated burglary and having weapons while
 -16-

under disability were against the manifest weight of the evidence. Appellant’s Br. 18-19.

He contests his conviction on the latter charge, which was tried to the bench, because

“no * * * evidence or testimony was provided to the [j]udge” that had not already been

introduced at his jury trial on the charge of aggravated burglary. Id. at 19.

{¶ 36} In a challenge based on the weight of the evidence, an “appellate court acts

as a ‘thirteenth juror.’ ” State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 49 (2d

Dist.), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

Accordingly, the appellate court must review the 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 lost its way and created a manifest

miscarriage of justice warranting a new trial. Thompkins at 387, citing State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); State v. Hill, 2d Dist.

Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A trial court’s “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 [a] conviction.’ ” Hill at ¶ 8, quoting

Martin at 175.

{¶ 37} Regarding Williamson’s testimony at trial, Russell observes that Williamson

did not identify him as one of the two men who trespassed into her apartment. Despite

identifying Russell on the night of the incident, and again in a photographic line-up on

April 14, 2017, Williamson also submitted an affidavit to a detective on April 17, 2017, in

which she averred that she knew Russell personally and denied that she had seen him in

her apartment. Id. at 50:13-55:9, 57:20-60:4 and 64:1-65:13. Even so, Williamson also

testified that she was paid $250.00 by a third party in connection with her affidavit of April
 -17-

17, 2017, and acknowledged that she had told the detective that she would be concerned

for her safety if called upon to testify at Russell’s trial. Id. at 74:23-77:4.

{¶ 38} Regarding Sparks’s testimony, Russell notes that Sparks denied entering

Williamson’s apartment, but instead, testified that only Russell himself crossed the

threshold. See Trial Tr. 190:6-192:15. He contends that the “sharp contrast” between

Williamson’s account of events, and that of Sparks, undermines the reliability of his

convictions. Appellant’s Br. 19.

{¶ 39} We recognize that legitimate questions may be raised about the credibility

of the testimony offered by these two witnesses. Nonetheless, the jury’s resolution of

the conflicts in the evidence was not unreasonable. Whatever motive Sparks had for

denying that he actually entered Williamson’s apartment, Williamson’s equivocation on

the stand with respect to Russell’s involvement in the incident is readily explained by her

concern for her safety, and the fact that she admitted to being paid in connection with her

affidavit of April 17, 2017, renders the affidavit highly suspect. The information that

Sparks provided to the officers of the Fairborn Police Department, furthermore, proved to

be accurate.

{¶ 40} Considering the record as a whole, including circumstantial evidence such

as the testimony of Williamson’s neighbor, this does not appear to be an exceptional case

in which the evidence weighs heavily against Russell’s convictions. We hold that the

jury did not clearly lose its way in finding Russell guilty of aggravated burglary, and

consequently, that the trial court did not clearly lose its way in relying on the evidence

adduced during Russell’s jury trial in finding Russell guilty of having weapons while under

disability. Russell’s fifth assignment of error is overruled.
 -18-

III. Conclusion

{¶ 41} The trial court’s instruction to the jury on the charge of aggravated burglary

did not precisely mirror the language of R.C. 2911.11(A)(2), but on the record before us,

we find that the outcome of Russell’s trial would not otherwise have been different. We

find further that the trial court did not abuse its discretion by overruling Russell’s motion

for acquittal; that the outcome of the trial was not affected by the trial court’s practice of

ruling on objections without apprising the jury; that the State presented sufficient evidence

to prove the elements of aggravated burglary; and that the verdicts entered against

Russell were not against the manifest weight of the evidence. Therefore, Russell’s

convictions are affirmed.

.............

HALL, J., concurring:

{¶ 42} I agree with the analysis and conclusions written for the majority. With

respect to the issue about a potentially incomplete jury instruction on aggravated burglary,

there was no objection and therefore a plain error analysis applies. In this case, no

construction of the admitted evidence or of the State’s presentation would have resulted

in the outcome of the trial being different.

{¶ 43} The court’s instruction on aggravated burglary did not contain the words

“when another person other than an accomplice of the offender is present.” Breaking

down that phrase there are two parts: 1) another person is present and 2) that an

accomplice does not count as a person present.

{¶ 44} There should be no doubt that the jury was instructed, and they necessarily

found, that another person was present. The statutory definition of an occupied structure
 -19-

was given to the jury. “Occupied Structure” means any house or building which at the

time is occupied as the permanent or temporary habitation of any person, in which at the

time a person is present or likely to be present.” Trial Tr. 701. Careful review of the

transcript reveals there was absolutely no evidence about when, how or whether

someone was “likely to be present.” Without any “likely to be present” evidence,

therefore, the jury had to conclude that a person was in fact present at the time of the

offense.

{¶ 45} That leaves only the question of whether, theoretically, the jury could have

considered whether the other person present when Russell entered the residence was

Sparks, his accomplice. First, the indictment (Doc. #1) included the “when another person

other than an accomplice of the offender is present” language, so Russell and his counsel

were on notice that Sparks was not claimed to be the other person present. Second, there

was never any factual dispute that Samantha Williamson was present when the men

entered. That was her undisputed testimony. Third, the State, in closing argument, told

the jury, “The State has to prove that Jevon Russell, on or about April 10, 2017, in Greene

County, Ohio, did by force trespass into an occupied structure when another person, other

than an accomplice of the offender, is present with purpose to commit a theft offense,

* * *.” Trial Tr. 648. Fourth, the State argued further that, “There’s no doubt that somebody

other than an accomplice of the offender was present. And the accomplice in this case

was Brandon Sparks. We’ve heard from him. There were actually two other people who

were inside that apartment, one of them being Samantha Williamson and one of them

being [her boyfriend].” Trial Tr. 649-650. Consequently the State not only directed the jury

to the correct statutory language but also pointed to the two persons who were present
 -20-

and who were not an accomplice. In my opinion, on this record, it is certain that the jury

concluded that the other-person-present was either Williamson or her boyfriend or both,

and they excluded Sparks from that equation. The result would be no different, and there

is no plain error.

{¶ 46} Finally, there is an eerily similar case from the First District Court of Appeals.

In State v. Crawford, 1st Dist. Hamilton No. C-030540, 2004-Ohio-3895, the charge was

aggravated burglary. The court did not instruct on the “when another person other than

an accomplice of the offender is present” language. However, as was done here, the

court did include the “presence of another” language in the definition of “occupied

structure.” The Crawford court observed that there was no objection to the jury

instructions and therefore a plain error analysis was appropriate. With the identical legal

issue that is before us, the First District concluded there was no plain error.

{¶ 47} I agree with Judge Tucker’s analysis herein and with the First District’s

conclusion in Crawford, and therefore I concur.

DONOVAN, J., concurring in part and dissenting in part:

{¶ 48} I disagree with the majority’s resolution of the first, third and fourth

assignments of error. The Ohio Constitution states: “The right of trial by jury shall be

inviolate.” Ohio Constitution, Article I, Section 5. If justice is to be achieved and the jury

recognized for its institutional and historical significance, it is paramount that the court’s

instructions be clear, accurate and complete, particularly with respect to the essential

elements of the alleged crime that must be proved by the government beyond a

reasonable doubt. It is within the peculiar and exclusive province of the jury to determine

any question of fact. R.C. 2945.11.
 -21-

{¶ 49} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35

(1999), relied upon by the State, Justice Scalia wrote that when we make

pronouncements about the right to trial by jury, we are “operating upon the spinal column

of American democracy.” Id. at 30 (Scalia, J., dissenting). Although we should not

overlook the majority analysis in Neder (albeit a harmless error scenario), we are not

bound by it when interpreting the Ohio Constitution. States are free to interpret their

constitutions as providing greater protection to individual rights than the U.S. Constitution.

The Ohio Constitution “is a document of independent force,” and the U.S Constitution

“provides a floor below which state court decisions may not fall.” Arnold v. Cleveland,

67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993).

{¶ 50} Indeed, the U.S. Constitution does not use the word “inviolate,” but merely

provides the right to an impartial jury in all crimes except as may result in impeachment.

U.S. Constitution, Article III, Section 2, cl. 3; Sixth Amendment to the U.S. Constitution.

Black’s Law Dictionary defines “inviolate” as “free from violation, not broken, infringed or

impaired.” Black’s Law Dictionary 955 (10th Ed. 2014). Webster’s defines “inviolate” as

“free from change or blemish; PURE, UNBROKEN, * * *, free from assault or trespass:

UNTOUCHED, INTACT.” (Emphasis added.) Webster’s Third New International

Dictionary 1190 (1993). The term “inviolate” denotes deserving of the highest level of

protection. It is a function that neither the trial court nor this court should invade. I

cannot think of anything else in our Constitution that is described as “inviolate.”

{¶ 51} It is well settled that:

* * * [T]he right to a jury trial does not involve merely a question of procedure.

The right to a jury trial derives from [the] Magna Charta. It is reasserted
 -22-

both in the Constitution of the United States and in the Constitution of the

State of Ohio. For centuries it has been held that the right of trial by jury is

a fundamental constitutional right, a substantial right, and not a procedural

privilege.

Cleveland Ry. Co. v. Halliday, 127 Ohio St. 278, 284, 188 N.E. 1 (1933), citing

Martin v. Windsor Hotel Co., 70 N.Y. 101 (1877).

{¶ 52} The majority opinion essentially permits the trial court to direct a verdict on

an essential element of the offense. We are compounding this error, to borrow further

language from Justice Scalia in Neder:

The Court’s decision today is the only instance I know of (or could conceive

of) in which the remedy for a constitutional violation by a trial judge (making

the determination of criminal guilt reserved for a jury) is a repetition of the

same constitutional violation by the appellate court (making the

determination of criminal guilt reserved to the jury).

Neder at 1845 (Scalia, J., dissenting).

{¶ 53} No matter what the evidence against Russell was, he had the right to a jury

determination inviolate.

{¶ 54} I recognize the fact that there is case law in Ohio which addresses the failure

of the trial court to instruct on all the essential elements of the offense. See State v.

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980), and State v. Wamsley, 117 Ohio

St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45. The latter case, Wamsley, endorsed the

plain error analysis applied in Adams. Wamsley at ¶ 17. The Adams court held that the

failure to instruct on each element of an offense is not necessarily reversible as plain
 -23-

error. Adams at paragraph two of the syllabus. However, neither Adams nor Wamsley

addressed the distinct language of the Ohio Constitution requiring the right to a jury

determination as “inviolate.”

{¶ 55} Furthermore, Neder, Adams, and Wamsley were all decided prior to a string

of cases, at both the federal and state levels, which hold that it is the jury’s province to

determine whether the prosecution has proven each element of an offense beyond a

reasonable doubt. This includes any fact other than the existence of a prior conviction.

These cases also reject judicial fact-finding when increased punishment is predicated

upon a particular fact. See, e.g., United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed. 621 (2005); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

403 (2004); State v. Willan, 144 Ohio St.3d 94, 2015-Ohio-1475, 41 N.E.3d 366.

{¶ 56} At least two state supreme courts have held that their state constitutions

provide a broader jury trial guarantee than Neder recognized in the U.S. Constitution.

See, e.g., Harrell v. State, 134 So.3d 266, 270-75 (Miss.2014) (holding under the

Mississippi Constitution “that it is always and in every case reversible error for the courts

of Mississippi to deny an accused the right to have a jury decide guilt as to each and

every element”); State v. Kousounadis, 159 N.H. 413, 986 A.2d 603, 616 (2009) (“Neder,

however, has been widely criticized, and we decline to follow it with regard to our

interpretation of the New Hampshire Constitution.”). In addition, at least one state court

has suggested that Neder’s application of harmless error analysis to cases where the jury

did not make a finding of guilt beyond a reasonable doubt on all elements will be “short-

lived” given the Supreme Court’s Sixth Amendment jurisprudence, starting with Apprendi
 -24-

emphasizing the need for jury findings. See Freeze v. State, 827 N.E.2d 600, 605

(Ind.Ct.App.2005). I would also note that more than half of the state constitutions use

the term “inviolate” with respect to the right to a jury trial.

{¶ 57} Here, absent a jury’s finding of fact that someone other than Russell’s

accomplice was present, Russell’s conviction for aggravated burglary under R.C.

2929.11(A) was unconstitutional. The only thing the jury rendered factual findings on

was burglary, R.C. 2911.12(A)(3), which did not require this additional, omitted element.

The Supreme Court of the United States has repeated its holding that “[i]f a State makes

an increase in a defendant’s authorized punishment contingent on the finding of a fact,

that fact – no matter how the State labels it – must be found by a jury beyond a reasonable

doubt.” (Emphasis added.) Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153

L.Ed.2d 556, citing Apprendi at 482-483. As Justice Scalia noted in his Ring

concurrence, “I believe that the fundamental meaning of the jury-trial guarantee of the

Sixth Amendment is that all facts essential to imposition of the level of punishment that

the defendant receives ̶ whether the statute calls them elements of the offense,

sentencing factors, or Mary Jane ̶ must be found by the jury beyond a reasonable

doubt.” Id. at 610 (Scalia, J., concurring). Accordingly, I would reverse the conviction

for aggravated burglary.

Copies sent to:

Nathaniel R. Luken
Christopher B. Epley
Hon. Michael A. Buckwalter