State v. Brock

[Cite as State v. Brock, 2019-Ohio-3116.]

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

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-102
:
v. : Trial Court Case No. 2018-CR-369
:
DERRICK BROCK : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 2nd day of August, 2019.

...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
Attorney for Defendant-Appellant

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

WELBAUM, P.J.
 -2-

{¶ 1} This case is before us on the appeal of Defendant-Appellant, Derrick Brock,

from his conviction on two counts of trespassing in a habitation when a person is present

or likely to be present. After a jury found Brock guilty as charged, the trial court

sentenced him to a prison term of 18 months on each charge and imposed the terms

consecutively, for a total prison term of 36 months.

{¶ 2} According to Brock, his conviction on one of the counts was against the

manifest weight of the evidence and/or was based on insufficient evidence. For the

reasons that follow, Brock’s assignment of error is without merit, and the trial court’s

judgment will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In June 2018, the State filed an indictment charging Brock with two counts of

trespassing in a habitation when a person is present or likely to be present, in violation of

R.C. 2911.12(B). The charges were both fourth degree felonies and arose from events

that occurred during the early morning hours of May 30, 2018.

{¶ 4} Around 1:00 a.m. on that day, Springfield Police Officer Cody McFall was

dispatched to a residence on Highland Avenue on a call from Andrew Y., who reported

that an individual (Brock) was attempting to enter his residence through a window.

McFall went to the residence, but was unable to locate Brock. Earlier that night, Brock

had tried to enter Andrew’s residence through a front door; on that occasion, Andrew

called the police and told them that Brock was not allowed to be at his home. When the

police arrived in connection with the earlier call, Brock was still at Andrew’s residence.
 -3-

The police knew Brock and did not arrest him. Instead, they told him to leave. As noted,

Brock returned again at around 1:00 a.m. and attempted to enter through a window, but

the police could not locate him at that time.

{¶ 5} Springfield Police Officer Kyle Sullivan had been involved in the initial call at

the Highland Avenue residence. Later that night, Sullivan was dispatched to a residence

on Warder Street concerning a burglary in progress. This location was about a block

away from Andrew’s address. When Sullivan arrived, he found the door open and went

inside, with his gun drawn. No one was on the first floor, so Sullivan went upstairs, where

he found the victim, Shelia T., and her two children, in a bedroom. Shelia was

emotionally distraught, visibly upset, and shaking. The children were upset and huddled

in a corner.

{¶ 6} At trial, Shelia testified that she had worked on May 29, 2018, and had picked

up her son and daughter from their babysitter at around 10:30 p.m. She and her children

came home, took showers, and began watching movies she had purchased. They were

upstairs in Shelia’s bedroom.

{¶ 7} Shelia said that she was new to the area, that no one had a key to her house,

and that she never left anything unlocked. Because the downstairs windows had

“screens”, she usually never opened them. That evening, Shelia made sure everything

was secure before going upstairs.

{¶ 8} While watching a movie with her children, Shelia fell asleep. The next thing

she knew, she heard someone say, “Baby, baby.” Transcript of Proceedings (Jury Trial)

(“Tr.”), p.105. Shelia woke up and saw a man (later identified as Brock) standing in the

doorway of her bedroom, looking at her. Shelia then screamed to wake up her daughter,
 -4-

and reached for her phone to call 911.

{¶ 9} Brock appeared to be under the influence of something. He seemed very

confused and kept claiming that he was in Andy’s house. When she grabbed the phone

to call 911, Brock asked if she were calling the police. When she said yes, Brock took

off. Shelia was able to give the police a description of Brock.

{¶ 10} Springfield Police Officer Brian Taylor also answered the 911 dispatch to

Shelia’s home. After receiving a description of the suspect, Taylor went to look for him

and found a person about a block away who matched the description. Taylor brought

the suspect (Brock) back to Shelia’s home, where she identified him as the person who

had been in her house.

{¶ 11} That night, the police took photos of Shelia’s home. A north-facing window

downstairs was ajar, and the blinds on the inside of the window had been pushed aside.

Shelia indicated the window was closed when she went to bed. Inside the house, a

loveseat next to the window had also been pushed aside. In addition, a door leading to

the outside of the house was open, which, again, was not the way Shelia had left it before

going upstairs.

{¶ 12} Outside, a bush with stickers or burrs was next to the open window. After

Brock was apprehended, Officer Sullivan photographed burrs on Brock’s pocket, left leg,

and right shoe. See State’s Exs. 10, 11, and 13. The burrs were consistent with those

on the bush outside the open window.

{¶ 13} Brock was charged with two counts of trespassing in a habitation when a

person is present or likely to be present. After Brock pled not guilty, a jury trial was held

on August 20, 2018. The jury found Brock guilty of both charges, and he was sentenced
 -5-

accordingly. This appeal followed.

II. Manifest Weight and Sufficiency Challenges

{¶ 14} In a sole assignment of error, Brock contends that:

The Jury Verdict Was Against the Manifest Weight of the Evidence,

and/or the Evidence Was Insufficient, as a Matter of Law, to Prove

Appellant’s Guilt Beyond a Reasonable Doubt on the Charge Set Forth in

Count One of the Indictment.

{¶ 15} Count One of the indictment involved the charge related to Shelia’s home.

Brock has not contested the verdict on Count Two, which concerned the trespass into

Andrew’s residence. In his sole assignment of error, Brock contends that the State failed

to present sufficient evidence to establish that he knowingly trespassed when he entered

Shelia’s premises. Alternatively, Brock argues that the jury lost its way when it found

him guilty of the charge. As support for these alleged errors, Brock relies on Shelia’s

description of him as very confused, on his statements that he thought he was in “Andy’s”

home (meaning a place where he had permission to enter), and on the fact that he called

Shelia “baby,” indicating that he mistook her for someone else. Furthermore, Brock

notes that he left as soon as he realized he was in the wrong place, i.e., when Shelia was

calling the police.

{¶ 16} Before considering these points, we will briefly review the legal standards

for challenges to the sufficiency and manifest weight of the evidence. “A sufficiency of

the evidence argument disputes whether the State has presented adequate evidence on

each element of the offense to allow the case to go to the jury or sustain the verdict as a
 -6-

matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In such situations,

we apply the test from State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), which

states that:

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.

(Citation omitted). Id. at paragraph two of the syllabus.

{¶ 17} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation,

a “ ‘court reviewing 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 the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord State v. Drummond, 111

Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. “The fact that the evidence is
 -7-

subject to different interpretations does not render the conviction against the manifest

weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61, 2014-Ohio-

3432, ¶ 24, citing Wilson at ¶ 14.

{¶ 18} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No.

10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d

501 (2d Dist.), ¶ 58; State v. Putman-Albright, 2d Dist. Montgomery Nos. 26679, 2016-

Ohio-319, ¶ 19. As a result, “a determination that a conviction is supported by the

weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations

omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

{¶ 19} Another important point is that “[b]ecause the factfinder * * * has the

opportunity to see and hear the witnesses, the cautious exercise of the discretionary

power of a court of appeals to find that a judgment is against the manifest weight of the

evidence requires that substantial deference be extended to the factfinder's

determinations of credibility. The decision whether, and to what extent, to credit the

testimony of particular witnesses is within the peculiar competence of the factfinder, who

has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288,

1997 WL 476684, *4 (Aug. 22, 1997).

{¶ 20} “Contrastingly, the decision as to which of several competing inferences,

suggested by the evidence in the record, should be preferred, is a matter in which an

appellate judge is at least equally qualified, by reason and experience, to venture an
 -8-

opinion.” Id. “Consequently, we defer more to decisions on what testimony should be

credited, than we do to decisions on the logical force to be assigned to inferences

suggested by evidence, no matter how persuasive the evidence may be.” State v.

Brooks, 2d Dist. Montgomery No. 21531, 2007-Ohio-1029, ¶ 28, citing Lawson at *4.

{¶ 21} In the case before us, Brock was charged with having violated R.C.

2911.12(B), which provides that “[n]o person, by force, stealth, or deception, shall

trespass in a permanent or temporary habitation of any person when any person other

than an accomplice of the offender is present or likely to be present.”

{¶ 22} The parties differ about the degree of culpability that applies to this charge.

Brock contends that the evidence was insufficient because the State failed to prove that

he knowingly entered the premises. In contrast, the State argues that a culpable state

of recklessness suffices. However, at trial, the court instructed the jury by using

“knowingly” as the standard. Tr. at p. 148. Unfortunately, no jury instruction

conferences were recorded, and there is no indication that either side objected to the jury

instructions at trial.

{¶ 23} Notably, R.C. 2911.12(B) does not contain a specific degree of culpability.

In arguing that recklessness should be used, the State relies on R.C. 2901.21(B), which

outlines procedures for deciding culpability states where statutes are silent. Based on

the quoted language in the State’s brief, the State is incorrectly relying on the former

version of R.C. 2901.21(B), which was amended in 2014. See Am.S.B. No. 361, 2014

Ohio Laws File 194, effective March 23, 2015.

{¶ 24} The current version of R.C. 2901.21 states, in pertinent part, that:

(A) Except as provided in division (B) of this section, a person is not
 -9-

guilty of an offense unless both of the following apply:

(1) The person's liability is based on conduct that includes either a

voluntary act, or an omission to perform an act or duty that the person is

capable of performing;

(2) The person has the requisite degree of culpability for each

element as to which a culpable mental state is specified by the language

defining the offense.

(B) When the language defining an offense does not specify any

degree of culpability, and plainly indicates a purpose to impose strict

criminal liability for the conduct described in the section, then culpability is

not required for a person to be guilty of the offense. The fact that one

division of a section plainly indicates a purpose to impose strict liability for

an offense defined in that division does not by itself plainly indicate a

purpose to impose strict criminal liability for an offense defined in other

divisions of the section that do not specify a degree of culpability.

(C)(1) When language defining an element of an offense that is

related to knowledge or intent or to which mens rea could fairly be applied

neither specifies culpability nor plainly indicates a purpose to impose strict

liability, the element of the offense is established only if a person acts

recklessly.

***

(3) Division (C)(1) of this section does not relieve the prosecution of

the burden of proving the culpable mental state required by any definition
 -10-

incorporated into the offense.

{¶ 25} Before the amendments, the Supreme Court of Ohio had considered

whether the State “must prove the culpable mental state of ‘recklessness’ in proving the

force element R.C. 2911.02(A)(3) requires.” State v. Tolliver, 140 Ohio St.3d 420, 2014-

Ohio-3744, 19 N.E.3d 870, ¶ 7. In Tolliver, the defendant had been charged with robbery

under R.C. 2911.02(A)(3), which required that he “ ‘in attempting or committing a theft

offense, or in fleeing immediately after the attempt or offense, did recklessly use or

threaten the immediate use of force against’ ” the victim. Id. at ¶ 2. The trial court did

not instruct the jury about a mental state for the use of force, but did instruct the jury on

the elements of theft, which included “the mental states of ‘purpose’ to deprive the owner

of property or services and ‘knowingly’ obtaining or exerting control over the property or

services without consent.” Id. at ¶ 4, citing R.C. 2913.02(A). The defendant maintained

that the court erred by failing to instruct on recklessness as to his use of force. Id. at ¶ 5.

{¶ 26} According to the court, the robbery statute (R.C. 2911.02) did not “explicitly

or impliedly require proof of any culpable mental state for the force element in subdivision

(A)(3),” although it did “require proof of culpability for other elements of the offense.” Id.

at ¶ 8. This statement was based on the fact that “Division A [of the statute] expressly

predicates every robbery on the elements of a completed or attempted ‘theft offense,’

including all culpable mental states.” Id. The court then observed that every robbery is

predicated on a theft, which, as defined by R.C. 2913.02(A)(1), encompasses “the mental

states of ‘purposely’ and ‘knowingly.’ ” Id. at ¶ 9.

{¶ 27} In considering the issue, the Supreme Court of Ohio noted that “[t]he only

way to read a culpable mental state where one does not exist is through R.C. 2901.21(B),
 -11-

which applies only to those statutes that ‘do [ ] not specify any degree of culpability.’ ” Id.

at ¶ 11. At the time, R.C. 2901.21(B) contained the following language:

When the section defining an offense does not specify any degree of

culpability, and plainly indicates a purpose to impose strict criminal liability

for the conduct described in the section, then culpability is not required for

a person to be guilty of the offense. When the section neither specifies

culpability nor plainly indicates a purpose to impose strict liability,

recklessness is sufficient culpability to commit the offense.

Tolliver at ¶ 14, quoting former R.C. 2901.21(B).

{¶ 28} This is the statutory language the State cited in its brief. See State’s Brief

at p. 5. Based on the wording of the former statute, the Supreme Court of Ohio

concluded that:

This text identifies two conditions that must exist before a court can

read recklessness into an offense. First, the “section” defining the offense

must not specify “any degree of culpability,” meaning that the section does

not already require proof of a culpable mental state for any element of the

offense in any division or subdivision. R.C. 2901.21(B); see also [State v.]

Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, at ¶ 31

(“R.C. 2901.21(B) requires us to examine the entire section defining the

offense, not merely a clause or subsection”); State v. Maxwell, 95 Ohio

St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, ¶ 22 (“we need to determine

whether the entire section includes a mental element, not just whether

division (A)(6) includes such an element” [emphasis sic]). Second, the
 -12-

section must not plainly indicate a purpose to impose strict liability. R.C.

2901.21.

Tolliver at ¶ 15.

{¶ 29} The Supreme Court of Ohio acknowledged that its decisions had been

“ ‘imprecise,’ ” and that R.C. 2901.21(B) had unnecessarily been applied to statutes that

already included a culpable mental state. Id. at ¶ 17. However, the court noted

Johnson’s clarification that R.C. 2901.21(B) does not cover situations where a statute

“already specified a culpable mental state for one or more of the elements of the offense.”

Id., citing Johnson at ¶ 40, 42. As a result, the court concluded that R.C. 2901.21(B)

would not apply because R.C. 2911.02 (the statute defining robbery) was predicated on

a theft offense that included the mental states of “purpose” and “knowingly.” Id. at ¶ 18.

The court, therefore, held that:

R.C. 2901.21(B), the statute for determining whether an offense

imposes strict liability or requires proof of recklessness, applies only if “the

section defining an offense does not specify any degree of culpability.” If

the section already requires proof of a culpable mental state for any element

of the offense in any division or subdivision, R.C. 2901.21(B) does not

apply, and the state need prove culpability only as specified in the section.

Because R.C. 2911.02 defines every robbery to include the culpable mental

states of the predicate theft offense, R.C. 2901.21(B), which applies only

when a mental state is not specified in a section defining an offense, does

not apply, and the state need not prove a culpable mental state with respect

to the force element in R.C. 2911.02(A)(3).
 -13-

Id. at ¶ 23.

{¶ 30} The decision in Tolliver was issued on September 2, 2014. A few months

later, in December 2014, the General Assembly amended R.C. 2901.21 and R.C.

2901.22, and enacted R.C. 2901.20. According to the preamble of the bill, the

amendments to existing statutes and enactment of the new statute were intended “to

clarify when strict criminal liability is imposed or a degree of culpability is required for the

commission of an offense, to modify the concept of acting recklessly, and to require that

future acts creating criminal offenses specify the requisite degree of culpability.”

Am.S.B. No. 361, 2014 Ohio Laws File 194. To that end, newly-enacted R.C. 2901.20(A)

provided that “[e]very act enacted on or after the effective date of this section that creates

a new criminal offense shall specify the degree of mental culpability required for

commission of the offense. A criminal offense for which no degree of mental culpability

is specified that is enacted in an act in violation of this division is void.” Id. R.C. 2901.21

was also substantially amended.

{¶ 31} The General Assembly did not indicate whether the amendments were

intended to affect the prior decision in Tolliver. At times, the General Assembly has

included language in legislation indicating its intent to reject certain Supreme Court

decisions. E.g., Uncodified law in Sub.S.B. No. 20, 2005 Ohio Laws File 8, Section 3

(indicating intent to “prospectively overrule” the decision of the Ohio Supreme Court in

State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845). However, the

legislature did add R.C. 2901.21(C)(3), which states that “Division (C)(1) of this section

does not relieve the prosecution of the burden of proving the culpable mental state

required by any definition incorporated into the offense.” Our reading of this is that
 -14-

whether strict liability or recklessness applies under R.C. 2901.21(C)(1), the State must

still prove any other culpable states of mind. In Tolliver, that meant that the State was

required to meet the culpability burden established by the predicate theft offense.

Tolliver at ¶ 23. However, Tolliver’s reasoning was somewhat different, in that if other

culpable states of mind existed, R.C. 2901.21(B) [now R.C. 2901.21(B) and (C)(1)] would

not apply.

{¶ 32} We have reviewed the cases that have been decided since the 2014

amendments. We have not found any case discussing Tolliver in any pertinent fashion,

i.e., with respect to whether the amendments affect Tolliver’s analysis. In one case, the

Sixth District Court of Appeals considered whether the State was required to prove

culpability about the age of a victim where the defendant was charged with one count of

theft from an elderly person in violation of R.C. 2913.02. State v. Kraus, 2016-Ohio-

8003, 74 N.E.3d 880, ¶ 1 (6th Dist.). While the court of appeals cited the current form of

R.C. 2901.21 in a footnote, it did not discuss it or any effect of the amendments. Instead,

the court simply concluded, based on Tolliver, that the criminal theft statute already

required proof of culpable mental states and that “R.C. 2901.02(B)” did not apply. Id. at

¶ 27-28.

{¶ 33} In another case decided after the amendments, the First District Court of

Appeals applied R.C. 2901.21(C)(1) and imposed a standard of recklessness to a case

involving R.C. 2911.01(A)(3) (aggravated robbery). See State v. Morris, 1st Dist.

Hamilton No. C-150421, 2016-Ohio-5490, ¶ 11. The statute on aggravated robbery, like

R.C. 2911.02(A)(3) (the robbery statute considered in Tolliver), is silent as to culpability

and has theft as a predicate offense. As a result, Morris is inconsistent with Tolliver.
 -15-

However, Morris did not mention either Tolliver or the amendments to R.C. 2901.21.

{¶ 34} In the case before us, trespass was the predicate offense for the charged

offense. Under R.C. 2911.21(A)(1), a trespass occurs when persons, “without privilege

to do so,” “[k]nowingly enter or remain on the land or premises of another.” This is the

definition the trial court used in instructing the jury. Tr. at p. 148. “A person acts

knowingly, regardless of purpose, when the person is aware that the person's conduct

will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when the person is aware that such circumstances probably

exist.” R.C. 2901.22(B). Again, the trial court used this definition when it instructed the

jury. Tr. at p. 148.

{¶ 35} Consequently, because the court subjected the State to the higher burden

of proof at trial, we need not resolve any issues pertaining to whether the 2014

amendments resulted in any change to the Tolliver analysis. Furthermore, regardless of

the standard used, the jury verdict was not against the manifest weight of the evidence.

As we mentioned, this conclusion subsumes the issue of sufficiency.

{¶ 36} The evidence presented at trial indicated that Brock entered Shelia’s

residence without privilege to do so. Shelia did not know him and had secured her home

before retiring with her children for the night. Brock used stealth to enter, by opening a

downstairs window and climbing through the window into the house.

{¶ 37} Concerning whether he “knowingly” did these things, Brock contends that

he was confused, believed he was in “Andy’s” house, and had no idea that he had entered

a place where he had no right to be until Shelia said she was calling the police.

{¶ 38} These arguments are without merit. Normal requests for admission
 -16-

involve knocking at the front door or ringing the doorbell, and waiting to be admitted, not

sneaking in through windows in the middle of the night. Furthermore, even if one

assumes that Brock thought he was entering “Andy’s” home, the only evidence about

anyone with that name (Andrew), was that Andrew clearly told Brock that night that he

was not allowed in his house. In fact, when the police were called to Andrew’s home

earlier that evening, they also told Brock to leave. Brock, therefore, would have had no

basis for believing that he was allowed to enter Andy’s house.

{¶ 39} According to Shelia, Brock appeared to be under the influence. However,

“[v]oluntary intoxication may not be taken into consideration in determining the existence

of a mental state that is an element of a criminal offense.” R.C. 2901.21(E); State v.

Stockhoff, 12th Dist. Butler No. CA2001-07-179, 2002 WL 449532, *2 (Mar. 25, 2002),

(rejecting defendant’s argument that he could not be guilty of burglary because he could

not form the requisite intent due to voluntary intoxication). See also State v. Shah, 2d

Dist. Montgomery No. 25855, 2014-Ohio-1449, ¶ 54 (defendant in sexual imposition case

could not use voluntary intoxication to negate his mental state).

{¶ 40} In light of the preceding discussion, the judgment was not against the

manifest weight of the evidence, nor was it based on insufficient evidence. Accordingly,

Brock’s sole assignment of error is overruled.

III. Conclusion

{¶ 41} Brock’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

.............
 -17-

DONOVAN, J. and FROELICH, J., concur.

Copies sent to:

John M. Lintz
Jeffrey T. Gramza
Hon. Douglas M. Rastatter