State v. Hahn

[Cite as State v. Hahn, 2021-Ohio-3789.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 7-21-02

v.

JUSTIN HAHN, OPINION

DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court
Trial Court No. 20 CR 0134

Judgment Affirmed

Date of Decision: October 25, 2021

APPEARANCES:

Autumn D. Adams for Appellant

Gwen Howe-Gebers for Appellee
Case No. 7-21-02

MILLER, J.

{¶1} Defendant-appellant, Justin Hahn, appeals the February 22, 2021

judgment of sentence of the Henry County Court of Common Pleas. For the reasons

that follow, we affirm.

I. Facts & Procedural History

{¶2} On November 8, 2020, Hahn entered a Walmart store in Napoleon,

Ohio with his face and head partly obscured by a cloth facemask and a baseball cap.

Due to an earlier theft incident at a Walmart store in Holland, Ohio, Hahn had been

issued a trespass order barring him from entering “all Walmart and Sam’s Club

Property.” Hahn was thus not lawfully permitted to enter the Napoleon Walmart.

{¶3} Inside the store, Hahn proceeded to the electronics department, where

he selected a Vizio brand television and placed it into a shopping cart. Hahn then

pushed the cart to a side aisle in the housewares department and attempted to remove

the security device from the television. Failing to take off the security device, Hahn

left the cart with the television, walked to the hardware department, and retrieved a

pair of wire cutters. After returning from the hardware department, Hahn guided

the shopping cart to a different side aisle in the housewares department. There,

Hahn succeeded in using the wire cutters to remove the security device from the

television. Having set off an audible alarm while removing the security device,

Hahn took the television from the shopping cart and hurried out of the store. Hahn

-2-
Case No. 7-21-02

loaded the television into his vehicle and drove away. He was not apprehended that

day.

{¶4} On November 13, 2020, Detective Jamie Mendez of the City of

Napoleon Police Department received a phone call from Henry County Assistant

Prosecuting Attorney Katie Nelson. Nelson advised Detective Mendez that she was

in a video conference with Hahn. She told Detective Mendez there was an active

warrant for Hahn’s arrest and that he was in Room 24 at the Napoleon Motor Inn.

After confirming that there was indeed an active warrant for Hahn’s arrest, which

was issued in a misdemeanor case unrelated to the November 8, 2020 incident at the

Napoleon Walmart, Detective Mendez and three other law enforcement officers

went to the Napoleon Motor Inn to arrest Hahn.

{¶5} When they arrived, they knocked and announced themselves at the door

to Room 24, but received no answer. Detective Mendez called Nelson to verify they

were knocking on the correct door. Nelson informed Detective Mendez that during

the video conference with Hahn, she could hear Detective Mendez and the other

officers knocking on the door to Hahn’s room and talking amongst themselves. She

also told Detective Mendez that Hahn had walked away from his video camera. At

that point, Detective Mendez located the manager of the Napoleon Motor Inn, who

confirmed that Hahn was residing in Room 24. Detective Mendez explained to the

manager that there was an active warrant for Hahn’s arrest and that he needed to

-3-
Case No. 7-21-02

enter Hahn’s room. Using a key provided by the manager, Detective Mendez and

the other officers entered Hahn’s motel room and found him in the bathroom. Hahn

was then placed under arrest.

{¶6} Inside of Hahn’s motel room, Detective Mendez and the other officers

observed a number of items in plain view, including a Vizio brand television that

was mounted on the wall in a corner of the room. Detective Mendez was aware that

a Vizio brand television had recently been stolen from the Napoleon Walmart, and

he asked the manager of the motel whether the television belonged to the motel.

The manager advised that the television was bigger than the televisions ordinarily

provided by the motel and that the motel did not own the television. The officers

then took photographs of the room and of the television. Other than Hahn, nothing

was seized from the motel room.

{¶7} On November 25, 2020, the Henry County Grand Jury indicted Hahn

on one count of burglary in violation of R.C. 2911.12(A)(3), a third-degree felony.

On December 2, 2020, Hahn appeared for arraignment and entered a plea of not

guilty to the count in the indictment.

{¶8} A jury trial was held on February 17, 2021. At the close of the State’s

evidence, Hahn moved for a judgment of acquittal pursuant to Crim.R. 29, which

the trial court denied. The jury subsequently found Hahn guilty of burglary as

charged in the indictment.

-4-
Case No. 7-21-02

{¶9} A sentencing hearing was held on February 19, 2021, at which the trial

court sentenced Hahn to 24 months in prison. The trial court filed its judgment entry

of sentence on February 22, 2021. That same day, Hahn timely filed a notice of

appeal. He raises three assignments of error for our review.

II. Assignments of Error

1. The search of Appellant’s motel room was made in violation
of Appellant’s right to be free from unreasonable searches and
seizures.

2. Appellant suffered ineffective assistance of counsel.

3. The State failed to prove sufficient evidence to sustain a
conviction of burglary.

We consider Hahn’s assignments of error in the order presented, but for ease of

discussion, we consider Hahn’s first and second assignments of error together.

III. Discussion

A. First and Second Assignments of Error: Should the evidence generated
from the entry into and search of Hahn’s motel room be suppressed and was
his trial counsel ineffective for failing to file a motion to suppress this evidence?

{¶10} In his first assignment of error, Hahn maintains the entry into and

search of his motel room violated his Fourth Amendment rights because “officers

did not have a search warrant, did not have [his] permission to enter the motel room,

and there were no exigent circumstances that would waive the warrant

requirement.” Hahn argues that all evidence produced by the search of his motel

room must therefore “be suppressed as fruit of the poisonous tree.” However, in the

-5-
Case No. 7-21-02

proceedings below, Hahn did not file a motion to suppress. “Crim.R. 12(C)(3)

requires a defendant file a motion to suppress evidence with the trial court prior to

trial, and failure to do so ‘shall constitute waiver of the defenses or objections’ for

purposes of trial.” Columbus v. Cort, 10th Dist. Franklin No. 19AP-425, 2020-

Ohio-1467, ¶ 12, quoting Crim.R. 12(H). Accordingly, Hahn has waived all

challenges to the constitutionality of the search of his motel room, other than plain

error. Id. at ¶ 12-13; State v. Porter, 2d Dist. Montgomery No. 28288, 2019-Ohio-

4482, ¶ 22-23; Marion v. Brewer, 3d Dist. Marion No. 9-08-12, 2008-Ohio-5401, ¶

10. “The burden of demonstrating plain error is on the party asserting it.” State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 16. Hahn, however, has failed

to even develop a plain-error argument on appeal, and in this instance, we decline

to fashion one for him. See State v. Rottman, 6th Dist. Lucas No. L-20-1061, 2021-

Ohio-1618, ¶ 7.

{¶11} Nevertheless, in Hahn’s second assignment of error, we are presented

with an opportunity to consider the issues raised by Hahn in his first assignment of

error, albeit from a slightly different perspective. Hahn’s second assignment of

error is premised in part on the very thing that doomed his first assignment of

error—his trial counsel’s failure to file a motion to suppress evidence. Hahn claims

that because the entry into and search of his motel room were plainly

unconstitutional, he “suffered ineffective assistance of counsel when his trial

-6-
Case No. 7-21-02

attorney failed to file a motion to suppress or even cite the intrusion during a

Criminal Rule 29(A) motion.”

{¶12} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment. Strickland at 689.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255

(1991). Rather, the errors complained of must amount to a substantial violation of

counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-

142 (1989).

{¶13} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

-7-
Case No. 7-21-02

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

{¶14} “The failure to file a motion is not per se ineffective assistance of

counsel.” State v. Costell, 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 161.

To sustain a claim of ineffective assistance of counsel based on counsel’s failure to

file a particular motion, the defendant must first specify the basis for the motion that

counsel supposedly should have filed. See State v. Phelps, 5th Dist. Delaware Nos.

18 CAA 02 0016 and 18 CAA 02 0017, 2018-Ohio-4738, ¶ 13. Then, the

“‘defendant must show that the motion had a reasonable probability of success.’”

State v. Dahms, 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 101, quoting

State v. Ferguson, 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 11; Phelps

at ¶ 13. If the defendant fails to demonstrate a reasonable probability that the

proposed motion would have been granted, counsel is presumed to have been

effective since the filing of the motion would have been a “futile act,” which the law

does not require counsel to undertake. State v. Leu, 6th Dist. Lucas No. L-17-1265,

2019-Ohio-3404, ¶ 47; State v. Cottrell, 4th Dist. Ross Nos. 11CA3241 and

11CA3242, 2012-Ohio-4583, ¶ 20. Additionally, even if the defendant succeeds in

establishing a reasonable probability of success on the proposed motion, he still

“must further show that there is a reasonable probability that the outcome [of the

trial] would have been different if the motion had been granted * * *.” State v.

-8-
Case No. 7-21-02

Blanton, 4th Dist. Adams Nos. 19CA1096 and 19CA1097, 2020-Ohio-7018, ¶ 50,

appeal allowed, 162 Ohio St.3d 1444, 2021-Ohio-1398; Phelps at ¶ 13.

{¶15} Hahn contends that a motion to suppress the evidence obtained

through the entry into and search of his motel room would have been successful

because it is obvious that Detective Mendez and the other officers were not legally

authorized to enter his motel room. Hahn accurately observes that the officers did

not have a search warrant and that they did not have his consent to enter his room.

For the sake of Hahn’s argument, we will also assume Hahn is correct that there

were no exigent circumstances justifying the entry into his room. Nevertheless,

Hahn either downplays or completely ignores the likely source of the officers’

constitutional authority to enter his motel room—the misdemeanor arrest warrant.

{¶16} “Generally, officers may not lawfully make a warrantless and

nonconsensual entry into a suspect’s home to make an arrest.” Alley v. Bettencourt,

134 Ohio App.3d 303, 312 (4th Dist.1999), citing Payton v. New York, 445 U.S.

573, 100 S.Ct. 1371 (1980). This rule “‘appl[ies] with equal force to a properly

rented hotel room during the rental period.’” State v. Chavez, 2d Dist. Montgomery

No. 27840, 2018-Ohio-4351, ¶ 21, quoting United States v. Junkman, N.D. Iowa

No. CR96-4033, 1997 WL 33559171, *3 (June 24, 1997). Nonetheless, in Payton,

the Supreme Court of the United States held that “an arrest warrant founded on

probable cause implicitly carries with it the limited authority to enter a dwelling in

-9-
Case No. 7-21-02

which the suspect lives when there is reason to believe the suspect is within.”

Payton at 603. “Accordingly, pursuant to Payton, an arrest warrant is sufficient to

enter a person’s residence to effectuate the warrant if the police have reason to

believe that the suspect lives in the home and is in fact at the home at the time the

arrest warrant is executed.” State v. Zerucha, 11th Dist. Ashtabula No. 2015-A-

0031, 2016-Ohio-1300, ¶ 13. Importantly, because an arrest warrant is issued by a

neutral judicial officer based upon a finding of probable cause regardless of whether

the warrant is for a misdemeanor or a felony, there is “no basis to conclude that a

misdemeanor arrest warrant provides less authorization to enter a suspect’s home to

arrest that suspect than a felony arrest warrant provides.” State v. Hinshaw, 2d Dist.

Montgomery No. 27985, 2018-Ohio-4226, ¶ 21; see Shreve v. Jessamine Cty. Fiscal

Court, 453 F.3d 681, 683, 688-689 (6th Cir.2006) (“[W]e read [Payton] to permit

forcible entry into the home to search for and arrest a suspect pursuant to a valid

arrest warrant, regardless of whether the arrest is for a misdemeanor or a felony.”);

United States v. Hall, W.D.N.C. No. 3:09cr19, 2009 WL 3165458, *4 (Sept. 29,

2009) (collecting cases holding that a valid misdemeanor arrest warrant permits

entry into a residence to make an arrest).

{¶17} In this case, the arrest warrant was never made part of the record.

However, Hahn does not challenge the validity of the arrest warrant and in fact urges

us to “proceed under the assumption that the arrest warrant was valid.” Since it is

-10-
Case No. 7-21-02

Hahn’s burden to demonstrate that he received ineffective assistance of counsel and

we find nothing in the record suggesting the arrest warrant was invalid, we accept

Hahn’s invitation.

{¶18} Assuming that the arrest warrant was valid, we need only ask whether

Detective Mendez and the other officers had reason to believe (1) that Hahn resided

in Room 24 at the Napoleon Motor Inn and (2) that Hahn was in fact in the room at

the time the arrest warrant was executed. On both counts, we answer in the

affirmative. Based on Nelson’s report that Hahn was in Room 24 during the video

conference and on the manager’s confirmation that Hahn was staying in Room 24,

Detective Mendez and the other officers had ample reason to believe that Hahn

resided in Room 24. See United States v. Mullikin, 534 F.Supp.2d 734, 739

(E.D.Ky.2006) (where officers entered a motel room to effectuate a misdemeanor

arrest warrant, the officers had reason to believe that the suspect was staying in the

motel room based on an anonymous call that the suspect was staying at the motel,

which was confirmed by the motel’s manager prior to the officers’ entry). In

addition, based on Nelson’s statement that she could hear Detective Mendez and the

other officers knocking on Hahn’s door and announcing their presence while she

talked to Hahn during the video conference, there was reason to believe that Hahn

was actually in Room 24 when Detective Mendez and the other officers went to

-11-
Case No. 7-21-02

serve the arrest warrant. Thus, from the record before us, we are satisfied that the

entry into Hahn’s motel room did not infringe Hahn’s Fourth Amendment rights.

{¶19} Nor were Hahn’s Fourth Amendment rights violated when Detective

Mendez and the other officers observed the Vizio brand television or when they

photographed Hahn’s room. “‘Generally, the police are free to observe whatever

may be seen from a place where they are entitled to be.’” State v. Buzzard, 112

Ohio St.3d 451, 2007-Ohio-373, ¶ 15, quoting United States v. Fields, 113 F.3d 313,

321 (2d Cir.1997). “[I]f a police officer is lawfully on a person’s property and

observes objects in plain or open view, no warrant is required to look at them.” Id.

at ¶ 16. “[M]ere observation of an object in plain view does not constitute a search

* * *.” Id. at ¶ 17. In serving the arrest warrant, Detective Mendez and the other

officers attained a lawful vantage point inside of Hahn’s motel room. From that

lawful vantage point, they were free to observe whatever objects happened to be in

plain view. The mere observation and inspection of the television in plain view did

not constitute an independent search because it “produced no additional invasion of

[Hahn’s] privacy interest.” Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149

(1987). Likewise, taking photographs of Hahn’s room and of the television did not

amount to an unconstitutional “seizure” because “the recording of visual images of

a scene by means of photography * * * does not ‘meaningfully interfere’ with any

possessory interest.” Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir.1992); see United

-12-
Case No. 7-21-02

States v. Mancari, 463 F.3d 590, 596 (7th Cir.2006) (following Bills). Provided that

they occupy a lawful vantage point, law enforcement officers can “record by

photography scenes presented to their plain view.” Bills at 707; see United States

v. Espinoza, 641 F.2d 153, 167 (4th Cir.1981).

{¶20} In sum, we conclude that Detective Mendez and the other officers did

not violate Hahn’s Fourth Amendment rights when they entered into Hahn’s motel

room, arrested him and photographed what they observed in plain view in the room.

Consequently, Hahn cannot demonstrate that there is a reasonable probability that

his proposed motion to suppress would have been granted. Because it is not likely

that Hahn’s proposed suppression motion would have succeeded, we conclude that

his trial counsel’s failure to file the proposed motion does not constitute deficient

performance. In this respect, Hahn has failed to establish that he received

ineffective assistance of counsel.

{¶21} As a final matter, we note that Hahn also maintains that his trial

counsel was ineffective for failing to use his Crim.R. 29 motion to address the

constitutionality of the entry into and search of the motel room. However, even if

Hahn’s Fourth Amendment rights had been violated, thereby rendering the evidence

obtained from his motel room inadmissible, it would not have been proper for

Hahn’s trial counsel to raise these matters in a Crim.R. 29 motion. Crim.R. 29

provides for “a motion for judgment of acquittal and is used when the evidence

-13-
Case No. 7-21-02

presented is insufficient to sustain a conviction. It is not a method for challenging

evidence already admitted * * *.” State v. Stuber, 3d Dist. Allen No. 1-02-66, 2003-

Ohio-982, ¶ 11; see State v. Cochenour, 4th Dist. Ross No. 1371, 1989 WL 11925,

*1 (Feb. 16, 1989) (concluding that the legality of the defendant’s arrest was not an

issue to be addressed in a Crim.R. 29 motion because “Crim.R. 29(A) motions

challenge the sufficiency of the evidence, not the admissibility of the evidence”).

Hahn’s trial counsel cannot have performed deficiently by neglecting to challenge

the admissibility of evidence using a procedural rule that is not designed for such

challenges. Here too, Hahn has failed to demonstrate that he received ineffective

assistance of counsel.

{¶22} Hahn’s first and second assignments of error are overruled.

B. Third Assignment of Error: Is Hahn’s burglary conviction supported
by sufficient evidence?

{¶23} In his third assignment of error, Hahn argues the State did not present

sufficient evidence to sustain his burglary conviction. Hahn contends the evidence

is insufficient to prove that he used “force, stealth, or deception” to trespass in the

Napoleon Walmart.

{¶24} “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.” State v. Jenks, 61 Ohio

-14-
Case No. 7-21-02

St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).

Consequently, “[t]he 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. “In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor

assess the credibility of witnesses, as both are functions reserved for the trier of

fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-

4775, ¶ 33.

{¶25} Hahn was indicted on one count of burglary in violation of R.C.

2911.12(A)(3), which provides that “[n]o person, by force, stealth, or deception,

shall * * * [t]respass in an occupied structure or in a separately secured or separately

occupied portion of an occupied structure, with purpose to commit in the structure

or separately secured or separately occupied portion of the structure any criminal

offense.” Hahn does not dispute that the State presented sufficient evidence that he

trespassed in the Napoleon Walmart, that the Napoleon Walmart qualifies as an

occupied structure, or that he had purpose to commit a criminal offense in the

Napoleon Walmart. Instead, Hahn focuses solely on the State’s evidence that he

used “force, stealth, or deception.” Accordingly, we limit our analysis to this

element alone.

-15-
Case No. 7-21-02

{¶26} “Force” is defined as “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing.” R.C.

2901.01(A)(1). “‘Force’ is satisfied by ‘any effort physically exerted.’” State v.

Johnson, 2d Dist. Montgomery No. 26961, 2017-Ohio-5498, ¶ 21, quoting State v.

Snyder, 192 Ohio App.3d 55, 2011-Ohio-175, ¶ 18 (9th Dist.). “There is no

definition of ‘stealth’ provided in the Revised Code[,]” but this court has defined

“stealth” as “‘any secret, sly or clandestine act to avoid discovery and to gain

entrance into or to remain within a residence of another without permission.’” State

v. Ward, 85 Ohio App.3d 537, 540 (3d Dist.1993), quoting State v. Lane, 50 Ohio

App.2d 41, 47 (10th Dist.1976). Finally, we have relied on R.C. 2913.01(A) to

define the word “deception” as it is used in R.C. 2911.12. In re Predmore, 187 Ohio

App.3d 100, 2010-Ohio-1626, ¶ 44 (3d Dist.). R.C. 2913.01(A) defines “deception”

as “knowingly deceiving another or causing another to be deceived by any false or

misleading representation, by withholding information, by preventing another from

acquiring information, or by any other conduct, act, or omission that creates,

confirms, or perpetuates a false impression in another, including a false impression

as to law, value, state of mind, or other objective or subjective fact.”

{¶27} In arguing that the State did not introduce sufficient evidence to prove

he used force, stealth, or deception to trespass in the Napoleon Walmart, Hahn

focuses on the State’s theory that “wearing a hat and a state-mandated mask over

-16-
Case No. 7-21-02

his face was stealth.” Hahn contends that because the “mask was mandated by the

State of Ohio and the store”1 and hats are “a common piece of attire to wear,

especially when it is cold out,” the State did not prove that he used stealth. We

disagree.

{¶28} Evidence that a defendant employed a hat, mask, hood, or other article

of clothing to conceal their identity can be used to establish that the defendant used

stealth. See State v. Vidal, 11th Dist. Portage No. 2016-P-0018, 2016-Ohio-8115, ¶

28 (concluding that sufficient evidence was presented to prove the defendant used

stealth where, among other things, the defendant and his accomplice were “wearing

hoodies and hats/bandanas that could be used to cover their faces”); State v. Steele,

12th Dist. Preble No. CA2014-07-005, 2015-Ohio-1705, ¶ 27 (holding that the

evidence established the defendant “used stealth when he cinched his hood over his

face to hide his identity”); State v. Hughes, 5th Dist. Delaware No. 93CA-A-09-034,

1994 WL 527952, *4 (Aug. 22, 1994) (“[T]he fact that [the defendant’s

accomplices] wore masks contributes to the stealth element.”). It is true that the

State Interim Health Director’s order required Hahn to wear a facial covering to

enter publicly-accessible buildings such as the Napoleon Walmart. Thus, unlike

1
On July 23, 2020, in response to the COVID-19 pandemic, the Interim Director of the Ohio Department of
Health issued an order mandating that, except as otherwise provided in the order, “all individuals in the State
of Ohio shall wear facial coverings at all times when * * * [i]n any indoor location that is not a residence.”
Ohio Department of Health, Director’s Order for Facial Coverings throughout the State of Ohio,
https://coronavirus.ohio.gov/static/publicorders/Directors-Order-Facial-Coverings-throughout-State-
Ohio.pdf (accessed Sept. 24, 2021). This order has since been rescinded, but it remained in effect on
November 8, 2020.

-17-
Case No. 7-21-02

most cases in which the defendant used some item of clothing to conceal his identity,

Hahn was obligated to don a primary component of his disguise.

{¶29} Yet, Hahn’s disguise comprised more than just his cloth facemask.

Hahn also wore a baseball cap, which he was not legally required to wear to enter

the Napoleon Walmart. By itself, the baseball cap obscured identifiable features of

Hahn’s face and head that were not hidden by his facemask alone. These features

were readily apparent in a photograph of Hahn taken several days earlier when he

was observed in a different Walmart store in Wauseon, Ohio. For example, Hahn

had a readily identifiable haircut. When combined, Hahn’s baseball cap and

facemask covered the majority of his face and head. Therefore, viewing the

evidence in a light most favorable to the prosecution, a reasonable trier of fact could

find that Hahn used the baseball cap to improve the disguise already afforded him

by his state-mandated facemask and that, by wearing the facemask and baseball cap

together, Hahn acted in a “secret, sly, or clandestine” manner to avoid detection as

he entered the Napoleon Walmart.

{¶30} Moreover, the State introduced evidence that Hahn engaged in

additional “secret, sly, or clandestine” acts while trespassing inside of the Napoleon

Walmart. Here, we note that the element of “trespass” in R.C. 2911.12 encompasses

both “entering” and “remaining” on the land or premises of another without

privilege to do so. See R.C. 2911.10 and 2911.21(A)(1). Thus, provided that the

-18-
Case No. 7-21-02

other elements of burglary are satisfied, a conviction for burglary can be sustained

on evidence that a defendant used stealth to remain in an occupied structure. In this

case, the evidence showed that Hahn moved between and stationed himself within

otherwise empty side aisles as he attempted to remove the security device from the

television. Viewing the evidence in a light most favorable to the prosecution, a

reasonable trier of fact could find that Hahn deliberately avoided the main aisles

filled with shoppers and Walmart associates in order to evade discovery and remain

in the Napoleon Walmart for as long as it took him to remove the security device

and abscond with the television.

{¶31} Finally, apart from whether the evidence is sufficient to prove that

Hahn used stealth to enter or remain in the Napoleon Walmart, there was evidence

presented supporting that Hahn used force to enter the store. At trial, Evan Vollmar,

an asset protection associate at the Napoleon Walmart, testified Hahn entered the

store by triggering and walking through automatic doors at the front entrance. (Feb.

17, 2021 Tr. at 149-150). In a recent case, evidence that a person “activat[ed] the

door sensors when she walked into [a Kohl’s store] * * * and triggered the two

sliding doors to open and stay open as she passed through” was found to be

sufficient to establish the “force” element of burglary. State v. Duke, 6th Dist. Wood

No. WD-20-001, 2021-Ohio-1552, ¶ 34-35. Therefore, it is also possible for a

-19-
Case No. 7-21-02

reasonable trier of fact to have found that Hahn used force to enter the Napoleon

Walmart.

{¶32} In conclusion, viewing the evidence in a light most favorable to the

prosecution, any reasonable trier of fact could find beyond a reasonable doubt that

Hahn used either force or stealth to trespass in the Napoleon Walmart. Accordingly,

we conclude that Hahn’s burglary conviction is supported by sufficient evidence.

{¶33} Hahn’s third assignment of error is overruled.

IV. Conclusion

{¶34} For the foregoing reasons, Hahn’s assignments of error are overruled.

Having found no error prejudicial to the appellant herein in the particulars assigned

and argued, we affirm the judgment of the Henry County Court of Common Pleas.

Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr

-20-