[Cite as State v. Laughlin, 2014-Ohio-5417.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.       27185

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
THOMAS H. LAUGHLIN                                     COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 13 08 2139 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: December 10, 2014



        CARR, Judge.

        {¶1}     Appellant Thomas Laughlin appeals his conviction in the Summit County Court

of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     Laughlin, along with a co-defendant, was indicted on one count of breaking and

entering in violation of R.C. 2911.13(A), a felony of the fifth degree. He pleaded not guilty and

the matter was tried to a jury. At the conclusion of trial, the trial court instructed the jury on the

indicted count of breaking and entering, as well as on the lesser included offense of criminal

trespass. The jury found Laughlin guilty of criminal trespass, a misdemeanor of the fourth

degree, and the trial court sentenced him accordingly. Laughlin filed a timely appeal in which he

raises three assignments of error for review.
                                               2


                                               II.

                                ASSIGNMENT OF ERROR I

       THE CONVICTION OF THE APPELLANT FOR THE CHARGE OF
       CRIMINAL TRESPASS IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE AND SHOULD BE REVERSED.

                                ASSIGNMENT OF ERROR II

       THERE WAS INSUFFICIENT EVIDENCE TO PROVE THE OFFENSE OF
       CRIMINAL TRESPASS BEYOND A REASONABLE DOUBT, AND THUS,
       THE TRIAL COURT INCORRECTLY DENIED APPELLANT’S MOTION
       FOR ACQUITTAL IN V[I]OLATION OF CRIMINAL RULE 29.

       {¶3}   Laughlin argues that the trial court erred by denying his Crim.R. 29 motion for

acquittal. He further argues that his conviction was against the manifest weight of the evidence.

This Court disagrees.

Motion for acquittal

       {¶4}   Crim.R. 29 provides, in relevant part:

       The court on motion of a defendant or on its own motion, after the evidence on
       either side is closed, shall order the entry of a judgment of acquittal of one or
       more offenses charged in the indictment, information, or complaint, if the
       evidence is insufficient to sustain a conviction of such offense or offenses. The
       court may not reserve ruling on a motion for judgment of acquittal made at the
       close of the state’s case.

       {¶5}   “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d

460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In

reviewing a challenge to the sufficiency of the evidence, “the relevant inquiry is whether, after

viewing the evidence in the 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.” Diar

at ¶ 113, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus,

following Jackson v. Virginia, 443 U.S. 307 (1979).
                                                 3


        {¶6}    Laughlin was convicted of criminal trespass in violation of R.C. 2911.21, which

states in relevant part:1

        (A) No person, without privilege to do so, shall do any of the following:

        (1) Knowingly enter or remain on the land or premises of another;

        (2) Knowingly enter or remain on the land or premises of another, the use of
        which is lawfully restricted to certain persons, purposes, modes, or hours, when
        the offender knows the offender is in violation of any such restriction or is
        reckless in that regard;

        (3) Recklessly enter or remain on the land or premises of another, as to which
        notice against unauthorized access or presence is given by actual communication
        to the offender, or in a manner prescribed by law, or by posting in a manner
        reasonably calculated to come to the attention of potential intruders * * *[.]

        {¶7}    R.C. 2901.22(B) states:

        A person acts knowingly, regardless of his purpose, when he is aware that his
        conduct will probably cause a certain result or will probably be of a certain
        nature. A person has knowledge of circumstances when he is aware that such
        circumstances probably exist.

        {¶8}    R.C. 2901.22(C) states:

        A person acts recklessly when, with heedless indifference to the consequences, he
        perversely disregards a known risk that his conduct is likely to cause a certain
        result or is likely to be of a certain nature. A person is reckless with respect to
        circumstances when, with heedless indifference to the consequences, he
        perversely disregards a known risk that such circumstances are likely to exist.

        {¶9}    As used in the criminal code, “privilege” is defined as “an immunity, license, or

right conferred by law, bestowed by express or implied grant, arising out of status, position,

office, or relationship, or growing out of necessity.” R.C. 2901.01(A)(12).

        {¶10} Pursuant to R.C. 2923.03(A)(2), “No person, acting with the kind of culpability

required for the commission of an offense, shall * * * [a]id or abet another in committing the


        1
        The trial court instructed the jury on the elements of criminal trespass as enunciated in
R.C. 2911.21(A)(1), (2), and (3). It did not instruct on the elements as enunciated in R.C.
2911.21(A)(4).
                                                 4


offense[.]”   One who is complicit in committing a criminal act, “shall be prosecuted and

punished as if he were a principal offender. A charge of complicity may be stated in terms of

this section, or in terms of the principal offense.” R.C. 2923.03(F).

       {¶11} At 12:36 p.m., on August 7, 2013, a 911 emergency dispatch operator received a

call from Robert Johnson who lived at 1034 Dietz Avenue, in Akron. The parties stipulated to

the authenticity of the call. By way of context, Mr. Johnson reported that two adjacent homes

across from his own, one at 1029 Dietz and the other with no discernable house number, were

vacant, condemned, and had no working utilities. He stated that there had been signs that looked

like summonses posted at 1029 Dietz for the last three days, but that they were gone that

morning. He had earlier reported his concerns that juveniles were smoking, squatting, and

causing trouble in the vacant homes. On this day, he reported that he saw two white young men

in a gray Monte Carlo or Impala, with license plate number FTF 1656, drive to the back of 1029

Dietz and go to the side door of the adjacent vacant home. He reported that the men quickly

returned to the car, now carrying a large bucket full of pipes. Mr. Johnson stated that, two days

earlier, the same car was at 1029 Dietz, at which time the occupants picked up something from

the back porch, put it in the car, and drove away. He said that whatever they took was rolled up

inside some carpeting.

       {¶12} Based on the 911 call, the operator dispatched officers to Dietz Avenue regarding

a burglary in progress. Officer Simona Hall of the Akron Police Department responded to the

scene where she was met by and spoke further with Mr. Johnson. Officer Hall then investigated

both 1029 and 1025 Dietz, the two vacant houses at issue. She authenticated photos of 1029

Dietz that showed two notices on the home indicating that it was vacant and condemned. She

testified that the notice of condemnation meant that the house was not to be occupied and must
                                               5


be vacated. Moreover, she testified that if the police find someone in or on the premises of a

condemned house, they investigate to determine who the person is and why he is on the

premises.

       {¶13} While investigating 1029 Dietz, Officer Hall noticed that the back door was

pulled up so that it appeared to be closed, but it was not closed. The deadbolt in the lock had

been removed. She entered the house and went to the basement where she observed that copper

pipes had been “pinched cut” from the water meter, hot water heater, and ceiling. Water was

dripping from the cut ends of the pipes. Officer Hall testified that, based on her experience

investigating incidents of copper pipes stolen from other homes, she believed that the pipes had

been cut away very recently based on the existence of water dripping from the remaining pipes.

       {¶14} Officer Hall then spoke with another neighbor, Mark Reno, who also observed

suspicious activity in the area. His comments were consistent with what the officer observed on

the premises.

       {¶15} Mark Reno lives at 1033 Dietz Avenue. He testified that two adjacent houses

next to him are abandoned. He knew that no one was supposed to be living at 1029 Dietz

because there had been a Sheriff’s sale sign on the property, although someone had torn it down.

There had also been signs on the property regarding the property’s status as vacant, that

trespassing was prohibited, and the hours that authorized workers could perform work. Those

signs too had been torn down.

       {¶16} Mr. Reno testified that he was at home on August 7, 2013, when he heard two

cars pull into the driveway of 1029 Dietz a few minutes apart. In the first car were two brothers

who had lived at 1029 Dietz. They left within five minutes. Minutes later, a second car

containing two young white men pulled into the driveway. One had a large, white bucket. At
                                                 6


least one of the men went to the back door of 1029 and returned with pipe in the bucket. Before

the two men drove away, Mr. Reno wrote down the license plate number of the car.

       {¶17} Officer Brian Armstead of the Akron Police Department heard the dispatch call

regarding a burglary at a vacant home on August 7, 2013. Based on his training and experience,

he knew that if people are in a vacant house, almost certainly “they are scrapping.” Therefore,

instead of reporting to the scene, he typically went to nearby scrap yards to see if anyone

appeared with items to sell as scrap. He obtained a description of the alleged perpetrators, their

white bucket, and their car, including the license plate number. Around 12:45 p.m., Officer

Armstead saw a car with the reported license plate number parked at a scrap yard approximately

four or five miles from 1029 Dietz. He asked an employee whose car that was. The employee

pointed to two men in the garage. Upon entering the garage, he saw two men fitting the

description of the perpetrators using a sledge hammer to break off fittings from some copper

pipes. He was not sure which of the men wielded the sledge hammer. A large white pail with

more copper in it was sitting nearby.

       {¶18} Officer Armstead spoke with his brother, Officer Patrick Armstead who had gone

to the vacant house and reported that plumbing had been pinched off and removed. Officer

Brian Armstead testified that the copper pipes at the scrap yard had freshly cut and pinched ends.

The police arrested Laughlin and the other white man with him.

       {¶19} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found that the essential elements of the charge

of criminal trespass were proved beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at

paragraph two of the syllabus.   The State presented evidence that Laughlin was one of two men

who drove onto the premises of 1029 Dietz Avenue. A neighbor identified two men other than
                                                 7


Laughlin and his companion as the most recent residents of the house. Witnesses testified that

notices of condemnation had been posted on the house, although they had been removed as of

the morning of August 7, 2013. There was evidence that the car in which Laughlin and a

companion were occupants had been on the property two days earlier when the signs were still

posted. Evidence demonstrated that the two men remained on the premises for a short time

before leaving with a large bucket full of copper pipe. The car spotted at the home was found at

a nearby scrap yard about ten minutes later.         There was evidence that Laughlin and his

companion were working together to remove fittings from copper pipe when Officer Armstead

entered the garage at the scrap yard. Based on this evidence, the reasonable inference is that

Laughlin was aware that 1029 Dietz was a vacant and condemned property and that he was

without privilege to enter onto the premises.         Accordingly, the State presented sufficient

evidence of the crime of criminal trespass, and the trial court properly denied Laughlin’s Crim.R.

29 motion for acquittal.

Manifest weight of the evidence

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a “thirteenth
       juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, at ¶ 5.
                                                 8


       {¶20} This discretionary power should be exercised only in exceptional cases where the

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins,

78 Ohio St.3d at 387.

       {¶21} The bulk of the evidence is recited above. No witness identified Laughlin as one

of the men seen at 1029 Dietz, although he was identified at the scrap yard as one of the two

white men who arrived in a car bearing the license plate number reported by two witnesses who

saw the car at the house.    Mr. Reno was not certain whether Laughlin entered 1029 Dietz or

whether he remained with the car. Officer Armstead was not certain whether Laughlin wielded

the sledge hammer in the scrap yard garage, or whether his companion used the hammer as

Laughlin stood nearby observing.

       {¶22} A thorough review of the record indicates that this is not the exceptional case

where the evidence weighs heavily in favor of Laughlin. The weight of the evidence supports

the conclusion that Laughlin accompanied another man to the vacant and condemned premised

located at 1029 Dietz. The evidence indicates that he aided his companion in removing copper

pipe from the premises for the purpose of selling it at a scrap yard, and that he was not privileged

to enter the land for that or any other purpose. Nevertheless, he entered the land on August 7,

2013, despite those restrictions. Accordingly, Laughlin’s conviction for criminal trespass is not

against the manifest weight of the evidence.

       {¶23} Laughlin’s first and second assignments of error are overruled.
                                                9


                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT GAVE A JURY INSTRUCTION ON
       THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS.

       {¶24} Laughlin argues that the trial court erred by instructing the jury on the lesser

included offense of criminal trespass because there was insufficient evidence to prove all

essential elements of the lesser included offense. This Court disagrees.

       {¶25} Laughlin concedes that criminal trespass is a lesser included offense of breaking

and entering. This Court agrees. See State v. Shawhan, 9th Dist. Summit No. 24244, 2009-

Ohio-1986.

       {¶26} The test for determining whether an instruction on a lesser included offense is

warranted is “where the evidence presented at trial would reasonably support both an acquittal on

the crime charged and a conviction on the lesser-included offense.” State v. Carter, 89 Ohio

St.3d 593, 600 (2000). Here, Laughlin confines his assignment of error to the argument that the

trial court erred in instructing on the lesser included offense of criminal trespass only because

there was insufficient evidence to support a conviction for that offense. As we concluded above,

the State presented sufficient evidence to establish the essential elements of the offense of

criminal trespass. Laughlin’s third assignment of error is overruled.

                                               III.

       {¶27} Laughlin’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                10


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

T. KINSEY MCINTURF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
