[Cite as State v. Ball, 2018-Ohio-605.]




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

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2017-CA-54
                                                 :
 v.                                              :   Trial Court Case No. 17-CR-66
                                                 :
 JEFFERY BALL                                    :   (Criminal Appeal from
                                                 :    Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                           ...........

                                           OPINION

                            Rendered on the 16th day of February, 2018.

                                           ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

JENNIFER S. GETTY, Atty. Reg. No. 0074317, 7501 Paragon Road, Dayton, Ohio 45459
     Attorney for Defendant-Appellant

                                          .............
                                                                                           -2-


FROELICH, J.

       {¶ 1} Jeffery Ball was convicted after a jury trial in the Clark County Court of

Common Pleas of one count of burglary, in violation of R.C. 2911.12(A)(3), a felony of the

third degree. The trial court sentenced Ball to three years in prison; Ball was not ordered

to pay a fine, restitution, or costs. Ball appeals from his conviction, claiming (1) that his

conviction was based on insufficient evidence and was against the manifest weight of the

evidence and (2) that his sentence was excessive and not supported by the record. For

the following reasons, the trial court’s judgment will be affirmed.

                            I. Factual and Procedural History

       {¶ 2} The State’s evidence at trial established the following facts.

       {¶ 3} In December 2016, Karen Keaton lived with her husband and children in a

duplex in Springfield, Ohio. Ball resided in the other half of the duplex with his girlfriend,

Jessica Hulsmeyer.

       {¶ 4} Between December 2 and December 8, 2016, Keaton and her family were

on vacation in South Carolina.      Keaton had told Ball the family would be going on

vacation.   Keaton testified that neither Ball nor Hulsmeyer had a key to her house and

that Ball did not have permission to enter her residence.

       {¶ 5} On December 8, Keaton and her family returned and found that their

television had been stolen. In addition, one of the windows that had been closed when

the family left was “slightly” open; this was the only window that did not lock. There was

no sign that the front door had been forced, and none of the windows had been damaged.

       {¶ 6} At approximately 8:15 a.m. that day, Keaton called 911 to report that

someone had broken into her home. She indicated that only her television had been
                                                                                          -3-


stolen. The dispatcher told Keaton that an officer would be sent to her house.

       {¶ 7} After Keaton hung up with the dispatcher, she spoke with Ball, who admitted

to her that he had gone through the window and had taken Keaton’s television. At 8:19

a.m. (i.e., after her conversation with Ball), Keaton called the dispatcher back to report

that she had “gotten a confession out of somebody already” and that she was going to

give him a chance to get her television back. Keaton identified the perpetrator as Ball,

and she told the dispatcher that Ball had admitted to taking the television to a pawn shop.

The dispatcher encouraged Keaton to make a report with a police officer. Ball left the

duplex before a police officer arrived.

       {¶ 8} Springfield Police Officer Justin Massie responded to Keaton’s initial call, and

the officer and Keaton tried several times to reach Ball on his cell phone. Keaton testified

that, when they ultimately reached Ball, he stated that he would work something out, but

he would not return to the residence. Officer Massie testified that Ball “seemed very

apologetic, seemed very sincere about how he was going to make this right.” Keaton

asked Ball why he had taken the television. Ball responded, “I don’t know. I don’t

know.” Massie testified that Ball spoke “as if he was frantic and knew that he would be

in trouble since I was there on the scene.” Officer Massie indicated that Ball had told

them (Keaton and Massie) that the television was located at Pawn Stars.

       {¶ 9} After hanging up with Ball, Keaton and Officer Massie went to Pawn Stars,

where they located Keaton’s television. Officer Massie testified that Keaton did not have

a serial number for her television, but the television had a toggle switch on the bottom

that was unique to the television. Keaton testified that she paid $25 to get her television

back. Keaton testified that Ball told her that he would pay her back. A week later, Ball
                                                                                         -4-


went to Keaton’s residence and dropped off $25.

       {¶ 10} At trial, the State presented surveillance photographs from Pawn Stars,

taken at 4:53 p.m. on December 3, 2016. Keaton identified the individuals in those

photographs as Ball and Hulsmeyer.         A receipt from the pawn shop showed that

Hulsmeyer had sold a Samsung flat screen television to Pawnstar, Inc. for $25 on

December 3, 2016; the serial number of the receipt matched the television in the store.

       {¶ 11} Ball testified on his own behalf.    When shown one of the surveillance

photos from Pawn Stars, Ball stated, “That does not look like me.” Defense counsel

asked Ball to stand facing the same way the person in the photograph was facing, so the

jury could compare. Ball testified that he did sell a television to Pawn Stars, but the

television he sold was his personal property. Ball stated that his television had the toggle

switch feature that Officer Massie had described. Ball testified that he sold his television

in order to provide gas money for Hulsmeyer. Ball denied making admissions that he

had stolen Keaton’s television, and he denied taking $25 to her. Ball testified that he did

not know that one of the windows in Keaton’s home was broken.

       {¶ 12} At trial, Ball admitted that he had a prior conviction for receiving stolen

property. He testified that he had admitted his guilt to that prior charge because he was

guilty of that offense. He stated that he did not do anything wrong this time.

       {¶ 13} Ball was charged with two counts of burglary, in violation of R.C.

2911.12(A)(2), a second-degree felony, and R.C. 2911.12(A)(3), a third-degree felony.

The charges were tried to a jury on May 2, 2017. The jury acquitted Ball of burglary in

violation of R.C. 2911.12(A)(2), but found him guilty of violating R.C. 2911.12(A)(3).

       {¶ 14} The trial court scheduled disposition for May 5, 2017. The court did not
                                                                                         -5-


order a presentence investigation, and it remanded Ball into custody without bond. The

court did receive a one-page memorandum from the Clark County Adult Probation Office

listing Ball’s two prior criminal convictions. On May 5, 2017, the trial court sentenced

Ball to three years in prison, the maximum sentence.

       {¶ 15} Ball appeals from his conviction, raising two assignments of error.

                 II. Sufficiency and Manifest Weight of the Evidence

       {¶ 16} Ball’s first assignment of error states:

       The jury verdict finding Defendant guilty of burglary, a felony of the 3rd

       degree, was against the manifest weight of the evidence.

       {¶ 17} Ball’s first assignment of error claims that his conviction for burglary was

against the manifest weight of the evidence. In his appellate brief, he argues further that

“the evidence presented to the jury was insufficient, as a matter of law, to prove his guilt

beyond a reasonable doubt.”

       {¶ 18} A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a

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

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶ 19} 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
                                                                                          -6-

is more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’

refers to a greater amount of credible evidence and relates to persuasion”). When

evaluating whether a conviction is against the manifest weight of the evidence, the

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, 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.

Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶ 20} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

       {¶ 21} Ball was convicted of burglary, in violation of R.C. 2911.12(A)(3). That

statute provides:

       (A) No person, by force, stealth, or deception, shall do any of the following:

       ***

       (3) Trespass in an occupied structure or in a separately secured or

       separately occupied portion of an occupied structure, with purpose to
                                                                                           -7-


         commit in the structure or separately secured or separately occupied portion

         of the structure any criminal offense.

“Trespass” is defined in terms of the following: “No person, without privilege to do so, shall

* * * [k]nowingly enter or remain on the land or premises of another[.]”                 R.C.

2911.21(A)(1); State v. Perry, 2d Dist. Montgomery No. 26421, 2015-Ohio-2181, ¶ 27.

“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, 947

N.E.2d 1281, ¶ 18 (9th Dist.).

         {¶ 22} Ball argues that his conviction must be reversed, because (1) there was no

evidence that there was forced entry into Keaton’s residence, (2) Keaton provided the

only evidence that her television “ever existed,” and (3) there was “nothing linking Mr. Ball

to this crime other than Ms. Keaton’s testimony, who apparently had past issues with Mr.

Ball.”

         {¶ 23} Upon review of the record, we find ample evidence to support Ball’s

conviction for burglary in violation of R.C. 2911.12(A)(3). At the outset, Keaton testified

that she and her family resided in a duplex, the other half of which was occupied by Ball

and his girlfriend, Hulsmeyer. Photographs of the residence further indicate that the

Keatons’ half of the duplex was used as a residence. Ball does not dispute that Keaton’s

residence constituted an occupied structure.

         {¶ 24} Keaton’s testimony indicated that one window of her residence did not have

a functioning lock and that the window was partially opened when she and her family
                                                                                          -8-


returned from vacation; the window was closed when the family left for vacation. There

were no signs that anyone had broken in through the front door or a different window.

Keaton testified that Ball admitted to her that he had entered the residence through a

window and had stolen the Keatons’ television. And, Keaton testified that Ball did not

have permission to be in her residence. Thus, there was sufficient evidence that Ball

had trespassed in the Keatons’ residence.

       {¶ 25} We have held that the opening of a closed but unlocked door is sufficient to

constitute “force” for purposes of the burglary statute. See, e.g., State v. Cantrell, 2d

Dist. Montgomery No. 26975, 2016-Ohio-7623, ¶ 12; State v. McWilliams, 2d Dist. Greene

No. 2000 CA 89, 2001 WL 1203395, *3 (Oct. 12, 2001). Here, the opening of a closed

but unlocked window was sufficient to establish that Ball entered the Keatons’ residence

by force.

       {¶ 26} Finally, the State’s evidence, if believed, was sufficient to prove beyond a

reasonable doubt that Ball trespassed in the Keatons’ residence with the purpose to

commit a theft offense. Keaton testified that her television had been stolen from her

residence and that Ball had admitted to her that he took her television. When Officer

Massie and Keaton reached Ball by telephone, Ball did not expressly state over the

telephone that he had stolen the television, but he was apologetic and stated that he

would make things right. Ball told the officer and Keaton where they could find Keaton’s

television, and Keaton testified that she found her television at that location (Pawn Stars).

Keaton further testified that Ball had paid Keaton $25 to compensate her for the cost of

reacquiring her television from the pawn shop.

       {¶ 27} In reaching its verdict, the jury was free to believe all, part, or none of the
                                                                                           -9-


testimony of each witness and to draw reasonable inferences from the evidence

presented. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. It

was the province of the jury to weigh the evidence and determine whether the State had

proven, beyond a reasonable doubt, that Ball had committed burglary. Ball provided

evidence that he did not steal Keaton’s television and that he pawned his own television,

but the jury was free to believe the State’s version of events. Based on the totality of the

evidence, we cannot conclude that the jury lost its way in finding Ball guilty of burglary, in

violation of R.C. 2911.12(A)(3).

       {¶ 28} Ball’s first assignment of error is overruled.

                                    III. Ball’s Sentence

       {¶ 29} Ball’s second assignment of error states:

       The trial court erred in sentencing Mr. Ball to an excessive sentence that

       was not supported by the record and [was] contrary to law.

       {¶ 30} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it “clearly and convincingly” finds either (1) that the record does not

support certain specified findings or (2) that the sentence imposed is contrary to law.

       {¶ 31} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
                                                                                      -10-


court must consider the statutory criteria that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

      {¶ 32} The sentencing range for a violation of R.C. 2911.12 as a third-degree

felony varies depending on the defendant’s criminal history. R.C. 2929.14(A)(3). If the

offender previously has been convicted of or pleaded guilty in two or more proceedings

to two or more violations of R.C. 2911.01 [aggravated robbery], R.C. 2911.02 [robbery],

2911.11 [aggravated burglary], or 2911.12 [burglary], the possible prison term is 12, 18,

24, 30, 36, 42, 48, 54, or 60 months in prison. R.C. 2929.14(A)(3)(a). Otherwise, the

possible prison term is 9, 12, 18, 24, 30, or 36 months in prison. R.C. 2929.14(A)(3)(b).

Based on his criminal history, Ball was eligible for community control, and the maximum

possible sentence in this case was 36 months in prison.

      {¶ 33} At the May 5, 2017 sentencing hearing, defense counsel asked the trial

court to consider “the lighter side of any prison sentence should you decide to send him

to prison.” Ball did not make a statement.

      {¶ 34} The prosecutor argued that Ball had never “acknowledged or accepted

responsibility or accountability for his actions.” Reviewing a cursory “memo” from the

Clark County Adult Probation Department which reported Ball’s criminal history, the

prosecutor noted that Ball was convicted in Montgomery County of receiving stolen

property, a fifth-degree felony, in November 2014, for which Ball was serving five years

of community control.     The prosecutor further noted that Ball was convicted of

misdemeanor theft in May 2016, for which he received a suspended sentence of 5 days
                                                                                          -11-


in jail. As of December 28, 2016, Ball had a probation violation pending in the 2014

Montgomery County case. The prosecutor told the court, “You heard all the evidence,

Your Honor, and I will let you use your discretion in crafting any disposition that you feel

is appropriate in this case.”

        {¶ 35} In imposing a maximum three-year sentence, the trial court stated that Ball

was on community control for receiving stolen property at the time of the offense and that

he had a prior theft conviction. The judgment entry perfunctorily stated that the court had

“considered the record, oral statements of counsel, the defendant’s statement, 1 the

principles and purposes of sentencing under Ohio Revised Code Section 2929.11, the

defendant’s prior criminal record, and has balanced the seriousness and recidivism

factors under Ohio Revised Code Section 2929.12.” The entry notified Ball of his post-

release control requirements and the sanctions for violations.2

        {¶ 36} Although Ball disputed Keaton’s version of events at trial, Keaton did testify

that Ball admitted to her that he had stolen her television, that he told her where the

television was located, that she got her television back, and that Ball paid her $25, i.e.,

the amount that she had paid the pawn shop for her television. The parties agree that

Ball has never served a prison term and has few prior convictions.

        {¶ 37} Ball had previously been convicted of receiving stolen property, a felony of

the fifth degree, and he was on community control at the time he committed the burglary

at issue. Ball had committed a misdemeanor theft in 2015, also while on community



1   Ball stated at the sentencing hearing that there was nothing he wanted to say.
2 The advice in the judgment entry differs from that given orally at sentencing, but any
issues this presents are not before us.
                                                                                    -12-


control.   As of December 2015, Ball had a probation violation pending in the 2014

receiving stolen property case.

       {¶ 38} On this record, whether another court presented with the same offense

would have ordered a presentence investigation and/or weighed the statutory factors

differently and not imposed the maximum prison sentence on a 24-year-old with a minimal

criminal history and/or might have explained its rationale are not questions of which

current law permits review. The sentence was within the statutory sentencing range, and

we cannot conclude that the trial court’s sentence was clearly and convincingly

unsupported by the record.

       {¶ 39} Ball’s second assignment of error is overruled.

                                     IV. Conclusion

       {¶ 40} The trial court’s judgment will be affirmed.

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



HALL, J. and TUCKER, J., concur.


Copies mailed to:

Andrew P. Pickering
Jennifer S. Getty
Hon. Douglas M. Rastatter
