[Cite as State v. Pettit, 2012-Ohio-3057.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
THE STATE OF OHIO                               :   Patricia A. Delaney, P.J.
                                                :   William B. Hoffman, J.
                           Plaintiff-Appellee   :   Julie A. Edwards, J.
                                                :
-vs-                                            :   Case No. 11CA0108
                                                :
                                                :
MICHAEL PETTIT                                  :   OPINION

                      Defendant-Appellant




CHARACTER OF PROCEEDING:                             Criminal Appeal from Licking County
                                                     Court of Common Pleas Case No.
                                                     11CR00318

JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              June 29, 2012

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KENNETH W. OSWALT                                    WILLIAM T. CRAMER
Licking County Prosecutor                            470 Olde Worthington Road, Ste. 200
                                                     Westerville, Ohio 43082

BY: CHRISTOPHER REAMER
Assistant Prosecutor
20 South Second Street, 4th Floor
Newark, Ohio 43055
[Cite as State v. Pettit, 2012-Ohio-3057.]


Edwards, J.

         {¶1}     Defendant-appellant, Michael Pettit, appeals his conviction and sentence

from the Licking County Court of Common Pleas on one count of burglary. Plaintiff-

appellee is the State of Ohio.

                                  STATEMENT OF THE FACTS AND CASE

         {¶2}     On July 1, 2011, the Licking County Grand Jury indicted appellant on one

count of burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree.      At

his arraignment on July 12, 2011, appellant entered a plea of not guilty to the charge.

         {¶3}     Pursuant to an Entry filed on September 1, 2011, the trial court

consolidated the burglary case with Case No. 11 CR 00404. Appellant had been

charged in Case No. 11 CR 00404 with burglary and domestic violence.

         {¶4}     A bench trial was held on October 12, 2011. At the trial, Danielle Bishop

testified that she lived with her mother, Laurie Bishop, in Newark, Ohio. She testified

that she had resided with her mother since February of 2011, and that, prior to such

time, she had lived with appellant, who was her boyfriend. The two moved in together in

July of 2010 and lived together in an apartment for approximately one and a half years.

During most of the time, Danielle Bishop paid all of the expenses because appellant

was only sporadically employed.

         {¶5}     According to Danielle Bishop, the two fought all of the time. She testified

that most of the time, their arguments were verbal rather than physical. After tiring of

their continual fighting and screaming, Danielle Bishop moved out of the apartment and

in with her mother in February of 2011. Since her name was the only name on the

apartment lease, she told appellant that she was going to break the lease and that he
Licking County App. Case No. 11CA0108                                                   3


needed to remove his belongings out of the apartment. Danielle Bishop testified that

she left the majority of her personal belongings at the apartment.

      {¶6}   When asked, Danielle Bishop testified that she had a house key to her

mother’s house prior to February of 2011, and that she never gave appellant permission

to have possession of the keys. She testified that she had the keys with her when she

left the apartment. According to Danielle Bishop, her mother did not like appellant and

did not want him in her home. She testified that her mother did not even want her talking

to appellant and that appellant knew that he was not welcome in her mother’s home.

She testified that, after February of 2011, appellant had tried to come over a couple of

times and that she told him that he needed to leave.        She also testified that if her

mother saw appellant, she would tell appellant to leave and that she never allowed

appellant inside the house.

      {¶7}   On May 6, 2011, Danielle Bishop was getting ready to leave to go out of

town when appellant showed up at the house. Appellant told her that he wanted to say

goodbye and to talk to her for a few minutes. The two had been fighting all day because

Danielle Bishop told him that she was going out of town. When she returned home from

her trip, the front door frame was broken and the door would no longer lock. The door

was repaired on May 13, 2011. On the same day, Danielle Bishop was going out of

town and saw appellant standing outside the house at the end of the driveway yelling at

her to come and talk to him. She stayed inside.

      {¶8}   On June 21, 2011, Danielle Bishop returned to her mother’s house after a

trip to Los Angeles. At that point, she was still communicating with appellant by phone.

During the night, Danielle Bishop was awakened in her basement bedroom by her
Licking County App. Case No. 11CA0108                                                        4


mother screaming and yelling for her to get out of the house. When she ran to the

bedroom door, appellant was running down the steps to the basement. Danielle Bishop

ran up the steps to the living room and by the time she made it there, appellant was on

his way back up. When she tried to grab his arm, appellant pushed her arm away and

ran out the door. During a check of her bedroom, Danielle Bishop discovered that her

Blackberry phone was missing and that an old wallet of hers was in the middle of the

floor. She testified that she had not been able to locate the wallet in the prior months

and that it was not there when she went to bed. There was a cut in the window screen

that had not been there prior to June 21, 2011

        {¶9}   Appellant was arrested on June 23, 2011. Danielle Bishop testified that

between June 21, 2011, and June 23, 2011, she was leaving for work one morning and

appellant was in the neighbor’s backyard. He told her that he was going to give her the

phone back and that he just wanted to talk to her. Danielle Bishop testified that her

mother then shoved her into the car and told appellant to leave.

        {¶10} When asked, Danielle Bishop admitted that she had continued talking with

appellant since his arrest and had visited him in jail three times. She testified that

appellant encouraged her to suggest that she had left the back door open on June 21,

2011.

        {¶11} On cross-examination, Danielle Bishop testified that she had gone to see

appellant in jail because she was mad. She testified that she also went to see appellant

on his birthday because she knew no one else was going to be able to come. She

accepted phone calls from appellant 10 or 12 times. She testified that she was willing to

still have appellant be a part of her life, but that she had stopped visiting him in jail after
Licking County App. Case No. 11CA0108                                                   5


the detectives and prosecutors told her to do so. On redirect, Danielle Bishop testified

that appellant never had reason to believe that he had consent to be present at her

mother’s house.

      {¶12} Laurie Bishop, Danielle’s mother, testified that she made it clear to

appellant that he was not welcome at her house and that he was to leave Danielle

alone. She testified that they called the police a couple of times when appellant was at

the door and that, to her knowledge, appellant never had a key to her house. Between

February of 2011, and June 21, 2011, she saw appellant near her house approximately

10 to 12 times.

      {¶13} On June 21, 2011, Laurie Bishop left the house to pick up her daughter at

the airport. As she was leaving, she saw appellant in the shadows beside the house and

he told her that he needed to talk to Danielle. Laurie Bishop then told appellant to leave

and he proceeded to pound on the door to the house. He then started coming toward

Laurie Bishop’s car and she picked up her phone and called the police. At the time

Laurie Bishop left the house, the house was secure. After picking up Danielle, the two

returned home and went to bed. Because her door had been kicked in a few weeks

earlier, Laurie Bishop was sleeping on the couch in the living room rather than in her

attic bedroom. At some point during the night, her dogs started barking and she got off

of the couch and went into the dining room where she encountered appellant. When

Laurie Bishop asked appellant what he was doing there, he told her that he was there to

get his stuff and that he was going to Chicago. She then ordered him to leave, but

appellant did not do so and went downstairs to Danielle’s bedroom. The following is an

excerpt from Laurie Bishop’s testimony:
Licking County App. Case No. 11CA0108                                                   6


       {¶14} “Q. Now, you’re certain you told him to get out when you first confronted

him in the house?

       {¶15} “A. Oh, absolutely, absolutely. That’s the first thing I said to him. I said,

‘What are you doing here? Get out of my house.’ He said, ‘I’m just here to get my stuff.

I’m going to Chicago.’” Transcript at 61-62.

       {¶16} When the police arrived, Laurie Bishop discovered a chair outside on the

deck under her kitchen window and a damaged window screen lying on the deck. The

screen, which was sliced, had not been damaged before June 21, 2011. During the

early morning hours of January 21, 2011 into January 22, 2011, appellant was sending

continuous text messages to Laurie Bishop’s phone and leaving voicemail messages

saying that he was sorry, that he did not want to go to jail and threatening to commit

suicide.

       {¶17} Detective Todd Green of the Newark Police Department testified that

when he went to appellant’s apartment, he observed a Blackberry phone in the living

room area. The Detective testified that during an interview, appellant told them that he

went over to the house because he missed Danielle Bishop who was in Los Angles and

that after Laurie Bishop saw him, he left and then later returned. At one point, appellant

opened the window to the house to let the air conditioner make noise because the dogs

were barking. Appellant indicated that he assumed that Laurie Bishop was sleeping

upstairs and that he went through a back door and she surprised him. While, at one

point during the interview, appellant said that Danielle Bishop was going to leave the

back door unlocked, he subsequently told the Detective that he knew he had screwed

up, that he should not have been there, and that Laurie Bishop had told him that he
Licking County App. Case No. 11CA0108                                                     7


could not be there. Appellant told the Detective that he was going to go into the house

and wake Danielle Bishop up and surprise her.

         {¶18} At trial, appellant admitted that Laurie Bishop did not like him and that she

had made it clear that she did not want him around her daughter. Appellant testified that

on June 21, 2011, he believed that Laurie Bishop was in her room in the attic asleep

and that he wanted to go into the house and talk to Danielle and give her some money.

Appellant testified that the back door was unlocked and that after he entered the house,

he was confronted by Laurie Bishop and told to leave. However, appellant did not leave

immediately, but rather ran downstairs to Danielle Bishop’s room. Appellant testified that

he grabbed Danielle Bishop’s phone because she would have to come see him if he

had the same and that he did not intend to keep or steal the phone. The following

testimony was adduced when he was asked what he did with the phone:

         {¶19} “A. I took the phone back to the house with me. I went to my brother’s

house to see my son. I walked there, walked back home. Tried to get a hold of

Danielle through Laurie’s cell phone so I could talk to her and let her know that, you

know, I just wanted you to come pick the phone up, take this money and discuss me

leaving to go to Chicago. And obviously Laurie’s not letting me talk to Danielle at this

point.

         {¶20} “So I write her a note. I made a picture frame with her and I from my

brother’s wedding, it said ‘Memories’ on it. I took it to the house. At this time it started

sprinkling. I wanted to leave the phone underneath the windshield wiper with the letter

and the picture frame, but at this time it started sprinkling so I waited in the neighbor’s

yard, which is not occupied.
Licking County App. Case No. 11CA0108                                                   8


       {¶21} “I just sat down out back and waited, because I knew that Danielle would

be going to work, I’d return the phone.      When she came out of the house I said,

‘Princess,’ you know, and she turned and looked at me. I said, ‘I just want to give you’ –

Laurie came off the front porch before we could even discuss anything, and started

screaming for me to get away from her and she was calling the cops again.

       {¶22} “You know, I just said, ‘Why? I don’t understand. Can I just give her the

thing?’ I just ran away, because it was just, ‘You better leave now,’ so I ran away.

       {¶23} “Q. What did you do with the phone then?

       {¶24} “A. Took it back to the house.” Transcript at 119-120.

       {¶25} Appellant also testified that when he went into Laurie Bishop’s house on

the date in question, he did not intend to commit any crime. He testified that he had no

intention of keeping the phone or of depriving Danielle of the same.

       {¶26} At the conclusion of the evidence, the trial court found appellant guilty of

burglary in the case sub judice, but not guilty of the charges in Case No. 11 CR 00404.

As memorialized in a Judgment Entry filed on October 12, 2011, the trial court

sentenced appellant to six (6) years in prison.

       {¶27} Appellant now appeals, raising the following assignments of error on

appeal:

       {¶28} “I. APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL

CONSTITUTIONAL RIGHTS TO DUE PROCESS BECAUSE THE PROSECUTION

FAILED TO PRESENT SUFFICIENT EVIDENCE THAT HE COMMITTED A

BURGLARY.
Licking County App. Case No. 11CA0108                                                  9


      {¶29} “II. THE TRIAL COURT’S FINDING THAT APPELLANT COMMITTED A

BURGLARY WAS NOT SUPPORTED BY THE WEIGHT OF EVIDENCE.

      {¶30} “III. TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO SIX YEARS OF INCARCERATION FOR A RELATIVELY MINOR

BURGLARY OFFENSE.”

                                              I, II

      {¶31} Appellant, in his first two assignments of error, argues that his conviction

for burglary is against the manifest weight and sufficiency of the evidence.         We

disagree.

      {¶32} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541, State v. Jenks, 61

Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after

viewing the probative evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jenks, supra.

      {¶33} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

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 judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

only in the exceptional case in which the evidence weighs heavily against the
Licking County App. Case No. 11CA0108                                                     10

judgment.” Thompkins, supra at 387, citing State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist. 1983). Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212, (1967), syllabus 1.

       {¶34} Appellant was convicted of burglary in violation of R.C. 2911.12(A)(1).

Such section states as follows: “(A) No person, by force, stealth, or deception, shall do

any of the following: (1) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, when another person other than

an accomplice of the offender is present, with purpose to commit in the structure or in

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

offense.”

       {¶35} Appellant now contends that there was insufficient evidence that he

intended to commit any crimes. Appellant notes that although he took Danielle Bishop’s

phone, he left her several messages afterwards that he was not going to keep the

phone, but that he just wanted to talk to her before he left for Chicago. On such basis,

appellant also argues that his conviction is against the manifest weight of the evidence.

       {¶36} However, after viewing the evidence and inferences reasonably drawn

therefrom in the light most favorable to the prosecution, we find that any rational trier of

fact could have found all the essential elements of the offense of burglary beyond a

reasonable doubt. There was evidence that appellant trespassed in Laurie Bishop’s

house, by force, stealth or deception and while inside knowingly took Danielle Bishop’s

cell phone. While appellant testified that that he never intended to keep or steal the
Licking County App. Case No. 11CA0108                                                      11


phone, the trial court, as trier of fact, was in the best position to assess his credibility.

We note that the trial court, in convicting appellant, noted that it had listened to tapes

from appellant’s jail visits with Danielle Bishop and that appellant had “spent most every

jail visit asking Ms. Bishop to lie under oath for him, to sign a statement to say that she

gave him permission to be in the house and left the door unlocked. So I don’t have any

problem believing that [appellant] could lie for himself here…” Transcript at 134. Clearly,

the trial court did not believe appellant’s testimony as to his intent. Moreover, as noted

on the record by the trial court, appellant’s “taking of the phone,…to get her [Danielle

Bishop] to talk to him constitutes theft by holding the item or with purpose to restore only

upon payment of, reward or other consideration, such as contact with her, forcing her to

see him.” Transcript at 134.

       {¶37} Based on the foregoing, we find that appellant’s conviction for burglary

was not against the sufficiency or manifest weight of the evidence.            As noted by

appellee, there was evidence that appellant, while committing a trespass, committed a

theft of the phone.

       {¶38} Appellant’s first and second assignments of error are, therefore, overruled.

                                                 III

       {¶39} Appellant, in his third assignment of error, argues that the trial court

abused its discretion in sentencing him to six (6) years in prison for a minor burglary.

       {¶40} We note that an abuse of discretion connotes more than a mere error of

judgment; it implies that the court's attitude is arbitrary, unreasonable, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
Licking County App. Case No. 11CA0108                                                   12


      {¶41} The trial court, in convicting and sentencing appellant, noted that appellant

had prior felony convictions and had encouraged Danielle Bishop to lie. The trial court

noted that appellant had 15 prior criminal charges, five of which were originally charged

as felonies. At trial, appellant testified that he had two prior felony convictions for

possession of drugs. While one of the convictions occurred in 2005, the other occurred

in 2009.   The trial court further found that appellant did not have any redeeming

qualities and manipulated people who tried to help him. Appellant himself testified that

Danielle Bishop was working two jobs and supporting him while he was sporadically

employed. Appellant had started a relationship with her upon his release from prison.

      {¶42} Based on the foregoing we find that the trial court did not abuse its

discretion in sentencing appellant to six (6) years in prison. The trial court’s decision

was not arbitrary, unconscionable or unreasonable.
Licking County App. Case No. 11CA0108                                          13


       {¶43} Appellant’s third assignment of error is, therefore, overruled.

       {¶44} Accordingly, the judgment of the Licking County Court of Common Pleas

is affirmed.



By: Edwards, J.

Delaney, P.J. and

Hoffman, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                JUDGES

JAE/d0412
[Cite as State v. Pettit, 2012-Ohio-3057.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :
                                                   :
                              Plaintiff-Appellee   :
                                                   :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
MICHAEL PETTIT                                     :
                                                   :
                         Defendant-Appellant       :       CASE NO. 11CA0108




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                       _________________________________


                                                       _________________________________


                                                       _________________________________

                                                                    JUDGES
