[Cite as State v. Hall, 2014-Ohio-4446.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
TRACY HALL                                   :       Case No. 14-CA-37
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     13 CR 00735


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    October 2, 2014


APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KENNETH W. OSWALT                                    STEPHEN T. WOLFE
Licking County Prosecutor                            Wolfe, Van Wey & Associates, LLC
                                                     1350 W. 5th Ave., Suite 119
By: PAULA M. SAWYERS                                 Columbus, OH 43212
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, OH 43055
Licking County, Case No.14CA37                                                        2



Baldwin, J.

       {¶1}   Appellant Tracy Hall appeals a judgment of the Licking County Common

Pleas Court convicting him of aggravated burglary (R.C. 2911.11(A)(1)) and burglary

(R.C. 2911.12(A)(1)). Appellee is the State of Ohio.

                            STATEMENT OF FACTS AND CASE

       {¶2}   Amber Dolby and appellant were friends for several years, having met

through Dolby’s former roommate. Dolby had a boyfriend, but appellant gave her the

impression that he wanted a romantic relationship with her. Appellant did not like Dolby

dating John, her boyfriend, and Dolby’s boyfriend John did not approve of her friendship

with appellant.

       {¶3}   At 1:00 a.m. on November 28, 2013, Dolby was home in her apartment in

Newark with her son and her daughter, watching a movie. Someone started banging on

her door. She saw through the peephole that it was appellant. She had become fearful

of appellant due to his behavior in tracking her whereabouts. She did not want to let

him into her apartment, and she called her boyfriend.

       {¶4}   Dolby sat on her stairs and kept her boyfriend on the phone, without

answering the door. She heard appellant say that he wanted to talk, and he sounded

closer than outside the apartment door.      She looked around the corner and saw

appellant standing in her kitchen. He claimed the door was unlocked, but Dolby knew

the door had been locked. They began to argue. Dolby asked appellant to leave, and

he refused. He told her he wanted a camera and chargers back which he had left at her

house. She retrieved his things, but appellant would not leave. Dolby tried to push

appellant out the door, and he shoved her against the refrigerator. She tried to push
Licking County, Case No.14CA37                                                      3


him again, and he pushed her against the counter. She finally got him outside the door

long enough to attempt to shut it, but appellant pushed back into the apartment. He

grabbed her phone from the kitchen table and threw it against the floor, smashing the

phone. Appellant said, “Good luck talking to your boyfriend now.” Tr. 96. The phone

no longer worked. Appellant then fled.

      {¶5}   A neighbor heard the commotion and called the Newark police.      Police

found pieces of the wooden door frame outside on the sidewalk and inside the

apartment, as if the door had been kicked in by force. Dolby was crying and upset, and

displayed red marks and scratches on her arms.

      {¶6}   Appellant was indicted by the Licking County Grand Jury with burglary and

aggravated burglary. The case proceeded to jury trial in the Licking County Common

Pleas Court. Appellant was convicted of both charges and sentenced to three years

incarceration for aggravated burglary and two years incarceration for burglary, to run

concurrently. He assigns five errors on appeal:

      {¶7}   “I.     THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUPPORT THE CONVICTIONS.

      {¶8}   “II.     THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29.

      {¶9}   “III.     THE JURY’S VERDICTS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

      {¶10} “IV.     THE   APPELLANT      WAS     PREJUDICED      BY   INEFFECTIVE

ASSISTANCE OF COUNSEL.
Licking County, Case No.14CA37                                                          4


      {¶11} “V. THE COURT ERRED WHEN IT PERMITTED THE INTRODUCTION

OF EVIDENCE THAT WAS IMPERMISSIBLE HEARSAY.”

                                            I., II., III.

      {¶12} We address appellant’s first three assignments of error together, as he

makes the same argument concerning sufficiency of the evidence and weight of the

evidence in each assignment of error.

      {¶13} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485

N.E.2d 717 (1983).

      {¶14} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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, paragraph two of the syllabus (1991).

      {¶15} Appellant was convicted of aggravated burglary in violation of R.C.

2911.11(A)(1):

                     (A) No person, by force, stealth, or deception, shall trespass

             in an occupied structure or in a separately secured or separately
Licking County, Case No.14CA37                                                        5


             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, if any of the

             following apply:

                    (1) The offender inflicts, or attempts or threatens to inflict

             physical harm on another[.]

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

                    (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[.]

      {¶17} Appellant challenges whether the evidence was sufficient to prove the

underlying offense of criminal damaging.       Criminal damaging is defined by R.C.

2909.06(A)(1):

      {¶18} “(A) No person shall cause, or create a substantial risk of physical harm to

any property of another without the other person's consent:

      {¶19} “(1) Knowingly, by any means[.]”
Licking County, Case No.14CA37                                                          6


      {¶20} Appellant first argues that the evidence did not demonstrate that he

caused physical harm to Amber Dolby’s cell phone. He argues that her phone was not

broken, and “all that happened was that the battery cover, battery, and SIM card were

unattached.” He argues that this “damage” is at most wear and tear from normal use.

      {¶21} Dolby testified that appellant slammed the phone to the ground, causing it

to separate into four pieces, which rendered the phone inoperable and terminated her

connection with her boyfriend, who remained on the line during Dolby’s encounter with

appellant. Damage caused by throwing a cell phone to the ground is not wear and tear

from normal use. This is sufficient evidence, if believed by the jury, to demonstrate that

appellant caused or created a substantial risk of physical harm to Dolby’s cell phone.

Further, the judgment is not against the manifest weight of the evidence based on this

testimony of Dolby.

      {¶22} Appellant also argues that even if damage was caused to the phone, there

was no evidence presented that he purposely committed the offense because he and

Dolby were pushing each other, and it is “unclear if she dropped the phone herself while

pushing appellant.    Dolby testified that appellant slammed the phone to the floor,

saying, “Good luck talking to your boyfriend now.” Tr. 96. From this evidence, the jury

could conclude that Dolby did not drop the phone herself while pushing appellant. The

judgment is not against the manifest weight and sufficiency of the evidence.

      {¶23} The first, second and third assignments of error are overruled.

                                               IV.

      {¶24} In his fourth assignment of error, appellant argues that counsel was

ineffective for failing to object to hearsay in the testimony of Newark Police Sgt. Bert
Licking County, Case No.14CA37                                                         7


Gliatta and in the testimony of Dolby’s neighbor, Devann Hilliard.      He also argues

counsel was ineffective for failing to object to prosecutorial misconduct in closing

argument.

      {¶25} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different.     Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

      {¶26} Appellant argues that counsel was ineffective for failing to object to

hearsay testimony of Sgt. Gliatta and of Devann Hilliard. Counsel objected to both

hearsay statements cited by appellant in the record. However, the court ruled that if the

State could lay the groundwork for admission as an excited utterance, he would allow

the testimony. Counsel for appellant did not object after the groundwork for admission

as an excited utterance was laid by the State.

      {¶27} An “excited utterance” is defined as “[a] statement relating to a startling

event or condition made while the declarant was under the stress of excitement caused

by the event or condition.” Evid.R. 803(2).

      {¶28} Sgt. Gliatta testified that when he spoke to Dolby upon his arrival at the

crime scene, she seemed excited, had difficulty speaking, and was crying. Tr. 71. He
Licking County, Case No.14CA37                                                            8


testified that when he asked her questions, it took her a little longer to gather herself

because she was crying in between her statements. Tr. 72. Based on his experience, it

appeared that something traumatic had just happened to her. Id. Gliatta then testified

that Dolby told him that she was familiar with the suspect, and that he had stayed there

or visited in the past but did not live there. Because Gliatta’s testimony established that

at the time he talked to Dolby she was still under the stress of the break-in and her

statements related to the event, counsel was not ineffective for failing to object after the

foundation was laid to admit the hearsay evidence as an excited utterance.

       {¶29} Dolby’s neighbor, Devann Hilliard, testified that she heard arguing from

Dolby’s apartment, and that Dolby sounded scared and distressed. Tr. 140-141. She

went on to testify that she heard Dolby say, “I didn’t want you here. You need to leave.”

Tr. 141.   She also testified that Dolby told her she didn’t have a phone because

appellant broke it, and appellant then grabbed Dolby by the arms and said, “I got you.”

Tr. 141.   Hilliard witnessed appellant break the door frame when Dolby attempted to

push him outside of the door. Hilliard’s testimony established that Dolby was under the

stress of a startling event and her statements were related to this event. Because

Hilliard’s testimony laid the foundation to admit Dolby’s hearsay statements as an

excited utterance, counsel was not ineffective for failing to object.

       {¶30} Appellant also argues that counsel was ineffective for failing to object to

prosecutorial misconduct in closing argument.            He argues that the prosecutor

improperly commented on his failure to testify when the prosecutor said, “And he

inflicted damage on – and physical injury to Amber Dolby. There’s no testimony to say

otherwise, that’s exactly what happened.” Tr. 164. Although counsel for appellant did
Licking County, Case No.14CA37                                                           9


not object, immediately thereafter counsel for appellant argued to the jury that the

prosecutor implied that appellant should have testified, that he has a constitutional right

not to testify, and that the judge would be instructing the jury that they could not hold

that against appellant. Tr. 164-165.

       {¶31} The state may comment upon a defendant's failure to offer evidence in

support of its case. State v. Collins, 89 Ohio St.3d 524, 733 N.E.2d 1118 (2000). “Such

comments do not imply that the burden of proof has shifted to the defense, nor do they

necessarily constitute a penalty on the defendant's exercise of his Fifth Amendment

right to remain silent.” Id. at 528-29, 733 N.E.2d 1118. The state must refrain from

commenting on a decision not to testify, but the state may challenge the weight of

evidence offered by the defense in support of its theory of the case. Id. The state does

not have a duty to disprove every possible circumstance suggested by the defendant.

Id.

      {¶32} The prosecutor did not comment on appellant’s failure to testify. Rather,

the prosecutor permissibly commented on appellant’s failure to offer evidence in support

of his case, and also on the consistency of the testimony offered by the State. Counsel

was not ineffective for failing to object, as appellant has not demonstrated that had

counsel objected, the result of the trial would have been otherwise.

      {¶33} The fourth assignment of error is overruled.

                                               V.

      {¶34} Appellant argues that the court erred in admitting hearsay over objection

by counsel through the testimony of John Jefffries, Dolby’s boyfriend.        He testified
Licking County, Case No.14CA37                                                          10


concerning what Dolby said to him on the telephone about appellant when appellant

was at her door.

       {¶35} The trial court overruled the objection to the testimony, finding that the

hearsay was admissible as a present sense impression pursuant to Evid. R. 803(1):

                      The following are not excluded by the hearsay rule, even

               though the declarant is available as a witness:

                      (1) Present sense impression. A statement describing or

               explaining an event or condition made while the declarant was

               perceiving the event or condition, or immediately thereafter unless

               circumstances indicate lack of trustworthiness.

       {¶36} Appellant does not challenge the court’s finding that Dolby’s statements

were describing an event while she was perceiving the event. Rather, he argues the

circumstances indicate a lack of trustworthiness because although Dolby denied any

romantic relationship with appellant, “it is clear that there was some sort of relationship

between the Appellant and Ms. Dolby, which would give her a reason to be untruthful

about his actions when she is speaking with her other boyfriend, Mr. Jeffries.” Brief of

appellant, page 11.

       {¶37} The admission or exclusion of relevant evidence is within the sound

discretion of the trial court. State v. Sage, 31 Ohio St. 3d 173, 510 N.E.2d 243, syllabus

2 (1987).   An abuse of discretion implies that the court’s decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d

1140 (1983).
Licking County, Case No.14CA37                                                        11


      {¶38} The trial court did not abuse its discretion in admitting the testimony of

Jeffries concerning his telephone conversation with Dolby. There was no evidence that

appellant was involved romantically with Dolby. Despite attempts on cross-examination

to demonstrate that the relationship was not strictly platonic, Dolby continued to

maintain that she and appellant were just friends. Further, Dolby testified to the same

conversation that Jeffries testified about, and appellant was therefore not prejudiced by

Jeffries’ testimony concerning this conversation. See State v. Gough, 5th Dist. Licking

App. No. 2004CA00022, 2004-Ohio-4550, ¶30.

      {¶39} The fifth assignment of error is overruled.

      {¶40} The judgment of the Licking County Common Pleas Court is affirmed.

Costs are assessed to appellant.

By: Baldwin, J.

And Delaney, J. concur.

Hoffman, P.J., concurs separately.
Licking County, Case No.14CA37                                                          12

Hoffman, P.J., concurring

       {¶41} I concur in the majority's analysis and disposition of Appellant's first,

second, third and fifth assignments of error.

       {¶42} I further concur in the majority's analysis and disposition of Appellant's

fourth assignment of error with the singular exception to its determination the prosecutor

did not comment on Appellant's failure to testify during closing argument. Given the

lack of any other eyewitness to the incident, I find the prosecutor's reference to no other

"testimony" went beyond mere comment on the Appellant's failure to offer evidence and

constituted an indirect reference to the Appellant's failure to testify. However, I find

such comment does not rise to the level of reversible error in this case. Accordingly, I

concur in affirming Appellant's convictions.
