[Cite as State v. Potter, 2020-Ohio-431.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 5-19-14

        v.

JAMES J. POTTER,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2018 CR 00038

                                       Judgment Affirmed

                           Date of Decision: February 10, 2020




APPEARANCES:

        W. Alex Smith for Appellant

        Phillip A. Riegle for Appellee
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PRESTON, J.

       {¶1} Defendant-appellant, James J. Potter (“Potter”), appeals the May 14,

2019 judgment of sentence of the Hancock County Court of Common Pleas. For

the reasons that follow, we affirm.

       {¶2} This case arises from an incident that occurred on Michelle Winters

(“Michelle”)   and Christopher        Winters’   (“Christopher”)   (collectively the

“Winterses”) property in February 2018. (Jan. 14-15, 2019 Tr., Vol. I, at 179). In

early 2018, the Winterses, who reside in Findlay, Ohio, were temporarily living in

an outbuilding located at the rear of their property while their home was being

renovated. (Id. at 179-180, 197-198). At approximately 1:50 a.m. on the morning

of February 4, 2018, the Winterses were in the outbuilding lying in bed and watching

television when they heard a loud pounding noise coming from the direction of one

of the outbuilding’s two doors. (Id. at 181-182, 198). As the pounding intensified,

Michelle called 911 and Christopher approached the door to investigate the source

of the noise. (Id. at 182-184). After a few moments, the door swung “completely

open to the outside.” (Id. at 215). Christopher immediately yelled at the person

who opened the door, which prompted the person to flee.            (Id. at 216-217).

Christopher briefly pursued the person before returning to the outbuilding. (Id. at

185-186). A short time later, law enforcement officers apprehended Potter in the




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vicinity of the Winterses’ property, and Christopher identified Potter as the person

who fled from his property.

       {¶3} On February 13, 2018, the Hancock County Grand Jury indicted Potter

on one count of trespass in a habitation when a person is present or likely to be

present (“trespass in a habitation”) in violation of R.C. 2911.12(B), a fourth-degree

felony. (Doc. No. 1). On February 14, 2018, Potter appeared for arraignment and

pleaded not guilty. (Doc. No. 3).

       {¶4} A jury trial was held on January 14-15, 2019. (Doc. No. 73); (Jan. 14-

15, 2019 Tr., Vol. I, at 1); (Jan. 14-15, 2019 Tr., Vol. II, at 319). At the close of

evidence, the State requested that the trial court instruct the jury on attempted

trespass in a habitation in addition to trespass in a habitation. (Jan. 14-15, 2019 Tr.,

Vol. II, at 398-399). The trial court granted the State’s request over Potter’s

objection and provided the jury with an instruction on attempted trespass in a

habitation. (Id. at 399-401, 413-414). On January 15, 2019, the jury found Potter

not guilty of trespass in a habitation. (Doc. No. 69). However, the jury found Potter

guilty of attempted trespass in a habitation. (Doc. No. 70).

       {¶5} On April 29, 2019, the trial court sentenced Potter to 12 months in

prison, with credit for 122 days served. (Doc. No. 99). The trial court filed its

judgment entry of sentence on May 14, 2019. (Id.).




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       {¶6} Potter filed his notice of appeal on May 24, 2019. (Doc. No. 103). He

raises one assignment of error for our review.

                                Assignment of Error

       The Court erred by allowing a jury instruction to the lesser
       included offense of attempt.

       {¶7} In his assignment of error, Potter argues that the trial court erred by

instructing the jury on attempted trespass in a habitation. Specifically, Potter argues

that the trial court was not justified in instructing the jury on attempted trespass in a

habitation “because an attempt of the underlying offense [of trespass in a

habitation], by adding the attempt elements found in R.C. 2923.02, is not a lesser

included offense [of trespass in a habitation].” (Appellant’s Brief at 5).

       {¶8} “‘Generally, a trial court must provide the jury with all instructions that

are relevant and necessary to weigh the evidence and discharge their duties as the

fact finders.’” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-Ohio-222, ¶ 38,

quoting State v. Sunderman, 5th Dist. Stark No. 2006-CA-00321, 2008-Ohio-3465,

¶ 21, citing State v. Joy, 74 Ohio St.3d 178, 181 (1995). However, a trial court need

not provide a requested jury instruction unless it finds that sufficient evidence was

presented at trial to support giving the instruction. Id., quoting State v. Juntunen,

10th Dist. Franklin Nos. 09AP-1108 and 09AP-1109, 2010-Ohio-5625, ¶ 13,

quoting State v. Barnd, 85 Ohio App.3d 254, 259 (3d Dist.1993). “‘The trial court

possesses the discretion “to determine whether the evidence presented at trial is

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sufficient to require that [the] instruction be given.”’” Id., quoting Juntunen at ¶ 13,

quoting State v. Lessin, 67 Ohio St.3d 487, 494 (1993). Accordingly, we review a

trial court’s decision whether to issue a requested jury instruction for an abuse of

discretion. State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, ¶ 61;

State v. Simin, 9th Dist. Summit No. 26016, 2012-Ohio-4389, ¶ 40. An abuse of

discretion is more than a mere error in judgment; it suggests that a decision is

unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-

158 (1980).

       {¶9} In this case, although Potter was indicted on one count of trespass in a

habitation, he was ultimately convicted of one count of attempted trespass in a

habitation. The offense of trespass in a habitation is codified in R.C. 2911.12(B),

which provides that “[n]o person, by force, stealth, or deception, shall trespass in a

permanent or temporary habitation of any person when any person other than an

accomplice of the offender is present or likely to be present.” “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). A “trespass” is committed when a

person, without privilege to do so, knowingly enters or remains on the land or

premises of another. R.C. 2911.21(A)(1). See R.C. 2911.10 (“As used in [R.C.

2911.12], the element of trespass refers to a violation of [R.C. 2911.21].”). “A

person acts knowingly, regardless of purpose, when the person is aware that the


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person’s conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.” R.C. 2901.22(B). “Land or premises” means

“any land, building, structure, or place belonging to, controlled by, or in custody of

another, and any separate enclosure or room, or portion thereof.”                R.C.

2911.21(F)(2). Finally, although the term “habitation” is not defined in the Ohio

Revised Code, various courts have defined “habitation” as “[a] dwelling place; a

domicile.” State v. K.L.P.W., 12th Dist. Warren Nos. CA2016-06-047 and CA2016-

06-053, 2017-Ohio-5671, ¶ 11; State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-

175, ¶ 13 (9th Dist.), quoting Black’s Law Dictionary 729 (8th Ed.2004). See Ohio

Jury Instructions, CR Section 511.12(B) (Rev. Dec. 8, 2012) (“‘Habitation’ means

the place where a person lives.”).

       {¶10} Furthermore, R.C. 2923.02, Ohio’s attempt statute, provides that “[n]o

person, purposely or knowingly, and when purpose or knowledge is sufficient

culpability for the commission of an offense, shall engage in conduct that, if

successful, would constitute or result in the offense.” R.C. 2923.02(A). Elaborating

on the statutory language, the Supreme Court of Ohio has further defined “criminal

attempt” as “‘“an act or omission constituting a substantial step in a course of

conduct planned to culminate in [the actor’s] commission of the crime.”’” (Brackets

sic.) State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 175, quoting State v.


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Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶ 101, quoting State v. Woods, 48 Ohio

St.2d 127 (1976), paragraph one of the syllabus, judgment vacated on other

grounds, 438 U.S. 910, 98 S.Ct. 3133 (1978). “To constitute a substantial step, the

offender’s conduct need not be the last proximate act prior to the commission of the

offense * * *.” State v. Elahee, 1st Dist. Hamilton No. C-160640, 2017-Ohio-7085,

¶ 16.    Instead, a “substantial step” requires only “‘conduct that is “strongly

corroborative of the actor’s criminal purpose.”’” Dean at ¶ 175, quoting Group at

¶ 101, quoting Woods at paragraph one of the syllabus. “‘Precisely what conduct

will be held to be a substantial step must be determined by evaluating the facts and

circumstances of each particular case.’” State v. Miller, 3d Dist. Seneca No. 13-12-

52, 2013-Ohio-3194, ¶ 31, quoting State v. Butler, 5th Dist. Holmes No. 2012-CA-

7, 2012-Ohio-5030, ¶ 28, citing Group at ¶ 100.

        {¶11} In his assignment of error, Potter argues that the jury should not have

been instructed on attempted trespass in a habitation because attempted trespass in

a habitation is not a lesser included offense of trespass in a habitation. For the sake

of Potter’s argument, we will assume that he is correct that attempted trespass in a

habitation is not a lesser included offense of trespass in a habitation. See State v.

Capone, 3d Dist. Crawford No. 3-03-18, 2003-Ohio-5302, ¶ 9 (“[T]he offense of

attempt to commit the charged offense is not technically * * * a ‘lesser included

offense * * *[.]’”). See also State v. Cadle, 9th Dist. Summit No. 24064, 2008-


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Ohio-3639, ¶ 15 (“[A]ttempt is similar to, yet conceptually distinct from, lesser

included offenses and crimes that represent inferior degrees of the indicted offense

* * *.”), citing State v. Deem, 40 Ohio St.3d 205, 208 (1988); State v. Aponte, 8th

Dist. Cuyahoga No. 89727, 2008-Ohio-1264, ¶ 12-13. Nevertheless, in determining

whether the trial court abused its discretion by instructing the jury on the offense of

attempted trespass in a habitation, it is immaterial whether attempted trespass in a

habitation is a lesser included offense of trespass in a habitation because Ohio law

permits a trial court to issue jury instructions on attempt to commit a charged offense

as well as on lesser included offenses of a charged offense.

       {¶12} “Under R.C. 2945.74 and Crim.R. 31(C), the jury must be instructed

on three groups of lesser offenses when supported by the evidence at trial: (1)

attempts to commit the crime charged, if such an attempt is an offense at law; (2)

inferior degrees of the indicted offense; or (3) lesser included offenses.” State v.

Sibert, 98 Ohio App.3d 412, 430 (4th Dist.1994), citing Deem at paragraph one of

the syllabus. See R.C. 2945.74 (“The jury may find the defendant not guilty of the

offense charged, but guilty of an attempt to commit it if such attempt is an offense

at law.”); Crim.R. 31(C) (“The defendant may be found not guilty of the offense

charged but guilty of an attempt to commit it if such an attempt is an offense at

law.”). “An instruction to the jury on a lesser offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime


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charged and a conviction upon the lesser offense.” Sibert at 430, citing State v.

Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the syllabus. Therefore, in

deciding whether the trial court abused its discretion by instructing the jury on

attempted trespass in a habitation, we must determine whether it was reasonable for

the trial court to conclude that the evidence presented at trial could support both a

conclusion that Potter did not commit the offense of trespass in a habitation and a

conclusion that Potter committed the offense of attempted trespass in a habitation.

       {¶13} At trial, both Michelle and Christopher testified that they were living

in the outbuilding located at the rear of their property in February 2018. (Jan. 14-

15, 2019 Tr., Vol. I, at 179-180, 197-198). Michelle and Christopher each testified

that they were in bed in the outbuilding in the early morning hours of February 4,

2018 when they heard scratching, banging, and other noises coming from one of the

outbuilding’s two doors. (Id. at 181-182, 198, 202, 212). Michelle testified that

while she called 911, Christopher moved toward the door. (Id. at 184). Christopher

stated that he saw the door move as he approached it. (Id. at 202).

       {¶14} Christopher was approximately five feet away from the door when it

swung open to the outside. (Id. at 184, 215-216). Christopher testified that the door

was “bowed in where somebody used a prying tool to open [the] door.” (Id. at 203);

(State’s Exs. 6, 7, 8). Although Christopher did not observe anyone using a prying

tool to open the door, he concluded that someone used a prying tool because he


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found a trenching spade lying “about three feet from th[e] door” and he had not left

the trenching spade there. (Jan. 14-15, 2019 Tr., Vol. I, at 203-206). He testified

that prior to the morning of February 4, 2018, the door was “perfectly fine” and had

not sustained any damage. (Id. at 204). He confirmed that the damaged part of the

door was “consistent with the area [he] heard banging when [he was] inside the

[outbuilding].” (Id.).

       {¶15} Michelle and Christopher both testified that the person who opened

the door to their outbuilding did not have permission to be on their property or to

open the door. (Id. at 185, 221, 227). Michelle testified that once the door was

opened, the person at the door attempted to enter the outbuilding but “did not get all

the way in, because as he opened the door, [Christopher] was standing right there.”

(Id. at 187). Further, Michelle testified that she believed that the person might have

gotten “two feet in” the outbuilding before fleeing, and she was certain that the

person made it at least partially through the door and into the outbuilding. (Id. at

187, 191-194). However, according to Christopher, the person who opened the door

did not “step in,” “push in,” or “get an opportunity to enter [the outbuilding].” (Id.

at 220).

       {¶16} Once the door opened, Christopher yelled at the would-be intruder and

the person “immediately bolted.” (Id. at 216-217). Christopher saw “only his

backside” as the person fled from the outbuilding.         (Id. at 219).   However,


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Christopher was able to observe the person’s distinctive clothing, and he later

identified Potter as the person who opened the door to the outbuilding based partly

on the clothes Potter was wearing when he was apprehended by police. (Id. at 219,

224-226).

       {¶17} After reviewing the record, we conclude that the trial court did not

abuse its discretion by instructing the jury on attempted trespass in a habitation.

Christopher’s testimony that Potter failed to make any entry into the outbuilding, if

believed by the jury, reasonably supports an acquittal on the charged offense of

trespass in a habitation because the jury could find that such testimony weighs

against a conclusion that Potter “trespassed” in the Winterses’ outbuilding.

However, other than the discrepancy between Christopher’s testimony and

Michelle’s testimony concerning the extent to which Potter entered the outbuilding,

their testimonies are consistent in all significant aspects and reasonably support a

conclusion that Potter engaged in acts constituting a substantial step in a course of

conduct planned to culminate in the commission of the offense of trespass in a

habitation. That is, Christopher’s and Michelle’s testimonies reasonably support a

conviction on the offense of attempted trespass in a habitation because their

testimonies, if believed by the jury, establish that Potter’s conduct—forcing open

the outbuilding’s door and fleeing when confronted by Christopher—was strongly

corroborative of his criminal purpose to trespass in the Winterses’ outbuilding. See


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State v. Dailey, 8th Dist. Cuyahoga No. 89289, 2007-Ohio-6650, ¶ 33 (the

defendant’s “actions of pounding on [the victim’s] door and trying to push in the

window screen were substantial steps, strongly corroborative of his criminal

purpose to burglarize [the victim’s] home”); State v. Dunlap, 10th Dist. Franklin

No. 03AP-481, 2003-Ohio-6830, ¶ 11-12 (where the defendant told the victim that

he was going to come inside “even if he had to break the door down” and kicked the

door, though the deadbolt stopped it from opening, the defendant’s attempted

burglary conviction was not against the manifest weight of the evidence); State v.

Sams, 9th Dist. Summit No. 20063, 2000 WL 1729475, *3 (Nov. 22, 2000) (where

the defendant’s accomplice lifted a sliding glass door off its track and opened the

door a few inches before being interrupted by the homeowner and fleeing, the

defendant’s attempted burglary conviction was not against the manifest weight of

the evidence). Thus, we conclude that the trial court did not abuse its discretion by

instructing the jury on attempted trespass in a habitation.

       {¶18} Potter’s assignment of error is overruled.

       {¶19} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

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

/jlr


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