[Cite as State v. Barber, 2017-Ohio-7904.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                       No. 17AP-59
v.                                                  :               (C.P.C. No. 15CR-2988)

Edward J. Barber,                                   :          (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                   Rendered on September 28, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellee.

                 On brief: Clark Law Office, and Toki Michelle Clark, for
                 appellant.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Edward J. Barber, appeals from a judgment of
conviction entered by the Franklin County Court of Common Pleas. For the following
reasons, we affirm that judgment.
I. Factual and Procedural Background

        {¶ 2} Appellant and Yvette Faison dated each other from 2006 until 2015. During
that time, they had two children together (Faison already had two other children) and by
fall 2014, they all lived in a house on Sidney Street in Columbus, Ohio. By the end of
2014, however, appellant moved out of the house. He was still welcome at the house and
No. 17AP-59                                                                                                 2

he and Faison still were friendly with each other. Appellant helped out with the children
and was a "parent figure" for Faison's other two children. By March 2015, that situation
changed. Faison became tired of arguments she and appellant would get into whenever
he came to the house and the way that he talked to her, so she stopped allowing appellant
to come to the house. The two would occasionally talk on the phone.
          {¶ 3} In April 2015, however, Faison received a voicemail from appellant. In the
voicemail, appellant stated that he wanted to see his children and threatened her if she
refused. Specifically, he said that "if I don’t talk to my kids, I swear to God, I am gonna
kill you and that bitch ass nigga."1 (Tr. at 74.) He also stated that if she did not let him see
his children, "I am going to come to your house. I am gonna act a fool. I don't give a fuck
about going to jail. Girl, I swear to God, I am going to – I will kill you. Quit playing with
me and my kids. I will kill you." Id. Appellant's message scared Faison. After the
voicemail, Faison called appellant to tell him that she was done with him and that she did
not want him calling her anymore. She also told him that she was going to get a protective
order because of the threats in the voicemail.
          {¶ 4} Faison and appellant had no contact with each other until two months later,
when in the early morning hours of June 10, 2015, Faison was awoken by pounding at the
door. The noise also woke her oldest child, K.F. Faison went downstairs to the front door
and yelled at whoever was pounding at the door. Appellant told her he wanted to see his
children. Id. at 83. Faison told appellant that it was late and that he should leave.
Appellant continued to bang on the door and accused Faison of not wanting to let him
inside because she had a man in the house. Appellant stopped banging on the front door
and then started to bang on the front room window. At this point, Faision ran upstairs to
get her phone to call the police. She came back and the two yelled at each other until the
front room window shattered. Faison saw appellant walk through the window and tell her
"[f]uck it, I am going to jail for murder tonight." Id. at 86. Faison immediately left the
house and ran to her sister's house across the street. Appellant followed her. Faison was
able to get into her sister's house and call 911. Appellant remained in the area and was
arrested by the police, who arrived shortly after the 911 call. Appellant told the police
officers that he needed to see his children and was angry that he could not. Id. at 36-37.

1   From the context of the voicemail, it is clear that appellant thought that Faison was dating another man.
No. 17AP-59                                                                                 3

One of the officers that arrested appellant noted that he was bleeding from a cut on his
hand. Id. at 27.
       {¶ 5} As a result of these events, a Franklin County Grand Jury indicted appellant
with one count of aggravated burglary in violation of R.C. 2911.11. Appellant entered a not
guilty plea and proceeded to a jury trial. At that trial, Faison and K.F. largely testified to
the above version of events. The jury found appellant guilty of the lesser-included offense
of attempted aggravated burglary and the trial court sentenced him accordingly.
II. The Appeal

       {¶ 6} Appellant appeals and assigns the following errors:
              [1.] The verdict of guilty is not supported by legally sufficient
              evidence and is against the manifest weight of evidence.

              [2.] Due Process, as guaranteed by the Fifth and Fourteenth
              Amendments to the United States Constitution and Section
              16, Article One of the Ohio Constitution, is violated when a
              sentence is vindictive.

   A. First Assignment of Error—The Sufficiency and Manifest Weight of the
      Evidence

       {¶ 7} Appellant contends that his convictions are not supported by sufficient
evidence and are against the manifest weight of the evidence. We disagree.
       {¶ 8} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally adequate to support a verdict. State v. Thompkins,
78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a
verdict is a question of law. Id. In determining whether the evidence is legally sufficient
to support a conviction, " '[t]he 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. Robinson,
124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing
the evidence in the light most favorable to the prosecution, it is apparent that reasonable
minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio
St.3d 460, 484 (2001).
No. 17AP-59                                                                                 4

       {¶ 9} In this inquiry, appellate courts do not assess whether the state's evidence is
to be believed, but whether, if believed, the evidence admitted at trial supports the
conviction. State v. Yarbourgh, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80 (evaluation
of witness credibility not proper on review for sufficiency of evidence); State v. Bankston,
10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a sufficiency of the evidence
review, an appellate court does not engage in a determination of witness credibility;
rather, it essentially assumes the state's witnesses testified truthfully and determines if
that testimony satisfies each element of the crime.").
       {¶ 10} Appellant also contends that his convictions were against the manifest
weight of the evidence. The weight of the evidence concerns the inclination of the greater
amount of credible evidence offered to support one side of the issue rather than the other.
Thompkins at 387. Although there may be sufficient evidence to support a judgment, a
court may nevertheless conclude that a judgment is against the manifest weight of the
evidence. Id.; State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶ 76.
       {¶ 11} When presented with a challenge to the manifest weight of the evidence, an
appellate court may not merely substitute its view for that of the trier of fact, but 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. Id. at 387. An appellate court
should reserve reversal of a conviction as being against the manifest weight of the
evidence for only the most " 'exceptional case in which the evidence weighs heavily against
the conviction.' " Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983);
State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.
       {¶ 12} In addressing a manifest weight of the evidence argument, we are able to
consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6.      However, in conducting our review, we are guided by the
presumption that the jury, or the trial court in a bench trial, " 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons
Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80         (1984).   Accordingly, we afford great
No. 17AP-59                                                                                5

deference to the jury's determination of witness credibility. State v. Redman, 10th Dist.
No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70,
2009-Ohio-6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph
one of the syllabus (credibility determinations are primarily for the trier of fact).
       1. Appellant's Conviction

       {¶ 13} Appellant was convicted of attempted aggravated burglary.            Aggravated
burglary, in violation of R.C. 2911.11(A)(1), prohibits any person, by force, stealth or
deception, from trespassing in an occupied structure when another person other than an
accomplice of the offender is present, with purpose to commit in the structure any
criminal offense, if that person inflicts, or attempts or threatens to inflict physical harm
on another. R.C. 2923.02(A) defines criminal attempt to prohibit a "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." The Supreme Court of Ohio has elaborated on the statutory definition: "A
'criminal attempt' is when one purposely does or omits to do anything which is an act or
omission constituting a substantial step in a course of conduct planned to culminate in his
commission of the crime." Group, at ¶ 95, quoting State v. Woods, 48 Ohio St.2d 127
(1976), paragraph one of the syllabus; State v. Hunt, 10th Dist. No. 10AP-618, 2011-Ohio-
4054, ¶ 16.
       2. Appellant's Arguments

       {¶ 14} Appellant argues that there was no evidence that he entered the house. We
disagree. Both Faison and her daughter testified that appellant came into the house
through the window. (Tr. at 54, 86.)
       {¶ 15} Appellant also argues that even if he did enter the house, he was privileged
to do so to visit his children. Again, we disagree.
       {¶ 16} A "privilege" in this regard includes permission to enter the premises given
by a resident of the premises. Columbus v. Parks, 10th Dist. No. 10AP-574, 2011-Ohio-
2164, ¶ 14; In re Meachem, 10th Dist. No. 01AP-1122, 2002-Ohio-2243, ¶ 16. Appellant
argues that Faison had given him permission to come in the house to visit with the
children. While appellant had been allowed to enter the house in the past, Faison testified
that since March or April before this incident, she had refused to allow him to see the
No. 17AP-59                                                                                   6

children and had ended contact with him completely after receiving his threatening
voicemail. She specifically testified that she did not give appellant permission to come
into her house that morning. (Tr. at 79, 104.) There is no evidence that appellant was
privileged to enter Faison's house that morning.
       {¶ 17} Last, appellant argues that his purpose for coming to the house was not to
commit a criminal offense but to see his children. This was what he contends he told
Faison when he was banging on the front door and was the explanation appellant
provided to the police officers when they arrested him. Alternatively, the jury also heard
Faison's testimony, which indicated that he was there to harm her. A conviction is not
against the manifest weight of the evidence simply because the jury chose to believe the
state's witnesses over the appellant's version of events. State v. Lipkins, 10th Dist. No.
16AP-616, 2017-Ohio-4085, ¶ 39. Moreover, the jury also heard facts which contradict
appellant's version of events. These events occurred at 2:30 in the morning, a time when
most children would be asleep. Additionally, when Faison ran out of her house, appellant
did not stay in the house with the children but, instead, followed her to her sister's house.
Faison also testified that when appellant was inside the house, he told her that he was
going to jail for murder tonight. (Tr. at 86.) The jury also heard appellant's voicemail to
Faison in which he threatened to come to her house and kill her. The jury did not lose its
way by rejecting appellant's version of events and believing the state's version of events.
       3. Conclusion

       {¶ 18} Having rejected appellant's arguments, we conclude that appellant's
conviction for attempted aggravated burglary is supported by sufficient evidence and is
also not against the manifest weight of the evidence. Accordingly, we overrule his first
assignment of error.
   B. Second Assignment of Error—The Trial Court's Sentence

       {¶ 19} In his second assignment of error, appellant contends that the trial court
wrongfully determined that his offense was motivated by prejudice against women and
sentenced him to a longer prison term because of that finding. He argues this was
improper because it was vindictive and because the finding is not supported by the
evidence. We disagree.
No. 17AP-59                                                                                 7

          {¶ 20} At his sentencing, the prosecutor noted that appellant faced a previous
domestic violence charge against Faison in 2008 and that after the conduct that led to the
present charge, he allegedly violated a protection order that Faison had against him.2 The
prosecutor also noted, in arguing for a lengthy prison sentence, his history of violence and
his disrespect for women. The trial court agreed that appellant has "demonstrated a
consistent pattern of disrespect for women, for the mother of your children, for your
children by your choices and your behavior." (Jan. 13, 2017 Sentencing Tr. at 10.) The
trial court then considered the statutory factors in R.C. 2929.12 before imposing sentence.
The trial court first considered the factors in R.C. 2929.12(B) and (C), which relate to the
seriousness of the offender's conduct. One of those factors, R.C. 2929.12(B)(8), addresses
whether the offender was motivated by prejudice based on, among other things, gender,
in committing the offense. The trial court found that appellant's offense was motivated by
prejudice based on gender. (Sentencing Tr. at 14.) After considering and weighing each
of the R.C. 2929.12(B) and (C) factors, the trial court concluded that his conduct was more
serious than conduct normally constituting the offense. Id.
          1. Standard of Review

          {¶ 21} In sentencing a felony offender, the trial court must consider the overriding
purposes of sentencing, which are "to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government." R.C. 2929.11(A). This requires consideration of "the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both." R.C. 2929.11(A). Further, pursuant to R.C. 2929.12(A), the court must consider
the factors set forth in R.C. 2929.12(B) and (C) relating to the seriousness of the offender's
conduct, as well as the factors set forth in R.C. 2929.12(D) and (E) relating to the
likelihood of recidivism, along with any other relevant factors. State v. Anderson, 10th
Dist. No. 15AP-1082, 2016-Ohio-5946, ¶ 8; State v. Phipps, 13AP-640, 2014-Ohio-2905,
¶ 46. "[A]n appellate court may vacate or modify a felony sentence on appeal only if it
determines by clear and convincing evidence that the record does not support the trial

2   Those allegations were dismissed after this conviction.
No. 17AP-59                                                                                                 8

court's findings under relevant statutes or that the sentence is otherwise contrary to law."
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 1; State v. Gore, 10th Dist. No.
15AP-686, 2016-Ohio-7667, ¶ 8.
        2. Analysis
        {¶ 22} First, we summarily reject appellant's claim that the trial court acted
vindictively.     R.C. 2929.12(B)(8) allows for a trial court to consider an offender's
motivation and/or prejudice in committing an offense. Thus, the trial court could take
into account appellant's prejudice against women in sentencing him.3
        {¶ 23} In reality, appellant's argument is that the record does not support the trial
court's conclusion that his acts were motivated by prejudice against women. We disagree.
First, the trial court heard all the evidence at appellant's trial which demonstrated
complete and utter disregard and disrespect for Faison. Additionally, the trial court was
aware of other acts appellant committed against Faison.                        Further, the prosecutor
commented on the manner in which appellant could not get along with his female
attorneys and the female trial court judge.               Therefore, the trial court's finding that
appellant's conduct was motivated by prejudice against women is supported by the
record. Accordingly, we overrule appellant's second assignment of error.
III. Conclusion

        {¶ 24} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                                     Judgment affirmed.
                                SADLER and HORTON, JJ., concur.




3 Nevertheless, the trial court specifically told appellant at sentencing that regardless of how he felt about
her, "that definitely is not going to impact my decision." (Sentencing Tr. at 11.)
