[Cite as State v. Washington , 2010-Ohio-5366.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               SCIOTO COUNTY

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 09CA3303
                                :
     vs.                        : Released: October 26, 2010
                                :
JAMES C. WASHINGTON,            : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Luke Brazinski, Luke Brazinski Law Office, Portsmouth, Ohio, for
Defendant-Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Cooke
Hutchinson, Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for Plaintiff-Appellee.
_____________________________________________________________

McFarland, P.J.:

        {¶1}       Defendant-Appellant, James C. Washington, appeals the

decision of the Scioto County Court of Common Pleas convicting him of

aggravated burglary. Washington argues the State failed to prove that he

intended to commit a crime when he entered the victim’s home, thus there

was insufficient evidence to support his conviction and that the conviction

was against the manifest weight of the evidence. We disagree. The strong

circumstantial evidence adduced by the State was sufficient for the jury to
Scioto App. No. 09CA3303                                                      2


determine that Washington had the requisite intent and, further, that his

conviction was not against the manifest weight of the evidence.

Accordingly, we overrule both assignments of error and affirm the decision

below.

                                   I. Facts

      {¶2}    In April 2009, Michael Stephenson left his trailer home

between 5:45 a.m. and 6:15 a.m., and drove his girlfriend to work.

Stephenson's 13-year-old child remained sleeping at the residence. When

Stephenson returned home at approximately 6:25 a.m., he saw a man he did

not know come out of the front door. The man immediately fled.

Stephenson chased and caught up with the man, and a struggle ensued.

During the fight, the man struck Stephenson several times with a tire tool.

Stephenson was incapacitated and the man fled the scene. Later, from a

photo lineup, Stephenson identified James Washington as the man who had

invaded his home and beaten him.

      {¶3}    Washington was charged with two counts of aggravated

burglary, one count of felonious assault, and one count of possession of

criminal tools. The matter proceeded to trial and the jury found him guilty

on all four counts. The trial court merged the two aggravated burglary

convictions as offenses of similar import. The court then sentenced
Scioto App. No. 09CA3303                                                        3


Washington to one year for possession of criminal tools, eight years for

felonious assault, and ten years for aggravated burglary, the sentences to run

consecutively.

      {¶4}       Following sentencing, Washington filed the current appeal.

                           II. Assignments of Error

First Assignment of Error

      THE TRIAL COURT COMMITTED PLAIN ERROR IN
      CONVICTING APPELLANT ON AGGRAVATED BURGLARY
      AS NO INTENT OF APPELLANT TO COMMIT A CRIME WAS
      IN EVIDENCE.
Second Assignment of Error
      THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT
      AGAINST THE APPELLANT THAT WAS AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE.

                         III. First Assignment of Error
      {¶5}       Washington was convicted of aggravated burglary under R.C

2911.11(A). “No person, by force, stealth, or deception, shall 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 * * *.” 2911.11(A). As his first assignment of error,
Scioto App. No. 09CA3303                                                       4


Washington alleges there was insufficient evidence to show that his purpose

in entering Stephenson's trailer was to commit a crime.

      {¶6}     When reviewing the sufficiency of the evidence, an appellate

court examines the evidence admitted at trial to determine whether that

evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus. The test is one of legal

adequacy, not rational persuasiveness. The relevant question is, after

viewing the evidence in a light most favorable to the prosecution, whether

any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. Id., citing Jackson v. Virginia (1979),

443 U.S. 307, 99 S.Ct. 2781.

      {¶7}     This test raises a question of law and does not allow us to

weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485

N.E.2d 717. Rather, the test “gives full play to the responsibility of the trier

of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Jackson at

319. The issues of the weight given to the evidence and the credibility of

witnesses are for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79,
Scioto App. No. 09CA3303                                                           5


79-80, 434 N.E.2d 1356; State v. DeHass (1967), 10 Ohio St.2d 230, 227

N.E.2d 212, paragraph one of the syllabus.

      {¶8}     Washington's argument is a narrow one. The only element of

2911.11(A) that he contends was not established is intent. In other words,

he does not contest that he, by force, stealth, or deception, trespassed in

Stephenson's home. Nor does he contest that Stephenson's child was present

during the trespass. Rather, his sole argument is that the State did not

present evidence that Washington's purpose in entering the home was to

commit a criminal offense. We do not find this argument persuasive.

      {¶9}     “The intent of an accused person dwells in his mind. Not

being ascertainable by the exercise of any or all of the senses, it can never be

proved by the direct testimony of a third person, and it need not be. It must

be gathered from the surrounding facts and circumstances under proper

instructions from the court.” State v. Johnson (1978), 56 Ohio St.2nd 35, 38,

381 N.E.2d 637, quoting State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d

313. “[I]t is difficult to ascertain the intent of a person in forcibly entering

an occupied structure if he is apprehended before he commits any overt act

inside the premises. (Internal citations omitted.) In such a situation, unless

circumstances giving rise to a different inference are present, a reasonable

inference arises that the individual entered the structure with the intent to
Scioto App. No. 09CA3303                                                       6


commit a theft offense.” State v. Ridgway, 4th Dist. No. 02CA20, 2003-

Ohio-1152, at ¶17.

      {¶10} In the case sub judice, there is abundant circumstantial

evidence from which a jury could reasonably infer that Washington intended

to commit a criminal offense when he entered Stephenson’s home.

Washington and Stephenson did not know each other, and Washington

obviously did not have permission to enter the residence. The trespass took

place in the early morning hours, under the cover of darkness. The front

door and lock showed signs of forcible entry. Washington immediately ran

from the residence when Stephenson returned, before Stephenson could even

get out of his car. Washington was willing to beat Stephenson with a tire

tool to escape. Stephenson testified that Washington did not have time to

pick up the tool once he left the residence, from which it could be deduced

that he already had the tire tool when he left the residence and that he had

used it to break into the home. Finally, Washington offered no excuse or

justification for entering the home.

      {¶11} In such circumstances, there is a reasonable inference that

Washington entered Stephenson's home in order to commit a criminal

offense. Accordingly, we find that, after viewing the evidence in a light

most favorable to the State, the jury could have found all the essential
Scioto App. No. 09CA3303                                                        7


elements of aggravated burglary proven beyond a reasonable doubt. As

such, Washington's first assignment of error is overruled.

                      IV. Second Assignment of Error

      {¶12} In his second assignment of error, Washington contends the

jury's verdict was against the manifest weight of the evidence. “The legal

concepts of sufficiency of the evidence and weight of the evidence are both

quantitatively and qualitatively different.” State v. Thompkins (1997), 78

Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency tests the

adequacy of the evidence, while weight tests “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other[.]” State v. Sudderth, 4th Dist. No. 07CA38,

2008-Ohio-5115, at ¶27, quoting Thompkins at 387.

      {¶13} “Even when sufficient evidence supports a verdict, we may

conclude that the verdict is against the manifest weight of the evidence,

because the test under the manifest weight standard is much broader than

that for sufficiency of the evidence.” State v. Smith, 4th Dist. No. 06CA7,

2007-Ohio-502 at ¶41. When determining whether a criminal conviction is

against the manifest weight of the evidence, we “will not reverse a

conviction where there is substantial evidence upon which the [trier of fact]

could reasonably conclude that all the elements of an offense have been
Scioto App. No. 09CA3303                                                         8


proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d

56, 526 N.E.2d 304, paragraph two of the syllabus. See, also, Smith at ¶41.

We “must review 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 conviction must be

reversed and a new trial granted.” Smith at ¶41, citing State v. Garrow

(1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. However, “[o]n the trial

of a case, * * * the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” DeHass at paragraph one

of the syllabus.

      {¶14} In this assignment of error, Washington, once again, focuses

solely upon the element of intent. He reiterates the argument from his first

assignment of error and states that even if there was sufficient evidence of

intent, his conviction was still against the manifest weight of the evidence.

We disagree. Though our standard of review is less stringent in an argument

based upon the manifest weight of the evidence than it is in one based upon

the sufficiency of the evidence, his argument remains unpersuasive.

Because of the factors listed in our analysis of the first assignment of error
Scioto App. No. 09CA3303                                                    9


and the reasonable inferences one could derive therefrom, we find that there

is substantial evidence upon which the jury could have reasonably concluded

that Washington intended to commit a criminal offense. Accordingly,

Washington's second assignment of error is also overruled.

                              V. Conclusion

      {¶15} After a complete review of the record below, we overrule both

of Washington's assignments of error. Appellant's sufficiency of the

evidence and manifest weight arguments fail because of the abundance of

circumstantial evidence indicating that Washington entered Stephenson's

home with the intent to commit a criminal offense. Further, because there

was evidence that Washington forcibly entered the home, there is a

presumption that he did so in order to commit theft. Accordingly, we affirm

the decision and judgment of the court below.

                                                JUDGMENT AFFIRMED.
Scioto App. No. 09CA3303                                                       10


                           JUDGMENT ENTRY
     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Harsha, J. and Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                   BY: _________________________
                                          Matthew W. McFarland
                                          Presiding Judge
                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
