[Cite as State v. Hogue, 2011-Ohio-3806.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                  :      Hon. Sheila G. Farmer, J.
                                            :      Hon. Patricia A. Delaney, J.
-vs-                                        :
                                            :
RICKY A. HOGUE                              :      Case No. 10-CA-136
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. 2009CR00367



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                         July 29, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

DANIEL H. HUSTON                                ERIN J. MCENANEY
20 South Second Street                          21 West Church Street
4th Floor                                       Suite 201
Newark, OH 43055                                Newark, OH 43055
Licking County, Case No. 10-CA-136                                                     2

Farmer, J.

      {¶1}   On July 31, 2009, the Licking County Grand Jury indicted appellant, Ricky

Hogue, on one count of aggravated burglary in violation of R.C. 2911.11. Said charge

arose from an incident wherein appellant entered his former girlfriend's residence via a

back window, entered her bedroom, and punched her companion in the face.

      {¶2}   A jury trial commenced on April 8, 2010. The jury found appellant guilty of

burglary in violation of R.C. 2911.12 and assault in violation of R.C. 2903.13.       By

judgment entry filed June 9, 2010, the trial court sentenced appellant to three years of

community control which included a sentence of ninety days in jail.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE CONVICTION OF THE DEFENDANT-APPELLANT WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED BELOW."

                                            I

      {¶5}   Appellant claims his conviction for burglary was against the manifest

weight of the evidence because he had "privilege" to be inside the residence and

therefore he could not have committed a trespass.1 We disagree.

      {¶6}   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

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly



      1
       We note appellant does not challenge his conviction for assault.
Licking County, Case No. 10-CA-136                                                    3


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

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new

trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175.

       {¶7}   Appellant was convicted of burglary in violation of R.C. 2911.12 which

states the following:

       {¶8}   "(A) No person, by force, stealth, or deception, shall do any of the

following:

       {¶9}   "(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;

       {¶10} "(2) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure that is 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, with purpose to commit in the habitation any criminal

offense;

       {¶11} "(3) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, with purpose to commit in the

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

criminal offense;
Licking County, Case No. 10-CA-136                                                         4


       {¶12} "(4) 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."

       {¶13} "Trespass" is defined in R.C. 2911.21(A)(1) in pertinent part as, "[n]o

person, without privilege to do so, shall***[k]nowingly enter or remain on the land or

premises of another."

       {¶14} During opening statement, defense counsel admitted appellant was in the

residence of his girlfriend, Stacey Wise, on the evening in question, and agreed that the

facts were essentially uncontested; however, defense counsel argued appellant had

privilege to be there:

       {¶15} "Now, you have heard the prosecutor say that he anticipates he's going to

present evidence that on July 25, 2009, that Mr. Hogue came into the house of Stacey

Wise. And we don't deny that.

       {¶16} "***

       {¶17} "But I also anticipate you're going to hear evidence that Mr. Hogue and

Stacey Wise were not an ex-boyfriend/girlfriend and that, in fact, they had maintained a

relationship. Not only that but Mr. Hogue had consent to be in the residence and was

there on a regular basis." T. at 54.

       {¶18} "Privilege" is defined in R.C. 2901.01(A)(12) as, "an immunity, license, or

right conferred by law, bestowed by express or implied grant, arising out of status,

position, office, or relationship, or growing out of necessity."

       {¶19} Appellant admitted he was no longer living at Ms. Wise's residence when

he climbed in through the back window on July 25, 2009. T. at 221. He had signed a

lease for his own apartment on April 24, 2009. T. at 136; State's Exhibit 4-A and 4-B.
Licking County, Case No. 10-CA-136                                                      5


Appellant described their relationship from May 2009 to July 25, 2009 as "sometimes

apart." T. at 221. However, he "always felt that I lived there." T. at 222. Appellant

testified that he spent the night at the residence on July 22, 2009. T. at 224. Ms. Wise

testified that appellant moved out of her residence in April of 2009, but admitted to

having contact with him after the move, and that he sometimes continued to sleep there.

T. at 60-64.   Sometimes appellant's twelve year old son stayed too.         T. at 60-63.

However, while Ms. Wise provided them a place to sleep, she testified appellant was

not allowed to "come and go as he pleased" in regard to her residence. T. at 64.

Appellant was not a resident there and as far as Ms. Wise knew, appellant never had a

key to her residence. Id.

      {¶20} Within the facts is specific testimony about the nature of the residence as

it bears on "privilege." Appellant stated he had a key to the residence, but never used it

because the doors were never locked. T. at 225.         However, Ms. Wise testified to

changing the locks on the doors after appellant moved out. T. at 64. She specifically

recalled locking the entry doors to the residence on July 25, 2009 which appellant

conceded to as he admitted to going in through a window. T. at 85, 87, 232-233, 261.

The police officer who investigated the scene found a screen out of a large back

window, and mud on the interior floor by the window and on the bedroom door which

was kicked in by appellant. T. at 161-163. Appellant admitted to taking the screen out

and gaining access to the residence via the back window. T. at 234.

      {¶21} On July 24, 2009, appellant went over to Ms. Wise's residence to retrieve

some fishing gear. T. at 227. While there, appellant observed an overnight bag next to

the room used by his son. T. at 229. It had a bag tag on it with the name "Jimmy
Licking County, Case No. 10-CA-136                                                       6


Jones." Id. Appellant then left the residence, but returned a short time later to see if

Ms. Wise had returned. T. at 230, 232. Upon seeing that she had returned, appellant

exited his vehicle, found the doors locked, walked by the open bedroom window

overhearing sounds of intimacy, removed the screen from the back window and entered

the residence. T. at 232-234. Appellant wanted to gain entry to the residence to find

out "what was going on." T. at 235. He wanted to "confront" Ms. Wise. Id.

      {¶22} We find the diminished relationship between appellant and Ms. Wise, the

separate residences, the locked doors, and the presence of another lover in Ms. Wise's

residence all substantially impacted on the credibility of appellant and his claim of

privilege. The weight to be given to the evidence and the credibility of the witnesses are

issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied

(1990), 498 U.S. 881. The trier of fact "has the best opportunity to view the demeanor,

attitude, and credibility of each witness, something that does not translate well on the

written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

      {¶23} Upon review, we find sufficient credible evidence of a forcible entry into a

locked home without privilege to do so, and no manifest miscarriage of justice.

      {¶24} The sole assignment of error is denied.
Licking County, Case No. 10-CA-136                                            7


      {¶25} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




                                       _s/ Sheila G. Farmer__________________




                                       _s/ William B. Hoffman________________




                                       _s/ Patricia A. Delaney________________

                                                       JUDGES

SGF/sg 714
Licking County, Case No. 10-CA-136                                               8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
RICKY A. HOGUE                           :
                                         :
       Defendant-Appellant               :         CASE NO. 10-CA-136




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

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

appellant.




                                         s/ Sheila G. Farmer__________________




                                         _s/ William B. Hoffman________________




                                         _s/ Patricia A. Delaney________________

                                                         JUDGES
