[Cite as State v. Powell, 2014-Ohio-5787.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      27075

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
HERMAINE POWELL                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 13 04 0958

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2014



        CARR, Judge.

        {¶1}     Appellant, Hermaine Powell, appeals the judgment of the Summit County Court

of Common Pleas. This Court affirms in part, reverses in part, and remands.

                                                I.

        {¶2}     On April 17, 2003, the Summit County Grand Jury returned an indictment

charging Powell with aggravated robbery, aggravated burglary, kidnapping, felonious assault,

and disrupting public services. Nearly a month later, the Grand Jury issued a supplemental

indictment adding a repeat violent offender specification to each of the first four counts of the

indictment. Powell pleaded not guilty to the charges at arraignment and the matter proceeded to

jury trial. Powell was found guilty of aggravated burglary, felonious assault, and disrupting

public services, as well as the attendant repeat violent offender specifications. Powell was found

not guilty of aggravated robbery and kidnapping. The trial court imposed a combined prison

sentence of nine years.
                                                 2


       {¶3}    On appeal, Powell raises three assignments of error. This Court rearranges the

assignments of error to facilitate review.

                                                II.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S
       [CRIM.R.] 29 MOTION TO DISMISS THE AGGRAVATED BURGLARY
       CHARGE FOLLOWING THE CONCLUSION OF THE STATE’S CASE.

       {¶4}    In his third assignment of error, Powell argues that the trial court erred in denying

his Crim.R. 29 motion to dismiss with respect to the aggravated burglary charge. This Court

disagrees.

       {¶5}    Crim.R. 29(A) provides:

       The court on motion of a defendant or on its own motion, after the evidence on
       either side is closed, shall order the entry of a judgment of acquittal of one or
       more offenses charged in the indictment, information, or complaint, if the
       evidence is insufficient to sustain a conviction of such offense or offenses. The
       court may not reserve ruling on a motion for judgment of acquittal made at the
       close of the state’s case.

       {¶6}    A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley, 9th

Dist. Summit No. 19600, 2000 WL 277908 (Mar. 15, 2000). When reviewing the sufficiency of

the evidence, this Court must review the evidence in a light most favorable to the prosecution to

determine whether the evidence before the trial court was sufficient to sustain a conviction. State

v. Jenks, 61 Ohio St.3d 259, 279 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The 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.
                                                  3


Id. at paragraph two of the syllabus.

       {¶7}    Powell was convicted of aggravated burglary in violation of R.C. 2911.11(A)(1),

which states, “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, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on

another[.]” “Occupied structure” is defined as “any house [or] building * * * or any portion

thereof, to which any of the following applies:

       (1) It is maintained as a permanent or temporary dwelling, even though it is
       temporarily unoccupied and whether or not any person is actually present.

       (2) At the time, it is occupied as the permanent or temporary habitation of any
       person, whether or not any person is actually present.

       (3) At the time, it is specially adapted for the overnight accommodation of any
       person, whether or not any person is actually present.

       (4) At the time, any person is present or likely to be present in it.

R.C. 2909.01(C)

       {¶8}    In support of his assignment of error, Powell insists that the State did not prove

that he entered the apartment by “force, stealth, or deception” or that he intended to inflict

physical harm on another. Powell supports this assertion by underscoring that the victim’s

testimony in support of his aggravated burglary conviction contained contradictions.

       {¶9}    The State’s evidence showed that after attending a house party the previous

evening, Jessica Brown received a ride back to her apartment on the morning of April 6, 2013,

from a friend. When they arrived in the parking lot, Ms. Brown saw her boyfriend, Powell,

pacing in an agitated state. Ms. Brown wanted her friend to drive away but, instead, they sat in
                                                4


the parking lot as Powell approached the vehicle. Powell opened the passenger door and pulled

Ms. Brown out of the vehicle by her hair. Instead of intervening, Ms. Brown’s friend drove

away from the scene. Powell threw Ms. Brown to the ground in the parking lot and began to

repeatedly punch her in the head, back, and arms. Though Ms. Brown tried to resist, Powell

violently pushed and pulled her up a flight of stairs to the second floor apartment where she was

staying. After Powell dragged Ms. Brown up the stairs, he directed her to open the door. Ms.

Brown testified that she did not willingly enter the apartment but Powell pushed her inside and

locked the door behind them. Powell then continued to punch Ms. Brown and he pulled out a

chunk of her hair. Ms. Brown was eventually able to dial 911 but she was unable to speak with

the dispatcher because Powell continued to hit her, attempted to pull the phone away, and bit her

hand. When the dispatcher called back, Powell answered the phone and stepped outside of the

apartment. Ms. Brown then locked the door with the hope of keeping Powell away. Powell

proceeded to kick down the door and continue his physical assault on Ms. Brown.

Approximately five minutes after Powell reentered the apartment, police arrived on the scene.

Ms. Brown informed police that Powell had assaulted her and Powell fled the scene. After a

short chase, police were able to apprehend Powell. Ms. Brown spent two days in the hospital

due to injuries suffered during assault.

       {¶10} In light of the aforementioned evidence, Powell cannot prevail on his argument

that the State failed to demonstrate that he forcibly entered the apartment. The first time Powell

entered the apartment, he used the threat of violence to coerce Ms. Brown into opening the door.

The second time Powell entered, he kicked down a door that had been locked for the specific

purpose of keeping him out.         This evidence, which came out during the State’s direct

examination of Ms. Brown, was sufficient to prove that Powell forcibly entered the apartment.
                                                 5


Moreover, each time Powell broke into the apartment, he proceeded to viciously attack Ms.

Brown by striking her repeatedly. Thus, Powell’s argument that he did not enter the apartment

with the intent to cause physical harm is also without merit. Though Powell stresses that Officers

Ford and Iverson were not able to corroborate portions of Ms. Brown’s testimony because they

were not eye witnesses to the incident, we note that we are compelled to construe the testimony

in the light most favorable to the State in reviewing the sufficiency of the evidence. Jenks, 61

Ohio St.3d at 279.   It follows that the evidence presented during the State’s case-in-chief was

sufficient to withstand Powell’s motion for acquittal.

       The third assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

       APPELLANT’S CONVICTIONS OF AGGRAVATED [BURGLARY] AND
       FELONIOUS ASSAULT WERE CONTRARY TO THE MANIFEST WEIGHT
       OF THE EVIDENCE, AND THE JURY LOST ITS WAY WHEN IT FOUND
       THE APPELLANT GUILTY.

       {¶11} In his first assignment of error, Powell contends that his convictions for

aggravated burglary and felonious assault were against the manifest weight of the evidence. This

Court disagrees.

       {¶12} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997);

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court 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.
                                                 6


State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases. Otten at 340.

       {¶13} In support of his position, Powell argues that the jury lost its way believing Ms.

Brown’s testimony because it was not credible. Specifically, Powell contends that Ms. Brown

was intoxicated at the time of the incident and that portions of her testimony were directly

contradicted by Powell’s testimony. Most notably, Powell testified that Ms. Brown fell out of

the truck simply because she was drunk, and he insisted that he did not pull her out of the truck

by her hair. Powell also notes that there was contradictory evidence regarding whether he kicked

down the apartment door, whether he voluntarily let the police officers enter the apartment upon

their arrival, and whether he pushed one of the officers as he fled the scene. Though the parties

undoubtedly presented conflicting evidence in this case, we note that “the trier of fact was in the

best position to evaluate the credibility of witnesses, and this Court will not overturn the trial

court’s verdict on a manifest weight of the evidence challenge simply because the trial court

chose to believe certain witnesses’ testimony over the testimony of others.” State v. Ross, 9th

Dist. Wayne No. 12CA0007, 2013-Ohio-522, ¶ 16, citing State v. Crowe, 9th Dist. Medina No.

04CA0098-M, 2005-Ohio-4082, ¶ 22. As noted above, Ms. Brown provided a detailed account

of the attack by Powell, which culminated with Powell kicking down the door to the apartment

and continuing his violent assault. Ms. Brown testified that she spent two days in the hospital as

a result of the attack. While Powell challenges the credibility of Ms. Brown’s testimony, “[a]
                                                  7


conviction is not against the manifest weight of the evidence merely because there is conflicting

evidence before the trier of fact.” Akron v. Portman, 9th Dist. Summit No. 22921, 2006-Ohio-

2856, ¶ 13. After a thorough review of the record, we cannot say that the jury clearly lost its way

in finding Powell guilty of felonious assault and aggravated burglary.

       {¶14} The first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT’S
       AGGRAVATED BURGLARY AND FELONIOUS ASSAULT CONVICTIONS
       AT SENTENCING IN VIOLATION OF [R.C.] 294[1].25(A), THE FIFTH AND
       FOURTEENTH    AMENDMENTS       TO     THE      UNITED     STATES
       CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
       CONSTITUTION.

       {¶15} In his second assignment of error, Powell argues that the trial court committed

plain error when it failed to merge his convictions for aggravated burglary and felonious assault

as the crimes were allied offenses of similar import. The State agrees that the matter should be

remanded as it is unclear from the record whether the trial court conducted an allied offenses

analysis. While Powell couches his argument in terms of plain error in his merit brief, our

review of the record reveals that defense counsel raised the allied offenses issue at the sentencing

hearing. Defense counsel stated on the record that all three offenses should merge, and the State

agreed and asked the court to sentence on the count of aggravated burglary. The trial court

responded by stating that it was uncertain whether the counts of aggravated burglary and

felonious assault would merge, but it did not resolve that matter prior to moving on to other

sentencing matters. Thus, the trial court did not conduct an allied offenses analysis pursuant to

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Rather than decide this issue in the first

instance, it is appropriate to remand this matter to the trial court to make the initial determination

of whether Powell’s convictions for aggravated burglary and felonious assault were allied
                                                 8


offenses of similar import. See State v. Hill, 9th Dist. Summit No. 26519, 2013-Ohio-4022, ¶ 23;

State v. Brown, 9th Dist. Summit No. 25287, 2011-Ohio-1041, ¶ 50. The second assignment of

error is sustained.

                                                III.

        {¶16} Powell’s first and third assignments of error are overruled.           The second

assignment of error is sustained. The judgment of the Summit County Court of Common Pleas

is affirmed in part and reversed in part and the cause remanded for further proceedings consistent

with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                             9


      Costs taxed equally to both parties.




                                                 DONNA J. CARR
                                                 FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

JASON D. WALLACE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
