[Cite as State v. Stump, 2014-Ohio-1706.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 13-CA-0006
MATTHEW T. STUMP

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Perry County Court of
                                              Common Pleas, Case No. 12-CR-0090


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       April 17, 2014


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JOSEPH A. FLAUTT                              DEBORAH N. FRIES
Prosecuting Attorney                          Gottlieb, Johnston, Beam &
111 North High Street                         Dal Ponte, P.L.L.
P.O. Box 569                                  320 Main St., P.O. Box 190
New Lexington, Ohio 43764-0569                Zaneslville, Ohio 43702-0190
Perry County, Case No. 13-CA-0006                                                         2

Hoffman, P.J.


       {¶1}    Defendant-appellant Matthew Stump appeals his conviction entered by the

Perry County Court of Common Pleas on one count of breaking and entering, in

violation of R.C. 2911.13(A), and theft, in violation of R.C. 2913.02. Plaintiff-appellee is

the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}    On October 20, 2012, Appellant knocked on the door of a house near an

old barn. When he received no answer, he proceeded to enter the barn. He then

loaded materials from the barn, including pots and pans and bobsleds, into the bed of

his truck.

       {¶3}    A neighbor, who was related to the barn's owner, witnessed Appellant

loading the materials into his truck and approached Appellant. The witness called the

barn's owner and law enforcement.

       {¶4}    Appellant was charged with breaking and entering, in violation of R.C.

2911(A), and theft, in violation of R.C. 2913.02. The matter proceeded to jury trial, and

the jury returned a verdict of guilty on both counts. The trial court sentenced Appellant

accordingly.

       {¶5}    Appellant now appeals his conviction on breaking and entering, assigning

as error:

       {¶6}    "I. THE EVIDENE [SIC] AT TRIAL WAS INSUFFICIENT TO SUPPORT

THE JURY'S GUILTY VERDICTS AGAINST THE APPELLANT AS TO THE CHARGED

BREAKING AND ENTERING IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE."
Perry County, Case No. 13-CA-0006                                                       3


       {¶7}   R.C. 2911.13 defines the offense of breaking and entering as,

       {¶8}   "(A) No person by force, stealth, or deception, shall trespass in an

unoccupied structure, with purpose to commit therein any theft offense, as defined in

section 2913.01 of the Revised Code, or any felony.

       {¶9}   "(B) No person shall trespass on the land or premises of another, with

purpose to commit a felony.

       {¶10} "(C) Whoever violates this section is guilty of breaking and entering, a

felony of the fifth degree."

       {¶11} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

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

be reversed and a new trial ordered'." State v. Thompkins, 78 Ohio St.3d 380, 387,

1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1983).

       {¶12} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).
Perry County, Case No. 13-CA-0006                                                           4


       {¶13} Appellant maintains the State did not prove stealth or deception to gain

entrance to the barn; rather, Appellant entered the barn in broad daylight in open view.

Appellant argues he did not utilize force to open the barn door.

       {¶14} The owner of the barn at issue testified at trial the small door through

which Appellant entered was always secured from the inside with wire and chain. He

testified access to the small door could be gained from other open areas of the barn.

He stated the small door was secured the last time he visited the barn. The testimony

of the neighbor who witnessed Appellant at the scene stated the small door was slightly

open when he arrived at the scene.

       {¶15} The Ninth District Court of Appeals addressed the issue raised herein in

State v. Shelly, 9th Dist. No. 3808563, 2011-Ohio-4301,

       {¶16} "Force is defined in Section 2901.01(A)(1) of the Ohio Revised Code as

'any violence, compulsion, or constraint physically exerted by any means upon or

against a person or thing.' This Court has held that opening an unlocked door can be

sufficient to show force under the burglary statutes. State v. Shirley, 9th Dist. No.

20569, 2002 WL 5177 at *2 (Jan. 2, 2002).

       {¶17} "Furthermore, there is evidence that Mr. Shelly entered the house by

stealth or deception. As mentioned above, Mr. Shelly had Ms. Ickes knock on the front

door and, when no one answered, he entered through the back door, which was not

visible from the street. This is sufficient evidence to support the trial court's finding that

Mr. Shelly entered by stealth or deception."

       {¶18} Under Ohio law, the opening of a door falls within the definition of force,

even if the door if unlocked. State v. Hibbard, 12th Dist. Nos. CA 2001-12-276, CA
Perry County, Case No. 13-CA-0006                                                   5


2001-12,286, 2003-Ohio-707.      Additionally, to further open a door which is already

partially open is considered force. Goins v. State (1914), 90 Ohio St. 176.

      {¶19} Based upon the above, we find Appellant's conviction for breaking and

entering is not against the manifest weight nor based upon insufficient evidence.

      {¶20} The judgment of the Perry County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur
