[Cite as State v. Iseman, 2013-Ohio-460.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. William B. Hoffman, J.
                                             :       Hon. Sheila G. Farmer, J.
-vs-                                         :
                                             :
PHILIP ISEMAN                                :       Case No. 12CA26
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2011CR730D



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    February 8, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN C. NIEFT                                        CYNTHIA LOWENKAMP
38 South Park Street                                 598 Dirlam Lane
Mansfield, OH 44902                                  Mansfield, OH 44904
Richland County, Case No. 12CA26                                                         2

Farmer, J.

       {¶1}   On November 10, 2011, the Richland County Grand Jury indicted

appellant, Philip Iseman, on two counts of attempted burglary in violation of R.C.

2911.12 and R.C. 2923.02, and two counts of violating a protection order in violation of

R.C. 2919.27.     Said charges involved appellant's presence on the property of his

estranged wife, Sarah Iseman. Ms. Iseman had obtained a civil protection order against

appellant prior to the incident.

       {¶2}   Appellant pled guilty to a misdemeanor count of violating the protection

order. The two felony counts for violating the protection order were dismissed. A jury

trial on the two attempted burglary counts commenced on December 22, 2011. The jury

found appellant guilty of one of the attempted burglary counts and not guilty of the other.

By sentencing entry filed December 29, 2011, the trial court sentenced appellant to one

year in prison.

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

consideration. Assignments of error are as follows:

                                             I

       {¶4}   "AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                            II

       {¶5}   "INSUFFICIENT EVIDENCE."

                                            III

       {¶6}   "VIOLATION OF DUE PROCESS OF LAW."
Richland County, Case No. 12CA26                                                          3


                                             IV

       {¶7}   "JURY INSTRUCTIONS: THE COURT GAVE JURY INSTRUCTIONS

FOR ATTEMPT, BURGLARY AND/OR ATTEMPTED TRESPASS BURGLARY."

                                             V

       {¶8}   "JURY VERDICT FORM AND SENTENCING ENTRY."

                                             VI

       {¶9}   "REFUSAL OF COURT TO PROVIDE JURORS WITH REQUESTED

EVIDENCE."

                                            VII

       {¶10} "INEFFECTIVE ASSISTANCE OF COUNSEL."

                                          I, II, III

       {¶11} Appellant claims his conviction for attempted burglary was against the

sufficiency and manifest weight of the evidence. We disagree.

       {¶12} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

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

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). 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 lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and
Richland County, Case No. 12CA26                                                     4

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

      {¶13} Appellant was charged with two counts of attempted burglary in violation

of R.C. 2911.12(A)(1) or (2) and (B) which state the following:



             (A) No person, by force, stealth, or deception, shall do any of the

      following:

             (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;

             (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;

             (B) No person, by force, stealth, or deception, shall 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.
Richland County, Case No. 12CA26                                                      5


       {¶14} Appellant was convicted of attempting to commit subsection (B). Attempt

is defined in R.C. 2923.02(A) as, "[n]o 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."

       {¶15} Nathan Thompson, Ms. Iseman's ex-husband, was living in Ms. Iseman's

home because she was "very scared for herself and for her children." T. at 138. On

October 10, 2011, Mr. Thompson observed appellant, Ms. Iseman's estranged husband,

walking around the yard. T. at 140-141. Mr. Thompson kept moving from window to

window to monitor appellant's whereabouts.        When Mr. Thompson returned to the

kitchen, he observed appellant with "his head pressed up against the window looking

around inside the house." T. at 143. Appellant then attempted to lift the window to gain

access. Id. Mr. Thompson walked over to the window and appellant took off and

jumped over the backyard fence. Id. Later, it was discovered the fence had been

damaged on that day. T. at 146-147, 200; State's Exhibit 4C. Pursuant to a civil

protection order issued to Ms. Iseman on October 6, 2011, appellant was prohibited

from being within 500 feet of Ms. Iseman and/or her house. T. at 196-197; State's

Exhibit 7.

       {¶16} Appellant was aware of the civil protection order because on two

occasions after its issuance, he removed his belongings from Ms. Iseman's residence

while he was accompanied by the police. T. at 198. When confronted by Officer Jon

VanHouten with the accusation that he had been at Ms. Iseman's home on October 10,

2011, appellant denied it and stated he had been at the Brad Hoffman residence all

night. T. at 173, 177-179. Mr. Hoffman corroborated the story. T. at 179. Appellant
Richland County, Case No. 12CA26                                                         6


then recanted to Chief Brett Pauly, claiming it was possible that he had been in the area

of Ms. Iseman's residence on the day in question. T. at 221-222, 231-232; State's

Exhibt 5C.   At trial, Mr. Hoffman recanted his corroboration, claiming he made his

original statements to Officer VanHouten because he felt threatened by appellant's

"hyper" emotional state.    T. at 244.   Mr. Hoffman stated he had no knowledge of

appellant being in his home during the time of the incident. T. at 247.

      {¶17} The true inconsistencies are contained within appellant's recorded

telephone conversation with Chief Pauly. At first he denied being anywhere near Ms.

Iseman's residence and then back peddled when told his cell phone could possibly track

his whereabouts. Tacitly he admitted it was "possible" he had been within 500 feet of

Ms. Iseman's residence. T. at 220, 221-222, 231-232. Appellant admitted to knowing

there was an attempt to open a window when no officers had told him of that fact. T. at

220, 228.

      {¶18} Upon review, we find sufficient evidence to find appellant guilty of

attempted burglary under R.C. 2911.12(B), no manifest miscarriage of justice, and no

violations of due process of law.

      {¶19} Assignments of Error I, II, and III are denied.

                                          IV, V

      {¶20} Appellant claims the trial court erred in the jury instructions and the verdict

forms to the jury, and in the sentencing entry. We disagree.

      {¶21} The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion.          State v.

Martens, 90 Ohio App.3d 338 (3rd Dist. 1993). In order to find an abuse of discretion,
Richland County, Case No. 12CA26                                                         7


we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).      Jury instructions must be reviewed as a whole.        State v.

Coleman, 37 Ohio St.3d 286 (1988).

       {¶22} We note objections to the jury charge or verdict forms were not made. An

error not raised in the trial court must be plain error for an appellate court to reverse.

State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In order to prevail under a plain

error analysis, appellant bears the burden of demonstrating that the outcome of the trial

clearly would have been different but for the error. Long. Notice of plain error "is to be

taken with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice." Id. at paragraph three of the syllabus.

       {¶23} The trial court charged the jury with "attempted trespass burglary" as a

lesser-included offense of attempted burglary. T. at 298. As cited above, appellant was

indicted on two counts of attempted burglary in violation of R.C. 2911.12(A)(1) or (2)

and (B) and R.C. 2923.02(A). The jury charge given by the trial court and labeled

"attempted trespass burglary" was the R.C. 2911.12(B) count. The factor that makes it

a "lesser included offense" is the lack of proof that appellant's actions were for the

purpose of committing a crime. A violation of this subsection is a felony in the fourth

degree whereas a violation of subsection (A)(1) or (2) is a felony in the second degree.

R.C. 2911.12(D) and (E).

       {¶24} Upon review, we do not find plain error in the trial court's jury instructions

or verdict forms to the jury, and in the sentencing entry.

       {¶25} Assignments of Error IV and V are denied.
Richland County, Case No. 12CA26                                                    8


                                              VI

       {¶26} Appellant claims the trial court erred in refusing to provide jurors with

requested evidence. We disagree.

       {¶27} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage, 31 Ohio St.3d 173 (1987); Blakemore.

       {¶28} During trial, Mr. Thompson's handwritten statement (Defendant's Exhibit

A) was presented by defense counsel and portions of the statement were read into the

record (T. at 154):



              THE COURT: Why don't you go ahead and read the statement to

       him and ask him if that is accurate.

              Q. Now, Mr. Thompson, I will ask you if this is what you wrote:

       "Was looking out the window and happened to see somebody standing at

       the corner of the property. He walked this way, and I noticed it was Phil

       Iseman. He went behind the shed, and I didn't see him until he jumped

       over the fence and walked up to the window and trying to open it. And I

       walked up to the window, and he seen me and took off running back over

       the fence, and I didn't see him again."

              Now, that's not exactly what you just told us, is it?

              A. No, it's not.



       {¶29} The trial court denied the admission of the handwritten statement. T. at

328. No objection was made. Id.
Richland County, Case No. 12CA26                                                      9


      {¶30} After the commencement of deliberations, the jury requested the

statement and the court reporter's transcript. T. at 329. The trial court explained the

statement was read into evidence by defense counsel, but the statement was not

admitted into evidence. Id. The trial court denied the jury's request for the statement

and a written transcript of the testimony. Id. Again, no objection was made, so this

issue will be reviewed under a plain error standard. Long, supra.

      {¶31} Generally speaking, rereading specific parts of the testimony after the fact

is not commonly accepted as it puts undue emphasis on one statement over the others.

We concur with the trial court's decision because the handwritten statement was not

part of the evidence.

      {¶32} Appellant further argues the trial court erred in denying the statement's

admission under Evid.R. 613(B) which states the following:



             (A)   Examining     witness     concerning   prior     statement.   In

      examining a witness concerning a prior statement made by the witness,

      whether written or not, the statement need not be shown nor its contents

      disclosed to the witness at that time, but on request the same shall be

      shown or disclosed to opposing counsel.

             (B) Extrinsic evidence of prior inconsistent statement of

      witness. Extrinsic evidence of a prior inconsistent statement by a witness

      is admissible if both of the following apply:

             (1) If the statement is offered solely for the purpose of impeaching

      the witness, the witness is afforded a prior opportunity to explain or deny
Richland County, Case No. 12CA26                                                    10


      the statement and the opposite party is afforded an opportunity to

      interrogate the witness on the statement or the interests of justice

      otherwise require;

             (2) The subject matter of the statement is one of the following:

             (a) A fact that is of consequence to the determination of the action

      other than the credibility of a witness;

             (b) A fact that may be shown by extrinsic evidence under Evid.R.

      608(A), 609, 616(A), or 616(B);

             (c) A fact that may be shown by extrinsic evidence under the

      common law of impeachment if not in conflict with the Rules of Evidence.



      {¶33} Although the statement may have qualified under Evid.R. 613(B)(1), it did

not meet any of the requirements of subsection (B)(2). Further, once the statement was

read into the record and Mr. Thompson admitted that that was what he had written, the

admission of the statement would have been redundant.

      {¶34} Assignment of Error VI is denied.

                                            VII

      {¶35} Appellant claims he was denied the effective assistance of counsel. We

disagree.

      {¶36} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:
Richland County, Case No. 12CA26                                                         11


              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.



       {¶37} Appellant argues his trial counsel was deficient in stipulating to the civil

protection order. The protection order was admitted as an exhibit (State's Exhibit 7). It

was further identified by Ms. Iseman, the petitioner of the protection order. On the face

of the exhibit is the personal service date of the order which was prior to the date of the

incident sub judice.

       {¶38} Given the fact that the civil protection order was admitted into evidence,

we do not find any deficiency by trial counsel in stipulating to the protection order.

       {¶39} Assignment of Error VII is denied.
Richland County, Case No. 12CA26                                               12


      {¶40} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.




                                        s/ Sheila G. Farmer________________



                                        s/ Patricia A. Delaney______________



                                        _s/ William B. Hoffman_____________

                                                     JUDGES

SGF/sg 109
[Cite as State v. Iseman, 2013-Ohio-460.]


                  IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
PHILIP ISEMAN                                  :
                                               :
        Defendant-Appellant                    :        CASE NO. 12CA26




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

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

appellant.




                                               s/ Sheila G. Farmer________________



                                               s/ Patricia A. Delaney______________



                                               _s/ William B. Hoffman_____________

                                                           JUDGES
