[Cite as State v. Fleming, 2017-Ohio-871.]


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

STATE OF OHIO                                         C.A. Nos.    15CA010792
                                                                   15CA010793
        Appellee

        v.
                                                      APPEAL FROM JUDGMENT
JASON FLEMING                                         ENTERED IN THE
                                                      COURT OF COMMON PLEAS
        and                                           COUNTY OF LORAIN, OHIO
                                                      CASE Nos. 13CR088279
JERRY L. FLEMING                                                 13CR088280

        Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: March 13, 2017



        CARR, Presiding Judge.

        {¶1}     Appellants Jason Fleming and Jerry Fleming appeal their convictions in the

Lorain County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     Jason and Jerry were each indicted on one count of breaking and entering and one

count of possessing criminal tools, both felonies of the fifth degree. After pleading not guilty,

both men waived their rights to a jury trial and elected to be tried by a judge. The Flemings were

tried together after the court obtained their waivers of any potential conflict due to their

representation by attorneys who practiced in the same office. At the conclusion of the bench

trial, the judge found both Jason and Jerry guilty of both counts. Jason was sentenced to two
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years of community control, while Jerry was sentenced to one year of community control. Both

men filed timely appeals, each raising one identical assignment of error.

                                                 II.

                                  ASSIGNMENT OF ERROR

       [APPELLANTS’] CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF
       THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND OF THE
       OHIO CONSTITUTION.

       {¶3}    Jason and Jerry submitted substantially identical briefs and raise identical

arguments. They argue that their convictions are against the manifest weight of the evidence.

This Court disagrees.

       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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. State v. Thompkins,
       78 Ohio St.3d 380, 387 (1997). Further when reversing a conviction on the basis
       that it was against the manifest weight of the evidence, an appellate court sits as a
       “thirteenth juror,” and disagrees with the factfinder’s resolution of the conflicting
       testimony. Id.

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5.

       {¶4}    This discretionary power should be exercised only in exceptional cases where the

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins,

78 Ohio St.3d at 387.

       {¶5}    This Court will not overturn the trial court’s verdict on a manifest weight of the

evidence challenge only because the trier of fact chose to believe certain witness’ testimony over
                                                 3


the testimony of others. State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-Ohio-4082, ¶

22.

       {¶6}    Jason and Jerry were each convicted of breaking and entering in violation of R.C.

2911.13(A), which provides that “[n]o person by force, stealth, or deception, shall trespass in an

unoccupied structure, with purpose to commit therein any theft offense, * * * or any felony.”

       A person acts knowingly, regardless of purpose, when the person is aware that the
       person’s conduct will probably cause a certain result or will probably be of a
       certain nature. A person has knowledge of circumstances when the person is
       aware that such circumstances probably exist. When knowledge of the existence
       of a particular fact is an element of an offense, such knowledge is established if a
       person subjectively believes that there is a high probability of its existence and
       fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

R.C. 2901.22(B).

       A person acts purposely when it is the person’s specific intention to cause a
       certain result, or, when the gist of the offense is a prohibition against conduct of a
       certain nature, regardless of what the offender intends to accomplish thereby, it is
       the offender’s specific intention to engage in conduct of that nature.

R.C. 2901.22(A).

       {¶7}    The Flemings were each also convicted of possessing criminal tools in violation

of R.C. 2923.24(A), which states that “[n]o person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it criminally.”

       {¶8}    As an initial matter, this Court notes that the Flemings do not present any

arguments in their briefs regarding their convictions for possessing criminal tools. Rather, they

challenge only their convictions for breaking and entering, arguing merely that the State failed to

meet its burden of persuasion as to whether the Flemings used stealth to enter the structure and

whether the defendants had purpose to commit a theft offense because the property was

abandoned. Accordingly, we constrain our discussion to these issues.
                                                4


       {¶9}    Recognizing that the Ohio Revised Code does not define “stealth,” this Court has

adopted the well-established definition of “‘any secret, sly or clandestine act to avoid discovery

and to gain entrance into or to remain within a residence of another without permission.’” State

v. Trikilis, 9th Dist. Medina Nos. 04CA0096-M, 04CA0097-M, 2005-Ohio-4266, ¶ 31, quoting

State v. Lane, 50 Ohio App.2d 41, 47 (10th Dist.1976); see also State v. Dobbins, 9th Dist.

Lorain No. 08CA009498, 2009-Ohio-2079, ¶ 27 (Carr, J., dissenting, also citing Black’s Law

Dictionary (8 Ed.2004) 1453, defining “stealth” and “surreptitiousness; furtive slyness”).

       {¶10} This Court has defined “abandoned property” as “property over which the owner

has relinquished all right, title, claim, and possession with the intention of not reclaiming it or

resuming its ownership, possession or enjoyment.” Perez Bar & Grill v. Schneider, 9th Dist.

Lorain No. 11CA010076, 2012-Ohio-5820, ¶ 32, quoting Doughman v. Long, 42 Ohio App.3d

17, 21 (12th Dist.1987). Moreover, “‘[a]bandonment requires affirmative proof of the intent to

abandon coupled with acts or omissions implementing the intent. Mere non-use is not sufficient

to establish the fact of abandonment, absent other evidence tending to prove the intent to

abandon.’” Perez Bar & Grill at ¶ 32, quoting Long v. Noah’s Lost Ark, Inc., 158 Ohio App.3d

206, 2004-Ohio-4155, ¶ 35 (7th Dist.). The State cannot establish a theft if the property was

abandoned or the accused reasonably believed that it was abandoned. Hamilton v. Noe, 12th

Dist. Butler No. CA2008-08-182, 2009-Ohio-2802, ¶ 9.

       {¶11} The following evidence was adduced at trial. In late October 2013, the Fleming

brothers were doing some work on a house Jason had purchased on West 17th Street, in Lorain.

After finishing, they noticed a nearby house with missing windows at 907 West 17th Street.

Jerry had on another occasion noticed a large sign in the yard indicating that the house was

condemned and scheduled to be demolished, but the sign was not in the yard on that particular
                                                5


day. After leaving the area for a while, the Flemings returned to 907 after dark. They backed

their truck up the driveway to the side of the house. With no lights on the property, the truck was

not readily visible.     Jason and Jerry brought a large bag of construction tools and a

sledgehammer with them and entered the house through one of the front windows.

        {¶12} After being dispatched to the property regarding a possible breaking and entering,

two police officers arrived at the property. They heard movement and saw flashlights being used

inside the house. The officers announced themselves. One of the Fleming brothers stated that

they were coming out and did not want any trouble. The brothers exited the house through a

front window. Immediately upon exiting, Jerry blurted out that he knew they should not be there

and that they were just taking scrap metal. After receiving a Miranda warning, Jason admitted

that he did not know who owned the property and that he and his brother were there taking

anything of value.

        {¶13} Jason Davis became the owner of the property in the early 2000s and had used it

as a rental property for a number of years. The house had not been rented for approximately a

year in October 2013, because it had been subjected to vandalism. Mr. Davis had hoped to

rehabilitate the property and replace the stolen copper and mechanicals, but he had been unable

to afford the extensive repairs. However, he yet believed in October 2013, that the house could

be refurbished. Although the house has since been demolished, Mr. Davis still owns the property

and receives property tax bills for it.

        {¶14} Mr. Davis did not know the Flemings and never gave them permission to be on or

in the property. He was adamant that, even if there was a sign on the property warning of danger

and indicating that the house had been condemned (which he denied), he still owned the house

and all its contents. In fact, he and his maintenance worker periodically drove by the property to
                                               6


check on it. Mr. Davis did not give the Flemings permission to remove anything from the house

he owned. Nevertheless, the police found some items from the house in the Flemings’ truck.

       {¶15} Although there was no yard sign on the property that evening indicating that the

house was scheduled for demolition, Jerry believed that the city owned the property, was

planning to tear it down, and would take all materials to the dump. He admitted, however, that

he never contacted the city to seek permission to enter the house and take any scrap metals. He

further admitted that he did not know the property owner and never sought permission from

anyone to enter. Moreover, he admitted that he does not believe that anyone can enter a property

and take whatever he pleases simply because signage identifies a house as condemned property.

Nevertheless, he and his brother entered the house after dark via a window, choosing the “path of

least resistance,” knowing that they were trespassing. Both men admitted that they entered the

house with the purpose of taking anything of value they could find.

       {¶16} A thorough review of the record indicates that this is not the exceptional case

where the evidence weighs heavily in favor of the Fleming brothers. The weight of the evidence

supports the conclusion that Jason and Jerry Fleming used stealth to trespass in the unoccupied

house at 907 West 17th Street, in Lorain, for the purpose of stealing anything of value therein.

The brothers noticed the vacant house with missing windows, left, and waited until after dark to

return. They parked their truck along the side of the unlit house, obscured from clear view,

rather than in front of the house which would have given them easier access for loading contents

from the house. They brought construction tools and a sledgehammer with them and entered the

house through a glassless window, rather than taking the time to push open the front door and

check for a clear path. The reasonable inference is that the brothers chose the quickest and

easiest means of entrance and egress to avoid detection. They used the limited, directed light of
                                                 7


flashlights to search for anything of value, rather than a more expansive light source. Under

these circumstances, the evidence demonstrated that the Flemings used stealth to gain access to

and remain in the house, making efforts to avoid detection.

       {¶17} The weight of the evidence further supports the conclusion that neither the house

nor its contents had been abandoned. Mr. Davis owned the property and had not made any

affirmative acts tending to show that he had relinquished all right, title, claim, and possession of

the property. In fact, the evidence demonstrated his intention to resume enjoyment of the house

as a renovated rental property. Both he and his maintenance worker checked on the property

approximately once a month. He had hoped to refurbish the house even in October 2013. It was

only later that he realized that the extensive necessary repairs would be cost prohibitive. In

addition, even though the house was eventually demolished, there was no evidence that Mr.

Davis would not have first removed anything of value once he was notified of any impending

demolition. Mr. Davis continued to own the property even after the house had been demolished,

and continues to receive tax bills. Moreover, the Flemings admitted that they knew that they

were trespassing on the property, that they were not supposed to be there, and that they had not

sought permission to take any of the contents of the house. In fact, they entered the house under

cover of darkness to avoid detection by any rightful owner.       Under these circumstances, the

evidence demonstrated that Mr. Davis had not abandoned either the house or its contents. In

addition, the evidence demonstrated that the Flemings did not reasonably believe that the

property had been abandoned.

       {¶18} Accordingly, Jason Fleming’s and Jerry Fleming’s convictions for breaking and

entering are not against the manifest weight of the evidence. The identical and sole assignment

of error of each is overruled.
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                                                III.

       {¶19} Jason Fleming’s assignment of error is overruled. Jerry Fleming’s assignment of

error is overruled. Their convictions in the Lorain County Court of Common Pleas are affirmed.

                                                                              Judgments affirmed.




       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 Lorain, 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.

       Costs taxed to Appellants.




                                                       DONNA J. CARR
                                                       FOR THE COURT



HENSAL, J.
CANNON, J.
CONCUR.

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)
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APPEARANCES:

GIOVANNA V. SCALETTA-BREMKE, Attorney at Law, for Appellants.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
