[Cite as State v. Hildenbrand, 2018-Ohio-2633.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                        JUDGES:
                                                     Hon. John W. Wise, P.J.
        Plaintiff-Appellee                           Hon. William B. Hoffman, J.
                                                     Hon. Craig R. Baldwin, J.
-vs-
                                                     Case No. CT2017-0045
BEAU P. HILDENBRAND

        Defendant-Appellant                          OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Muskingum County Court
                                                  of Common Pleas, Case No. CR2017-0043


JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           July 2, 2018


APPEARANCES:


For Plaintiff-Appellee                            For Defendant-Appellant

D. MICHAEL HADDOX                                 ERIC J. ALLEN
Prosecuting Attorney                              The Law Office of Eric J. Allen, Ltd.
Muskingum County, Ohio                            4605 Morse Rd., Suite 201
                                                  Gahanna, Ohio 43230

By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0045                                                     2

Hoffman, J.




       {¶1}   Defendant-appellant Beau P. Hildenbrand appeals his conviction entered

by the Muskingum County Court of Common Pleas, on one count of burglary, in violation

of R.C. 2911.12(A)(2), a felony of the second degree, following a jury trial. Plaintiff-

appellee is the state of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   On January 18, 2017, the Muskingum County Grand Jury indicted Appellant

on one count of burglary, in violation of R.C. 2911.12(A)(2), a felony of the second degree;

and one count of theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of the first

degree. Appellant appeared for arraignment on February 6, 2017, and entered a plea of

not guilty to the Indictment. Appellant filed a waiver of speedy trial on March 6, 2017.

After two continuances, one at Appellant’s request and the other at the state’s request,

the matter proceeded to jury trial on June 1, 2017.

       {¶3}   At trial, Kayla Hildenbrand testified she and Appellant started dating in 2007,

and married approximately a year or year and a half later. They had one child, Wyatt,

who was five years old at the time of trial. Appellant and Kayla subsequently divorced.

       {¶4}   Since 2010, Kayla has resided at 520 Urban Hill Road, Zanesville,

Muskingum County, Ohio (“the residence”), initially with Appellant and their son, and

currently with her son, her boyfriend, and his daughter. Between October and November,

2016, Kayla resided with her boyfriend while her father was refinishing the wood floors at

the residence. Kayla occasionally returned to the residence to check on her father’s

progress, pick up the mail, gather items she needed, and tend to other household matters.
Muskingum County, Case No. CT2017-0045                                                    3


In mid-November, Kayla noticed a gun missing from the headboard of the bed in the

master bedroom. She searched for the gun and spoke to family members who had visited

the residence, but she could not locate it. After speaking with her father, Kayla looked

through the residence for anything else which might be missing. Kayla discovered money

had been taken from Wyatt’s yellow piggy bank.          No jewelry, electronics, or other

valuables were taken. There was no sign of forced entry into the home.

       {¶5}   Kayla explained her son has two piggy banks, an Ohio State one and a

yellow one. The Ohio State piggy bank had been in Wyatt’s bedroom since he was born.

Wyatt liked to carry around the Ohio State piggy bank and count the change collected in

it. Appellant had taken money out of the Ohio State piggy bank in the past. In June,

Kayla removed the yellow piggy bank from its original packaging and placed it on Wyatt’s

dresser. Kayla received the yellow piggy bank as a gift at her baby shower, but never

opened it. After her son’s birthday on September 30, Kayla placed dollar bills in the yellow

piggy bank. Kayla stated there was between $50 and $75 dollars in the yellow piggy bank.

       {¶6}   Kayla discovered the missing gun and money on Saturday, November 12.

The following Tuesday, November 15, Kayla contacted the police. The detective dusted

the yellow piggy bank for fingerprints. Kayla told the detective she suspected Appellant

was responsible for the stolen items. Kayla indicated Appellant had not been present

when she removed the yellow piggy bank from its packaging, had not touched the yellow

piggy bank after it was removed from its packaging, and had not been in the residence

since the yellow piggy bank was removed from its packaging. Kayla stated Appellant did

not have permission to be in the residence or take money from the yellow piggy bank,

and he did not have a key to the residence.
Muskingum County, Case No. CT2017-0045                                                     4


       {¶7}   Muskingum County Sheriff’s Deputy Richard Perry testified he was

dispatched to the residence on November 15, 2016, in response to a report of a stolen

firearm and other items. Upon his arrival, Deputy Perry learned a pistol and cash from a

piggy bank had been stolen. Deputy Perry found no signs of forced entry. Kayla provided

the deputy with a history of her son’s two piggy banks. Deputy Perry photographed the

yellow piggy bank and dusted it for fingerprints. He explained he only dusted the yellow

piggy bank because Kayla had informed him she had recently removed it from its original

packaging and the only fingerprints on it should belong to her and Wyatt. Kayla advised

Deputy Perry the only possible suspect or person of interest would be Appellant.

       {¶8}   Deputy Perry subsequently spoke with Appellant. Appellant indicated the

last time he was in the residence was in December, 2015. Appellant acknowledged he

had taken money out of Wyatt’s piggy bank a couple of years earlier due to his drug

addiction at the time. Appellant stated more than once his fingerprints should not be on

the yellow piggy bank.

       {¶9}   Daniel Steiner, a forensic scientist with the Ohio Bureau of Criminal

Investigation and an expert in the area of latent fingerprint analysis, testified he analyzed

the latent lifts submitted by the Muskingum County Sheriff’s Department with a fingerprint

card bearing Appellant’s name. Steiner concluded the fingerprint submitted as a lift

matched Appellant’s fingerprint card.

       {¶10} Beverly Hildenbrand, Appellant’s mother, testified on his behalf.          Mrs.

Hildenbrand stated Appellant lived with her between October 1, and November 5, 2016.

Although Mrs. Hildenbrand acknowledged she did not chaperone Appellant every day, he

stayed at her home every day “[f]or the most part.” Tr. at 226. Mrs. Hildenbrand recalled
Muskingum County, Case No. CT2017-0045                                                    5


Appellant was with her and her family every day between October 20, and October 28,

2016, as they were on vacation in Virginia.         Catherine Kichler, Appellant’s sister,

corroborated Mrs. Hildenbrand’s testimony Appellant was with his family between

October 20, and October 28, 2016. James Hildenbrand, Appellant’s father, also testified

Appellant was living with him and his wife between October 1, and November 5, 2016,

and the family was on vacation between October 20, and October 28, 2016.                Mr.

Hildenbrand acknowledged there were a few days during that time period Appellant was

not staying in their home because he and Appellant had had a misunderstanding and

Appellant left.

       {¶11} After hearing all the evidence and deliberations, the jury found Appellant

guilty of Count 1 of the Indictment, burglary, but not guilty of Count 2, theft. Appellant

filed a motion for acquittal on June 13, 2017. The state filed a reply on June 20, 2017.

Following a hearing on July 10, 2017, the trial court denied Appellant’s motion.

       {¶12} Thereafter, on July 19, 2017, the trial court sentenced Appellant to a period

of incarceration of three years. The trial court notified Appellant he would be subject to a

mandatory three year period of post release control, and advised him of the

consequences of violating the conditions of post release control.

       {¶13} It is from this conviction Appellant appeals, raising as his sole assignment

of error:



              I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

       WIGHT [SIC] OF THE EVIDENCE IN VIOLATION OF THE UNITED

       STATES CONSTITUTION.
Muskingum County, Case No. CT2017-0045                                                     6


                                                 I

       {¶14} 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, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶15} “The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d

212, at paragraph one of the syllabus. The trier of fact is in the best position to judge the

credibility of the witnesses.

       {¶16} Appellant was convicted of one count of burglary, in violation of R.C.

2911.12(A)(2), which provides:



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

       following:

              ***

              (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.
Muskingum County, Case No. CT2017-0045                                                     7




        {¶17} Appellant argues his conviction should be reversed because the weight of

the evidence did not support the crime. Appellant points to the lack of eyewitness

testimony placing him at the residence during the time period in question, noting the

neighbors were not even interviewed, as well as Kayla’s inability to state when the

burglary actually occurred and the amount of money actually missing from the yellow

piggy bank. Appellant asserts it was reasonable for his fingerprints to be found on a piggy

bank which was received as a baby shower gift during the marriage. Appellant adds he

was unable to completely account for the thirty-six day time frame covered in the

Indictment, reasoning “most of us” would not be able to do so either.

        {¶18} The jury was free to accept or reject any or all of the evidence offered by

the parties and assess the witnesses' credibility. Indeed, the jurors need not believe all of

a witness' testimony, but may accept only portions of it as true. State v. McGregor, 5th

Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 2942992, ¶ 10. The jury

clearly believed Kayla’s testimony she removed the yellow piggy bank from its original

packaging six months after Appellant’s last visit to the residence; therefore, his

fingerprints would not have been on the piggy bank but for his taking money from it during

the time frame in question. We note the fact Kayla did not know the exact amount of

money taken from the yellow piggy bank is not of significance as Appellant was acquitted

of theft.

        {¶19} Based upon review of the record as set forth in the Statement of the Case

and Facts, supra, we find Appellant’s conviction was not against the manifest weight of

the evidence.
Muskingum County, Case No. CT2017-0045                                 8


      {¶20} Appellant’s sole assignment of error is overruled.

      {¶21} The judgment of the Muskingum County Court of Common Pleas is

affirmed.




By: Hoffman, J.

Wise, John, P.J. and

Baldwin, J. concur
