         [Cite as State v. Whatley, 2016-Ohio-5713.]
                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NO. C-150471
                                                       TRIAL NO. B-1406418
        Plaintiff-Appellee,                        :

  vs.                                              :      O P I N I O N.

LARRY WHATLEY,                                     :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 9, 2016

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



STAUTBERG, Judge.

  {¶1}        Defendant-appellant Larry Whatley was indicted for aggravated

burglary, felonious assault, kidnapping, and two counts of rape in the aftermath of a

multi-day ordeal at the apartment of Leah Jarmon. Whatley pleaded not guilty to the

charges, and the case proceeded to a jury trial. The jury found Whatley guilty of

aggravated burglary and felonious assault.       The jury was unable to reach an

agreement on the rape and kidnapping charges, and those charges were subsequently

dismissed.   The trial court sentenced Whatley to 11 years’ imprisonment for

aggravated burglary, and 4 years’ imprisonment for felonious assault, with the

imprisonment terms to run consecutively.

  {¶2}        Whatley timely appealed, and in his sole assignment of error

challenges the weight and sufficiency of the evidence used to convict him of

aggravated burglary. He does not challenge his felonious assault conviction. For the

reasons below, we affirm the judgment of the trial court.

                                   Background

  {¶3}        Whatley and Jarmon have known each other since childhood and had

dated “on and off” over the years. Jarmon had also occasionally allowed Whatley to

stay at her apartment during times that he was homeless. Jarmon testified that she

ended any romantic involvement with Whatley sometime in late 2013 or early 2014,

and that she no longer permitted Whatley in her home. Tension developed between

the two and their relationship devolved into verbal and physical altercations, which

on occasion required police involvement.

  {¶4}        On November 8, 2014, Whatley gained entry into Jarmon’s apartment

while Jarmon was babysitting at her daughter’s home. Jarmon testified that she



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                       OHIO FIRST DISTRICT COURT OF APPEALS

returned home later that evening to find Whatley hiding in her bedroom with a

butcher knife. Jarmon testified that Whatley forced her to lay in bed with him and

engage in sex acts, which was followed by Whatley spending the night while sleeping

next to Jarmon with the knife close by his side.

  {¶5}          On November 9, Jarmon and Whatley did not leave the apartment.

Jarmon testified that she had turned off her cell phone at Whatley’s insistence.

Whatley spent most of the day playing with an iPad, which belonged to Jarmon’s

daughter. At some point, Whatley’s use of the iPad or Jarmon’s refusal to sleep with

Whatley triggered a fight; Whatley came at Jarmon with the butcher knife. Jarmon

tried to protect herself by grabbing the knife’s blade and suffered severe lacerations

to her hands.

  {¶6}          Jarmon testified that Whatley eventually calmed down and handed the

butcher knife to Jarmon, which she hid under a seat cushion on a kitchen chair.

When Whatley went to retrieve towels for Jarmon’s wounds, Jarmon ran to her

bedroom and shut the door. Whatley kicked in the door to the bedroom, entered

with a pair of scissors, and stabbed Jarmon in her lower back. Whatley calmed down

again and took Jarmon into the bathroom to put towels on her wounds. When he left

the bathroom, Jarmon tried to close the door. Again, Whatley returned and “busted

on in with another knife,” which she identified as a pocketknife, but he did not

physically harm her with the pocketknife.

  {¶7}          In the early morning hours of November 10, Whatley called 911.

Whatley told the 911 operator that Jarmon fell on glass while cleaning in the

bathroom. An ambulance took Jarmon to the hospital, and Whatley rode along.

Jarmon later told her medical providers and a police officer that she did not fall, but




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                       OHIO FIRST DISTRICT COURT OF APPEALS

had been assaulted by Whatley, which triggered an investigation and indictment of

Whatley.

                                Assignment of Error

  {¶8}          In his sole assignment of error, Whatley argues that his conviction for

aggravated burglary was based on insufficient evidence.

  {¶9}          In reviewing the sufficiency of the evidence to support a criminal

conviction, the court must determine whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

 {¶10}          Whatley was indicted for and convicted of aggravated burglary in

violation of R.C. 2911.11(A)(2), which provides:

         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 has a deadly

         weapon or dangerous ordnance on or about the offender’s person or

         under the offender’s control.

The term “deadly weapon” is defined in R.C. 2923.11(A) as “any instrument, device,

or thing capable of inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon.”

 {¶11}          In his brief, Whatley focuses on the pocketknife that was on his person

at some point while in Jarmon’s apartment, and argues (1) there was no evidence he



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                        OHIO FIRST DISTRICT COURT OF APPEALS

had the pocketknife when he entered the apartment, and (2) the pocketknife is not a

deadly weapon. These arguments are not persuasive.

 {¶12}          The state need not prove that Whatley had the pocketknife, or any

other deadly weapon, on his person at the time he gained access to Jarmon’s

apartment. “For purposes of defining the offense of aggravated burglary pursuant to

R.C. 2911.11, a defendant may form the purpose to commit a criminal offense at any

point during the course of a trespass.” State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d

1037 (2000), syllabus. Likewise, a defendant need not possess the deadly weapon

upon the initial trespass, but can acquire the weapon in the course of the trespass.

“If the purpose of the aggravated burglary statute is to protect against the potential of

danger to inhabitants, it is only logical to include a deadly weapon or firearm

acquired after entry under the prohibitions contained in the statute.”                State v.

Riggsby, 12th Dist. Madison No. CA87-06-014, 1987 Ohio App. LEXIS 10328, *6

(Dec. 31, 1987).      “The crime of aggravated burglary continues so long as the

defendant remains in the structure being burglarized because the trespass has not

been completed.” State v. Powell, 59 Ohio St.3d 62, 63, 571 N.E.2d 125 (1991).

 {¶13}          Here, a jury could conclude that the deadly weapon was either the

pocketknife that Whatley was alleged to have brought with him, or the butcher knife

or the scissors that Whatley subsequently acquired during the ongoing trespass.1

Each of the foregoing is a deadly weapon as defined in R.C. 2923.11(A) in the context

of this case. Undoubtedly, the scissors and the butcher knife are capable of inflicting

death, and were utilized in this case to do physical harm to Jarmon. The pocketknife

is also capable of inflicting death. See State v. Carusone, 1st Dist. Hamilton No. C-



1 Indeed, during the state’s closing statements to the jury, it argued that Whatley had a deadly
weapon on or about his person or under his control when he accessed the butcher knife sometime
after entering the apartment, the scissors as the events unfolded, or the pocketknife.


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                       OHIO FIRST DISTRICT COURT OF APPEALS

140737, 2015-Ohio-4397, ¶ 26; In re Carson, 5th Dist. Stark No. 2007CA00070,

2007-Ohio-5687. And although the pocketknife may not have caused injuries, it was

used as a weapon by Whatley.

 {¶14}          In this case, a rational trier of fact could have reasonably concluded

that Whatley’s presence at Jarmon’s apartment during the weekend of November 8,

2014, constituted trespass, and that Whatley formed the intent to commit a criminal

offense at some point before or during the course of his trespass. See State v.

Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 33. Moreover, a

rational trier of fact could have reasonably concluded that any of the objects used by

Whatley as a weapon throughout the course of the weekend constituted a deadly

weapon. Therefore, after viewing the evidence in the light most favorable to the

prosecution, we find that a rational trier of fact could have found the essential

elements of aggravated burglary proven beyond a reasonable doubt. Consequently,

Whatley’s sufficiency argument is without merit.

 {¶15}          Whatley also argues under his sufficiency assignment of error that his

conviction was against the manifest weight of the evidence. When considering a

challenge to the weight of the evidence, a different standard is applied.

         The court, reviewing the entire record, weighs the evidence and all

         reasonable inferences, considers the credibility of witnesses and

         determines 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 a new trial ordered. The

         discretionary power to grant a new trial should be exercised only in the

         exceptional case in which the evidence weighs heavily against the

         conviction.




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                       OHIO FIRST DISTRICT COURT OF APPEALS

State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 151, quoting

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), and State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

 {¶16}          Here, the jury found Whatley guilty of aggravated burglary. It appears,

with that finding, that the jury believed Jarmon’s testimony. After reviewing the

record, we do not believe that this finding was improper or erroneous, especially

given that the resolution of factual issues primarily resides with the trier of fact.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus. This case is not the exceptional case in which the evidence weighs heavily

against the conviction. Therefore, following our review of the record, we do not find

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

Whatley’s conviction must be reversed and a new trial ordered.

 {¶17}          We overrule Whatley’s sole assignment of error.

                                      Conclusion

 {¶18}          We hold that Whatley’s conviction of aggravated burglary was based

upon sufficient evidence and was not against the manifest weight of the evidence.

The judgment of the trial court is affirmed.

                                                                   Judgment affirmed.



FISCHER, P.J., and DEWINE, J., concur.



Please note:

         This court has recorded its own entry this date.




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