[Cite as State v. Vickroy, 2017-Ohio-9209.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17-CA-17
ZACHARIAH VICKROY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Fairfield County Court of
                                               Common Pleas, Case No. 2016-CR-404


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        December 21, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

R. KYLE WITT                                   SCOTT P. WOOD
Fairfield County Prosecuting Attorney          Conrad/Wood
                                               12 East Main Street, Suite 200
BRIAN T. WALTZ                                 Lancaster, Ohio 43130
Assistant Prosecuting Attorney
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 17-CA-17                                                      2

Hoffman, J.

       {¶1}    Defendant-appellant Zachariah Vickroy appeals his convictions and

sentence entered by the Fairfield County Court of Common Pleas, on one count of

aggravated burglary, in violation of R.C. 2911.11(A)(1), a felony of the first degree; and

one count of robbery, in violation of R.C. 2911.02(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 September 23, 2016, the Fairfield County Grand Jury indicted Appellant

on one count of aggravated burglary, in violation of R.C. 2911.11(A)(1), a felony of the

first degree; two counts of robbery, in violation of R.C. 2911.02(A)(2), felonies of the

second degree; one count of grand theft, in violation of R.C. 2913.02(B)(2), a felony of

the fourth degree; and one count of theft, in violation of R.C. 2913.02(A)(3), a

misdemeanor of the first degree. Appellant appeared for arraignment on November 8,

2016, and entered pleas of not guilty to all of the charges.

       {¶3}    The matter proceeded to jury trial on February 28, 2017. On the first day of

trial, prior to the start of trial, the State moved to dismiss Counts Three (robbery), Four

(grand theft), and Five (theft) of the Indictment. With no objections from Appellant, the

trial court granted the State’s motions.

       {¶4}    The following evidence was adduced at trial.

       {¶5}    Jennifer and Rico Kesterson were asleep in their home at 725 N. Pierce

Ave, Lancaster, Fairfield County, Ohio, on August 25, 2016, when they were awoken by

the sound of loud crash caused by someone breaking into the residence. Rico got out of

bed to investigate. As he entered the kitchen, he encountered Appellant, who sprayed
Fairfield County, Case No. 17-CA-17                                                       3


him in the face with bug spray. Jennifer heard Rico say, “Oh!”, and proceeded to the

kitchen. She found Rico backing up, stating he could not see anything. As she ran toward

her husband, Appellant instructed both of them not to move. Appellant had a gun pointed

at Rico.

       {¶6}   The Kestersons had met Appellant through a mutual friend. After the initial

meeting, Appellant appeared unannounced at the Kesterson residence three additional

times. Rico asked Appellant not to return. Rico observed another individual standing

behind Appellant, whom he recognized from one of Appellant’s prior unannounced visits.

       {¶7}   While Appellant brandished the gun at the Kestersons, the unidentified male

picked up a safe. Thereafter, the men fled the residence. Rico chased the men and

ended up in a physical altercation with the unidentified male. Appellant and the other

individual man were able to get away.

       {¶8}   Rico called 911. During the 911 call, Rico identified Appellant by name as

one of the robbers. Officers were dispatched to the Kesterson residence. Officers noted

Rico’s injuries were consistent with being sprayed by mace or bug spray, to wit: red face;

glassy, bloodshot eyes; coughing; and gagging. Officers found the window of the door

the perpetrators used to gain entrance into the home had been broken. A can of bug

spray was discovered in the house, but no useable fingerprints were obtained from the

can. BCI tested the can for touch DNA. The DNA on the can did not belong to Appellant.

The testing could not exclude Appellant as having handled the can. Both Jennifer and

Rico identified Appellant at trial. The Kestersons also separately identified Appellant with

100% certainty through a photo line-up.
Fairfield County, Case No. 17-CA-17                                                       4


         {¶9}   Appellant was arrested on August 29, 2016, at the residence of Daniel

Pavlov, who was an acquaintance of the Kestersons. Pavlov was with Rico when he

purchased the safe a few days prior to the break-in. Pavlov had seen the contents of the

safe. When he was arrested, Appellant was in possession of a necklace which had been

in the safe at the time of the incident. Appellant was also in possession of a large amount

of cash, which mainly consisted of $100 bills, which was consistent with the

denominations in the safe.

         {¶10} After hearing all the evidence and deliberating, the jury found Appellant

guilty of one count of aggravated burglary and one count of robbery. On March 22, 2017,

the trial court conducted a sentencing hearing. The trial court merged the two counts,

and the State elected to proceed with sentencing on the aggravated burglary charge. The

trial court imposed a prison term of six years.

         {¶11} It is from his convictions and sentence Appellant appeals, assigning as

error:

         {¶12} 1. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT

OF AGGRAVATED BURGLARY AND ROBBERY.

                                                  I

         {¶13} When an appellate court reviews a record for sufficiency, 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. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827

N.E.2d 285, ¶ 47. Sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio

St.3d 380, 386, 678 N.E.2d 541. Accordingly, the question of whether the offered
Fairfield County, Case No. 17-CA-17                                                       5

evidence is sufficient to sustain a verdict is a question of law. State v. Perkins, 3d Dist.

Hancock No. 5–13–01, 2014-Ohio-752, 2014 WL 855870, ¶ 30, citing Thompkins at 386.

       {¶14} Appellant was convicted on one count of aggravated burglary. The offense

of aggravated burglary is defined in R.C. 2911.11(A)(1), as follows:



              (A) 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 any of the following apply:



              (1) The offender inflicts, or attempts or threatens to inflict physical

       harm on another.



       {¶15} Appellant was also convicted of one count of robbery, in violation of R.C.

2911.02(A)(2), which provides:



              (A) No person, in attempting or committing a theft offense or in

       fleeing immediately after the attempt or offense, shall do any of the

       following:

              ***
Fairfield County, Case No. 17-CA-17                                                      6


             (2) Inflict, attempt to inflict, or threaten to inflict physical harm on

      another.



      {¶16} In his Brief to this Court, Appellant argues the State’s entire case was based

on the testimony of Rico Kesterson, who is a convicted felon and who had been released

from prison just months before the incident, and Jennifer Kesterson, his wife. Appellant

notes there was no physical evidence establishing he was at the Kesterson residence on

the day of the incident. Appellant also points to a number of alleged inconsistencies in

the evidence, including the fact Appellant and his cohort entered a home about which

they had no prior knowledge, but knew exactly where the safe was hidden; law

enforcement officers never recovered the safe or located the getaway vehicle; no one in

the neighborhood saw or heard anything despite testimony of screeching truck tires and

Rico yelling as he attempted to jump in the truck; testimony the Kesterson’s dogs never

barked or rustled; and the fact Danny Pavlov, the Kesterson’s acquaintance, returned

items to the Kestersons which they had in the safe, and the same kind of wasp/hornet

spray Appellant used on Rico was found in the back of Pavlov’s truck.             Appellant

concludes, in light of Rico Kesterson’s lack of credibility and the inconsistencies in the

evidence, there was insufficient evidence to convict him.

      {¶17} Appellant’s arguments go to the issue of credibility and the weight to be

given to the evidence, not the sufficiency of the evidence.

      {¶18} Turning to the sufficiency of the evidence, we find, viewing the evidence in

a light most favorable to the prosecution, a rational trier of fact could have found the

essential elements of the crime of aggravated burglary proven beyond a reasonable
Fairfield County, Case No. 17-CA-17                                                        7


doubt. The State offered testimony which established Appellant, “by force, stealth, or

deception” trespassed in an occupied structure, to wit: the Kesterson residence, and

inflicted physical harm on Rico Kesterson and threatened to inflict physical harm on

Jennifer Kesterson. We further find, viewing the evidence in a light most favorable to the

prosecution, a rational trier of fact could have found the essential elements of the crime

of robbery. The State presented evidence which established Appellant, “in attempting or

committing a theft offense or in fleeing immediately after the attempt or offense,” inflicted

physical harm on Rico Kesterson and threatened to inflict physical harm on Jennifer

Kesterson.

       {¶19} We find there was sufficient evidence to support Appellant’s convictions.

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

       {¶21} The judgment of the Fairfield County Court of Common Pleas is affirmed.


By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
