[Cite as State v. Trammel, 2013-Ohio-4354.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 2012 CA 00237
YUSEF TRAMMEL

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. 2012 CR 01221


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        September 30, 2013



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOHN D. FERRERO                               KRISTINE W. BEARD
PROSECUTING ATTORNEY                          4450 Belden Village Street, NW
KATHLEEN O. TATARSKY                          Suite 703
ASSISTANT PROSECUTOR                          Canton, Ohio 44718
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012 CA 00237                                                   2

Wise, J.

       {¶1}   Appellant Yusef Trammel appeals his convictions and sentence, in the

Court of Common Pleas, Stark County, on one count of aggravated burglary, with a

repeat violent offender specification. Appellee is the State of Ohio. The relevant facts

leading to this appeal are as follows.

       {¶2}   Shortly after midnight on August 6, 2012, Darin Hutchinson returned to his

home on Tremont Avenue in Massillon, Ohio, having finished his evening shift at a

nearby bakery. That night, Darin’s son Brad, age nineteen, was resting upstairs in his

room, while Darin’s wife Rebecca Hutchinson was staying late at her mother’s house to

help take care of her following a recent surgery. Darin fell asleep on the couch, but was

awakened at about 3:30 am when he heard some banging on the front door. Thinking

Rebecca was knocking, he went to open the door. As he approached the entrance area,

the door was smashed open, striking him in the head. Appellant, a former boyfriend of

Rebecca’s, immediately came crashing into the interior of the house and jumped on top

of Darin. Putting Darin in a choke hold and banging his head onto the floor, appellant

threatened to kill him.

       {¶3}   Rebecca, who had come home earlier while Darin was sleeping, saw

appellant attack Darin. She yelled for Brad to come downstairs to assist and she tried to

call 911. Appellant knocked the cell phone out of her hand, but she managed to retrieve

it and call for help. Brad meanwhile came down the steps and got hold of appellant, who

was still choking and punching Darin. Darin later testified that he thought Brad “saved

my life that night.” Tr. at 138. The father and son together were able to restrain

appellant until Massillon Police Officer Tim Anderson arrived, although appellant bit
Stark County, Case No. 2012 CA 00237                                                     3


Darin in the arm during the fracas. Darin also apparently suffered a seizure due to the

stress of the assault. Appellant was thereupon arrested and handcuffed by Officer

Anderson.

       {¶4}   Appellant was thereafter bound over from the Massillon Municipal Court.

On September 10, 2012, the Stark County Grand Jury indicted appellant on one count

of aggravated burglary, R.C. 2911.11(A)(1), a first-degree felony, and one count of

harassment with a bodily substance, R.C. 2921.38(B), a felony of the fifth degree. The

aggravated burglary charge carried a repeat violent offender specification under R.C.

2929.01(CC) and 2941.149.

       {¶5}   Appellant entered pleas of not guilty, and the case was ultimately set for

trial. On November 9, 2012, prior to commencement of the trial, appellant filed a motion

requesting that the trial court decide the repeat violent offender (“RVO”) specification.

Said motion was granted, and the court later found appellant guilty of the RVO based on

a prior felony burglary.

       {¶6}   The jury trial began on November 13, 2012. After the presentation of all of

the testimony, appellant requested a jury instruction on assault, which the trial court

denied. The jury subsequently returned with a verdict of guilty to the crime of

aggravated burglary but not guilty to the crime of harassment with a bodily substance.

       {¶7}   The trial court ultimately sentenced appellant to ten years on the

aggravated burglary conviction and no time on the RVO specification.

       {¶8}   On December 19, 2012, appellant filed a notice of appeal. He herein

raises the following four Assignments of Error:
Stark County, Case No. 2012 CA 00237                                                             4


       {¶9}   “I.   APPELLANT'S CONVICTION FOR AGGRAVATED BURGLARY IS

AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.

       {¶10} “II.   THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO

GIVE THE JURY AN INSTRUCTION ON THE OFFENSE OF ASSAULT.

       {¶11} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

IT (SIC) DISCRETION BY IMPOSING A NON-MINIMUM, MAXIMUM SENTENCE.

       {¶12} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

APPELLANT'S REQUEST TO CALL REBECCA HUTCHINSON AS ON CROSS AS A

COURT'S WITNESS.”

                                                   I.

       {¶13} In his First Assignment of Error, appellant contends his conviction for

aggravated burglary was not supported by sufficient evidence and was against the

manifest weight of the evidence. We disagree.

       {¶14} In reviewing a claim based on the sufficiency of the evidence, “[t]he

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

574 N.E.2d 492, paragraph two of the syllabus.

       {¶15} Appellant in the case sub judice was convicted of aggravated burglary

under 2911.11(A)(1), which states that “[n]o person, by force, stealth, or deception, shall

trespass in an occupied structure * * * when another person other than an accomplice of

the offender is present, with purpose to commit in the structure *** any criminal offense,

if *** [t]he offender inflicts, or attempts or threatens to inflict physical harm on another.”
Stark County, Case No. 2012 CA 00237                                                   5


        {¶16} "Force" is defined by R.C. 2901.01(A) as "any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing." Physical

harm to a person means "any injury, illness, or other physiological impairment,

regardless of its gravity or duration." See R.C. 2901.01(A)(3).

        {¶17} At the trial in the case sub judice, the State presented testimonial

evidence that appellant had kicked in or crashed his body into the door of the

Hutchinson home, taking it off its hinges and breaking the door frame. According to

Darin, the door’s casing was “actually off the wall.” Tr. at 137. Upon review of the

record, as summarized in our statement of the facts, supra, in a light most favorable to

the prosecution, we hold appellant's conviction for aggravated burglary was supported

by sufficient evidence of his forcible entry and physical assault on Darin inside the

home.

        {¶18} Our standard of review on a manifest weight challenge to a criminal

conviction is stated as follows: “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.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. 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, 485 N.E.2d 717.

        {¶19} Appellant’s manifest weight argument concerning the jury’s verdict of

aggravated burglary largely focuses on the issue of appellant’s status as a trespasser in
Stark County, Case No. 2012 CA 00237                                                   6


the Hutchinson home on the night in question. In Ohio, “[p]rivilege is the distinguishing

characteristic between unlawful trespass and lawful presence on the land or premises of

another.” State v. Roland, 12th Dist. Butler No. CA2012–05–104, 2013-Ohio-1382, ¶17,

citing State v. Russ, 12th Dist. Clermont No. CA99–07–074, 2000 WL 864989.

However, where a defendant commits an offense against a person in the person's

private dwelling, the defendant forfeits any privilege, becomes a trespasser, and can be

culpable for aggravated burglary. See State v. Cutts, 5th Dist. Stark No.

2008CA000079, 2009-Ohio-3563, ¶ 181, citing State v. Steffen, 31 Ohio St.3d 111, 115,

509 N.E.2d 383 (1987).

      {¶20} There were three witnesses for the prosecution at trial: Darin Hutchinson,

Bradley Hutchinson, and Massillon Police Officer Tim Anderson. In the defense phase,

Rebecca Hutchinson was the sole witness. Darin testified that when he went to rest on

the couch on the night of August 6th, Rebecca had not yet returned home from her

mother's house; furthermore, the door was locked, but Rebecca did not have a key.

However, Rebecca recalled that upon her arrival back home, the door was unlocked

and she let herself in. See Tr. at 135-136, 155, 248.

      {¶21} Appellant emphasizes certain discrepancies in the testimony going to the

crucial issue of whether appellant trespassed by force into the Hutchinson's home. For

example, Darin testified that appellant was not permitted in the home. Tr. at 133.

However, Rebecca and Brad Hutchinson testified that they had given appellant

permission to be a guest at the home and that appellant had been at the residence

several times per week for a few months prior to the altercation. Tr. at 193, 241.
Stark County, Case No. 2012 CA 00237                                                      7


Furthermore, Rebecca testified that appellant was physically in the home earlier on the

evening of the altercation. See Tr. at 243, 244.

       {¶22} Likewise, in regard to the damage done to the door of the home, Officer

Anderson testified that he did not notice the condition of said door that night. Tr. at 206-

207. Brad, who had been upstairs sleeping, testified that he did not hear any banging or

crashing that night in regard to the door, but he did see the casing was broken after

appellant was arrested. Tr. at 188, 195. Darin testified that the door had been fixed the

next day, i.e., August 7, 2012. Tr. at 176. However, as appellant notes, one of the front

door repair receipts was dated September 4, 2012, almost a month later. See Tr. at

176-177.

       {¶23} Appellant thus argues that the jury should have inferred that appellant was

invited in by Rebecca on the night in question, and that when Darin woke up, he and

appellant got into an altercation. However, even if the jurors had so concluded and

thereby rejected a forced entry theory of the case, they could have reasonably

determined that the consent to enter was revoked and trespass was established when

appellant physically attacked Darin in his home, as per the law set forth in Cutts, supra.

       {¶24} We are thus unpersuaded that the jury lost its way in assessing the

evidence in this case. Upon review, we find the jury's decision did not create a manifest

miscarriage of justice requiring that appellant's conviction be reversed and a new trial

ordered.

       {¶25} Appellant's First Assignment of Error is overruled.
Stark County, Case No. 2012 CA 00237                                                     8


                                                II.

      {¶26} In his Second Assignment of Error, appellant contends the trial court

abused its discretion in denying his request for an instruction to the jury on the offense

of misdemeanor assault. We disagree.

      {¶27} A party is not entitled to an instruction on a lesser included offense unless

the evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense. See State v. Anderson,

Butler App. No. CA 2005–06–156, 2006–Ohio–2714, ¶ 10. In making this determination,

the court must view the evidence in the light most favorable to the defendant. Id. But an

instruction on a lesser included offense is not warranted every time “some evidence” is

presented to support the inferior offense. See State v. Shane (1992), 63 Ohio St.3d 630,

633, 590 N.E.2d 272.

      {¶28} However, it is incumbent that we first determine whether assault is a

lesser included offense of aggravated burglary. An offense may be a lesser included

offense of another if: 1) the offense carries a lesser penalty; 2) the greater offense, as

statutorily defined, cannot be committed without also committing the lesser offense; and

3) some element of the greater offense is not required to prove the commission of the

lesser offense. See State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294; State v.

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974.

      {¶29} Aggravated burglary is set forth under 2911.11(A)(1) as follows: “No

person, by force, stealth, or deception, shall trespass in an occupied structure * * * when

another person other than an accomplice of the offender is present, with purpose to
Stark County, Case No. 2012 CA 00237                                                       9


commit in the structure *** any criminal offense, if *** [t]he offender inflicts, or attempts

or threatens to inflict physical harm on another.”

       {¶30} In contrast, assault is set forth in pertinent part under R.C. 2903.13(A) as

follows: “No person shall knowingly cause or attempt to cause physical harm to another

or to another's unborn.”

       {¶31} Under Ohio law, “[a]ssault is an offense against another's person while

aggravated burglary is an offense against property. *** Aggravated burglary requires an

unpermitted entry into an occupied structure, which assault does not. Thus, the essence

of an aggravated burglary charge is the trespass with the intent to commit a criminal

offense.” State v. Byrd, 12th Dist. Warren Nos. Nos. CA98-05-058, CA98-06-065, 1999

WL 188091 (citations omitted). In the case sub judice, we find that aggravated burglary,

as statutorily defined, clearly can be committed without the commission of an assault

offense. As such, we find assault is not a lesser-included offense of aggravated

burglary, and we therefore need not further analyze the issue of the requested jury

instruction. The trial court’s decision in this regard was not an abuse of discretion.

       {¶32} Accordingly, appellant's Second Assignment of Error is overruled.

                                                III.

       {¶33} In his Third Assignment of Error, appellant argues the trial court erred in

sentencing him to a non-minimum, maximum prison term. We disagree.

       {¶34} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912, a

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. The first step is to “examine the sentencing court's

compliance with all applicable rules and statutes in imposing the sentence to determine
Stark County, Case No. 2012 CA 00237                                                   10

whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this

first step is satisfied, the second step requires the trial court's decision be reviewed

under an abuse-of-discretion standard. Id. We have recognized that “[w]here the record

lacks sufficient data to justify the sentence, the court may well abuse its discretion by

imposing that sentence without a suitable explanation.” State v. Firouzmandi, Licking

App.No. 2006–CA–41, 2006–Ohio–5823, ¶ 52.

      {¶35} Subsequent to the Ohio Supreme Court's Foster decision, “[t]he decision

to impose the maximum sentence is simply part of the trial court's overall discretion in

issuing a felony sentence and is no longer tied to mandatory fact-finding provisions.”

State v. Parsons, Belmont App.No. 12 BE 11, 2013–Ohio–1281, ¶ 14. “[T]rial courts

have the full discretion to impose a prison sentence within the statutory range and

judicial fact finding is no longer required before a court imposes non-minimum,

maximum     or consecutive     prison   terms.” State   v.   Dowdell,   Licking App.No.

2009CA00020, 2010-Ohio-998, ¶ 12 (additional citations omitted).1

      {¶36} In the case sub judice, the sentence at issue is within the statutory range

for first-degree felonies. See R.C. 2929.14(A)(1). Indeed, because the high end of the

range for first-degree felonies is now eleven years, the ten-year sentence appellant

received is actually less than the maximum. The court stated in its judgment entry that it

had considered the record, oral statements, any victim impact statements and pre-

sentence reports, as well as the principles and purposes of sentencing under R.C.

2929.11 and had balanced the seriousness and recidivism factors of R.C. 2929.13 [sic].

We further note that appellant has a long criminal record, including convictions for prior

1
   We note that Dowdell pre-dates H.B. 86, which has revived certain fact-finding
requirements regarding consecutive sentences.
Stark County, Case No. 2012 CA 00237                                                  11


burglary, assault, receiving stolen property, weapons under disability and carrying a

concealed weapon, resulting in various stints in prison. See Tr. II at 29-30. The trial

court also noted its concern about the type of injuries inflicted on Darin by appellant’s

attack. See Tr. II at 33.

       {¶37} Accordingly, we hold the non-minimum, ten-year sentence in this matter

was not based on the consideration of improper factors and is not unreasonable,

arbitrary or unconscionable.

       {¶38} Appellant's Third Assignment of Error is overruled.

                                              IV.

       {¶39} In his Fourth Assignment of Error, appellant maintains the trial court

abused its discretion in denying his request to call Rebecca Hutchinson, the victim’s

wife, as a court’s witness. We disagree.

       {¶40} Evid.R. 614(A) provides that the court may on its own motion or at the

suggestion of a party, call witnesses, and all parties are entitled to cross-examine such

witnesses. The decision as to whether to call a witness pursuant to Evid.R. 614(A) is

within the discretion of the trial court, and will be reversed only for an abuse of such

discretion. State vs. Forehope (1991), 71 Ohio App.3d 435, 441, 594 N.E.2d 83. “ ***

Evid.R. 614 creates an exception to the limitation imposed by Evid.R. 607(A), which

requires a showing of surprise or affirmative damage before a party may impeach its

own witness.” State v. Hall, 8th Dist. Cuyahoga No. 98615, 2013-Ohio-2900, ¶ 32.

       {¶41} In the case sub judice, Rebecca Hutchinson was not called as a witness

by the State. Evidence adduced at trial indicated that although Rebecca is Darin’s wife,

she has over the years stayed in contact with appellant, with whom she had a child
Stark County, Case No. 2012 CA 00237                                                   12


more than twenty years ago. At the beginning of the defense case, appellant’s trial

counsel asked the court to allow him to call Rebecca as a court's witness, urging that

Rebecca was hostile to the defense. See Tr. at 233. The trial court overruled the

request at that time, pending the presentation of some testimony by Rebecca as a

defense witness. Rebecca went on to testify, inter alia, that she had exchanged

numerous cell phone texts with appellant, even messages suggesting they had started

to renew a romantic relationship. However, she did ultimately maintain that appellant

had no permission to enter the Hutchinson home at 3:30 am and that she was the

person who made the 911 call that night. Appellant presently contends that Rebecca

was a “hard witness to control,” and that she “successfully eluded any examination as to

her credibility and her relationship with the appellant on the night of the incident.”

Appellant’s Brief at 17.

       {¶42} Upon the presentation of some of Rebecca’s testimony, the following

exchange took place before the bench:

       {¶43} “THE COURT: You’ve got to remember this is your witness at this point in

time. I know you requested it up front, but I haven’t heard anything at this point in time

that would indicate that she’s a hostile witness.

       {¶44} [DEFENSE COUNSEL] MR. WILL: Well, Your Honor, I was trying not to

be leading, but I was also trying to make sure she doesn’t say anything else.

       {¶45} “THE COURT: You’re trying to impeach your own witness and asking her

questions with regard to being untruthful. That’s totally inappropriate, doesn’t happen in

my courtroom.
Stark County, Case No. 2012 CA 00237                                                   13


       {¶46} “MR. WILL: I apologize, Your Honor.         I would renew my request to

consider her a Court’s witness.

       {¶47} “THE COURT: Overruled, unless I hear something more that indicates

that she’s hostile to your client or to your position, but as it stands right now, you’re

asking her questions, you’ve been given more latitude than typical in terms of

questioning her, but at this point in time I don’t consider her to be a hostile witness to

your position.

       {¶48} “MR. WILL: Thanks, Your Honor.”

       {¶49} Tr. at 253-254.

       {¶50} Upon review of the entire transcript, we are unable to conclude the trial

court abused its discretion in its above holding and in declining to treat Rebecca as a

court’s witness.

       {¶51} Appellant's Fourth Assignment of Error is therefore overruled.

       {¶52} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

                                            /s/ John W. Wise_____________
                                            HON. JOHN W. WISE

                                            /s/ W. Scott Gwin____________
                                            HON. W. SCOTT GWIN

                                            /s/ Craig R. Baldwin__________
                                            HON. CRAIG R. BALDWIN

JWW/d 0912
Stark County, Case No. 2012 CA 00237                                           14


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
YUSEF TRAMMEL                             :
                                          :
       Defendant-Appellant                :         Case No. 2012 CA 00237




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

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          /s/ John W. Wise________________
                                          HON. JOHN W. WISE


                                          /s/ W. Scott Gwin________________
                                          HON. W. SCOTT GWIN


                                          /s/ Craig R. Baldwin______________
                                           HON. CRAIG R. BALDWIN
