[Cite as State v. Hill, 2017-Ohio-4434.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104463




                                           STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                           JOE L. HILL, III
                                                        DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-15-594814-A

        BEFORE: Celebrezze, J., Boyle, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                       June 22, 2017
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, #613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Daniel A. Cleary
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Joe L. Hill, III, appeals his burglary conviction, claiming the

verdict is against the manifest weight of the evidence and unsupported by sufficient

evidence. After a thorough review of the record and law, this court affirms.

                          I. Factual and Procedural History

       {¶2} On April 6, 2015, Cleveland police officers arrived at an apartment complex

on Prospect Avenue responding to a 911 call reporting that a person was raped. Officers

went to an apartment on the eighth floor and interviewed two women, one visibly upset.

O.R., through sobs, told officers that she had been raped and that her attacker may still be

in her apartment on the sixth floor. Officers responded to that apartment and found

appellant naked, asleep on the couch. Appellant was arrested and charged with two

counts of rape, one count of kidnapping, and one count of aggravated burglary.

       {¶3} At trial, the following testimony was adduced. Appellant arrived at the

apartment building in question with a friend to hang out with some people he did not

know. He was kicked out of that apartment when he behaved inappropriately after

becoming intoxicated. Around that time, O.R. was in a friend’s apartment having dinner

and decided to go back to her apartment to get some juice. She pressed the button to call

the elevator to go up the two floors to her apartment. When the doors opened, she

discovered appellant slumped on the floor. She tried to help him up as the elevator

ascended. When it arrived at her floor, she exited and walked the five or so steps to her
apartment. As she opened the door, she was pushed from behind into her apartment by

appellant. O.R. testified that she was vaginally raped by appellant. During the course of

the rape, appellant passed out and O.R. dressed, fled the apartment, and went to a friend’s

apartment. Her friend called police after O.R. told her what happened. Appellant was

found by police, naked, and passed out on the couch in O.R.’s apartment.

       {¶4} Anthony Jones testified that sometime after that day he was outside a building

on Prospect Avenue attempting to strike up conversations with individuals to spread the

“word of God” when he noticed a girl, O.R., on her cell phone crying. He approached

her and asked her what was wrong. After some back and forth, he testified she told him

that she had done something wrong, that she had made up a story of rape, and someone

was being prosecuted as a result. Jones couldn’t believe it at first, but tried to look up

information to see if any recently filed cases fit the story relayed by the person he met on

the street. He found appellant and visited him in jail. Although he did not tell appellant

about his conversation with O.R., he told appellant that he was sent by God to help him.

Jones then helped appellant’s family look for other witnesses, but did not go to the police

or tell anyone of the conversation with O.R. until several months later.

       {¶5} At the close of trial, the court found appellant not guilty of the rape and

kidnapping charges, but guilty of the offense of burglary, a violation of R.C. 2911.12(B),

and a felony of the fourth degree. The court proceeded immediately to sentencing, where

it imposed a 15-month prison sentence, informed appellant of postrelease control, and

waived fines and costs.
         {¶6} Appellant then filed the instant appeal assigning one error for review:

         I. The within verdict was not supported by the manifest weight of the
         evidence, and it was based on insufficient evidence.

                                    II. Law and Analysis

         {¶7} Appellant argues sufficiency and manifest weight in a single assignment of

error.

         Although sufficiency and manifest weight are different legal concepts,
         manifest weight may subsume sufficiency in conducting the analysis; that
         is, a finding that a conviction is supported by the manifest weight of the
         evidence necessarily includes a finding of sufficiency. State v. McCrary,
         10th Dist. [Franklin] No. 10AP-881, 2011-Ohio-3161, ¶ 11. * * * Thus, a
         determination that a conviction is supported by the weight of the evidence
         will also be dispositive of the issue of sufficiency. Id. * * *.

State v. Baatin, 10th Dist. Franklin No. 11AP-286, 2011-Ohio-6294, ¶ 8. See also State

v. Jackson, 8th Dist. Cuyahoga No. 100125, 2015-Ohio-1946, ¶ 11. Because appellant

does not assign these errors separately, and a sufficiency analysis is subsumed by a

manifest weight analysis in this case, this court will address the arguments together.1

         The weight of the evidence concerns the inclination of the greater amount

         of credible evidence offered to support one side of the issue rather than the

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

             When presented with a challenge to the manifest weight of the evidence,


        Appellant also has not advanced any argument involving the propriety of
         1

convicting appellant of burglary as opposed to aggravated burglary and whether
burglary is a lesser included offense of aggravated burglary. Therefore, it will not
be addressed. At least one court has held that it is. State v. McKinney, 11th Dist.
Trumbull No. 2007-T-0004, 2008-Ohio-3256, ¶ 163; contra State v. Artis, 3d Dist.
Logan No. 8-13-01, 2013-Ohio-3198.
       an appellate court may not merely substitute its view for that of the trier of

       fact, but 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. Id. An appellate court should

       reserve reversal of a conviction as being against the manifest weight of the

       evidence for only the most “‘exceptional case in which the evidence weighs

       heavily against the conviction.’” Id., quoting State v. Martin, 20 Ohio

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

State v. Ball, 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, ¶ 35.

       {¶8} Appellant was convicted of burglary, also termed “trespass in a habitation,”

as defined in R.C. 2911.12(B) and 2911.12(E). R.C. 2911.12(B) provides, “[n]o person,

by force, stealth, or deception, shall trespass in 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.”

       {¶9} A trespass occurs when one, “without privilege to do so, * * * [k]nowingly

enter[s] or remain[s] on the land or premises of another.”               R.C. 2911.21(A)(1).

Privilege is “an immunity, license, or right conferred by law, bestowed by express or

implied grant, arising out of status, position, office, or relationship, or growing out of

necessity.” R.C. 2901.01(A)(12). The burglary offense at issue here does not require
proof that the unlawful entry was with any specific purpose. State v. Woods, 6th Dist.

Lucas No. L-13-1181, 2014-Ohio-3960, ¶ 31.

      {¶10} Here, O.R. testified that appellant forced his way into her apartment and was

found alone in the apartment by police. Therefore, there is sufficient evidence of the

above elements. The trial court found that O.R.’s testimony was insufficient to show

beyond a reasonable doubt that she was raped given the lack of forensic evidence. DNA

swabs collected during the examination at the hospital revealed no conclusive DNA

results except for swabs collected from O.R.’s back and chest. The DNA expert testified

that these were likely transferred through sweat from appellant to O.R. Therefore, the

trial court found appellant not guilty of the rape and kidnapping offense. The court

stressed that it found O.R.’s testimony credible, but that without supporting DNA

evidence, the court did not find appellant committed these offenses beyond a reasonable

doubt. The court found appellant guilty of a lower level burglary offense.

      {¶11} The trial court also made a credibility determination adverse to Jones where

his testimony, at times, was incredible. This weighing of witness credibility where there

is conflicting testimony is best left to the factfinder, who observed the demeanor of the

witnesses and has a more holistic view of the evidence. State v. Thompson, 127 Ohio

App.3d 511, 529, 713 N.E.2d 456 (8th Dist.1998) (“The fact-finder * * * occupies a

superior position in determining credibility. The fact-finder can hear and see as well as

observe the body language, evaluate voice inflections, observe hand gestures, perceive the

interplay between the witness and the examiner, and watch the witness’s reaction to
exhibits and the like. Determining credibility from a sterile transcript is a Herculean

endeavor. A reviewing court must, therefore, accord due deference to the credibility

determinations made by the fact-finder.”).

       {¶12} At the very least, there is credible evidence that appellant was trespassing in

O.R.’s apartment and that he used force to do so. In light of credibility determinations

made by the trial court, the testimony of O.R., and the fact that appellant was found in

O.R.’s apartment by police after O.R. had fled, this is not the exceptional case where the

trial court’s determination creates a manifest miscarriage of justice that requires reversal

and a new trial. As a result, appellant’s conviction for burglary is supported by sufficient

evidence and not against the manifest weight of the evidence.

                                       III. Conclusion

       {¶13} Here, the trial court found that O.R.’s testimony was credible, but that

certain portions of her testimony were insufficient to demonstrate guilt beyond a

reasonable doubt where it was not supported by other evidence. The court found Jones’s

testimony not credible where aspects of his testimony were unbelievable. As a result,

appellant’s conviction for burglary is not against the manifest weight of the evidence and

is supported by sufficient evidence.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
