State v. Gerde, 2017 Ohio 7464

Matthew Gerde was indicted on two counts of burglary for alleged offenses on May 5 and May 8, 2016; charges arose after co-defendant Thimothy Whittington confessed implicating both men.
At trial the jury convicted Gerde of burglary of the 1851 State Route 133 residence but acquitted him of burglary at the Clermont Farm Road residence.
The State relied on Whittington’s testimony, witness observations placing a person matching Gerde’s build at the scene, and a footprint matching Gerde’s boot inside the SR 133 residence.
The SR 133 house was undergoing renovations and unoccupied at the time; a neighbor/worker (R.T.) was regularly on-site and present earlier the day of the burglary.
The court admitted recordings of two jailhouse calls between Gerde and his mother as admissions by a party-opponent and gave a limiting instruction to the jury.
Gerde was sentenced to three years imprisonment; he appealed raising evidentiary, sufficiency, and manifest-weight challenges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of jail calls	Calls were admissible as non-hearsay admissions and relevant to timeline; probative value outweighs prejudice	Calls were hearsay, unfairly prejudicial (highlighted incarceration, suggested unpled alibi)	Admission upheld: calls are admissions under Evid.R. 801(D)(2); limiting instruction mitigated prejudice
Sufficiency: occupied structure / likely-present element	State: evidence showed SR 133 was an occupied structure (owner intended habitation after renovations) and a non-accomplice (R.T.) was present or likely present	Gerde: home was uninhabited during major renovations and no evidence another person was likely present	Sufficiency satisfied: statute’s definition of occupied is broad; evidence R.T. was regularly at site supported "likely to be present" element
Manifest weight of the evidence	State: multiple witnesses and physical evidence corroborate Whittington’s testimony and place Gerde at scene	Gerde: Whittington’s testimony was unreliable and contradictory; conviction should be against manifest weight	Verdict not against manifest weight: jury credibility determinations reasonable; corroborating evidence (footprint, witnesses) supports conviction

State v. Jenks, 61 Ohio St.3d 259 (standard for sufficiency review)
State v. Fowler, 4 Ohio St.3d 16 (no presumption someone was likely present merely because dwelling is used as residence)
State v. Kilby, 50 Ohio St.2d 21 ("likely to be present" satisfied where occupants regularly inhabited and were temporarily absent)
State v. Thompkins, 78 Ohio St.3d 380 (standard for reversing on manifest weight is extraordinary circumstances)
State v. Jones, 135 Ohio St.3d 10 (presumption that jury follows limiting instructions)
State v. Johnson, 188 Ohio App.3d 438 (residence undergoing major renovations can still be an "occupied structure")