State v. Hibbard
2023 Ohio 983
Ohio Ct. App.2023Background
- Victim Michael Peters left his home for about two hours on April 5, 2022; while gone someone broke the plexiglass pane of the backdoor and ransacked the house. Missing items included a black kitchen garbage bag, a distinctive white-and-blue zigzag pillowcase, two tablets, and sports memorabilia.
- Surveillance footage shows a man enter via the backdoor, remain ~15 minutes behind a lattice fence, then leave carrying a black bag and the zigzag pillowcase; still images show a dark vest and a right‑wrist tattoo.
- Around 9:00 p.m. the day of the burglary, officers photographed appellant Jeffrey Hibbard at a gas station wearing a black T‑shirt with a red/gray design and a distinctive black leather vest/jacket.
- Hibbard was arrested in possession of a matching black leather vest and had a barbed‑wire tattoo on his right wrist; he initially denied involvement but admitted to his mother in a recorded jail phone call that he was the man in the still shot.
- Indicted for second‑degree burglary (R.C. 2911.12(A)(2)), Hibbard was tried by jury, convicted, and appealed arguing insufficiency and manifest‑weight defects focusing on (1) whether someone was "likely to be present" and (2) identity/breaking‑in.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the state proved the dwelling was "likely to be present" under R.C. 2911.12(A)(2) | Peters is a retiree who lives there permanently, is "in and out" most days, and was only temporarily away ~2 hours—objectively likely someone could be present | Absence of Peters' car and lack of direct proof make it not reasonably likely someone was present | Court: Evidence sufficient; objective standard met (retiree, regular presence, temporary absence). Conviction sustained. |
| Whether the state proved Hibbard was the burglar / broke into the house | Surveillance/stills match Hibbard’s clothing and distinctive vest; tattoo matches; he possessed matching vest; carried items matching those taken; he admitted in a jail call | No fingerprints/DNA; face obscured on video; other men seen in area; Hibbard denied and claimed he found the bags | Court: Circumstantial evidence sufficiently established identity; jury could reasonably infer guilt. Conviction not against manifest weight. |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sets Ohio standard for sufficiency review)
- State v. Kilby, 50 Ohio St.2d 21 (1977) ("likely to be present" satisfied where permanent dwelling regularly inhabited and occupants temporarily absent)
- State v. Fowler, 4 Ohio St.3d 16 (1983) (burglary of dwelling does not create presumption that someone was present or likely to be present)
- State v. Cantin, 132 Ohio App.3d 808 (1999) (extended absence, e.g., vacation, can render "likely to be present" insufficient)
- State v. Jackson, 188 Ohio App.3d 803 (2010) (use of a dwelling as a residence alone is not enough to prove someone was likely to be present)