STATE OF OHIO v. JEFFERY BALL
Appellate Case No. 2017-CA-54
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
February 16, 2018
[Cite as State v. Ball, 2018-Ohio-605.]
Trial Court Case No. 17-CR-66 (Criminal Appeal from Common Pleas Court)
Rendered on the 16th day of February, 2018.
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor‘s Office, Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
JENNIFER S. GETTY, Atty. Reg. No. 0074317, 7501 Paragon Road, Dayton, Ohio 45459
Attorney for Defendant-Appellant
{¶ 1} Jeffery Ball was convicted after a jury trial in the Clark County Court of Common Pleas of one count of burglary, in violation of
I. Factual and Procedural History
{¶ 2} The State‘s evidence at trial established the following facts.
{¶ 3} In December 2016, Karen Keaton lived with her husband and children in a duplex in Springfield, Ohio. Ball resided in the other half of the duplex with his girlfriend, Jessica Hulsmeyer.
{¶ 4} Between December 2 and December 8, 2016, Keaton and her family were on vacation in South Carolina. Keaton had told Ball the family would be going on vacation. Keaton testified that neither Ball nor Hulsmeyer had a key to her house and that Ball did not have permission to enter her residence.
{¶ 5} On December 8, Keaton and her family returned and found that their television had been stolen. In addition, one of the windows that had been closed when the family left was “slightly” open; this was the only window that did not lock. There was no sign that the front door had been forced, and none of the windows had been damaged.
{¶ 6} At approximately 8:15 a.m. that day, Keaton called 911 to report that someone had broken into her home. She indicated that only her television had been
{¶ 7} After Keaton hung up with the dispatcher, she spoke with Ball, who admitted to her that he had gone through the window and had taken Keaton‘s television. At 8:19 a.m. (i.e., after her conversation with Ball), Keaton called the dispatcher back to report that she had “gotten a confession out of somebody already” and that she was going to give him a chance to get her television back. Keaton identified the perpetrator as Ball, and she told the dispatcher that Ball had admitted to taking the television to а pawn shop. The dispatcher encouraged Keaton to make a report with a police officer. Ball left the duplex before a police officer arrived.
{¶ 8} Springfield Police Officer Justin Massie responded to Keaton‘s initial call, and the officer and Keaton tried several times to reach Ball on his cell phone. Keaton testified that, when they ultimately reached Ball, he stated that he would work something out, but he would not return to the residence. Officer Massie testified that Ball “seemed very apologetic, seemed very sincere about how he was going to make this right.” Keaton asked Ball why he had taken the television. Ball responded, “I don‘t know. I don‘t know.” Massie testified that Ball spoke “as if he was frantic and knew that he would be in trouble since I was there on the scene.” Officer Massie indicated that Ball had told them (Keaton and Massie) that the television was located at Pawn Stars.
{¶ 9} After hanging up with Ball, Keaton and Officer Massie went to Pawn Stars, where they located Keaton‘s television. Officer Massie testified that Keaton did not have a serial number for her television, but the television had a toggle switch on the bottom that was unique to the television. Keaton testified that she paid $25 to get her television back. Keaton testified that Ball told her that he would pay her baсk. A week later, Ball
{¶ 10} At trial, the State presented surveillance photographs from Pawn Stars, taken at 4:53 p.m. on December 3, 2016. Keaton identified the individuals in those photographs as Ball and Hulsmeyer. A receipt from the pawn shop showed that Hulsmeyer had sold a Samsung flat screen television to Pawnstar, Inc. for $25 on December 3, 2016; the serial number of the receipt matched the television in the store.
{¶ 11} Ball testified on his own behalf. When shown one of the surveillance photos from Pawn Stars, Ball stated, “That does not look like me.” Defense counsel asked Ball to stand facing the same way the person in the photograph was facing, so the jury could compare. Ball testified that he did sell a television to Pawn Stars, but the television he sold was his personal property. Ball stated that his television had the toggle switch feature that Officer Massie had described. Ball testified that he sold his television in order to provide gas money for Hulsmeyer. Ball denied making admissions that he had stolen Kеaton‘s television, and he denied taking $25 to her. Ball testified that he did not know that one of the windows in Keaton‘s home was broken.
{¶ 12} At trial, Ball admitted that he had a prior conviction for receiving stolen property. He testified that he had admitted his guilt to that prior charge because he was guilty of that offense. He stated that he did nоt do anything wrong this time.
{¶ 13} Ball was charged with two counts of burglary, in violation of
{¶ 14} The trial court scheduled disposition for May 5, 2017. The court did not
{¶ 15} Ball appeals from his conviction, raising two assignments of error.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 16} Ball‘s first assignment of error states:
The jury verdict finding Defendant guilty of burglary, a felony of the 3rd degree, was аgainst the manifest weight of the evidence.
{¶ 17} Ball‘s first assignment of error claims that his conviction for burglary was against the manifest weight of the evidence. In his appellate brief, he argues further that “the evidence presented to the jury was insufficient, as a matter of law, to prove his guilt beyond a reasonable doubt.”
{¶ 18} A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to sustain the verdict as a matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have fоund the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 19} In contrast, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence
{¶ 20} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional cirсumstances. Martin at 175.
{¶ 21} Ball was convicted of burglary, in violation of
(A) No person, by force, stealth, or deception, shall do any of the following:
* * *
(3) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to
commit in the structure or separately secured оr separately occupied portion of the structure any criminal offense.
“Trespass” is defined in terms of the following: “No person, without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of another[.]”
{¶ 22} Ball argues that his conviction must be reversed, because (1) there was no evidence that there was forced entry into Keaton‘s residence, (2) Keaton provided the only evidence that her television “ever existed,” and (3) there was “nothing linking Mr. Ball to this crime other than Ms. Keaton‘s testimony, who apparently had past issues with Mr. Ball.”
{¶ 23} Upon review of the record, we find ample evidence to support Ball‘s conviction for burglary in violation of
{¶ 24} Keaton‘s testimony indicated that one window of her residence did not have a functioning lock and that the window was partially opened whеn she and her family
{¶ 25} We have held that the opening of a closed but unlocked door is sufficient to constitute “force” for purposes of the burglary statute. See, e.g., State v. Cantrell, 2d Dist. Montgomery No. 26975, 2016-Ohio-7623, ¶ 12; State v. McWilliams, 2d Dist. Greene No. 2000 CA 89, 2001 WL 1203395, *3 (Oct. 12, 2001). Here, the opening of a closed but unlocked window was sufficient to establish that Ball entered the Keatons’ residence by force.
{¶ 26} Finally, the State‘s evidence, if believed, was sufficient to prove beyond a reasonable doubt that Ball trespassed in the Keatons’ residence with the purpose to commit a theft offense. Keaton testified that her television had been stolen from her residence and that Ball had admitted to her that he took her television. When Officer Massie and Keaton reached Ball by telephone, Ball did not expressly state over the telephone that he had stolen the television, but he was apologetic and statеd that he would make things right. Ball told the officer and Keaton where they could find Keaton‘s television, and Keaton testified that she found her television at that location (Pawn Stars). Keaton further testified that Ball had paid Keaton $25 to compensate her for the cost of reacquiring her television from the pawn shop.
{¶ 27} In reaching its verdict, the jury was free to believe all, part, or none of the
{¶ 28} Ball‘s first assignment of error is overruled.
III. Ball‘s Sentence
{¶ 29} Ball‘s second assignment of error states:
The trial court erred in sentencing Mr. Ball to an excessive sentence that was not supported by the record and [was] contrary to law.
{¶ 30} In reviewing felony sentences, appellate courts must apply the standard of review set forth in
{¶ 31} “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings оr give its reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
{¶ 32} The sentencing range for a violation of
{¶ 33} At the May 5, 2017 sentencing hearing, defense counsel аsked the trial court to consider “the lighter side of any prison sentence should you decide to send him to prison.” Ball did not make a statement.
{¶ 34} The prosecutor argued that Ball had never “acknowledged or accepted responsibility or accountability for his actions.” Reviewing a cursory “memo” from the Clark County Adult Probation Department which reported Ball‘s criminal history, the prosecutor noted that Ball was convicted in Montgomery County of receiving stolen property, a fifth-degree felony, in November 2014, for which Ball was serving five years of community control. The prosecutor further noted that Ball was convicted of misdemeanor theft in May 2016, for which he received a suspended sentence of 5 days
{¶ 35} In imposing a maximum three-year sentence, the trial court stated that Ball was on community control for receiving stolen property at the time of the offense and that he had a prior theft conviction. The judgment entry perfunctorily stated that the court had “considered the record, oral statements оf counsel, the defendant‘s statement,1 the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, the defendant‘s prior criminal record, and has balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.” The entry notified Ball of his post-release control requirements and thе sanctions for violations.2
{¶ 36} Although Ball disputed Keaton‘s version of events at trial, Keaton did testify that Ball admitted to her that he had stolen her television, that he told her where the television was located, that she got her television back, and that Ball paid her $25, i.e., the amount that she had paid the pawn shop for her television. The parties agree that Ball has never served a prison term and has few prior convictions.
{¶ 37} Ball had previously been convicted of receiving stolen property, a felony of the fifth degree, and he was on community control at the time he committed the burglary at issue. Ball had committed a misdemeanor theft in 2015, also while on community
control. As of December 2015, Ball had a probation violation pending in the 2014
{¶ 38} On this record, whether another court presented with the same offense would have ordered a presentence investigation and/or weighed the statutory factors differently and not imposed the maximum prison sentence on a 24-year-old with a minimal criminal history and/or might have explained its rationale are not questions of which current law permits review. The sentence was within the statutory sentencing range, and we cannot conclude that the trial court‘s sentence was clearly and convincingly unsupported by the record.
{¶ 39} Ball‘s second assignment of error is overruled.
IV. Conclusion
{¶ 40} The trial court‘s judgment will be affirmed.
HALL, J. and TUCKER, J., concur.
Copies mailed to:
Andrew P. Pickering
Jennifer S. Getty
Hon. Douglas M. Rastatter