State v. HernandezState v. Hernandez
Rendered on September 29, 2009
Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
Davis Law Offices Co., L.P.A., and Jeffrey R. Davis, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, J.
{¶1} Defendant-appellant, Luis G. Hernandez, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of one count of burglary in violation of
{¶2} In a single count indictment filed February 25, 2008, defendant was charged with aggravated burglary in violation of
{¶3} Defendant entered a not guilty plea, and the matter was tried to a jury beginning December 4, 2008. The jury found defendant guilty of the lesser included offense of burglary, a felony of the fourth degree. The trial court sentenced defendant to three years of community control.
II. Assignments of Error
{¶4} Defendant assigns two errors:
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION FOR RULE 29 AND ENTERING JUDGMENT AGAINST APPELLANT ON THE LESSER INCLUDED OFFENSE OF BURGLARY AS THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION.
ASSIGNMENT OF ERROR TWO
THE VERDICT ENTERED WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. First Assignment of Error—Sufficiency of Evidence
{¶5} Defendant‘s first assignment of error raises two issues: (1) denial of his Crim.R. 29 motion, and (2) sufficiency of the evidence. Because they are interrelated, we discuss them jointly.
{¶7} Generally, a review of the sufficiency of the evidence is a question of law. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. We construe the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Conley (Dec. 16, 1993), 10th Dist. No. 93AP-387.
{¶8} The jury‘s verdict largely was premised on the testimony of Beatriz Martinez, who resided at 494 Elaine Road in Whitehall. She met defendant in July or August of 2007 when she took her car to him for mechanical work. They began seeing each other, and by the first week of September she considered him her boyfriend.
{¶9} Although Martinez lived with her mother, her mother temporarily had returned to Mexico. Sometime in October, while her mother was in Mexico, Martinez allowed defendant to use her mother‘s cell phone if he agreed to pay her for using it. Because he failed to pay her, she reported it as lost, obtained another phone, and kept the same number. Defendant‘s wife called the number and advised Martinez that defendant was married with three children.
{¶11} On January 9, 2008, Martinez was sleeping in her basement bedroom when her dog‘s barking awoke her. Her future husband was working, a brother who resided with them was at school, and her mother was still in Mexico. She heard someone knocking strongly at the door and walked upstairs to answer the door because the dog continued to bark. Although the curtain over the window in the back door prevented her from seeing who was outside the door, she opened the door.
{¶12} When she did, she saw defendant. She tried to close the door, but he pushed her back, and she became frightened. She ran from the door into the living room and scraped her arm in the process. He followed her into the living room where she began to call 911 for assistance. Defendant told her if she called the police, he was “going to beat [her] up.” (Tr. 68.) She was able to complete the call, but defendant grabbed the phone from her. She told him to get out of her house and then ran outside to a next door neighbor where she knocked on the neighbor‘s door; nobody answered. When defendant came out of her home, she was standing at her neighbor‘s door; defendant again said he would “beat [her] up.” (Tr. 70.) Defendant did not remain at her home, and on her return she called the Whitehall police. They arrived within a couple of minutes, searched for defendant, and were unable to find him in the area.
{¶14} Initially, the state‘s evidence, if believed, demonstrated that defendant, by force, attempted to gain entry into Martinez’ home. The victim testified she opened the door, saw defendant, and attempted to push the door shut. Defendant, however, forced his way into her home and chased her into the living room. The state also was required to prove defendant trespassed into the home.
{¶15} As a result, the state‘s evidence, if construed in the state‘s favor, supports a finding that defendant committed a violation of
IV. Second Assignment of Error—Manifest Weight of Evidence
{¶16} Defendant‘s second assignment of error asserts his conviction is against the manifest weight of the evidence. When presented with a manifest weight argument,
{¶17} In this case, the state presented its evidence, subject to defendant‘s cross-examination; defendant presented no witnesses. While Martinez’ testimony demonstrated she had some difficulty in speaking English, cross-examination revealed, at best, discrepancies between her testimony and the details she provided to the officer who arrived on the scene following the incident. In light of those inconsistencies, defendant asks that we, in effect, substitute our judgment for that of the jury in assessing Martinez’ credibility. Contrary to defendant‘s contentions, he “is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was offered at trial,” as “[t]he trier of fact is free to believe or disbelieve any or all of the testimony presented.” State v. Favor, 10th Dist. No. 08AP-215, 2008-Ohio-5371, ¶10. Although discrepancies in the victim‘s testimony may have impeached Martinez’ credibility, the jury nonetheless
{¶18} We note the trial court‘s judgment entry finds defendant guilty of burglary, but classifies it as a felony of the first degree. Because all agree defendant was found guilty of burglary as a fourth-degree felony, we modify the trial court‘s judgment, in that sole respect, to reflect defendant was convicted of a felony of the fourth degree. With that modification, and having overruled both of defendant‘s assignments of error, we affirm the judgment as modified.
Judgment affirmed as modified.
SADLER and CONNOR, JJ., concur.
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