STATE OF OHIO, PLAINTIFF-APPELLEE, v. CHRISTOPHER M. HOOKS, DEFENDANT-APPELLANT.
CASE NO. 7-15-10
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
July 25, 2016
[Cite as State v. Hooks, 2016-Ohio-5098.]
WILLAMOWSKI, J.
Appeal from Henry County Common Pleas Court, Trial Court No. 15-CR-0003. Judgment Affirmed in Part, Reversed in Part, And Cause Remanded.
Billy D. Harmon for Appellant
WILLAMOWSKI, J.
{¶1} Defendant-appellant Christopher M. Hooks (“Hooks“) brings this appeal from the judgment of the Court of Common Pleas of Henry County finding him guilty of two counts of burglary and sentencing him to an aggregate sentence of eleven years in prison. On appeal Hooks claims that 1) the evidence was insufficient, 2) the verdict was against the manifest weight of the evidence, 3) the trial court erred by allowing the state to amend the indictment during the trial, and 4) the sentence imposed was contrary to law. For the reasons set forth below, the judgment is affirmed in part and reversed in part.
{¶2} On January 7, 2015, the Napoleon Police Department received three separate reports regarding possible burglaries. The first report came from Tim Hoops (“Hoops“) who indicated that when he came home from work, he discovered that a Kohls bag, towels, and toothbrushes were missing from his apartment. A second report was made by witnesses who saw Hooks leaving an apartment. The third report was made by Sara Sweet regarding another unlawful entrance into an apartment.
{¶3} On January 21, 2015, the Henry County Grand Jury indicted Hooks on four counts: 1) Burglary in violation of
{¶4} A jury trial was held on the three remaining counts from April 29 to April 30, 2015. The State renewed its motion to amend Count Three to Burglary in violation of
{¶5} On June 8, 2015, Hooks filed his notice of appeal from the above judgment. Doc. 64. Hooks raises the following assignments of error on appeal.
First Assignment of Error
The trial court erred in failing to grant [Hooks‘] motions for acquittal, pursuant to Crim.R. 29, and [Hooks] was denied due process, as evidence in this case was insufficient to sustain a conviction.
Second Assignment of Error
The verdicts in this case were against the manifest weight of the evidence.
Third Assignment of Error
The trial court committed reversible error when it permitted an amendment to Count Three of the indictment that changed the name or identity of the crime charged.
Fourth Assignment of Error
The sentence imposed upon [Hooks] was contrary to law and an abuse of discretion.
{¶6} Initially, this court notes that the State has chosen not to file a brief in this case. “If an appellee fails to file the appellee‘s brief within the time provided by this rule, or within the time as extended, the appellee will not be heard at oral argument; and in determining the appeal, the court may accept the appellant‘s
Sufficiency of the Evidence
{¶7} Hooks alleges in his first assignment of error that the trial court erred by denying his motions for acquittal. “The court on motion of a defendant * * * after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or offenses.”
{¶8} Here, Hooks was convicted pursuant to Count Two of the indictment of the lesser included offense of burglary in violation of
{¶10} As to Count Three, Hooks was convicted of burglary in violation of
{¶11} Michael Bailey (“Bailey“) testified that he lived at an apartment on Oakwood Avenue. Apr. 29, 2015 Tr. 155. When he returned home from going to
{¶12} Aurora Cruz-Bailey (“Aurora“) testified that she was living in the apartment with her father, Bailey, on the date in question. Id. at 167. When they returned from lunch, she went to the office and was walking back when someone ran past her, hitting and pushing her in the process. Id. at 168. Aurora identified Hooks as the man who ran into her while he was running away from the area around the apartment. Id. at 170. When she went into the apartment, she saw the door had been forced open and her television was on the floor near the door. Id.
{¶13} Anthony testified that he also lived in the apartment on the date in question. Id. at 176. When they arrived home, the door would not open. Id. at 178. A minute or so later, a man came running out of the front door. Id. Anthony then began chasing him and followed him across the parking lot. Id. at 179. Anthony testified that he lost sight of the man for a while, but then saw him again
{¶14} Officer Patrick Lannan (“Lannan“) testified that he was dispatched to the scene at the apartment complex on Oakwood Avenue after being notified that a suspect in a burglary was being detained by the victims. Apr. 30, 2015 Tr. 6. When he arrived, Hooks was being held down by another person. Id. at 8. Lannan identified Hooks in the courtroom as being the man being detained at the scene. Id. at 10.
{¶15} Based upon the evidence stated above and viewing it in a light most favorable to the State, there is sufficient evidence that Hooks was the person who trespassed into an occupied structure as he was seen running out of the house by multiple witnesses. Testimony was presented that it was likely that a person would be there at that time as they had only left to go out to lunch and run some errands. Finally, there was testimony that Aurora‘s television had been moved from its normal location to the floor by the door, from which a reasonable juror could infer that Hooks intended to commit the criminal offense of theft while in the apartment. As there was evidence on each element of the offense for which he was convicted, the verdict as to amended Count Three was supported by sufficient evidence.
Manifest Weight of the Evidence
{¶17} In the second assignment of error, Hooks claims that the verdicts were against the manifest weight of the evidence. Unlike sufficiency of the evidence, the question of manifest weight of the evidence does not view the evidence in a light most favorable to the prosecution.
Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) (citing Black‘s Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the exceptional case in which the evidence weighs heavily against conviction. Id. Although the appellate court acts as a thirteenth juror, it still must give due deference to the findings made by the jury.
The fact-finder, being the jury, 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’ 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.
State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist. 1998). Having found that the conviction for the burglary setting forth the allegations of Count Two was not supported by sufficient evidence, it would be against the manifest weight of the evidence as well. Thus, we need only consider whether the conviction for burglary pursuant to Count Three was against the manifest weight of the evidence.
{¶18} Hooks’ sole argument regarding the third count of the indictment was that the State failed to show Hooks’ intent to commit a criminal offense while in the house. However, evidence was presented that Hooks had forced his way into the apartment on Oakwood by prying the door open. Testimony was given that the television had been moved from its stand and was found by the door. A reasonable juror could conclude that Hooks had intended to remove the television from the home. Therefore, there was credible evidence to support their determination that Hooks had a criminal intent when he entered the apartment. The evidence does not weigh heavily against conviction and is thus not against the
Amending the Indictment
{¶19} In the third assignment of error, Hooks claims that the trial court erred by granting the State‘s motion to amend the indictment to a different offense with a different penalty during the trial. An indictment may be amended during trial as long as that amendment does not change “the name or identity of the crime charged.”
{¶20} Both the Eighth District Court of Appeals and the Ninth District Court of Appeals have discussed this same issue in situations where the charge was being reduced to a lesser included offenses. Both courts have determined that allowing the amendment to the lesser included offense does not violate
{¶21} In State v. Simmons, the Eighth District Court of Appeals allowed an amendment from a kidnapping charge to one of abduction. 8th Dist. Cuyahoga No. 96208, 2011-Ohio-6074. This amendment changed the name and the degree of the offense.
“The amendment of a charge ‘in an indictment to a lesser included offense does not change the name or identity of the crime charged.’ ” Cleveland v. Smith, 8th Dist. No. 81778, 2009-Ohio-3594, ¶ 6, quoting State v. Watson, 5th Dist. No. 2004CA00286, 2005-Ohio-1729, ¶ 10. “[I]f lesser offenses are included within the offense charged, the defendant may be found * * * guilty of * * * a lesser included offense.”
Crim.R.31(C) . Abduction is a lesser included offense of kidnapping. State v. Roman, 8th Dist. No. 92743, 2010-Ohio-3593, ¶ 5 * * * .
{¶22} Likewise, the Ninth District Court of Appeals in State v. Washington reached a similar conclusion. 9th Dist. Summit No. 24997, 2010-Ohio-3389. In Washington, the defendant was originally charged with Grand Theft in violation of
{¶23} Here, the indictment charged Hooks with aggravated burglary in violation of
{¶24} Moreover, as noted earlier, the grand jury would have already and necessarily found all of the elements necessary for the Burglary in order to indict
Sentencing
{¶25} Hooks alleges in the fourth assignment of error that the sentences imposed were contrary to law. As the conviction as to Count Two has been reversed as being not supported by sufficient evidence, any argument concerning the imposition of consecutive sentences is moot. As a new sentence will need to be imposed upon Hooks, any remaining questions are also moot and will not be addressed at this time by the court.
{¶26} Having found error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Court of Common Pleas of Henry County is affirmed in part, and reversed in part. The matter is remanded to the trial court for further proceedings.
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded.
SHAW, P.J. concurs.
ROGERS, J. concurs in judgment only.