STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO vs. JOEL PETEFISH
CASE NO. 10 MA 78
SEVENTH DISTRICT
December 7, 2011
[Cite as State v. Petefish, 2011-Ohio-6367.]
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CR 23
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Megan Graff, Comstock, Springer & Wilson Co., 100 Federal Plaza East, Suite 926, Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
{1} Appellant, Joel Petefish, appeals the judgment of the Mahoning County Common Pleas Court, convicting him on three counts: one of burglary, a violation of
Factual and Procedural History of the Case
{2} Appellant had been married to Bette and the two had a son, Joel, Jr. They divorced in the early nineties. After the divorce Bette remarried and had a daughter, Melissa. Bette and her husband Steven lived together with both children, Joel, Jr. and Melissa. Appellant moved to Georgia during the early nineties and lived there for approximately twenty years. (Tr. Vol. III, p. 506.) In the late summer of 2009, he made his way north from Georgia, staying with family along the way. (Tr. Vol. III, pp. 494-495.) When he returned to the Youngstown area his father refused to allow him to stay in the family home. Appellant‘s mother contacted his ex-wife, Bette, told her he had nowhere to stay other than to camp in the woods, and asked if she could help. Bette agreed to let Appellant wash, eat, and nap from time to time, depending on his behavior and the weather, first at the townhouse she shared with her husband, and later in the one-bedroom apartment she and her daughter shared. (Tr. Vol. II, p. 343.) Bette would ask Appellant to leave if his behavior was inappropriate or if he was using alcohol or drugs. (Tr. Vol. II, pp. 345-346.)
{4} During the day on December 24, 2009, Bette left the apartment unlocked, as was her practice, so her son, Joel, Jr., could come in to pick up his Christmas present. (Tr. Vol. II, pp. 351-352; 376-377.) Bette testified that she returned to her apartment and found Appellant there: he had her “daughter‘s Kool-Aid all over his face, and ran outside and did these snow angels and urinated on them.” Bette stated that she was upset by his presence and his behavior, and told him to leave. (Tr. Vol. II, pp. 381, 387; 347-348.) Bette prepared to pick up her daughter and go to her parents’ house for the holiday. Bette and Appellant agreed that he would drop by the gathering so she could take him to his mother‘s house before she and her daughter continued to her husband‘s house to celebrate Christmas. (Tr. Vol. II, p. 349.) Appellant never arrived at her parents’ party. Instead, when Bette and Melissa stopped at the apartment on their way to Steven‘s,
{5} Shortly after Appellant left with her money, Melissa tried to make a phone call and discovered the house phone was disconnected. The landline was digital and neither Melissa nor Bette knew how to set it back up. They realized then that Melissa‘s cell phone was missing. They concluded that Appellant had taken the phone and headed toward the door to borrow a neighbor‘s phone. (Tr. Vol. II & III, pp. 352-354; 411.) As Bette reached the door there was a knock. She saw Appellant through the peep hole and asked him, through the door, for her daughter‘s phone. He held it up and said she had to open the door so he could hand it to her. She cracked the door open and, rather than pass her the phone, Appellant pushed the door more fully open, forcing the two women into the wall as he entered the apartment. He began mumbling and yelling and screaming. When Bette told him they were leaving and he also needed to leave, Appellant responded “[y]ou‘re not going anywhere.” (Tr. Vol. II, pp. 355-357.) The two women observed Appellant enter the kitchen area, take two knives and put them in the pockets of his pants. (Tr. Vols. II & III, pp. 356; 402.)
{7} Suddenly, something appeared to distract Appellant in the kitchen, and he left the bedroom. (Tr. Vol. II, p. 384.) Bette took her daughter‘s arm and the two ran to the front door, reaching for her keys from a table as they ran past. (Tr. Vol. II, 359-360.) The two jumped into the car and drove down the street.
{8} Bette and Melissa waited in a parking lot down the block for the police to arrive. After several cruisers arrived, they returned to the apartment. Meeting Officer Asad Chaibi, they gave statements at the scene. The first officer to arrive on
{9} At trial, Appellant testified that the events described by Bette and her daughter never happened. He stated that he never threatened them or prevented them from leaving. He maintained that he returned to the Youngstown area because Bette asked him to and to be with his son. He testified that Bette and he were in an intimate relationship and they moved into the apartment together, and that he regularly contributed to the household and spent more nights in the apartment than Melissa did. Appellant testified that Melissa was upset by the obvious relationship he had with her mother, that she always had a problem with him, and that the police were called that night due to a family disagreement after Melissa became upset when he asked her mother for a kiss. (Tr. Vol. III, pp. 509-510, 515, 518, 530-531.) Bette denied any sexual relationship with Appellant. (Tr. Vol. II, p. 363.) She said that she and her daughter shared the single bedroom in the apartment. (Tr. Vol. II., p. 342.)
{10} Appellant was indicted by the grand jury on January 28, 2010. Count one was for burglary, a violation of
{11} The defense moved for acquittal on the merits at the conclusion of the state‘s case-in-chief. The motion was overruled.
{12} A verdict on each count was returned by the jury on April 22, 2010. Appellant was sentenced and judgment entered on May 7, 2010. Appellant received six (6) years of incarceration on count one and four (4) years of incarceration on counts two and three, which merged, to be served consecutively. Credit was given for one-hundred and thirty-five (135) days served, and treatment for alcoholism recommended. Appellant filed his timely appeal on May 10, 2010.
Assignment of Error No. 1
{13} “The State of Ohio failed to introduce sufficient evidence to prove beyond a reasonable doubt that defendant-appellant, Joel Petefish, committed aggravated burglary and abduction.”
Assignment of Error No. 2
{14} “The Jury verdict finding defendant-appellant, Mr. Petefish, guilty of aggravated burglary and abduction is against the manifest weight of the evidence.”
{16} A challenge to the sufficiency of the evidence tests whether the state has properly discharged its burden to produce competent, probative, evidence on each element of the offense charged. An inquiry into sufficiency focuses on whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E. 2d 492, paragraph two of the syllabus. In contrast, a challenge to the manifest weight of the evidence addresses not the mere existence of evidence on each element, but the effect of that evidence in inducing belief. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. Even where a reviewing court finds a verdict is supported by sufficient evidence, the same verdict may be found to be against the manifest weight of the evidence. Id. To evaluate the manifest weight of the evidence, an appellate court reviews the entire record, “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.” Id. at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The
{17} In this case Appellant was charged on three counts. The first count constituted a violation of
{18} Ohio Revised Code Section 2911.11 reads in pertinent part: “[n]o person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply * * * (2) The offender has a deadly weapon or dangerous ordnance on or about
(A) Sufficiency of the Evidence
{19} Appellant attacks the sufficiency of the evidence with regard to two elements of the burglary charge, trespass and use/possession of a deadly weapon, and on the restraint element of the abduction charge.
(1) Trespass
{20} Appellant‘s argument that the state failed to present sufficient evidence establishing the trespass element of burglary rests on the fact that his testimony conflicts with testimony of other witnesses concerning the extent of his privileges in Bette‘s apartment. It is undisputed that over the years since the end of their marriage Bette sometimes allowed Appellant to sleep in her place of residence. Bette also allowed Appellant to shower and eat when necessary, and to store some seasonal possessions, e.g. golf clubs, that he was unable to carry with him. It is equally undisputed that Bette required Appellant to follow rules, including abstaining from alcohol, when he stayed with her, and that he was required to leave when she asked.
{21} Bette testified that on the day of the incident she told Appellant he had to leave and left the apartment with her daughter for a family party. When Bette and her daughter returned to the apartment expecting it to be empty, they instead found Appellant, drunk, and the apartment in disarray. Bette told Appellant to leave, he became angry, and initially left, taking her daughter‘s cell phone with him. Appellant returned almost immediately, pushed his way into the apartment, picked up two knives, refused to leave, and prevented Bette and her daughter from leaving.
{22} As we have previously noted, “[a] trespass may occur even after lawful entry onto the premise if the privilege to remain on the premises has been terminated or revoked.” State v. Keyes, 7th Dist. Case No. 08 CO 11, 2008-Ohio-6592 ¶24 (finding the quoted instruction concerning revocation proper.) Even where a revocation of a privilege is not explicit, the termination of the privilege to remain may be inferred. State v. Steffen (1987), 31 Ohio St.3d 111, 115, 509 N.E.2d 383. (“Under the circumstances of this case, even assuming lawful initial entry, the jury was justified in inferring from the evidence that appellant‘s privilege to remain in [the
{23} Appellant cites Radvansky v. City of Olmstead Falls, 2005 Fed. App. 0024P, 395 Fed. 3d 291 (6th Cir. 2005) for the proposition that a tenant cannot be prosecuted for trespassing in the leased property, in support of his argument. Radvansky addresses a situation where a tenant was arrested and indicted without probable cause. Mr. Radvansky had a verbal rental agreement whereby he paid $450 a month to share the common areas of a house, excluding his separate locked bedroom, with the homeowner. Mr. Radvansky was current through April, but $60 dollars short on his May rent. While he was out of town in early May, the owner changed the locks. When he returned to the property he made multiple attempts to enter and retrieve property.
{24} On Mr. Radvansky‘s third attempt he broke a window and screen to crawl into the house. A neighbor saw him and called the police who responded to a
{25} None of the circumstances and indicia that supported Mr. Radvansky‘s claim of tenancy exist in the matter at bar. Appellant has failed to establish any legal right to the property that would prevent Bette‘s testimony from establishing the elements of trespass. The jury was instructed on the elements of trespass and the testimony at trial addresses those elements. Appellant‘s argument as to the credibility of Bette‘s testimony and the fact that his own testimony differs is relevant only to the weight of that testimony, not the question of whether it is sufficient to establish the elements of the offense. We hold that the state‘s evidence is sufficient as to the trespass element.
(2) Deadly weapon.
{26} Appellant makes two arguments concerning the element regarding his deadly weapons charge. First, Appellant concedes that he placed two knives in his
{27} In determining the types of knives that constitute deadly weapons, a number of courts have found
{28} Several other appellate courts have found that switchblades are weapons per se. A switchblade knife, by virtue of its spring-loaded action, is by definition adapted for use as a weapon. State v. Johnson, 8th Dist. No. 81299, 2003-
{29} It appears that no court in the state has determined that a switchblade is not a weapon. In fact, some courts have held that switchblades are, per se, deadly. The court in State v. Orlett (1975), 44 Ohio Misc. 7, 335 N.E.2d 894 elaborated: “It is further acknowledged that some weapons are per se deadly. Others, owing to the manner in which they are used, become deadly. A gun, pistol or switchblade knife are per se deadly. Other weapons can become deadly and assume deadly character depending upon the manner and circumstances of their use. There is a question of fact presented in such cases and where such a question exists, the fact must be resolved by either the jury or the court. In determining whether an instrument not inherently ‘deadly’ or dangerous assumes these characteristics, the court may consider the nature of the weapon, the manner of its
{30} Appellant never disputes that one of the two knives in question is a switchblade. In fact, Appellant never mentions or addresses that detail, instead repeatedly referring to it as a “pocket knife” and maintaining that a pocket knife is not a weapon. Appellant relies on State v. Cathel (1998), 127 Ohio App.3d 408, 713 N.E.2d 52, mis-citing the case as standing for the proposition that “[c]ircumstances cannot transform a pocket knife into a weapon.” (Appellant‘s Brf., p. 11.) The Ninth District‘s decision actually focused on the fact that although “[t]here is no dispute that the knife in question is capable of inflicting death,” the pocket knife in that instance took two hands to open and “was neither a switch or other spring-loaded blade, nor a gravity blade capable of instant one-handed operation, and differs only in its somewhat greater length from the familiar type of clasp knife carried as a useful tool by thousands.” Id. at 411, 413 citing State v. Anderson, 2 Ohio App.3d 71, 440 N.E.2d 814. The circumstances to which the court refers are those surrounding the
{31} Appellant‘s second argument concerning the deadly weapon element focuses on the language of
{32} When the statute was revised in 1973 to consolidate ten separate breaking and entering offenses into three, the legislature identified the relative potential for harm as the distinguishing factor among the consolidated offenses. It is due to the focus on the potential for physical harm that aggravated burglary, which
{33} Possession of a deadly weapon is sufficient to satisfy
(3) Abduction.
{34} Appellant‘s only “sufficiency” argument with regard to abduction is to challenge the testimony of Melissa and Bette as “self serving.” Questioning the motivations of witnesses does not rise to the level of a sufficiency issue. The relevant inquiry in sufficiency is “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61
(B) Manifest weight of the evidence.
{35} “‘Weight is not a question of mathematics, but depends on its effect in inducing belief.’ (Emphasis sic.)” (Internal citations omitted.) State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶24, quoting Thompkins, supra, at 387. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. The state‘s case was supported by the testimony of both victims, who were consistent with one another, consistent with their statements at the scene, and consistent with their later discussions with Detective Lodwick. The impressions of all the officers who responded to the call were of two
Conclusion.
{36} Appellant‘s two assignments of error, challenging the sufficiency and the manifest weight of the evidence are overruled and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.