State v. Bertram
| Decision Date | 15 July 2022 |
| Docket Number | 21CA3950 |
| Citation | 2022 Ohio 2488 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. DONALD R. BERTRAM, JR., Defendant-Appellant. |
| Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM COMMON PLEAS COURT
Karyn Justice, Portsmouth, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S Willis, Scioto County Assistant Prosecuting Attorney Portsmouth, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
{¶1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. A jury found Donald R Bertram, Jr., defendant below and appellant herein, guilty of burglary, a second-degree felony, in violation of R.C. 2911.12(A)(2).
{¶2} Appellant assigns the following errors for review:
{¶3} While working outside of his residence during the afternoon of September 18, 2020, Timothy Huff observed appellant walk, uninvited, into Huff's open garage and take a leaf blower that Huff recently had purchased. A Scioto County Grand Jury returned an indictment that charged appellant with (1) burglary, in violation of R.C. 2911.12(A)(2) and 2911.12(D), and (2) breaking and entering, in violation of R.C. 2911.13(A) and 2911.13(C). Appellant entered not guilty pleas and the state later dismissed the breaking and entering charge.
{¶4} On May 17, 2021, the trial court held a jury trial. During voir dire, one juror (number eight) stated that she twice had been a burglary victim. The prosecutor asked the juror whether her experience impacted her ability to be fair and impartial, and the juror responded "I don't think [sic]." When appellant's trial counsel questioned the juror, he asked her to explain what happened and she stated that the person broke into her house and that "it was just traumatizing." Appellant's counsel then asked the juror whether she could "suspend judgment" until she hears all of the evidence, and she replied that "[i]t would be hard." The trial court also questioned the juror and asked if she could put her past experience "aside and base [her] decision as to this case on the evidence and the testimony" presented in this case. The juror responded: "Honestly, I don't think so."
{¶5} The trial court later asked appellant's counsel if he had any challenges for cause and counsel mentioned juror number eight:
I'm wondering about that. It's - obviously someone who's been a victim of burglary twice * * * and I feel that this would probably be-well, I shouldn't be saying that, but as far as cause I - if I want to get rid of her I think I'd have to use peremptories.
Appellant's counsel then asked appellant whether he thought they should leave the juror on the jury and appellant stated: "I feel like she knows the-she knows what the charge is so she would be able to help my case in understanding that it's not a burglary." Counsel responded:
Well, it's your life. You're relying on that. The other side of that is that she could be someone that -says listen, I've got a burglary, I don't think this guy was punished enough because burglar's don't get caught enough, if this guy's a burglar I want him punished.
Appellant then stated that he believed "she's capable" and "she'd be a good candidate." Appellant thus expressed his desire to leave her on the jury.
{¶6} The state's first witness, Portsmouth Police Officer Clayton Nickell, testified that on September 18, 2020 Huff reported that a white male had taken a Husqvarna leaf blower from Huff's garage. Huff had told the person "to stop several times." Authorities later identified the white male as appellant.
{¶7} Huff testified that on September 18, 2020 he was doing some yard work at his home when he heard a car with a loud muffler. Huff noticed the driver, appellant, drive slowly by Huff's house and look at his house, then they made eye contact. When Huff entered his house to retrieve his phone, appellant continued to drive to the end of the street.
{¶8} At the end of the street, appellant turned around, drove back up the street and parked "to the side" of Huff's house. Huff explained that appellant parked "more in front of the garage, but behind [Huff's] truck." Huff indicated that appellant would not have been in direct sight of someone who looked out the front window.
{¶9} After appellant parked, he exited his vehicle and walked around the front of the car. Huff thought that appellant may have been approaching him. Huff stated he "was just shocked" and "didn't know what was going on." Huff explained appellant "had a smile on his * * * face, which threw [Huff] off."
{¶10} Appellant entered Huff's garage, although appellant did not move at a rapid pace and "that's what surprised" Huff. Huff explained that he thought that, if appellant intended to steal something, "it was going to be * * * real quick." Instead, Huff stated that appellant seemed "very cavalier" and had no "sense of urgency."
{¶11} Huff further testified that appellant's presence made him "nervous," because Huff Appellant also "had open lesions all over his body." Huff said he was afraid that appellant might cause him physical harm.
{¶12} Huff further related that, once appellant entered the garage, appellant picked up the leaf blower and walked toward his car. Huff told appellant to stop and put down the leaf blower, but appellant placed the blower in the passenger side of his car and drove away.
{¶13} After Huff's testimony and the state rested, appellant moved for a Crim.R. 29(A) judgment of acquittal. Appellant argued that the state failed to present sufficient evidence to establish that appellant trespassed by force, stealth, or deception. The trial court, however, overruled appellant's motion. At that point, the defense rested.
{¶14} After the jury began to deliberate, the jury informed the trial court that it had reached an impasse. The court, however, instructed the jury to attempt to continue to deliberate and to reach a verdict. Later, the jury asked the court to replay Huff's testimony. After listening to a replay of Huff's testimony, the jury returned to deliberate and subsequently announced they had reached a verdict.
{¶15} When the trial court polled the jurors, one juror stated that, although she signed the verdict form, she did not agree with the verdict and felt as though she "was forced into pleading guilty [sic]." Appellant's counsel then asked the court to declare a mistrial. Appellant also asked the court to declare a mistrial based upon counsel's belief that the jury observe appellant in shackles. The court, however, responded that the table "is equipped with modesty panels and skirting" and the court did not believe that the shackles "would have been visible to the jury during the limited time they were back in the courtroom." Counsel stated that he thought appellant also "had the belt on and some handcuffs," but both the court and the prosecutor stated they did not believe that the jurors observed the restraints.
{¶16} The trial court then asked defense counsel if he wanted the court to give the jurors a curative instruction. Counsel, however, expressed concern that, if the jurors had not, in fact, noticed the restraints, the instruction would draw attention to it. Counsel instead again requested the court grant a mistrial because counsel believed that any instruction would not be sufficient. The court, however, stated: "I'm not sure there's anything to cure."
{¶17} At that juncture, the trial court brought the jury into the courtroom and instructed them to continue to deliberate. Later, the jury returned a guilty verdict.
{¶18} On May 20, 2021, the trial court sentenced appellant. The court noted that, at the time of the offense, appellant had been on post-release control. Consequently, the court (1) terminated appellant's post-release control and ordered him to serve 491 days for the post-release control violation, (2) sentenced appellant to serve a minimum prison term of eight years to an "indefinite maximum prison term of up to" 12 years, and (3) ordered the sentences be served consecutively to one another. This appeal followed.
{¶19} In his first assignment of error, appellant asserts that his burglary conviction (1) is against the manifest weight of the evidence, and (2) sufficient evidence does not support his conviction. In particular, appellant contends that the evidence fails to show that he used force, stealth, or deception to enter the victim's garage.
{¶20} Initially, we observe that "sufficiency" and "manifest weight" present two distinct legal concepts. Eastley v. Volkman, 132 Ohio St.3d 328 2012-Ohio-2179, 972 N.E.2d 517, ¶ 23 ("sufficiency of the evidence is quantitatively and qualitatively different from the weight of the evidence"); State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), syllabus. A claim of insufficient evidence invokes a due process concern and raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. Thompkins, 78 Ohio St.3d at 386. When...
To continue reading
Request your trial