State v. Butcher
| Decision Date | 12 April 2017 |
| Docket Number | Case No. 15CA34,Case No. 15CA33 |
| Citation | 2017 Ohio 1544 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MARK ANTHONY BUTCHER, JR., Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Katherine R. Ross-Kinzie, Assistant State Public Defender, Columbus, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for appellee.
CRIMINAL CASE FROM COMMON PLEAS COURT
{¶ 1} This is a consolidated appeal from two Athens County Common Pleas Court judgments. In case number 15CA33, the jury found Mark Anthony Butcher, defendant below and appellant herein, guilty of (1) aggravated burglary, in violation of R.C. 2911.11(A)(1), and (2) trespass in a habitation, in violation of R.C. 2911.12(B). The trial court merged the two offensesand sentenced appellant to nine years in prison. The court additionally ordered appellant to serve a prison term consisting of the amount of time remaining on his postrelease control imposed in a prior criminal case and further ordered that the postrelease-control-prison-sanction sentence run consecutively to the sentence imposed for appellant's aggravated burglary conviction.
{¶ 2} In case number 15CA34, the trial court revoked appellant's previously-imposed community control for two intimidation of a witness convictions and imposed consecutive, three-year prison terms for the two convictions. The court ordered appellant to serve these two sentences consecutively to the sentences imposed for his aggravated burglary conviction and for his postrelease-control-prison-sanction.
{¶ 3} Appellant assigns the following errors for review:
{¶ 4} Appellant's aggravated burglary and trespass in a habitation convictions arise out of an incident that occurred on January 24, 2015, when appellant and his girlfriend, Amber Snyder, went to the apartment complex where Richard Bloomfield lived. Although the parties dispute the precise sequence of events, they agree that appellant and Snyder entered Bloomfield's apartment. Bloomfield claimed that he did not give appellant and Snyder permission to enter, while appellant and Snyder claimed that Bloomfield acquiesced to their admittance.
{¶ 5} Shortly after appellant and Snyder entered Bloomfield's apartment, appellant and Bloomfield became embroiled in an argument. Bloomfield ordered appellant to leave. The parties again dispute the next sequence of events, but they agree that Bloomfield struck appellant with a baseball bat and that appellant then hit Bloomfield. The fight continued for a few minutes. Appellant and Snyder eventually left Bloomfield's apartment and allegedly took a red tool box in which Bloomfield stored his prescription pain medication, along with other personal items. Shortly thereafter, appellant and Snyder returned to the apartment complex and reportedly returned the tool box. Bloomfield claimed that upon the return of his tool box, he discovered that most of his pain medication was missing.
{¶ 6} On February 23, 2015, an Athens County Grand Jury returned an indictment that charged appellant with six offenses: (1) two counts of theft of drugs, in violation of R.C. 2913.02(A)(1); (2) two counts of aggravated robbery, one in violation of R.C. 2911.01(A)(3), and the other in violation of R.C. 2911.01(A)(1); (3) aggravated burglary, in violation of R.C. 2911.11(A)(1); (4) and trespass in a habitation, in violation of R.C. 2911.12(B).
{¶ 7} Following appellant's indictment, the state filed a notice of community control violation and requested the court to revoke appellant's community control that the court previously imposed in a prior criminal case. The state asserted that appellant's conduct, as alleged in the February 2015 indictment, violated the terms and conditions of his community control. The trial court later found that appellant violated the terms and conditions of his community control.
{¶ 8} On August 27, 28, 31 and September 1, 2015, the trial court held a jury trial. At trial, Bloomfield testified that on January 24, 2015, his friend, Josh McCoy, visited Bloomfield's apartment. Shortly after McCoy's arrival, Bloomfield heard his screen door open and said, "just a minute." Bloomfield explained that although he did not open the door for appellant and Snyder, they nonetheless entered his apartment. Bloomfield told appellant that appellant should not "walk into somebodies [sic] home."
{¶ 9} Bloomfield testified that appellant and Snyder sat on the couch after entering his apartment, and appellant asked McCoy "if he knew where [appellant] could get some weed." Bloomfield indicated that he understood "weed" to mean "marijuana." He stated that after appellant asked McCoy about "some weed," Bloomfield told appellant to "get out of my house, I don't care how much marijuana you want from anybody, how much you, nothing like that, just want you to leave my home [sic]."
{¶ 10} Bloomfield testified that appellant "got up" and appellant and Snyder "went to the door." Bloomfield told appellant, "leave Anthony." Bloomfield stated that appellant "just stood there" and the two started to argue. Bloomfield indicated that their confrontation continued to escalate, with appellant stating, "well I'll just take you outside and whoop your ass." Bloomfield informed appellant that he was "not able to fight."
{¶ 11} Bloomfield stated that appellant started to walk toward the door, then turned around and walked toward Bloomfield. Bloomfield testified that he knew "by the look what [appellant] was going to do." Bloomfield related that he picked up a bat, swung, and struck appellant once before appellant "got him down." Bloomfield explained that appellant, while trying to wrestle the bat from Bloomfield, obtained the upper-hand and hit Bloomfield. Bloomfield stated that he "was on all fours and [appellant] was straddling [Bloomfield's] back." Appellant then used his fist to hit Bloomfield in the back and top of his head, and Bloomfield believed appellant also hit him with an ashtray. Bloomfield claimed that appellant stated, "I'm going to kill you, you mother fucker."
{¶ 12} Bloomfield testified that when the fight ended, appellant told Bloomfield to give appellant the keys to open a locked, red tool box. Appellant then looked inside the tool box, shut it, and left with it. Bloomfield explained that he used the tool box to store his prescription pain medications (oxycodone and MS Contin), neurontin (a nerve damage medication), his birth certificate, approximately $40, and some personal items.
{¶ 13} After appellant and Snyder left, Bloomfield went to his neighbor's apartment and asked the neighbor to call 9-1-1. As his neighbor was calling 9-1-1, appellant and Snyder returned to the apartment complex, and Snyder handed Bloomfield the tool box. Bloomfield stated that when he opened the tool box, the oxycodone, MS Contin, and cash were missing.
{¶ 14} On cross-examination, Bloomfield denied that he picked up the bat as appellant first walked toward the door to exit the apartment. Instead, he did not pick up the bat until appellant turned around and headed toward Bloomfield. Bloomfield testified that he did not have the bat in his hands "until [he] seen [appellant] coming."
{¶ 15} Cindy Misner testified that her friend, Snyder, asked Misner if she could borrow Misner's car so that Snyder could go to the store. Snyder called Misner later in the day, however, to tell her that the police had impounded the car. Misner went to the police department, signed a consent to search her car, and was present when law enforcement officers searched the vehicle and discovered a marijuana pipe that did not belong to her. Appellant's counsel objected on the basis of "relevance," but the trial court overruled the objection.
{¶ 16} Snyder testified that when she and appellant arrived at Bloomfield's apartment, they knocked on the door "about three times." She claimed that they "heard [Bloomfield] say yea and then we just assumed we could come in." Snyder stated that when she and appellant entered the apartment, Bloomfield and McCoy "were weighing marijuana." Snyder related that appellant and Bloomfield started to argue about how much the marijuana weighed, "and then the next thing you know Mr. Bloomfield said that we needed to leave." Snyder explained that as she and appellant prepared to exit, Bloomfield "said something else." Appellant turned around to "say something," and Bloomfield hit appellant with a baseball bat. Snyder stated that "a bad fight" ensued and that appellant told Bloomfield, multiple times, to drop the bat, but Bloomfield would not drop the bat.
{¶ 17} Snyder testified that after the fight...
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