State v. Eberhardt
| Decision Date | 18 August 2020 |
| Docket Number | Case No. 2019CA0111 |
| Citation | 2020 Ohio 4124 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. SCOTT E. EBERHARDT, JR Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
For Plaintiff-Appellee
GARY D. BISHOP
Prosecutor
By: JOSEPH C. SNYDER
Assistant Prosecutor
38 S. Park Street
Mansfield, OH 44902
For Defendant-Appellant
GLORIA L. SMITH
670 Meridian Way #188
Westerville, Oh 43082
{¶1} Defendant-appellant Scott E. Eberhardt, Jr. ["Eberhardt"] appeals his conviction and sentence after a jury trial in the Richland County Court of Common Pleas.
{¶2} In September 2018, Eberhardt's aunt, Susane Malone, was living at Colonial Hill Trailer Park at 741 Yale Avenue, Lot 2. When she left that address and started living with her mother, Ms. Malone's son, Michael Kitts, would check on the property every other day. Ms. Malone still had medicine, money, and electronics in the home.
{¶3} At some point, Ms. Malone's car had stopped working. She hired Eberhardt to repair it. The car, which was un-drivable, was located at the home of Ms. Malone's mother. Ms. Malone gave Eberhardt her car keys to enable him to work on her car. The key ring also had a key to her home at Colonial Hill Trailer Park. Ms. Malone did not give Eberhardt permission to enter her home in the trailer park. The only other people with a key to the home were her daughter and her son, Michael Kitts.
{¶4} On September 29, 2019, Eberhardt drove his aunt over to her home at the trailer park so that she could pick up a pair of pants. Eberhardt waited in the car as Ms. Malone went inside her home. Afterwards, Eberhardt drove his aunt back to her mother's home. Ms. Malone's had planned to stay the night at her mother's home. Eberhardt was to come over the next day to finish working on Ms. Malone's car. After dropping off Ms. Malone at the home of her mother, Eberhardt left with Ms. Malone's keys, which included keys to the car and keys to her trailer.
{¶5} Sometime between 10:00 p.m. and 11:00 p.m. on September 29, 2019, Mr. Kitts went to check on the home in the trailer park and do laundry. Mr. Kitts's girlfriend, Ashley Carter, and two children accompanied him, but remained in the car. Upon his arrival, Mr. Kitts found the screen door and the main door to Ms. Malone's home to be unlocked. When he went inside, Mr. Kitts could see his mother's big screen television was in the middle of the living room floor, unplugged. When Mr. Kitts had been in the home two days prior, the television was plugged-in on the T.V. stand.
{¶6} Mr. Kitts then walked to the front bedroom where he observed everything to be in order. However, when he looked back towards the kitchen doorway, he saw the shadow of someone in the kitchen. Mr. Kitts yelled out, "Who is it," three or four times; however, no one responded. He then ran into the kitchen and found Eberhardt. Eberhardt asked Mr. Kitts where was Ms. Malone. Eberhardt told Kitts that he was supposed to meet Ms. Malone at the house so she could give him thirty dollars. Eberhardt then asked Mr. Kitts if he could give him a ride home. Mr. Kitts agreed and then went to tend to his laundry. Having become suspicious, Mr. Kitts checked the back bedroom and found dresser drawers open. At that point, Mr. Kitts believed that Eberhardt was trying to steal from Ms. Malone. Mr. Kitts received a call from Ms. Carter who had been waiting in the van outside. She said that someone was coming out of the trailer. Ms. Carter told Mr. Kitts that Eberhardt was outside the house, talking on his phone.
{¶7} When Mr. Kitts walked outside, Eberhardt was gone. Mr. Kitts then called the police. Deputies from the Richland County Sherriff's Office arrived and began looking through the house. They found a book bag that belonged to Mr. Kitts' fifteen-year-old brother on the floor in the kitchen. This book bag would ordinarily be found in the back- bedroom's closet. Mr. Kitts' brother had already moved out of the house and took everything he wanted with him. Inside the bag was a digital camera. The digital camera had been on a shelf in the back-bedroom's closet. The deputies found no evidence of forced entry.
{¶8} Deputy Burt Skeen later interviewed Eberhardt. Eberhardt admitted to having a key to Ms. Malone's trailer as it was on the key ring with the car key. During the interview, Eberhardt claimed that he was in the house just to wait on a ride. Later, the keys to Ms. Malone's car and her trailer were discovered in the yard of her mother's house.
{¶9} On June 24, 2019, Eberhardt was indicted by the Richland County Grand Jury with a single-count indictment. Counts One charged Eberhardt with Burglary in violation of R.C. 2911.12(A)(2)(d), a felony of the second-degree. At the conclusion of trial, the jury found Eberhardt guilty as charged.
{¶10} Eberhardt received a maximum sentence of eight years in prison after being found guilty by a jury of burglary in violation of R.C. 2911.12 (A)(2). Eberhardt had previously been convicted on a prior felony and was serving a prison sentence on that charge. The trial court imposed the sentence in this case consecutive to the sentence in the previous case.
{¶11} Eberhardt raises Four Assignments of Error,
{¶12} "I. APPELLANT'S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶13} "II. THE TRIAL COURT ERRED WHEN IT FAILED TO DISCHARGE APPOINTED COUNSEL AND APPOINT NEW COUNSEL.
{¶14} "III. APPELLANT WAS DEPRIVED OF HIS RIGHT A. FAIR TRIAL AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶15}
{¶16} In his First Assignment of Error, Eberhardt argues that his conviction for Burglary is against the manifest weight of the evidence. Eberhardt also claims there is insufficient evidence to support his conviction.
1. Standard of Appellate Review- Sufficiency of the Evidence.
{¶17} The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. "This naturally entails a review of the elements of the charged offense and a review of the state's evidence." State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶18} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997; Walker, at ¶30. "The relevant inquiry is whether, after viewing the evidence in the 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." Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, "on review for evidentiary sufficiency we do not second-guess the jury's credibility determinations; rather, we ask whether, 'if believed, [the evidence] would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus; Walker at ¶31. We will not "disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.'" State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
1.1. Issue for Appeal: Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, if believed, would convince the average mind of Eberhardt's guilt on each element of the crime for which he was convicted beyond a reasonable doubt.
{¶19} To be found guilty of Burglary, the jury would have to find beyond a reasonable doubt that Eberhardt trespassed in an occupied structure that is a permanent or temporary habitation when "any person is present or likely to be present" "with purpose to commit in the habitation any criminal offense." R.C. 2911.12(A)(2).
{¶20} Eberhardt first contends that because his aunt, Ms. Malone, gave him her key ring which contained both her car keys and her house keys and because she did not tell him that he did not have permission to use the key to her trailer he did not "trespass." [Appellant's brief at 5].
1.1.1. Trespass.
{¶21} A person trespasses when the person knowingly enters or remains on the land or premises of another without privilege to do so. R.C. 2911.21(A)(1).
{¶22} Ms. Malone testified that Eberhardt was given the key ring so that he could work on her car. (2T. at 315-316). The car was located at the residence of Ms. Malone's mother, which is where Ms. Malone was staying. (2T. at 321). Ms. Malone testified that Eberhardt did not have permission to go into her trailer. (2T. at 323). She further testified that she had not agreed to meet Eberhardt at the trailer to give him money. (2T. at 324-325).
{¶23} Viewing the evidence...
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