State v. Hairston

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: COLE; MILLER, P. J., and GUERNSEY
• Citation: 396 N.E.2d 773,60 Ohio App.2d 220
• Decision Date: 09 November 1977
• Parties: , 14 O.O.3d 191 The STATE of Ohio, Appellee, v. HAIRSTON, Appellant. *

Page 220

60 Ohio App.2d 220 396 N.E.2d 773, 14 O.O.3d 191 The STATE of Ohio, Appellee,
v.
HAIRSTON, Appellant. ^* Court of Appeals of Ohio, Third District, Allen County. Nov. 9, 1977. Syllabus by the Court

A nonexpert witness may testify to his general conclusion derived from a number of indescribable instances or elements as the statement, not of opinion, but of a composite fact, any objection going to the weight and not the admissibility of such testimony.

David E. Bowers, Pros. Atty., and Stephen R. Shaw, Lima, for appellee.

[396 N.E.2d 774] Timothy C. Hamman, Lima, for appellant.

COLE, Judge.

This is an appeal from a judgment of conviction and sentence in the Common Pleas Court of Allen County for the crime of trespass in an unoccupied structure with the purpose of committing a theft offense therein in violation of R.C. 2911.13(A). The offense involved an attempted or incomplete burglary of Fruit Distributors located at 129 South Central in the city of Lima. The facts generally indicate that the structure was protected by a silent alarm system which gave direct alarm to the police. At about 10:35 p. m. on February 16, 1977, the alarm was given. Investigation by the police revealed that a T.V. tower was lying against the wall of the building in such a manner that it could be used as a ladder for access to the roof. Further investigation revealed a large hole in a plywood structure on the roof with a pick lying adjacent thereto. A search of the building lasting about an hour disclosed that the alarm system had been ripped from the wall, and in one office some photographic equipment and two calculators had been stacked on a desk, cupboards were open as well as some desk drawers. No one was found in the building. However, the building was adjacent to and joined on

Page 221

the roof level with a building occupied by Midas Muffler. The search was extended to this area at about 12 midnight. At this time two witnesses saw a man identified as the defendant apparently leaving the front door. He was limping badly and in apparent pain. He ran to a nearby bar where he was subsequently apprehended. There were, at several significant areas, footprints witnesses identified as made by "tennis shoes." The defendant was wearing tennis shoes and his clothing, on examination by experts, revealed particles of plywood.

At the trial the defendant objected to testimony as to the footprints primarily on the ground that the witnesses were not qualified as experts. At the close of the state's case defendant moved for acquittal and the motion was overruled. He then introduced, as the defense's case, certain photographs and rested. The motion was not renewed. The court charged the jury and omitted the word "therein," referring to the unoccupied structure in the definition of the offense. This was brought to his attention by counsel for appellant and the jury was brought back and the correction made. No objection was then made by appellant as to this corrected charge.

The defendant was convicted and now appeals asserting three assignments of error which will be separately considered, together with such additional facts as may be pertinent to their disposition.

I. "The trial court committed prejudicial error by permitting witnesses without qualification or foundation to testify that footprints were 'tennis shoe' prints and/or that they were similar to defendant's footprints."

One of the primary issues herein involved is the question of identity. The evidence was quite sufficient to establish that there had been a trespass to an unoccupied structure. The presence of a large hole in the roof; the use of the T.V. tower as a ladder; the testimony of the manager of the business that the structure had been locked up and left in normal condition; that there had been no such hole several days before; the very cold weather which would have revealed its existence; the rifling of desks; destruction of the alarm system and the accumulation of loot all go to a conclusion beyond reasonable doubt that someone had entered the premises without authorization and with the intent to commit a theft offense.

Page 222

The problem remaining is whether or not the defendant was that person so trespassing, and one item of evidence connecting him to the crime was the fact that marks of "tennis shoes" were found in critical areas on the roof and in the building, and the fact he was apprehended wearing tennis shoes. To the characterization or description of the shoe marks as those made by "tennis shoes" the defendant objects because (1) the witnesses were not experts, and (2) this constitutes opinion evidence [396 N.E.2d 775] without any description of the facts upon which the opinion is based.

As to the necessity for expert testimony, it would appear that testimony on...