State v. Massey, 2006 Ohio 5553 (Ohio App. 10/16/2006), 2006-CA-00042.
| Decision Date | 16 October 2006 |
| Docket Number | No. 2006-CA-00042.,2006-CA-00042. |
| Citation | 2006 Ohio 5553 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Keith Massey, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
John Ferrero, Jenifer Dave, 510 Stark County Office Building, Canton, OH 44702, for Plaintiff-Appellee.
Matthew A. Petit, 300 Bank One Tower, 101 Central Plaza South, Canton, OH 44702, for Defendant-Appellant.
Before: Hon: John W. Wise, P.J., Hon: W. Scott Gwin, J., Hon: William B. Hoffman, J.
{¶1} Defendant-appellant Keith Massey appeals from his conviction and sentence in the Stark County Court of Common Pleas on one count of Burglary in violation of RC 2911.12 (A) (3), a felony of the third degree. Plaintiff-appellee is the State of Ohio. The following facts give rise to this appeal.
{¶2} On the evening of Saturday, November 12, 2005, Tamara Hayhurst and her girlfriend made plans to go out to meet a friend and ended up at the Sports Pub on Cleveland Avenue, Canton, Ohio. There, she saw appellant, Keith Massey, who was her former boyfriend. (T. at 135). Ms. Hayhurst dated appellant in 2002 and he lived with her for about a month during that time at her residence at 2521 Third Street N.E., Canton, Ohio. (Id. at 148). Ms. Hayhurst testified that appellant did not live with her at all in 2005. (T. at 154).
{¶3} When Ms. Hayhurst saw appellant at the Sports Pub, she told her girlfriend they had to leave because "there was going to be problems."(Id. at 136). Ms. Hayhurst and her girlfriend then left for the parking lot and reached the truck she drove that evening. When she reached the truck, she testified that appellant grabbed her keys and hit her in the face. Ms. Hayhurst further testified that appellant was "like an animal." He kept calling her a bitch and yelling, "I'm going to fuck you up and your house." (T. at 136-137). Ms. Hayhurst finally got her keys back from appellant and went to a friend's house. Appellant followed her there but was not allowed to enter the house. (Id. at 139).
{¶4} After ten to fifteen minutes, Ms. Hayhurst decided to go home. When she arrived, she pulled into her driveway and saw appellant "with a bag of stuff". The 150 pound rottweiler that she had left in the kitchen was tied outside in the back yard. Ms Hayhurst did not stop, instead driving past to the pay phone at Zavarelli's Pizza just around the corner. Ms. Hayhurst called 911. (Id. at 140-142).
{¶5} Stark County Deputy Sheriffs' Christopher Newman and Eric Weisburn arrived in response to her call. After hearing her story and observing her distraught appearance, they followed her back to her residence on 3rd Street. (T. at 176-179).
{¶6} Appellant was not there or in the vicinity of her home. The Sheriff's Deputies than went to appellant's mother's house where he was believed to reside. Appellant answered the door dressed in shorts and a t-shirt. Appellant told the deputies that earlier that evening he was at a bar in Canton and broke up with Ms. Hayhurst. (T. at 186; 206). Appellant then went to Ms. Hayhurst's residence on 3rd Street and entered through an unlocked back door. The back window of Ms. Hayhurst's home had previously been broken out and had not been replaced. (Id. at 154). There, he got some items that he claimed were his, placed them in a black garbage bag and walked to his mother's house on 4th Street. (Id. at 186).
{¶7} Appellant was arrested on unrelated charges and asked the deputies if he could change his clothes. The Deputies allowed him to change his clothing and accompanied him to a bedroom. There, he took some warm clothing out of the clothes closet that contained men's clothing. (T. at 189). When booked at the Stark County Jail, appellant gave the 4th Street address as his residence. (Id. at 192).
{¶8} After appellant was arrested, Ms. Hayhurst returned to her home on 3rd Street. There, she observed her belongings thrown everywhere, "broken, destroyed". Missing were shirts and jackets that belonged to her son. (T. at 151; 155). Plants were dumped, a table was on its side, and the house was totally destroyed. Ashes from the fireplace were strewn all over. Everything was knocked off the counter in the bathroom. (184; 203; State's Exhibits A-F). It was the opinion of Deputy Sheriff Weisburg that someone had ransacked the house purposely to destroy it. (Id. at 204).
{¶9} For his part, appellant claimed that he was living with Ms. Hayhurst and had just broken up with her that evening. He went to the residence on 3rd Street after they broke up to pick up his belongings. (Id. at 208). Appellant produced witnesses hoping to suggest that he lived with Ms. Hayhurst. However, Michael Petroff, Customer Service Representative for General Labor Temporary Services, testified that Hayhurst's employment application listed an address of 2521 3rd Street N.E. and the address for Massey was 119 Arlington, Canton; Ohio.
{¶10} Appellant was indicted on one count of Burglary in violation of RC 2911.12 (A) (3), a Felony of the Third Degree, by the Stark County Grand jury on December 19, 2005.
{¶11} Appellant's case was heard in front of a jury on January 30-31, 2006. The matter proceeded and the jury found appellant guilty on one count of Burglary. The trial court held a Sentencing Hearing immediately after the jury returned its verdict of guilty and appellant was sentenced to a maximum 5-year prison term.
{¶12} The trial court conducted a voir dire of the jury after it had sentenced appellant. (T. at 344-352). Appellant's trial counsel made a Motion for a Mistrial during this voir dire of the jury. (Id. at 348). However, the trial court was satisfied that there was no juror misconduct during the deliberations. (T. at 354).
{¶13} Appellant timely filed his Notice of Appeal raising the following three assignments of error for consideration:
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{¶15} .
{¶16} .
{¶17} In his first assignment of error appellant contends that his conviction is against the manifest weight of the evidence. We disagree.
{¶18} Our standard of reviewing a claim a verdict was not supported by sufficient evidence is to examine the evidence presented at trial to determine whether the evidence, if believed, would convince the average mind of the accused's guilt beyond a reasonable doubt. 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, State v. Jenks (1991), 61 Ohio St. 3d 259.
{¶19} The Supreme Court has explained the distinction between claims of sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question for the trial court to determine whether the State has met its burden to produce evidence on each element of the crime charged, sufficient for the matter to be submitted to the jury.
{¶20} Manifest weight of the evidence claims concern the amount of evidence offered in support of one side of the case, and is a jury question. We must determine whether the jury, in interpreting the facts, so lost its way that its verdict results in a manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St. 3d 387, citations deleted. On review for manifest weight, a reviewing court is State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1.
{¶21} In State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, the Ohio Supreme Court held "[t]o reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary." Id. at paragraph three of the syllabus. However, to "reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required." Id. at paragraph four of the syllabus; State v. Miller (2002), 96 Ohio St.3d 384, 2002-Ohio-4931 at ¶38, 775 N.E.2d 498.
{¶22} To find the appellant guilty of burglary as charged in the indictment the jury would have to find that appellant by force, stealth, or deception trespassed in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense. R.C. 2911.12(A) (3). The criminal offense relied upon by the State was criminal damaging. The elements of criminal damaging are: "[n]o person shall cause, or create a...
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