State v. King

[Cite as State v. King, 

.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                         MEIGS COUNTY


STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     : CASE NO. 21CA2

        v.                                      :

EDWARD J. KING,                                 : DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                    :

_________________________________________________________________

                                           APPEARANCES:

Donald K. Pond, Akron, Ohio, for appellant.1

James Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio,
for appellee.
__________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:12-16-22
ABELE, J.

        {¶1}     This is an appeal from a Meigs County Common Pleas Court

judgment of conviction and sentence.                 A jury found Edward J. King,

defendant below and appellant herein, guilty of breaking and

entering in violation of R.C. 2911.13(A).

        {¶2}     Appellant assigns the following errors for review:




        1
      Different counsel represented appellant during the trial
court proceedings.
                                                                    2
MEIGS,   21CA2



           FIRST ASSIGNMENT OF ERROR:

           “THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO
           DUE PROCESS OF LAW WHERE THE TRIAL COURT FOUND
           APPELLANT GUILTY OF BREAKING AND ENTERING, IN
           THE ABSENCE OF SUFFICIENT EVIDENCE, CONTRARY TO
           THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
           UNITED STATES CONSTITUTION, AND ARTICLE I,
           SECTION 16, OF THE OHIO CONSTITUTION.”

           SECOND ASSIGNMENT OF ERROR:

           “THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO
           DUE PROCESS WHEN THE COURT ENTERED A JUDGMENT
           OF CONVICTION FOR BREAKING AND ENTERING BECAUSE
           THAT JUDGMENT WAS AGAINST THE MANIFEST WEIGHT
           OF THE EVIDENCE, CONTRARY TO THE FIFTH AND
           FOURTEENTH AMENDMENTS TO THE UNITED STATES
           CONSTITUTION, AND ARTICLE I, SECTION 16, OF THE
           OHIO CONSTITUTION.”

           THIRD ASSIGNMENT OF ERROR:

           “DEFENSE COUNSEL WAS INEFFECTIVE AT TRIAL, AND,
           THUS, APPELLANT SUFFERED A DEPRIVATION OF HIS
           RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL,
           PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS
           TO THE UNITED STATES CONSTITUTION AND ARTICLE
           I, SECTION 10, OF THE OHIO CONSTITUTION.”


    {¶3}   In August 2020, a Meigs County Grand Jury returned an

indictment that charged appellant with one count of breaking and

entering, in violation of R.C. 2911.13(A), a fifth-degree felony.

Appellant pleaded not guilty.

    {¶4}   At the March 8 and 9, 2021 jury trial, Gary Shamblin

described his property on State Route 143 he co-owns with Deborah
                                                                        3
MEIGS,   21CA2

Adams:   “There is a creek in front of it that gave us problems …

* and everything sits back about a hundred (100) yards.”    Shamblin

stated that on his property sits a trailer, a camper, a couple of

cars and trucks, “[m]ostly just junk over the years that I’ve

gathered up.”    Shamblin lived at the property for 20 to 25 years,

but moved six or seven years ago.    His age, health, and the

property’s terrain now prevents him from visiting the property.

Shamblin stated that appellant moved some items onto the property

for him in “the early two thousands, I think. I don’t remember.”

About ten years ago, when appellant’s son and wife needed a place

to live, Shamblin gave them an old trailer and an old truck.

Later, Shamblin loaned a truck and trailer to appellant to haul

vehicles.    However, when Shamblin looked for his truck and trailer,

“gone … gone.   Cut up in pieces.”   Shamblin was “very unhappy”

with appellant and told him, “if I ever catch him on my property

again, I’d blow his head off.”

    {¶5}    Shamblin’s property has a cellar house with locked doors,

a building with locked doors, and a box truck with all of the

spaces full of possessions.   When Shamblin last visited the

property, he noticed broken locks on the truck and trailer, and the

camper had two or three locks “all broke off of it.”   Shamblin did

not, however, know who broke the locks or when it occurred.     After
                                                                       4
MEIGS,     21CA2

Shamblin moved away from the property, he returned “every six

months or so,” and last visited a year and a half ago.

     {¶6}   James Wooten, a co-defendant, lived a “couple hundred

yards” from the property and he and Shamblin had been friends when

Shamblin was his neighbor.    Shamblin testified that on June 24,

2020, the Meigs County Sheriff’s Department asked if he gave Wooten

and appellant permission to “go on my property and take what they

wanted.”     Shamblin responded that he gave no one permission to go

onto his property to take anything.

     {¶7}   Deborah Adams purchased the State Route 143 property with

Shamblin in 1992, and lived there together until Adams moved in

1999.    Their 50-acres include a house trailer and a building (the

cellar house) that sit approximately 300 feet from the road.     A

bridge once spanned the creek, but has since been washed away.

Adams stated that, after you cross the creek, “[y]ou have to climb

a 5-foot bank and hike up the driveway,” about 250 feet from the

creek.     Approximately 90% of the cellar house contents belong to

Adams and Shamblin stores personal property in all the structures.

     {¶8}   Adams had visited the property the previous week to see

if raspberries had ripened, and she again visited on June 24, 2020

to pick raspberries.    When Adams arrived, however, she observed a

vehicle in her driveway, with windows down and keys in the
                                                                        5
MEIGS,    21CA2

ignition, and could hear men talk and metal clang.    Adams said she

“didn’t know exactly what was going on, but … had a pretty good

idea.”    When Adams parked behind the unknown vehicle and noticed

her neighbor in her driveway, she asked the neighbor to call the

sheriff’s department.    Adams then waited for law enforcement to

come to the property.

     {¶9}   After Meigs County Sheriff’s Department Sergeant Frank

Stewart arrived and prepared to cross the creek, appellant and

Wooten “popped out of the weeds,” climbed down the creek bank and

came to Stewart and Adams.     Appellant and Wooten said they had

permission to be on the property, but when Adams said they did not,

the men then said they knew Gary Shamblin but did not “know how to

get ahold of him.”    At that point, Adams gave Shamblin’s number to

Stewart, who relayed the number to dispatch, to contact Shamblin.

Stewart then asked Adams to inspect the buildings to see if

anything had been disturbed.

     {¶10} Adams explained that, although neither the trailer nor

the cellar house door has a working lock, she kept both doors

closed.     Shamblin also keeps belongings in the cellar house, which

has its own door, and Adams does not go into the cellar.    In the

past, Adams removed the padlocks on the trailer and the cellar

house because she “wanted to see what was happening inside,” but
                                                                        6
MEIGS,   21CA2

prior to that particular day, Adams had not seen the downstairs

cellar door open since 1999.     That door also typically had a “big

padlock,” but Adams did not see the lock.     Also, the cellar house

upstairs door was closed, but the trailer door stood “open and

there was stuff all in it [the doorway].     It couldn’t have been

closed without moving a bunch of stuff.”

     {¶11} Adams also observed toolboxes “in the driveway,” “the

cellar house door … standing open,” and “a telescope on the

front porch of the trailer that had not been there the previous

week. … There was a bunch of stuff pulled out of [the box]

truck that … hadn’t been laying in the driveway.”     The box

truck contained “a welding machine, tools, and junk and just

everything.”     Typically, five-gallon buckets full of tools sat in

the trailer, along with toolboxes, but “those buckets were all

empty, or almost empty, and thrown around inside of the trailer.”

Two toolboxes that sat in the middle of the driveway had not been

in that location the previous week.    One toolbox sat open, the

other latched, and leather gloves sat next to the toolboxes.        Adams

also took various photographs of the scene.

     {¶12} After Adams returned to her car, another officer asked

her to meet him at the Sheriff’s Office.    Adams stated that she did

not give appellant or Wooten permission to be on the property, and
                                                                           7
MEIGS,   21CA2

she had not seen them before that day.

     {¶13} Sergeant Stewart testified that he observed two men

through the trees near the buildings and appellant stood “in the

doorway” of one structure.    Adams told Stewart that she visited the

property to pick raspberries when she observed the strange vehicle

and heard the men.    Adams also told Stewart that she heard “metal *

… that sounded like tools.”    At the point when Adams showed

Stewart the best way to cross the creek, the two men walked down

the hill.   Stewart recognized appellant, but not Wooten.      When

Stewart asked what they were doing, Wooten said he had Shamblin’s

permission to be on the property, but appellant said nothing.

Stewart then informed the men that both Shamblin and Adams own the

property and asked Wooten if he had Shamblin’s phone number.          He

replied he did not.    After Adams gave Shamblin’s number to Stewart

and dispatch called Shamblin, Shamblin stated that he gave no one

permission to be on his property.    Once Stewart confirmed that

neither man had permission to be on the property, he asked Adams to

determine if anything was missing.

     {¶14} At the close of the state’s evidence, defense counsel

made a Crim.R. 29 motion for judgment of acquittal.    After

consideration, the trial court denied the motion.

     {¶15} Appellant testified that he “dealt with automobiles and
                                                                      8
MEIGS,   21CA2

worked in junk yards pretty much all my life.”   Appellant knows

Wooten, is “somewhat” familiar with Gary Shamblin, “hauled a few

cars for him a few years ago,” cut brush and performed other odd

jobs for him.

     {¶16} Appellant stated that on June 24, 2020 he stopped at

Wooten’s to “pick up an old mower and to see if he had gotten ahold

of Gary and he said he hadn’t found his number yet, but we could go

down and look ….”   Appellant and Wooten had talked “about

trying to get ahold of [Shamblin] and buying some more cars.”

Wooten drove to the property so appellant “could look at the

automobiles to see what was left of them.”   Appellant explained he

went to the property

     [t]o just see what was left of the automobiles that was
     sitting there since I had last been there, because there
     had been a lot of them that you could tell from the road,
     before it growed up, that you could see people had been
     there, things had been stripped off them because I wanted
     to see what was there so I knew what kind of price to tell
     [Wooten] what’s all for Gary.

     {¶17} Appellant testified he “walked around and looked at the

vehicles,” stuck his head in the door of an old motor home, then

crossed the creek to look at an Oldsmobile, a Chevy Blazer, and a

Cadillac to see if the cars had radios or catalytic converters.

Appellant said he and Wooten did not try to be sneaky or quiet.

     {¶18} Appellant also described the “cellar house” as a
                                                                         9
MEIGS,   21CA2

sandstone cellar “pushed under the ground with like a one room

building built on top of it and, uh, if you’d seen it, you’d

understand, ain’t no way I was crazy to go in it.”      Appellant said

he did not go into the cellar house, and that, “I wasn’t there

interested in anything other than junk cars.     That’s the only thing

there that basically could make any money off of.”      Appellant

testified he did not touch any tools, move any tools, enter the

trailer, and that the box truck stood “wide open.”      Appellant

explained he found one toolbox “sitting there in the driveway,

which was not far from the back of the box truck … sitting

there when we got there.”     Appellant said he did not touch it -

“I’ve got my own tools.     I own a two car garage.   I wasn’t there

for tools.”      Appellant also said when he looked at a truck “at the

far end of the trailer,” he heard the deputy and observed Adams.

Appellant explained he did not run because he “had no reason to,”

and “[j]ust walked on over to him.”

    {¶19} When asked if he had permission to be on the property,

appellant replied, “[t]he best that I knew, I was.      You know,

because we talked about the cars and … him and Gary had hung

out a lot … all the years I’ve known him. … I wasn’t there

to steal nothing.”     Later during the trial, when again asked the

same question, appellant replied, “Uh, no I wasn’t the one that got
                                                                      10
MEIGS,   21CA2

Gary Shamblin’s … not since I worked with him.”    When asked if

he knew that Shamblin hated him, appellant replied, “Uh, no. That

was my son that he hated.”     Also, appellant said he did not meet

Adams until the date of the incident, that he knew Gary Shamblin

would not be at the property that day, and that he did not stand

“in the doorway of nothing.”

     {¶20} After hearing the evidence and counsels’ arguments, the

jury returned a guilty verdict.     The trial court: (1) sentenced

appellant to serve five years community control (with reserved

underlying sentence of twelve months), (2) ordered appellant to pay

$50 supervision fee per month while on community control, (3)

ordered appellant to have no contact with the victims or the

property, and (4) ordered appellant to pay costs of prosecution.

This appeal followed.

                                   I.

     {¶21} In his first assignment of error, appellant asserts that

insufficient evidence supports his conviction for breaking and

entering, contrary to the Fifth and Fourteenth Amendments to the

United States Constitution and Article I, Section 16, of the Ohio

Constitution.

     {¶22} In general, a claim of insufficient evidence invokes a

due process concern and raises the question of whether the evidence
                                                                      11
MEIGS,   21CA2

is legally sufficient to support the verdict as a matter of law.

State v. Schroeder, 

, 

, ¶ 59 (4th Dist.),

citing State v. Blanton, 

, 

 (4th

Dist.); State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-

2756, ¶ 22; State v. Benge, 4th Dist. Adams No. 20CA1112, 2021-

Ohio-152, ¶ 25; State v. Thompkins, 

, 

 (1997).      When reviewing the evidence's sufficiency, the

adequacy of the evidence is the focus; that is, whether the

evidence, if believed, reasonably could support a finding of guilt

beyond a reasonable doubt.      Thompkins, syllabus.   An appellate

court’s standard of review is whether, after viewing the probative

evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact could

have found all the essential elements of the offense beyond a

reasonable doubt.      Jackson v. Virginia, 

, 

, 

 (1979); State v. Jenks, 

, 

 (1991); State v. Tibbetts, 

, 

 (2001).

     {¶23} An assignment of error based on sufficiency of the

evidence challenges the legal adequacy of the state's prima facie

case, not its rational persuasiveness.      State v. Anderson, 4th

Dist. Highland No. 18CA14, 

, ¶ 13; Benge at ¶ 25.
                                                                    12
MEIGS,   21CA2

Therefore, when an appellate court reviews a sufficiency of the

evidence claim, the court must construe the evidence in a light

most favorable to the prosecution.   State v. Dunn, 4th Dist.

Jackson No. 15CA1, 

; Wickersham, supra, ¶ 23;

State v. Hill, 

, 

 (1996);

Benge, supra, at ¶ 26. “In deciding if the evidence was sufficient,

we neither resolve evidentiary conflicts nor assess the credibility

of witnesses, as both are functions reserved for the trier of

fact.”   State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-

120571, 

, citing State v. Williams, 

, 

, 

 (1st Dist.); State

v. Bennett, 

, 

, ¶ 46 (3d Dist.).

     {¶24} Furthermore, in reviewing sufficiency of the evidence

claims, courts must remain mindful that the elements of an offense

may be established by direct evidence, circumstantial evidence, or

both. See State v. Durr (1991), 

, 

.

Circumstantial and direct evidence are of equal evidentiary value.

See Jenks, 

 ("Circumstantial evidence and

direct evidence inherently possess the same probative value [and]

in some instances certain facts can only be established by

circumstantial evidence.").   When reviewing the value of

circumstantial evidence, "the weight accorded an inference is fact-
                                                                     13
MEIGS,   21CA2

dependent and can be disregarded as speculative only if reasonable

minds can come to the conclusion that the inference is not

supported by the evidence."    Wesley v. The McAlpin Co. (May 25,

1994) Hamilton App. No. C-930286.

    {¶25} In the case sub judice, appellant first contends that,

although the evidence adduced at trial reveals two men present on

the property on June 24, 2020, appellee charged appellant as a

principal offender and did not request a R.C. 2913.01(K)(4)

complicity jury instruction.   Appellant thus argues that the state

failed to prove, beyond a reasonable doubt, that appellant was a

principal offender.

    {¶26} Appellee, however, asserts that the evidence adduced at

trial did not warrant a complicity instruction because the facts

revealed that appellant did, in fact, act as the principal

offender.   The state also argues that because appellant failed to

renew his motion for judgment of acquittal at the close of

appellant’s case, he waived any error in the denial of that motion

and the sufficiency of the evidence determination.    Appellee points

to State v. Burton, 4th Dist. Ross No. 06CA2892, 

when “[t]his court has previously held that a defendant who is

tried before a jury and brings a Crim.R. 29(A) motion for acquittal

at the close of the state’s case waives any error in the denial of
                                                                      14
MEIGS,   21CA2

the motion if the defendant puts on a defense and fails to renew

the motion for acquittal at the close of all the evidence.”       Id. at

¶ 31, citing State v. Swain, 4th Dist. Ross No. 01CA2591, 

 (Jan. 23, 2002), citing State v. Miley, 

,

 (4th Dist.1996).

     {¶27} Appellant acknowledges Burton, but contends that State v.

Shadoan, 4th Dist. Adams No. 03CA764, 

 held that a

failure to renew a Crim.R. 29(A) motion at the close of all of the

evidence does not waive the right on appeal to challenge the

sufficiency of the evidence.

     {¶28} Generally, courts have held over the years that a

defendant who brings a Crim.R. 29(A) motion for judgment of

acquittal at the close of the state's case waives any error in the

denial of the motion if the defendant puts on a defense and fails

to renew the motion at the close of all the evidence.    Swain,

supra, at *6; 

    See, also, State v. Roe, 

, 

 (1989); State v. Hicks, 4th Dist. Ross No.

2292, 

 (Dec. 29, 1997).   However, in State v. Coe,

, 

, at ¶ 19 we wrote:

     We initially note that appellant failed to move for a
     Crim.R. 29(A) judgment of acquittal.    In the past, this
     court and numerous other Ohio appellate courts, relying
     primarily upon State v. Roe (1989), 

,
     

 and Dayton v. Rogers (1979), 

, 

, have held that if a criminal
[Cite as State v. King, 

.]

        defendant fails to timely file a Crim.R. 29 motion for
        acquittal, the defendant waives any error, absent plain
        error, as to sufficiency of the evidence.           In two
        apparently little-recognized cases, however, the Ohio
        Supreme Court stated that a failure to timely file a
        Crim.R. 29(A) motion during a jury trial does not waive an
        argument on appeal concerning the sufficiency of the
        evidence. See State v. Jones (2001), 

, 

; State v. Carter (1992) 

, 

. In both Jones and Carter, the
        Ohio Supreme Court stated that the defendant's "not guilty"
        plea preserves his right to object to the alleged
        insufficiency of the evidence. 

 Moreover, because "`a
        conviction   based   on   legally   insufficient   evidence
        constitutes a denial of due process,'" State v. Thompkins
        (1997), 

, a conviction based upon
        insufficient evidence would almost always amount to plain
        error. See State v. Hermann, Erie App. No. E-01-039, 2002-
        Ohio-7307, ¶ 24; State v. Casto, Washington App. No.
        01CA25, 

; State v. Arrowood (Sept. 27, 1993),
        Pike App. No. 93CA05, at 6.

Thus, in the case sub judice, although appellant failed to request

acquittal under Crim.R. 29 at the close of the evidence, appellant

did not waive his sufficiency of the evidence challenge on appeal.

Consequently, we will consider his argument that insufficient

evidence supports his conviction.

        {¶29} In the case at bar, the jury found appellant guilty of

breaking and entering in violation of R.C. 2911.13(A): “No person

by force, stealth, or deception, shall trespass in an unoccupied

structure, with purpose to commit therein any theft offense, as

defined in 2913.01 of the Revised Code, or any felony.”      Appellant

challenges whether the state presented sufficient evidence to

establish that appellant trespassed by force, stealth, or
[Cite as State v. King, 

.]

deception.          For the trespass element of the offense, the state

needs to prove “the insertion of any part of defendant's body” into

the structure.             State v. Cuthbertson, 1st Dist. Hamilton No. C–

75362, 

 (June 1, 1976), *5, quoting State v. Harris,

, 

 (10th Dist.1943).

        {¶30} “Force” is defined as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person

or thing.”          R.C. 2901.01(A)(1).     “[A]ny effort physically exerted”

satisfies the element of force.             State v. Johnson, 2d Dist.

Montgomery No. 26961, 

, quoting State v.

Snyder, 

, 

, 

(9th Dist.); State v. Bertram, 4th Dist. Scioto No. 21CA3950, 2022-

Ohio-2488, ¶ 25. Opening a closed, but unlocked, door or window is

sufficient to meet this requirement.             E.g., State v. Ball, 2d Dist.

Clark No. 2017-CA-54, 

 (defendant's opening of

closed but unlocked window sufficient to establish entry by force);

State v. Cantrell, 2d Dist. Montgomery No. 26975, 

 (testimony that defendant opened screen door to walk through

victim’s open inner apartment door sufficient to prove force).

        “Deception” is defined as

        knowingly deceiving another or causing another to be
        deceived by any false or misleading representation, by
        withholding information, by preventing another from
        acquiring information, or by any other conduct, act, or
        omission that creates, confirms, or perpetuates a false
[Cite as State v. King, 

.]

        impression in another, including a false impression as to
        law, value, state of mind, or other objective or subjective
        fact.

        R.C. 2913.01(A).

        {¶31} Although the Ohio Revised Code does not define the word

“stealth,” courts have defined the term as “‘any secret, sly or

clandestine act to avoid discovery and to gain entrance into or to

remain within a residence of another without permission.’”               State

v. Ward, 

, 

 (3d Dist.1993),

quoting State v. Lane, 

, 

 (10th

Dist.1976); Bertram, supra, at ¶ 26.               Evidence that a defendant

entered through a back entry, secluded from view, can be sufficient

to establish the element of stealth.               See State v. Pacific, 2d

Dist. Montgomery No. 28804, 

, citing State v. Reeves,

2d Dist. Montgomery No. 16987, 

 (Mar. 12, 1999) at

*6, citing State v. Wohlfeil, 8th Dist. Cuyahoga No. 51983, 

 (Apr. 2, 1987); State v. Johnson, 2d Dist. Montgomery No.

26961, 

.               Moreover, the fact that an incident

occurs in broad daylight does not necessarily preclude evidence of

stealth.         See, e.g., Johnson at ¶ 20; In re Markunes, 2d Dist.

Montgomery Nos. 15601 & 15617, 

 (Sept. 20, 1996)

(evidence of stealth exists when sufficient evidence that

defendant's conduct could be construed as looking to see if “coast

was clear” before entering open garage in broad daylight).               In
[Cite as State v. King, 

.]

State v. McLeod, 5th Dist. Licking No. 14CA53, 

, the

Fifth District considered the definition of “stealth” and held:

        This Court and other appellate courts of this state have
        used a definition that includes “remaining” on the premises
        as opposed to merely “entering” the premises. See State
        v. Stone, 5th Dist. No.1999 AP 030012, 

        (Nov. 10, 1999); State v. Davis, 1st Dist. No. C–010477,
        2002–Ohio–1982; State v. Patton, 2d Dist. No.2011 CA 94,
        2013–Ohio–961 ¶ 14; In re Predmore, 3d Dist. Nos. 8–09–03,
        8–09–04, 8–09–05, 2010–Ohio–1626, ¶ 44; In re Carter, 4th
        Dist. Nos. 04CA15, 04CA16, 2004–Ohio–7285, ¶ 24; State v.
        DeBoe, 6th Dist. No. H–02–057, 2004–Ohio–403, ¶ 66; In re
        J.M., 7th Dist. No. 12 JE 3, 2012–Ohio–5283, ¶ 15; State
        v. Isom, 8th Dist. No 78959, 

, *4 (Nov. 29,
        2001); State v. Trikilis, 9th Dist. Nos. 04CA0096–M,
        04CA0097–M, 2005–Ohio–4266, ¶ 31; State v. Lane, 

, 

 (10th Dist.1976); State v.
        Sims, 11th Dist. No.2001–L–081, 2003–Ohio–324, ¶ 58; State
        v. Lamberson, 12th Dist. No. CA2000–04–012, 

,
        (Mar. 19, 2001).

Id. at ¶ 54.

        {¶32} In the case sub judice, both property owners testified

that appellant did not have permission to be on their property and

did not have permission to enter the trailer or cellar house, both

unoccupied structures.                     Further, property owner Deborah Adams

testified that she visited the property the previous week and found

the cellar house door closed, as it always was.                    However, on the

date in question, Adams found the cellar door open and items in the

trailer had “been dug through.”                     Adams also testified about a

telescope on the porch that “wasn’t on the porch before.                    You can

see that it is clean and whatever and everything else there that
[Cite as State v. King, 

.]

has been outside is filthy.”                  Adams also observed buckets of tools

out of place from her previous visit and that the tools appeared to

have been “gathered.”                  Adams also testified about a toolbox

“already packed up and ready to go at the top of the driveway.”

When Adams opened the toolbox, she noticed dry tools and a pile of

dry, clean leather gloves “because … they [were] … just

freshly dumped out.”



        {¶33} Sergeant Stewart testified that he observed appellant in

the cellar house doorway.                  Although appellant insisted that he

visited the property merely to look at junk cars, appellant

acknowledged he did not believe Shamblin would be at the property.

Also, Shamblin testified that he once told appellant, “if I ever

catch him on my property again, I’d blow his head off.”

        {¶34} After our review, and in light of the evidence adduced at

trial, it is difficult to conceive that the property owners would

have welcomed appellant on their property for any reason.                     Further,

multiple witnesses testified that the bridge no longer spanned the

creek and most of the vehicles appellant claimed he wanted to

inspect sat on the other side of the creek.                 The evidence also

reveals that items of personal property had been examined and

repositioned, apparently in preparation for removal.
[Cite as State v. King, 

.]

        {¶35} Therefore, after our review of the record in the case sub

judice, we conclude that the state presented sufficient evidence

that appellant trespassed on the victims’ property by stealth.

Here, the direct and circumstantial evidence adduced at trial, if

believed by the trier of fact, established that appellant did

trespass by stealth in an unoccupied structure with the purpose to

commit a theft offense.                    We again emphasize that a trier of fact

may choose to believe all, part, or none of the testimony of any

witness who appears before it and, obviously, in the case at bar,

the jury found the state’s witnesses and the state’s version of the

facts more credible than the appellant’s version of the facts.

        {¶36} Accordingly, based upon the foregoing reasons we overrule

appellant’s first assignment of error.

                                                  II.

        {¶37} In his second assignment of error, appellant asserts his

breaking and entering conviction is against the manifest weight of

the evidence, contrary to the Fifth and Fourteenth Amendments to

the United States Constitution, and Article I, Section 16, of the

Ohio Constitution.

        {¶38} In determining whether a criminal conviction is against

the manifest weight of the evidence, an appellate court must review

the entire record, weigh the evidence and all reasonable
[Cite as State v. King, 

.]

inferences, consider the credibility of witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of

justice that reversal of the conviction is necessary.                Thompkins,

; State v. Hunter, 

, 2011-

Ohio-6524, 

, ¶ 119; State v. Smith, 

,

 (4th Dist.).                To satisfy this test, the state

must introduce substantial evidence on all the elements of an

offense so the jury can find guilt beyond a reasonable doubt.

State v. Setty, 4th Dist. Adams No. 20CA1106, 

,

State v. Adams, 

, 

, ¶ 22 (4th Dist.).

        {¶39} Generally, the weight to be given evidence and the

credibility to be afforded testimony are issues to be determined by

the trier of fact.                State v. Hoskins, 4th Dist. Adams No. 19CA1093,

, citing State v. Frazier, 

, 

, citing State v. Grant, 

, 

.                 “We defer to the trier of fact on these

evidentiary weight and credibility issues because it is in the best

position to gauge the witnesses' demeanor, gestures, and voice

inflections, and to use these observations to weigh their

credibility.”             

 citing State v. Reyes-Rosales, 4th Dist. Adams

No. 15CA1010, 

; State v. Wells, 4th Dist.

Lawrence No. 18CA23, 

; State v. Smallwood,
[Cite as State v. King, 

.]

4th Dist. Highland No. 20CA1, 

.

        {¶40} Thus, an appellate court may not reverse a conviction

“when there is substantial evidence upon which the trial court

could reasonably conclude that all elements of the offense have

been proven beyond a reasonable doubt.”     State v. Barnes, 4th Dist.

Ross No. 19CA3687, 

, citing State v. Johnson,

, 

 (1991); citing State v.

Eskridge, 

, 

, paragraph two of the

syllabus (1988).

        {¶41} In the case sub judice, the jury found appellant guilty

of breaking and entering pursuant to R.C. 2911.13(A).     Although

appellant argued that he had permission to be on the victims’

property, both victims testified that appellant did not, in fact,

have permission to enter their property.     Moreover (1) Sergeant

Stewart testified he observed appellant standing in the cellar

house doorway, and (2) Deborah Adams testified she noticed the

cellar house door open that particular day when she had not seen it

open since she lived at the property in 1999.     Also, Adams

testified that items of personal property had been moved apparently

for the purpose of removal from the premises.

        {¶42} “ ‘A jury, sitting as the trier of fact, is free to

believe all, part or none of the testimony of any witness who
[Cite as State v. King, 

.]

appears before it.’ ”                  

, quoting State

v. West, 4th Dist. Scioto No. 12CA3507, 

.                    “ ‘

“A verdict is not against the manifest weight of the evidence

because the [jury] chose to believe the State's witnesses rather

than the defendant's version of the events.” ’ ”                 State v. Missler,

3d Dist. Hardin No. 6-14-06, 

, ¶ 44, quoting State v.

Bean, 9th Dist. Summit No. 26852, 

, quoting

State v. Martinez, 9th Dist. Wayne No. 12CA0054, 

.     Thus, courts should defer to the trier of fact on evidentiary

weight and witness credibility issues.                  State v. Koon, 4th Dist.

Hocking No. 15CA17, 

; State v. Hess, 4th Dist.

Meigs No. 20CA1, 

.

        {¶43} Once again, in the case at bar the jury found the

testimony of Shamblin, Adams and Sergeant Stewart more credible

than appellant’s testimony.                 Consequently, substantial evidence

exists upon which this jury could have reasonably concluded that

all elements of the offense have been proven beyond a reasonable

doubt.       The jury did not lose its way and create a manifest

injustice.

        {¶44} Accordingly, based upon the foregoing reasons we overrule

appellant's second assignment of error.

                                               III.
[Cite as State v. King, 

.]

        {¶45} In his third assignment of error, appellant asserts that

his trial counsel was ineffective, and, thus, appellant suffered a

deprivation of his right to effective assistance of counsel,

pursuant to the Sixth and Fourteenth Amendments to the United

States Constitution and Article I, Section 10, of the Ohio

Constitution.             In particular, appellant contends that his counsel’s

failure to renew the Crim.R. 29(A) motion for judgment of acquittal

constitutes deficient performance.

        {¶46} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provides that

defendants in all criminal proceedings shall have the assistance of

counsel for their defense.                 To establish constitutionally

ineffective assistance of counsel, a defendant must show that (1)

counsel's performance was deficient, and (2) the deficient

performance prejudiced the defense and deprived the defendant of a

fair trial.           Strickland v. Washington, 

, 

, 

 (1984).                 To establish deficient performance, a

defendant must prove that counsel's performance fell below an

objective level of reasonable representation.                 State v. Conway, 

, 

, 

.

Additionally, a court need not analyze both Strickland test prongs

if it can resolve the claim under one prong.                 See State v.
[Cite as State v. King, 

.]

Madrigal, 

, 389, 

 (2000); State v.

Bowling, 4th Dist. Jackson No. 19CA2, 

, ¶ 12-13.

        {¶47} When a court examines whether counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.”                  

, 

.                  Moreover, because a properly licensed

attorney is presumed to execute all duties ethically and

competently, State v. Taylor, 4th Dist. Washington No. 07CA11,

, to establish ineffectiveness, a defendant must

demonstrate that counsel's errors were “so serious” that counsel

failed to function “as the ‘counsel’ guaranteed … by the Sixth

Amendment.”           

, 

.

        {¶48} In the case sub judice, appellant argues that he

established the first Strickland prong because, to the extent that

Burton governs the case sub judice, appellant’s counsel’s failure

to renew the motion for judgment of acquittal constituted deficient

performance.            Furthermore, appellant contends that, if he cannot

challenge the sufficiency of the evidence on appeal, he has

suffered prejudice, the second Strickland prong.

        {¶49} In the case at bar we have determined that sufficient

evidence supports appellant's conviction and his conviction is not
[Cite as State v. King, 

.]

against the manifest weight of the evidence.            Thus, we do not

believe that appellant's trial counsel rendered ineffective

assistance by failing to renew the motion for judgment of acquittal

at the close of all the evidence.             Had counsel renewed the motion,

we believe the trial court would have overruled the motion because

the evidence adduced at trial proved more than sufficient to

sustain appellant's conviction.             See, 

 2007-Ohio-

2320, at ¶ 37.             Moreover, appellant did not have the ability to

challenge on appealt evidence sufficiency.             Thus, we conclude that

appellant was not deprived of his right to effective assistance of

counsel pursuant to the Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 10, of the Ohio

Constitution.

        {¶50} Accordingly, based upon the foregoing reasons we overrule

appellant’s final assignment of error and affirm the trial court’s

judgment.

                                                   JUDGMENT AFFIRMED.
MEIGS,   21CA2


                                                                    27
                          JUDGMENT ENTRY

     It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.

    The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court
directing the Meigs County Common Pleas Court to carry this
judgment into execution.

     If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.

     A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

    Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

                                   For the Court




    BY:_____________________________
                                       Peter B. Abele, Judge

                         NOTICE TO COUNSEL
     Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.