[Cite as State v. Harris,
2023-Ohio-2013.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-09-024
: OPINION
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:
JOHN M. HARRIS II, :
Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case No. CRI 20225036
Andrew W. McCoy, Clinton County Prosecuting Attorney, and Robert C. Logsdon, Assistant
Prosecuting Attorney, for appellee.
The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, John M. Harris II, appeals his conviction in the Clinton County Court
of Common Pleas after a jury found him guilty of single counts of burglary, grand theft, and
theft. For the reasons outlined below, we affirm.
Facts and Procedural History
{¶ 2} On February 28, 2022, the Clinton County Grand Jury issued an indictment
Clinton CA2022-09-024
charging Harris with the three above-named offenses, two third-degree felonies and one
fifth-degree felony. The charges arose after Harris was alleged to have broken into Cindy
and Chris Warren's home located on US 68 South in Blanchester, Clinton County, Ohio on
December 9, 2020.1 Once inside, Harris was alleged to have stolen various items belonging
to the Warrens valued at over $1,000 but less than $7,500. These items included the
Warrens' riding lawnmower, garden trailer, weed eater, chain saw, various household
electronics, clothing, toys, a pocket watch, jewelry, and a .22-caliber rifle.
{¶ 3} Harris, who was at that time homeless, was also alleged to have eaten the
Warrens' food and drank the Warrens' soda pop they had purchased for their son. This
included an 8 oz. can of Sprite that was found discarded and empty just outside the
Warrens' back deck door shortly after the burglary took place. This empty can of Sprite was
later collected by Deputy Dewey Allen with the Clinton County Sherriff's Office and tested
for DNA by Kathryn Dailey, an expert DNA forensic scientist with the Ohio Bureau of
Criminal Investigation ("BCI"). The results of this DNA test returned a DNA profile located
on that empty can of Sprite that had a statistical probability of matching someone other than
Harris at over one in a trillion.
{¶ 4} On March 11, 2022, Harris appeared before the trial court for his arraignment
and entered not guilty pleas to all three charges. A few months later, on July 5, 2022, the
trial court held a pretrial hearing. During this hearing, a proposed plea agreement was
placed on record by the state. This proposed plea agreement would have required Harris
to serve just 12 months in prison and pay $1,800 in restitution to the Warrens in exchange
for Harris pleading guilty to burglarizing the Warrens' home and stealing the Warrens' .22-
caliber rifle. Harris, however, rejected the state's plea offer and instead chose to take the
1. To protect their privacy, and for purposes of readability, we have changed the victim's names to Cindy and
Chris Warren for purposes of issuing this opinion.
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matter to trial.
{¶ 5} On August 29 and 30, 2022, the trial court held a two-day jury trial on the
matter. During that trial, the jury heard testimony from a total of ten witnesses offered by
the state. This included testimony from both Cindy and Chris Warren. This also included
testimony from Deputy Allen and expert DNA forensic scientist Kathryn Dailey. Harris did
not himself testify at trial, nor did Harris offer any witnesses in his defense. The following
is a summary of the relevant testimony and evidence presented by the state at trial.
Summary of Relevant Trial Testimony and Evidence
{¶ 6} On the afternoon of December 9, 2020, Cindy returned home from work and,
upon opening the home's garage door, realized the garage was "a really, really big mess."
Cindy also noticed some items that were out of place or missing from the garage. Thinking
this odd, Cindy then went to open the garage's interior door leading into the house. The
door, however, was locked. Cindy, realizing that something was wrong, called her husband,
Chris, and asked if he had come home and, "you know, take[n] something to work." Chris
responded, no, he had not been home, had not moved anything, had not taken anything
from the garage to work that day. Upon hearing this, Cindy said to Chris, "well, we have a
problem, I can't get in the house."
{¶ 7} After speaking with her husband, Cindy then went to see if the front door was
unlocked. It was not. Cindy then noticed that the shed located in the backyard was open
and that the riding lawnmower was gone. Upon seeing this, Cindy called 9-1-1 to report
that her house had been broken into and that both her and her husband Chris' belongings
were missing. After contacting the police, Cindy then went around to the back of the house
where she realized "that the back door was cracked open, and that the back window was
broken." The Warrens' neighbor later testified that she had seen a man with some of the
same physical features as Harris driving the Warrens' lawnmower with attached garden
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trailer approximately one hour prior to Cindy returning home from work on the day of the
burglary, December 9, 2020.
{¶ 8} After receiving Cindy's call for help, deputies with the Clinton County Sheriff's
Office were dispatched to the Warrens' home for assistance. Upon their arrival, the
deputies determined that whoever had broken into Warrens' home had left and was no
longer on the property. Cindy, as well as Chris, who had since returned home from work to
be with his wife, then went inside and discovered that their house was "completely
destroyed," that the TV had been "ripped off the wall," that the house "was a mess" and "in
shambles," and that "all the Christmas stuff" had been "torn into." This was in addition to
Cindy noticing that "a bunch of items" had been taken out of their refrigerator and the pantry.
This included the Sprite they had purchased for their son.
{¶ 9} After surveying the damage inside their house, Chris then went outside to the
back deck where he found two of their vacuum cleaners, as well as "TVs, furniture, book
bags all stuffed up underneath the back of the deck" that were "just thrown up under the
deck ready to go." Cindy testified that Chris also "noticed that there was a bunch of like,
chip bags and empty pop cans and stuff." Cindy testified that this was odd because she
and Chris "don't do that" and that they "don't make messes like that." According to both
Cindy and Chris, this was because there were raccoons on the property and that, "when
you live out in the country, you get lots of critters," so it is not a good idea to "leave a mess
like that out."
{¶ 10} After surveying the damage, Chris told the sheriff's deputies on scene about
the empty soda cans located in the backyard. Chris testified that he did this because "that
wasn't something that was normal, and was off about the situation." One of those empty
soda cans was an 8 oz. can of Sprite sitting on the railing of the Warrens' back deck
approximately 20 feet away from the back deck door. This can was then collected as
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evidence by Deputy Allen. Deputy Allen testified that he did this in accordance with the
standard evidence collecting procedures employed by the Clinton County Sheriff's Office.
This required Deputy Allen to put the empty can of Sprite into a sealed manilla envelope
and, once transported to the Clinton County Sherriff's Office, log the sealed envelope into
a secure evidence locker. Deputy Allen testified he did this all while wearing rubber gloves.
{¶ 11} Once collected as evidence by Deputy Allen, the empty Sprite can was then
sent to BCI for DNA testing. This testing was conducted by expert DNA forensic scientist,
Kathryn Dailey. The DNA test results came back with a DNA profile that was a statistical
match to Harris given that the DNA profile found on the empty can of Sprite had an over
one in a trillion chance of matching anyone other than Harris. However, as Chris testified,
he did not know Harris, had never met or seen Harris, and there was no reason whatsoever
that a DNA profile matching Harris would be found on his and his wife Cindy's property on
the day of the burglary, December 9, 2020, or any other day.
{¶ 12} On December 10, 2020, the Clinton County Sheriff's Office received a report
of an active burglary that involved a man wearing a dark-colored hoodie driving a riding
lawnmower through a field with an attached garden trailer covered by a blue tarp
approximately two miles from where the Warrens' home is located. Deputy Tim Smith with
the Clinton County Sheriff's Office was dispatched to investigate this burglary. Upon his
arrival, Deputy Smith took off running through the field towards the man on the lawnmower.
Deputy Smith was able to get within 15 yards of the lawnmower before, as Deputy Smith
testified, the man "caught me out of the corner of [his] eye as I was running up to [him], and
[he] bolted." Deputy Smith testified the man then "[g]ot off the riding mower, and then ran
down a tree line away from me down over a slope and out of sight."
{¶ 13} Undeterred, Deputy Smith continued to pursue the man on foot.
Unfortunately, Deputy Smith was unable to locate the man once the man ran back into the
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woods and hid. After breaking off his search, Deputy Smith then returned to the field with
the lawnmower and removed the blue tarp from the attached garden trailer. Upon removing
the tarp, Deputy Smith testified that he discovered "a various amount of property in the
trailer that was attached to the mower including a firearm." Due to the close proximity of
the lawnmower to the Warrens' home, deputies with the Clinton County Sheriff's Office
contacted Chris to see if he could identify the lawnmower, the trailer, and the other property
located within the trailer as his. Believing the items were his, Chris went to the field where
the lawnmower was located and positively identified the lawnmower as his and Cindy's.
Chris also positively identified the trailer, bags of clothes, toys, various Christmas presents,
and .22-caliber rifle located in the trailer as items belonging to either him or Cindy.
{¶ 14} The next day, on December 11, 2020, Chris went into the surrounding woods
with his father-in-law to see if they could find any more of his and Cindy's stolen property.
Chris did this after finding "more bags of stuff" belonging to him and his wife hidden across
the street underneath a pine tree, in the bushes, and scattered through the tall weeds near
a vacant house. Upon entering the woods, Chris and his father-in-law located an old deer
blind that contained more of the items that had been stolen from the Warrens' home two
days earlier. This included a big screen TV, weed eater, chain saw, jack stands, car parts,
sleeping bags, and an unopened package of toilet paper.
{¶ 15} It was later discovered that there were trail cameras stationed next to the deer
blind that had taken photographs of a male subject with similar features to Harris entering
that blind and camping out after the Warrens' house had been burglarized. The male
subject photographed by those trail cameras was also wearing similar clothing to what
Harris had in his possession at the time of his arrest. Chris testified that all told, the property
stolen from the home had a replacement value of approximately $7,000. Harris was
subsequently arrested and, while being interrogated, acknowledged that he might know the
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whereabouts of the pocket watch that had been stolen from the Warrens' home.
The Jury's Verdict and the Trial Court's Sentence
{¶ 16} Once both parties rested, the jury was excused from the courtroom for
deliberations. Just under two hours later, the jury returned to the courtroom with a verdict
finding Harris guilty of all three offenses. The following week, on September 7, 2022, the
trial court held a sentencing hearing where it sentenced Harris to a 30-month prison term,
less 181 days of jail-time credit. The trial court also ordered Harris to pay court costs, as
well as $1,800 in restitution to the Warrens. The trial court further notified Harris that he
would be subject to an optional period of up to three years postrelease control upon his
release from prison. Shortly after this hearing concluded, the trial court issued a judgment
entry of sentence. As part of that entry, the trial court noted that it had "attempted on
multiple occasions to rehabilitate [Harris] locally without success." The trial court also noted
that Harris' "adult criminal history spans nearly three decades," that Harris "continues to be
a continuing menace and threat to public safety," and that Harris' "misconduct caused
significant harm both financially and emotionally to the victims."
Harris' Appeal and Two Assignments of Error
{¶ 17} Harris now appeals his conviction, raising two assignments of error for review.
In his two assignments of error, Harris argues the jury's verdicts finding him guilty of
burglary, grand theft, and theft of the Warrens' home were not supported by sufficient
evidence. Harris also argues the jury's verdicts finding him guilty of those three offenses
were against the manifest weight of the evidence. To support this claim, however, Harris
does not dispute any specific element as it relates to each of those three offenses. Harris
instead challenges jury's verdicts identifying him as the perpetrator who burglarized the
Warrens' home and stole the Warrens' property. Harris' challenge lacks merit.
Rule of Law and Standards of Review
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{¶ 18} It is well established that, "[i]n order to warrant a conviction, the evidence
presented must establish beyond a reasonable doubt the identity of the accused as the
person who actually committed the crime." State v. Harris, 12th Dist. Butler No. CA2007-
11-280, 2008-Ohio-4504, ¶ 12. This necessarily means the jury's verdict identifying the
defendant as the perpetrator must be supported by sufficient evidence. See State v.
Helvey, 12th Dist. Butler No. CA2021-01-008,
2022-Ohio-98, ¶ 19 ("[t]he state is required
to prove a perpetrator's identity beyond a reasonable doubt"), citing State v. Cook, 65 Ohio
St.3d 516, 526 (1992). This also means the jury's verdict identifying the defendant as the
perpetrator must not be against the manifest weight of the evidence. See, e.g., State v.
Raleigh, 12th Dist. Clermont Nos. CA2009-08-046 and CA2009-08-047,
2010-Ohio-2966,
¶ 44-51 (jury's verdict identifying appellant as the perpetrator of a burglary was not against
the manifest weight of the evidence where the evidence established "that appellant was the
man [who was] witnessed entering the [victim's] home, and that appellant's actions at the
[victim's] home constituted a burglary"). Under these circumstances, we apply the following
sufficiency of the evidence and manifest weight of the evidence standards of review.
{¶ 19} "A claim challenging the sufficiency of the evidence invokes a due process
concern and raises the question whether the evidence is legally sufficient to support the
jury verdict as a matter of law." State v. Clinton, 153 Ohio St.3d 422,
2017-Ohio-9423, ¶
165, citing State v. Thompkins,
78 Ohio St.3d 380, 386, (1997). To that end, "[w]hen
reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court
examines the evidence in order to determine whether such evidence, if believed, would
convince the average mind of the defendant's guilt beyond a reasonable doubt." State v.
Intihar, 12th Dist. Warren No. CA2015-05-046,
2015-Ohio-5507, ¶ 9. In so doing, "[t]he
relevant inquiry is 'whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
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proven beyond a reasonable doubt.'" State v. Roper, 12th Dist. Clermont No. CA2021-05-
019, 2022-Ohio-244, ¶ 39, quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two
of the syllabus. "This test 'requires a determination as to whether the state has met its
burden of production at trial.'" State v. Thompson, 12th Dist. Butler No. CA2022-09-080,
2023-Ohio-559, ¶ 34, quoting State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-
Ohio-5202, ¶ 34.
{¶ 20} On the other hand, "a manifest-weight-of-the-evidence standard of review
applies to the state's burden of persuasion." State v. Messenger, Slip Opinion No. 2022-
Ohio-4562, ¶ 26. That is to say, "[a] manifest weight of the evidence challenge examines
the 'inclination of the greater amount of credible evidence, offered at a trial, to support one
side of the issue rather than the other.'" State v. Dean, 12th Dist. Madison Nos. CA2021-
08-013 and CA2021-08-014, 2022-Ohio-3105, ¶ 62, quoting State v. Barnett, 12th Dist.
Butler No. CA2011-09-177,
2012-Ohio-2372, ¶ 14. When determining whether a jury's
verdict is against the manifest weight of the evidence, this court must "review the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses," and "determine whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that we must reverse the
conviction and order a new trial." State v. Wilks,
154 Ohio St.3d 359,
2018-Ohio-1562, ¶
168. Applying this standard requires this court to function as a "thirteenth juror." State v.
Martin, Slip Opinion No.
2022-Ohio-4175, ¶ 26. However, although acting as a "thirteenth
juror," this court will overturn a conviction for being against the manifest weight of the
evidence only in extraordinary circumstances where the evidence weighs heavily in favor
of acquittal. State v. Kaufhold, 12th Dist. Butler No. CA2019-09-148,
2020-Ohio-3835, ¶
10, citing State v. Blair, 12th Dist. Butler No. CA2014-01-023,
2015-Ohio-818, ¶ 43.
Harris' Arguments and Analysis
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{¶ 21} Harris argues the jury's verdict identifying him as the perpetrator of the
burglary, grand theft, and theft that took place at the Warrens' home must be reversed for
two reasons: (1) the clothing the perpetrator was seen wearing in the days following the
break-in of the Warrens' home was different than the clothing that he was wearing at the
time of his arrest; and (2) the DNA evidence linking him to the crime does not "speak to the
circumstances" under which his DNA made its way to the Warrens' home. However,
although we agree that the clothing the perpetrator was seen wearing in the days following
the break-in was different than the clothing Harris was wearing at the time of his arrest, and
while it may be true that the DNA evidence linking Harris to the break-in does not "speak to
the circumstances" under which his DNA ultimately made its way to the Warrens' home, the
evidence elicited at trial was still more than enough to support the jury's verdict identifying
Harris as the perpetrator. The jury's verdict identifying Harris as the perpetrator was also
not against the manifest weight of the evidence. This holds true despite Harris' claim that,
at least according to him, the state's theory of the case did not "make a whole lot of sense"
and was "fundamentally incongruent" to the facts presented at trial.
{¶ 22} "There is no requirement that an accused must be identified as the perpetrator
by a witness testifying in court or during a photo lineup." State v. Hibbard, 12th Dist. Butler
No. CA2022-09-086, 2023-Ohio-983, ¶ 20. "The identity of the accused as the perpetrator
of the crime may [instead] be established by direct or circumstantial evidence." State v.
Jividen, 12th Dist. Warren No. CA2020-10-067,
2021-Ohio-2720, ¶ 11. "[C]ircumstantial
evidence is sufficient to sustain a conviction if that evidence would convince the average
mind of the defendant's guilt beyond a reasonable doubt." State v. Heinish,
50 Ohio St.3d
231, 238 (1990). This may occur in circumstances "'where the inference of the happening
of the criminal act complained of is the only probable or natural explanation of the proven
facts and circumstances.'" Raleigh,
2010-Ohio-2966 at ¶ 53. For example, "the
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unexplained possession of recently stolen property presents a permissive inference that the
accused is guilty of theft or burglary." State v. Bice, 12th Dist. Clermont No. CA2008-10-
098, 2009-Ohio-4672, ¶ 31.
{¶ 23} The evidence in this case, both direct and circumstantial, establishes that
Harris left his DNA profile on an empty Sprite can located just outside the Warrens' home
either during or immediately after the break-in. The evidence also establishes that, at both
the time of the robbery and in the days after the Warrens' home was broken into, a man
similar looking to Harris was observed in possession of the Warrens' stolen property. This
includes witnesses observing a man with similar physical attributes to Harris driving the
Warrens' stolen lawnmower with an attached trailer full of the Warrens' stolen property. This
is in addition to the evidence that a man resembling Harris was observed on video returning
to an old deer blind where a significant amount of the Warrens' stolen property had been
hidden for retrieval at a later date.
{¶ 24} The jury, exercising its logic and common sense, considered this evidence
and concluded that the identity of the perpetrator who broke into the Warrens' home and
stole the Warrens' property was Harris. This was not an error. See, e.g., Helvey, 2022-
Ohio-98 at ¶ 19-21 (appellant's identity as the perpetrator of a crime was established where
DNA evidence linked appellant to the scene of the crime and where witness testimony
identified appellant as looking "very similar" to the perpetrator of the crime). To hold
otherwise on these facts would make over one in a trillion DNA evidence linking Harris to
the break-in of the Warrens' home virtually meaningless when, in reality, the exact opposite
is true. This is particularly true in this case given the uncontradicted testimony elicited from
Kathryn Dailey, an expert DNA forensic scientist, regarding the highly unlikely possibility of
cross-contamination that would have resulted in Harris' DNA profile appearing on something
that Harris had not touched. Therefore, because the jury's verdict identifying Harris as the
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perpetrator of the burglary, grand theft, and theft of the Warrens' home was supported by
sufficient evidence and was not against the manifest weight of the evidence, Harris' two
assignments of error lack merit and are overruled.
Conclusion
{¶ 25} For the reasons outlined above, and finding no merit to any of the arguments
advanced by Harris herein, Harris' appeal challenging his conviction for single counts of
burglary, grand theft, theft is denied.
{¶ 26} Judgment affirmed.
HENDRICKSON and PIPER, JJ., concur.
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