[Cite as State v. Acord,
2023-Ohio-2126.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vsCase No. 2022 CA 00110
DANIEL J. ACORD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2022 CR 00474
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 26, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JENNY WELLS BRIAN A. SMITH
PROSECUTING ATTORNEY BRIAN A. SMITH LAW FIRM LLC
KENNETH W. OSWALT 123 South Miller Road
ASSISTANT PROSECUTOR Suite 250
20 South Second Street, 4th Floor Akron, Ohio 44333
Newark, Ohio 43055
Licking County, Case No. 2022 CA 00110 2
Wise, J.
{¶1} Defendant-Appellant Daniel J. Acord appeals his conviction on one count
of burglary entered in the Licking County Court of Common Pleas following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} For purposes of this appeal, the relevant facts and procedural history are
as follows:
{¶4} On July 19, 2022, at approximately 5:25 A.M., Stacy Shannon was
awakened by what she called "a tickle on my leg, I guess, and someone was covering
me up with a blanket." (T. at 93). Shannon described the individual covering her, whom
she later identified as Appellant Daniel J. Acord, as wearing only "[b]oxer shorts," and that
he did not have a shirt on. (T. at 93-94). Shannon testified that she told Appellant to "get
the heck out, and if he didn't hurry up and go, I was calling the police." (T. at 95). Shannon
testified that she repeatedly told Appellant to "get out." (T. at 95-96).
{¶5} Shannon testified that she did not have a land line and that she kept her cell
phone in her purse, but that when she looked for it, it was not there. (T. at 96-97). She
then began beating on her wall, alerting her neighbor Mark Cotter. (T. at 97-98). Cotter
testified that he came to Shannon's residence, heard her screaming "[g]et out; get out;
get out," and "pulled the door open and pulled the guy out of there." (T. at 116). Cotter
testified that when he pulled Appellant out of the apartment, Appellant "hit me with his-he
had one of those vape-bigger vape containers." (T. at 117). Cotter then called 911 using
his phone. (T. at 117-118). Shannon testified that Appellant "took off' after hitting Cotter.
Licking, Case No. 2022 CA 00110 3
(T. at 98). Shannon claimed that Appellant took her cell phone, "[a] pack and a half' of
cigarettes, and $160.00 in cash from her apartment. (T. at 111).
{¶6} Shannon testified that she saw Appellant again later that day near the steps
leading to her apartment. (T. at 104). She testified that she began screaming at him, "Get
the heck out; get out; get out," after which Appellant "stood there for a minute, looked at
me, and he finally turned around and walked out." (T. at 104-105).
{¶7} On July 28, 2022, Appellant Daniel J. Acord was indicted on one count of
Burglary, in violation of R.C. §2911.12(A)(1), a second-degree felony.
{¶8} Appellant was arraigned and pleaded not guilty.
{¶9} On August 18, 2022, Appellant, through counsel, filed a Motion for
Psychiatric Evaluation to Determine Defendant's Competency to Stand Trial.
{¶10} On August 22, 2022, the trial court ordered a psychiatric evaluation be
conducted.
{¶11} On November 2, 2022, based upon the psychiatric evaluation report, the
trial court found that Appellant was capable of understanding the nature and objective of
the proceedings and of assisting in his defense, and found him competent to stand trial.
{¶12} On November 15, 2022, the case proceeded to a jury trial.
{¶13} On November 15, 2022, the jury found Appellant guilty on the sole count
contained in the Indictment.
{¶14} On November 16, 2022, the trial court sentenced Appellant to 6 to 9 years
in prison.
{¶15} Appellant now appeals, raising the following assignments of error:
Licking, Case No. 2022 CA 00110 4
ASSIGNMENTS OF ERROR
{¶16} “I. APPELLANT'S CONVICTION FOR BURGLARY WAS NOT
SUPPORTED BY SUFFICIENT EVIDENCE.
{¶17} “II. APPELLANT'S CONVICTION FOR BURGLARY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶18} “III. R.C. 2967.171, ALSO KNOWN AS THE "REAGAN TOKES ACT,"
WHICH ALLOWS THE OHIO DEPARTMENT OF REHABILITATION AND
CORRECTION TO UNILATERALLY EXTEND APPELLANT'S SENTENCE, IS
UNCONSTITUTIONAL UNDER BOTH THE UNITED STATES CONSTITUTION, ARTS.
I, II, AND III, AND AMENDS. V, VI AND XIV, AND THE OHIO CONSTITUTION, ART. I,
§ 10, AND ART. IV, §§ 1 AND 3(B)(2).”
I., II.
{¶19} In his first and second Assignments of Error, Appellant argues his conviction
is against the manifest weight and sufficiency of the evidence. We disagree.
{¶20} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52,
678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d
259,
574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held, “An appellate court's function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
Licking, Case No. 2022 CA 00110 5
evidence in a 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.”
{¶21} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶22} Appellant herein was convicted of Burglary, in violation of R.C.
§2911.12(A)(1), which provides, in relevant part:
(A) No person, by force, stealth, or deception, shall do any of the
following:
(1) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when another person
other than an accomplice of the offender is present, with purpose to commit
in the structure or in the separately secured or separately occupied portion
of the structure any criminal offense[.]
{¶23} Appellant herein argues that there was insufficient evidence to show that he
entered Shannon’s apartment with purpose to commit a criminal offense. Appellant claims
Licking, Case No. 2022 CA 00110 6
that the State’s arguments that he committed a theft offense and/or an assault during the
trespass into Shannon’s apartment were both insufficient.
{¶24} “A person acts purposely when it is the person's specific intention to cause
a certain result, or, when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, it is the offender's
specific intention to engage in conduct of that nature.” R.C. §2901.22(A).
{¶25} In the average case, “[t]o establish the ‘any criminal offense’ prong of the
burglary statute, the State is required to show that the defendant ‘invaded the dwelling for
the purpose of committing a crime or that he formed that intent during the trespass.’ ”
State v. Hudson, 2d Dist. Montgomery No. 27561, 2018-Ohio-423, ¶ 22, quoting State v.
Gardner,
118 Ohio St.3d 420,
2008-Ohio-2787, ¶ 33, citing State v. Fontes,
87 Ohio St.3d
527 (2000), syllabus.
{¶26} “ ‘The purpose with which a person does an act is determined from the
manner in which it is done, the means or weapon used, and all the other facts and
circumstances in evidence.’ ” Hudson at ¶ 22, quoting State v. Johnson, 11th Dist. Lake
No. 2006-L-259, 2007-Ohio-5783, ¶ 40.
{¶27} Upon review of the record, we find that the State presented testimony from
the victim that Appellant entered her apartment, while she was sleeping, and that
afterward her cell phone, $160 in cash and her cigarettes were missing. This testimony,
if believed by the jury, was sufficient to support the State’s theory that Appellant
committed a theft offense while trespassing in the victim’s apartment.
{¶28} “[O]n review for evidentiary sufficiency we do not second-guess the jury's
credibility determinations; rather, we ask whether, ‘if believed, [the evidence] would
Licking, Case No. 2022 CA 00110 7
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. 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.
{¶29} When viewed in a light most favorable to the State, we find this evidence
sufficient from which a rational trier of fact could have found Appellant trespassed with
purpose to commit a criminal offense.
{¶30} Having found sufficient evidence to support the theft offense, we will not
address the alternate theory of an assault offense having also occurred during the
trespass.
{¶31} Appellant also argues that his conviction was against the manifest weight
of the evidence because the State failed to show that he used “force, stealth or deception”
to gain entrance to Shannon’s apartment.
{¶32} Here, the victim testified that when she went to bed that evening, the door
to her apartment was closed and locked. (T. at 93, 97, 108, 110).
{¶33} Under Ohio law, the opening of a door falls within the definition of force,
even if the door if unlocked. State v. McLeod, 5th Dist. Licking No. 14 CA 53, 2015-Ohio-
93; State v. Shirley, 9th Dist. No. 20569, 2002 WL 5177 at *2 (Jan. 2, 2002); State v.
Hibbard, 12th Dist. Nos. CA 2001–12–276, CA 2001–12,286, 2003–Ohio–707.
Additionally, to further open a door which is already partially open is considered force.
Licking, Case No. 2022 CA 00110 8
Goins v. State (1914),
90 Ohio St. 176; State v. Stump, 5th Dist. Perry County, 13-CA-
0006,
2014-Ohio-1706.
{¶34} Stealth has been defined 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, 85 Ohio App.3d 537, 540,
620 N.E.2d 168, 170 (3d Dist.
Hancock 1993).
{¶35} Again, the victim herein testified that she was asleep that night when
Appellant entered her apartment without permission. Viewed in a light most favorable to
the State, we find this evidence sufficient from which a rational trier of fact could have
found Appellant entered the room by stealth.
{¶36} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967).
The trier of fact “has the best opportunity to view the demeanor, attitude, and credibility
of each witness, something that does not translate well on the written page.” Davis v.
Flickinger,
77 Ohio St.3d 415, 418,
674 N.E.2d 1159 (1997).
{¶37} Based on the foregoing, we find the jury did not lose its way in finding Appellant
entered by force or stealth, and the judgment is not against the manifest weight of the
evidence.
{¶38} Appellant’s first and second assignments of error are overruled.
III.
{¶39} In his third assignment of error, Appellant challenges the constitutionality of
the Reagan Tokes Act, specifically R.C. §2967.271, which codified hybrid indefinite prison
terms for first- and second-degree felonies. Appellant argues that the Act violates the
Licking, Case No. 2022 CA 00110 9
separation of powers doctrine, the constitutional right to trial by jury, due process and
equal protection.
{¶40} For the reasons set forth in this Court's opinion in State v. Householder,
5th Dist. Muskingum No. CT2021-0026, 2022-Ohio-1542,
2022 WL 1439978, we find the
Reagan Tokes Act is constitutional.
{¶41} Appellant’s third assignment of error is overruled.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas,
Licking County, Ohio, is affirmed
By: Wise, P. J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/kw 0622
