[Cite as State v. Buckner,
2024-Ohio-5256.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
CASE NO. 15-24-02
PLAINTIFF-APPELLEE,
v.
JACK K. BUCKNER, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR-23-05-059
Judgment Affirmed
Date of Decision: November 4, 2024
APPEARANCES:
Ian A. Weber for Appellant
Eva J. Yarger and Morgan A. Jackson for Appellee
Case No. 15-24-02
MILLER, J.
{¶1} Defendant-Appellant, Jack Buckner (“Buckner”), appeals from the
January 24, 2024, judgment of the Van Wert County Court of Common Pleas,
following a two-day jury trial. In addition to claiming error in the jury instructions,
Buckner challenges his aggravated burglary conviction on sufficiency and manifest-
weight-of-the-evidence grounds. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On June 1, 2023, the Van Wert County grand jury indicted Buckner on
two counts. The first was a charge of aggravated burglary in violation of R.C.
2911.11(A)(1), a first-degree felony, with the alleged underlying criminal offense
being assault. The second count was domestic violence, in violation of R.C.
2919.25(A) and (D)(4). The charge indicated Buckner had previously been
convicted of two offenses of domestic violence, making this offense a third-degree
felony.
{¶3} The matter was tried to a jury on December 18 and 19, 2023. The case
involves four brothers: Appellant Buckner; Eric Buckner (“Eric”), the victim;
Shawn Buckner (“Shawn”), who lived with Eric; and Jeff Buckner (“Jeff”),
Appellant Buckner’s twin, who accompanied him on the night at issue. For about a
year prior to the incident in question, Eric had been living at a house with Shawn,
Shawn’s wife, and Shawn’s children. According to Eric, Shawn and Shawn’s wife
had allowed him to live there because he had no other place to live at the time. Eric
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paid his portion of the rent to Shawn, who, in turn, paid rent to Buckner. Buckner
did not live in the house; he lived in a different city with his daughter and Jeff.
{¶4} In the very early morning hours of May 6, 2023, Eric was the only
person at the house. According to Eric, Buckner and Jeff parked in the alley near
the back door while he was asleep, broke the padlock hasp off the back door that
kept the door shut, entered the house, and came into his bedroom. Eric testified that
Buckner punched him, they started wrestling and fighting, Eric was knocked
unconscious temporarily, and—upon regaining consciousness—Eric fled out the
front door. Eric further testified that Buckner threw the first punch. He did not
know why Buckner had come to the house, and neither Buckner nor Jeff had
attempted to call him before showing up uninvited.
{¶5} At 2:12 a.m., after fleeing from the house, Eric called 9-1-1 and
requested assistance. Deputy Avery Jones of the Van Wert County Sheriff’s Office
(“Deputy Jones”) met with Eric, who had swelling around his left eye and lips, along
with some cuts. Another deputy on the scene took pictures of Eric’s injuries, and
those pictures were admitted into evidence during the trial. Deputy Jones testified
that the swelling around Eric’s left eye and his lips increased while he was at the
scene, indicating the recent nature of the injury. Deputy Jones explained that, based
on his investigation, a part of a metal latch on the back door had been pried back to
gain greater access to a narrow portion of the latch, which was then pinched off by
a bolt cutter or similar device—as evidenced by tool marks on the latch.
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{¶6} During the Defense’s case-in-chief, both Buckner and his brother Jeff
testified that, on the night in question, they were worried about Eric using drugs and
went to the house because they wanted to check on his well-being.1 Buckner
testified that Eric “was doing some drugs and me and [Jeff] thought better go over
there and make sure he ain’t gonna do nothing bad or be all bad for him if he didn’t.”
(Trial Tr. at 319). Buckner also testified that he had a recent altercation with his
brother Shawn about rent payments, and Buckner “was hoping my brothers and
them do the right thing and pay rent.” (Id. at 321).
{¶7} Buckner denied assaulting Eric. Both Buckner and Jeff testified that
they tried to call Eric before they entered the house on May 6, 2023. Jeff testified,
“there was a lock on the [back] door [to the house] that wasn’t there the day before
and, hell, it just pretty much just fell apart. If you ask me, you touch it and it fell
apart.” (Id. at 299). Buckner similarly testified that the latch “just fell apart.” (Id.
at 323). According to Buckner, they entered the house, and a meth pipe was sitting
on a table, which meant to him that Eric had drugs—something that Shawn’s wife
would never allow. Buckner and Jeff both testified that Eric got upset and an
altercation between Buckner and Eric ensued, where Eric shoved Buckner. While
Jeff testified that he (Jeff) “smacked” Eric (id. at 304), Buckner agreed with the
1
Deputy Jones did not locate any illegal substances in the house and testified that Eric was not showing any
signs of impairment on the night in question.
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statement: “other than Eric’s shove and [Buckner] holding on to him, the only other
contact that happened that evening was a hug between [him] and Eric.” (Id. at 329).
{¶8} At the conclusion of the trial, the jury found Buckner guilty of the
aggravated burglary count and not guilty of the domestic violence count. After the
jury verdict, Buckner moved for acquittal, pursuant to Crim.R. 29. The trial court
denied the motion. On January 24, 2024, the trial court sentenced Buckner to serve
a mandatory six to nine years in prison. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶9} Buckner raises three assignments of error for our review:
First Assignment of Error
The failure to instruct the jury on the lesser included offense of trespass
denied appellant/defendant his federal and state constitutional rights to
trial by jury and due process guaranteed by the Sixth and Fourteenth
Amendments as well as by Article I, Section 10 of the Ohio Constitution.
Second Assignment of Error
The defendant was denied federal and state due process under the Fifth
and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution when he was convicted on
evidence that was insufficient as a matter of law to sustain the conviction
for the offense of [aggravated] burglary.
Third Assignment of Error
The guilty verdict for aggravated burglary against appellant was against
the manifest weight of the evidence and contrary to law.
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III. DISCUSSION
{¶10} For ease of discussion and analysis, we elect to review Buckner’s
assignments of error out of order.
A. Second Assignment of Error
{¶11} In his second assignment of error, Buckner admits there was evidence
presented to support a conviction for trespass (Appellant’s Brief at 10-11) but argues
there was insufficient evidence that the trespass was committed by force, stealth, or
deception necessary to sustain the aggravated burglary conviction. He asserts “there
was evidence presented that the door of the residence may have been open and the
lock was not secured on the door,” and Buckner “openly and notoriously entered
the residence as he often did.” (Id. at 10).
1. Standard of Review
{¶12} Whether the evidence is legally sufficient to sustain a verdict is a
question of law. State v. Dent, 2020-Ohio-6670, ¶ 15. Thus, our review is de novo.
Id. A sufficiency challenge disputes whether a party has met its burden of
production at trial. State v. Messenger,
2022-Ohio-4562, ¶ 26. “In a sufficiency-
of-the-evidence inquiry, the question is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier
of fact to find the essential elements of the crime beyond a reasonable doubt.”
Dent
at ¶ 15, citing State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. Thus, “[i]n assessing the sufficiency of the evidence, we do not resolve
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evidentiary conflicts or assess the credibility of witnesses.” State v. Jackson, 2023-
Ohio-2193, ¶ 26 (3d Dist.); see also Jenks at 279.
2. Applicable Law
{¶13} The term “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). The aggravated burglary statute provides, in part:
(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure . . . , when another person other than an
accomplice of the offender is present, with purpose to commit in
the structure . . . any criminal offense, if any of the following
apply:
(1) The offender inflicts, or attempts or threatens to inflict
physical harm on another[.] . . .
R.C. 2911.11(A)(1). “A criminal trespass occurs when a person ‘without privilege
to do so,’ ‘[k]nowingly enter[s] or remain[s] on the land or premises of another.’”
State v. O’Neal, 87 Ohio St.3d 402, 408,
2000-Ohio-449 (2000), quoting R.C.
2911.21(A)(1). “It has long been established in Ohio that the force element of an
aggravated burglary charge can be accomplished through the opening of a closed”
door, even if the door is unlocked. State v. Howard,
2005-Ohio-5135, ¶ 9 (8th
Dist.); see also State v. Lewis,
2024-Ohio-607, ¶ 41 (6th Dist.) (“[a]ny force,
however slight, is sufficient to establish the ‘force’ element of aggravated
burglary”).
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3. Analysis
{¶14} Buckner specifically challenges the use of force to gain admittance
into the residence and insinuates there was no evidence of violence or compulsion
used. Regarding whether the trespass was “by force,” we find there was ample
supporting evidence presented at trial to establish that Buckner did not simply walk
through an open doorway or even an unlocked door. For example, Eric testified
there was a padlock on the outside of the back door to keep the door shut, and that
padlock had been there for a while. He further testified that Buckner and Jeff broke
that lock off of the door and entered the house. Additionally, Deputy Jones testified
that, based on his investigation, a part of a metal latch on that door had been pried
back to gain more access to a narrow portion of the latch, which was then pinched
off by a bolt cutter (or similar tool), as evidenced by marks on the latch. Photos of
the door and latch were admitted into evidence, along with the padlock itself still
attached to the portion of the latch that appears to have been cut. The evidence
presented at trial, when viewed in a light most favorable to the prosecution, was
more than sufficient to allow a rational trier of fact to find the “force, stealth, or
deception” element of the crime proven beyond a reasonable doubt.2
{¶15} Buckner’s second assignment of error is overruled.
2
We are also mindful the incident occurred around two o’clock in the morning under cover of darkness, thus
also tending to establish the stealthy conduct of Buckner. Howard at ¶ 9.
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B. Third Assignment of Error
{¶16} In the third assignment of error, Buckner argues the guilty verdict on
the aggravated burglary count was against the manifest weight of the evidence. He
specifically contends that the evidence did not demonstrate he (1) “entered the house
with purpose to commit a criminal offense” or (2) “inflicted physical harm, or
attempted or threatened to inflict physical harm.” (Appellant’s Brief at 12).
1. Standard of Review
{¶17} The “manifest-weight-of-the-evidence standard of review applies to
the state’s burden of persuasion.” Messenger, 2022-Ohio-4562, at ¶ 26. “[W]e
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 [trier of fact] 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,
2018-Ohio-1562, ¶ 168. Yet, “[o]nly in exceptional cases, where the
evidence ‘weighs heavily against the conviction,’ should an appellate court overturn
the trial court’s judgment.” State v. Haller,
2012-Ohio-5233, ¶ 9 (3d Dist.), quoting
State v. Hunter,
2011-Ohio-6524, ¶ 119. To reverse a judgment from a jury trial on
the weight of the evidence, all three appellate judges must concur. Ohio Const., art.
IV, § 3(B)(3).
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2. Applicable Law
{¶18} Aggravated burglary requires that a person trespass in an occupied
structure “with purpose to commit in the structure . . . any criminal offense.” R.C.
2911.11(A)(1). “‘[T]he element of purpose to commit a crime can be satisfied when
intent is formed at any point during the trespass and need not be formed prior to
entering the occupied structure.’” State v. Stevens, 2016-Ohio-446, ¶ 35 (3d Dist.),
quoting State v. Pickens,
2008-Ohio-1140, ¶ 17 (3d Dist.); see also State v. Fontes,
87 Ohio St.3d 527,
2000-Ohio-472 (2000), syllabus (“[f]or purposes of defining the
offense of aggravated burglary pursuant to R.C. 2911.11, a defendant may form the
purpose to commit a criminal offense at any point during the course of a trespass”).
“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).
{¶19} The “criminal offense” alleged in the aggravated burglary count here
was assault, in violation of R.C. 2903.13. Under the statutes relevant to this case,
an assault occurs when a person “knowingly cause[s] or attempt[s] to cause physical
harm to another.” R.C. 2903.13(A). “‘Physical harm to persons’ means any injury,
illness, or other physiological impairment, regardless of its gravity or duration.”
R.C. 2901.01(A)(3).
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{¶20} Aggravated burglary, as charged in this case, also requires proof that
the “[t]he offender inflict[ed], or attempt[ed] or threaten[ed] to inflict physical harm
on another.” R.C. 2911.11(A)(1). The same definition of “physical harm to
persons” from R.C. 2901.01(A)(3) applies. Stevens at ¶ 30.
3. Analysis
{¶21} Buckner’s challenge to the manifest weight of the evidence extends
only to the elements of whether he had the “purpose to commit a criminal offense”
and whether he “inflicted physical harm or attempted or threatened to inflict
physical harm.” Accordingly, our analysis focuses on those two elements. See
Haller, 2012-Ohio-5233, at ¶ 10 (3d Dist.).
{¶22} As shown in the factual recitation above, the parties presented
conflicting testimony at trial concerning these elements. Having reviewed the entire
record, weighed the evidence and all reasonable inferences, and considered the
credibility of witnesses, we determine that the jury did not clearly lose its way and
create a manifest miscarriage of justice in resolving conflicts in the evidence and
deciding the State had proven those elements beyond a reasonable doubt. See
Stevens, 2016-Ohio-446, at ¶ 35-36 (3d Dist.) (support for the purpose and physical
harm elements included evidence of physical assault to the victim, such as testimony
that defendant choked the victim, testimony regarding the victim’s injuries, and
photographic evidence of the victim’s injuries). Deputy Jones testified to the
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injuries he observed on Eric that were also documented in photographs shown to the
jury. Also, Eric testified his injuries were caused when Buckner hit him.
{¶23} Buckner’s third assignment of error is overruled.
C. First Assignment of Error
{¶24} In the first assignment of error, Buckner contends the trial court failed
to instruct the jury on the lesser-included offense of trespass, denying him certain
constitutional rights. He argues that “the lesser-included offense of trespass was not
only supported by the evidence, it was necessary to avoid a fundamental miscarriage
of justice.” (Appellant’s Brief at 8).
1. Standard of Review
{¶25} Buckner’s trial counsel did not request a jury instruction on trespass
as a lesser-included offense for the aggravated burglary count or object on this basis.
Therefore, our review is limited to plain error. State v. Godsey, 2024-Ohio-629, ¶
35 (3d Dist.); Crim.R. 30(A) (“[o]n appeal, a party may not assign as error the giving
or the failure to give any instructions unless the party objects before the jury retires
to consider its verdict, stating specifically the matter objected to and the grounds of
the objection”).
{¶26} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
The appellant “bears the burden of proof to demonstrate plain error on the record.”
State v. Rogers, 2015-Ohio-2459, ¶ 22. “By its very terms, the rule places three
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limitations on a reviewing court’s decision to correct an error despite the absence of
a timely objection at trial.” State v. Barnes, 94 Ohio St.3d 21, 27,
2002-Ohio-68
(2002). “First, there must be an error, i.e., a deviation from a legal rule.”
Id.
“Second the error must be plain,” meaning “an error must be an ‘obvious’ defect in
the trial proceedings.”
Id. “Third, the error must have affected ‘substantial rights,’”
meaning “that the trial court’s error must have affected the outcome of the trial.”
Id. “Even if a forfeited error satisfies these three prongs, however, Crim.R. 52(B)
does not demand that an appellate court correct it.”
Id. The Supreme Court of Ohio
has acknowledged the discretionary aspect of Crim.R. 52(B) by admonishing courts
to notice plain error with the utmost caution, under exceptional circumstances, and
only to prevent a manifest miscarriage of justice. Id.
2. Applicable Law
{¶27} “To determine whether a criminal defendant was entitled to a jury
instruction (charge) on a lesser included offense requires a two-step analysis.” State
v. Turks, 2010-Ohio-5944, ¶ 18 (3d Dist.). “First the reviewing court must
determine whether the one offense is, in fact, a lesser included offense of the other
offense.”
Id. “Second, the reviewing court must determine whether the trial court
was obligated to give a jury instruction on the lesser included offense under the
specific facts of the case.”
Id. “Even though an offense may be statutorily defined
as a lesser included offense of another, a charge on such lesser included offense is
required only where the evidence presented at trial would reasonably support both
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an acquittal on the crime charged and a conviction upon the lesser included offense.”
State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the syllabus.
3. Analysis
{¶28} The first step in the analysis is met here. It is not disputed that criminal
trespass is a lesser-included offense of aggravated burglary. See also R.C. 2911.11;
R.C. 2911.21(A)(1); State v. Johnson, 1999 WL 152850, *3 (3d Dist. Feb. 25,
1999).
{¶29} However, Buckner has not demonstrated he is entitled to plain-error
relief when analyzing the second step. Buckner’s assertion at trial that he had a
privilege to enter the home runs against his appellate admission that “the lesser-
included offense of trespass was . . . supported by the evidence.” (Appellant’s Brief
at 8). If the jury believed Buckner had a privilege to be in the residence, then there
could be no trespass either for the aggravated burglary charge or the lesser offense
of criminal trespass. As explained above, a criminal trespass occurs when a person,
“without privilege to do so,” knowingly enters or remains on the land or premises
of another. (Emphasis added.) R.C. 2911.21(A)(1). For a trial court to give a jury
instruction on the lesser-included offense of trespass, the evidence presented at trial
must reasonably support a conviction for trespass. Thomas, 40 Ohio St.3d 213 at
paragraph two of the syllabus. In fact, it is evident trial counsel was employing dual
theories: (1) that Buckner had a privilege to enter the property, thereby defeating
the trespass element, and (2) that no force was employed to gain entry. (Trial Tr. at
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132-133, 385). Therefore, Buckner’s trial counsel would have no reason to request
a lesser-included-offense instruction for trespass. E.g., Godsey, 2024-Ohio-629, at
¶ 37 (3d Dist.) (a trial court does not commit plain error in failing to provide an
unrequested jury instruction where the decision not to request the instruction could
be considered trial strategy). Trial counsel could not have argued the defense of
privilege while at the same time conceding the evidence was sufficient to support a
conviction on the lesser-included offense of trespass.
{¶30} Buckner’s first assignment of error is overruled.
IV. CONCLUSION
{¶31} For the foregoing reasons, Buckner’s assignments of error are
overruled. Having found no error prejudicial to the appellant in the particulars
assigned and argued, we affirm the judgment of the Van Wert County Court of
Common Pleas.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/jlm
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