[Cite as State v. King,
2023-Ohio-875.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
STATE OF OHIO, :
Appellee, : CASE NOS. CA2022-01-002
CA2022-01-003
:
- vs - OPINION
: 3/20/2023
MICHAEL A. KING, JR., :
Appellant. :
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
Case Nos. CRI 20-500-022 and CRI 21-500-124
Andrew T. McCoy, Clinton County Prosecuting Attorney, and Melvin Planas, Assistant
Prosecuting Attorney, for appellee.
Dennis C. Belli, for appellant.
BYRNE, J.
{¶1} Michael A. King, Jr. appeals from his convictions for burglary and failure to
appear. For the reasons discussed below, we affirm King's burglary conviction but reverse
his conviction for failure to appear.
I. Factual and Procedural Background
{¶2} In January 2020, a Clinton County grand jury indicted King on one count of
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burglary in violation of R.C. 2911.12(A)(2) and (D). The indictment arose from allegations
that on October 31, 2019, King entered the open, attached garage of a home located 4826
St. Rt. 380 in Wilmington, Ohio. From the garage, King entered the home's attic and
traversed further into the home. King then dropped down into the home's interior through
a hole in the ceiling and was shot by the homeowner. King fled and was subsequently
arrested.
{¶3} In February 2020, King appeared before the Clinton County Court of Common
Pleas for arraignment. He entered a not guilty plea and was subsequently released on a
surety and signature bond.
{¶4} King's trial was repeatedly delayed. The court issued entries indicating that
the delays were attributable to King failing to cooperate with his attorneys. Concerns over
these delays resulted in the court eventually modifying King's bond and requiring him to
post a supplemental cash/surety bond.
{¶5} In February 2021, authorities arrested King on a separate theft charge and
placed him in the Clinton County Jail. The court thereafter revoked King's bond and set a
new bond of $100,000 cash or surety and an additional $2,500 signature recognizance
bond. In early March 2021, King made bail by posting these bonds.
{¶6} On May 25, 2021, the court issued an entry that indicated that the case was
scheduled for a two-day jury trial to commence on June 2, 2021.
{¶7} On June 2, 2021, the court issued an entry noting that King had failed to
appear and was in violation of the court's order and his posted bond. The court ordered the
clerk to issue a capias for King's arrest and further ordered that King's signature and surety
bonds were forfeited.
{¶8} Subsequently, a Clinton County grand jury indicted King for recklessly failing
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to appear on June 2, 2021, as required by his recognizance, in violation of R.C. 2937.29
and 2937.99 (A) and (B).
A. The Trial for Failure to Appear
{¶9} In October 2021, the state tried King's failure to appear charge to a jury.1 The
state called two witnesses: Lieutenant Douglas Eastes of the Clinton County Sheriff's Office
and Debra Lynch, a deputy clerk of the Clinton County Clerk of Court's office.
{¶10} Lieutenant Eastes identified King as the individual charged in the burglary
case. Deputy Clerk Lynch identified the May 25, 2021 entry of the court which noted that
King's jury trial on the burglary charge was scheduled for June 2, 2021. Deputy Clerk Lynch
also identified the court's June 2, 2021 entry which indicated that "Defendant Michael King,
Jr. failed to appear in violation of court order and terms of his posted bond." The jury found
King guilty of the failure to appear charge.
B. The Burglary Trial
{¶11} In December 2021, the state tried King's burglary charge to a jury. We
summarize the trial testimony below.
1. Testimony of Keith Freeland
{¶12} Keith Freeland testified he lived at 4826 St. Rt. 380, Wilmington, Ohio ("the
home") on October 31, 2019. At 11:00 a.m. on October 31, he was inside the home when
he heard a noise in his attic that was "moving across the ceiling." He had heard racoons in
the attic previously, but this noise sounded "a little heavier" than an animal. The sound
travelled to an adjoining room. Freeland stated he saw "somebody drop down" into that
1. Initially both the burglary and failure to appear charge were to be tried together. However, one of the state's
witnesses for the burglary charge was unavailable to testify for medical reasons and so the trial court
bifurcated the burglary charge and tried it several months later.
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adjoining room. He pulled a gun that he kept by his bed and shot at the person immediately.
Freeland identified King as the person he shot.2
{¶13} After shooting King, Freeland began to speak to him and accused him of being
at the home on a prior occasion and stealing items from the home. King responded that he
had never been to the home before. Freeland asked King his name and was given a
"fictitious name." Freeland testified that King told him that he was there because he had
heard that there was marijuana being stored or grown on the property. Freeland denied
that he had marijuana on the property and denied using it.
{¶14} The state played two 9-1-1 calls in which Freeland reported the intrusion. In
the first of those calls, Freeland reported that he "just shot a guy." In the second call,
Freeland reported that the intruder had just escaped and that he "probably went out the
bathroom window." Freeland stated that at the time of the second 9-1-1 call, King made a
"mad dash" for an adjoining bathroom, knocked out a glass window, and fled the home.
{¶15} As to how King would have entered the home, Freeland testified that all the
doors to the home were locked. However, the attached garage had a door that was rotted
away. Freeland reported that there were "steps" in the garage that would provide access
to the home's attic.
2. Testimony of Detective Sergeant Robert Gates
{¶16} Detective Sergeant Robert Gates testified that he worked for the Clinton
County Sheriff's Office and investigated a home invasion at 4826 St. Rt. 380. He reported
that the area around the home was heavily wooded and is at the end of a long lane that
curves off the road. Detective Sergeant Gates located a blue flashlight in the area where
2. King's identity was established through other evidentiary means, including a DNA match from blood found
at the scene. King did not challenge proof of his identity at trial. We have omitted reference to evidence
related to establishing King's identity, except where necessary for context.
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Freeland stated he shot King. Freeland denied owning the blue flashlight.
{¶17} Detective Sergeant Gates examined and photographed the scene, including
the route he believed King took in entering the home. The state introduced these
photographs and others depicting the home. The photographs reveal an exterior door of
the home displayed a "Private Property No Trespassing" sign. Inside, the home was
extremely cluttered, consistent with "hoarding"-type behavior.
{¶18} Detective Sergeant Gates testified that there was a "walkway door"-sized
opening to the attached garage where the garage door had rotted away. Upon entering this
opening, one would have to climb over a pile of various items to get access to a workbench
in the garage. Detective Sergeant Gates found and photographed what appeared to be a
recent shoe print on that workbench.
{¶19} After climbing up on top of the workbench, one could then climb onto an
attached ladder that led to the attic. Once in the attic, there was a series of wood planks
that traversed a rafter system, providing a means of crawling across the attic on hands and
knees. These planks ran in a straight line between the room in which Freeland was
positioned when he first heard King in the attic above and the adjoining room where King
"dropped down" and was shot. There was no ceiling in the area where King dropped down.
3. Defense Case
{¶20} King called Detective Sergeant Gates to testify in his defense case. Detective
Sergeant Gates identified numerous other photographs he took at the residence, which
were subsequently admitted into evidence.3 King submitted no other evidence in his
defense case.
3. The apparent purpose for introducing all the additional photographs was to suggest that the level of debris
and garbage inside may have led King to believe that the home was not currently being resided in. The issue
of proof of habitation has not been raised on appeal.
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4. Closing Arguments
{¶21} During closing, King's defense counsel admitted that King had trespassed on
the property but argued that the evidence did not constitute burglary. Defense counsel
argued that the state had failed to submit evidence demonstrating that King used either
force, deception, or stealth to enter the residence, as he entered the residence through an
open garage. In response, the state conceded that it could not demonstrate that King used
force or deception to enter the residence but argued that it had demonstrated stealth
through circumstantial evidence.
5. Jury Questions
{¶22} During deliberations, the jury sent three questions to the court that are
relevant to this appeal. First, the jury asked, "Could the judge please explain how they
came to a burglary charge?" With the agreement of the state and defense counsel, the
court provided a response to the first question: "I cannot answer this question." Second,
the jury asked, "Is a lesser charge possible at this point?" The court responded, "there is
only one charged offense before you to resolve, burglary, a second-degree felony." Third,
the jury asked, "Can the judge explain 'burglary'?" The court answered, "the jury
instructions specifically explain the elements of the burglary charged offense, second
degree felony."
{¶23} After receiving the court's responses, the jury resumed deliberations and
subsequently returned a guilty verdict. King appeals from his convictions for burglary and
failure to appear, raising five assignments of error.
II. Law and Analysis
A. Burglary Conviction: Sufficiency and Manifest Weight of the Evidence
{¶24} King's Assignment of Error No. 1 states:
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{¶25} DEFENDANT-APPELLANT'S CONVICTION FOR BURGLARY IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENT OF THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION. ALTERNATIVELY, THE JURY'S VERDICT OF GUILTY IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶26} King argues that the state presented insufficient evidence to establish that he
acted with stealth in committing burglary. Furthermore, King argues that the jury lost its
way in finding that he acted stealthily based on its reliance on a prosecutor's improper
argument and lost it way in concluding that he was present at the home with the purpose of
committing a criminal offense. We will address the sufficiency argument first.
1. Legal Standard – Sufficiency of the Evidence
{¶27} Whether the evidence presented at trial is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,
194 Ohio App.3d 755,
2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency
of the evidence underlying a criminal conviction, an appellate court examines the evidence
to determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-
10-026,
2012-Ohio-3205, ¶ 9. Therefore, "[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 proven beyond a reasonable doubt." State v.
Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
2. Sufficiency of the Evidence Supporting Stealth
{¶28} The state charged King with burglary in violation of R.C. 2911.12(A)(2). That
statute provides, "No person, by force, stealth, or deception, shall … Trespass in an
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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 …."
{¶29} "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. Raleigh, 12th Dist. Clermont Nos. CA2009-08-046 and CA2009-08-
047, 2010-Ohio-2966, ¶ 69, citing State v. Hibbard, 12th Dist. Butler Nos. CA2001-12-276
and CA2001-12-286,
2003-Ohio-707, ¶ 30, in turn citing State v. Ward,
85 Ohio App.3d
537, 540 (3d Dist.1993). The state may demonstrate stealth through circumstantial
evidence. Raleigh at
id., citing In re C.W., 12th Dist. Butler No. CA2004-12-312, 2005-
Ohio-3905, ¶ 24-26.
{¶30} Upon review, we find that the state presented evidence that was legally
sufficient to prove that King used stealth while trespassing. The evidence presented
indicated that King entered the home through the open garage, then climbed a ladder inside
the garage, then entered the attic. King's act of entering the attic was committed during an
ongoing trespass and was an act designed to gain entrance and remain within the home
without being discovered. Simply put, the act of entering this home through the attic was
stealthy. Additionally, that King was carrying a flashlight during the daylight hours and failed
to announce his presence lends additional circumstantial evidence to the conclusion that
King was acting stealthily, i.e., he was anticipating operating in darkness and quiet to
trespass in a secret, sly, or clandestine manner.
{¶31} King cites several cases that he argues support his position that the state
submitted insufficient evidence of stealth. He primarily relies on State v. Pullen, 2d Dist.
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Greene No. 91CA33, 1992 WL 142271 (June 25, 1992). In Pullen, the defendant entered
an attached garage through an opened garage door. Id. at *2. The entry occurred in
daylight. The homeowner caught the defendant leaving through the garage door with a can
full of gas in his hand. The court of appeals found that the defendant's actions in going
through an open garage door, alone, did not establish force, stealth, or deception. Id.
Pullen is distinguishable. As discussed above, the evidence here showed that King entered
the open garage and then entered the attic to gain entrance to the home, remain in the
home, and avoid discovery.
{¶32} King also cites State v. Isom, 8th Dist. Cuyahoga No. 78959, 2001 WL
1671432 (Nov. 29, 2001); State v. Harris, 6th Dist. Lucas Nos. L-06-1402 and L-06-1403,
2008-Ohio-6168; and State v. Patton, 2d Dist. Clark No. 2011 CA 94,
2013-Ohio-961.
However, like Pullen, these cases only involved evidence of an entry into an open garage
and no additional evidence concerning the stealthy way the defendant entered the garage,
remained in the garage, or continued the trespass. Isom at *3; Harris at ¶ 96; Patton at ¶
15.
{¶33} At oral argument, King suggested that the time that stealth must be
determined for purposes of the burglary charge was the time King entered the garage. King
argued that because the court only instructed the jurors that stealth must be employed to
"gain entrance," then the jury could only find King guilty if they concluded he used stealth
in entering the open garage.4 However, there is no support for such an argument based on
4. The standard jury instruction on "stealth" tracks the language cited above from Raleigh, 2010-Ohio-2966
at ¶ 69, which defines stealth as using clandestine means to gain entrance or to "remain within" a structure of
another. Ohio Jury Instructions, CR Section 511.12 (Rev. Dec. 8, 2012). For reasons that are not clear, the
trial court apparently provided the jurors with an older, more limited definition of stealth. The court informed
jurors that "stealth means any secret or sly act to gain entrance." Regardless, we have concluded that the
state presented sufficient evidence to establish even this more limited definition as the evidence demonstrated
that King used stealth to gain entrance to the home by entering through the attic.
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the plain language of the burglary and trespass statutes.
{¶34} Trespass is defined as knowingly entering or remaining on the land or
premises of another without privilege to do so. R.C. 2911.21. Once King trespassed into
the garage, he remained a trespasser when he used stealth to gain entrance to the home
and remain in the home, entering through the attic. That he may have been only a
trespasser in the garage prior to entering the attic would not prevent him from committing
burglary by committing a stealthy act during an ongoing trespass. See State v. Dowell, 166
Ohio App.3d 773,
2006-Ohio-2296, ¶ 4, 20 (8th Dist.) (finding sufficient evidence of stealth
to support burglary conviction where defendant initially walked into an open garage and
then was observed "ducking down" to hide from homeowner who honked at the defendant
from the homeowner's vehicle). For the foregoing reasons, we find that the state submitted
sufficient evidence of stealth.
3. Legal Standard – Manifest Weight of the Evidence
{¶35} 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. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14. To determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving the
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed, and a new trial ordered. State
v. Graham, 12th Dist. Warren No. CA2008-07-095,
2009-Ohio-2814, ¶ 66.
{¶36} In reviewing the evidence, an appellate court must be mindful that the original
trier of fact was in the best position to judge the credibility of witnesses and determine the
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weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-
Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the
manifest weight of the evidence only in the exceptional case in which the evidence weighs
heavily against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-
Ohio-466, ¶ 15.
4. Weight of the Evidence Supporting Burglary Conviction
{¶37} King argues that the jurors lost their way and specifically cites the jurors'
questions during deliberations as evidence of confusion. He suggests that the jurors'
questions were caused in part by a prosecutor's rebuttal remarks that stealth "does not
require an act" and that the jurors could infer that King used stealth because the house was
set off and not visible from the road.
{¶38} We will address the prosecutor's remarks concerning stealth in more detail in
response to King's second assignment of error. However, as described in response to
King's sufficiency argument, the evidence of stealth was not simply that Freeland's house
was not visible from the road. And the jury was not required to infer that King committed a
stealthy act while trespassing. Instead, the evidence showed that King used stealth to
continue his trespass into the home by entering the attic. Therefore, we find that the jurors
did not lose their way in finding that King acted stealthily.
{¶39} King cites State v. Weber, 124 Ohio App.3d 451, 464-466 (10th Dist.1997),
wherein the Tenth District reversed a burglary conviction on a manifest weight review based
on concerns regarding the way the prosecutor summarized the evidence for the jury and
where "the trier of fact was asked to draw inferences from facts which, on at least one
important issue, lacked an adequate basis."
Id. at 465. Here, however, the trier of fact had
ample evidence, both direct and circumstantial, to indicate that King acted stealthily while
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trespassing. Freeland testified that all the doors at the home were locked. The only method
of ingress would have been entering through the rotted opening to the garage and then
climbing up to and entering the home through the attic. The state presented evidence of a
footprint on the workbench in the garage from which King would have had to step to climb
the ladder leading to the attic. Freeland testified that he listened to King in the attic and
observed King drop down from the attic area. As discussed above, the evidence suggesting
King entered the home through the attic, while trespassing, constituted the evidence
supporting the burglary conviction.
{¶40} King also argues that the jurors lost their way in finding that he trespassed
with the purpose of committing a criminal offense. King contends that the only evidence
presented in this regard was Freeland's testimony that King stated he was there looking for
marijuana. But King argues that Freeland was not credible and suggests he made up the
story about marijuana for the first time at trial.
{¶41} In support of this assertion, King asserts that the police "offense report" did
not contain any information about King being on the premises to search for marijuana.
However, the police reports and any statements therein were not admitted into evidence
and are not otherwise in the record on appeal. Instead, King cites Detective Sergeant
Gates' cross-examination testimony where he agreed with defense counsel's assertion that
his report did not "mention that this person had also indicated he was there to buy marijuana
or look for marijuana or take marijuana or anything about marijuana." The fact that
Detective Sergeant Gates' report may not have included information regarding Freeland's
statements does not mean that Freeland did not provide such statements separately or that
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such information was not contained in other investigative reports.5
{¶42} Regardless, the jury was free to gauge Freeland's credibility based on his live
testimony, his cross-examination, or the examination of other witnesses. We generally
defer to the factfinder on matters of witness credibility. State v. Fitzgerald, 12th Dist.
Clermont No. CA2016-06-044, 2017-Ohio-2717, ¶ 28. Upon review, there is nothing in the
record that would make us question the jurors' reliance on Freeland's testimony with respect
to establishing that King was on the premises with the purpose of committing a criminal
offense.
{¶43} In addition, that King brought a flashlight to the premises during daylight hours
and entered the premises in the way he did is circumstantially suggestive that he was
searching for something to steal. For the foregoing reasons, we find that the jury did not
lose its way in convicting King of burglary. We overrule King's Assignment of Error No. 1.
B. Ineffective Assistance of Counsel
{¶44} King's Assignment of Error No. 2 states:
{¶45} DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, DUE TO THE COMBINED
PREJUDICIAL IMPACT OF SEVERAL INSTANCES OF DEFICIENT PERFORMANCE
DURING HIS BURGLARY TRIAL.
{¶46} King argues that he received constitutionally defective assistance of counsel
during his burglary trial, which defective assistance prejudiced him. He asserts four
instances of ineffective assistance.
5. The state suggests that King is misrepresenting the content of the police report and that it does document
Freeland's claims about King's statements concerning marijuana.
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1. Legal Standard – Ineffective Assistance of Counsel
{¶47} To prevail on an ineffective assistance of counsel claim, King must establish
"(1) deficient performance by counsel, that is, performance falling below an objective
standard of reasonable representation, and (2) prejudice, that is, a reasonable probability
that but for counsel's errors, the result of the proceedings would have been different." State
v. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio-3437, ¶ 16, citing Strickland
v. Washington,
466 U.S. 668, 687-688, 694,
104 S.Ct. 2052 (1984) and State v. Mundt,
115
Ohio St.3d 22,
2007-Ohio-4836, ¶ 62. The failure to demonstrate either prong is fatal to an
ineffective assistance of counsel claim. State v. Kaufhold, 12th Dist. Butler No. CA2019-
09-148,
2020-Ohio-3835, ¶ 54. In considering an ineffective assistance claim, an "appellate
court must give wide deference to the strategic and tactical choices made by trial counsel
in determining whether counsel's performance was constitutionally ineffective." State v.
McLaughlin, 12th Dist. Clinton No. CA2019-02-002,
2020-Ohio-969, ¶ 54.
2. Analysis of Ineffective Assistance Claims
a. Failure to Object to Prosecutor's Statements
{¶48} King argues that his counsel was ineffective for failing to object to two
instances of alleged prosecutorial misconduct.
i. Stating that Stealth "Does Not Require an Act."
{¶49} First, King claims that the prosecutor "misled the jury regarding the
requirements for proving stealth." In support, King refers to his argument in support of his
challenge to the manifest weight of the evidence. There, King asserted that the prosecutor
"told the jurors that stealth does not require an act."
{¶50} Counsel is given wide latitude during closing argument to present their most
convincing position. State v. Phillips, 74 Ohio St.3d 72, 90 (1995). And "[p]rosecutors are
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entitled to latitude as to what the evidence has shown and what inferences can be drawn
from the evidence. A prosecutor may state his or her opinion if it is based on the evidence
presented at trial." State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, ¶ 213.
{¶51} We have reviewed the portions of the record cited by King in support of the
contention that the prosecutor "told the jurors that stealth does not require an act." Nowhere
in the record cited does the prosecutor use these words. Nor is this a fair paraphrasing of
the prosecutor's remarks. Instead, the prosecutor argued:
Let's look at all the ways that Mr. King used stealth on that day.
You heard from the testimony of Detective Sergeant Gates that
that house is not visible from the road. You can't tell it's there
standing there from the road. You see a driveway. There's a
driveway going back there, a gravel one. From the other
direction, he described it as a ravine, inaccessible. He chose a
house that could not be seen.
Next, Defense has described it as just walking in, that you could
just walk into the garage. But there was a second step. He had
to climb up over boxes, over items, boxes and items that
Detective Sergeant Gates said were difficult to get up. It took
some effort.
Not just steps, a ladder to get up to the attic, a ladder that had
been affixed to the wall, that he had to climb up to get to the attic
where there is a probably 12 to 18-inch plank that he can't just
walk across. He had to get down on his hands and knees and
crawl across that board before going down through the ceiling.
He had a flashlight. He didn't announce himself. He didn't say
hey, is anyone home? He didn't do that.
{¶52} The above statements were fair characterization of circumstantial evidence
admitted at trial that the prosecutor believed indicated that King acted stealthily while
trespassing in the home.
{¶53} Even if the prosecutor had improperly argued to the jurors that "stealth does
not require an act," we observe that the trial court properly instructed the jurors that attorney
statements are not evidence. Furthermore, the court instructed jurors that they must find
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beyond a reasonable doubt that King used stealth to trespass in an occupied structure or a
separately secured or separately occupied portion of an occupied structure and that
"stealth" means "any secret or sly act to gain entrance." We presume that jurors followed
the court's instructions. State v. Rogers, 12th Dist. Butler No. CA2017-08-112, 2018-Ohio-
1356, ¶ 18. For these reasons, we do not find that defense counsel provided deficient
performance in failing to object to the prosecutor's remarks concerning stealth and this
argument is meritless.
ii. Whether the Prosecutor Mischaracterized the Evidence
{¶54} Second, King takes issue with the prosecutor stating (in the quoted statement
above) that King "didn't announce himself." King argues that this was a misleading
statement because "there was no testimony on this point" and that this remark "crossed the
line of fair argument."
{¶55} We find that the prosecutor's remark that King did not announce himself
represented a fair inference that could be made from the record. There was, in fact, no
testimony that King announced his presence at the secluded home, where a "Private
Property No Trespassing" sign was clearly posted. It is clear from Freeland's testimony that
Freeland was unaware of King's presence until he heard him crawling above him in the
attic. Therefore, it is a fair assumption that King did not announce himself. Counsel did not
provide deficient performance by failing to object to either alleged instance of prosecutorial
misconduct.
b. Failure to Request a Lesser Included Offense Instruction
{¶56} King argues that his counsel was deficient for failing to request an instruction
on misdemeanor criminal trespass and instead pursuing an "all or nothing" defense in which
counsel sought to convince the jurors to acquit his client of the burglary charge rather than
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present them with the option of a lesser included offense. Ohio law is clear that great
latitude is given to defense counsel regarding trial strategy. State v. Murphy, 12th Dist.
Butler No. CA2009-05-128, 2009-Ohio-6745, ¶ 24; McLaughlin,
2020-Ohio-969 at ¶ 54.
{¶57} Our review of the record reflects that the court and parties discussed the
propriety of a lesser included offense instruction in an in-chambers discussion. Afterwards,
and on the record, the court stated that it had indicated to the parties that it would be
inclined, if requested, to instruct the jurors on the lesser included offense of trespass in a
habitation, a fourth-degree felony. Defense counsel indicated that he was reconsidering
whether he would ask for a lesser included offense instruction based on the in-chambers
conversations and that he intended to discuss the issue with King.
{¶58} Later, after the court provided the jury instructions, but before the jury returned
a verdict, defense counsel put on record that he had informed King that the court was willing
to provide an instruction on felony trespass into a habitation. Defense counsel further stated
that he had explained lesser included offenses to King. After that discussion, counsel stated
that King decided that he did not want the court to provide a lesser included instruction.
King confirmed, on the record, that this was his decision.
{¶59} King cannot argue that his defense counsel was ineffective for failing to
pursue a different defense strategy than the one that King agreed with and selected at trial.
Even if he could argue such, we would not find deficient performance. It is obvious based
on the record that the decision for an "all or nothing" defense was sound. It appears that at
least some members of the jury had difficulty with the burglary charge and were curious
about lesser offenses. The possibility of an acquittal or at least a hung jury was evident.
That the jurors continued deliberating and ultimately voted guilty does not mean that the
trial strategy was not sound. For the foregoing reasons, we find that King has not
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established defective performance with respect to requesting a lesser included offense
instruction.
c. Failure to Request "Supplemental Instruction"
{¶60} King argues defense counsel had a "duty to request a supplemental
instruction explaining the element of stealth in more detail" following the jurors' questions
during deliberations. He contends that such supplemental instruction should have informed
the jurors that stealth and trespass are "two different requirements, and that stealth requires
more than unauthorized entry into an open garage."
{¶61} Where written jury instructions "clearly and comprehensively" answer a
question posed by a jury, a court acts within its discretion in referring the jury back to the
jury instructions. State v. Lindsey, 87 Ohio St.3d 479, 488 (2000). Here, the court had
already provided the jurors with unambiguous instructions defining the elements of burglary.
Moreover, the jurors' questions did not specifically ask the court for more explanation
concerning stealth. Therefore, we find no abuse of discretion in the court referring the jurors
back to the jury instructions. We do not find that King has demonstrated deficient
performance in this regard.
d. Prejudice
{¶62} Finally, King argues that all the foregoing instances of alleged deficient
performance resulted in prejudice at trial. However, because we have found no instances
of deficient performance, King cannot establish ineffective assistance of counsel and thus
any argument concerning prejudice is irrelevant. See Kaufhold, 2020-Ohio-3835 at ¶ 54.
We overrule King's Assignment of Error No. 2.
C. Failure to Appear Conviction: Sufficient Evidence
{¶63} King's Assignment of Error No. 3 states:
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{¶64} DEFENDANT-APPELLANT'S CONVICTION FOR FAILURE TO APPEAR IS
NOT SUPPORTED BY SUFFICIENT EVDIENCE TO SATISFY THE REQUIREMENTS OF
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
{¶65} King argues that the state submitted insufficient evidence to permit
reasonable factfinders to convict him of failure to appear. Again, when reviewing the
sufficiency of the evidence, this court examines 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 proven beyond a reasonable doubt." Jenks, 61 Ohio St.3d
259 at paragraph two of the syllabus.
{¶66} King presents three arguments in support of this assignment of error. Finding
the second argument dispositive, we address it first.
1. Failure to Receive Notice of Court Date
{¶67} King argues that the state failed to prove that it informed him of the date and
time of the trial. We agree.
{¶68} The state convicted King of failure to appear in violation of R.C. 2937.99(A).
That statute provides, "[n]o person shall fail to appear as required, after having been
released pursuant to section 2937.29 of the Revised Code."6 To convict a person for failure
to appear under R.C. 2937.99, the state "must prove that the defendant knew, or should
have known, of the hearing date." State v. Huckleby, 4th Dist. Gallia Nos. 16CA15 and
16CA16, 2018-Ohio-4438, ¶ 12.
6. R.C. 2937.29 provides,
When from all the circumstances the court is of the opinion that the accused will appear as
required, either before or after conviction, the accused may be released on his own
recognizance. A failure to appear as required by such recognizance shall constitute an
offense subject to the penalty provided in section 2937.99 of the Revised Code.
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{¶69} The state responds by arguing that "King was noticed personally in Court on
May 25, 2021, while reviewing a motion to withdraw counsel/vacate jury trial." For this
proposition, the state points to the portion of the trial on the failure to appear charge where
Deputy Clerk Lynch read from the May 25, 2021, entry and specifically from a portion of the
entry in which the court wrote that "A copy of this entry is notice of the hearing date."
{¶70} Upon review, we find there was insufficient evidence presented as a matter
of law to permit a reasonable factfinder to find that King knew or should have known of the
June 2, 2021 trial. Despite the state's claims to the contrary, the May 25, 2021 entry does
not indicate that King was present in court on the day of that hearing or was verbally advised
of the June 2, 2021 trial date. The words "THE SURETY SHALL IMMEDIATELY BE
NOTIFIED OF THIS ENTRY BY THE CLERK OF COURTS" appear on the entry. However,
there is no notation on the entry that it was in fact served on appellant by the clerk of courts.
On cross-examination, Deputy Clerk Lynch admitted that she could not say whether anyone
at the clerk's office served King with notice of the trial date.
{¶71} This is not to say that King was in fact unaware of June 2, 2021 trial date. The
record in the burglary case includes an entry summarizing a March 19, 2021 hearing at
which time the court first scheduled the June 2, 2021 trial. This entry reflects that King was
present in court and would have or should have been aware of the scheduling of the June
2, 2021 trial date. However, the state did not offer this entry into evidence during the failure
to appear trial.
{¶72} For the foregoing reasons, we must conclude that the state submitted
insufficient evidence to prove that King knew or should have known of the June 2, 2021 trial
date. We sustain King's Assignment of Error No. 3 and we reverse King's judgment of
conviction for failure to appear. We vacate his conviction and discharge him on that
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offense.
2. Other Issues Raised Regarding the Failure to Appear Charge
{¶73} In his first issue for review in support of his Assignment of Error No. 3, King
argues that the state's use of journal entries to prove the elements of the failure to appear
offense constituted an improper application of offensive collateral estoppel. In his third
issue for review in support of his Assignment of Error No. 3, King argues that the state failed
to prove that he was released on his "own recognizance." These issues are rendered moot
based on our resolution of King's second issue for review in support of this assignment of
error. Accordingly, we need not address the merits of these additional arguments. App.R.
12(A)(1)(c).
D. Remaining Assignments of Error
{¶74} King's Assignment of Error No. 4 states:
{¶75} THE ADMISSION OF THE JOURNAL ENTRIES FROM THE BURGLARY
CASE VIOLATED THE HEARSAY EXCLUSIONARY RULE AND DEPRIVED
DEFENDANT-APPELLANT OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION TO A FUNDAMENTALLY
FAIR JURY TRIAL IN THE FAILURE TO APPEAR CASE.
{¶76} King's Assignment of Error No. 5 states:
{¶77} THE TRIAL COURT'S FAILURE TO ADEQUATELY RESPOND TO THE
JURY'S QUESTION REGARDING THE CULPABLE MENTAL STATE FOR THE
OFFENSE OF FAILURE TO APPEAR DEPRIVED DEFENDANT-APPELLANT OF HIS
SIXTH AND FOURTHEENTH AMENDMENT RIGHT TO A FAIR TRIAL AND RELIABLE
JURY VERDICT.
{¶78} Assignments of Error Nos. 4 and 5 have been rendered moot based on our
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resolution of Assignment of Error No. 3. Accordingly, we find these assignments of error
moot and they need not be considered. App.R. 12(A)(1)(c).
III. Conclusion
{¶79} The state presented sufficient evidence as a matter of law to convict King of
burglary. The evidence showed that King used stealth to enter the home and the conviction
was supported by the manifest weight of the evidence. The state failed to offer sufficient
evidence to prove that King knew or should have known of his trial date and therefore his
conviction for failure to appear is vacated, and King is discharged on that offense.
{¶80} Judgment affirmed in part, reversed in part.
M. POWELL, P.J., and PIPER, J., concur.
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