State v. Stone

1

2024-Ohio-177

STATE OF OHIO Appellee v. BIANCA V. STONE Appellant

C. A. No. 2023-CA-23

Court of Appeals of Ohio, Second District, Greene

January 19, 2024

Criminal Appeal from Common Pleas Court, Trial Court Case No 2022-CR-0565

NICOLE K. DIETZ, Attorney for Appellant.

MEGAN A. HAMMOND, Attorney for Appellee.

OPINION

EPLEY P.J.

{¶ 1} Bianca V. Stone, aka Bianca Chappelle, was convicted after a jury trial in the Greene County Court of Common Pleas of attempted trespass in a habitation when a person is present or likely to be present, a fifth-degree felony, and possession of criminal tools, a first-degree m isdemeanor. Stone appeals from her convictions, claim ing that the trial court erred in (1) excluding certain testimony from a police officer, (2) denying her Crim.R. 29 motion for an acquittal, and (3) not providing a jury instruction on criminal trespass as a lesser included offense. For the following reasons, the trial court's judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} At approximately 12:45 a.m. on December 7, 2022, Stone went to the home of her former husband's brother, crawled under the tall security gate, and approached the house. Stone's former sister-in-law, niece, and nephew were inside the residence. Her former sister-in-law, who was alerted that someone was at the gate, called 911. As she waited for the police to arrive, she saw someone outside her dining room windows and soon heard her front door's doorknob "jiggle." When law enforcement officers arrived, they found Stone standing on the front porch of the residence. After a search, a prybar or crowbar that did not belong to the family was located on the porch.

{¶ 3} Stone was charged with attempted trespass in a habitation when a person is present or likely to be present and possession of criminal tools, both felonies of the fifth degree. The matter proceeded to a jury trial beginning on March 6, 2023. The State presented the testimony of the homeowners and three law enforcement officers.

{¶ 4} Stone testified on her own behalf and called the two individuals who drove her to her in-laws' home and an additional law enforcement officer as defense witnesses. Stone asserted that she had come to the house to do laundry and to show the family a bike. She acknowledged that she had not been invited to the residence, but she said that she believed she could come to the home at any time and had the passcode to a prior home, which she thought would still work. Stone denied that she intended to break into the residence and stated that she routinely carried a crowbar, particularly when she planned to ride her bike alone.

{¶ 5} The jury found Stone guilty of both charged offenses. However, it concluded that the crowbar was not a criminal tool used to commit trespass in a habitation, thus reducing the degree of the possession of criminal tools offense to a first-degree misdemeanor. After a presentence investigation, the trial court imposed five years of intensive community control supervision with various conditions and a six-month jail sentence.

{¶ 6} Stone appeals from her conviction, raising three assignments of error. We will address them in an order that facilitates our analysis.

II. Sufficiency of the State's Evidence

{¶ 7} In her second assignment of error, Stone claims that the trial court erred in failing to grant her Crim.R. 29(A) motion because the State did not present sufficient evidence to support her conviction. She argues that there was no evidence that she (1) act knowingly, and (2) trespassed with "force, stealth, or deception."

{¶ 8} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court applies the same standard as is used to review a claim based on the sufficiency of the evidence. State v. Page, 2d Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 7, citing State v. Sheppeard, 2d Dist. Clark No. 2012-CA-27, 2013-Ohio-812, ¶ 51. "A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law." State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless "reasonable minds could not reach the conclusion reached by the trier-of-fact." Id.

{¶ 9} In reviewing the trial court's denial of a Crim.R. 29(A) motion at the end of the State's case, we consider only the evidence that had been presented prior to the motion. State v. Jackson, 2d Dist. Montgomery No. 29343, 2022-Ohio-2805, ¶ 9; State v. Powell, 2d Dist. Montgomery No. 27951, 2018-Ohio-4693, ¶ 22, citing Sheppeard at ¶ 51. For Crim.R. 29(A) motions made after the defense's evidence, we consider all of the evidence admitted at trial. See State v. Harris, 2d Dist. Montgomery No. 29379, 2023-Ohio-648, ¶ 33; State v. Stokes, 2d Dist. Champaign No. 2015-CA-22, 2016-Ohio-612, ¶ 26.

{¶ 10} Stone sought an acquittal under Crim.R. 29(A) both at the end of the State's case and after all the evidence had been presented. In her appellate brief, Stone points in part to her own testimony in support of her claim that the State's evidence was insufficient. Accordingly, we infer that her assignment of error is directed toward the trial court's denial of the Crim.R. 29(A) motion she made after the defense case had been presented.

{¶ 11} Stone challenges her conviction for attempted trespass in a habitation when a person is present or likely to be present, in violation of R.C. 2911.12(B) and R.C. 2923.02(A). The attempt statute states, that "[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense." R.C. 2923.02(A).

{¶ 12} R.C. 2911.12(B) provides: "No person, by force, stealth, or deception, shall trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present." For purposes of this offense, trespass means to "knowingly enter or remain on the land or premises of another" without a privilege to be there. R.C. 2911.21(A)(1); see also State v. Baker, 2016-Ohio-315, 58 N.E.3d 498, ¶ 21 (2d Dist.). Stone does not dispute in her appeal that the property at issue was a habitation and that her former relatives were present or likely to be present there in the early morning hours of December 7, 2022.

A. Knowingly

{¶ 13} Stone first challenges the State's evidence that she acted "knowingly." She asserts that there was no evidence that she "would have any reason to know she would not be able to be at the residence."

{¶ 14} "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact." R.C. 2901.22(B).

{¶ 15} "Culpable mental states are frequently demonstrated through circumstantial evidence." State v. Hypes, 2d Dist. Clark No. 2018-CA-110, 2019-Ohio-4096 ¶ 21, quoting State v. Fox, 2018-Ohio-501, 106 N.E.3d 224, ¶ 14 (10th Dist.). Circumstantial evidence has the same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991); State v. St. John, 2d Dist. Montgomery No. 27988, 2019-Ohio-650, ¶ 49. In some cases, "circumstantial evidence may be more certain, satisfying, and persuasive than direct evidence." State v. Jackson, 57 Ohio St.3d 29, 38, 565 N.E.2d 549 (1991). A defendant's state of mind may be inferred from the totality of the circumstances. State v. Murphy, 2d Dist. Montgomery No. 27802, 2018-Ohio-3506, ¶ 16.

{¶ 16} According to the State's evidence, in December 2022, Stone's former brother-in-law and sister-in-law, David and Elaine Chappelle, lived at a home near Yellow Springs with their 19-year-old son and 13-year-old daughter. The family had resided there for seven years. A fence enclosed the Chappelles' property, and there was a security gate with an intercom, bell, and closed-circuit camera system. Upon driving up to the gate, a visitor would press a button, which would send a notification to the residents' phone that someone had rung the bell. The camera and intercom system allowed the Chappelles to see who was there, communicate with the visitor, and either grant or deny access. The gate could also be opened with a remote control (like a garage door opener) or by entering a code on a keypad.

{¶ 17} Stone had formerly been married to David's brother and had known David and Elaine for approximately 23 years. However, Elaine testified that they "don't really see each other at all" and communicated "maybe once in a while." Trial Tr. at 15. David similarly testified that their relationship with Stone was "fairly distant," although they had "reconnected to some degree around that time period." Trial Tr. at 48. Neither David nor Elaine would call Stone, and Stone would call "very rarely." Trial Tr. at 16. David...