[Cite as State v. Piersoll , 2020-Ohio-514.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO Plaintiff-Appellee

v. ANDRE PIERSOLL Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-38

Trial Court Case No. 2019-CR-120 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 14th day of February, 2020.

. . . . . . . . . . . JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’ s Office, Appellate Division, 50 East Columbia Stre et, Suite 449, Springfield, OH 4 5502 Attorney for Plaintiff-Appellee ANDREW SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, O hio 45385 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FROELICH, J.-2- {¶ 1} Andre Piersoll was convicted of aggravated burglary in violatio n of R.C. 2911.11(A)(1), a first-degree felony, after a jury trial in the Clark County Court of Common Pleas. The trial court sentenced Piersoll to ten years in pris on. Piersoll appeals, claiming that his conviction was against the manifest weight of the evidence. For the following reasons, the trial cour t’s judgment will be affirmed. {¶ 2} When reviewing an argument challenging the weight of the eviden ce, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determi nes whether, in resolving conflicts in the evidence, the finder 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. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 3} Because the trier of fact sees and hears the witnesses at trial , we must defer to the factfinder’s decisions whether, and to what extent, to c redit the testimony of particular witnesses. State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The fact that the evidence is subj ect to different interpretations does not render the conviction against the mani fest weight of the evidence.

State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 14. A judgme nt of conviction should be reversed as being against the manifest wei ght of the evidence only in exceptional circumstances. State v. Ford , Ohio Slip Opinion No. 2019-Ohio-4539, __ N.E.3d __, ¶ 340; Thompkins at 387. {¶ 4} At trial, the State presented five witnesses; Piersoll offered no witnesses on

his own behalf. The State’s evidence at trial court establishe d the following facts.-3- {¶ 5} On February 7, 2019, William Harper lived with his wife, Meliss a, and fatherin-law, George Frost, on Sturgeon Street in Clark County. At a pproximately 9:30 p.m. that evening, while Harper was watching television, a man they did not know (later identified as Piersoll) knocked on their front door. When Harp er answered the door, Piersoll came inside and said that he was “looking for the guy that killed his friend” and wanted to kill him. Harper did not know who Piersoll was refer ring to, and he told Piersoll that he did not know who Piersoll was looking for. Harper sugg ested to Piersoll that he might want to ask his (Harper’s) neighbors for information. Pi ersoll left the residence. Harper locked the door behind him. {¶ 6} About 15 minutes later, Piersoll returned to Harper’s residence and began “pounding” on the front door “real loud”; Harper emphasized tha t the knocking was “forceful” and “not like a regular knock.” Harper testified th at he was in the back room and could hear Piersoll saying, “Let me in. Let me in.” Harpe r did not answer the door and, instead, called 911. (The recording of Harper’s 911 call was not admitted, but the recordings of two other 911 calls made by unidentified neighbor s were admitted into evidence as State’s Exhibits 2 and 3.) {¶ 7} Harper called to Piersoll to go away, but Piersoll continued to pound and kick at the front door. Ultimately, Piersoll kicked in the front do or and entered the home. Photographs taken of the front door after the incident showed t hat the bottom panel of the door was separated from the door and pieces of the door frame a nd wood door were

strewn across the floor inside the home. {¶ 8} Harper described the scene upon Piersoll’s entry as “chaotic.” He testified that everyone in the house was screaming, and they told Piersol l to get out. Harper also-4- got his father-in-law, who was frightened, into his wheelchair and out of the living room. Within a few minutes, Harper’s neighbor came over and the polic e arrived. When asked on redirect examination what Piersoll was doing between the tim e he kicked in the door and the police officers’ arrival, Harper testified: You know, I’m not too sure. I think he was trying to get our p hone. He wanted to use our – I remember him saying he wanted to use our phone and he kept grabbing at my wife’s phone. I remember that. So there was a lot of pushing and shoving going on. My father-in-law got pu shed in the wheelchair a few times. It was just kind of chaotic there for a few minutes. Tr. at 114. Harper stated that he was not assaulted, but his f ather-in-law was assaulted. Tr. at 116. Harper testified that Piersoll took his wife’s pho ne out of her hand and used it to call his (Pie rsoll’s) mother. {¶ 9} Frost, Harper’s father-in-law, also testified about the Februar y 9 incident.

He described the incident as follows: Somebody kept beating on my door, beating like a wild person. And finally Bill [Harper], he was in the back room, he [Harper] com e running around and opened the door and he [Piersoll] shoved Bill out of the way and

come on in. He [Piersoll] asked us, “Who’s the guy got killed here?” “Nob ody got killed here,” we told him and he kept arguing. We told him he had to go, he had to go. Bill tried to push him. And I went up there and pushed on his legs and he sort of pushed me back and, you know, knocke d me up

there.-5- Finally, Bill got him to go outside and I said, “Close the doo r and lock it real tight.” And he [Harper] closed the door and locked it and then Bill said he’d [Piersoll] come over next door now. He [Harper] was looking out the window, I guess. And then he went over there and he come back and the guy that followed him back over there. And he [Piersoll] started beatin g on my door again and he said, “Let me in, let me in.” He said, “I’m going to kill that guy.” And he stopped for a second, beating, then he started kicking. He kicked the whole, my door clear in half, just the door kicked o ut, kicked it in half. And it hit me on the legs and splintered, cut me there ( indicating) and cut me down here. But it wasn’t a deep, you know, it was more of a scrape cut. Not a stabbing or cut or nothing, but I still got it thou gh. Tr. at 121-122. Frost stated that he asked Harper to get him ( Frost) out of the house and to his (Frost’s) truck. Frost stated that he was in the truck when the police arrived. {¶ 10} On cross-examination, Frost stated that he was “totally blind” and acknowledged that he did not see Harper’s actions. Frost disag reed that they had sent Piersoll to their neighbor’s residence; he indicated that they had just gotten Piersoll out of the house. Frost testified that Piersoll returned after approx imately two minutes, at which time Piersoll started “beating on” and then kicking the front d oor. Frost reiterated that he received splinters when Piersoll kicked in the door. {¶ 11} Springfield Police Officers John Lish and Meredith Freeman resp onded to a dispatch regarding disorderly conduct at Frost’s and Harper’s residence. The dispatch-6- reported that there was a male inside the house that had kicked in the door. The officers encountered Piersoll, who was walking out the front door. Offi cer Freeman described the scene as “very loud. Everyone was yelling different things . Bits and pieces that I could gather there was someone in the house that wasn’t welcome .” Tr. at 143. {¶ 12} Both officers testified that Piersoll repeatedly put his hands in his pockets, despite the officers’ requests to take his hands out of his poc kets. Piersoll eventually said that he had a beer, and he removed the beer from a pocket, which the officers took and set down. Piersoll again put his hands in his pockets. {¶ 13} Officer Freeman told Piersoll that they (the officers) were goi ng to detain him so they could figure out what was going on. Freeman instru cted Piersoll to put his hands behind his back. The officers then grabbed Piersoll’s ar m and wrist, but Piersoll pulled away and ran into the front yard. The officers again “g ot ahold of him” and Officer Lish deployed his Taser, but the Taser did not work properly an d Piersoll ran westward down Sturgeon Street. The officers ran after Piersoll and Lish deployed his Taser again. This time, the Taser worked, and Lish was able to apprehend Pie rsoll. {¶ 14} After taking Piersoll into custody, the officers returned to th e residence. Officer Lish took photographs of house number and the front doo r of Harper’s and Frost’s residence. Officer Freeman spoke with the residents and took t heir statements. On cross-examination, Freeman indicated that her report contained no information about someone’s taking someone else’s phone. Freeman stated that Fro st had advised her that he was pushed across the room in his wheelchair and that h e might have bumped his knee, but she did not recall seeing any visible injury. Fr eeman stated that her case report indicated that no injuries were reported.-7- {¶ 15} On redirect examination, Officer Freeman stated that her report included

information that Piersoll had said to the residents inside the residence that he would leave if they allowed him to call his mother on their cell phone, and that the residents did. {¶ 16} After closing arguments, during which the parties focused on th e second encounter, the trial court instructed the jury on aggravated bu rglary (as charged), in violation of R.C. 2911.11(A)(1), and trespass in a habitation w hen a person is present or likely to be present, in violation of R.C. 2911.12(B), a lesser -included offense. The jury found Piersoll guilty of aggravated burglary. {¶ 17} R.C. 2911.11(A)(1), the aggravated burglary statute, provides: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied por tion of an occupied structure, when another person other than an accomplic e of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the struct ure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another[.] “Physical harm to persons” is defined as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C. 2901. 01(A)(3). {¶ 18} Piersoll claims that the State’s evidence failed to support two elements: (1) that he acted with purpose to commit in the structure any crimi nal offense, and (2) that he inflicted or attempted or threatened to inflict physical harm o n another. Piersoll acknowledges that he threatened to kill the person that killed his friend when he first came-8- to the house, but he asserts that he lacked the same intent whe n he returned. With respect to the physical-harm element, Piersoll states that the threats of physical harm were made to an unknown individual who was not present at the r esidence and that Frost’s testimony that he incurred an actual physical injury wa s not credible. {¶ 19} In reaching its verdict, the jury was free to believe all, part , or none of the testimony of each witness and to draw reasonable inferences fro m the evidence presented. State v. Baker , 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. It was the province of the jury, as the trier of fact, to weigh th e evidence and determine whether the State had proven, beyond a reasonable doubt, that P iersoll had committed aggravated burglary, trespass in a habitation, or neither of th ose. See State v. Ball , 2d Dist. Clark No. 2017-CA-54, 2018-Ohio-605, ¶ 27. {¶ 20} Upon review of the evidence at trial, the jury reasonably concl uded that the State proved each element of aggravated burglary. Both Harper and Frost testified that Piersoll forcibly entered their residence without permission. They testified that, the second time Piersoll came, he kicked in the front door and push ed his way in. Photographs of the front door corroborated the extensive damage to the front door. {¶ 21} According to Harper’s testimony, when Piersoll first came to th e house, Piersoll stated that he was looking for the person who killed h is friend. Harper testified, and Piersoll acknowledges in his appellate brief, that Piersoll threatened to kill that person. Harper initially testified that there was “no conversa tion” when Piersoll returned, and the conversation Harper later described concerned Piersoll’ s use of Harper’s wife’s cell phone. However, Frost testified that, when Piersoll retur ned to the house, he demanded to be let in and said, “I’m going to kill that guy.” Tr. at 124. Although Harper’s-9- and Frost’s testimony differed as to whether Piersoll orally ex pressed a desire to kill someone when he returned to the house, the jury could have reas onably concluded, based on Frost’s testimony as well as Piersoll’s conduct, that Piersoll continued to believe that the person he was looking for was in Frost’s and Harper’s residence and that he (Piersoll) kicked in the front door and entered with the purpos e to commit an assault inside

the home. {¶ 22} With respect to physical harm, Frost testified that he was cut by pieces of

the wood front door when Piersoll kicked in the door. Frost st ated that he sustained injuries to his hands, feet, and legs, some of which had not co mpletely healed by the trial date. Although Officer Freeman testified that no one had repor ted any injury and Officer Lish took photographs only of the damaged door, it was the role of the jury to determine whether Frost’s testimony regarding the cuts to his legs and ot her injuries was credible. The jury could have reasonably concluded that Piersoll caused s ome injury, albeit minor,

to Frost. {¶ 23} We cannot conclude that this case presents an exceptional circu mstance where the jury “clearly lost its way” and its guilty verdict wa s against the manifest weight

of the evidence. Piersoll’s assi gnment of error is overruled. {¶ 24} The trial court’s judgment will be affirmed.

. . . . . . . . . . . . .

WELBAUM, P.J. and DONOVAN, J., concur.-10-

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John M. Lintz Andrew Schlueter Hon. Douglas M. Rastatter