[Cite as State v. Helm, 2016-Ohio-500.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

TONY HELM, 

 Defendant-Appellant. 

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: 

: 

: 

APPEAL NO. C-150242 

TRIAL NO. B-1403724 

 O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: February 12, 2016 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Schuh & Goldberg, LLP, and Brian T. Goldberg, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS 

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SYLVIA S. HENDON, Judge. 

{¶1} Following a jury trial, defendant-appellant Tony Helm was found 

guilty of burglary and menacing by stalking and was sentenced to nine-and-a-halfyears’ imprisonment. 

{¶2} Helm has appealed, arguing in four assignments of error that the trial 

court erred by giving the jury an inaccurate version of the Howard charge; that the 

trial court failed to properly admonish the jury; that the trial court erred by failing to 

declare a mistrial when the jury conducted deliberations without all members 

present; and that his convictions were not supported by the sufficiency or the weight 

of the evidence. Finding no merit in Helm’s arguments, we affirm the trial court’s 

judgment. 

Factual Background and Procedure 

{¶3} The victim of Helm’s menacing offense was Megan Barnes. Helm and 

Barnes began dating in April of 2012. In September of 2012, Helm and Barnes 

jointly signed a lease for an apartment in Norwood, where they resided with Barnes’ 

two sons from a previous marriage. But Barnes and Helm separated one year later, 

and Barnes and her sons moved into a home in Lockland. Barnes leased the 

Lockland home in her name only. From September of 2013 until June of 2014, 

Barnes and Helm’s relationship was off and on. Helm drove trucks for a living and 

was on the road for large periods of time. When he and Barnes were on-again, he 

would live at Barnes’ Lockland home when not on the road for work. 

{¶4} On June 1, 2014, Lockland police officer Matthew Kurtz was 

dispatched to Barnes’ residence for a harassment call. When he arrived, Barnes was 
OHIO FIRST DISTRICT COURT OF APPEALS 

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visibly frightened and crying, and reported that she had been having a conflict with 

her ex-boyfriend, Helm. Barnes showed Officer Kurtz text messages on her phone 

that she had received from Helm, in which he had threatened to harm her and stated 

that he was hiding in the woods. Officer Kurtz spoke with Helm on the phone and 

informed Helm that charges would be filed against him if he persisted in his conduct. 

{¶5} On June 2, 2014, pictures of Barnes in a state of undress were posted 

on the Facebook page of her employer, Thoma & Sutton Eye Care. Emily Martin, a 

manager in Thoma & Sutton’s corporate office, testified that she deleted the 

photographs immediately, and that they had been posted by a person named Tony 

Helm. That same day, Lockland police officer Brandon Ruth responded to a call at 

Barnes’ residence. Barnes reported that Helm had posted inappropriate 

photographs of her on her company’s website. Barnes followed the advice of Officer 

Ruth and obtained a temporary protection order against Helm. While delivering a 

copy of the order to the Lockland police station, Barnes reported that Helm had 

assaulted her several weeks prior. But because Barnes had no visible injuries, Officer 

Ruth declined to file charges regarding the assault at that time. 

{¶6} Approximately one to two weeks after obtaining the restraining order, 

Barnes encountered Helm while fishing at Folz Lake. The two talked, and Helm 

agreed to delete all inappropriate photographs of Barnes from his phone. At that 

time, the two decided to try and reconcile. Once the protection order that Barnes 

had obtained expired, on or around June 16, 2014, Helm moved back in with Barnes. 

{¶7} On the morning of June 25, 2014, Barnes confronted Helm about a 

swinger’s website that he had accessed on his telephone. They argued, and after 

Barnes left for work, she received numerous graphic text messages from Helm, 
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including a message informing her that he had taken all of his belongings and had 

moved out of her home. After removing his belongings from Barnes’ home, Helm 

filed a criminal damaging report with the Lockland police, alleging that Barnes had 

damaged his motorcycle while it had been stored at her home. 

{¶8} Barnes went home in the middle of the afternoon and verified that all 

of Helm’s belongings were gone. She secured her home by locking all doors and 

windows, and, because Helm still had a key to her front door, Barnes placed a kick 

bar in that door to prevent him from entering. She returned to work and continued 

to receive threatening and graphic text messages from Helm all afternoon. One text 

read “just because my bike in my truck is not there does not mean I’m not.” Another 

read “going silent now about to get dark see if you make it in the morning to 

Starbucks good luck.” 

{¶9} Barnes went to the Lockland police station on her way home from 

work to report the text messages. Although Barnes was visibly upset, she was told 

that all officers were busy and was asked to come back during normal business hours 

the next day to have the messages downloaded from her telephone. Barnes returned 

home at approximately 7:00 that evening and immediately noticed that her back 

door was open and that it had a broken lock. Barnes called the police and did not 

enter her home. Lockland police sergeant Patrick Sublet responded to Barnes’ home. 

He saw that the deadbolt was missing from the back door, that the door jamb was 

damaged, and that the door had been forcibly opened. During his search of the 

house, Sergeant Sublet saw that a pillow on Barnes’ bed had been slashed, and he 

found a knife sticking out of her mattress. He further found a marijuana-growing 

operation in Barnes’ basement and drug paraphernalia in her bedroom. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶10} Helm continued to send threatening text messages to Barnes 

throughout the evening and into the next day. Sergeant Sublet was again dispatched 

to Barnes’ home at approximately 3:30 a.m. on June 26, 2014. Barnes reported that 

the tires to her car had been slashed, and that she had received a text message from 

Helm stating “How did you like your pillow? Your [sic] next.” Barnes received 

numerous text and voice messages from Helm over the following days. These 

messages suggested that she should kill herself and included a threat from Helm to 

kill her. Helm was arrested outside Barnes’ home on June 30, 2014, on an open 

warrant for burglary. While being transported to the police station, Helm stated that 

if he caught Barnes with another man he would kill them both. Helm was charged 

with burglary, menacing by stalking, and domestic violence. 

{¶11} At trial, Barnes testified regarding her and Helm’s rocky relationship. 

She testified that Helm had struck her twice in the face sometime near the end of 

May of 2014, causing a bloody nose and a black eye. She further read for the jury all 

the threatening text messages that she had received from Helm during May and June 

of 2014. She testified that she feared for her safety and that her mental stability was 

held together by a string. 

{¶12} Helm testified at trial. He denied striking Barnes in the face in May of 

2014, but admitted to sending the threatening text messages. Helm additionally 

denied stabbing a knife in Barnes’ mattress. He testified that the text message he 

had sent about Barnes’ pillow was meant to reference the fact that he had smeared 

dog feces on her pillow before leaving her home. But Sergeant Sublet had testified 

that no dog feces had been found on Barnes’ bedding. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶13} The jury convicted Helm of burglary and menacing by stalking, but it 

acquitted him of domestic violence. The trial court sentenced Helm to an aggregate 

term of nine-and-a-half-years’ imprisonment. 

Howard Charge 

{¶14} In his first assignment of error, Helm argues that the trial court erred 

by giving the jury a version of the Howard charge that did not comport with the 

language approved by the Ohio Supreme Court. 

{¶15} A Howard charge is a supplemental instruction that is given to a 

deadlocked jury unable to reach a verdict. In State v. Howard, the Ohio Supreme 

Court recognized two specific goals that such a supplemental instruction should 

further, namely to “encourage a verdict where one can conscientiously be reached,” 

and to be balanced, “asking all jurors to reconsider their opinions in light of the fact 

that others do not agree.” State v. Howard, 42 Ohio St.3d 18, 25, 537 N.E.2d 188 

(1989). The Howard court wanted to ensure that a supplemental instruction of this 

nature would not be coercive and pressure members of the jury in the minority to 

change their opinion. Id. at 22. 

{¶16} In Howard, the court specifically approved the following supplemental 

instruction to be given to a deadlocked jury: 

The principal mode, provided by our Constitution and laws, for 

deciding questions of fact in criminal cases, is by jury verdict. In a 

large proportion of cases, absolute certainty cannot be attained or 

expected. Although the verdict must reflect the verdict of each 

individual juror and not mere acquiescence in the conclusion of your 

fellows, each question submitted to you should be examined with 
OHIO FIRST DISTRICT COURT OF APPEALS 

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proper regard and deference to the opinions of others. You should 

consider it desirable that the case be decided. You are selected in the 

same manner, and from the same source, as any future jury would be. 

There is no reason to believe the case will ever be submitted to a jury 

more capable, impartial, or intelligent than this one. Likewise, there is 

no reason to believe that more or clearer evidence will be produced by 

either side. It is your duty to decide the case, if you can conscientiously 

do so. You should listen to one another’s arguments with a disposition 

to be persuaded. Do not hesitate to reexamine your views and change 

your position if you are convinced it is erroneous. If there is 

disagreement, all jurors should reexamine their positions, given that a 

unanimous verdict has not been reached. Jurors for acquittal should 

consider whether their doubt is reasonable, considering that it is not 

shared by others, equally honest, who have heard the same evidence, 

with the same desire to arrive at the truth, and under the same oath. 

Likewise, jurors for conviction should ask themselves whether they 

might not reasonably doubt the correctness of a judgment not 

concurred in by all other jurors. 

Id. at 25. 

{¶17} In this case, after deliberating for approximately two days, the jury 

sent a note to the trial court stating that it was at an impasse and had only been able 

to reach a verdict on two of three offenses with which it had been charged. The trial 

court then read the following charge to the jury: 
OHIO FIRST DISTRICT COURT OF APPEALS 

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It is conceivable that after a reasonable length of time honest 

differences of opinion on the evidence may prevent an agreement upon 

a verdict. When that condition exists, you may consider whether 

further deliberations will serve a useful purpose. If you decide that 

you cannot agree and that further deliberations will not serve a useful 

purpose, you may ask to be returned to the courtroom and report that 

back to the Court. If there is a possibility of reaching a verdict, you 

should continue your deliberations. It would be the preference of this 

court that you try to come to an agreement on the third charge, simply 

because no other jury is going to—everybody is going to be picked the 

exact same way that you were. The evidence is not going to change 

from now until—with a different jury. And it will be my preference if 

you would at least try to come to an agreement if at all possible. I 

would ask that you go back at this time. Why don’t we try for maybe a 

half an hour and see if you all are able to come to an agreement. If you 

are not, please ring us and I will bring you back out here and make the 

determination at that time on the third charge. 

{¶18} Helm raised no objection to this charge. The jury resumed 

deliberating, and later returned a verdict on all three charges. Helm now argues that 

the trial court’s instruction failed to comply with the language approved in Howard, 

and that the 30-minute-time restraint imposed by the trial court pressured the jury 

to reach a verdict. Because Helm failed to object to this charge, he has forfeited any 

claim of error with respect to it, unless the outcome of the proceedings would have 
OHIO FIRST DISTRICT COURT OF APPEALS 

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been different but for the charge. See State v. McClellan, 93 Ohio App.3d 315, 326, 

638 N.E.2d 593 (1st Dist.1994). 

{¶19} A trial court is not required to give a verbatim Howard charge, as long 

as the given charge did not coerce the jurors into reaching a verdict. See State v. 

Carson, 1st Dist. Hamilton No. C-040042, 2005-Ohio-902, ¶ 58, rev’d on other 

grounds, In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-

Ohio-2109, 847 N.E.2d 1174 (2006). We have previously overruled challenges to a 

Howard charge given by a trial court that differed to some degree from the exact 

language approved by the Howard court. See State v. Dickens, 1st Dist. Hamilton 

No. C-960365, 1998 Ohio App. LEXIS 2098 (May 8, 1998). In this case, the charge 

given by the trial court admittedly differed from the Ohio Supreme Court’s approved 

language to a much greater extent than other charges that we have approved. It 

entirely omitted any language asking the jurors to reconsider their opinions in light 

of the fact that others did not agree, one of the two goals recognized in Howard. But 

the trial court’s charge did encourage jurors to reach a verdict if they could 

conscientiously do so, and it was in no manner coercive. It is certainly a better 

practice to give a verbatim Howard charge, to ensure that both goals identified in 

Howard are met and that no jurors are coerced into changing their opinion. But the 

trial court’s charge substantially complied with Howard, and we cannot find that the 

outcome of the proceedings would have been different but for the charge. 

{¶20} We likewise find no error in the trial court’s instruction that the jury 

resume deliberations for the set time of 30 minutes. The trial court did not pressure 

the jury to reach a verdict within that time frame, nor did it indicate that it would 
OHIO FIRST DISTRICT COURT OF APPEALS 

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declare a mistrial at the end of that time frame if a verdict was not reached. See State 

v. Johns, 60 Ohio App.3d 88, 92, 573 N.E.2d 766 (1st Dist.1989). 

{¶21} Helm’s first assignment of error is overruled. 

Jury Issues 

{¶22} In his second assignment of error, Helm argues that the trial court 

erred by not properly admonishing the jury during trial. 

{¶23} R.C. 2945.34 provides that when the jury is permitted to separate 

during trial, the trial court shall admonish the jurors “not to converse with, nor 

permit themselves to be addressed by any person, nor to listen to any conversation 

on the subject of the trial, nor form or express any opinion thereon, until the case is 

finally submitted to them.” 

{¶24} Helm contends that the trial court failed to comply with R.C. 2945.34 

because it did not instruct the jurors not to form or express an opinion on the case 

until it was submitted to them. He is correct. The record indicates that, while the 

trial court did admonish the jurors not to discuss the case when separated, it failed to 

instruct them not to form an opinion on the matter prior to submission. Helm failed 

to object to any of the trial court’s admonishments, or lack thereof, during trial. 

Consequently, we review only for plain error. See State v. Stout, 12th Dist. Warren 

No. CA2010-04-039, 2010-Ohio-4799, ¶ 56. Plain error is that which affects the 

defendant’s substantial rights. See Crim.R. 52(B). 

{¶25} R.C. 2945.34 does not prescribe reversal for a trial court’s 

noncompliance. See Stout at ¶ 57; State v. Rose, 2d Dist. Montgomery No. 17431, 

1999 Ohio App. LEXIS 3824, *5 (Aug. 20, 1999). The trial court should have fully 

complied with R.C. 2945.34 and given the complete admonishment provided by 
OHIO FIRST DISTRICT COURT OF APPEALS 

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statute. But the record contains no evidence that any juror engaged in misconduct or 

actually formed an opinion on the matter prior to the case being submitted. See 

State v. Beyer, 1st Dist. Hamilton No. C-76509, 1977 Ohio App. LEXIS 9332, *5 

(Nov. 23, 1977). We find that no plain error resulted from the trial court’s failure to 

comply with R.C. 2945.34. The second assignment of error is overruled. 

{¶26} In his third assignment of error, Helm argues that the trial court erred 

by failing to declare a mistrial when the jury conducted deliberations without all 

members present. He alleges that the trial court’s actions were in violation of R.C. 

2945.33, which provides that “[w]hen a cause is finally submitted the jurors must be 

kept together in a convenient place under the charge of an officer until they agree 

upon a verdict, or are discharged by the court.” 

{¶27} The record indicates that, during the deliberation phase of the trial, 

the trial court indicated on the record that it intended to release the jurors for lunch. 

At that point, one juror left the courtroom to feed a parking meter, apparently 

unbeknownst to the trial court. While that juror was gone, the trial court and 

counsel entered the jury room to provide off-the-record admonitions to the jury. The 

juror then returned from feeding the meter, and the trial court admonished all 

members of the jury on the record. 

{¶28} This episode was highly irregular. The juror should not have left the 

courtroom to feed the meter at that time, and the trial court should not have 

admonished the jury without all members present. But Helm never raised any 

objection to this procedure or requested that the trial court declare a mistrial. While 

the trial court did err in allowing the jury to separate in violation of R.C. 2945.33, we 

find that it did not amount to plain error because neither Helm’s substantial rights 
OHIO FIRST DISTRICT COURT OF APPEALS 

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nor the outcome of the trial were affected. See State v. Hunter, 1st Dist. Hamilton 

Nos. C-140684, C-140704 and C-140717, 2016-Ohio-123, ¶ 25. The record is clear 

that both the trial court and counsel were present with the jury the entire time the 

single juror had left to feed the meter. It contains no evidence that the jury engaged 

in deliberations without all members present, or that the juror who had left the 

courtroom engaged in any misconduct. The third assignment of error is overruled. 

Sufficiency and Weight 

{¶29} In his fourth assignment of error, Helm challenges the sufficiency and 

weight of the evidence supporting his convictions. 

{¶30} We do not weigh the evidence when considering its sufficiency. 

Rather, we must view all evidence and reasonable inferences in the light most 

favorable to the prosecution, and determine whether the trier of fact could have 

found all the elements of the offenses proven beyond a reasonable doubt. See State 

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). When reviewing 

the manifest weight of the evidence, we must consider the credibility of the witnesses 

and weigh the evidence presented to determine whether, in convicting Helm, the jury 

lost its way and created such a manifest miscarriage of justice that Helm’s 

convictions must be overturned. See State v. Thompkins, 78 Ohio St.3d 380, 387, 

678 N.E.2d 541 (1997). 

{¶31} Helm was found guilty of burglary under R.C. 2911.12(A)(2), which 

provides that 

No person, by force, stealth, or deception, shall * * * trespass in an 

occupied structure or in a separately secured or separately occupied 

portion of an occupied structure that is a permanent or temporary 
OHIO FIRST DISTRICT COURT OF APPEALS 

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habitation of any person when any person other than an accomplice of 

the offender is present or likely to be present, with purpose to commit 

in the habitation any criminal offense. 

Helm contends that he could not have been found guilty of burglary because he had 

been living with Barnes and had not trespassed into her residence. A trespass is 

committed when a person knowingly enters the land or premises of another without 

privilege to do so. See R.C. 2911.21(A)(1). When determining whether a trespass has 

occurred, the custody and control of the dwelling, rather than legal title, are 

dispositive. See State v. Lilly, 87 Ohio St.3d 97, 102, 717 N.E.2d 322 (1999). 

{¶32} Helm had no legal title to Barnes’ residence, nor did he have custody 

or control over the dwelling. The home was rented in Barnes’ name only, and Helm 

stayed with her when the two were in a relationship and his job did not require him 

to be out of town. The burglary occurred sometime in the late afternoon or early 

evening of June 25, 2014. Earlier that same day, Helm, of his own volition, moved all 

of his belongings out of Barnes’ residence and informed her via text message that he 

had done so. Barnes verified that he had left her premises, and she placed a kick bar 

in her front door to prevent Helm from using a key to enter. Barnes clearly had sole 

custody and control of the dwelling, and the record contains sufficient evidence to 

demonstrate that Helm had trespassed onto her property. 

{¶33} Helm further argues that the state introduced no evidence to establish 

that he had perpetrated the offense. We disagree. The police had found a knife 

sticking out of Barnes’ mattress and her pillow slashed. And the state had introduced 

into evidence numerous text messages that Helm had sent to Barnes, including one 
OHIO FIRST DISTRICT COURT OF APPEALS 

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stating “How did you like your pillow? Your [sic] next.” This was sufficient 

circumstantial evidence to establish Helm’s identity as the perpetrator of the offense. 

{¶34} With respect to his conviction for menacing by stalking, Helm alleges 

that the evidence was not sufficient to establish that Barnes had suffered mental 

distress. Helm was convicted of menacing by stalking under R.C. 2903.211(A)(1), 

which provides that “[n]o person by engaging in a pattern of conduct shall knowingly 

cause another person to believe that the offender will cause physical harm to the 

other person or cause mental distress to the other person.” 

{¶35} The evidence presented established that Barnes was terrified of Helm 

and believed that he would cause her physical harm. She reported his behavior to 

the police on numerous occasions and obtained a temporary protection order against 

him. She specifically testified that she feared for her safety and that her mental 

stability was held together by a string. Helm’s conviction for menacing by stalking 

was supported by sufficient evidence. 

{¶36} We further conclude that Helm’s convictions for burglary and 

menacing by stalking were supported by the weight of the evidence. The jury was in 

the best position to judge the credibility of the witnesses, and it was entitled to find 

credible the testimony offered by Barnes and reject that offered by Helm. 

{¶37} The fourth assignment of error is overruled, and the judgment of the 

trial court is affirmed. 

Judgment affirmed. 

FISCHER, P.J., and CUNNINGHAM, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.