[Cite as State v. Fazenbaker , 2021-Ohio-3447.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. ANDREW S. FAZENBAKER Appellant C.A. No. 29108

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 18 03 0749

DECISION AND JOURNAL ENTRY Dated: September 30, 2021

CARR, Judge. {¶1} Appellant, Andrew S. Fazenbaker, appeals the judgment of the Su mmit County Court of Common Pleas. Although this Court initially reversed the trial court’s judgment, the Supreme Court of Ohio subsequen tly reversed this Court’s decisi on and remanded the matter to address Fazenbaker’s remaining assignments of error that had pr eviously been deemed moot. Upon consideration of Fazenbaker’ s remaining assignments of err or, this Court affirms in part, reverses in part, and remands.

I. {¶2} This matter arises out of an a lleged breaking and entering that occurred at a storage facility in Akron, Ohio. This Court set forth many of the relevant procedural facts in its prior decision: On May 31, 2017, D.B. and R.B. traveled to Storage Zone in Akro n, Ohio, in order to prepare their travel tr ailer for an upcoming camping t rip. When they arrived at the storage facility, they discovered that someone h ad broken into the trailer and stolen el ectronic equipment.2

Thereafter, the Summit County Grand Jury indicted Fazenbaker on one count of breaking and entering. Fazenbaker pleaded not guilty to the ch arge at arraignment and the matter proceeded to trial. The jury found Fazenbaker guilty of the sole charge in the indic tment. The trial court imposed a 12-month prison sentence and ordered the senten ce to be served consecutively to Fazenbaker's sentence in a separate criminal case. State v. Fazenbaker , 9th Dist. Summit No. 29108, 2019-Ohio-3972, ¶ 2-3. {¶3} Fazenbaker appealed and raised five assignments of error. This Court reversed Fazenbaker’s conviction on sufficiency grounds on the basis tha t the State did not demonstrate that the trailer in question me t the definition of unoccupied s tructure for the purposes of R.C. 2911.13(A). Fazenbaker , 2019-Ohio-3972, at ¶ 18-19; but see ¶ 22-30 (Teodosio, J., dissenting). The Supreme Court of Ohio subse quently reversed this Court’s de cision, holding that “a structure that is specifically designed for overnight accommoda tion and physically capable of being occupied, but is winteri zed, covered, stored, and uninhab ited at the time of a break-in, is an unoccupied structure for the purposes of R.C. 2911.13(A).” State v. Fazenbaker , 163 Ohio St.3d 405, 2020-Ohio-6731, ¶ 1. The high court remanded the matter f or this Court to consider Fazenbaker’s assignments of erro r that had previously been deem ed moot. Id . at ¶ 15. {¶4} Pursuant to the Supreme Court’ s remand, this Court now addresse s Fazenbaker’s remaining assignments of error.

II.

ASSIGNMENT OF ERROR I

THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT FOR BREAKING AND ENTERING.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY NOT GRANTING DEFENSE COUNSEL’S [CRIM.R. 29] MOTION.3

{¶5} In his first and third assignments of error, Fazenbaker challen ged the sufficiency

of the evidence on the basis that the trailer at issue in this case did not constitute an unoccupied structure for the purposes of R.C. 2911.13(A). As noted above, the Supreme Court of Ohio has

addressed this issue a nd concluded that the State presented evi dence that the trailer did, in fact, constitute an unoccupi ed structure. Fazenbaker , 163 Ohio St.3d 405, 2020-Ohio-6731, at ¶ 14.

ASSIGNMENT OF ERROR II

THE VERDICT OF GUILTY FOR BREAKING AND ENTERING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶6} In his second assignment of error, Fazenbaker argues that his c onviction for breaking and entering was against t he manifest weight of the ev idence. This Court disagrees. {¶7} Fazenbaker was convicted of viol ating R.C. 2911.13(A), which pr ovides, “[n]o person by force, stealth, or deception shall trespass in an uno ccupied structure, with purpose to commit therein any theft offense, as defined in [R.C. 2913.01], or any felony.” R.C. 2911.13(C) provides that “[w]however violates this section is guilty of br eaking and entering, a felony of the fifth degree.” {¶8} In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, weigh the evi dence and all reasonable inferences, consider the credibility of witnesses an d determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). {¶9} “When a court of appeals reverses a judgment of a trial court o n the basis that the verdict is against the weight of the evidence, the appellate co urt sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the conflictin g testimony.” State v. Thompkins , 784

Ohio St.3d 380, 387 (1997), quoting Tibbs v. Florida , 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a judgment as agains t the manifest weight of the evidence only in exceptional cases. Otten at 340. {¶10} In support of his manifest weight challenge, Fazenbaker argues that “[i]n the present case it is clear that the jury ignored the obvious fact that a fully covered winterized trailer that had been parked in a storage area and unused for over a ye ar is not an unoccupied structure pursuant to R.C. 2911.13.” Fazenbaker maintains that the weigh t of the evidence supports the conclusion that the trailer in this case, much like the Volkswa gen bus at issue in State v. Carroll , 62 Ohio St.2d 313 (1980), fell outsi de the definition of unoccu pied structure. {¶11} Fazenbaker’s argument is without m erit. The State presented ev idence that Fazenbaker broke into a hard body travel trailer that contained a bedroom, a living room, a bathroom, and a kitche nette. The trailer was winterized, cover ed, and placed in a storage facility. This Court remains mindful that the Supreme Court held that “a structure that is specifically designed for overnight accommodation and physically capable of being occupied, but is winterized, covered, stored, and uninhabited at the time of a b reak-in, is an unoccupied structure for the purposes of R.C. 2911.13(A).” Fazenbaker , 163 Ohio St.3d 405, 2020-Ohio-6731, at ¶ 1. It follows that this is not the exceptional case where the weig ht of the evidence supports the

conclusion that the trier of f act clearly lost its way. {¶12} The second assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT DENIED DEFENDANT DUE PROCESS BY FAILING TO PROPERLY CHARGE THE JURY ABOUT “UNOCCUPIED STRUCTURE” AND BY ALLOWING THE STATE TO ASK A QUESTION THAT PRESUMED DEFENDANT’S GUILT.5

{¶13} In his fourth assignment of error, Fazenbaker contends that the trial court violated his due process rights when it ga ve jury instructions that pres umed that the tra iler in question was “a structure[.]” Fazenbaker furt her contends that the trial co urt improperly permitted the State to ask Officer Shawn Brady how Fazenbaker may have entered the tra iler. This Court disagrees

with both assertions. Jury Instructions {¶14} Fazenbaker argues that “[a] revi ew of the jury charges indicate s that the [t]rial [c]ourt falsely assumed the trailer in question was a structure , which gave the impression to the jury that the fully covered trailer was a structure pursuant to R.C. 2911.13.” Fazenbaker

maintains that the trial court’s failure to define the term uno ccupied structure created confusion for the jury. {¶15} A review of the record reveals that when Fazenbaker moved for a judgment of acquittal on the basis that the State failed to demonstrate tha t this case involved an “unoccupied structure[,]” the trial court noted that there had been a “leng thy discussion” about the issue in

chambers. The trial court noted that the term unoccupied struc ture was not defined in the Ohio

Revised Code. Based on the defi nition of occupied structure se t forth in R.C. 2909.01(C), however, the trial court observe d that the trailer in this case could be considered an unoccupied structure given that it was a “shelter or structure” intended f or temporary living that was not in use at the time of the break in. The trial court ultimately de nied the Crim.R. 29(A) motion on the basis that the issue should go to the jury because reasonable j urors could differ as to whether the State had proven whether the trailer constituted an unoccupied structure. The trial court instructed the jury shortly the reafter. While the trial court set forth the elements of breaking and entering, and further instructed t he jury that the State was re quired to prove every element of the6

charged offense, the trial court did not define the term “unocc upied structure.” Fazenbaker did not object to the jury instructions. {¶16} Pursuant to Crim.R. 52(B), “[p]la in errors or defects affecting substantial rights may be noticed although they wer e not brought to the attention of the court.” “In order to constitute plain error, an error must be obvious and have a sub stantial adverse impact on the integrity of and the public’s confidence in judicial proceeding s.” State v. Tichon , 102 Ohio App.3d 758, 767 (9th Dist.1995). A revie wing court must take n otice of plain error only with the utmost caution, and only then to prevent a manifest miscarriage of justice. State v. Bray , 9th Dist. Lorain No. 03CA008241, 2004-Ohio-1067, ¶ 12. This Court will not reverse the judgment

of the trial court on the basis of plain error unless appellant has demonstrated that the outcome of trial clearly would have been dif ferent but for the alleged err or. State v. Kobelka , 9th Dist. Lorain No. 01CA007808, 2001 WL 1379440, *2 (Nov. 7, 2001). {¶17} Fazenbaker cannot prevail on his ch allenge to the jury instruct ions. Absent plain error, a party waives any challe nge to jury instructions unless the party “objects before the jury retires to consider its verdict, stating specifically the matte r objected to and the grounds of the objection.” Crim.R. 30(A). Here, Fazenbaker did not object to the trial court’s jury instructions pursuant to Crim.R. 30(A). Acco rdingly, he has forfeited all b ut plain error. Fazenbaker has not set forth a plain error argument on appeal. “[T]his Court will not undertake a plai n error analysis sua sponte when the appellant has failed to assert such an argu ment in his brief.” State v. Gray , 9th Dist. Wayne No. 08CA0057, 2009-Ohio-3165, ¶ 7. Accordingly , this Court declines to create a plain error argument on Fazenbaker’s behalf.7

Testimonial Evidence {¶18} Fazenbaker contends that the trial court improperly permitted t he State to elicit Officer Brady’s opinion as to how Fazenbaker may have entered t he trailer. Though Fazenbaker references due process in his assignment of error, he has not p ointed to a constitutional standard in support of his position. See App.R. 16(A)(7). Instead, Fazenbaker simply asserts that the State’s question was highly prejudi cial because it presumed his guilt. {¶19} This Court generally reviews a trial court’s decision to admit testimony for an

abuse of discretion. See State v. Green , 9th Dist. Summit No. 29120, 2019-Ohio-4967, ¶ 18. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶20} Officer Brady was dispatched to Storage Zone on May 31, 2017, i n response to a reported breaking and entering. O fficer Brady testified that u pon arriving at Storage Zone, he encountered D.B. and R.B., who e xplained that someone had broke n into their trailer. D.B. and R.B. had not used the trailer since late 2015. When they arriv ed to do some work on the trailer in preparation for an upcoming camping trip, they noticed that the window on the side of the trailer was open. Officer Bra dy entered through the man door a nd found the inside of the trailer in disarray. Several items had been stolen. Officer Brady als o found a cigarette butt on the floor of the trailer. Given that D.B. and R.B. did not smoke, Office r Brady took the cigarette butt into

evidence. 1

1 The State filed a pretrial mo tion pursuant to Evid.R. 404(B) t o introduce evidence that Fazenbaker had been involved in a separate theft at the same st orage facility where law enforcement had discovered a ci garette butt. DNA testing on th e cigarette butt matched Fazenbaker’s DNA profile. The trial court granted the motion. Prior to Officer Brady taking the witness stand, Detective Lombar di testified that in January 201 7 he investigated a theft involving8

{¶21} On cross-examination, defense c ounsel inquired as to whether th e perpetrator used force in entering the tra iler. Officer Brady acknowledged that it did not appear force was used. Pressing the point, defens e counsel then asked, “[s]o * * * there was no evidence presented to you that anyone manipulated any sort of locks or w indows to enter the RV?” Officer Brady responded in the negative and explained, “There w as just no force on the door. * * * Nobody used a crowbar to get in and pull the door open or any thing like that.” After establishing that Officer Brady di d not obtain fingerprints at the scene, defense counsel then asked whether “[t]he defendant’s DNA was [] derived from any ot her sources [other than] the cigarette butt[.]” Officer Brady testified that the cigarette butt was the sole source of DNA

evidence and that he did not rec over any other evidence at the scene. {¶22} On re-direct examination, the State asked Officer Brady if ther e was anything that caught his attention when he first saw the trailer. Officer Br ady testified that he saw a small window popped open with the screen missing. The State then ask ed, “based upon your professional experience, how do you believe the defendant may h ave entered that vehicle?” Defense counsel objected and the trial court overruled the obje ction. Officer Brady then answered, “I believe through the window.” {¶23} The trial court did not abuse its discretion when it permitted Officer Brady to answer the State’s question re garding how Fazenbaker may have e ntered the vehicle. The testimony at issue occurred during a line of questioning regard ing how the trailer may have been breached. On cross-examination, defense counsel acknowledged t he fact that Fazenbaker’s

a Matco Tool truck at the storage facility. DNA testing on a c igarette butt found at the scene in that case resulted in a match with Fazenbaker. The parties sti pulated to the BCI report from the prior case. Subsequently, after Officer Brady had testified, t he State called a forensic analysist from BCI who testified that DNA te sting on the cigarette butt f ound at the scene in this case also matched Fazenbake r’s DNA profile.9

DNA was found on the cigarette bu tt located inside the trailer. In turn, the State took up a line of questioning on redirect examinati on regarding how Fazenbaker mi ght have entered the trailer. Under these circumstances, we ca nnot say that the trial court’s decision to overrule the objection was unreasonable, arbitrary or unconscionable given the context of Officer Brady’s testimony.

See Blakemore , 5 Ohio St.3d at 219. Even assuming arguendo that overruling Fazenbaker’s objection was improper, any error was harmless given that the S tate presented separate evidence that Fazenbaker’s DNA was on the cigarette butt located inside the trailer. See Crim R. 52(A);

State v. Williams , 6 Ohio St.3d 281 (1983), at paragra ph six of the syllabus. {¶24} The fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY SENTENCING DEFENDANT TO CONSECUTIVE PRISON SENTENCES AFTER HE INSISTED ON HIS CONSTITUTIONAL RIGHT TO TRIAL. {¶25} In his final assignment of error, Fazenbaker raises multiple ar guments in support

of his contention that the trial court erred in imposing consec utive sentences. Most notably, Fazenbaker contends that the trial court did not make the requi red findings in support of its decision to impose consecutive sentences. {¶26} At sentencing, the trial court imposed a 12-month prison senten ce on the sole count of breaking and entering a nd ordered Fazenbaker to pay $5 00 in restitution. The trial court

further ordered the sentence in this matter to be served consec utive to the sentence in Case No. CR-2017-05-1544, where Fazenbaker was already serving an 18-mon th prison term for grand

theft. {¶27} The Supreme Court of Ohio has held that “an appellate court may vacate or modify a felony sentence on appeal only if it determines by cle ar and convincing evidence that10

the record does not support the trial court’s findings under re levant statutes or that the sentence is otherwise contrary to law.” State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1; R.C. 2953.08(G)(2). {¶28} R.C. 2929.41 states, in part, that except as provided under R.C . 2929.14(C), “a prison term, jail term, or sentence of imprisonment shall be se rved concurrently with any other prison term, jail term, or sente nce of imprisonment imposed by a court of this state[.]” In order to impose consecutive sentences , “a trial court is required to make the findings mandated by R.C. 2929(C)(4) at the sentencing hear ing and incorporate its findin gs into its sentencing entry * * *.”

State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus. Notably, howev er, the trial court “has no obligation to state reasons to support its findin gs.” Id . R.C. 2929.14(C) does not differentiate between imposing consecutive sentences on multipl e counts in a single case and imposing consecutive sentences on multiple counts in separate c ases. See State v. Gossett , 8th Dist. Cuyahoga No. 107871, 2019-Ohio-3284, ¶ 8. {¶29} R.C. 2929.14(C)(4) provides as follows: If multiple prison terms are imposed on an offender for convict ions of multiple offenses, the court may require the offender to serve the priso n terms consecutively if the court finds that the consecutive service i s necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the of fender’s conduct and to the danger the offender poses to the public, and if the cour t also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or s entencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, orwas under postrelease control for a prior offense. (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm c aused by two or more of the m ultiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of a ny of the courses of conduct ade quately reflects the seriousness of the offender’s conduct.11

(c) The offender’s history of criminal conduct demonstrates tha t consecutive sentences are necessary to protect the public from future crime by the offender. {¶30} A review of the record in this case reveals that the trial cour t did not make findings in support of consecutive sentences at the sentencing hearing, nor did it set forth such findings in its sentencing entry. The State has conceded error on this point on appeal. This matter must be remanded for the limited purpose of providing th e trial court with an opportunity to make findings in support of its decision to impose consecuti ve sentences. {¶31} The fifth assignment of error is sustained to the extent that t he trial court did not make the requisite f indings in support of its decision to impos e consecutive sentences.

III. {¶32} Fazenbaker’s second and fourth assignments of error are overrul ed. Fazenbaker’s fifth assignment of error is sustained to the limited extent th at this matter must be remanded to provide the trial court with an opportunity to make findings in support of its decision to impose consecutive sentences. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and the cause remanded for further p roceedings consistent with this

decision. Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.12

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed equa lly to both parties.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: JAMES W. ARMSTRONG, Attorn ey at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.