[Cite as State v. Hooks, 2016-Ohio-5098.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

STATE OF OHIO, CASE NO. 7-15-10 

 PLAINTIFF-APPELLEE, 

 v. 

CHRISTOPHER M. HOOKS, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Henry County Common Pleas Court 

Trial Court No. 15-CR-0003 

Judgment Affirmed in Part, Reversed in Part, 

And Cause Remanded. 

Date of Decision: July 25, 2016 

 

APPEARANCES: 

Billy D. Harmon for Appellant 

 
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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Christopher M. Hooks (“Hooks”) brings this 

appeal from the judgment of the Court of Common Pleas of Henry County finding 

him guilty of two counts of burglary and sentencing him to an aggregate sentence 

of eleven years in prison. On appeal Hooks claims that 1) the evidence was 

insufficient, 2) the verdict was against the manifest weight of the evidence, 3) the 

trial court erred by allowing the state to amend the indictment during the trial, and 

4) the sentence imposed was contrary to law. For the reasons set forth below, the 

judgment is affirmed in part and reversed in part. 

{¶2} On January 7, 2015, the Napoleon Police Department received three 

separate reports regarding possible burglaries. The first report came from Tim 

Hoops (“Hoops”) who indicated that when he came home from work, he 

discovered that a Kohls bag, towels, and toothbrushes were missing from his 

apartment. A second report was made by witnesses who saw Hooks leaving an 

apartment. The third report was made by Sara Sweet regarding another unlawful 

entrance into an apartment. 

{¶3} On January 21, 2015, the Henry County Grand Jury indicted Hooks on 

four counts: 1) Burglary in violation of R.C. 2911.12(A)(2), a felony of the 

second degree; 2) Burglary in violation of R.C. 2911.12(A)(2), a felony of the 

second degree; 3) Aggravated Burglary in violation of R.C. 2911.11(A)(1), a 
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felony of the first degree; 4) Possessing Criminal Tools in violation of R.C. 

2923.24(A), a felony of the fifth degree. Doc. 2. The State moved on April 23, 

2015 to amend Count Three of the indictment from Aggravated Burglary to 

Burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree and to 

dismiss Count Four. Doc. 36. Hooks objected to the amendment on the grounds 

that it changed the name of the charged offense and the revised code section under 

which he was charged. Doc. 37. A hearing was held on the motion on April 28, 

2015. The trial court denied the motion to amend the indictment, but granted the 

motion to dismiss Count Four of the indictment. Doc. 62. 

{¶4} A jury trial was held on the three remaining counts from April 29 to 

April 30, 2015. The State renewed its motion to amend Count Three to Burglary 

in violation of R.C. 2911.12(A)(1), a felony of the second degree, and the trial 

court granted the motion. Apr. 30 Tr. 97. At the conclusion of the trial, the jury 

returned a verdict of not guilty of Count One, not guilty of Count Two as charged 

in the indictment, guilty of the lesser included offense of Burglary for Count Two, 

and guilty of Burglary for Count Three.1

 Doc. 45-49. On May 29, 2015, a 

sentencing hearing was held. Doc. 63. The trial court sentenced Hooks to serve 

three years in prison for the conviction pursuant to Count Two and eight years in 

 

1

 This court notes that the verdict forms do not specify the degree of offenses for which Hooks was 

convicted, instead just stating that he was found guilty of “Burglary”. The only way to know which 

statutory sections applied or the level of the offenses would be to review the sentencing entry. However, 

due to the outcome of the appeal, the trial court may address this issue on resentencing and we need not 

address it at this time. 
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prison for the conviction pursuant to Count Three. Id. The trial court ordered that 

the sentences be served consecutively for an aggregate sentence of eleven years in 

prison. Id. 

{¶5} On June 8, 2015, Hooks filed his notice of appeal from the above 

judgment. Doc. 64. Hooks raises the following assignments of error on appeal. 

First Assignment of Error 

The trial court erred in failing to grant [Hooks’] motions for 

acquittal, pursuant to Crim.R. 29, and [Hooks] was denied due 

process, as evidence in this case was insufficient to sustain a 

conviction. 

Second Assignment of Error 

The verdicts in this case were against the manifest weight of the 

evidence. 

Third Assignment of Error 

The trial court committed reversible error when it permitted an 

amendment to Count Three of the indictment that changed the 

name or identity of the crime charged. 

Fourth Assignment of Error 

The sentence imposed upon [Hooks] was contrary to law and an 

abuse of discretion.

{¶6} Initially, this court notes that the State has chosen not to file a brief in 

this case. “If an appellee fails to file the appellee’s brief within the time provided 

by this rule, or within the time as extended, the appellee will not be heard at oral 

argument; and in determining the appeal, the court may accept the appellant’s 
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statement of the facts and issues as correct and reverse the judgment if appellant’s 

brief reasonably appears to sustain such action.” App.R. 18(C). 

Sufficiency of the Evidence 

{¶7} Hooks alleges in his first assignment of error that the trial court erred 

by denying his motions for acquittal. “The court on motion of a defendant * * * 

after the evidence on either side is closed, shall order the entry of a judgment of 

acquittal of one or more offenses charged in the indictment * * * if the evidence is 

insufficient to sustain a conviction of such offense or offenses.” Crim.R. 29(A). 

When reviewing a question of sufficiency of the evidence, an appellate court 

determines whether, after viewing the evidence in a light most favorable to the 

prosecution, a rational trier of fact could find the essential elements of the crime 

charged proven beyond a reasonable doubt. State v. Blanton, 3d Dist. Marion No. 

9-15-07, 2015-Ohio-4620. 

{¶8} Here, Hooks was convicted pursuant to Count Two of the indictment 

of the lesser included offense of burglary in violation of R.C. 2911.12(A)(3), a 

felony of the third degree. The State was required to prove that Hooks 1) by force, 

stealth, or deception 2) trespassed in an occupied structure 3) with the purpose to 

commit a criminal offense. R.C. 2911.12(A)(3). An occupied structure is 

defined as any house which is occupied as a permanent habitation, regardless of 

whether any person is actually present. R.C. 2909.01(C)(2). 
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{¶9} Hoops testified that when he came home from lunch, he noted that 

someone had broken into his home during his absence. Apr. 29, 2015 Tr. 121-

122. He knew this because part of the door jamb was lying on the floor. Id. After 

walking through the house with an officer, he discovered that a Kohls bag 

containing blue green towels and a package of toothbrushes were missing from the 

home. Id. at 122-27. Hoops then identified a photo of a Kohls bag photographed 

in Hooks’ car as appearing to contain an item the same color as the missing 

towels. Id. at 124. Additionally, Detective Jamie Mendez testified that boots 

found on Hooks when he was arrested had a similar tread pattern to prints found in 

the snow outside of Hoops’ apartment. Apr. 30, 2015 Tr. 75. Even viewing this 

evidence in a light most favorable to the prosecution, there is no evidence 

presented that Hooks was the person who trespassed in the apartment. All the 

evidence shows is that someone did so and they stole some towels that were in a 

generic Kohls shopping bag and some toothbrushes. There was evidence that 

there was a generic Kohls shopping bag seen in Hooks’ car, but the content was 

not known. There was a footprint found in the snow on a sidewalk outside of the 

apartment that was similar to that of the boots worn by Hooks on the day in 

question. However, this evidence does not show that it was actually Hooks who 

was at the scene. The snow had been there for days and there was no evidence 

that the print was from the same day as the burglary. Additionally, there was a 
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great deal of evidence presented that indicated that multiple brands of boots had 

the same tread pattern and were sold at multiple stores, such as Walmart and 

Meijers. Even if it was Hooks who was present, there is no evidence that he was 

the person who trespassed in the apartment.2

 On any given day, there could be 

numerous cars containing a generic Kohls shopping bag, so the fact that one was 

seen in Hooks’ vehicle is not sufficient to infer that he stole it from Hoops’ 

residence.3

 The State presents no argument on appeal that would indicate that the 

evidence was sufficient. Even viewing the evidence in a light most favorable to 

the State, the evidence is not sufficient to find beyond a reasonable doubt that 

Hooks committed burglary as set forth in Count Two of the indictment. 

{¶10} As to Count Three, Hooks was convicted of burglary in violation of 

R.C. 2911.12(A)(2), a felony of the second degree. This charge means the State 

was required to prove that Hooks 1) by force, stealth, or deception 2) trespassed in 

an occupied structure 3) when another person, other than an accomplice, was 

present or likely to be present 4) with the intent to commit a criminal offense. 

R.C. 2911.12(A)(2). 

{¶11} Michael Bailey (“Bailey”) testified that he lived at an apartment on 

Oakwood Avenue. Apr. 29, 2015 Tr. 155. When he returned home from going to 

 

2

 This does not even take into consideration that the neighboring apartment in the duplex was also broken 

into on that same morning, but Hooks was not convicted of that offense because the boot print on the door 

of that apartment did not match Hooks’. 

3

 We recognize that the State would have been able to present additional evidence had there not been 

mistakes made that led to the suppression of evidence. However, that evidence was not presented to the 

jury and may not be considered by us on appeal. 
Case No. 7-15-10 

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lunch with family members on January 7, 2015, he noticed that it looked like 

someone had “used a crowbar” on his door and it would not open. Id. at 156-57. 

Bailey testified that his nephew went around back and then the front door opened 

and someone ran past him out of the apartment. Id. at 157. Bailey and his son, 

Anthony Cruz-Bailey (“Anthony”) then started chasing after the man. Id. at 158-

59. Eventually Anthony tackled the man and held him until the police arrived. Id. 

at 160. Bailey identified the man they caught as Hooks. Id. at 161. Bailey 

indicated that nothing was taken from the apartment that day. Id. at 165. 

{¶12} Aurora Cruz-Bailey (“Aurora”) testified that she was living in the 

apartment with her father, Bailey, on the date in question. Id. at 167. When they 

returned from lunch, she went to the office and was walking back when someone 

ran past her, hitting and pushing her in the process. Id. at 168. Aurora identified 

Hooks as the man who ran into her while he was running away from the area 

around the apartment. Id. at 170. When she went into the apartment, she saw the 

door had been forced open and her television was on the floor near the door. Id. 

{¶13} Anthony testified that he also lived in the apartment on the date in 

question. Id. at 176. When they arrived home, the door would not open. Id. at 

178. A minute or so later, a man came running out of the front door. Id. Anthony 

then began chasing him and followed him across the parking lot. Id. at 179. 

Anthony testified that he lost sight of the man for a while, but then saw him again 
Case No. 7-15-10 

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running back towards him. Id. at 181. The man then hit the road, slipped, and 

Anthony then tackled him. Id. Anthony identified the man as Hooks. Id. at 182. 

{¶14} Officer Patrick Lannan (“Lannan”) testified that he was dispatched to 

the scene at the apartment complex on Oakwood Avenue after being notified that a 

suspect in a burglary was being detained by the victims. Apr. 30, 2015 Tr. 6. 

When he arrived, Hooks was being held down by another person. Id. at 8. Lannan 

identified Hooks in the courtroom as being the man being detained at the scene. 

Id. at 10. 

{¶15} Based upon the evidence stated above and viewing it in a light most 

favorable to the State, there is sufficient evidence that Hooks was the person who 

trespassed into an occupied structure as he was seen running out of the house by 

multiple witnesses. Testimony was presented that it was likely that a person 

would be there at that time as they had only left to go out to lunch and run some 

errands. Finally, there was testimony that Aurora’s television had been moved 

from its normal location to the floor by the door, from which a reasonable juror 

could infer that Hooks intended to commit the criminal offense of theft while in 

the apartment. As there was evidence on each element of the offense for which he 

was convicted, the verdict as to amended Count Three was supported by sufficient 

evidence. 
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{¶16} The first assignment of error alleging that both verdicts were not 

supported by sufficient evidence is sustained as to the conviction for the lesser 

included offense related to Count Two, but overruled as to the amended Count 

Three. 

Manifest Weight of the Evidence 

{¶17} In the second assignment of error, Hooks claims that the verdicts 

were against the manifest weight of the evidence. Unlike sufficiency of the 

evidence, the question of manifest weight of the evidence does not view the 

evidence in a light most favorable to the prosecution. 

Weight of the evidence concerns “the inclination of the greater 

amount of credible evidence, offered in a trial to support one 

side of the issue rather than the other. It indicates clearly to the 

jury that the party having the burden of proof will be entitled to 

their verdict, if, on weighing the evidence in their minds, they 

shall find the greater amount of credible evidence sustains the 

issue which is to be established before them. Weight is not a 

question of mathematics, but depends on its effect in inducing 

belief.” 

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) (citing Black's 

Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the 

exceptional case in which the evidence weighs heavily against conviction. Id. 

Although the appellate court acts as a thirteenth juror, it still must give due 

deference to the findings made by the jury. 

The fact-finder, being the jury, occupies a superior position in 

determining credibility. The fact-finder can hear and see as well 
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as observe the body language, evaluate voice inflections, observe 

hand gestures, perceive the interplay between the witness and 

the examiner, and watch the witness' reaction to exhibits and the 

like. Determining credibility from a sterile transcript is a 

Herculean endeavor. A reviewing court must, therefore, accord 

due deference to the credibility determinations made by the factfinder. 

State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist. 1998). 

Having found that the conviction for the burglary setting forth the allegations of 

Count Two was not supported by sufficient evidence, it would be against the 

manifest weight of the evidence as well. Thus, we need only consider whether the 

conviction for burglary pursuant to Count Three was against the manifest weight 

of the evidence. 

{¶18} Hooks’ sole argument regarding the third count of the indictment 

was that the State failed to show Hooks’ intent to commit a criminal offense while 

in the house. However, evidence was presented that Hooks had forced his way 

into the apartment on Oakwood by prying the door open. Testimony was given 

that the television had been moved from its stand and was found by the door. A 

reasonable juror could conclude that Hooks had intended to remove the television 

from the home. Therefore, there was credible evidence to support their 

determination that Hooks had a criminal intent when he entered the apartment. 

The evidence does not weigh heavily against conviction and is thus not against the 
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manifest weight of the evidence. The second assignment of error is sustained as to 

count one and overruled as to count three of the indictment. 

Amending the Indictment 

{¶19} In the third assignment of error, Hooks claims that the trial court 

erred by granting the State’s motion to amend the indictment to a different offense 

with a different penalty during the trial. An indictment may be amended during 

trial as long as that amendment does not change “the name or identity of the crime 

charged.” Crim.R. 7(D). The Supreme Court of Ohio has indicated that if the 

name of the offense or the identity of the crime charged occurs, then the 

indictment is improper. State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 

N.E.2d 609. The identity of a crime is changed when the penalty or degree of the 

offense is altered by the amendment. Id. at ¶ 5. “Crim.R. 7(D) does not permit the 

amendment of an indictment when the amendment changes the penalty or degree 

of the charged offense * * *.” Id. at ¶ 9. However, in Davis, the State was seeking 

to increase the charge, not reduce it to a lesser included offense. It did not present 

a situation similar to this case where the penalty was decreased and the 

amendment was to a lesser included offense. This is significant as it presents no 

similar grand jury issue as discussed in Davis, because in this case, the grand jury 

had already and necessarily found all of the specific elements to the amended 
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Burglary offense when it indicted Hooks for the original Aggravated Burglary 

offense. 

{¶20} Both the Eighth District Court of Appeals and the Ninth District 

Court of Appeals have discussed this same issue in situations where the charge 

was being reduced to a lesser included offenses. Both courts have determined that 

allowing the amendment to the lesser included offense does not violate Crim.R. 

7(D). We concur with this opinion. 

{¶21} In State v. Simmons, the Eighth District Court of Appeals allowed an 

amendment from a kidnapping charge to one of abduction. 8th Dist. Cuyahoga No. 

96208, 2011-Ohio-6074. This amendment changed the name and the degree of the 

offense. 

“The amendment of a charge ‘in an indictment to a lesser 

included offense does not change the name or identity of the 

crime charged.’ ” Cleveland v. Smith, 8th Dist. No. 81778, 2009-

Ohio-3594, ¶ 6, quoting State v. Watson, 5th Dist. No. 

2004CA00286, 2005-Ohio-1729, ¶ 10. “[I]f lesser offenses are 

included within the offense charged, the defendant may be found 

* * * guilty of * * * a lesser included offense.” Crim.R.31(C). 

Abduction is a lesser included offense of kidnapping. State v. 

Roman, 8th Dist. No. 92743, 2010-Ohio-3593, ¶ 5 * * * . 

Simmons, supra at ¶ 49. 

{¶22} Likewise, the Ninth District Court of Appeals in State v. Washington

reached a similar conclusion. 9th Dist. Summit No. 24997, 2010-Ohio-3389. In 

Washington, the defendant was originally charged with Grand Theft in violation of 
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R.C. 2913.02(A)(1)(4). The State was allowed to amend the indictment to Theft 

in the same statutory section. The court in Washington reasoned that “an 

amendment to an indictment which charges the defendant with an inferior degree 

of the original, indicted offense does not violate Crim.R. 7(D).” Id. at ¶4. 

{¶23} Here, the indictment charged Hooks with aggravated burglary in 

violation of R.C. 2911.11(A)(1), which was a felony of the first degree. However, 

during the trial, the trial court permitted the State to amend this count of the 

indictment to a count of burglary in violation of R.C. 2911.12(A)(2), a felony of 

the second degree. This amendment changed the name of the offense charged and 

changed the identity of the offense by changing the degree. However, it amended 

the charge to a lesser included offense of the original. Burglary is clearly a lesser 

included offense of Aggravated Burglary as the Aggravated Burglary charge 

indicted in this case could not have been committed without first committing the 

Burglary charge to which it was amended. See State v. Walton, 8th Dist. 

Cuyahoga No. 85260, 2005-Ohio-3430, ¶ 27 (determining that Burglary is a lesser 

included offense of Aggravated Burglary); State v. Wamsley, 7th Dist. Columbiana 

No. 05 CO 11, 2009-Ohio-1858, ¶ 58 (determining that Burglary is a lesser 

included offense of Aggravated Burglary). 

{¶24} Moreover, as noted earlier, the grand jury would have already and 

necessarily found all of the elements necessary for the Burglary in order to indict 
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Hooks of Aggravated Burglary. As a result, there was no legitimate rationale to 

not allow the amendment, particularly when the evidence in this case would have 

warranted a lesser included instruction on the Burglary offense in the amendment 

in any event. Thus, it did not violate Crim.R. 7(D). For this reason, the third 

assignment of error is overruled. 

Sentencing

{¶25} Hooks alleges in the fourth assignment of error that the sentences 

imposed were contrary to law. As the conviction as to Count Two has been 

reversed as being not supported by sufficient evidence, any argument concerning 

the imposition of consecutive sentences is moot. As a new sentence will need to 

be imposed upon Hooks, any remaining questions are also moot and will not be 

addressed at this time by the court. App.R. 12(A)(1)(c). 

{¶26} Having found error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Court of Common Pleas of Henry 

County is affirmed in part, and reversed in part. The matter is remanded to the 

trial court for further proceedings. 

Judgment Affirmed in Part, 

Reversed in Part, 

 and Cause Remanded. 

SHAW, P.J. concurs. 

ROGERS, J. concurs in judgment only.