[Cite as State v. Rogers, 2019-Ohio-4834.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2018-L-119

 - vs - : 

FRANK M. ROGERS, : 

 Defendant-Appellant. : 

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR 

000458. 

Judgment: Affirmed in part and reversed and vacated in part. 

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant 

Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, 

Painesville, OH 44077 (For Plaintiff-Appellee). 

Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 

(For Defendant-Appellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Frank M. Rogers, appeals the October 22, 2018, Judgment 

Entry of the Lake County Court of Common Pleas sentencing him to four years on each 

of six counts of burglary for a total of 24 years to be run consecutively. For the reasons 

discussed herein, the judgment of the Lake County Court of Common Pleas is affirmed 

in part and reversed and vacated in part. 
 2

{¶2} Mr. Rogers was indicted on six counts of burglary that all occurred on 

October 19, 2017. The case proceeded to trial and the jury ultimately convicted him on 

all six counts of burglary, felonies of the second degree, in violation of R.C. 

2911.12(A)(2). The court sentenced Mr. Rogers to four years in prison on each count, 

to be run consecutively to one another, and ordered him to pay restitution to each of the 

victims. Mr. Rogers now appeals and sets forth four assignments of error for our 

review, which we take out of order. 

{¶3} Mr. Rogers’ third assignment of error states: 

{¶4} The convictions for burglary were not supported by sufficient 

evidence against Rogers. 

{¶5} Specifically, he calls into question whether there was sufficient evidence 

against him and whether the trial court erred in denying the motion for Crim.R. 29 

acquittal at the close of the evidence. 

{¶6} A Crim.R. 29 motion “challenges the sufficiency of the evidence

introduced by the state to support a conviction.” State v. Figueroa, 11th Dist. Ashtabula 

No. 2016-A-0034, 2018-Ohio-1453, ¶32. When reviewing the sufficiency of the 

evidence, we are required to weigh the evidence in favor of the prosecution. State v. 

Jenks, 61 Ohio St.3d 259, (1991), paragraph two of the syllabus, superseded by 

constitutional amendment on other grounds in State v. Smith, 80 Ohio St.3d 89 (1997). 

The question is whether “ʻa reasonable mind [m]ight fairly find each element of the 

offense beyond a reasonable doubt.”’ State v. Bridgeman, 55 Ohio St.2d 261, 263 

(1978), quoting United States v. Collon, 426 F.2d 939, 942 (6th Cir. 1970). 

{¶7} Crim.R. 29(A) states in pertinent part, “[t]he court on motion of a defendant 

or on its own motion, after the evidence on either side is closed, shall order the entry of 
 3

a judgment of acquittal of one or more offenses charged in the indictment, information, 

or complaint, if the evidence is insufficient to sustain a conviction of such offense or 

offenses.” Id. “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment 

of acquittal if the evidence is such that reasonable minds can reach different 

conclusions as to whether each material element of a crime has been proved beyond a 

reasonable doubt.” Bridgeman, supra, at syllabus. 

{¶8} Mr. Rogers was convicted of six counts of burglary, as defined by R.C. 

2911.12(A)(2), which states: 

{¶9} (A) No person, by force, stealth, or deception, shall do any of the 

following: 

{¶10} * * * 

{¶11} (2) Trespass in an occupied structure or in a separately secured or 

separately occupied portion of an occupied structure that is 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, with purpose to commit in the habitation any criminal 

offense[.] 

{¶12} Under this assignment of error, Mr. Rogers specifically asserts the state 

did not establish that someone was likely to be present in the homes. “The term ‘likely 

to be present’ ‘“connotes something more than a mere possibility, (* * *). A person is 

likely to be present when a consideration of all the circumstances would seem to justify 

a logical expectation that a person could be present.”‘” State v. Haas, 11th Dist. 

Portage No. 2009-P-0068, 2010-Ohio-6249, ¶33, quoting State v. Mitchell, 183 Ohio 

App.3d 254, 2009-Ohio-3393, at ¶18 (6th Dist.). See also State v. Burkett, 11th Dist. 

Portage No. 2009-P-0069, 2010-Ohio-6250, ¶32. “Critically, where the occupants of a 

house are almost always absent as part of their fixed work schedule, they are not likely 
 4

to be present during their regular working hours.” State v. Braden, 1st Dist. Hamilton 

No. C-170097, 2018-Ohio-563, ¶12. 

{¶13} The burden is on the state to show that someone was likely to be present. 

If the state fails to present any such evidence, the conviction cannot stand. See State v. 

Cochran, 11th Dist. Geauga No. 2006-G-2697, 2007-Ohio-345, ¶48. (Conviction and 

sentence reversed on one count when the state failed to provide evidence anyone was 

likely to be present at the time of the offense.). 

{¶14} In this case, the state presented evidence in four of the six counts of 

burglary to show that the homeowners were likely to present. 

{¶15} In support of Count 1, Mr. Zenisek testified that he and his wife lived at 

one of the burglarized homes, and that they were both retired. When the burglary 

occurred, his wife was at the grocery store and he had left to run a quick errand. 

{¶16} In support of Count 2, Mr. Chaffee testified that he and his family lived at 

one of the burglarized homes. Ms. Chaffee was commonly in and out of the home 

throughout the day, and at the time of the burglary, she had temporarily left to pick up 

her children from school. 

{¶17} In support of Count 4, Mrs. Hathy testified that she and her husband lived 

at one of the burglarized homes. She works out of their home, and when she has to be 

away, her father regularly stops by to care for her dogs. 

{¶18} In support of Count 5, Mrs. Reho testified that she and her husband lived 

at one of the burglarized homes. While they both usually work during the day, she was 

off on vacation on the day the burglary had occurred but had temporarily left to visit 

family and go to the grocery store. 
 5

{¶19} However, the state did not establish that “any person other than the 

accomplice of the offender is present or likely to be present” in Counts 3 and 6. 

{¶20} Regarding Count 3, Miguel Silva-Rangel testified that he lived at one of 

the burglarized homes with his parents and two brothers. However, his parents left for 

work and his brothers left for school or the babysitter’s house in the early morning. 

Miguel and his brother returned from school around 2:30 p.m. There was no testimony 

or evidence presented that this schedule was not their usual routine, nor that on 

October 19, 2017 it was likely that anyone was going to be home between 6:00 a.m. 

and 2:30 p.m., when the burglary occurred. 

{¶21} Likewise, regarding Count 6, Ms. Wayman testified that she lived at one of 

the burglarized homes but worked during the day. In fact, on the day in question, she 

testified she knew it was going to be a long day; she got up at 5:00 a.m. “as [she] 

always [does]” and left for work around 7:30 a.m. She worked nine hours and went 

directly to her daughter’s house to baby-sit, not returning to her home until around 9:30 

p.m. She expressly testified that she did not give anyone permission to be in her home 

that day. No evidence or testimony was presented to show this was an atypical 

schedule. Thus, the state failed to establish that anyone was likely to be home at the 

time the burglary occurred. 

{¶22} Accordingly, we find that the state failed to establish that anyone was 

likely to be present in the homes that are the subject of Counts 3 and 6. As no lesser 

included offenses were provided in the indictment or the jury instructions, we are 

constrained to reverse and vacate Mr. Rogers’ convictions on Counts 3 and 6. See 

State v. Bernard, 11th Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶55 (finding if 

there was insufficient evidence to support the trial court’s denial of appellant’s motion for 
 6

acquittal, the convictions must be vacated). See also Blockburger v. United States, 284 

U.S. 299, (1932); State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, ¶41 (“Blockburger 

applies to bar successive prosecutions for greater and lesser included offenses 

whatever the order of trials.”). 

{¶23} Mr. Rogers’ third assignment of error has merit solely as it relates to 

Counts 3 and 6; with regard to Counts 1, 2, 4, and 5, his third assignment of error has 

no merit. 

{¶24} Mr. Rogers’ second assignment of error states: 

{¶25} The convictions for burglary were against the manifest weight of the 

evidence. 

{¶26} When a court reviews the manifest weight of the evidence, it must observe 

the entire record, weigh the evidence and all reasonable inferences, and consider the 

credibility of the witnesses. State v. Sprecker, 11th Dist. Lake No. 2016-L-098, 2017-

Ohio-7291, ¶44, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In resolving 

conflicts in the evidence and deciding witness credibility, the court determines whether 

the trier of fact clearly lost its way and created such a manifest miscarriage of justice 

that the judgment must be reversed and a new trial ordered. Thompkins, supra, citing 

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “‘The discretionary power to 

grant a new trial should only be exercised in the exceptional case in which the evidence 

weighs heavily against the conviction.’” Thompkins, supra, citing Martin, supra, at 720-

721. “The role of the reviewing court is to engage in a limited weighing of the evidence 

in determining whether the state properly carried its burden of persuasion. * * * If the 

evidence is susceptible to more than one interpretation, an appellate court must 
 7

interpret it in a manner consistent with the verdict.” (Citations omitted.) Sprecker, 

supra, at ¶46. 

{¶27} Specifically, Mr. Rogers asserts that the jury lost its way in determining 

that he had committed any of the burglaries. As discussed under his third assignment 

of error, we agree as it pertains to Counts 3 and 6; however, for the following reasons, 

we are not convinced the jury lost its way as it pertains to Counts 1, 2, 4, and 5. 

{¶28} Based on the description of the vehicle seen by a victim’s neighbors and 

surveillance footage from a nearby business, Medina police initiated a traffic stop of a 

2004 pewter GMC Yukon thought to be the vehicle used in these burglaries. Ms. 

Bednarski and Mr. Rogers were passengers in the vehicle, which was owned and driven 

by Mr. Blackburn. Police also discovered in the vehicle several items linked to the 

burglarized homes in Lake County, including a distinct Mario Kart blanket, a custommade drawer from one of the victim’s closet, and several used video games that police 

were ultimately able to trace back to one of the victims using GameStop receipts. 

{¶29} Mr. Blackburn, Mr. Rogers’ co-defendant, is also charged with six counts 

of burglary. As part of a plea agreement, however, Mr. Blackburn agreed to testify 

against Mr. Rogers in exchange for the prosecution recommending only four years 

imprisonment to be run concurrently with the time he is presently serving. At trial, Mr. 

Blackburn testified that he and Mr. Rogers burglarized numerous homes in Lake County 

on October 19, 2017. According to Mr. Blackburn, he drove Mr. Rogers to the locations, 

and at each house, Mr. Rogers would exit the vehicle, break into the house by blunt 

force or return to the car to obtain tools to break in, and then five or ten minutes later 

would return to the vehicle with a pillowcase, blanket, or container of items from the 

house. The state presented evidence that Mr. Blackburn had severely limited mobility 
 8

due to injuries sustained in a motorcycle accident. Mr. Blackburn testified that he did 

not enter the houses himself because he walked too slowly, and it caused him pain to 

navigate stairs. 

{¶30} Additionally, Ms. Bednarski, who was not charged in relation to the Lake 

County burglaries, testified that Mr. Rogers and Mr. Blackburn took some of the stolen 

items to her house. She testified that Mr. Rogers bragged about how he and Mr. 

Blackburn had committed seven burglaries in one day and showed her some of the 

items they had taken. She was able to recall several stolen items, including specific 

pieces of jewelry, bowling balls, and the Mario Kart blanket. 

{¶31} Furthermore, the state presented evidence that Mr. Blackburn and Mr. 

Rogers’ cell phone records indicate that they were near four of the homes around the 

times the homes were burglarized. While Mr. Rogers presented evidence that others 

have used his cell phone in the past, he did not assert that was the case on October 19, 

2017, and offered no alternative location for his whereabouts that day. 

{¶32} In light of all the evidence, we cannot say that the jury lost its way in 

convicting Mr. Rogers’ on Counts 1, 2, 4, and 5. Thus, Mr. Rogers’ second assignment 

of error has merit solely as it relates to Counts 3 and 6; with regard to Counts 1, 2, 4, 

and 5, his second assignment of error has no merit. 

{¶33} Mr. Rogers’ first assignment of error states: 

{¶34} Rogers was denied his right to the effective assistance of counsel 

in violation of the Sixth amendment and Article I, Section 10 of the 

Ohio Constitution. 

{¶35} To establish ineffective assistance of counsel, the defendant “must show 

(1) deficient performance by counsel, that is, performance falling below an objective 

standard of reasonable representation, and (2) prejudice-a reasonable probability that, 
 9

but for counsel’s errors, the result would have been different.” State v. Myers, 154 Ohio 

St.3d 405, 2018-Ohio-1903, ¶183, citing Strickland v. Washington, 466 U.S. 668, 694 

(1984). 

{¶36} “There are countless ways to provide effective assistance in any given 

case. Even the best criminal defense attorneys would not defend a particular client in 

the same way.” Strickland, supra, at 689. See also State v. Rice, 11th Dist. Lake No. 

2018-L-065, 2019-Ohio-1415, ¶88. Furthermore, “‘“because of the difficulties inherent 

in making the evaluation, a court must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable, professional assistance. (* * *).” * * * 

Counsel’s performance will not be deemed ineffective unless and until counsel’s 

performance is proved to have fallen below an objective standard of reasonable 

representation and, in addition, prejudice arises from counsel’s performance. [Thus,] [t]o 

warrant reversal, ‘the defendant must show that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would be different. 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” * * *’”” (Citations omitted.) Id. at ¶89. 

{¶37} Mr. Rogers argues three ways in which he believes his trial counsel was 

ineffective. First, he asserts they failed to adequately cross-examine and impeach 

witnesses. 

{¶38} Both during trial and sentencing, Mr. Rogers made diffuse speeches 

objecting to his counsel’s performance. He repeatedly asked his counsel to “bring up 

issues regarding [the] cross-examination of Michael Blackburn” and prior statements 

about which houses were burglarized in order to show that Mr. “Blackburn was placing 

him at the scene in order to obtain the benefit of a light sentence.” He asserts there is 
 10 

an audio recording of Mr. Blackburn misidentifying one of the burglarized homes. We 

are not persuaded that the presentation of this evidence would have changed the 

ultimate outcome of the case. Mr. Blackburn testified that he was able to specifically 

identify four of the houses they burglarized, as well as details of the surrounding areas. 

This was corroborated by Sgt. Radovanic with the Lake County sheriff’s department, 

who testified that Mr. Blackburn was able to identify at least some of the burglarized 

homes. 

{¶39} Additionally, Mr. Rogers also asserts his counsel should have shown that 

Mr. Blackburn was selling items from the burglaries to impeach Mr. Blackburn’s 

testimony. These text messages however, were actually discussed by the prosecution 

on direct examination and by his defense counsel on cross-examination of Sgt. 

Radovanic. Specifically, Sgt. Radovanic testified that he discovered text message 

communications between Mr. Blackburn and Glenn Filmore, who Mr. Blackburn 

identified as his drug dealer, that discussed selling an Xbox and related equipment. 

{¶40} Even if viewing Mr. Rogers’ arguments as true, we are not persuaded his 

counsel was ineffective. It is well established that “[t]he scope of cross-examination 

falls within the ambit of trial strategy, and debatable trial tactics do not establish 

ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, ¶101. See also State v. Smith, 89 Ohio St.3d 323, (2000). (Finding even 

questionable trial strategy does not compel a finding of ineffective assistance of 

counsel. “In these situations, we normally defer to counsel’s judgment.”). Thus, Mr. 

Rogers’ assertion that his counsel was ineffective for failing to impeach Mr. Blackburn 

by use of these text messages is without merit. 
 11 

{¶41} Second, Mr. Rogers asserts his counsel was ineffective for failing to raise 

the issue of Rogers’ competency to stand trial. 

{¶42} “‘[A] person [who] lacks the capacity to understand the nature and object 

of the proceedings against him, to consult with counsel, and to assist in preparing his 

defense may not be subjected to a trial.’” Smith, supra, at 329, quoting Drope v. 

Missouri, 420 U.S. 162, 171 (1975). Mr. Rogers argues that he was unable to assist in 

preparing his defense because he had such ineffective assistance of counsel. 

Capacity, however, does not require that a defendant assist in preparing his defense, 

but that he has the capacity to do so. Mr. Rogers points to his “rambling, and somewhat 

incoherent speeches” as showing he had “mental difficulties.” His speeches, however, 

rather tend to show he understood the nature of the proceedings. He makes arguments 

about witnesses’ testimony and their purported motivations, about events that occurred 

in the days surrounding the burglaries in Lake County, and about how long he will be 

incarcerated. During sentencing, he asks whether this sentence is to run concurrently 

with the sentences from Medina and Cuyahoga counties. Mr. Rogers has not presented 

sufficient evidence to show he lacked the mental capacity to stand trial and his assertion 

that his trial counsel was ineffective for failing to ask for a competency hearing is without 

merit. 

{¶43} Finally, Mr. Rogers also faults his trial counsel for failing to move to 

dismiss at the close of the state’s case, but instead moved at the close of the defense 

case. He fails to show, however, that had his counsel made a Crim.R. 29 motion at the 

close of the state’s evidence there was a reasonable likelihood the result would have 

been different than when counsel made the motion later that same day. In fact, when 

counsel renewed the motion at the close of all evidence, the court considered all the 
 12 

evidence, including the state’s evidence, and denied the motion. While counsel could 

have moved for dismissal sooner, not doing so did not deprive Mr. Rogers of any 

opportunity he would otherwise have been afforded. 

{¶44} Mr. Rogers’ first assignment of error is without merit. 

{¶45} Mr. Rogers’ fourth and final assignment of error states: 

{¶46} The trial court erred in awarding restitution where there was no 

actual proof of the amounts owed. 

{¶47} Specifically, Mr. Rogers asserts the trial court cannot order restitution 

without a showing of actual economic loss. However, R.C. 2929.18(A)(1) provides, in 

pertinent part: 

{¶48} Restitution by the offender to the victim of the offender’s crime * * * 

in an amount based on the victim’s economic loss. * * * If the court 

imposes restitution, at sentencing, the court shall determine the 

amount of restitution to be made by the offender. If the court 

imposes restitution, the court may base the amount of restitution it 

orders on an amount recommended by the victim, the offender, a 

presentence investigation report, estimates or receipts indicating 

the cost of repairing or replacing property, and other information, 

provided that the amount the court orders as restitution shall not 

exceed the amount of the economic loss suffered by the victim as a 

direct and proximate result of the commission of the offense. If the 

court decides to impose restitution, the court shall hold a hearing on 

restitution if the offender, victim, or survivor disputes the amount. 

{¶49} In accordance with R.C. 2929.18, the court based the amount of restitution 

on information provided by the victims in a presentence investigation report. The report 

contained an itemized list of lost items and their monetary value for each victim, as well 

as various insurance documents and receipts, all of which support the amount the court 

ordered Mr. Rogers to repay. Mr. Rogers also asserts the court erred by failing to hold 

a hearing to determine the amount of restitution. However, as stated in R.C. 2929.18, a 

hearing is only required if there is a dispute as to the amount. Here, no dispute as to 
 13 

the amount was raised at sentencing. Thus, the court did not err by not holding a 

hearing. 

{¶50} Furthermore, failure to object to the imposition of restitution waives the 

issue on appeal except for a review for plain error. State v. Whitman, 11th Dist. Lake 

No. 2011-L-131, 2012-Ohio-3025, ¶21. Thus, to the extent Mr. Rogers specifically 

disputes the amount owed to the Hathys on appeal, we review only for plain error. “A 

claimed error is plain error only if it is obvious, and ‘but for the error, the outcome of the 

trial clearly would have been otherwise.’” Id., quoting State v. Long, 53 Ohio St.2d 91 

(1978), paragraph two of the syllabus. The Hathys submitted an itemized insurance 

report detailing the items that were stolen from their house. It was Ms. Hathy’s business 

to sell jewelry, so she had a substantial amount of jewelry at home that was stolen. The 

reported the value of her stolen property, according to insurance records, was 

$134,301.99. She received $7,198.54 from insurance, and the court ordered Mr. 

Rogers to repay the remaining unpaid loss of $127,103.45. We discern no plain error. 

{¶51} Mr. Rogers’ fourth assignment of error is without merit. 

{¶52} For the reasons set forth herein, Mr. Rogers’ conviction and sentence on 

Counts 3 and 6 are reversed and vacated. The amount of restitution Mr. Rogers was 

ordered to pay as to Count 3 ($1,440.00) and as to Count 6 ($770.20) is also reversed. 

Otherwise, the judgment of the Lake County Court of Common pleas is affirmed. 

THOMAS R. WRIGHT, P.J., 

MATT LYNCH, J., 

concur.