[Cite as State v. Jackson , 2018-Ohio-4289.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY STATE OF OHIO, : Case No. 18CA7 Plaintiff-Appellee, : v. : DECISION AND JUDGMENT ENTRY GERALD F. JACKSON, JR., : Defendant-Appellant. : RELEASED 10/17/2018

APPEARANCES: Bryan Scott Hicks, Lebanon, Ohio, for appellant. Anneka P. Collins, Highland County Prosecu ting Attorney, Hillsboro, Ohio, for appellee.

Hoover, P.J. {¶1} Defendant-appellant, Gerald F. Jacks on, Jr. (“Jackson”), appeals from his burglary conviction entered in the Highland Count y Common Pleas Court following a jury trial. On appeal, Jackson contends that his conviction is not supported by sufficient evidence. He also contends that the trial court erred when it failed to instruct the jury on the lesser-included offense of criminal trespass. After a careful review of the record, we conclude that both of Jackson’s assignments of error are without merit. Accordingl y, we affirm the judgme nt of the trial court. I. Facts and Procedural History {¶2} A Highland County Grand Jury indicted Jackson for one count of burglary 1 , a fourth degree felony, in violation of R.C. 2911.12(B). Jackson was arraigned on the charge in

1 While the indictment identifies the offense as “burglary”, we note that “[w]hoever violates division (B) of [R.C. 2911.12] is guilty of trespass in a habitation when a person is present or likely to be present, a felony of the fourth degree.” R.C. 2911.12(E).Highland App. No. 18CA7 2 January 2018, and in the absence of counsel, the tr ial court entered a not guilty plea on Jackson’s behalf. The trial court also appointed counsel to represent Jackson. {¶3} Jackson’s case proceeded to jury trial on March 1, 2018. The following facts are adduced from Jackson’s trial. {¶4} On December 10, 2017, Pertrea Morrison (“ Pertrea”) was living with her aunt, uncle, and her two young children at a residenc e in Greenfield, Highland County, Ohio. Pertrea testified that she had been hang ing out with one of her friends and returned to the residence on that date at about 1:15 am. Pertr ea testified that as she shut the door, Jackson pushed his way into the home. Pertrea testified that Jackson was not invited in, did not knock, and did not ask to come in; but rather pushed the door open and entered while she attempted to push him out. Pertrea told Jackson to get out of the residence; but he refused to leave, and actually continued further into the residence. Pert rea testified that she did not know who Jackson was before the incident. During the incident, Pertrea called J. R. Munyon, her boyfriend, and asked him to come over. She also asked Munyon to call 911. {¶5} The commotion from the incident cause d Pertrea’s aunt, Jeannie Morrison (“Jeannie”), to rush from her bedroom to the kitc hen. Jeannie testified that she saw Jackson in her home and that she yelled at him to get out of the home. Jeannie testified that Jackson continued to push his way into the home so she went and got her husband, Ira Morrison (“Ira”). As Ira came to the kitchen to confront Jackson, Jeannie took Pertrea’s young children to the back bedroom and locked the children and herself in th e bedroom. Jeannie testified that prior to the incident she did not know Jackson; and she di d not give him permission to enter her home. {¶6} Ira testified that when he arrived to the kitchen, he stopped Jackson from getting any further into the home, and told him several times to leave; but Jackson refused to leave. IraHighland App. No. 18CA7 3 testified that he had spoken to Jackson on three oc casions prior to the incide nt, about fixing a car; but he did not know his name; a nd he did not give him permissi on to be in his home. Shortly after Ira’s confrontation with Jackson, Munyon ar rived to the home and attempted to physically remove Jackson from the home. Within five minutes of Munyon’s arrival, Sgt. Gary Schraw of the Greenfield Police Department arrived at the home and found Jackson in the kitchen with Ira and Munyon. Sgt. Schraw then placed Jackson unde r arrest and escorted him to his patrol car. Sgt. Schraw testified that he placed Jackson in th e backseat of his patrol car and took a statement from Jeannie, but had to leave without getting written statements from the other occupants because Jackson was kicking the windows of his pa trol car. Pertrea admitted that she had left the residence by the time Sgt. Schraw had arrived, because at the time, she was trying to avoid law enforcement. {¶7} Upon the completion of the presentation of evidence, closing arguments, and final instructions, the jury returned a guilty verdict. The trial court proceeded to sentence Jackson to a prison term of 15 months to be served consecutively to a prison sentence he received for violation of post-release cont rol. Jackson appealed following entry of his sentence. II. Assignments of Error {¶8} Jackson assigns the following errors for our review: First Assignment of Error: THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE. Second Assignment of Error: THE COURT ERRED IN NOT CHARGING E (sic) JURY WITH A LESSER INCLUDED OFFENSE.Highland App. No. 18CA7 4 III. Law and Analysis A. The Conviction is Supported By Sufficient Evidence {¶9} In his first assignment of error, Jack son contends that his conviction is not supported by sufficient evidence. Specifically, Jack son argues that Pertrea is not a credible witness, and without her testimony, no evidence exis ts that he used force to enter the residence. {¶10} Whether a conviction is supported by sufficient evidence is a question of law that we review de novo. State v. Allah , 4th Dist. Gallia No. 14CA12, 2015–Ohio–5060, ¶ 8 . In making this determina tion, we must determine whether the evidence adduced at the trial, if believed, reasonably could support a finding of guilt beyond a reasonable doubt. State v. Davis, 4th Dist. Ross No. 12CA3336, 2013–Ohio–1504, ¶ 12 . “The standard of review is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any ra tional trier of fact could have found all the essential elements of the offe nse beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

. {¶11} Jackson was convicted of a violati on of R.C. 2911.12(B), which states: “No person, by force, stealth, or deception, shall tres pass in 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.” {¶12} Jackson contends that his convic tion under R.C. 2911.12(B) is based on insufficient evidence because Pertrea, the only witn ess who testified that he used force to enter the residence, “is inherently not credible” and the jury should not have believed her testimony. He argues that if her testimony is discounted, th e jury could not have found the element of force beyond a reasonable doubt. “Questions of witnes s credibility are irrelevant to the issue ofHighland App. No. 18CA7 5

whether there is sufficient eviden ce to support a conviction, however.” State v. Ruark , 10th Dist. Franklin No. 10AP-50, 2011-Ohio-2225, ¶ 21, citing State v. Preston-Glenn , 10th Dist. Franklin No. 09AP-92, 2009-Ohio-6771, ¶ 38. “ ‘In determin ing whether a conviction is based on sufficient evidence, we do not address whether th e evidence is to be believed, but whether, if believed, the evidence against a defe ndant would support a conviction.’ ” Id ., quoting State v. Smith , 10th Dist. Franklin No. 08AP-736, 2009-Ohio-2166, ¶ 26. See also State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. {¶13} Pertrea’s testimony, if believed, is su fficient to support Jackson’s conviction under R.C. 2911.12(B). Pertrea testified that Jack son pushed his way into the house as she was attempting to close the door. [PROSECUTOR:] Did something that happened that caused [sic] you alarm as you came into the house? [PERTREA:] Yes. I turned around to shut my door and, uh, uh, a guy was trying to push in, and he actually got into our house. [PROSECUTOR:] So how did he get into the house? [PERTREA:] He pushed his way in. [PROSECUTOR:] He pushed the door?
[PERTREA:] Yes.
[PROSECUTOR:] Did he knock first?
[PERTREA:] No.Highland App. No. 18CA7 6 [PROSECUTOR:] Did you invite him in?
[PERTREA:] No.
[PROSECUTOR:] Did he ask to come in?
[PERTREA:] No. [PROSECUTOR:] Did you try to keep him from entering the house?
[PERTREA:] Yes, I did. [PROSECUTOR:] What did you do to try to keep him ... [PERTREA:] I kept trying to push the door shut, to lock it, and he pushed his way in. Based on this evidence, a jury could reasonably co nclude that Jackson used force to trespass into the home. See In re A.C.D. , 12th Dist. Warren No. CA2014-06-085, 2015-Ohio-232, ¶ 12 (“[A]ny force effecting entrance, however slight, constitutes the force required to satisfy the element.”) Thus, Jackson’s conviction is suppor ted by sufficient evidence, and his first assignment of error is overruled. B. The Trial Court Did Not Commit Plain Error By Failing to Give A Lesser-Included Offense Jury Instruction {¶14} In his second assignment of error, Jacks on contends that the trial court erred by failing to give a lesser-included offense jury in struction. Specifically, J ackson argues that the trial court should have given an instruction on the lesser-inc luded offense of criminal trespassHighland App. No. 18CA7 7

under R.C. 2911.21. Jackson asserts that he was en titled to the instruction due to the State’s failure to prove that he used force, stealth, or deception to trespass into the residence. {¶15} As an initial matter we note that Jackson did not request the lesser-included offense jury instruction at trial. Thus, the pl ain error standard of review is appropriate. State v. Wilson , 4th Dist. Lawrence No. 16CA12, 2018-Ohio-2700, ¶ 44; Crim.R. 52(B). For a reviewing court to find plain error: (1) ther e must be an error, i.e., “a devi ation from a legal rule”; (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings”; and (3) the error must have affected “substantial rights,” i.e., it must have affected the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “[T]he burden of demonstrating plain error is on the party asserting it.” State v. Davis, 116 Ohio St.3d 404, 2008–Ohio–2, 880 N.E.2d 21, ¶ 378. “We take notice of plain error with the utmost of caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” State v. Merryman, 4th Dist. Athens No. 12CA28, 2013–Ohio–4810, ¶ 49. {¶16} Determining whether a lesser-included offense instruction is warranted involves a two-part test. State v. Deanda , 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6. First, a trial court must determine if the requested charge is a lesser-included offense of the charged crime. Id.; State v. Kidder , 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). Second, the court must consider the evidence and give an instru ction on a lesser-included offense “if under any reasonable view of the evidence it is possible for th e trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense.” State v. Wine , 140 Ohio St.3d 409, 2014- Ohio-3948, 18 N.E.3d 1207, ¶ 34. Accord Wilson at ¶ 47. {¶17} However, “[t]he mere fact that an offense can be a lesser

- included offense of another offense does not mean that a court mu st instruct on both offe nses where the greaterHighland App. No. 18CA7 8 offense is charged.” Wine at ¶ 22 . Instead, “the quality of the evidence offered * * * determines whether a lesser

- included -offense charge should be given to a jury.” Id. at ¶ 26 . A lesser

included offense instruction requires more than “s ome evidence” that a defendant may have acted in such a way as to satisfy the elements of the lesser offense. State v. Shane , 63 Ohio St.3d 630, 633, 590 N.E.2d 272 (1992) . “To require an instruction * * * every time ‘some evidence,’ however minute, is presented going to a lesser included (or inferior-degree) offense would mean that no trial judge could ever refu se to give an instruction on a lesser included (or inferiordegree) offense.” Id. Furthermore, a court must not allo w a jury to consider “ ‘compromise offenses which could not possibly be sustained by the adduced facts.’ ” Wine at ¶ 22 , quoting State v. Wilkins , 64 Ohio St.2d 382, 387, 415 N.E.2d 303 (1980)

. Accord Wilson at ¶ 48. {¶18} When a court reviews the quality of the ev idence offered, the court must consider “[t]he whole of the state’s case.” State v. Bethel , 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 141 , citing State v. Goodwin , 84 Ohio St.3d 331, 345, 703 N.E.2d 1251 (1999)

. “An instruction on a lesser

- included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction on the lesser

- included offense.” State v. Carter, 89 Ohio St.3d 593, 600, 734 N.E.2d 345 (2000) ; State v. Fouts , 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, ¶¶ 76-77

. Accord Wilson at ¶ 49. {¶19} Criminal trespass, R.C. 2911.21, is a lesser-i ncluded offense of burglary/trespass in a habitation, R.C. 2911.12(B). State v. Stringer , 9th Dist. Medina No. 04CA0032-M, 2004- Ohio-6543, ¶ 44. Thus, we need only determine whethe r the trial court erred in failing to give the instruction in this particular case, not whether criminal trespass is a le sser-included offense of burglary/trespass in a habitation.Highland App. No. 18CA7 9 {¶20} In the case sub judice, the evidence presented at the trial does not reasonably support an acquittal of the count of burglary/tres pass in a habitation. Rather, the uncontroverted evidence presented at trial clearly established th at Jackson forced his way into the residence while Pertrea, Jeannie, Ira, and the two young children were present. Specifically, Pertrea testified that Jackson pushed th e door open and entered the reside nce, despite her attempt to close the door. Further, Pertrea, J eannie, and Ira all testified that they ordered Jackson to leave the residence; but Jackson refused to leave. Pertrea, Jeannie, and Ira also all testified that Jackson did not have permission to enter the resi dence or remain in the residence. {¶21} Based on the foregoing, we cannot say that the evidence presented at trial would reasonably support both an acquittal on the charge of burglary/trespass in a habitation and a conviction upon the lesser-included of fense of criminal trespass. Accordingly, Jackson’s second assignment of error is overruled.

IV. Conclusion {¶22} Having overruled both of Jackson’s assignme nts of error, we affirm the judgment of the trial court.

JUDGMENT AFFIRMED

.Highland App. No. 18CA7 10

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs. The Court finds that reasonable grounds existed for this appeal. It is ordered that a special mandate issue out of this Court directing the Highland County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceed ings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismi sses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. and McFarland, J.: C oncur in Judgment and Opinion.

For the Court
By: ____________________________ Marie Hoover, Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this docume nt constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.