[Cite as State v. Hayes, 2021-Ohio-2962.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO JUDGES: 

 Hon. Craig R. Baldwin, P.J. 

 Plaintiff-Appellee Hon. W. Scott Gwin, J. 

 Hon. William B. Hoffman, J. 

-vs- 

 Case No. 2020 CA 00073 

MATTHEW HAYES 

 

 Defendant-Appellant O P I N I O N 

 

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of 

Common Pleas, Case No. 2020 CR 

00219 

 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT ENTRY: August 26, 2021 

 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant

 

WILLIAM C. HAYES APRIL F. CAMPBELL 

Licking County Prosecutor 46 1⁄2 N. Sandusky Street

 Delaware, Ohio 43015 

PAULA M. SAWYERS 

Assistant Prosecuting Attorney 

20 S. Second Street, Fourth Floor 

Newark, Ohio 43055 

 
Licking County, Case No. 2020 CA 00073 2 

Hoffman, J. 

{¶1} Defendant-appellant Mathew Hayes appeals the judgment entered by the 

Licking County Common Pleas Court convicting him of burglary (R.C. 2911.12(A)(1)) and 

sentencing him to a term of incarceration of four to six years. Plaintiff-appellee is the 

state of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On May 10, 2020, Robert Wise lived in a room in a boarding house in 

Newark, Ohio. Around 10:30 or 11:00 a.m., he leaned back in his recliner to rest after 

taking his medication, and fell asleep. He left the door to his room open about 18-24 

inches to allow air to circulate for his respirator. Wise awakened to find Appellant standing 

in his room. Wise recognized Appellant because Appellant visited the man who lived in 

the room next to Wise, and knew Appellant’s first name was Matt. Wise immediately 

noticed items missing from a table next to his recliner: a bottle of mace, cigarettes, two 

lighters, a pocketknife, a cell phone, and money. He later discovered a guitar 

autographed by Keith Urban was missing from his room. 

{¶3} When Wise woke up, Appellant ran out the door to the room and ran 

upstairs. Wise followed, telling Appellant to return his missing items. Appellant shoved 

Wise and ran. Wise followed Appellant outside to the porch, where Wise grabbed 

Appellant and again demanded his things back. A friend of Wise’s who lived across the 

street came outside and asked what he could do to help. Wise asked his friend to call 

Wise’s cell phone. The phone began ringing in Appellant’s pocket. 

{¶4} Appellant shoved Wise over the edge of the porch and took off running. 

Wise chased Appellant and caught him. When Wise shook Appellant, Wise’s knife fell 

out of Appellant’s pants leg. Appellant shoved Wise again, and threw something down 
Licking County, Case No. 2020 CA 00073 3 

the alley. Wise found his cell phone in pieces in the alley. Police officers later found one 

of Wise’s lighters in the alley. 

{¶5} Officers arrived on the scene, helped Wise back to his room, got him on his 

oxygen, and called paramedics. Wise dislocated his elbow in the scuffle with Appellant, 

and had multiple bruises and cuts. Officers located Appellant, who agreed to go with the 

officers to Appellant’s boarding house for identification. Upon seeing Appellant, Wise 

stated, “That’s the son of a bitch who stole from me.” Tr. 88.

{¶6} Officer David Arndt of the Newark Police Department interviewed Appellant 

after Mirandizing him. Appellant admitted to having an altercation with Wise, but denied 

taking any items from Wise’s room. However, Officer Arndt noted Appellant’s story kept 

changing. Appellant told police where he had thrown a lighter, and later pointed out the 

location to police. The lighter was one of the two lighters reported stolen by Wise. 

{¶7} Appellant was indicted by the Licking County Grand Jury on one count of 

burglary. The case proceeded to bench trial in the Licking County Common Pleas Court. 

{¶8} At trial, Appellant testified he was at the boarding house on May 10, 2020, 

to visit his friend who lived next to Appellant. He testified when he walked by Appellant’s 

room, the door was wide open. Appellant testified his friend wanted to go to Circle K to 

get Wi-Fi and slushies. Appellant testified he went to the boarding house kitchen for 

water, then headed to the front door of the building. He stopped to pick up a lighter which 

was on the threshold of the door. As he put the lighter in his pocket, Wise woke up and 

started “spazzing out,” yelling Appellant had robbed him. Tr. 154-55. Appellant testified 

Wise started hitting him with a cane. Appellant denied taking any of Wise’s items other 

than the lighter he had picked up in the doorway, and denied entering Wise’s room. 
Licking County, Case No. 2020 CA 00073 4 

{¶9} Appellant moved for a directed verdict of acquittal pursuant to Crim. R. 

29(A), arguing the State did not present evidence he entered Wise’s room by force, 

stealth, or deception because the door was open, and no one saw Appellant enter the 

room. The trial court overruled the motion, finding while there was evidence the door was 

open 18-24 inches, based on the layout of the room a person could see Wise asleep in 

his recliner from the doorway, and Appellant entering the room while Wise was sleeping 

in plain view was sufficient evidence to demonstrate stealth. The trial court found 

Appellant guilty of burglary, and sentenced him to a term of incarceration of four to six 

years. 

{¶10} It is from the October 27, 2020 judgment of conviction and sentence 

Appellant prosecutes his appeal, assigning as error: 

 I. MATTHEW HAYES’S CONVICTION FOR BURGLARY SHOULD 

BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE 

THAT HE USED FORCE, STEALTH, OR DECEPTION UPON ENTERING 

THE VICTIM’S OPEN-DOORED ROOM. 

 II. MATTHEW HAYES’S CONVICTION SHOULD BE REVERSED 

BECAUSE THE DEARTH OF EVIDENCE TO SUGGEST THAT HAYES 

ACTED BY FORCE STEALTH OR DECEPTION UPON TRESPASS 

WEIGHS MANIFESTLY AGAINST CONVICTING HIM OF BURGLARY. 

 
Licking County, Case No. 2020 CA 00073 5 

I., II. 

{¶11} Appellant argues his conviction is not supported by sufficient evidence and 

is against the manifest weight of the evidence based on a lack of evidence he entered 

Wise’s room by force, stealth or deception. 

{¶12} In determining whether a verdict is against the manifest weight of the 

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, 

weighs the evidence and all reasonable inferences, considers the credibility of witnesses, 

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and 

created such a manifest miscarriage of justice that the conviction must be reversed and 

a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). 

{¶13} An appellate court's function when reviewing the sufficiency of the evidence 

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

prosecution, any rational trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, 

paragraph two of the syllabus (1991). 

{¶14} Appellant was convicted of burglary in violation of R.C. 2911.12(A)(1): 

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

following: 

 (1) Trespass in an occupied structure or in a separately secured or 

separately occupied portion of an occupied structure, when another person 

other than an accomplice of the offender is present, with purpose to commit 
Licking County, Case No. 2020 CA 00073 6 

in the structure or in the separately secured or separately occupied portion 

of the structure any criminal offense[.] 

{¶15} Stealth has been defined as “any secret, sly or clandestine act to avoid 

discovery and to gain entrance into or to remain within a residence of another without 

permission.” State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168, 170 (3d Dist. 

Hancock 1993). Appellant cites this Court to two cases from the Second District, in which 

the court of appeals found a defendant’s entry into an open garage in broad daylight, 

without further evidence of stealthy behavior or deception, was insufficient to support a 

burglary conviction. State v. Patton, 2nd Dist. Clark No. 2011 CA 94, 2013-Ohio-961; 

State v. Pullen, 2nd Dist. Greene No. 91 CA 33, 1992 WL 142271 (June 25, 1992). 

{¶16} Because Wise’s door was open, Appellant argues this case is similar to 

Patton and Pullen, and distinguishable from State v. Bolden, 5th Dist. Stark No. 2002–

CA–00235, 2002–Ohio–6976, in which this Court held although the defendant walked into 

an open garage in broad daylight, there was evidence of stealth because he walked up 

and down the street to ensure he was unobserved while looking for a garage he could 

easily break into, and he had concealed his bolt cutters to avoid arousing suspicion. 

{¶17} In the instant case, there was testimony Wise’s door was not wide open, but 

was open somewhere between 18-24 inches. The photographs taken by police and 

admitted into evidence demonstrate a person entering the doorway would see Wise 

asleep in his recliner, as well as the table next to him from which all the items except the 

guitar were stolen. When Wise woke up, Appellant immediately fled Wise’s room, and 

“took off running upstairs.” Tr. 16. Viewed in a light most favorable to the State, we find 
Licking County, Case No. 2020 CA 00073 7 

this evidence sufficient from which a rational trier of fact could have found Appellant 

entered the room by stealth. 

{¶18} We also find the judgment is not against the manifest weight of the 

evidence. Wise testified the door was only open around 18-24 inches. There was 

evidence presented any person entering the room would see Wise asleep in the recliner, 

and would see the table next to the recliner from which the items were stolen. However, 

Wise did not wake up until Appellant had taken the items. When Wise woke up, Appellant 

fled from the apartment and ran upstairs. Based on Wise’s testimony and the evidence 

of the layout of Wise’s room, we find the trial court did not lose its way in finding Appellant 

entered by stealth, and the judgment is not against the manifest weight of the evidence. 

{¶19} Appellant’s first and second assignments of error are overruled. The 

judgment of the Licking County Common Pleas Court is affirmed. 

By: Hoffman, J. 

Baldwin, P.J. and 

Gwin, J. concur