[Cite as State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96166

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

WAYMAN L. ROSEBERRY

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED IN PART, 

REVERSED IN PART, AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-540130 

BEFORE: Keough, J., S. Gallagher, P.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: November 17, 2011 
ATTORNEY FOR APPELLANT

Joseph V. Pagano 

P.O. Box 16869 

Rocky River, OH 44116 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Margaret A. Troia 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
KATHLEEN ANN KEOUGH, Judge. 

{¶ 1} Defendant-appellant, Wayman L. Roseberry (“Roseberry”), appeals his 

convictions. For the reasons that follow, we affirm in part, reverse in part, and remand 

for a new trial. 

{¶ 2} In August 2010, Roseberry was charged with one count each of aggravated 

burglary and kidnapping, each containing firearm and forfeiture specifications; one count 

of having weapons while under disability, with a forfeiture specification; and one count 

each of burglary, theft, and receiving stolen property. Roseberry waived his right to a 

jury trial and the case was tried to the court. 

{¶ 3} The victim, Danielle Adams (“Adams”), testified that Roseberry was her 

ex-boyfriend, and that when they were dating, he stayed at her residence every night, kept 

personal belongings there, and had a house key. In the spring of 2010, they ended their 

relationship, but Roseberry still visited Adams at her home even though she had taken her 

key back from him. 

{¶ 4} During the late hours of July 24 and early morning hours of July 25, while 

she was at work, Adams exchanged text messages with Roseberry. Over objection, 

Adams read out loud on direct examination her handwritten transcription of the 

exchanged text messages. Adams testified the exchange between her and Roseberry was 

as follows: 

{¶ 5} “Roseberry: Man u did smething ill brak da window. 
{¶ 6} “* * 

{¶ 7} “Adams: Wht? 

{¶ 8} “Roseberry: I dnt wnt to brake nothing to get n and u blocked da door so I 

cant get n 

{¶ 9} “* * 

{¶ 10} “Adams: So you got my key huh 

{¶ 11} “* * 

{¶ 12} “Roseberry: OK can u un block da door I dnt have no where to go 

{¶ 13} “Adams: Y u say u didn't have the key 

{¶ 14} “Roseberry: Cuz who wnt ti be left n da streets 

{¶ 15} “Roseberry: Man pease dnt make me do smething I dnt wnt please open 

dat door 

{¶ 16} “Roseberry: Man ima get n 

{¶ 17} “Adams: I hope u aint breakin no window 

{¶ 18} “Adams: Im at work go wit your best friend, he always got ur bck 

remember 

{¶ 19} “Roseberry: I neva said that im tryna get away I don’t wnt to do sht stupid 

so please let me n 

{¶ 20} “Adams: I said i’m at work 

{¶ 21} “Roseberry: Ok how do i get in” 
{¶ 22} Around noon on July 25, after receiving a call from her neighbor, Adams 

left work. When she arrived at her home, she saw that her front window was broken and 

she contacted the police. When the police arrived, Adams discovered that two 

televisions, two DVD players, a gaming system, and a window air conditioner had been 

stolen from her residence. Although she could not assess the value of the televisions, 

DVD players, or air conditioner, Adams testified that the value of the gaming system was 

$200. 

{¶ 23} Later on the evening of July 25, Roseberry used a key to gain access to 

Adams’s home. Adams testified that she did not give Roseberry permission to use the 

key or enter her residence. According to Adams, when Roseberry entered her residence, 

he was holding a silver gun in his hand. 

{¶ 24} After a period of time, Adams drove Roseberry to get something to eat. 

Adams testified that she went with him because he had a gun, but she could not recall if 

he took the gun with him when they left the residence. About 15 minutes later, when 

they returned back to her residence, Adams sent a text message to her neighbor, telling 

him Roseberry was in her home with a gun. 

{¶ 25} An East Cleveland police officer contacted Adams and she discreetly 

informed the officer that Roseberry had a gun. The police arrived approximately five 

minutes later. According to Adams, when Roseberry realized the police were outside the 

residence, he walked toward the back of the house. When he returned to the living room, 
he no longer had the gun in his hand. Roseberry then voluntarily exited the front door of 

the residence, was detained, and arrested. 

{¶ 26} Officer Steve Kaleal testified that he responded to the breaking and entering 

call at approximately 12:40 p.m. on July 25. When he and his partner arrived at the 

residence, he observed that a front window had been pushed out. After taking an 

inventory of the property missing from the residence, he interviewed neighbors. Based 

on a conversation with the next-door neighbor, Roseberry was a named suspect. 

{¶ 27} Officer Robert Bailey testified that he responded to Adams’s address on 

July 25 at 10:00 p.m. for a possible hostage situation. After Roseberry was detained, 

Officer Bailey entered the residence, spoke with Adams regarding the weapon involved, 

and located a silver handgun in the toilet reservoir of the first floor bathroom. 

{¶ 28} Lieutenant Matthew Balli testified that he made the initial contact with 

Adams and confirmed that she was being held at gunpoint by Roseberry. He testified 

that once the weapon was found, he ran the firearm’s serial numbers through the National 

Crime Information System and the Law Enforcement Automatic Data System and learned 

that the firearm had been reported stolen out of the city of Strongsville. 

{¶ 29} Michael Shymske testified that he was the owner of the firearm that was 

recovered but that he had reported it stolen by an acquaintance in 2008. He testified that 

he did not know Roseberry and did not give Roseberry permission to possess or use the 

firearm. 
{¶ 30} The State’s final witness was Detective Michael Delisle, who testified that 

he conducted an interview with Adams during which she provided him with a written 

statement. Included with the written statement was a handwritten compilation of the text 

messages Adams and Roseberry exchanged on July 24 and 25. Detective Delisle 

testified that he viewed Adams’s cell phone and took a series of photographs of the phone 

that captured the text messages Adams indicated that she exchanged with Roseberry. 

Detective Delisle said he took the photographs because he knew certain cell phone 

companies only saved text messages for a limited period of time. The trial court, over 

objection, received the photographs of the text messages into evidence as State’s exhibits 

4-14. The photographs of the text messages included the content that Adams previously 

testified to and read out loud in her direct testimony (State’s exhibits 4-10) and additional 

text messages (State’s exhibits 11-14) that had the following content: 

{¶ 31} “Did u break my window yet crazy 

{¶ 32} “Not yet 

{¶ 33} “U better not 

{¶ 34} “How do I get n 

{¶ 35} “Idk 

{¶ 36} “Yea u do 

{¶ 37} “Wht time do u get off 

{¶ 38} “I think 7 

{¶ 39} “Man I hpe I dnt go to jail 
{¶ 40} “Jail 4 wht 

{¶ 41} “Doin smething dumb” 

{¶ 42} At the close of testimony and evidence, the trial court found Roseberry not 

guilty of Count 1 — aggravated burglary, Count 2 — kidnapping, and Count 4 — 

burglary, but guilty of the lesser-included charge of breaking and entering, Count 3 — 

having weapons under disability, including the forfeiture specification, Count 6 — 

receiving stolen property, and Count 7 — an amended count of misdemeanor theft. 

Roseberry was sentenced to an aggregate term of two years in prison. He appeals, 

raising three assignments of error, which will be addressed out of order. 

Sufficiency of the Evidence

{¶ 43} In his first assignment of error, Roseberry contends that his convictions are 

not supported by sufficient evidence. The test for sufficiency requires a determination of 

whether the prosecution met its burden of production at trial. State v. Bowden, Cuyahoga 

App. No. 92266, 2009-Ohio-3598, ¶12. The relevant inquiry is 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(s) proven beyond a reasonable doubt. 

State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. 

The Supreme Court of Ohio has held that when reviewing the sufficiency of the evidence, 

an appellate court is to consider all of the evidence admitted at trial, even if the evidence 

was improperly admitted. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 

N.E.2d 284, ¶19. 
{¶ 44} Roseberry was found not guilty of burglary, but guilty of the lesser-included 

charge of breaking and entering in violation of R.C. 2911.13. This section provides that 

“[n]o person by force, stealth, or deception, shall trespass in an unoccupied structure, with 

purpose to commit therein any theft offense * * * or any felony,” and “No person shall 

trespass on the land or premises of another, with purpose to commit a felony.” 

{¶ 45} The offense of breaking and entering requires that a defendant have the 

specific intent of trespassing with the purpose to commit a felony. See State v. Copeland 

(Jan. 18, 2002), Montgomery App. No. 18711. The purpose to commit a felony may be 

proved by direct or circumstantial evidence. Furthermore, it is not necessary that the 

purpose to commit a felony be formed before or at the time the initial trespass or entry is 

achieved. State v. Bowling (Aug. 12, 1985), Clermont App. No. CA85-01-001, citing 

State v. Jones (1981), 2 Ohio App.3d 20, 440 N.E.2d 580 (the “purpose to commit a 

felony” element in R.C. 2911.13(B) may be formed while the trespass is in progress, and 

the plan need not be formulated prior to the trespass). 

{¶ 46} It is well established that “‘circumstantial evidence is sufficient to sustain a 

conviction if that evidence would convince the average mind of the defendant’s guilt 

beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 

837 N.E.2d 315, ¶75, quoting State v. Heinish (1990), 50 Ohio St.3d 231, 238, 553 

N.E.2d 1026. Circumstantial evidence carries the same weight as direct evidence. 

Jenks. Circumstantial evidence is proof of facts or circumstances by direct evidence 

from which the trier of fact may reasonably infer other related or connected facts that 
naturally or logically follow. State v. Beynum (May 23, 1996), Cuyahoga App. No. 

69206. 

{¶ 47} From the facts of this case, it can be inferred that Roseberry’s purpose in 

trespassing on Adams’s residence was to commit a theft offense or a felony. 

Circumstantial evidence was presented that Roseberry forcefully trespassed on the 

premises by breaking Adams’s window to gain entrance into the residence. In State v. 

Flowers (1984), 16 Ohio App.3d 313, 315, 475 N.E.2d 790, the court stated that “there is 

a reasonable inference that one who forcibly enters a dwelling * * * does so with the 

intent to commit a theft offense in the absence of circumstances giving rise to a different 

inference.” In this case, it is reasonable when, viewing the evidence in the light most 

favorable to the prosecution, to infer that Roseberry’s purpose, either prior to or during 

the commission of breaking into Adams’s residence, was to commit a theft offense. The 

text messages established that Roseberry threatened to break Adams’s window, wanted to 

get inside her residence, and was concerned that he was going to go to jail for doing 

something “dumb.” 

{¶ 48} The text messages circumstantially prove that Roseberry gained entrance 

into the house and an inference can be made that he subsequently removed the property. 

Moreover, Officer Kaleal testified that after speaking with Adams’s neighbor, Roseberry 

was named a suspect. 
{¶ 49} Viewing the evidence, whether properly admitted or not, in the light most 

favorable to the prosecution, sufficient evidence was presented supporting Roseberry’s 

conviction for breaking and entering. 

{¶ 50} Additionally, we find sufficient evidence was presented to support 

Roseberry’s conviction for theft. Pursuant to R.C. 2913.02(A)(1), regarding theft, “[n]o 

person, with purpose to deprive the owner of property * * *, shall knowingly obtain or 

exert control over * * * property * * * [w]ithout the consent of the owner or person 

authorized to give consent.” 

{¶ 51} Adams testified that when she left for work, the property that was 

subsequently removed was in her residence. When she returned home, the window was 

broken and the property was missing. Officer Kaleal testified that he and his partner 

responded to Adams’s residence and observed that her front window was pushed out. As 

part of his investigation, he spoke to neighbors to see if anyone had observed anything. 

After interviewing the next-door neighbor, Roseberry became a suspect. 

{¶ 52} This information obtained by Officer Kaleal, coupled with the text 

messages exchanged between Adams and Roseberry, provides enough circumstantial 

evidence to create an inference that Roseberry committed a theft offense inside Adams’s 

residence. Accordingly, sufficient evidence was presented going to all the elements of 

the theft offense. 

{¶ 53} Roseberry was also convicted of having weapons while under disability, in 

violation of R.C. 2923.13(A)(3). This section provides in pertinent part: “[U]nless 
relieved from disability * * *, no person shall knowingly acquire, have, carry, or use any 

firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been 

convicted of any offense involving the illegal possession, use, sale, administration, 

distribution, or trafficking in any drug of abuse * * *.” 

{¶ 54} In this case, Roseberry stipulated to a 2010 drug trafficking conviction. 

Adams testified that Roseberry entered her apartment carrying a silver gun in his hand. 

When the police arrived at her residence, Adams observed Roseberry walk toward the 

back of the residence with the gun, and when he returned to the living room, he did not 

have the gun. Officer Bailey found a silver handgun in the toilet reservoir of the first 

floor bathroom. The gun recovered was admitted into evidence and Adams testified she 

thought it was the gun Roseberry had — the gun was the same size and color. Adams 

also testified that she did not own the gun that was found in her home. This evidence 

was sufficient to establish that Roseberry had the firearm in violation of R.C. 

2923.13(A)(3). 

{¶ 55} Roseberry was also convicted of receiving stolen property in violation of 

R.C. 2913.51, which provides that “[n]o person shall receive, retain, or dispose of 

property of another knowing or having reasonable cause to believe that the property has 

been obtained through commission of a theft offense.” 

{¶ 56} In this case, sufficient evidence demonstrated that Roseberry received or 

retained the firearm and had reasonable cause to believe the firearm was obtained through 

a theft offense. Lieutenant Balli testified that the gun found in Adams’s residence was 
reported stolen in 2008 by Michael Shymske. Although Roseberry had no involvement 

with the theft of Shymske’s gun, his conviction is supported by sufficient evidence 

because Roseberry’s previous drug conviction prevented him from legally purchasing or 

obtaining a gun and therefore he would have reasonable cause to believe that the gun he 

possessed was stolen. 

{¶ 57} Accordingly, Roseberry’s first assignment of error is overruled. 

Evid.R. 803(5) and 901: Text Messages and Photographs

{¶ 58} In his third assignment of error, Roseberry argues that the trial court erred 

by allowing testimony and admitting and receiving evidence of the alleged text messages 

between Adams and himself. 

{¶ 59} Evidentiary rulings made at trial rest within the sound discretion of the trial 

court. State v. Lundy (1987), 41 Ohio App.3d 163, 535 N.E.2d 664; State v. Graham 

(1979), 58 Ohio St.2d 350, 390 N.E.2d 805. “The term ‘abuse of discretion’ connotes 

more than an error of law or judgment. It implies that the court’s attitude is 

unreasonable, arbitrary or unconscionable.” Nielson v. Meeker (1996), 112 Ohio App.3d 

448, 679 N.E.2d 28. 

{¶ 60} Roseberry first contends that the trial court abused its discretion in allowing 

Adams to read her handwritten transcription of the text messages out loud in open court 

on direct examination. The State argues that the trial court’s ruling was proper pursuant 

to Evid.R. 803(5), but recognizes that the handwritten transcription could not be received 

as an exhibit into evidence. 
{¶ 61} Under Evid.R. 803(5) regarding hearsay exceptions, a recorded recollection 

is “[a] memorandum or record concerning a matter about which a witness once had 

knowledge but now has insufficient recollection to enable him to testify fully and 

accurately, shown by the testimony of the witness to have been made or adopted when the 

matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the 

memorandum or record may be read into evidence but may not itself be received as an 

exhibit unless offered by an adverse party.” 

{¶ 62} In order to admit a statement into evidence pursuant to Evid.R. 803(5), “a 

party must establish: (1) the witness has a lack of present recollection of the recorded 

matter; (2) the recorded recollection was made at a time when the matter was fresh in the 

witness’s memory; (3) the recorded recollection was made or adopted by the witness; and 

(4) the recorded recollection correctly reflects the prior knowledge of the witness.” 

Dayton v. Combs (1993), 94 Ohio App.3d 291, 300, 640 N.E.2d 863. 

{¶ 63} In this case, Adams testified that when she went to the police station, she 

took her cell phone and wrote down the text messages exchanged between her and 

Roseberry the night of July 24 through July 25. On direct examination, Adams stated she 

could not recall the exact content of the messages she received, but when she wrote down 

the text messages, her recollection of the content of the text messages was fresh in her 

mind. When presented with the handwritten list, Adams also positively identified it as 

her transcribed compilation of the text messages exchanged between her and Roseberry. 

She testified that she knew the text messages were coming from Roseberry’s phone 
because she knew his cell number at the time, although she admitted she currently could 

not recall the number. Accordingly, the trial court did not abuse its discretion by 

allowing Adams to read the series of text messages out loud pursuant to Evid.R. 803(5), 

and the trial court’s exclusion of the handwritten compilation as an exhibit was proper. 

{¶ 64} Roseberry also contends that the trial court abused its discretion in allowing 

Adams to read the handwritten list of compiled text messages because the list was not 

properly authenticated. 

{¶ 65} Under Evid.R. 901(A), “[t]he requirement of authentication or identification 

as a condition precedent to admissibility is satisfied by evidence sufficient to support a 

finding that the matter in question is what the proponent claims.” This rule invokes a 

very low threshold standard, requiring only sufficient foundational evidence for the trier 

of fact to conclude that the item is what its proponent claims it to be. State v. Craycraft, 

Clermont App. Nos. CA2009-02-013 and CA2009-02-014, 2010-Ohio-596, ¶35. This 

standard is less demanding than preponderance of the evidence. Id., citing State v. 

Winfield (Feb. 7, 1991), Ross App. No. 1641. The proponent must only demonstrate a 

“reasonable likelihood” that the evidence is authentic, which may be supplied by the 

testimony of a witness with knowledge. Evid.R. 901(B); State v. Bell, Clermont App. 

No. CA2008-05-044, 2009-Ohio-2335, ¶30. 

{¶ 66} We find that the handwritten list was properly authenticated by Adams 

because she was the person who created the list and she testified that the list was, in fact, 

her handwritten list of the text messages exchanged between Roseberry and herself. 
{¶ 67} Roseberry’s final challenge to the text messages is that the trial court 

abused its discretion in (1) allowing Detective Delisle to testify regarding the photographs 

he took of Adams’s cell phone, and (2) ultimately admitting and receiving the 

photographs and their written content into evidence. The State argues that the 

photographs were properly admitted and received into evidence as photographs and were 

properly authenticated under Evid.R. 901. 

{¶ 68} Again, evidence is properly authenticated under Evid.R. 901 when the 

evidence is sufficient to support a finding that the matter in question is what the 

proponent claims it to be. Evid.R. 901(A); Craycraft. For photographs, a witness with 

personal knowledge of the subject of the photographs may authenticate them by testifying 

that the photographs fairly and accurately depict the subject at the time they were taken. 

State v. Hannah (1978), 54 Ohio St.2d 84, 88, 374 N.E.2d 1359. 

{¶ 69} In this case, Detective Delisle testified that he viewed Adams’s cell phone 

and text messages and took photographs of those text messages. At trial, when the 

prosecutor showed him the photographs, State’s exhibits 4-14, Detective Delisle agreed 

that the photographs appeared “to be a fair and accurate copy of the text messages from 

Miss Adams’[s] phone on the date that [he] took those photos.” Accordingly, we find 

that the photographs were properly authenticated by Detective Delisle. 

{¶ 70} However, we find that the trial court abused its discretion in admitting the 

photographs of the text messages that Adams did not testify to, i.e., State’s exhibits 

11-14, because the content contained in the photographs is inadmissible hearsay. 
{¶ 71} Hearsay “is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). A statement can be a written assertion. Evid.R. 801(A). 

Statements made outside of the courtroom, offered at trial to prove the truth of what they 

assert, are generally inadmissible as hearsay unless an exception applies. Evid.R. 801(C); 

Evid.R. 802; State v. DeMarco (1987), 31 Ohio St.3d 191, 195, 509 N.E.2d 1256. 

{¶ 72} In this case, the photographs contained out-of-court written statements. 

The State was not using the photographs to show that Adams had a cell phone that 

received text messages, but to show the written content of the text messages allegedly 

exchanged between Adams and Roseberry to prove that Roseberry committed the 

offenses of breaking and entering and theft. 

{¶ 73} The photographs, State’s exhibits 4-14, showed the content of the text 

messages between Adams and Roseberry. Adams testified and recited the content of the 

text messages contained in exhibits 4-10, identifying which text messages she sent and 

which were sent by Roseberry. Therefore, the text messages sent by Roseberry rendered 

the content of conversation not hearsay pursuant to Evid.R. 801(D)(2), which provides 

that statements that are offered against a party and are the party’s own statements are not 

hearsay. Therefore, Roseberry’s statements in the text messages that Adams testified to 

were admissible as admissions by a party-opponent under Evid.R. 801(D)(2)(a). 

Accordingly, State’s exhibits 4-10, the photographs containing content of what Adams 

previously testified to, were properly authenticated and not hearsay; thus admissible. 
{¶ 74} However, the content of the text messages contained in exhibits 11-14 are 

hearsay because they contain out-of-court statements used to prove the truth of the matter 

asserted, specifically that Roseberry committed the acts of breaking and entering and 

theft. Unlike the photographs that contained the content that Adams previously testified 

to, Detective Delisle did not have knowledge of the content of the text messages. He did 

not testify that he knew Roseberry’s cell phone or that he could determine from the cell 

phone which messages were sent or received and by whom. The only method of 

identifying the “speakers” and deciphering the content of those text messages was 

through what Adams told Detective Delisle because nothing within the text messages 

independently indicated the senders or speakers of the text messages. Therefore, the 

hearsay exception under Evid.R. 801(D)(2)(a) cannot be used for these exhibits to be 

received into evidence. Accordingly, we find that the trial court abused its discretion in 

receiving these photographs of the text messages, State’s exhibits 11-14, into evidence 

through Detective Delisle’s testimony alone. 

{¶ 75} We note that in most cases involving electronic print media, i.e., texts, 

instant messaging, and e-mails, the photographs taken of the print media or the printouts 

of those conversations are authenticated, introduced, and received into evidence through 

the testimony of the recipient of the messages. See Bell and Craycraft. Thus, the State 

could have properly admitted the photographs through Adams’s testimony because she 

was the recipient of the text messages, had personal knowledge of the content, and could 

identity of the sender of the messages. 
{¶ 76} We also find that the admission of these exhibits was not harmless error and 

contributed to Roseberry’s conviction for breaking and entering and theft. Pursuant to 

Crim.R. 52(A), “[a]ny error, defect, irregularity, or variance which does not affect 

substantial rights shall be disregarded.” To find an error harmless, a reviewing court 

must be able to declare a belief that the error was harmless beyond a reasonable doubt. 

State v. Lytle (1976), 48 Ohio St.2d 391, 403, 358 N.E.2d 623. A reviewing court may 

overlook an error where the remaining admissible evidence, standing alone, constitutes 

“overwhelming” proof of a defendant’s guilt. State v. Williams (1983), 6 Ohio St.3d 

281, 290, 452 N.E.2d 1323. “Where there is no reasonable possibility that unlawful 

testimony contributed to a conviction, the error is harmless and therefore will not be 

grounds for reversal.” State v. Brown, 65 Ohio St.3d 483, 485, 1992-Ohio-61, 605 

N.E.2d 46. 

{¶ 77} In this case, the State needed to prove that Roseberry forcefully trespassed 

on Adams’s property to commit a theft offense or felony and that he subsequently 

committed an act of theft. Reviewing all the testimony given at trial and the content of 

text messages sent, the content in State’s exhibits 11-14 was necessary to establish the 

State’s case. Within those exhibits, the following texts were exchanged: 

{¶ 78} “Did u break my window yet crazy 

{¶ 79} “Not yet 

{¶ 80} “U better not 

{¶ 81} “How do I get n 
{¶ 82} “Idk 

{¶ 83} “Yea u do 

{¶ 84} “Wht time do u get off 

{¶ 85} “I think 7 

{¶ 86} “Man I hpe I dnt go to jail 

{¶ 87} “Jail 4 wht 

{¶ 88} “Doin smething dumb” 

{¶ 89} Prior to the admission of the text message photographs, Adams’s testimony 

established only that Roseberry threatened to break her window to gain entrance, but did 

not prove beyond a reasonable doubt that his purpose for breaking the window was to 

take any property or commit any felony offense, and no evidence was presented linking 

him to the removal of Adams’s property. From Adams’s testimony, an inference could 

be drawn that Roseberry’s purpose in breaking the window was merely to find a place to 

stay (“OK can u un block da door I dnt have no where to go,” “Cuz who wnt ti be left n 

da streets”). The subsequent inadmissible text messages established that Roseberry was 

going to break the window (“Not yet”) and was concerned about going to jail (“Man I hpe 

I dnt go to jail” [for] “Doin smething dumb”). 

{¶ 90} Moreover, Adams’s testimony alone does not establish that Roseberry took 

the property from her residence. It cannot be inferred that Roseberry was the person who 

removed the items from Adams’s residence merely because he threatened to break the 

window. It is the subsequent inadmissible text messages that create the inference that he 
was going to break the window and was concerned about going to jail for doing 

something “dumb.” 

{¶ 91} We cannot say that the trial court’s decision in receiving the inadmissible 

text messages was harmless beyond a reasonable doubt or that absent the inadmissable 

text messages, the remaining evidence constitutes overwhelming proof of Roseberry’s 

guilt supporting his convictions for breaking and entering and theft. Therefore, the error 

was not harmless, but prejudicial and it deprived Roseberry of a fair trial. Thus, we find 

that the trial court abused its discretion in receiving State’s exhibits 11-14 into evidence. 

{¶ 92} Accordingly, we find that the trial court did not abuse its discretion in 

allowing Adams to read her handwritten compilation of text messages under Evid.R. 

803(5) or in receiving State’s exhibits 4-10 into evidence. However, we find that State’s 

exhibits 11-14 were improperly admitted and the error deprived Roseberry of a fair trial 

on the breaking and entering and theft charges; thus, a new trial on those charges is 

warranted. Roseberry’s third assignment of error is sustained in part and overruled in 

part. 

Manifest Weight of the Evidence

{¶ 93} In his second assignment of error, Roseberry argues that his convictions are 

against the manifest weight of the evidence. Having concluded that Roseberry was 

deprived of a fair trial regarding his convictions for breaking and entering and theft, thus 

warranting a new trial, we will only address this assignment of error as it pertains to his 

convictions for having weapons while under disability and receiving stolen property. 
{¶ 94} A manifest weight challenge questions whether the prosecution met its 

burden of persuasion. State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356. 

A reviewing court may reverse the judgment of conviction if it appears that the trier of 

fact “ ‘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 (1983), 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717.. 

{¶ 95} Based on the record before us, the trial judge did not lose his way in 

convicting Roseberry for having weapons while under disability and receiving stolen 

property. The weight of the evidence demonstrated that Roseberry had a firearm in his 

possession on the evening of July 25. Adams testified that when Roseberry realized the 

police were at her residence, he walked to the back of the house. The officers searched 

the house and recovered a stolen firearm from the toilet reservoir, which Adams identified 

as the gun Roseberry had in his possession when he entered her residence. Furthermore, 

the legal owner of the firearm testified that he did not give Roseberry permission to use or 

possess his firearm, which was stolen in 2008. Because Roseberry had been previously 

convicted of a drug offense, he could not obtain a firearm legally; therefore, he had 

reasonable cause to believe the firearm was stolen. 

{¶ 96} Accordingly, Roseberry’s remaining convictions are not against the 

manifest weight of the evidence. His second assignment of error is overruled. 
{¶ 97} Judgment is affirmed in part, reversed in part, and remanded for a new trial 

on the breaking and entering and theft charges. 

Judgment affirmed in part 

and reversed in part, 

and cause remanded. 

S. GALLAGHER, P.J., and E. GALLAGHER, J., concur.