[Cite as State v. Zurschmit, 2015-Ohio-4355.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

PAUL R. ZURSCHMIT 

 Appellant 

C.A. No. 27370 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 2013 07 1869 

DECISION AND JOURNAL ENTRY 

Dated: October 21, 2015 

 

CARR, Judge. 

{¶1} Appellant Paul Zurschmit appeals his conviction in the Summit County Court of 

Common Pleas. This Court affirms. 

I. 

{¶2} Zurschmit was indicted on two counts of vandalism, one count of menacing by 

stalking, one count of criminal trespass, and one count of burglary. At the conclusion of trial, the 

jury found him not guilty of one count of vandalism, but guilty of the remaining four charges. 

For purposes of sentencing, the trial court merged the count of vandalism into the burglary and 

imposed an aggregate term of imprisonment for three years on the remaining three offenses. 

Zurschmit appealed and raises two assignments of error for review. 

II. 

ASSIGNMENT OF ERROR I

APPELLANT’S CONVICTION FOR BURGLARY WAS BASED UPON 

INSUFFICIENT EVIDENCE AS A MATTER OF LAW. 
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{¶3} Zurschmit argues that his burglary conviction was not supported by sufficient 

evidence. This Court disagrees. 

{¶4} “Raising the question of whether the evidence is legally sufficient to support the 

jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d 

460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In 

reviewing a challenge to the sufficiency of the evidence, “the relevant inquiry is whether, after 

viewing the evidence in the 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.” Diar

at ¶ 113, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, 

following Jackson v. Virginia, 443 U.S. 307 (1979). 

{¶5} Zurschmit was convicted of burglary in violation of R.C. 2911.12(A)(3) which 

states: “No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure 

* * *, with purpose to commit in the structure * * * any criminal offense.” “Force” is satisfied 

by “any effort physically exerted.” State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-175, ¶ 18 

(9th Dist.). A criminal trespass occurs when one “without privilege to do so * * * [k]knowingly 

enter[s] or remain[s] on the land or premises of another[.]” R.C. 2911.21(A)(1). “A person acts 

purposely when it is the person’s specific intention to cause a certain result, or, when the gist of 

the offense is a prohibition against conduct of a certain nature, regardless of what the offender 

intends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that 

nature.” R.C. 2901.22(A). 

{¶6} In this case, the criminal offenses underlying the burglary were limited to 

vandalism and/or theft. One commits vandalism by “knowingly caus[ing] serious physical harm 

to an occupied structure or any of its contents.” R.C. 2909.05(A). For purposes of the vandalism 
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statute, “serious physical harm” is defined as “physical harm to property that results in loss to the 

value of the property of one thousand dollars or more.” R.C. 2909.05(F)(2). An “occupied 

structure” includes “any house * * * to which any of the following applies: (1) It is maintained as 

a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not 

any person is actually present[;] (2) At the time, it is occupied as the permanent or temporary 

habitation of any person, whether or not any person is actually present[;] (3) At the time, it is 

specially adapted for the overnight accommodation of any person, whether or not any person is 

actually present[; or] (4) At the time, any person is present or likely to be present in it.” R.C. 

2909.01(C). 

{¶7} A person commits a theft when “with purpose to deprive the owner of property or 

services, [he] knowingly obtain[s] or exert[s] control over either the property or services” of 

another without the owner’s consent, beyond the scope of the owner’s consent, or by deception, 

threat, or intimidation. R.C. 2913.02(A)(1)-(5). 

{¶8} At trial, Jeffrey Gardner testified regarding an acrimonious relationship between 

Zurschmit and himself stemming from both men’s relationship with Mr. Gardner’s girlfriend 

Melissa McClain. After living in Zurschmit’s mother’s home, Ms. McClain moved in with Mr. 

Gardner, at which time the harassment by Zurschmit escalated against Mr. Gardner. For 

example, in April 2013, Zurschmit was captured on Mr. Gardner’s vehicle’s security camera 

throwing a rock at the windshield and spewing profanity. On May 30, 2013, after rain water was 

pouring through his ceiling into his home, Mr. Gardner climbed up on his roof and discovered 

that 150 holes had been drilled in the roof. Mr. Gardner initially suspected a roofing contractor 

with whom he had a dispute, but later suspected Zurschmit based on the tension and subsequent 

confrontations between the two men. 
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{¶9} At approximately 3:00 a.m. on June 2, 2013, Mr. Gardner and Ms. McClain 

returned home after a typical Saturday evening at a nightclub to find significant damage to the 

home. A bedroom window air conditioning unit had been pulled out and was lying on the 

ground. Inside the home, there was water damage everywhere: faucets were spewing water, the 

toilet had been rigged to spray water, the waterbed had been sliced open, and a garden hose had 

been run through the bedroom window and turned on. All of the home’s remote controls had 

been placed in either the toilet or a sink full of water. In addition, a fire extinguisher had been 

sprayed throughout the home and Mr. Gardner’s car. The next day, Mr. Gardner climbed up on 

the roof and discovered that 64 more holes had been drilled through the tarp the insurance 

company had used to cover the prior 150 holes. In taking inventory of his belongings, Mr. 

Gardner discovered that his wallet, computer, backup hard drive, DirecTV box, and a hard drive 

for his home security system had been taken. However, none of Ms. McClain’s property was 

taken or damaged. Mr. Gardner immediately suspected Zurschmit based on recent harassment. 

{¶10} In mid-June, after the invasion and vandalism of Mr. Gardner’s home, Mr. 

Gardner waited nearby as Ms. McClain approached Children Services Board for visitation with 

her children. Zurschmit lived near the agency. Mr. Gardner testified that he saw Zurschmit 

approach Ms. McClain, but that he quickly ran away as Mr. Gardner approached. Ms. McClain 

testified that Zurschmit approached her in the agency parking lot and taunted, “Hey, Missy, I 

heard something happened at your boy’s house.” When Ms. McClain asked him what he knew, 

Zurschmit told her that he was at Mr. Gardner’s house at the time, sitting at a picnic table in the 

backyard, watching as three men pulled an air conditioning unit out of a window which they then 

entered. Zurschmit told Ms. McClain that he saw the three men throw pillow cases out the 

window and then exit through a door, leaving the door open. Zurschmit told Ms. McClain that 
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he walked up to the house and closed the door because he did not want Mr. Gardner’s cats to 

escape. 

{¶11} On June 25, 2013, Zurschmit called Mr. Gardner’s cell phone. Ms. McClain 

testified that she was sitting beside Mr. Gardner at the time and was able to overhear the entire 

conversation. Mr. Gardner recorded the conversation and gave the recording to the police. The 

State played the recording of the conversation in court. A man’s voice, which Mr. Gardner 

testified was not his, can be heard on the recording making “drill” sounds and saying that he had 

moved on to drilling holes. Detective Michael Hitchings of the New Franklin Police Department 

testified that, during his involvement in the case, Zurschmit admitted to having called Mr. 

Gardner after the incident. 

{¶12} Reviewing the evidence in a light most favorable to the State, this Court 

concludes that any rational trier of fact could have found the essential elements of the charge of 

burglary were proved beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at paragraph two of 

the syllabus. The State presented evidence that Zurschmit was on Mr. Gardner’s property 

without permission at the time of the burglary. The evidence demonstrated that the intruder 

gained entrance to the home after forcibly removing an air conditioning unit from a bedroom 

window, and further entered a closed garage and Mr. Gardner’s car. Significant water damage 

was inflicted inside the home, additional holes were drilled in the roof, multiple items were 

stolen from the home, and the entire interior of Mr. Gardner’s car and much of his house was 

sprayed with a fire extinguisher. Given Zurschmit’s admission to being on Mr. Gardner’s 

property at the time of the commission of the burglary, coupled with prior acts of aggression and 

subsequent taunts towards Mr. Gardner, the trier of fact could have reasonably inferred that 

Zurschmit committed the offense. Zurschmit’s first assignment of error is overruled. 
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ASSIGNMENT OF ERROR II

APPELLANT’S CONVICTION FOR BURGLARY WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶13} Zurschmit argues that his burglary conviction was against the manifest weight of 

the evidence. This Court disagrees. 

{¶14} This Court recognizes: 

In determining whether a criminal conviction is against the manifest weight of the 

evidence, an appellate court must review the entire record, weigh the evidence 

and all reasonable inferences, consider the credibility of witnesses and determine 

whether, in resolving conflicts in the evidence, 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). 

Weight of the evidence concerns the tendency of a greater amount of credible 

evidence to support one side of the issue more than the other. Thompkins, 78 

Ohio St.3d at 387. Further when reversing a conviction on the basis that it was 

against the manifest weight of the evidence, an appellate court sits as a “thirteenth 

juror,” and disagrees with the factfinder’s resolution of the conflicting testimony. 

Id. 

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. 

{¶15} This discretionary power should be exercised only in exceptional cases where the 

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 

78 Ohio St.3d at 387. 

{¶16} Robert Randolph, records custodian and technical support analyst for Verizon 

Wireless testified that Mr. Gardner’s cell phone number logged a four-minute call on June 25, 

2013, at 11:23 p.m. Mr. Gardner verified his cell phone number and testified that that call was 

the conversation he had with Zurschmit after the burglary and during which Zurschmit taunted 

Mr. Gardner about the damage done to his home on June 2, 2013. In the recorded call, 

Zurschmit can be heard admitting that he was at Mr. Gardner’s house on the night of the burglary 
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and commenting on the amount and type of damage inflicted during the burglary. Included in 

his taunts was his comment that he had moved on from other activities involving Mr. Gardner to 

drilling holes. Zurschmit then twice made a drilling noise. He can further be heard threatening 

future damage to Mr. Gardner’s property. 

{¶17} On June 29, 2013, after the burglary and above-referenced phone call from 

Zurschmit, Mr. Gardner and Ms. McClain stayed home instead of going out for their usual date 

night clubbing. Mr. Gardner turned out all the lights in his home except for the bedroom, which 

was not visible from outside the house, to make it appear as though no one was home. He had 

installed a new 15-camera security system which he monitored that evening. At 11:19 p.m., Mr. 

Gardner saw something on one of the security system monitors. He recognized Zurschmit 

prowling around the property. Ms. McClain called the police and waited with Mr. Gardner for 

them to arrive. Mr. Gardner gave his video footage to the police. 

{¶18} Detective Hitchings testified that the police attempted to take fingerprints from 

the scene after the June 2 burglary, but that the excessive water made that impossible. The only 

fingerprint the police found was too smudged to identify the person who left it. Detective 

Hitchings further testified that there were no attempts to match the only shoe print found outside 

the house to Zurschmit’s shoes. Nevertheless, Zurschmit had admitted multiple times to multiple 

people that he had been at the scene of the burglary as it occurred. 

{¶19} A thorough review of the record indicates that this is not the exceptional case 

where the evidence weighs heavily in favor of Zurschmit. The weight of the evidence supports 

the conclusion that Zurschmit, who had displayed acts of animosity and aggression toward Mr. 

Gardner and his property both before and after the June 2, 2013 burglary, committed the offense. 

Zurschmit was admittedly on Mr. Gardner’s property that evening without permission. Entrance 
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to the property was accomplished after an air conditioning unit was forcibly removed from a 

window. Although he claimed to have witnessed other men breaking into Mr. Gardner’s home 

and throwing items out the window, Zurschmit did not call 911 or report the incident to the 

police. Zurschmit subsequently conveyed information to both Mr. Gardner and Ms. McClain 

regarding the extensive damage to the contents of the home and the roof that only the perpetrator 

would reasonably know. For example, during his taunting call to Mr. Gardner after the burglary, 

Zurschmit referenced water damage inside the home and made drilling noises. In addition, a few 

weeks after the burglary and mere days after Zurschmit’s taunting phone call to the victim, Mr. 

Gardner captured video images of Zurschmit wandering around on his property on a night that 

Mr. Gardner and Ms. McClain would normally be out of the house. Based on the evidence, this 

Court cannot conclude that the jury lost its way in finding that Zurschmit used force, stealth, or 

deception to trespass in the victim’s home with purpose to vandalize and/or commit theft. 

Accordingly, Zurschmit’s burglary conviction is not against the manifest weight of the evidence. 

Zurschmit’s second assignment of error is overruled. 

III. 

{¶20} Zurschmit’s assignments of error are overruled. This judgment of the Summit 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 
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 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 DONNA J. CARR 

 FOR THE COURT 

HENSAL, P. J. 

WHITMORE, J. 

CONCUR. 

APPEARANCES: 

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee.