[Cite as State v. Hall,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103760

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MICHAEL HALL DEFENDANT-APPELLANT

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595323-A

BEFORE: Stewart, J., E.T. Gallagher, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: July 14, 2016 ATTORNEY FOR APPELLANT

Russell S. Bensing 1360 East 9th Street, Suite 600 Cleveland, OH 44114

ALSO LISTED:

Michael Hall, pro se 394 East 200th Street Cleveland, OH 44109

ATTORNEY FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Michael Hall was indicted on charges of burglary and menacing by stalking

after entering his ex-girlfriend’s home unannounced and uninvited while she was

sleeping. Following a bench trial, Hall was found guilty of the burglary but not guilty of

the menacing charge. The court sentenced Hall to one year of community control

sanctions and appointed counsel to represent him on appeal. Pursuant to Anders v.

California,

,

,

(1967), counsel now asks this

court for permission to withdraw as appellate counsel on the basis that Hall cannot raise

any nonfrivolous issues on appeal. Hall was given an opportunity to file his own merit

brief but has not done so.

{¶2} In accordance with Loc.R. 16(C) and State v. Taylor, 8th Dist. Cuyahoga No.

101368,

, counsel’s Ander’s brief asserts and discusses one arguable

assignment of error that Hall could raise on appeal but would be frivolous — that is a

manifest weight challenge to the burglary conviction. After reviewing the record in light

of counsel’s identification and discussion of the potential assigned error, see Taylor at ¶

18, we agree that a manifest weight challenge is frivolous in this case.

{¶3} When reviewing a lower court judgment on the basis that the verdict is

against the manifest weight of the evidence, appellate courts are

charged with reviewing the record, weighing the evidence and credibility of the witnesses, and ultimately determining whether the jury so “clearly lost its way” and “created such a manifest miscarriage of justice that [the] conviction[s] must be reversed and a new trial ordered.” State v. Shepherd, 8th Dist. Cuyahoga No. 102974,

, quoting State

v. Thompkins,

,

(1997). Reversal based on a

manifest weight challenge is warranted “only in the exceptional case in which the

evidence weighs heavily against the conviction.”

. As we have recently stated,

“[t]he standard of review uses the word ‘manifest,’ indicating that we can only reverse the

trier of fact if its decision is very plainly or obviously contrary to the evidence.” State v.

Thigpen, 8th Dist. Cuyahoga No. 102467,

.

{¶4} Appellate counsel points out, and we have confirmed, that a substantial

portion of the trial transcript in this case is dedicated to establishing and disproving the

elements of the menacing by stalking charge. Hall was acquitted of this charge. The

remainder of the transcript addressing the burglary charge is slight and focuses on the

following facts.

{¶5} At trial, Hall’s ex-girlfriend, M.J., testified that she and Hall had dated for

four years before breaking up five months prior to the burglary. M.J. explained that after

their breakup, Hall repeatedly showed up at her home despite being told that he was not

welcome. Eventually, Hall’s behavior became so alarming to M.J. and her parents that

they asked the police to place Hall on a “no trespass list.”1 M.J. testified that on April

According to Euclid Police Detective Brett Buchs’s testimony, a homeowner can call the 1

police department and give the name of a person whom the homeowner no longer considers welcome at their address. The person is added to a database referred to as a “no trespass list.” The Detective further testified that Hall was on the no trespass list as not being welcome at M.J. and her parents’ home. 23, 2016, at around 7:30 a.m., she awoke to find Hall, dressed in all black, standing in her

bedroom doorway. When M.J. asked Hall what he was doing in her home and how he

got in, Hall explained that he entered the home a few minutes earlier through a door that

her mother had left open while she was rearranging cars in the driveway. According to

M.J., Hall gave her some flowers and told her that he loved her. M.J. told Hall to leave

and he exited the home.

{¶6} M.J.’s mother testified that she received a call from her daughter around 7:30

a.m. shortly after she left for work. According to the mother, M.J. was hysterical while

she explained to her mom that Hall had entered the house while she was sleeping. After

talking with her daughter, the mother returned home and called the police. Two officers

responded to the scene. They recovered the flowers that Hall had left, asked M.J. where

Hall lived, and proceeded to arrest Hall at his house a few blocks away. When he was

arrested, Hall was dressed in all black like M.J. reported.

{¶7} Hall did not testify at trial or call witnesses on his behalf. Rather, defense

counsel relied on cross-examination aimed solely at attacking the state’s witnesses’

credibility. The witnesses never wavered in their accounts however.

{¶8} Defense counsel cross-examined M.J. on her on-again-off-again relationship

with Hall, and the fact that she did not call the police immediately upon discovering Hall

in her home; however, neither of these facts contradict M.J.’s testimony that Hall entered

her home uninvited and without permission. Further, defense counsel’s

cross-examination of the mother consisted of asking the mother why she waited until she returned home to call the police after hearing that Hall had entered their home, and

uncovering the fact that the mother had a clear view of the side door as she was moving

cars. In response to these questions, the mother testified that she went home rather than

calling the police because she was close by, and that she did not notice anyone enter the

home while moving cars — a fact that was explained away on redirect when the state

established that the mother was more interested in getting the cars rearranged so that she

could get to work, rather than stealthily watching the door for intruders.

{¶9} Lastly, defense counsel’s cross-examination of first responder Officer

Michael Neibecker, and Detective Brett Buchs, the detective assigned to the case, did

nothing but establish that Hall maintained, when questioned by police, that he did not

enter M.J.’s home on the morning of April 23, 2015, and that the officers did not uncover

any physical evidence that would support his presence in the home. The fact that Hall

maintained that he was sleeping in his home when the alleged burglary occurred is

undermined by the fact that when police showed up to his home only a few minutes after

the responding to the 911 call at M.J.’s house, Hall was fully dressed in an all black outfit

similar to the one M.J. described that he was wearing when he appeared in her home.

Moreover, the police explained that they did not collect physical evidence from the crime

scene because there were no signs of forced entry into the home. Thus, nothing about

this line of questioning attacked or otherwise countered the weight of M.J.’s testimony

that Hall had entered the house without permission knowing that he was not welcome

there. {¶10} A reversal based on the manifest weight of the evidence is hard to procure

even in the best of circumstances. Indeed, in most cases the error is raised simply

because there is not anything else to raise. The fact of the matter is, in order to prevail

on an assignment of error asserting that a verdict is against the manifest weight of the

evidence, it is ordinarily necessary that the defendant have put on some type of evidence

in his defense for which the appellate court can weigh against the state’s evidence.

While the standard certainly allows appellate courts to weigh witness credibility in

addition to evidence, in cases such as this, where the defendant has failed to show any

particular inconsistencies in witness testimony or particular motives for witness

untruthfulness, credibility is simply not at issue. When the only evidence presented is

evidence that supports the state’s charges against the defendant, and the only

counterweight to that evidence is defense counsel’s cross- examination attacking what the

state’s witnesses “did not know” or “did not see” or “did not do,” in an attempt to create a

reasonable doubt, it will be frivolous to assert that the verdict is against the manifest

weight of the evidence.

{¶11} Appellate courts are not authorized to second guess the decisions of the

factfinder when the defendant raises a manifest weight challenge. Rather they may only

reverse a judgment in the rare instance that a factfinder “clearly loses its way” resulting in

a “manifestly unjust” verdict. Under no circumstances could an appellate court find that

the verdict is against the manifest weight of the evidence in this case. Accordingly, we

grant appellate counsel’s motion to withdraw and dismiss the appeal. {¶12} Appeal dismissed.

It is ordered that appellee recover of said appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ MELODY J. STEWART, JUDGE

SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY; EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION)

EILEEN T. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:

{¶13} I write separately to express my concerns regarding whether a challenge to

the manifest weight of the evidence supporting a criminal conviction following a jury trial

can be properly resolved under Anders,

,

,

.

{¶14} In Anders, the court stated that once appellate counsel files an Anders brief,

we must conduct “a full examination of all the proceedings to decide whether the case is

wholly frivolous.”

. If, however, we find any of the legal points “arguable on

their merits (and therefore not frivolous) [we] must, prior to decision, afford the indigent

the assistance of counsel to argue the appeal.”

{¶15} Based on the foregoing language, I am concerned that the nature of a

criminal manifest weight challenge, including arguments relating to the assessment of

witness credibility and the weight to be given to testimony, are nonfrivolous legal points

that are inherently “arguable on their merits.” While I certainly agree with the lead opinion’s conclusion that a manifest weight challenge in this case would be meritless, I

am reluctant to categorize the proposed assignment of error as “wholly frivolous.”

{¶16} Despite my concerns, however, I am persuaded by the Second District’s rationale for addressing sufficiency and manifest weight challenges under Anders. In State v. Matzdorff, 2d Dist. Montgomery No. 26370,

, the Second District explained

Anders equated a frivolous appeal with one that presents issues lacking in arguable merit. An issue does not lack arguable merit merely because the prosecution can be expected to present a strong argument in reply, or because it is uncertain whether a defendant will ultimately prevail on that issue on appeal. Rather, an issue lacks arguable merit if, on the facts and law involved, no responsible contention can be made that it offers a basis for reversal.

Id. at ¶ 5.

{¶17} Because I agree with the lead opinion’s determination that no responsible

contention can be made in this case that a manifest weight challenge offers a basis for

reversal, I agree with the decision to grant appellate counsel’s motion to withdraw and

dismiss the appeal.

{¶18} However, I concur in judgment only based on the lead opinion’s citation to

Taylor, 8th Dist. Cuyahoga No. 101368,

. In my view, Taylor expressly

contradicts our role as a reviewing court set forth in Loc.R. 16(C), as well as reviewing

courts’ role under Anders. Under Loc.R. 16(C) and Anders, this court has an obligation

to independently review the record to determine whether the appellant has an issue of

arguable merit. Anders,

,

,

. Thus, I

respectfully concur in judgment only with the lead opinion. KEYWORDS AND SUMMARY: Anders brief; frivolous; manifest weight of the evidence. Appellate counsel’s motion to withdraw is granted where record shows that a manifest weight challenge would be frivolous.