[Cite as State v. Buell,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-12-026

: OPINION - vs - 9/6/2022 :

DERRICK S. BUELL, :

Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CR 20200300

Jess C. Weade, Fayette County Prosecuting Attorney, for appellee.

Steven H. Eckstein, for appellant.

HENDRICKSON, J.

{¶1} Appellant, Derrick S. Buell, appeals from his convictions in the Fayette County

Court of Common Pleas for breaking and entering and theft. For the reasons set forth

below, we affirm appellant's convictions.

{¶2} At approximately 3:30 a.m. on November 12, 2020, Sergeant Dirk

Witherspoon, a deputy with the Fayette County Sheriff's Office, was patrolling in Fayette

County, Ohio in a marked patrol car. While on Bloomingburg-New Holland Road in Marion Fayette CA2021-12-026

Township, Sgt. Witherspoon saw what appeared to be a disabled, hatchback car parked in

a farm lane, about 100 yards away from a barn owned by Mike Reeves. Sgt. Witherspoon

stopped his patrol car to check on the disabled vehicle. The vehicle had frost on its hood

and there was no one inside it. Sgt. Witherspoon drove away from the disabled vehicle,

looking to see if anyone was in the area. He did not find anyone and, approximately two

minutes later, turned around and drove back towards the area where the hatchback had

been parked.

{¶3} Sgt. Witherspoon discovered the vehicle had been moved and was now

parked next to Reeves' barn door. The barn door's glass window had been removed to

allow for forcible entry into the building. A male, later identified as appellant, was loading

items into the hatchback. Sgt. Witherspoon ordered appellant to stop and show his hands,

but appellant jumped into the hatchback and fled from the scene. Other than appellant,

Sgt. Witherspoon had not observed any other individual near the hatchback or Reeves'

barn.

{¶4} Sgt. Witherspoon gave chase to the hatchback, keeping a visual on the

vehicle during a 15-minute-long pursuit. He did not observe any passengers get in or out

of the vehicle during the pursuit. Appellant's vehicle was eventually stopped by law

enforcement. Sgt. Witherspoon processed the hatchback by first photographing the vehicle

and its contents and then by removing the contents. Sgt. Witherspoon found a number of

hand tools and power tools loaded into the back of the hatchback, as well as a hamper full

of clothes and boots. Though the back of the vehicle was packed full of items, the front

passenger seat did not have any items loaded on it. A spoon and a syringe were located

in the passenger area.

{¶5} After the contents of the hatchback were inventoried, the items found in the

hatchback were transported to the sheriff's office annex. Sgt. Witherspoon contacted

-2- Fayette CA2021-12-026

Reeves and asked Reeves to meet him at the barn. When they arrived at the barn, Sgt.

Witherspoon observed that the barn was in the same condition as it had been when he first

observed appellant at the barn. The window to the door was removed and the door was

unlocked. Reeves informed the sergeant that he had not left the barn that way the night

before the break-in. Rather, Reeves indicated the door had been shut and locked the night

before, with the window plate still intact. Sgt. Witherspoon examined the barn door for

blood, hair, and fingerprint evidence but none was found.

{¶6} Upon entering the barn, Reeves noticed that several items in the barn had

been disturbed and several more were missing. Drill bits and other tools he had stacked

and stored along benches in the barn were gone. Reeves accompanied Sgt. Witherspoon

to the sheriff's office annex, where he looked at the items recovered from the hatchback

and was able to identify a "third of a pickup load of [his] tools" which had been taken from

the barn. Reeves estimated that about 20 percent of the items recovered from the back of

the hatchback did not belong to him, including the hamper of clothes and boots, but the

remainder of the items were his. Reeves identified seventeen items that belonged to him,

including multiple socket sets, a torque set, a vacuum, a router, a "sawzaw," a leaf blower,

a drill, a band saw, a battery checker, a stud finder, a hammer set, and a LED stick light.

Reeves indicated that the value of the items taken from him was "a couple thousand [dollars]

or more," and he stated appellant did not have his permission to be on his property, to enter

his barn, or to take the tools removed from the barn. Reeves' property was returned to him

on that date.

{¶7} Appellant was indicted on one count of failing to comply with the order or

signal of a police officer in violation of R.C. 2921.331(B), a felony of the third degree, one

count of breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth degree,

and one count of theft in violation of R.C. 2913.02(A)(1), a felony of the fifth degree as the

-3- Fayette CA2021-12-026

value of the property stolen was alleged to have been more than $1,000 but less than

$7,500. Appellant pled not guilty to the charges. Upon a request from the state, the trial

court severed the failure to comply charge from the theft and breaking and entering charges.

On April 16, 2021, appellant pled guilty to the failure to comply charge and sentencing was

reserved until after appellant's trial on the remaining charges.

{¶8} On May 11, 2021, a jury trial was held on the theft and breaking and entering

charges. Sgt. Witherspoon and Reeves testified as to the events described above. The

state also introduced into evidence the dashcam recording of Sgt. Witherspoon's pursuit of

the hatchback, photographs of the hatchback and the items found in the hatchback, and a

property receipt of the tools returned to Reeves. Appellant did not call any witnesses but

did introduce into evidence some photographs of the hatchback's passenger seat area and

of the hamper recovered from the vehicle. After considering the evidence, the jury found

appellant guilty of theft and breaking and entering.

{¶9} Appellant was subsequently sentenced to an agreed upon 30-month prison

term for failing to comply with an order or signal of a police officer. The court also imposed

12-month prison terms on the theft and breaking and entering convictions. The prison terms

were all run consecutively to one another, for an aggregate prison term of 54 months.

{¶10} Appellant appealed, raising three assignments of error for review. For ease

of discussion, his second and third assignments of error will be addressed together.

{¶11} Assignment of Error No. 1:

{¶12} THE TRIAL COURT ERRED WHEN IT DID NOT PROVIDE THE JURY WITH

SEPARATE VERDICT FORMS FOR PRINCIPAL OFFENDER AND COMPLICITOR IN

VIOLATION OF CRIM.R. 31(A) AND THE SIXTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

-4- Fayette CA2021-12-026

{¶13} In his first assignment of error, appellant argues that "breaking and entering

and theft and complicity to these two crimes are different offenses" and that the trial court

erred by not providing the jury with separate verdict forms for finding appellant guilty of the

offenses as the principal offender or as a complicitor. Without separate verdict forms,

appellant contends it cannot be determined whether the jury unanimously found him guilty

as a complicitor or as a principal offender, thereby violating Crim.R. 31(A).1

{¶14} Through his cross-examination of the state's witnesses, appellant presented

a defense that it was possible that an unknown and unidentified individual, and not himself,

was the perpetrator of the theft and breaking and entering crimes. This individual, appellant

suggested, could have been hiding inside the barn or around the side of the barn when Sgt.

Witherspoon first arrived. In response to appellant's defense, the state requested a

complicity jury instruction be provided, arguing appellant could be convicted as the principal

offender if the jury believed appellant personally removed Reeves' tools from the barn after

gaining forcible entry or as an aider and abettor who was complicit in the crimes if the jury

concluded an unidentified individual had committed those acts but appellant had assisted

in the crimes. Appellant objected, but the court overruled the objection and provided the

complicity instruction to the jury.

{¶15} The jury was provided with only one verdict form, which allowed the jury to

write in "guilty" or "not guilty" with respect to the individual crimes of breaking and entering

and a theft. With respect to the theft offense, the verdict form also permitted the jury to

make an additional finding that the value of the property stolen was "$1,000.00 or more and

less than $7,500.00" or was "[l]ess than $1,000." Appellant's counsel did not object to the

jury forms. We therefore apply a plain-error standard of review to his arguments. See State

1. Crim.R. 31(A) provides that "[t]he verdict shall be unanimous. It shall be in writing, signed by all jurors concurring therein, and returned by the jury to the judge in open court."

-5- Fayette CA2021-12-026

v. Beshara, 7th Dist. Mahoning No. 07 MA 37,

, ¶ 75 (noting that a plain-

error analysis applied where the defendant objected to a general jury charge of complicity

but failed to object to the trial court's subsequent decision to submit verdict forms to the jury

without reference to complicity); State v. Alexander, 6th Dist. Wood No. WD-02-047, 2003-

Ohio-6969, ¶ 67-70 (finding a plain-error standard of review applied where the defendant

did not object to a single verdict form being provided to the jury, rather than separate verdict

forms for complicitor and principal offender, despite a prior objection to a complicity jury

instruction).

{¶16} Plain error exists where there is an obvious deviation from a legal rule that

affected the defendant's substantial rights by influencing the outcome of the proceedings.

State v. Barnes,

(2002). "Plain error does not exist unless it can be

said that but for the error, the outcome of the trial would clearly have been otherwise." State

v. Biros,

(1997). Courts should notice plain error, "with the utmost

caution, under exceptional circumstances and only to prevent a miscarriage of justice."

State v. Lynn,

,

.

{¶17} "Under the principle of complicity or accomplice liability, an individual may be

found guilty if he solicits, aids, abets or conspires with another individual to commit an

offense and shares the criminal intent of an individual who commits the principal offense."

State v. Horton, 10th Dist. Franklin No. 13AP-855,

, citing State v.

Johnson,

(2001), syllabus. "Under Ohio law, 'there is no distinction

between a defendant convicted of complicity or as a principal offender.'" State v. McKelton,

,

, quoting Alexander at ¶ 70. See also State v.

Lewis, 11th Dist. Lake No. 2012-L-074,

("the legal distinction

between principal offender and aider and abettor is not viewed as significant"). Pursuant to

-6- Fayette CA2021-12-026

R.C. 2923.03(F), "[a] charge of complicity may be stated in terms of [that] section, or in

terms of the principal offense."

{¶18} In light of the foregoing, numerous appellate districts have determined that a

trial court does not commit plain error by not providing separate jury verdict forms for the

principal offense and complicity to that offense. See, e.g., Lewis at ¶ 82-84 ("the failure to

require the jury to distinguish on the verdict forms whether the defendant was found guilty

as an aider and abettor is not a plain error warranting the reversal of conviction"); Alexander,

("there was no need for separate verdict forms because there

is no distinction between a defendant convicted of complicity or as a principal offender. * *

* [T]he use of a single verdict form was not prejudicial"); Beshara,

at ¶ 72-

77 (trial court's failure to include a complicity charge on the verdict forms did not rise to level

of plain error as there was "no significant distinction between a defendant convicted as a

complicitor and one convicted as the principal offender"); State v. Horton, 10th Dist.

Franklin No. 13AP-855,

("we cannot conclude that the trial court's

failure to provide separate jury verdict forms for aggravated murder and complicity to

aggravated murder constitutes plain error").

{¶19} In 2016, the Ohio Supreme Court had the opportunity to consider the issue.

In McKelton, the defendant challenged his conviction, arguing the trial court "created an

unacceptable risk" that the jury did not unanimously convict him of aggravated murder

because it did not provide separate verdict forms for the principal offense and complicity to

the offense. McKelton,

. The court rejected the defendant's

argument, specifically referencing the Horton decision and the other "intermediate appeals

courts [that] have held that a trial court need not 'provide separate jury verdict forms for the

principal offense and complicity to that offense.'" McKelton,

,

quoting Horton at ¶ 10. The court stated, "[b]y the same reasoning [as the intermediate

-7- Fayette CA2021-12-026

appeals courts], we reject McKelton's claim that the trial court was required to give specific

instructions or provide a separate verdict on complicity."

{¶20} Despite the supreme court's decision in McKelton and the line of appellate

court decisions holding that a trial court does not commit plain error in not providing

separate jury verdict forms for the principal offense and complicity to that offense, appellant

nonetheless argues this court should reverse his conviction pursuant to Christian v.

Wellington,

(6th Cir. 2014).

{¶21} In Wellington, a federal habeas case, a defendant challenged the state's

ability to retry him on a charge of complicity to felonious assault when a jury returned a not

guilty verdict on the principal offender charge of felonious assault but was hung on the

complicity to felonious assault charges.

. The defendant argued a retrial would

violate the Double Jeopardy Clause of the Fifth Amendment. The district court denied the

writ and the Sixth Circuit affirmed upon concluding that complicity to felonious assault and

felonious assault were not the same crime as complicity is "focused on rooting out acts such

as soliciting someone else, aiding and abetting someone else, conspiring with someone

else, or causing an innocent person to harm the victim" whereas felonious assault

criminalizes one's own harmful acts.

. The court concluded the defendant's

"upcoming prosecution on the charge of complicity to felonious assault, on which the first

jury hung, does not subject him to double jeopardy."

.

{¶22} The circumstances in Wellington differ significantly than those in the present

case. In Wellington, the issue was whether the double jeopardy clause prohibited retrial of

an offense following a hung jury. The Wellington court was not asked to address whether

separate jury forms are required every time a criminal defendant is tried for a crime for

which he could be criminally liable as a principal offender or a complicitor. The Wellington

court did not address R.C. 2923.03(F) or analyze state case law discussing the

-8- Fayette CA2021-12-026

appropriateness of a single verdict jury form. Furthermore, when the Ohio Supreme Court

addressed the jury form issue in McKelton, more than two years after Wellington was

decided, the supreme court did not apply the holding of Wellington. Instead, the supreme

court cited favorably the case law holding that trial courts need not provide separate jury

verdict forms for the principal offense and complicity to that offense.

{¶23} Accordingly, we find that the trial court's use of single verdict form was not

prejudicial and did not amount to plain error. A charge of complicity may be stated as a

violation of R.C. 2923.03 or in terms of the principal offense. In this case, the state

presented evidence that would allow the jury to conclude that appellant was criminally liable

as the principal offender for stealing Reeves' tools from the barn after gaining forcible entry

into the barn or was criminally liable as a complicitor for assisting another in the commission

of the crimes by helping to load the stolen tools into the hatchback and by serving as the

getaway driver. Appellant has failed to demonstrate that separate verdict forms were

required or that the outcome of trial would have been different if separate verdict forms had

been utilized at trial. McKelton,

; Beshara,

at

¶ 77; Horton,

; Lewis,

; Alexander, 2003-

Ohio-6969 at ¶ 70. Furthermore, contrary to appellant's contentions, Crim.R. 31(A) was

complied with as the verdict was unanimous, in writing, signed by all twelve jurors, and

returned by the jury to the judge in open court. Appellant's first assignment of error is,

therefore, without merit and is overruled.

{¶24} Assignment of Error No. 2:

{¶25} THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST

THE APPELLANT WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶26} Assignment of Error No. 3:

-9- Fayette CA2021-12-026

{¶27} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST

THE APPELLANT WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶28} In his second and third assignments of error, appellant argues his convictions

for breaking and entering and theft were not supported by sufficient evidence and are

against the manifest weight of the evidence.

{¶29} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins,

(1997); State v. Grinstead,

,

, ¶ 10 (12th Dist.). When reviewing the sufficiency

of the evidence underlying a criminal conviction, an appellate court examines the evidence

in order to determine whether such evidence, if believed, would convince the average mind

of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.

CA2011-10-026,

, ¶ 9. Therefore, "[t]he 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 proven beyond a reasonable doubt."

State v. Jenks,

(1991), paragraph two of the syllabus.

{¶30} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

, ¶ 14. To determine whether a conviction is against the manifest weight

of the evidence, the reviewing court must look at the entire record, weigh the evidence and

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

in resolving the 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. Graham, 12th Dist. Warren No. CA2008-07-095,

, ¶ 66.

In reviewing the evidence, an appellate court must be mindful that the jury, as the original

- 10 - Fayette CA2021-12-026

trier of fact, was in the best position to judge the credibility of witnesses and determine the

weight to be given to the evidence. State v. Blankenburg,

, 2012-

Ohio-1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the

manifest weight of the evidence "only in the exceptional case in which the evidence weighs

heavily against the conviction."

citing State v. Thompkins,

(1997). Further, although the legal concepts of sufficiency of the evidence and weight of

the evidence are quantitatively and qualitatively different, "[a] determination that a

conviction is supported by the manifest weight of the evidence will also be dispositive of the

issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049,

.

{¶31} Appellant was convicted of theft in violation of R.C. 2913.02(A)(1), which

provides that "[n]o person, with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services * * * [w]ithout the

consent of the owner or person authorized to give consent." Where the value of the property

stolen is $1,000 or more and is less than $7,500, the offense is a felony of the fifth degree.

R.C. 2913.02(B)(2). "A person acts knowingly, regardless of purpose, when the person is

aware that the person's conduct will probably cause a certain result or will probably be of a

certain nature." R.C. 2901.22(B).

{¶32} Appellant was also convicted of breaking and entering in violation of R.C.

2911.13(A), which provides that "[n]o person by force, stealth, or deception, shall trespass

in an unoccupied structure, with purpose to commit therein any theft offense, as defined in

section 2913.01 of the Revised Code, or any felony."

{¶33} After reviewing the record, weighing inferences and examining the credibility

of the witnesses, we find appellant's convictions for breaking and entering and theft are not

against the manifest weight of the evidence and are supported by sufficient evidence. The

- 11 - Fayette CA2021-12-026

state presented testimony and evidence from which the jury could have found all the

essential elements of the offenses proven beyond a reasonable doubt. The fact that the

state relied on circumstantial evidence in proving appellant's guilt does not make his

convictions any less sound. As this court has repeatedly recognized, a defendant's

convictions may be based on circumstantial evidence alone. State v. Brown, 12th Dist.

Butler No. CA2014-12-257,

; Wells at ¶ 33. "Circumstantial evidence

is proof of certain facts and circumstances in a given case, from which the jury may infer

other, connected facts, which usually and reasonably follow according to the common

experience of mankind." State v. Stringer, 12th Dist. Butler No. CA2012-04-095, 2013-

Ohio-988, ¶ 31. Circumstantial evidence inherently possesses the same probative value

as direct evidence, and a conviction based on circumstantial evidence is no less sound than

one based on direct evidence. Brown at ¶ 12.

{¶34} Through the presentation of Sgt. Witherspoon's and Reeves' testimony, the

state established that Reeves' locked barn had been forcibly broken into and tools from

inside the barn had been removed and placed in the back of appellant's hatchback car

without Reeves' consent. Though appellant was not directly observed removing the glass

window to the barn's door or observed inside the barn by Sgt. Witherspoon, circumstantial

evidence demonstrated he had committed the offenses. As Sgt. Witherspoon testified,

appellant was the only individual observed at or near the barn at 3:30 a.m. and appellant

was seen loading items into the back of his hatchback, which he had moved closer to the

barn. When Sgt. Witherspoon instructed appellant to "stop" and "show his hands," appellant

ignored the sergeant's commands and fled from the scene in the hatchback. Once the

hatchback was eventually stopped, items belonging to Reeves, which had been stored in

the barn, were located in the vehicle. These items included multiple socket sets, a torque

set, a vacuum, a router, a "sawzaw," a leaf blower, a drill, a band saw, a battery checker, a

- 12 - Fayette CA2021-12-026

stud finder, a hammer set, and a LED stick light. Reeves testified the value of the tools

taken from him was "a couple thousand [dollars] or more." Reeves also testified that he

had never given appellant permission to be on his property, to enter his barn, or to remove

the tools from the barn.

{¶35} From the aforementioned evidence, the jury was entitled to find beyond a

reasonable doubt that appellant committed the offenses of breaking and entering and theft.

Even if the jury gave some credit to appellant's defense that another individual was involved

in the crimes and this individual was the one who removed the barn door's window to gain

access to the barn, the state produced evidence that appellant aided and abetted in the

crimes by helping to load the stolen goods and serving as the getaway driver. Appellant's

convictions are therefore supported by sufficient evidence and are not against the manifest

weight of the evidence. The jury did not lose its way and create such a manifest miscarriage

of justice that appellant's convictions must be reversed and a new trial ordered. Appellant's

second and third assignments of error are overruled.

{¶36} Judgment affirmed.

S. POWELL, P.J., and BYRNE, J., concur.

- 13 -