The Akron Legal News

Man who broke into friend’s home has his appeal denied

JESSICA SHAMBAUGH
Special to the Legal News
Published: October 29, 2014

After finding that the state presented sufficient evidence, the 5th District Court of Common Pleas recently affirmed a man’s convictions for burglary and aggravated burglary.

Defendant Tracy Hall appealed from a judgment of the Licking County Court of Common Pleas that found him guilty of breaking into a woman’s home and damaging her cellphone.

Hall claimed the state did not present sufficient evidence showing that he caused any damage to the woman’s property.

The facts of the case state that Hall was friends with Amber Dolby for several years.

Dolby had a boyfriend, but she said Hall gave her the impression that he wanted a romantic relationship with her.

She said Hall did not like her dating her boyfriend, John, and John did not approve of her friendship with Hall.

Nevertheless, she maintained that she and Hall were strictly friends and their relationship remained platonic.

At 1 a.m. on Nov. 28, 2013, Dolby was in her Newark apartment when someone started banging on her door.

Looking through the peephole, she saw it was Hall and became fearful because of his behavior.

She testified that she did not let him into the apartment and instead called her boyfriend.

Dolby was sitting on her stairs, talking to her boyfriend on the phone when she heard Hall say he wanted to talk.

She noticed that he sounded closer to her and, looking around the corner, saw him standing in her kitchen.

Hall claimed the door had been unlocked but Dolby testified that she was certain it was not.

The two began to argue and Hall refused to leave after being asked.

He demanded that Dolby return items he had lent her and she gathered them up and gave them to him. Still, Hall would not leave.

Dolby said she tried to push Hall out the door and he shoved her against the refrigerator.

She tried to push him a second time and he pushed her against the counter.

Finally, she was able to get him outside the door, but he pushed back into her home.

At that point, she said Hall grabbed her phone, threw it against the floor to render it dysfunctional and said “Good luck talking to your boyfriend now.” He then fled the apartment.

Hearing the commotion, a neighbor called the Newark police department.

When officers arrived, they found pieces of the wooden door frame both inside and outside the apartment as if it had been kicked in. They also found Dolby crying and upset with red scratch marks on her arms.

Hall was charged with burglary and aggravated burglary and the matter proceeded to a jury trial.

During the trial, he continued to refer to himself as Dolby’s boyfriend and call John “her other boyfriend.”

After hearing all the evidence, the jury found him guilty as charged and the trial court sentenced him to a total of three years in prison.

Hall timely appealed that decision and challenged the sufficiency and manifest weight of the evidence against him.

“Appellant challenges whether the evidence was sufficient to prove the underlying offense of criminal damaging,” Judge Craig Baldwin wrote for the court.

Specifically, Hall asserted that the evidence did not show he caused any physical damage to Dolby’s cellphone.

He claimed that her phone was not broke, but instead “all that happened was that the battery cover, battery, and SIM card were unattached.”

He explained that, at most, those things were “wear and tear from normal use.”

In contrast, Dolby testified that Hall slammed her phone to the ground and it separated into four pieces. She said it was rendered inoperable and terminated the call with her boyfriend.

“Damage caused by throwing a cellphone to the ground is not wear and tear from normal use,” Judge Baldwin stated. “This is sufficient evidence, if believed by the jury, to demonstrate that appellant caused or created a substantial risk of physical harm to Dolby’s cell phone.”

The judges further ruled that the evidence was not against the manifest weight of the evidence because of Dolby’s testimony.

Next, Hall argued that even if there was damage to the phone, there was no evidence that he purposely committed the offense.

He told the appellate panel that he and Dolby were pushing each other and it was “unclear if she dropped the phone herself while pushing appellant.”

The appellate judges, however, found that Dolby’s testimony disputed that claim.

“Dolby testified that appellant slammed the phone to the floor, saying, ‘Good luck talking to your boyfriend now,’” Judge Baldwin wrote, overruling the assignment of error.

The district court also rejected Hall’s claims for ineffective assistance of counsel because he argued that his attorney did not object to alleged hearsay testimony.

In fact, the reviewing judges found that counsel did object to the testimony but that the trial court found it was permissible.

Presiding Judge William Hoffman and Judge Patricia Delaney joined Judge Baldwin to affirm the lower court’s ruling.

The case is cited State v. Hall, 2014-Ohio-4446.

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