STATE OF OHIO, Plаintiff-Appellee v. HEATHER BOWSHIER, Defendant-Appellant
Appellate Case No. 2016-CA-17
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
December 16, 2016
2016-Ohio-8184
Trial Court Case No. 2015-CR-383 (Criminal Appeal from Common Pleas Court)
CHARLES W. SLICER, III, Slicer Law Office, 111 West First Street, Suite 518, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
FAIN, J.
{¶ 1} Defendant-appellant Heather Bowshier aрpeals from her conviction for Burglary and Aggravated Burglary. She contends that her conviction is against the manifest weight of the evidence, and that the State failed to present evidence sufficient
{¶ 2} We conclude that Bowshier has not demonstrated ineffective assistance of counsel. However, we conclude that her convictions for Aggravated Burglary, and for Burglary under
{¶ 3} Accordingly, that part of the judgment of the trial court convicting Bowshier of Aggravated Burglary and of Burglary in violation of
I. Trespass leads to Burglary Conviction
{¶ 4} On July 1, 2015, Bowshier and her friend, Cheri Farmer, entered the apartment of Saira House. Upon returning from shopping, House immediately noticed that the front door was open, but the security chain was fastened inside the apartment, preventing her from entering. House left the door ajar, and went down a flight of stairs to the second floor of the building, where she used her cellular telephone to call her neighbor, Jeremy Denny.
{¶ 5} Denny went down to the second floor hallway to check on House, and told
{¶ 6} In the meantime, House had called 911, and was sрeaking with the dispatcher. She returned to the stairwell off the third floor, where she observed the back of a woman running down the hall. She also observed Denny confront Bowshier. House recognized Bowshier, who was dating House‘s ex-boyfriend. Denny then returned to the stairwell where House was standing. House remained on the phone with a dispatcher while shе and Denny went to Denny‘s apartment where they were able to observe Bowshier running out of the building. They then observed a vehicle leave the complex parking lot.
{¶ 7} Following an investigation, Bowshier and Farmer were identified as the perpetrators.
II. The Course of Proceedings
{¶ 8} Bowshier was indicted on one count of Aggravated Burglary (Physical Harm) in violation of
{¶ 9} The trial court merged the three convictions, and the State elected to have Bowshier sentenced for the conviction of Aggravated Burglary. After considering a pre-sentence investigation report and conducting a sentencing hearing, the trial court sentenced Bowshier to a five-year term of imprisonment.
{¶ 10} From the judgment of the trial court, Bowshier appeals.
III. Bowshier Was Not Denied the Effective Assistance of Counsel
{¶ 11} Bowshier‘s Second Assignment of Error states:
COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE AS SHE DID NOT ADVISE HER CLIENT OF HER RIGHT TO TESTIFY IN HER OWN DEFENSE AND FURTHER, COUNSEL FOR DEFENDANT DID NOT ADEQUATELY OBJECT TO THE IN-COURT IDENTIFICATION.
{¶ 12} Bowshier contends that her counsel was ineffective by failing to advise her of the right to testify in her own defense, and by failing to make proper objectiоns to her in-court identification by the victim, House.
{¶ 13} “Ineffective assistance of counsel allegations are reviewed de novo to determine if the counsel‘s deficient performance prejudiced the outcome. To reverse a decision based on ineffective assistance, the record must support a finding that defense counsel‘s performance was deficient, and that a reasonable probability exists that, but for counsel‘s omissions, the resulting outcome would have been different.” State v. Williams, 2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 20.
{¶ 14} We have recognized that “the right to testify is an inherently personal right and is exercised or waived by the client, not the attorney.” State v. Copeland, 2d Dist. Montgomery No. 18711, 2002 WL 63161, *2 (Jan. 18, 2002). We recently addressed such a claim of ineffective assistance of counsel by stating that “[a]lthough the ultimate decision whether to testify rests with the defendant, when a tactical decision is made not to have the defendant testify, the defendant‘s assent is presumed.” State v. Matzdorff, 2d Dist. Montgomery No. 26370, 2015-Ohio-901, ¶ 23.
{¶ 15} We have also stated that “a claim of ineffective assistance of counsel does not lie in a direct appeal from a criminal conviction ‘where the allegations of ineffectiveness are based on facts not appearing of record.’ ” State v. Kumpfel, 2d Dist. Clark No. 11-CA-45, 2012-Ohio-1980, ¶ 16 (Grady P.J., concurring), citing State v. Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983). “Absent evidence to the contrary, the appellate court must presume that a defendant-appellant‘s failure to testify was the result of his knowing and intelligent decision.” Copeland, supra at *3, citing State v. Carter, 115 Ohio App.3d 770, 776, 686 N.E.2d 329 (7th Dist.1996).
{¶ 16} Sincе Bowshier has presented no evidence to counter the presumption that her failure to testify was the result of her own knowing and intelligent decision, we presume that Bowshier was appropriately counseled by her attorney, that she made the decision not to testify, and that her trial counsel was not ineffective for complying with her client‘s election not to testify.
{¶ 17} With regard to the in-court identification, both House and Denny identified Bowshier as the person they saw outside of House‘s apartment. Bowshier complains
{¶ 18} “The law is clear, however, that where the in-court identification is based upon independent recollection and observation rather than the suggestive procedure, it is proper for the court to allow the in-court identification.” State v. Jones, 8th Dist. Cuyahoga No. 38333, 1979 WL 209948, *3 (Feb. 8, 1979), citing State v. Jackson, 26 Ohio St.2d 74, 269 N.E.2d 118 (1971); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). “The test to be used in determining the ‘independent recollection’ of the observer is to consider the total circumstances surrounding the observation.” Id.
{¶ 19} In the case before us, the totality of the circumstances demonstrates that House already knew Bowshier because of Bowshier‘s relationship with House‘s former boyfriend. House recognized Bowshier when she saw her outside of the apartment, and she identified Bowshier during the investigation from a photo array. Based upon these facts, we conclude that Bowshier has not shown that she was prejudiced by her counsel‘s failure to object to House‘s in-court identification.
{¶ 20} We conclude that the record does not establish that Bowshier received ineffective assistance of counsel. Her Second Assignment of Error is overruled.
{¶ 21} Bowshier‘s Third Assignment of Error states:
THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT GUILTY OF AGGRAVATED BURGLARY AS SUCH A FINDING IS AGAINST THE MANIFEST AND/OR SUFFICIENT WEIGHT OF THE EVIDENCE AND THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUPPORT THE CONVICTION.
{¶ 22} Bowshier contends that the conviction for Aggravated Burglary must be vacated because it is not supported by sufficient evidence.
{¶ 23} To determine whether a conviction is against the manifest weight of the evidence, an appellate court reviews the evidence to “determine whether the jury 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, 678 N.E.2d 541 (1997). In contrast, when determining whether a conviction is suppоrted by the sufficiency of the evidence, “the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to the state could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E. 2d 1096 (1997), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶ 24} In her brief, Bowshier makes a general assertion, without argument, that her conviction for Aggravаted Burglary, in violation of
{¶ 25} An “occupied structure” is defined as any house or building that is maintained as a permanent or temporary dwelling or habitation whether or not any person is actually present.
{¶ 26} As noted by the Eighth District Court of Appeals, in State v. Butler, 8th Dist. Cuyahoga No. 97649, 2012-Ohio-4152, ¶ 8:
The unlawful-entry-in-a-dwеlling offenses – aggravated burglary, burglary, and breaking and entering – prohibit the same conduct (trespassing in a structure with the intent to commit a criminal offense) and differ only on the risk of harm the actions pose. The most serious of the offenses – aggravated burglary – requires the offender to be armed or
requires that he inflicts, attempts to inflict, or threatеns to inflict harm on another. See R.C. 2911.11 . The intermediate offense – burglary – presents a less serious scenario than aggravated burglary because it does not entail the use of a weapon or threat or infliction of harm, yet can still pose a risk of harm when a person is present or likely to be present. See Committee Comment toR.C. 2911.12 (burglаry “is viewed as serious, because of the higher risk of personal harm involved in maliciously breaking and entering an occupied, as opposed to an unoccupied, structure.” Breaking and entering is the least serious in the hierarchy because a trespass in an unoccupied structure carries a “comparatively low risk of pеrsonal harm[.]” See Committee Comment toR.C. 2911.13 .
{¶ 27} No one was in the apartment when Bowshier and Farmer entered it using the key that House testified she had given to her ex-boyfriend. When House arrived at her apartment and realized it was occupied, she retreated to another floor, and remained away from the apartment until it was empty. At no timе was anyone other than Bowshier and Farmer present in the apartment while the trespass was occurring, thereby reducing the risk of harm.1 Thus, the record contains facts sufficient to establish the trespass of an occupied structure, but the facts do not support the element of a person‘s presence in the occupied structurе during the trespass, required by
{¶ 28} The State argues that House was present at the time of the incident. Thus,
{¶ 29} We agree with the Eighth District, which stated in State v. Butler, 8th Dist. Cuyahoga No. 97649, 2012-Ohio-4152, a case issued two years after Grant:
The state argues that the victim lived in a duplex that had a common hallway with stairs going up to the door to the witness‘s apartment and that Butler‘s entry into the victim‘s apartment would allow him access to the common hallway and stairway leading to the witness‘s apartment. This evidence, the state maintains, was sufficient to show that the witness was present at the time of burglary and could have been the object of harm as a result of the break-in.
We have rejected this same argument as being too broad. To highlight its fragility, in State v. Colon, 8th Dist. No. 61253, 1992 WL 389074 (Dec. 17, 1992), we gave аs an example a high-rise apartment complex that has shared common halls with doors to any number of individual apartments. Taking the state‘s argument to its logical conclusion would suggest that, as long as any person in the entire high-rise building was present in his or her own apartment, a trespass in an apartment where a person was not present or likely to be present would be sufficient to establish the elements of burglary under
R.C. 2911.12(A)(2) . Id., ¶ 13 – 14.
{¶ 30} Without sufficient evidence to prove all elements of the offenses of Aggravated Burglary and Burglary under
{¶ 31} The reversal of the convictions for the offenses of Aggravated Burglary, аnd for Burglary under
{¶ 32} Based on the insufficiency of evidence, Bowshier‘s Third Assignment of Error is sustained, and the convictions for Aggravated Burglary and for Burglary under
V. Bowshier‘s Assignment of Error Challenging her Sentenсe Is Moot
{¶ 33} Bowshier‘s First Assignment of Error provides as follows:
THE TRIAL COURT COMMITTED ABUSE OF DISCRETION WHEN IT IMPOSED A FIVE (5) YEAR SENTENCE, DID NOT REVIEW/CONSIDER THE FACTORS CONTAINED IN
O.R.C. 2929.11 OR2929.12 AND DID NOT CONSIDER THE CO-DEFENDANT‘S SENTENCE OR COMMUNITY CONTROL.
{¶ 34} Bowshier contends that the trial court committed error when it imposed a five-year sentence for Bowshier, while Farmer, who was tried jointly, only received a one-year sentence.
{¶ 35} As explained above, Bowshier‘s convictions for Aggravated Burglary, and for Burglary under
{¶ 36} Bowshier‘s First Assignment of Error is overruled аs moot.
VI. Conclusion
{¶ 37} Bowshier‘s Third Assignment of Error having been sustained, her Second Assignment of Error having been overruled, and her First Assignment of Error having been overruled, that part of the judgment of the trial court convicting Bowshier of Aggravated Burglary and Burglary under
DONOVAN, P.J., and FROELICH, J., concur.
Copies mailed to:
Megan M. Farley
Charles W. Slicer, III
Hon. Douglas M. Rastatter