STATE OF OHIO v. RONALD BURRELL
No. 96123
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 3, 2011
[Cite as State v. Burrell, 2011-Ohio-5655.]
Sweeney, J., Boyle, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-537996
Paul Mancino, Jr., Esq.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Katherine Mullin, Esq.
Maxwell M. Martin, Esq.
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant Ronald Burrell (“defendant“) appeals his conviction for theft as well as the trial court‘s order of restitution and imposition of fines and court costs. For the reasons that follow, we affirm in part and reverse and remand in part.
{¶ 2} Although defendant was charged with a four count indictment, he was only convicted and sentenced for one count of theft pursuant to
{¶ 3} According to the record, on November 4, 2009, defendant entered into a residential lease agreement1 with Coretta Johnson, Square Harris, and Dominique Johnson
{¶ 4} It is undisputed that defendant never owned the property.
{¶ 5} Anna Woods testified that she has owned the property since 1992. After receiving foreclosure notices, Ms. Woods moved out of the property sometime in 2006. Ms. Woods further testified that she filed bankruptcy on two different occasions in an effort to keep her house.2 Ms. Woods said she thought she was losing the property to foreclosure and she did nothing with the property for a period of time. Upon discovering that there was someone occupying the property, Ms. Woods contacted her attorney and was advised that she still owned it and that there was a warrant out for her arrest for failing to register it as a rental property. Ms. Woods insisted that she never rented the property to anyone and never gave anyone else permission to do so. She had never met defendant and could not identify him from a photo lineup.
{¶ 6} An inspector from Euclid had cited the property for code violations and discovered that the tenants had entered a lease agreement with defendant. The inspector
{¶ 7} Defendant later met with Detective Roose and claimed he had Ms. Woods‘s verbal permission to rent the property. He told Det. Roose that he asked Ms. Woods if he could have the property and she allegedly said yes. Although defendant said he could identify Ms. Woods, he could not identify her when presented with a photo array that contained her picture.
{¶ 8} Coretta Jackson said she was required to pay $600.00 a month pursuant to her lease agreement with defendant. She recalled making at least two payments to defendant by way of money orders and cash. Det. Roose testified that defendant acknowledged receiving $1,130.00 in rental payments from the tenants; none of which was given to Ms. Woods.
{¶ 10} The trial court‘s journal entry contained an order of restitution of $1,130.00 that is not contained in the sentencing transcript. This appeal followed.
{¶ 11} “I. Defendant was denied due process of law when the court overruled the motion for judgment of acquittal as to theft by deception involving Anna Woods and/or Washington Mutual.”
{¶ 12} An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The 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. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 13}
“(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
{¶ 15} “* * *
{¶ 16} “(3) By deception.
{¶ 17} “‘Deception’ means knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.”
{¶ 18} First, defendant asserts that the state failed to produce sufficient evidence that he committed theft by deception because he did not know Ms. Woods and therefore could not have possibly deprived her of her property by deception. Defendant‘s belief that a conviction under this statute requires him to affirmatively deceive the property owner in order to accomplish the theft is mistaken. The theft need only be facilitated by deception of “another.” In this case, defendant derived personal gain by renting Ms. Woods‘s house to third parties without her permission. Coretta Johnson testified that defendant led her to believe he owned the property and had the authority to rent it. The assistant law director also testified that defendant told her he had authority from Ms. Woods to rent the property. By renting the property to the tenants without Ms. Woods‘s permission and by holding
{¶ 19} Defendant further asserts that the theft claim should have failed because he maintains Ms. Woods had no interest in the property due to her alleged bankruptcy filings.
{¶ 20} No evidence besides Ms. Woods‘s own testimony was provided from which the terms of the bankruptcy could be ascertained; and her testimony on this point was vague and conflicting at times. In any event, Ms. Woods testified that she owned the property and although she at times believed she was going to lose it or had abandoned it in fear of foreclosure, she later discovered that she still owned it. She testified that the bankruptcy was over and she still owned the property. Additionally, the assistant law director testified that the county records reflected Ms. Woods as the owner of the property.
{¶ 21} Although defendant suggests that the trial court erred by failing to take judicial notice that bankruptcy under
{¶ 22} There was sufficient evidence from which a rational trier of fact could conclude that defendant committed the theft offense as charged.
{¶ 23} The first assignment of error is overruled.
{¶ 24} “II. Defendant was denied due process of law and the right to assistance of counsel when the court precluded argument concerning the effect of bankruptcy.”
{¶ 25} “To substantiate a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) the performance of defense counsel was seriously flawed and deficient, and (2) the result of defendant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407. In State v. Bradley, the Ohio Supreme Court truncated this standard, holding that reviewing courts need not examine counsel‘s performance if the defendant fails to prove the second prong of prejudicial effect. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶ 26} Defendant bases his ineffective assistance of counsel claim on the fact that his attorney was not permitted to make closing arguments about the effect bankruptcy has on the debtor‘s ownership interest in real property.
{¶ 28} In the middle of trial the court advised defense counsel as follows: “if you are going to be arguing [the] bankruptcy trustee was the owner during closing argument in front of the jury, I would suspect then you will be introducing evidence during your case that that‘s true. I understand you arguing it for purposes of Rule 29, but I am cautioning you that that won‘t be accepted in closing argument unless you bring in the bankruptcy trustee or somebody else who‘s the owner other than Anna Woods, because there has been no showing.”
{¶ 29} Despite this cautionary warning, defendant did not introduce any evidence besides Ms. Woods‘s own testimony about the effect that her bankruptcy filings had on her interest in the property. Ms. Woods testified that she owned the property despite her bankruptcy filings. It is axiomatic that closing arguments of counsel are not evidence. Because there was no evidence in the record to indicate that the bankruptcy trustee, rather than Ms. Woods, owned the property, the limitation on counsel‘s closing argument in this
{¶ 30} The second assignment of error is overruled.
{¶ 31} “III: Defendant was denied due process of law when the court ordered restitution in its sentencing entry but not at its oral pronouncement.”
{¶ 32} Defendant maintains that the journal entry that imposed an order of restitution was error because the same order was not made in open court. The state concedes this assignment of error pursuant to
{¶ 33} “IV: Defendant was denied due process of law when the court ordered restitution.”
{¶ 35} “Economic loss” is defined by
{¶ 36} The record establishes that defendant personally received $1,130.00 by renting Ms. Woods‘s property to the tenants and he did not give any of that money to Ms. Woods. Ms. Woods was not able to live in or rent her property during that time and, therefore, she suffered an economic loss to the extent that she did not receive the rental payments that were made for the use of her property. To provide otherwise would reward defendant for wrongfully exerting control over the property without Ms. Woods‘s permission or consent.
{¶ 37} The third assignment of error is overruled.
{¶ 38} “V: Defendant was denied due process of law when the court assessed restitution, fines and court costs without considering the statutory criteria.”
{¶ 39} Defendant relies on State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, claiming the court‘s imposition of court costs, fines, and restitution was in error. We have already addressed the matter of restitution previously, which the state has
{¶ 40} In Joseph, the court held that the trial court erred because it failed to mention the imposition of court costs in open court at the sentencing hearing. Accordingly, the court found it was error to impose them through the journal entry because Joseph had been deprived of his opportunity to move for waiver of the payment of court costs at the sentencing hearing. Id. at ¶22-23. Where, however, the court does advise the defendant in open court that it is ordering the payment of court costs, the defendant must make a motion at sentencing to waive them based on indigency and the court may (but is not required to) waive them. Otherwise, “the issue is waived and costs are res judicata.” Id. at ¶12, quoting, State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164 ¶23.
{¶ 41} At the sentencing hearing in this case, the court had the presentence investigation report and noted that defendant had provided information concerning his finances. Upon the court‘s inquiry, defendant acknowledged his ability to retain an attorney and that he would not be classified as indigent. Defendant made no objection to the fine that was imposed. Likewise, the trial court imposed court costs without any objection from defendant. Defendant did not request the trial court to waive the fine or costs claiming he was indigent. Rather, defendant indicated he was not indigent. Accordingly, this assignment of error is sustained in part and remanded with instructions
{¶ 42} Judgment affirmed in part, reversed in part solely as to the order of restitution and remanded for further proceedings.
It is ordered that appellee and appellant split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR