Case Information
*1
[Cite as
State v. Calderwood
,
Cоurt of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95269
THE STATE OF OHIO, APPELLEE, v.
CALDERWOOD,
APPELLANT.
JUDGMENT:
AFFIRMED
Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-533942
BEFORE: Blackmon, P.J., Jones, J., and Cooney, J.
RELEASED AND JOURNALIZED: June 16, 2011 William D. Mason, Cuyahoga County Prosecuting Attorney, and John P. Colan, Assistant Prosecuting Attorney, for appellee.
John F. Corrigan, for appellant.
P ATRICIA A NN B LACKMON , Presiding Judge.
{¶ 1} Appellant, William Calderwоod, appeals his burglary conviction and assigns the following three errors:
I. The trial court erred in denying appellant’s motion for acquittal pursuant to Ohio Criminal Rule 29 where there was insufficient evidence that appellant trespassed by force, stealth, or deception, in an occupied structure.
II. Appellant’s conviction for burglary was against the manifest weight of the evidence.
III. The trial court erred by allowing a police detective to testify that he spoke with the owner of the property who advised him that appellant did not have permission to be inside the structure. Having reviewed the record and relevant law, we affirm
Calderwood’s conviction. The apposite facts follow.
Facts The Cuyahoga County Grand Jury indicted Calderwood on one count of burglary and 72 counts of arson arising out of a burglary of a house, which subsequently exploded, damaging several houses on West 83rd Street. The state presented 67 witnesses to testify at trial. The jury acquitted Calderwood of the arson counts but found him guilty of the burglary count; therefore, we will focus on the evidence surrounding the burglary.
{¶ 4} While investigating the explosion, detectives learned that neighbors had seen Calderwood removing items such as appliances and pipes from the house. Calderwood lived next door to the home and also owned rental property down the street. Neighbors observed Calderwood use a dolly to transport the items to his rental property. Calderwood admitted to the arson investigators that he had taken the property. He also admitted to his cellmate and to his wife during a phone call from jail that he had taken the copper and appliances from the house. Thus, it was undisputed that Calderwood took the items. The disputed issues are whether the house was occupied and whether Calderwood had permission to be inside the house. Daniel Garman testified that he had lived in the house for 15 years. In late 2008, the home was in the process of being sold but was not abandoned. In fact, Garman periodically checked on the house, paid to have the lawn cut, and paid the utility bills. The home was eventually sold to EZ Access Funding, which is a real estate holding company loсated in California. In February 2009, EZ hired Marty Rickelman as a property manager to prepare the home for rental or sale. Rickelman assessed the property as needing minor repairs in
order to be ready for sale оr rental. On one of his visits to the property, Rickelman was approached by Calderwood. Rickelman explained that he worked for the owner of the home and was preparing the house for sale or rental. Calderwoоd offered to help clean out the house, but Rickelman told him that it was the contractor’s job. Rickelman did not give Calderwood permission to enter the house and did not give him a key. Rickelman ceased working for EZ in May 2009. In June 2009, EZ hired Rajsunhip Sandhu as Rickelman’s
replacement. When Sandhu visited the property in the fall of 2009, the side door was open and the lights were on. He took photos of the home and then rekeyed and locked the side door. At that time, the appliаnces were still there. When he returned to the property on January 12, 2010, there was
a sign in the window saying “No copper. Stolen by Travis Hopp.” Also, the door that he had previously rekeyed appeared to have been kickеd open and was braced with a two by four so that it could not be reopened with his key. Sandhu was about to leave when Calderwood approached him. Calderwood produced a key that opened the front door. He tоld Sandhu that the prior property manager, Rickelman, had given him the key. Calderwood admitted that he put the sign in the front window and that he had called the police regarding the stolen copper. Sandhu’s inspection of the proрerty indicated that all the appliances and copper pipes were missing. Sandhu noted that the 5 copper pipes were removed with precision and not simply yanked out, indicating that the vandal took his time.
{¶ 9} At a Weed and Seed [1] meeting сonducted after the explosion, Calderwood admitted taking the appliances and copper but stated that he had the owner’s permission and that he had capped the pipes. He also told the leader of the program, Brian Kazy, and Lieutenant Stevens from the Cleveland Arson Investigation Unit that he had obtained the key by breaking into the lock box on the door. The jury found Calderwood guilty of burglary; the trial court sentenced him to three years in prison.
Insufficient Evidence In his first assignеd error, Calderwood argues that there was insufficient evidence to support his conviction for burglary. Crim.R. 29 mandates that the trial court issue a judgment of
acquittal when the state’s evidence is insufficient to sustain a conviction for
the offense. Crim.R. 29(A) and sufficiency-of-evidence review require the same
analysis.
State v. Tenace
, 109 Ohio St.3d 255,
{¶ 12}
In analyzing the sufficiency issue, the reviewing court must view
the evidence “in the light most favorable to the prosecution” and ask whether
“any rational trier of fact cоuld have found the essential elements of the crime
[proven] beyond a reasonable doubt.” (Emphasis omitted.)
Jackson v.
Virginia
(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560;
State v.
Jenks
(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus;
State v. Carter
(1995),
{¶ 13} A conviction for burglary pursuant to R.C. 2911.12(A)(3) requires the state to prove that Calderwood, by fоrce, stealth, or deception, and with the intent to commit any criminal offense, entered an occupied structure with the purpose to commit in the structure a criminal offense. Calderwood contends that the evidence fаiled to show that the house was an occupied structure, because no one had lived in it for two years. R.C. 2909.01(C) defines an “occupied structure” as “any house,
building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies: (1) It is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.” While Calderwood contends that the house was not occupied
because no one lived there, the relevant inquiry in determining whether a
structure is occupied concerns the residential purpose of the dwеlling, rather
than the presence or absence of an occupant.
State v. Green
(1984), 18 Ohio
App.3d 69, 480 N.E.2d 1128 (home left vacant after the owners moved to
another residence was still an occupied structure because it was being
maintained as a dwelling);
State v. Williams
, Cuyahoga App. No. 92668,
not abandoned. The evidence showed that the house maintained its residential purpose even thоugh it was vacant. The owners of the property had hired property managers to supervise the property until renovations were completed and the house was sold or rented. In fact, until the burglary, the house was fully equipped with appliances and a furnace. Given these facts, we conclude that the house was an “occupied structure” within the meaning of R.C. 2909.01(C)(1). Accordingly, Calderwood’s first assigned error is overruled.
Manifest Weight of the Evidence
In his second assigned error, Calderwood argues that his burglary
conviction was against the manifest weight of the evidence. He argues that
the evidence showed he had permission to be on the premises because he had a
key to the house and helped take care of the property by turning the lights on
to make the house look occupied.
In
State v. Wilson
, 113 Ohio St.3d 382,
N.E.2d 1264, ¶ 25, the Ohio Supreme Court addressed the standard of review for a criminal manifest-weight challenge, as follows:
The criminal manifest-weight-of-the-evidence standard wаs
explained in
State v. Thompkins
[1997], 78 Ohio St.3d 380, * * *
678 N.E.2d 541. In
Thompkins
, the court distinguished between
sufficiency of the evidence and manifest weight of the evidence,
finding that these concepts differ both qualitatively and
quantitatively. Id. at 386, 678 N.E.2d 541. The court held that
sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of
inducing belief. Id. at 386-387,
have a key from the lock box because Sandhu testified that he had removed the lock box and rekeyеd the door. However, the door that Sandhu rekeyed was the side door, not the front door. Calderwood had a key to the front door. While Sandhu testified that Calderwood told him that the prior property manager, Rickelman, gave him the key, Rickelman stated that he did not give Calderwood a key nor did he give him permission to be inside the house. Given this evidence, we conclude that the jury did not lose its way and create a manifest miscarriage of justice by finding that Calderwood did nоt have permission to be inside the home. Accordingly, Calderwood’s second assigned error is overruled.
Hearsay Evidence In his third assigned error, Calderwood argues that the trial court erred by allowing Detective Good to testify that the president of EZ told him that Cаlderwood did not have permission to be inside the structure. In addition to the evidence that EZ’s president told the detective
that Calderwood did not have permission to be inside the house, both Rickelman and Sandhu, who were agents of EZ, testifiеd that Calderwood did not have permission to enter the house and that they did not provide him with a key. Given this additional evidenc,e any error the court may have made in admitting the statement of EZ’s president is harmless under Crim.R. 52(A), because the evidеnce was cumulative. Accordingly, Calderwood’s third assigned error is overruled.
Judgment affirmed.
J ONES and C ONWAY C OONEY , JJ., concur.
Notes
[1] The Weed and Seed program is a federal initiative funded by the Department of Justice and supervised by the United States Attorney’s Office that seeks to weed out crime in neighborhoods and provides preventative and intervention services to improve the neighborhoods.