STATE OF OHIO v. CLIFTON C. CALLAHAN
C.A. CASE NO. 24595
T.C. NO. 10CR2027
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
March 16, 2012
[Cite as State v. Callahan, 2012-Ohio-1092.]
(Criminal appeal from Common Pleas Court)
Rendered on the 16th day of March, 2012.
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 W. Dorothy Lane, Suite 209, Kettering, Ohio 45429 Attorney for Defendant-Appellant
{¶ 1} Clifton Callahan was found guilty by a jury of one count of aggravated burglary, and he was sentenced to eight years in prison. He appeals from his conviction.
{¶ 2} Callahan was indicted for one count of aggravated burglary, which was alleged to have occurred in June 2010. The indictment alleged that Callahan had trespassed by force in his former girlfriend‘s apartment and had assaulted her new boyfriend, Frederick Conner. Callahan pled not guilty and filed a motion to suppress his statements to police officers. The trial court conducted a hearing on this motion. The trial court denied the motion to suppress with respect to unsolicited statements made by Callahan to the police at the apartment building, and the court granted the motion to suppress with respect to a written statement that Callahan made at the police station without having been informed of his Miranda rights. Callahan does not challenge the trial court‘s ruling on his motion to suppress.
{¶ 3} At trial, the State presented evidence that Callahan went uninvited to the apartment of his former girlfriend, Wanda Greene, on June 29, 2010, broke down the door, slapped Greene, and wrestled with and bit her new boyfriend. Callahan claimed that Greene asked him to come to the apartment, that he believed she was being held in the apartment against her will, and that he broke into the apartment out of concern for her safety.
{¶ 4} The indictment listed Conner, Greene‘s new boyfriend, as the victim of the assault underlying the aggravated burglary. During the trial, the State asked
{¶ 5} Callahan was found guilty by a jury of aggravated burglary. He was sentenced to eight years of imprisonment and was ordered to pay restitution in the amount of $105.87.
{¶ 6} Callahan appeals from his conviction, raising three assignments of error. We begin our discussion with the second and third assignments.
{¶ 7} Callahan‘s second and third assignments of error state:
THE APPELLANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE APPELLANT‘S CONVICTION.
{¶ 8} Callahan contends that the jury should have believed his “credible evidence” that he was invited to Greene‘s apartment and went there because he was concerned for her safety. He further contends that, because he presented evidence that he had been invited to the apartment, there was insufficient evidence that he had committed a trespass. Additionally, Callahan claims that any injury to Conner resulted from Callahan‘s self-defense and that there was insufficient evidence that he inflicted or attempted to inflict physical harm on Conner.
{¶ 9} An argument based on the sufficiency of the evidence challenges whether the State presented adequate evidence on each element of the offense
{¶ 10} In contrast, when reviewing a judgment under a manifest weight standard of review, the court “‘review[s] the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.‘” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 11} The State presented the following evidence at Callahan‘s trial:
{¶ 12} Wanda Greene testified that she and Callahan had dated in the past and both were veterans of the military. They had lived in several cities together, including Columbus, Ohio, where they lived in 2009. Both received treatment through the Veterans Administration.
{¶ 13} Greene testified that she broke off her relationship with
{¶ 14} In early 2010, Greene became romantically involved with Conner, who was also a veteran. In June, Greene and Conner moved into an apartment at 110 Imperial Court in Vandalia. Greene testified that she did not give Callahan her new address.
{¶ 15} On June 29, 2010, Conner and Greene were resting at their apartment, and Greene was recovering from recent surgery. At approximately 6:15 p.m., they both heard a loud banging at one of their windows and then at the front door, and Greene heard her name being called. According to Greene, Callahan “kicked the door in” and slapped her twice in the face, knocking her to the floor. He also said, “who is this N here?”
{¶ 16} Conner testified that he immediately called 911, while Greene moved toward the door. As Conner came out of the bedroom a moment later, he “heard a couple of smacks,” heard Greene scream, and saw Greene on the floor and Callahan at the front door of their apartment. Conner charged toward Callahan, hit him a couple of times, and “got to wrestling” with him. According to Conner, Callahan bit Conner on the arm and scratched him. The police arrived a short time later.
{¶ 17} The officers who responded to the apartment found the door frame “split” and “the door latch was laying in the hallway,” both of which indicated to
{¶ 18} The officers testified that Greene reported having been slapped two times in the face by Callahan, but they did not observe any injuries on Greene; they did observe injuries, including bite marks, on Conner‘s arm and collarbone. Conner testified that Greene‘s face was red from being “smacked,” he testified about his own injuries, and he identified for the jury photographs taken of his arm and shoulder injuries.
{¶ 19} One of the officers who responded to the apartment, Sergeant Gary Jackson, testified that Callahan had approached him earlier in the evening to ask directions to Imperial Court. At that time, Callahan had seemed calm and did not mention any emergency.
{¶ 20} Callahan also testified at trial. He stated that his romantic relationship with Greene had continued when she moved to Dayton and that they were engaged at the time of the alleged offense. He testified that he talked with Greene early in the day on June 29, 2010, at the VA Hospital, where they were both receiving treatment; she told him about her new apartment and gave him her address. He claimed that, later in the day, he received a call from Greene in which she was crying hysterically and stated that she was unable to leave the apartment; she asked him to come to the apartment. Callahan was concerned about Greene because she “ha[d] a problem with her bipolar.” At the time, he did not believe that “somebody was bothering” Greene. Nonetheless, he got bus tokens from his social worker and took a bus to Vandalia. Once there, he asked
{¶ 21} Callahan further testified that, when he knocked on the door of the apartment, Greene opened it, but Conner quickly slammed the door and locked it. He stated that he never seen Conner before, that Greene seemed nervous and upset, and that Conner seemed to be fastening his pants as he walked toward the open door. Callahan then “panicked and * * * kicked the door,” which led to an altercation with Conner. Callahan denied ever hitting Greene and did not remember inflicting any specific injuries, such as reflected by the bite marks, during his altercation with Conner.
{¶ 22} Callahan was cross-examined about inconsistences between his statement to the police on June 29, 2010, and his testimony at trial. He was also cross-examined about a statement he is heard making on the 911 tapes, asking Greene what she was “doing here with this n****r.”1
{¶ 23} Callahan was charged with aggravated burglary pursuant to
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * *, when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply:(1) The offender inflicts, or attempts or threatens to
{¶ 24} Although Callahan testified that Greene had called him to her apartment, Greene refuted this claim. Greene denied that she had invited him or provided him with her new address; she also denied that she was still in a relationship with Callahan or that she had opened the door to him. The police officers testified to physical evidence of forced entry. This evidence was sufficient to support the jury‘s verdict that Callahan had trespassed when he entered Greene‘s apartment.
{¶ 25} Callahan also claims, based on his version of events, that there was insufficient evidence that he inflicted or attempted to inflict physical harm on Conner; in the alternative, he asserts that any harm inflicted on Conner was justified through self-defense. However, the jury was not required to credit Callahan‘s testimony that he came to the apartment to protect Greene. Other evidence suggested that Callahan did not act in self-defense and that Conner was not the instigator of the attack. Callahan had the burden of proof on self-defense, and the jury was instructed on that issue, but it apparently did not credit Callahan‘s testimony. Further, Conner and one of the police officers testified that Conner suffered injuries on his right arm and left collarbone, including bite marks and scratches, as a result of the altercation. Thus, there was sufficient evidence from which the jury could have concluded that Callahan inflicted physical harm and did not act in self-defense.
{¶ 26} Callahan also argues that his conviction was against the manifest weight of the evidence. The parties presented different versions of the events of June 29, 2010, the status of Greene and Callahan‘s relationship at that time, and
{¶ 27} Callahan‘s second and third assignments of error are overruled.
{¶ 28} Callahan‘s first assignment of error states:
{¶ 29} THE COURT ERRED WHEN IT REFUSED TO GIVE A JURY INSTRUCTION ON A LESSER INCLUDED OFFENSE OF AGGRAVATED BURGLARY.
{¶ 30} Callahan claims that he was entitled to an instruction on the lesser included offense of burglary, and that the trial court erred in refusing to give this instruction.
{¶ 31} “An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, * * * be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to
{¶ 32} The State acknowledges in its brief that burglary is a lesser included offense of aggravated burglary. The State argues, however, that the trial court did not abuse its discretion by failing to give the burglary instruction, because the evidence justified the court‘s decision.
{¶ 33} “If the evidence is such that a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense, then the judge should instruct the jury on the lesser offense.” Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 333, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11, citing State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992); State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 192. In deciding whether to instruct the jury on a lesser included offense, the trial court must view the evidence in a light most favorable to the defendant. Trimble at ¶ 192. “The lesser-included-offense instruction is not warranted every time ‘some evidence’ is presented to support the lesser offense. * * * Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior degree) offense.‘” (Emphasis sic.) Id., quoting Shane at 632-633; Hipshire at ¶ 40.
{¶ 34} When reviewing a trial court‘s jury instructions, an appellate court must determine whether the trial court‘s refusal to give a requested jury instruction
{¶ 35} The difference between burglary (
{¶ 36} Callahan also claims that the jury could have concluded that he did not assault Conner, and therefore committed burglary rather than aggravated burglary. However, both Conner and one of the police officers testified that Conner had been injured. Conner further testified that he went to the VA hospital, where his injuries were treated and he was given a shot. Callahan did not rebut the State‘s assertion that Conner had suffered physical harm, and Callahan did not deny inflicting the injuries. Rather, he testified that he “may have” bit Conner in the “tussling” but “wasn‘t aware” of it. Under these circumstances, the trial court did not abuse its discretion in refusing to instruct the jury on the lesser included offense of burglary.
{¶ 37} The first assignment of error is overruled.
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Andrew T. French
William O. Cass, Jr.
Hon. Frances E. McGee