STATE OF OHIO, Plaintiff-Appellee v. DANIEL K. CHAFIN, Defendant-Appellant
Appellate Case No. 2019-CA-69; Trial Court Case No. 2018-CR-867
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, GREENE COUNTY
Rendered on the 7th day of August, 2020.
[Cite as State v. Chafin, 2020-Ohio-3983.]
WELBAUM, J.
Criminal Appeal from Common Pleas Court
ADAM J. ARNOLD, Atty. Reg. No. 0088797, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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{¶ 2} According to Daniel, his burglary conviction should be reversed because the record lacks sufficient evidence that he had the purpose to commit an offense once he entered the home where the alleged burglary occurred. In addition, Daniel argues that trial counsel provided ineffective assistance by failing to ask for a lesser included instruction involving
{¶ 3} After considering the record and applicable law, we conclude that the record does contain sufficient evidence to support the burglary conviction, because the jury could have reasonably concluded that Daniel entered his brother‘s home with intent to commit theft. Furthermore, Daniel‘s counsel did request an instruction on the lesser included offense, but the trial court rejected his request. Although the court erred in its reasons for rejecting the instructions, trial counsel was not responsible for the court‘s error. Morevoer, the instructions were not warranted under the facts presented, and the error, therefore, did not impact the judgment. Accordingly, the judgment of the trial court will be affirmed.
{¶ 4} The victims in the case before us are Daniel‘s siblings. Daniel‘s brother, Joseph, is about ten years younger than Daniel, and owns a house in Fairborn that he purchased in 2016. For about a year after the purchase, Daniel stayed at the house. However, Joseph kicked Daniel out in 2017 when he suspected Daniel of stealing some power tools.2 Subsequently, Joseph‘s younger brother, Donte, came to live with Joseph. Joseph also gained legal custody of his two younger sisters, ages 13 and 15, in February 2018. Thus, when the alleged crimes occurred on September 6, 2018, Joseph and his three younger siblings lived together in the house.
{¶ 5} When Joseph kicked Daniel out, he told Daniel that he was not allowed in the house. Joseph also changed all the locks. The only person other than Joseph who had a key was one of the sisters, who arrived home from school while Joseph was at work. Daniel was never given a key to the house.
{¶ 6} After Daniel was kicked out, he came to the house a few times with their mother to get jugs of water, as her water was bad and she did not have a filter. When she brought Daniel, Joseph told her that he did not want Daniel there. However, she claimed she needed Daniel to help carry the jugs.
{¶ 7} Daniel also came over four or five times to try to sell Joseph things. Almost every time, Joseph told him that he was not welcome. The last time Daniel came over prior to the alleged burglary, Joseph swung a shovel at Daniel and hit him. He told Daniel not to come back and to leave Joseph and his family alone.
{¶ 8} During the week, Joseph worked at a data processing job from 7:30 a.m. to
{¶ 9} Daniel stayed for about an hour and a half. During that time, Daniel walked around the house and Donte followed him to make sure he did not take anything. Several times, Daniel stopped by a safe located on a counter next to the kitchen window and forcefully tried to open the safe with a screwdriver. The safe contained a gun and money. Daniel did not directly say what he was doing, but he said, “You know why I‘m here,” and “You know I was about to do something bad; right?” Transcript of Trial Proceedings (“Tr.“), Vol. I, p. 130. Donte took this to mean that Daniel was about to steal something, like what he was trying to do with the safe. Id.
{¶ 10} The framing on the kitchen window had been pushed in. The window was shut, but the frame had been pushed in and there was enough room that a person could enter the house. Id. at p. 160. There was no such damage to the window before that day.
{¶ 11} From time to time, Daniel had asked Donte for money. Donte had given Daniel money once before ($40), but he did not give him money on September 6, 2018. Donte did not call the police that day because his phone was not charged. At some
{¶ 12} After Daniel left, Donte looked over everything to make sure things were there and noticed that his debit card was missing. He knew that Daniel had taken it because Daniel was the only one who had been there. When he realized the card was missing, he found a charger for his phone and called Daniel‘s mother‘s phone, which Daniel had been using. Daniel responded and said, “Don‘t call the cops. I‘m bringing it right back.” Tr., Vol. I at p. 138.
{¶ 13} A screenshot was taken of Daniel‘s text, which said, “Yes, I‘m coming back. Don‘t call the f**king police. Can‘t believe you would threaten that anyway.” Id. at 143. The text was received at 12:21 p.m. Id. Daniel then brought the card back within an hour. Donte did not call the police because he was kind of scared to call the police on his brother.
{¶ 14} When Joseph arrived home from work that day, he saw that the window frame in the kitchen had been pushed in. It had not previously been pushed in that way. Joseph helped Donte take screenshots of Donte‘s phone, including the text and call history, and the police were called.
{¶ 15} Fairborn Police Officer Christopher Sopher came to the house that night on a report of a past-occurred burglary. Sopher spoke in detail with Donte, who had called
{¶ 16} Sopher‘s report was referred to the detective section, and Detective McGuire went to the house several times, but was not able to get in due to the dog. McGuire spoke to Donte, Joseph, and Daniel. According to McGuire, Daniel claimed that he had not been kicked out of the house and was allowed to be there. When McGuire asked Daniel if there was a dispute over some missing property, Daniel said that Donte was alleging that he took $40, that they were in a dispute over $40 that Daniel had received from Donte, and that Donte was just trying to get him in trouble regarding the $40.
{¶ 17} Joseph had three surveillance cameras outside his house. One camera was above the garage door; one was at the front door, and one was on the side of the house. There was no camera in the back of the house, because of the privacy fence. Daniel knew where the cameras were. After the incident, Joseph reviewed the video footage; the videos revealed nothing other than Daniel‘s approaching the house around 1:01 p.m. (which was within an hour after the phone call and text). Tr., Vol. I at p. 228.
{¶ 18} Detective McGuire sent the case to the prosecutor for review, and an indictment was filed on November 2, 2018, for burglary, a second-degree felony, safecracking, a fifth-degree felony, and theft, a fifth-degree felony. After Daniel pled not guilty, the case was tried to a jury, which found Daniel guilty of burglary, attempted safecracking, and theft. The court then sentenced Daniel to a total of five years in prison on
II. Sufficiency of the Evidence
{¶ 19} Daniel‘s First Assignment of Error states that:
The Defendant-Appellant Was Convicted Without Sufficient Evidence as to an Essential Element of the Crime Convicted.
{¶ 20} Under this assignment of error, Daniel contends that the record lacked sufficient evidence to support the burglary conviction, because there was no evidence that he had the purpose to commit an offense when he entered Joseph‘s home. Daniel admits that he wrongfully entered the house, but argues that his purpose in entering was not to take Donte‘s credit card or break into the safe; instead, his purpose was simply to be in the home. As evidence, he points to the fact that he was there for an hour and a half, that he and Donte spoke frequently, that he and Donte sat down to play video games, that Donte did not feel threatened, and that Donte did not call the police.
{¶ 21} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In this situation, we apply the following test:
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. Jenks, 61 Ohio St.3d 259, 259-60, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).
{¶ 22} Daniel was charged with having violated
(A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense[.]
{¶ 23} The culpable mental state for this violation is “purpose to commit * * * any criminal offense.” In terms of culpability, “[a] person acts purposely when it is the person‘s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender‘s specific intention to engage in conduct of that nature.”
{¶ 25} The predicate offense for the burglary charge was theft. There can be little doubt that Daniel‘s intent in entering the house was to steal something. The record lacks any evidence that Daniel knocked on the front door and asked to come in, as any normal visitor (relative or not) would. Instead, the evidence indicated that Daniel had been previously barred from the premises based on the owner‘s suspicion that he had stolen property. Instead of asking for permission, Daniel came through the back yard (where he knew there were no cameras) and entered through a kitchen window, which he damaged in the process.
{¶ 26} Moreover, unlike many situations, we have Daniel‘s own words expressing his intent. As noted, Daniel told his brother, Donte, that “You know why I‘m here,” and that, “You know I was about to do something bad; right?” Tr., Vol. I at p. 130.
{¶ 27} As support for his position that he was just at the house to be there, Daniel has cited State v. Hudson, 2018-Ohio-423, 106 N.E.3d 205 (2d Dist.). In that case, the defendant was arrested after he was found asleep on the victim‘s couch. He was charged with a violation of
{¶ 28} Hudson is not on point here. Unlike the defendant in Hudson, Daniel, himself, highlighted his intent to steal something when he entered the premises.
{¶ 29} Furthermore, Daniel‘s argument that the evidence was insufficient because he did not form an intent to steal his brother Donte‘s debit card until sometime after he entered the residence is not a defense. The evidence was overwhelming that Daniel stole Donte‘s debit card. Daniel later returned the card and his own text messages confirmed that he had taken it. Whether he intended to steal the card when he entered the residence does not matter. “[A] defendant may form the purpose to commit a criminal offense at any point during the course of the trespass.” State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037 (2000), syllabus. In fact, in light of Fontes, we have held that an argument that a trespasser did not have the “purpose to commit * * * any criminal offense” because he did not form the intent to commit the criminal offense until after having entered a residence lacks arguable merit. State v. Cook, 2d Dist. Montgomery No. 26809, 2016-Ohio-4574, ¶ 7.3 Therefore, arguing that Daniel did not have the purpose to commit a criminal offense when he trespassed into his brother‘s home, but formed the intent after entering the home, even if true, was simply not a viable defense.
{¶ 30} Daniel‘s second point is based on the fact that the trial court and parties agreed that the three offenses in this case were not allied offenses of similar import.
{¶ 31} In 2015, the Supreme Court of Ohio clarified the law pertaining to allied offenses of similar import. The court held that “[w]hen the defendant‘s conduct constitutes a single offense, the defendant may be convicted and punished only for that offense. When the conduct supports more than one offense, however, a court must conduct an analysis of allied offenses of similar import to determine whether the offenses merge or whether the defendant may be convicted of separate offenses.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 24, citing
{¶ 32} The court went on to note that:
A trial court and the reviewing court on appeal when considering whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance -- in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation.
{¶ 33} After Ruff was decided, courts considering the interrelationship of burglary with other offenses have held that the crime of burglary is complete upon intrusion into a
{¶ 34} The court of appeals disagreed, commenting that:
In order to commit burglary, appellant had to, by force, stealth, or deception, trespass in a separately secured or separately occupied portion of an occupied structure with the purpose to commit any criminal offense. Therefore, once inside the garage on Sauterne Drive, with the requisite intent, the burglary was complete. The theft offense did not occur until later, when appellant physically removed the .32 caliber revolver from the garage. At this time, grand theft of the firearm was complete. “Consequently, ‘because one offense was completed before the other offense occurred, the two offenses were committed separately for purposes of
R.C. 2941.25(B) notwithstanding their proximity in time and that one was committed in order to commit the other.’ ”
Back at ¶ 12, quoting State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-562, ¶ 16, which in turn quotes State v. DeWitt, 2d Dist. Montgomery No. 24437, 2012-Ohio-635, ¶ 33. See also State v. Champada, 6th Dist. Fulton No. F-14-006, 2016-Ohio-7291, ¶ 24 (burglary attempt was complete upon breaking into door on the premises and subsequent thefts of items were not allied offenses); State v. Sutton, 8th Dist. Cuyahoga No. 102300, 2015-Ohio-4074, ¶ 64 (no allied offense of theft and burglary; “burglary was
{¶ 35} The basis for these holdings is that ” ‘[i]t is the intent to commit any criminal offense while trespassing that constitutes commission of the burglary crime. No criminal offense actually needs to be committed to support the burglary charge.’ ” State v. Justice, 8th Dist. Cuyahoga No. 106895, 2018-Ohio-4119, ¶ 11, quoting State v. Yancey, 8th Dist. Cuyahoga No. 104587, 2017-Ohio-1040, ¶ 9. (Other citation omitted.)
{¶ 36} In State v. Gillman, 2015-Ohio-4421, 46 N.E.3d 130, ¶ 23 (4th Dist.), the court also held that burglary and theft were not allied offenses because the harm resulting from each crime differed. The burglary caused harm to the occupants’ sense of safety and privacy, while the theft caused economic harm. Id. at ¶ 23.
{¶ 37} After reviewing the above cases, we agree with the holdings of the other courts and conclude that the burglary was accomplished when Daniel forced his way into the house with intent to steal something. Furthermore, to the extent that Daniel‘s argument could be interpreted as an assertion of plain error in the court‘s failure to merge the offenses, it is also not well taken. The matter was not raised in the trial court and, for the reasons stated, there has been no error or plain error. Champada at ¶ 25.
{¶ 38} Based on the preceding discussion, the First Assignment of Error is overruled.
{¶ 39} Daniel‘s Second Assignment of Error states that:
The Trial Counsel for Defendant Was Ineffective in Requesting the Incorrect Lesser Included Jury Instruction.
{¶ 40} Under this assignment of error, Daniel contends that trial counsel rendered ineffective assistance by focusing his argument for a lesser included offense on
{¶ 41} “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel‘s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942).
{¶ 42} “A convicted defendant‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that
{¶ 43} In Strickland, the court also stressed that “[j]udicial scrutiny of counsel‘s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. * * * A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). With these standards in mind, we will consider the circumstances surrounding the jury charge.
{¶ 44} Before trial, Daniel‘s counsel submitted proposed jury instructions. See Proposed Partial Jury Instructions (Apr. 24, 2019). At that time, counsel proposed instructions on two lesser included offenses:
{¶ 45} The reason
{¶ 46} Similarly,
{¶ 47} At the end of the State‘s case, Daniel‘s counsel made a
{¶ 48} Subsequently, the court briefly mentioned the request for instructions. The court first noted that the indictment “does not utilize the phraseology of the code section that deals with likely to be present and there is evidence that a witness was present, indeed that‘s the only witness that even places the Defendant inside the house, therefore, it will be very unlikely for the jury to find that no one was present at the time of these events.” Id. at 312. The court went on to stress that, “Therefore, there is no way that element cannot be found by a jury, which is a requirement for a lesser included offense, therefore, the request for a lesser included offense will be denied as to the Burglary counts.” Id. at p. 312-313.
{¶ 49} Daniel has not raised the applicability of
{¶ 50} The trial court was mistaken, however, with respect to the lesser included offense in
{¶ 51} “When construing the language of a statute, we begin by determining the intent of the General Assembly. The intent of the General Assembly ‘is primarily determined from the language of the statute itself.’ When the statute is unambiguous, the court must apply it as written.” (Citations omitted.) State ex rel. Stevens v. Fairfield Cty. Bd. of Elections., 152 Ohio St.3d 584, 2018-Ohio-1151, 99 N.E.3d 376, ¶ 17.
{¶ 52}
{¶ 53} Nonetheless, any error is irrelevant because Daniel‘s argument is based on an unfounded premise. Contrary to Daniel‘s assertion, there was no evidence that he went to the house that day to spend time with his younger brother and not to commit a crime. In the first place, when Donte entered the kitchen, Daniel was surprised to see him. No testimony contradicted Donte‘s account. If Daniel came to the house that day
{¶ 54} Furthermore, for the reasons previously discussed, it is abundantly clear that Daniel did not come to the house that day to spend time with Donte. Instead, Daniel did not have permission to be in the house, forcibly entered by pushing in a window, and had intent to steal something. Daniel‘s own statements confirmed this, and there was simply no evidence to the contrary.
{¶ 55} Likewise, because the criminal offense of theft of the debit card, a misdeed which is undisputed, constitutes a “purpose to commit * * * any criminal offense,” there is no reasonable argument whether trial counsel was ineffective for failing to focus on a defense that Daniel did not form the intent to steal the card until after he entered the residence. Daniel argues that “[Trial counsel] did not put any emphasis on the issue that Mr. [Daniel] Chafin did not enter the home with the purpose to commit any criminal infractions.” (Appellant‘s Brief at 12.) However, what Daniel argues is not a defense. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, at syllabus. Trial counsel cannot be faulted for failing to focus on something that as a matter of law is not a defense.
{¶ 56} As a result, Daniel‘s trial counsel did not provide ineffective assistance. Counsel asked for instructions on the lesser included offense in
{¶ 57} Moreover, as noted, refusing to give a lesser and included instruction on
{¶ 58} There is no question that Daniel stole the debit card, and we have also concluded that an unequivocal purpose to steal was not required to have been formed before he entered the house. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, at syllabus. Consequently, Daniel‘s contention that he formed the intent to steal the card after entering was not a legitimate defense, and neither of the distinctive elements of
{¶ 59} Again, on this record, no reasonable juror could have found that Daniel‘s purpose in stealing the debit card was not a purpose to commit a criminal offense, and no reasonable juror could have found that a person was only likely to be present rather than actually present. As a result, an instruction on
{¶ 60} Accordingly, the Second Assignment of Error is overruled.
IV. Conclusion
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HALL, J., concurs.
DONOVAN, J., concurs in judgment only.
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Marcy A. Vonderwell
Adam J. Arnold
Hon. Stephen Wolaver