STATE OF OHIO v. MICHAEL D. JONES
No. 104233
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 26, 2017
[Cite as State v. Jones, 2017-Ohio-288.]
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598760-A
BEFORE: Keough, A.J., Kilbane, J., and Celebrezze, J.
AFFIRMED IN PART; MODIFIED IN PART, AND REMANDED
RELEASED AND JOURNALIZED: January 26, 2017
Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Mary M. Dyczek
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant, Michael Jones (“Jones“), appeals the trial court‘s judgment, rendered after a bench trial, finding him guilty of burglary and grand theft, and sentencing him to consecutive sentences totaling eight and a-half years. We affirm in part, modify in part, and remand for proceedings consistent with this opinion.
I. Factual and Procedural Background
{2} A Cuyahoga County Grand Jury indicted Jones on one count of burglary in violation of
{3} Sandra Harris testified at trial that at approximately 3:00 p.m. on August 24, 2015, as she was working in a home on West 35th Street in Cleveland, she saw a man and a woman running through the next door neighbor‘s backyard. About ten minutes later, Harris saw the same man and woman running through the neighbor‘s backyard; this time, the man was carrying a TV. Harris called the police to report the suspicious activity.
{4} Cleveland police officer David Santiago and his partner responded and spoke with Harris, who told them the incident had occurred next door at 4229 West 35th Street. The resident, Fabrice Dongo, was not home, so the police went to Dongo‘s other next-door neighbor to see if that neighbor, Enrique Carmona, had seen anything.
{6} The officers went to the house on Muriel Street and spoke with Betty Jo Cupach, who told the officers that she lived in the downstairs unit of the home with her granddaughter and Jones, her granddaughter‘s boyfriend. The officers then obtained a photo of Jones from a law enforcement database and showed the picture to Cupach, who identified the male in the picture as Jones. Cupach told the officers that she would let them know when Jones returned home.
{7} The officers then went to Dongo‘s house to investigate the suspicious activity report. The officers found the backdoor of the home open and upon entering saw that the house had been ransacked. They also found a broken window that had been used to gain entry to the home. Near the back door, the officers found a black purse that contained an opened package of men‘s white tee shirts and two cell phones. The photo that appeared on the lockscreen of one of the phones was of Jones.
{9} Dongo testified that he lived alone, and worked during the week as a senior auditor for an accounting firm and on weekends as a disc jockey. He said that he sometimes works from home. Dongo testified that he was working in Youngstown, an hour and a half away from his home, when the burglary occurred.
{10} Dongo said that the police called him at work around 4:00 p.m. on August 24 and told him of the burglary. He arrived home at approximately 5:30 p.m. to find his house cordoned off and police officers on the scene. He testified that his house was “messy” and not “the same way I left it when I left the house in the morning.” He identified for the police numerous items that were missing from his home, including two laptop computers, two flat screen TV‘s, an amplifier, a CD player, several turntables, a Blu-ray player, several pairs of shoes, shirts, sunglasses, colognes, and a watch. Dongo placed the total value of the stolen property at $23,662, and said he had not given anyone permission to take anything from his house on August 24, 2015.
{12} As the police were leaving Dongo‘s house, Cupach flagged them down and told them Jones had returned home. Officer Santiago testified that as he approached Cupach‘s house, he saw Jones standing in the front doorway of the house. When Santiago identified himself as a police officer and told Jones that he wanted to speak with him, Jones turned and fled toward the back of the house. Santiago ran to the rear of the house, where he saw Jones exit a second story window on top of the roof. When Santiago ordered Jones to stop, Jones climbed back in the window. Santiago and his partner swept the house but were unable to find Jones. After searching for several hours, a SWAT team eventually found him hiding in a crawl space between the walls of Cupach‘s home.
{13} Dongo testified that later that evening, Cupach came to his house and gave him a package of unopened tee shirts that belonged to him. Cleveland police officer John Farnsworth testified that he and another officer found Dongo‘s laptop, laptop bag, and his CPA study materials, as well as a blue bag containing Dongo‘s RayBan sunglasses, camera, headphones, perfume, and a plaque with his name on it in a wooded area behind Cupach‘s garage. Cleveland police detective Gerald Hoval confirmed that
{14} Upon the conclusion of the state‘s case, the trial court denied Jones‘s
II. Law and Analysis
A. Sufficiency and Manifest Weight of the Evidence
{15} In his first assignment of error, Jones contends that the trial court erred in denying his
{16} A
{17} Jones was convicted of burglary in violation of
No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person * * * is present or likely to be present, with purpose to commit in the habitation any criminal offense.
{18} He was also convicted of grand theft in violation of
{19} We find that the state failed to present evidence of the “present or likely to be present” element of burglary under
{20} This court has discussed the “likely to be present” element of the crime of second-degree burglary as follows:
A person is likely to be present when a consideration of all the circumstances would seem to justify a logical expectation that a person could be present. * * * In determining whether persons were present or likely to be present under
R.C. 2911.12(A)(2) , “the defendant‘s knowledge
concerning habitation is not material. The issue is not whether the burglar subjectively believed that persons were likely to be there, but whether it was objectively likely.” * * * Merely showing that people dwelled in the residence is insufficient; the state must adduce specific evidence that the people were present or likely to be present at the time of the burglary. * * *
State v. Cole, 8th Dist. Cuyahoga Nos. 103187, 103188, 103189, and 103190, 2016-Ohio-2936, ¶ 40, quoting State v. Palmer, 8th Dist. Cuyahoga No. 89957, 2008-Ohio-2937, ¶ 13.
{21} The Ohio Supreme Court has recognized that the state can establish the “likely to be present” element under
{22} In order to prove that someone was “likely to be present,” the state must adduce specific evidence concerning the habits of the residents or others who have access to the premises to demonstrate the likelihood of a person‘s presence at the time of the
{23} Dongo testified that he lived alone, and that he was employed as an auditor during the workweek and a disc jockey on the weekends. Although Dongo testified that he “sometimes” worked at home, there was no testimony regarding when or how often he worked at home such that the jury could have inferred that he was likely to be present on the day of the burglary. Did Dongo work at home during the week or only on weekends? Was it once a month? Every week? In the morning? In the afternoon?
{24} Likewise, there was no evidence that Dongo ever returned home during the workday. See State v. Richardson, 8th Dist. Cuyahoga No. 100115, 2014-Ohio-2055, ¶ 23 (victim not likely to be present where the burglary occurred shortly before noon on a workday, and there was no evidence that the victim sometimes returned home during the workday); State v. Brown, 1st Dist. Hamilton No. C-980907, 2000 Ohio App. LEXIS 1820 (Apr. 28, 2000) (likely to be present element not satisfied where burglary occurred during the occupant‘s workday and no evidence was offered that the occupant ever came home during his workday).
{25} The only testimony whatsoever regarding the likelihood of Dongo being present in the home was that he “sometimes” worked at home. At most, Dongo‘s testimony that he “sometimes” works at home established a possibility that he could have been home at the time of the burglary. But a “mere possibility” is insufficient to
{26} Nevertheless, Jones may be convicted of the lesser included offense of burglary under
{27} Jones argues that the evidence is insufficient to support his convictions because no one saw him burglarize the house, and there were no fingerprints or DNA evidence tying him to the burglary. He also contends that he could not have been the individual who burglarized Dongo‘s home because so many items were stolen but only a few items were recovered. Finally, he asserts that no one identified him as the male Harris and Carmona saw running while carrying a TV.
{29} Carmona testified that on August 24, 2015, he saw a male carrying a TV and a woman carrying a laptop computer bag in his backyard. He directed the police to the house on Muriel Street where he had seen the man and woman “hanging out.” Although Carmona was reluctant to testify at trial and asserted that he could not identify Jones as the perpetrator, he acknowledged that when the police showed him a picture of Jones on the lockscreen of a cell phone they had found at the back entrance of the victim‘s house after the burglary, he told the police that he was “100 percent certain” that the individual on the phone was the male he had seen in his backyard with the TV.
{30} The state presented evidence that the window of Dongo‘s house was broken to gain entry into the home. The state also presented evidence that Jones lived with Cupach, and that although not all of the stolen items were recovered (presumably because they were hidden elsewhere), a number of stolen items were found hidden in the bushes behind Cupach‘s garage. On the evening of August 25, 2015, after Jones had been arrested, Cupach returned to Dongo an unopened package of tee shirts that belonged to
{31} The state also presented evidence that Jones fled from the police when they approached to question him, and then hid for several hours in a crawl space in Cupach‘s house, forcing the police to break through the drywall to find him. Jones‘s flight is evidence of his consciousness of guilt. Indeed, “an accused‘s flight from custody, resistance to arrest, concealment, * * * and related conduct are admissible as evidence of consciousness of guilt, and thus of guilt itself.” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 167.
{32} Viewing this evidence in a light most favorable to the prosecution, it is apparent that any rational trier of fact could have found the essential elements of burglary under
{33} Likewise, Jones‘s convictions, as modified, are not against the manifest weight of the evidence. In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92226, 2009-Ohio-3598, ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be
{34} This is not that exceptional case. The circumstantial evidence against Jones is overwhelming. The victim, Dongo, testified that Jones was “always watching” him from the porch of the house on Muriel Street when he returned home from work. After the burglary, the police found a cellphone near the backdoor of Dongo‘s house with a picture of Jones on the lockscreen. When the police showed the picture to Carmona, he pointed out the house on Muriel Street where the male hung out, and told the police that he had seen the male that afternoon in his backyard carrying a TV. Cupach, who lived at the house on Muriel Street, told the police that Jones also lived there. The police found a number of stolen items in the bushes behind Cupach‘s garage. And Jones fled from the police and hid for hours in Cupach‘s house after the police approached him and told him they wanted to talk to him.
{35} The only possible inference from this evidence is that Jones burglarized Dongo‘s house when he knew Dongo would not be home. Accordingly, Jones‘s convictions for burglary under
{36} Under
B. Consecutive Sentences
{37} In his third assignment of error, Jones contends that the trial court erred in imposing consecutive sentences.
{38} Consecutive sentences may be imposed only if the trial court makes the required findings pursuant to
- the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;
- at least two of the multiple offenses were committed as part of one or more courses of the conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct; or
- the offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{40} Jones concedes that the trial court made the appropriate findings at the sentencing hearing, and the journal entry of sentencing reflects those findings. Accordingly, this assignment of error is without merit and overruled.
{41} Judgment affirmed in part, modified in part, and remanded.
It is ordered that the costs herein taxed be shared equally.
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 convictions, as modified, having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR