STATE OF OHIO, Plaintiff-Appellee, - vs - JOHN S. MACKO, Defendant-Appellant.
CASE NO. 2016-L-022
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
January 23, 2017
2017-Ohio-253
THOMAS R. WRIGHT, .J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 15 CR 000811. Judgment: Affirmed.
Brian A. Smith, 755 White Pond Drive, Suite 403, Akron, OH 44320 (For Defendant-Appellant).
THOMAS R. WRIGHT, .J.
{¶1} Appellant, John S. Macko, appeals his conviction, following a jury trial, of aggravated burglary and impersonating a peace officer. The principal issue is whether appellant’s conviction was supported by sufficient, credible evidence. For the reasons that follow, we affirm.
{¶2} On November 6, 2015, appellant was indicted in a four-count indictment in which he was charged with aggravated burglary, a felony-one, with a repeat violent
{¶3} The trial court granted appellant’s motion to bifurcate the RVO specifications in Counts 1 and 2. The case proceeded to jury trial.
{¶4} Judith Graham, a 74-year old retired chemical lab technician, testified that on September 19, 2015, at about 4:00 a.m., while she was dozing in her apartment in the Kensington Apartments in Painesville, she heard a loud banging on her door. She went to her grandson, Mr. Cannon’s, room, woke him up, and said there was someone at the door. The two of them went to the kitchen door. Ms. Graham asked who was at the door, and a male’s voice said, “Police, open up.”
{¶5} Mr. Cannon opened the door and the fist of a white male immediately punched him in the face. Mr. Cannon’s nose was bleeding and he ran out of the kitchen, while Ms. Graham was trying to push the door shut. Ms. Graham said there were two men outside her door. One was a black male, who she later identified as Lebaine Fourqurean, and the other was the white male who had punched Mr. Cannon, who Ms. Graham later identified as appellant.
{¶6} Ms. Graham said she kept yelling at the men through the door to “get out.” They said, tell Mr. Cannon to come down and “give up the money.” She said she kept trying to push the door shut, but Lebaine had his foot in the doorway preventing her from shutting it. Then, suddenly, the door flew open and pushed Ms. Graham into the refrigerator, bruising her back. Once inside, Lebaine told Ms. Graham, “I’m going to punch you in your f _ _ _ ing face.” At that time Lebaine and appellant were standing
{¶7} Ms. Graham ran out of the kitchen, grabbed her cell phone, ran into the bathroom, locked the door, and called 911. She said she was terrified because she thought the intruders would break down the bathroom door. She told the dispatcher that there had been a break-in in her apartment and that her grandson had been punched. While Ms. Graham was still on the phone, Mr. Cannon told her through the door that the men had left.
{¶8} Ms. Graham said that within minutes, Officer Houston arrived. She said she did not let him in at first because she was afraid the intruders might have come back. Ms. Graham was still on the phone with the dispatcher, who told Ms. Graham it was all right to open the door. After Ms. Graham looked out her kitchen window and saw Officer Houston in uniform standing by her door, she opened the door for him. She then told him what had happened.
{¶9} Ms. Graham testified that a short time later, another officer drove his cruiser up to her apartment and she saw a black male in his car and identified him as one of the men who broke into her apartment. Then, another officer drove up to her apartment. She saw appellant in his cruiser and identified him as the male who punched Mr. Cannon.
{¶10} Ms. Graham testified that after the incident, Mr. Cannon reminded her that the black male who broke into the apartment was Lebaine Fourqurean. She remembered him because, years ago, he used to be friends with Mr. Cannon and would
{¶11} Ms. Graham said that her grandson obtained medical treatment for his injuries. He had an injury to his nose, which resulted in swelling that lasted two weeks, and a cut near his eye.
{¶12} Ms. Graham said that after the incident, Mr. Cannon told her the intruders went through the living room and stole his pack of Newport cigarettes and cigarette lighter, which were on the coffee table in the living room.
{¶13} Officer Robert Houston of the Painesville Police Department testified that he was dispatched to respond to a “burglary in progress” at Ms. Graham’s apartment. He said that, upon arrival, Ms. Graham was visibly upset. Her hands were shaking and she was having difficulty breathing. Mr. Cannon was in the apartment wiping blood from a cut next to his eye. Ms. Graham provided a description of the two intruders and their car. Ms. Graham said the black male was wearing a red shirt and the white male was wearing a white shirt.
{¶14} Officer Houston radioed the descriptions to other officers in the area who were searching for the suspects. The officer also took statements from both Ms. Graham and Mr. Cannon. Officer Houston identified photographs of Mr. Cannon in court showing he had a cut on the side of his eye and a swollen nose. The officer said that after the suspects were apprehended, they were driven to Ms. Graham’s apartment and, in separate show-ups, Ms. Graham positively identified both males as being involved in the crimes.
{¶16} Officer Sholtz said there were three males in the car. In addition to the driver, the black male in the front passenger seat and the white male in the back seat on the driver’s side were wearing clothes that matched the descriptions provided by dispatch. The occupants exited the vehicle. The black male, later identified as Lebaine Fourqurean, came out of the front passenger seat. Officer Sholtz handcuffed him and placed him in the back of his cruiser. Officer Thompson placed appellant in the back of his car. The driver, Peter Peteritis, was taken into custody. Lebaine and appellant were identified by Ms. Graham.
{¶17} Painesville Officer Michael Decaro searched the suspect vehicle and found a partially used pack of Newport cigarettes in the center arm rest.
{¶18} After appellant was arrested and booked, in a recorded telephone call appellant made from jail, he admitted punching Mr. Cannon.
{¶19} Appellant did not present any witnesses to the events that took place inside Ms. Graham’s apartment and thus her testimony regarding those events was undisputed. Instead, appellant presented the testimony of his driver, Peter Peteritis, and his alleged ex-girlfriend, Shauntae Cruz.
{¶21} Shauntae Cruz testified that appellant is her ex-boyfriend. She said they were still together on the night in question and that she and appellant smoke Newports. She also said that during one of the phone calls she had with appellant while he was in jail, he admitted he struck Mr. Cannon that night.
{¶22} The jury found appellant guilty of all counts as charged in the indictment. The court found that Count 1 (aggravated burglary) and Count 2 (burglary) merged and
{¶23} Following a hearing, based on the state’s evidence that appellant was previously convicted of aggravated robbery, a felony-one, and burglary, a felony-two, in one case and two counts of felonious assault, each being a felony-two, in another case, the court found appellant guilty of the specification.
{¶24} The court sentenced appellant on Count 1, aggravated burglary, a felony-one, to 11 years in prison; on Count 3, impersonating a peace officer, a felony-three, to three years; and on the RVO specification, 10 years, each term to be served consecutively to the others, for a total of 24 years in prison.
{¶25} Appellant appeals his conviction, asserting four assignments of error. For his first, he alleges:
{¶26} “Appellant’s convictions for impersonating a peace officer were not supported by sufficient evidence.”
{¶27} Appellant challenges the sufficiency of the evidence with respect to his “conviction” of both impersonation charges. However, while appellant was found guilty of both impersonation charges, he was only convicted of Count 3 (impersonation, a felony-three). A conviction requires both a guilty verdict and a sentence. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶12. Because the court merged Counts 3 and 4 (the two impersonation charges) and the state elected to proceed with sentencing
{¶28} An appellate court reviewing the sufficiency of the evidence in a criminal matter examines the evidence admitted at trial and determines whether, after viewing the evidence in a light most favorable to the state, 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, 273 (1991). “On review for sufficiency, courts are to assess not whether the state’s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring). Whether the evidence is legally sufficient to sustain a verdict is a question of law that we review de novo. Id. at 386.
{¶29} Circumstantial evidence and direct evidence inherently possess the same probative value. Jenks, supra, at 272. As circumstantial evidence and direct evidence are indistinguishable in this respect “all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt.” Id.
{¶30}
{¶31} 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 * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another * * *.”
{¶33} Further, appellant concedes the state prosecuted him under a theory of complicity. Thus, in considering the sufficiency of the evidence with respect to his conviction of Count 3, impersonating a peace officer, a felony-three, this theory must be considered.
{¶34} In State v. Stack, 11th Dist. Lake No. 2014-L-122, 2015-Ohio-5521, this court stated:
{¶35} “For purposes of
R.C. 2923.03 ‘“aid and abet“’ means ‘to assist or facilitate the commission of a crime, or to promote its accomplishment.’ State v. Johnson, 93 Ohio St.3d 240, 243 (2001) * * *, citing Black‘s Law Dictionary (7 Ed.Rev. 1999) 69. This court has stated that mere presence of the accused at the scene of the crime is not enough, ‘rather the state must establish that the offender “took some affirmative action to assist, encourage, or participate in the crime by some act, deed, word, or gesture.“’ State v. Sims, 11th Dist. Lake No. 2001-L-081, 2003-Ohio-324, ¶44 (citations omitted).” State v. Lane, 11th Dist. Lake No. 2004-L-211, 2006-Ohio-1269, ¶18. Stack, supra, at ¶47.
{¶36} Further, this court in State v. Weimer, 11th Dist. Lake No. 2013-L-005, 2016-Ohio-3116, recently stated:
{¶37} “To support a conviction for complicity by aiding and abetting * * *, the evidence must show that the defendant supported, assisted, * * * [or] cooperated with * * * the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.” Johnson, [supra,] at syllabus. “Such intent may be inferred from the circumstances surrounding the crime.” Id.
“Criminal intent * * * can be inferred from the presence, companionship and conduct of a criminal defendant both before and after the offense is committed, State v. Pruett, 28 Ohio App.2d 29, 34 (1971) * * *, and may be proven by either direct or circumstantial evidence. See State v. Mootispaw, 110 Ohio App.3d 566, 570 (4th Dist.1996) * * *; State v. Cartellone, 3 Ohio App.3d 145, 150 (1981) * * *.” State v. Nievas, 121 Ohio App.3d 451, 456-457 (8th Dist.1997). (Emphasis added.) Weimer, supra, at ¶51.
{¶38} The state presented sufficient evidence that appellant assisted Lebaine in committing aggravated burglary in that he assisted Lebaine in using force or deception to trespass in Ms. Graham’s apartment with the purpose to commit therein any criminal offense and inflicted, attempted, or threatened to inflict physical harm on Ms. Graham and/or Mr. Cannon. Further, the state presented evidence that appellant assisted Lebaine in committing aggravated burglary while appellant assisted Lebaine in acting the part of or assuming the identity of a police officer with the purpose to make Ms. Graham and/or Mr. Cannon believe Lebaine was a police officer.
{¶39} Specifically, the evidence showed that appellant and Lebaine showed up at Ms. Graham’s apartment at 4:00 a.m., unannounced and uninvited, after she had previously told Lebaine he was not permitted to come to her home. Lebaine and/or appellant pounded on her door and when she asked who was there, a male’s voice, which she later identified as Lebaine’s, said, “Police, open up.” When Mr. Cannon opened the door, appellant put his fist in the doorway and punched Mr. Cannon, causing serious swelling of his nose and a cut near his eye. Mr. Cannon then ran out of the kitchen, leaving his grandmother alone. Ms. Graham struggled to close the door on Lebaine and appellant, but Lebaine prevented her from closing it by keeping his foot in the doorway. Ms. Graham kept yelling at the men to “get out.” They said, tell Mr. Cannon to come down and “give up the money.” Suddenly, Lebaine and appellant
{¶40} The foregoing also provided circumstantial evidence of appellant’s intent to assist Lebaine in the commission of impersonation of a police officer and aggravated burglary. As to impersonation, within seconds of Lebaine announcing “Police, open up,” Mr. Cannon opened the door and appellant punched him, thus enforcing Lebaine’s order. As to aggravated burglary, although Ms. Graham yelled at the suspects to “get out” after appellant punched Mr. Carroll, appellant refused and entered the apartment with Lebaine. Then, while Lebaine threatened to punch Ms. Graham, appellant stood right next to him saying nothing, but acting in a way that intimidated Ms. Graham, which scared her to death, making Lebaine’s threat to harm her even more terrifying.
{¶41} Construing the evidence in a light most favorable to the state, as we are required to do in considering a sufficiency challenge, we hold the jury could have found the elements of impersonating a peace officer were proven beyond a reasonable doubt.
{¶43} For his second assignment of error, appellant alleges:
{¶44} “Appellant’s convictions were against the manifest weight of the evidence.”
{¶45} A court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, and considers the credibility of the witnesses. Thompkins, supra, at 387. The court determines whether, in resolving conflicts in the evidence and deciding witness credibility, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Id. The discretionary power to grant a new trial should only be exercised in the exceptional case in which the evidence weighs heavily against the conviction. Id. Witness credibility rests solely with the finder of fact, and an appellate court is not permitted to substitute its judgment for that of the trier of fact. State v. Awan, 22 Ohio St.3d 120, 123 (1986). The role of the reviewing court is to engage in a limited weighing of the evidence in determining whether the state properly carried its burden of persuasion. Thompkins, supra, at 390. If the evidence is susceptible to more than one interpretation, an appellate court must interpret it in a manner consistent with the verdict. State v. Banks, 11th Dist. Ashtabula No. 2003-A-0118, 2005-Ohio-5286, ¶33.
{¶46} Appellant’s various manifest-weight challenges lack merit. First, the fact that Ms. Graham identified only Lebaine’s voice as the voice that said, “Police, open up,” is irrelevant since the state prosecuted appellant on a complicity theory. Moreover, the evidence of appellant’s complicity is fully set forth in our analysis under the first assigned error.
{¶48} Appellant also argues that because the door is a steel door and Mr. Cannon was near the opening, Ms. Graham could not have known there were two men trying to get in her apartment. However, to the contrary, she said she saw appellant punch Mr. Cannon and that she saw Lebaine had his foot in the doorway preventing her from closing the door. In any event, appellant never disputed at trial that he and Lebaine were the men trying to gain entry into the apartment. In fact, appellant admitted he punched Mr. Cannon while they were trying to get into the apartment.
{¶49} Further, appellant argues that while Ms. Graham testified at trial that “they” were trying to push their way in her apartment, she told the dispatcher a black male forced his way into her home and was trying to punch her grandson, suggesting there was only one suspect. However, Ms. Graham explained at trial that, while she could not be certain both men tried to push the door open because they were behind a steel door and she could not see them the whole time, she believes both men forced the door open due to the tremendous force exerted on the door to open it, resulting in her being thrown some three feet into the refrigerator.
{¶50} Third, appellant argues there was no evidence he trespassed into Ms. Graham’s apartment to commit a crime (an element of aggravated burglary) because
{¶51} The parties presented conflicting evidence regarding whether appellant aided and abetted Lebaine in committing aggravated burglary and impersonating a peace officer. In finding appellant guilty, the jury obviously found the state’s evidence to be more credible than appellant’s. In doing so, we cannot say the jury clearly lost its way and created such a manifest miscarriage of justice that appellant is entitled to a new trial.
{¶52} Appellant’s second assignment of error is overruled.
{¶53} For his third assignment of error, appellant contends:
{¶54} “The trial court abused its discretion in overruling Appellant’s motion to admit Judith Graham’s written statement to the Painesville Police Department, the transcript of Judith Graham’s testimony to the Lake County Grand Jury, and the Painesville Police Department report.”
{¶55} This court has stated that “[a]n appellate court reviews the trial court’s decision to admit or exclude evidence under an abuse of discretion standard.” State v. Clark, 11th Dist. Trumbull No. 2013-T-0106, 2014-Ohio-5704, ¶65. An “abuse of discretion” is a term of art, connoting judgment exercised by a court, which does not
{¶56}
{¶57} (B) * * * Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply:
{¶58} (1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require;
{¶59} (2) The subject matter of the statement is one of the following:
{¶60} (a) A fact that is of consequence to the determination of the action other than the credibility of a witness[.]
{¶61} The Twelfth District, in addressing the requirements for admissibility of extrinsic evidence of a prior inconsistent statement by a witness, stated:
{¶62} [U]nder
Evid.R. 613(B) , a party may introduce extrinsic evidence of a prior inconsistent statement to impeach the witness’s credibility. In order to introduce the prior inconsistent statement into evidence, proper foundation must be laid. State v. Lewis, 12th Dist. [Fayette] No. CA2010-08-017, 2011-Ohio-415, ¶30, citing State v. Mack, 73 Ohio St.3d 502, 514-515 (1995). A proper foundation is laid where the witness denies making the prior statement. State v. Hartman, 12th Dist. [Clermont] No. CA98-06-040, 1999 Ohio App. LEXIS 1476, *16 (April 5, 1999), citing State v. Colvin, 12th Dist. [Butler] No. CA94-04-092, 1995 Ohio App. LEXIS 903, *11 (March 13, 1995). However, if a witness admits to making the prior inconsistent statement then extrinsic evidence is not admissible. Id.; State v. Kulasa, 10th Dist.[Franklin No.] 11AP-826, 2012-Ohio-6021, ¶12. (Emphasis added.) State v. Mathes, 12th Dist. Clermont No. CA2012-03-028, 2013-Ohio-1732, ¶10.
{¶64} In any event, during cross-examination, defense counsel questioned Ms. Graham at length about each of the alleged inconsistencies in her prior statements and testimony. In her police statement, as noted above, she said that after the black male said it was the police, “[t]hen he punched my grandson in the face.” Of course, at trial, Ms. Graham testified that appellant, the white male, punched her grandson. Ms. Graham acknowledged this inconsistency at trial and explained that she does not know why she said that other than she was so upset at the time because she knows she saw a white hand come in and punch her grandson.
{¶65} Appellant also questioned Ms. Graham about an alleged inconsistency in her grand jury testimony. She admitted she testified before the grand jury that “they” said, “Police, open up” and “they” opened the door, rather than just Lebaine. However, Ms. Graham explained at trial that she used the word “they” at the grand jury because she knew there were two suspects at the door and she was not sure if they both said “Police” and tried to push the door in. At trial, she said that because she was not sure of appellant’s involvement in those activities, she could only say for sure that Lebaine said and did these things. Thus, there was no inconsistency on this point, and, to the extent there was, Ms. Graham explained it.
{¶66} Appellant also argues the trial court erred in denying his motion to admit Officer Houston’s police report in evidence. However, appellant does not refer to any inconsistency between Ms. Graham’s trial testimony and the police report in his argument so there is nothing for us to consider. In any event, when Officer Houston
{¶67} Appellant argues that because Ms. Graham did not remember making some comments in her police statement and grand jury testimony, the court should have admitted her statement and the transcript of the grand jury proceeding in evidence. However, while Ms. Graham made some gratuitous comments during her cross-examination about not remembering making some alleged inconsistent comments in her statement and grand jury testimony, a review of her trial testimony shows she remembered the alleged inconsistencies cited by appellant and explained them
{¶68} In any event, even if the court abused its discretion in not admitting the documents, any error would have been harmless because Ms. Graham was cross-examined about the differences between her trial testimony on the one hand and her prior statements and testimony on the other and thus the jury was fully aware of these differences.
{¶69} We therefore hold the trial court did not abuse its discretion in not admitting the foregoing documents in evidence.
{¶70} Appellant’s third assignment of error is overruled.
{¶71} For appellant’s fourth and final assignment of error, he contends:
{¶72} “Appellant’s sentence was not supported by the record.”
{¶73} Appellant raises various challenges to his sentence. The Supreme Court of Ohio recently clarified the standard of review of felony sentences in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
{¶74} Appellant argues the trial court erred in finding under
{¶75} The Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, held that
{¶76} In any event, this court has held that “‘a reviewing court must defer to the trial court as to whether a defendant’s remarks are indicative of genuine remorse because it is in the best position to make that determination.’” State v. Schmiege, 11th Dist. Lake No. 2015-L-020, 2015-Ohio-4029, ¶14, quoting State v. Dudley, 11th Dist. Lake No. 2009-L-019, 2009-Ohio-5064, ¶22.
{¶77} Moreover, appellant concedes that at sentencing he made statements to the sentencing judge that contradicted his expression of remorse. While appellant
{¶78} Next, appellant argues that, while the court’s sentence of ten years in prison on the RVO specification was authorized by
{¶79} However, in considering the factors in
{¶80} In January 2009, appellant was convicted of resisting arrest in the Painesville Municipal Court and placed on probation. In May 2009, he was convicted of having weapons under disability, a felony-three, with a firearm specification in the trial court. The latter conviction resulted in a violation of appellant’s post-release control. Appellant was sentenced to serve the remaining one year on his 1999 aggravated robbery conviction and five years on the weapons charge, the terms to be served consecutively, for a total of six years.
{¶81} In 2012, while appellant was in prison, he was convicted of assault on a corrections officer, a felony-five, in the Trumbull County Court of Common Pleas and sentenced to one year in prison
{¶82} Appellant was released from prison in May 2015, and, just four months later, while he was on post-release control, he committed the instant offenses, thus violating post-release control.
{¶83} The trial court noted that appellant has failed to rehabilitate after his prior convictions and delinquency adjudications and he has failed to respond to probation and parole. He refuses to acknowledge his drug and alcohol problems or to accept treatment for either. The court noted appellant’s psychological diagnosis is anti-social personality disorder, which, the court noted, means he will continue to be dangerous, violent, and aggressive to others. The court noted that appellant has had 17 infractions while in prison and that he poses the greatest likelihood of recidivism. Thus, the court’s sentence of ten years on the RVO specification was supported by the record.
{¶85} It is * * * important to understand that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly, and convincingly find that the record does not support the court‘s findings. In other words, the restriction is on the appellate court, not the trial judge. This is an extremely deferential standard of review. Venes, supra, at ¶21.
{¶86} Next, appellant argues the court erred in sentencing him to consecutive sentences. He does not dispute that the court made the necessary findings for such sentences in
{¶87} We therefore hold that appellant’s sentence was not clearly and convincingly contrary to law.
{¶88} Appellant’s fourth assignment of error is overruled.
DIANE V. GRENDELL, J.,
TIMOTHY P. CANNON, J.,
concur.