State v. PacificState v. Pacific
Rendered on the 26th day of March, 2021.
MATHIAS H. HECK, JR. by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419
Attorney for Defendant-Appellant
EPLEY, J.
{¶ 2} Pacific appeals from his conviction, claiming that (1) the trial court erred in allowing the State to amend the indictment and bill of particulars at trial, (2) the trial court erred in failing to grant a reasonable continuance after amending the indictment, (3) the trial court erred in denying his
I. Factual and Procedural History
{¶ 3} On July 7, 2019, the Montgomery County Sheriff’s Department responded to 5345 Germantown Pike on a reported breaking and entering. Carol Slater, who lived at that residence, informed the deputies that she heard voices and noises at a neighboring property, a dilapidated former commercial nursery that consisted of a series of connected buildings. The deputies walked around the greenhouse buildings and heard voices and mechanical noises coming from inside. After entering the greenhouse, the deputies encountered Pacific and two other individuals. Pacific had a chainsaw and was cutting into a motor or air conditioning unit that was mounted to the ceiling. The deputies placed the three individuals under arrest.
{¶ 4} On August 8, 2019, Pacific was indicted on one count of breaking and
[O]n or about July 7, 2019, in Montgomery County, Ohio, the Defendant, Christopher Pacific, did by force, stealth, or deception, trespass in an unoccupied structure located at 5345 Germantown Pike, Jefferson Township, Ohio, with purpose to commit therein any theft offense, as defined in
R.C. 2913.01(K) , or any felony; in violation ofR.C. 2911.13(A) , a felony of the fifth degree. In particular, the day of the incident, Montgomery County Sheriff’s Deputies responded to a breaking and entering in progress call where they located Defendant in a secured greenhouse-type building actively sawing at a motor to remove it from the structure.
{¶ 5} The matter proceeded to a bench trial on January 28, 2020. The State presented the testimony of Slater, two of the responding deputies, and Donald Wang, the alleged owner of the greenhouse property. During the trial, the State presented evidence that the address of the greenhouse actually was 5335 Germantown Pike, an abutting property that shares a driveway with 5345 Germantown Pike. After the State rested, the prosecutor moved, pursuant to
{¶ 6} Defense counsel moved for a judgment of acquittal under
{¶ 7} The trial court found Pacific guilty of breaking and entering and ordered a presentence investigation. At the sentencing hearing, the trial court misstated that Pacific had been found guilty of a felony of the fourth degree. The court sentenced Pacific to up to five years of community control, and it orally notified him that he could be required to serve 18 months in prison if he violated that community control. The trial court’s written judgment entry, however, correctly indicated that breaking and entering was a felony of the fifth degree, and it ordered that Pacific could be required to serve 12 months — not 18 months — if he violated his community control sanctions.
{¶ 8} Pacific appeals from his conviction, raising five assignments of error.
II. Amendment of the Indictment
{¶ 9} In his first assignment of error, Pacific claims that the trial court erred in permitting the State to amend its indictment and bill of particulars at the conclusion of its case-in-chief.
{¶ 10} “The purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7.
{¶ 11}
{¶ 12} “Whether an amendment changes the name or identity of the offense charged is a matter of law that we review de novo.” State v. Villamor-Goubeaux, 2016-Ohio-7420, 72 N.E.3d 1185, ¶ 54 (2d Dist.), citing State v. Frazier, 2d Dist. Clark No. 2008-CA-118, 2010-Ohio-1507, ¶ 22. “If the amendment does not change the name or identity of the crime charged, then we apply an abuse of discretion standard to review the trial court’s decision to allow a
{¶ 13} In this case, the indictment and bill of particulars alleged that on July 7, 2019, Pacific committed the offense of breaking and entering, in violation of
{¶ 14} Under these facts,
{¶ 15} Moreover, nothing in the record suggests that Pacific was prejudiced by the amendment. There was no dispute that the greenhouse property was the alleged scene of the offense. The bill of particulars indicated that Pacific was found in the greenhouse attempting to remove a motor from that property, and all of the State’s witnesses testified about their actions with respect to the nursery property. Defense counsel indicated at trial that he had visited the greenhouse property, and he cross-examined witnesses regarding the condition of that property. Defense counsel was prepared to present evidence challenging the State’s evidence regarding the ownership of the nursery property and whether Pacific lacked privilege to be in the greenhouse. The trial court did not abuse its discretion in permitting the amendment of the indictment and bill of particulars to correct the property’s address.
III. Denial of Continuance
{¶ 17} Pacific’s second assignment of error claims that the trial court should have granted him a continuance after allowing the amendment of the indictment and bill of particulars.
{¶ 18}
If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to * * * a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant’s rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. * * * No action of the court in refusing a continuance or postponement under this division is reviewable except after motion to grant a new trial therefor is refused by the trial court, and no appeal based upon such action of the court shall be sustained nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a failure of justice resulted.
{¶ 19} Pacific requested a continuance in conjunction with his objection to the State’s motion to amend the indictment and the bill of particulars, arguing that the amendment could have an impact on defense strategy. The trial court denied that request, stating that it found no indication that Pacific was prejudiced, particularly given
{¶ 20} Pacific did not thereafter file a motion for a new trial. Accordingly, pursuant to
{¶ 21} Pacific’s second assignment of error is overruled.
IV. Sufficiency and Manifest Weight of the Evidence
{¶ 22} In his third and fourth assignments of error, Pacific claims that the trial court erred in denying his
{¶ 23}
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.
{¶ 24} When reviewing the denial of a
{¶ 25} In contrast, “[a] weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When reviewing an argument challenging the weight of the evidence, an appellate court may not substitute its view for that of the trier of fact. Rather, we review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 26} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of
{¶ 27} “The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different.” Thompkins at 386. However, where an appellate court determines that a conviction is not against the manifest weight of the evidence, the conviction is necessarily based on legally sufficient evidence. State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22, 2018-Ohio-2426, ¶ 8; State v. Million, 2d Dist. Montgomery No. 24744, 2012-Ohio-1774, ¶ 23.
{¶ 28} The trial court found Pacific guilty of violating
A. Force, Stealth, or Deception
{¶ 29} First, Pacific claims that the State failed to establish that Pacific acted with “force, stealth, or deception.” It appears undisputed that deception is inapplicable to this case.
{¶ 30} “Force” is defined as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.”
{¶ 31} The term “stealth” is not defined in the Ohio Revised Code, but we and other Ohio appellate courts have defined it to mean “any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within” the relevant structure. Johnson at ¶ 18, citing, e.g., State v. Reeves, 2d Dist. Montgomery No. 16987, 1999 WL 129469 (Mar. 12, 1999). We have commented that evidence that a defendant entered through a back entry secluded from view was sufficient to establish the element of stealth. Reeves at *6, citing State v. Wolhfeil, 8th Dist. Cuyahoga No. 51983, 1987 WL 9133 (Apr. 2, 1987); Johnson at ¶ 19. The fact that an incident occurs in broad daylight does not necessarily preclude evidence of stealth. See, e.g., Johnson at ¶ 20; In re Markunes, 2d Dist. Montgomery Nos. 15601 & 15617, 1996 WL 531586 (Sept. 20, 1996) (evidence of stealth existed where there was sufficient evidence that defendant’s conduct could be construed as looking to see if the “coast was clear” before entering the open garage in broad daylight).
{¶ 32} According to the State’s evidence at trial, the nursery property is a 7.5 acre
{¶ 33} Donald Wang testified that he purchased the property in 2004, but he had not operated it as a commercial nursery business. The greenhouse property was in disrepair, with vines and foliage growing around and inside several of the connected buildings. One structure was missing part of its roof. Wang, who lives in California, testified that he secured the “openings” (not including the doors) to the building with plywood. Some windows were covered with plastic mesh. The front of the building along Slater’s property line had several doors and garage doors. Slater testified that the two doors were closed and one overhead door was open “just a little crack.” None of the entrances were easily accessible.
{¶ 34} Deputies were called to the scene at approximately 6:03 p.m. on July 7. When Deputy Jamar Williams and his partner attempted to locate the voices and noises reported by Slater, they were unable to access the greenhouse from the front, as the door was closed and locked from the inside. The deputies eventually accessed the building by peeling back some plexiglass panels that were attached to the building.
{¶ 35} Deputy Brian Krimmer approached from the rear of the greenhouse property. He parked on Infirmary Road and walked through a “very heavily wooded” area
{¶ 36} Deputies located a parked red vehicle belonging to one of the individuals found in the greenhouse by a residence on Infirmary Road near the rear of the nursery property. Slater testified that she had been home all day on July 7, and she did not see anyone come onto her property or the portion of the greenhouse property near her home.
{¶ 37} Upon reviewing the evidence at trial, the trial court could have reasonably concluded that Pacific entered the greenhouse building through stealth or force. The State’s evidence indicated that Pacific and the others drove to the greenhouse property in a red vehicle and parked on Infirmary Road, along the rear of the property. The court could have reasonably found that Pacific traversed a heavily wooded area with significant underbrush to reach the rear of the greenhouse buildings. The evidence further indicated that Pacific gained entry to the greenhouse from the rear or side of the building, an area not visible to Slater from her home. Slater, who lived adjacent to the front of the greenhouse and shared a driveway with the property, was home during the day on July 7 and did not see anyone. The evidence thus reasonably supported a conclusion that Pacific used stealth to reach and enter the greenhouse.
{¶ 38} The trial court also could have reasonably concluded that Pacific entered the greenhouse by force. Wang testified that he had secured the openings to the greenhouse buildings with plywood and “ma[de] sure that the accesses were basically
B. Trespass
{¶ 39} Pacific next claims that the State failed to establish that he trespassed on the greenhouse property. Specifically, Pacific asserts that a limited liability company was the actual owner of the property and that there was no evidence that Wang had authority to act on behalf of that company. He thus argues that the State failed to establish that he acted without privilege or permission when he entered the greenhouse.
{¶ 40} For purposes of Pacific’s offense, trespass means “knowingly entering or remaining on the land or premises of another, without a privilege or permission to be there.” State v. Baker, 2016-Ohio-315, 58 N.E.3d 498, ¶ 21 (2d Dist.), citing
{¶ 41} The State addressed the trespass element of breaking and entering through the testimony of Wang and Slater. Wang testified that he purchased the greenhouse property in 2004, and the property was listed for sale at the time of trial. Wang had not operated a commercial nursery on the property. Although Wang lived in California, he
{¶ 42} During her testimony, Slater identified Wang as the owner of the greenhouse property. When asked if she had met the owner of the greenhouse property, she responded that she had reached out to Wang after seeing several people taking items from the greenhouse property. Wang had told Slater that he would come to look at the property, and he advised her to call the police if she saw anyone else taking items from the greenhouse. Slater testified that she called the police several times and she contacted Wang when the police caught the people who were there.
{¶ 43} Construing the evidence in the light most favorable to the State, there was sufficient evidence that Wang was the owner of the property, that he had not granted permission to Pacific to enter the greenhouse and take things, and that Pacific was not otherwise privileged to enter and remain on the premises. In addition, the State’s evidence regarding how Pacific entered the property was sufficient to establish that Pacific acted knowingly when he entered and remained at the greenhouse.
{¶ 44} At trial, Pacific offered two tax records for the nursery property (Def. Ex. C & D). Both documents identified the owner of 5335 Germantown Pike as Germantown Pike Investment Properties LLC. Pacific argues that Ohio law is “clear that there are
{¶ 45} Wang was not asked about Germantown Pike Investment Properties LLC, and he did not testify as to his status with that company. However, Defense Exhibit C, a printout of “master information” for 5335 Germantown Pike from the Montgomery County Treasurer’s website, indicated that tax-related mailings were to be sent to “Germantown Pike Investment Properties LLC c/o Donald Wang” at Wang’s address in California. Moreover, Wang expressly testified that he owned the property located at 5335 Germantown Pike, that he visited the property many times, that he performed “clean-up” work at the property and secured it, that he communicated with Slater about unauthorized entries onto the premises, and that he paid taxes on the property. The trial court could have reasonably concluded that Wang was lawfully acting on behalf of the limited liability company in performing these actions and that he also had authority to grant or deny permission to be on the nursery property. The trial court’s conclusion that Pacific trespassed when he entered the greenhouse was neither based on insufficient evidence nor against the manifest weight of the evidence.
C. Unoccupied Structure
{¶ 46} Pacific next argues that the State failed to establish that he trespassed into an “unoccupied structure.”
{¶ 47} The phrase “unoccupied structure” is not defined in
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.
(2) At the time, it is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.
(3) At the time, it is specially adapted for the overnight accommodation of any person, whether or not any person is actually present.
(4) At the time, any person is present or likely to be present in it.
{¶ 48} The State’s evidence established that the structure at issue was a former commercial greenhouse. The property was in disrepair, and there was no ongoing business being conducted at the location. Pacific presented substantial evidence that vines and other vegetation were growing in and around the greenhouse, that portions of the building were missing its roof, and that some windows were missing. However, the descriptions of the property provided by the State’s witnesses and the photographs of the property show that the greenhouse remained a structure. The greenhouse does not meet any of the definitions of an occupied structure. The trial court thus reasonably concluded that the greenhouse constituted an “unoccupied structure” within the meaning
D. Theft or Felony Offense
{¶ 49} Finally, Pacific argues that the State failed to present evidence of the value of any property related to an alleged theft offense, and therefore the State failed to establish that he was present at the property with the purpose to commit a felony.
{¶ 50} Pacific was found guilty of committing breaking and entering in violation of
{¶ 51} In this case, the State’s evidence supported a conclusion that Pacific entered the greenhouse to commit petty theft, in violation of
{¶ 52} The trial court did not err in denying Pacific’s
V. Discrepancy in Judgment Entry
{¶ 53} In his fifth assignment of error, Pacific raises that there is a discrepancy between the sentence orally imposed and the court’s written judgment entry. Pacific asks that we modify the judgment entry to reflect that he was convicted of a fifth-degree felony and that his “alternate sentence” for violating community control is 12 months.
{¶ 54} It is well established that “a court speaks only through its journal entries, not through its oral pronouncements.” State v. Smith, 2d Dist. Montgomery No. 26217, 2015-Ohio-700, ¶ 10. See also, e.g., State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 39, citing State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 15. In addition, a trial court lacks authority to reconsider its own valid final judgment in a criminal case. E.g., State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 20; State ex rel. Dobson v. Handwork, 159 Ohio St.3d 442, 2020-Ohio-1069, 151 N.E.3d 613, ¶ 16.
{¶ 55} However, a nunc pro tunc entry is an appropriate vehicle for the trial court to correct clerical or typographical errors in a judgment entry. State v. Donley, 2017-Ohio-562, 85 N.E.3d 324, ¶ 103 (2d Dist.), citing
{¶ 56} At the sentencing hearing, the court said that Pacific was found guilty of breaking and entering, a felony of the fourth degree. However, a violation of
{¶ 57} With respect to the prison sentence that the court could impose should Pacific’s community control be revoked, the trial court orally informed Pacific that he had an alternate sentence of 18 months in prison, which is the maximum prison sentence for a felony of the fourth degree. See
{¶ 58} Pacific’s fifth assignment of error is overruled.
VI. Conclusion
{¶ 59} The trial court’s judgment will be affirmed.
TUCKER, P. J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Carlo C. McGinnis
Hon. Richard Skelton