State v. SullivanState v. Sullivan
PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND VACATED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-525306
RELEASED AND JOURNALIZED: November 4, 2010
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Diane Smilanick
Catana Deskins
Asst. County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Vincent Sullivan appeals his conviction for vandalism and assigns the following two errors for our review:
I. The defendant‘s conviction of vandalism was not supported by sufficient evidence, in violation of defendant‘s right to due process of law under Article I,
Section 14 of thе Ohio Constitution, and the 14th Amendment to the United States Constitution. II. The defendant was denied effective assistance of counsel, in violation of defendant‘s right to counsel under Article I, Section 10 of the Ohio Constitution, and the 6th and 14th Amendments to the United States Constitution.
{¶ 2} Having reviewed the record and relevant law, we reverse and vacate Sullivan‘s conviction. The apposite facts follow.
{¶ 3} The Cuyahoga County Grand Jury indicted Sullivan for one count of felonious assault under
Facts
{¶ 4} During the early morning hours of June 8, 2009, a window at the Goodrich and Gannett Neighborhood Center was broken. The center is locatеd at 1400 East 55th Street in Cleveland and operates a licensed childcare center and also provides programs for senior citizens.
{¶ 6} At 4:00 a.m., Lee DeAngelis, the operations director of the center, received a call from the center‘s alarm company, informing him that there had been an attempted break-in at the center. When DeAngelis arrived at the scene around 4:45 a.m., he observed the damaged window. The size of thе window was approximately 3’ by 3’ and faced the parking lot. DeAngelis stayed at the scene for security reasons until staff arrived. He later called a company to replace the glass. The window was not repaired until two weeks later because the glass had to be ordered. However, in the meantime, the glass replacement company installed a wood covering where the window had been. The total cost of the repairs was approximately $571.
{¶ 7} The jury found Sullivan guilty of vandalism. The trial court sentenced him to nine months in prison.
Sufficiency of the Evidence
{¶ 9} The sufficiency of the evidence standard of review is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, syllabus as follows:
Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidencе is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.
{¶ 10} See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514 N.E.2d 394; State v. Davis (1988), 49 Ohio App.3d 109, 113, 550 N.E.2d 966.
{¶ 11} Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, in which the Ohio Supreme Court held:
An appellate court‘s function when reviewing the sufficiency of the evidence tо support a criminal
conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt bеyond 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 essentiаl elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)
{¶ 12}
(1) No person shall knowingly cause physical harm to property that is owned or possessed by another, when either of the following applies:
(a) * * *
(b) Regardless of the value of the property or the amount of damage done, the property or its equivalent is necessary in order for its owner or possessor to engage in the owner‘s or possessor‘s profession, business, trade, or occupation.
{¶ 13} In the instant case, there was no evidence presented that the window was necessаry for the center to conduct business. In fact, the evidence showed that the broken window had no effect on the center‘s ability to conduct business. A board was installed over the window to secure it until
{¶ 14} The Committee Comment to
Examples of this type of violation include rifling and scattering current case files of an attorney, damaging samples of a travеling salesman, or destroying a plumber‘s tools. When the property is merely used in its owner‘s or possessor‘s occupation, as opposed to its being necessary to carry on his ocсupation, then the value of the property or the amount of damage done must be $150 or more [the current requirement is $500 or more] for there to be a violation of this part of the section.
{¶ 15} Here, the evidence did not indicate the window was “necessary” for the center to operate. While securing the premises was a concern, once the wooden board was installed, security was no longer an issue.1
{¶ 17} This court in State v. Hart, Cuyahoga App. No. 79564, 2002-Ohio-1984 and State v. Hamley (2001), 142 Ohio App.3d 615, 756 N.E.2d 702, had the converse situation. That is, sufficient evidence was presented to support a conviction that the damaged property was “necеssary” to conduct business, but the evidence was not sufficient to support a conviction that the damage was in excess of $500. In those cases, we concluded that because the indictmеnt specifically recited the section of the vandalism statute that applied, and because the state did not seek to amend the indictment to refer to the other section, the dеfendant could not be convicted of the section not set forth in the indictment. Additionally, the trial court only instructed the jury on the section contained in the indictment.
{¶ 19} Due to our disposition of the first assigned error, the seсond assigned error is moot and need not be addressed.
Judgment is reversed and vacated.
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANN DYKE, J., DISSENTS (SEE ATTACHED DISSENTING OPINION.)
{¶ 20} I respectfully dissent. I would conclude that there is sufficient evidence to support the vandalism conviction. I would find that a rational jury could conclude that the window was “necessary in order for its owner or possessor to engage in the owner‘s or possessor‘s profession, business, trade or occupation,” under