STATE OF OHIO v. PHILLIP R. WASHINGTON
No. 100994
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 16, 2014
[Cite as State v. Washington, 2014-Ohio-4578.]
BEFORE: S. Gallagher, P.J., Rocco, J., and Kilbane, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-577815-A
Jaye M. Schlachet
Eric M. Levy
55 Public Square
Suite 1600
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant Phillip Washington appeals from his conviction of burglary, felony and misdemeanor theft, breaking and entering, and vandalism crimes. For the following reasons, we affirm.
{¶2} On the evening of August 31, 2013, Washington broke into three homes, causing damage to every building with the purpose of stealing copper. Two of the homes were vacant, but both were being renovated by purchasers intending to either sell or live in the house. Those two homes were identified with respect to the two burglary counts, along with the associated theft charges for actually removing copper fixtures. The third house, under construction and owned by the builder, was the subject of the felony breaking and entering, and felony vandalism charges. Washington was apprehended within feet of the home under construction. In that home, the damage caused by the break-in totaled $3,530, $1,000 of which was the cost to replace the copper plumbing.
{¶3} The police officers originally responded to a call from a concerned neighbor who reported seeing a white U-Haul van parked next to the home under construction and two males walk inside the house with flashlights. Upon the officers’ arrival, one of the males was seen exiting the house. None of the officers was able to apprehend the second offender, whom Washington identified as “Jimmy.” Washington was found in a prone position with his arms on the back of his head, four or five feet from the house. Washington was immediately detained and placed under arrest. A flashlight that was
{¶4} At the same time as Washington’s arrest, another officer checked the U-Haul van for occupants by peering through the windows. In the process, he saw garbage cans filled with scrap copper. The trash cans had city of Independence markings and were identifiable through serial numbers, linking Washington to two other homes undergoing renovations. The officer noted that the receptacles seemed suspicious in light of the fact that the van was parked in front the home being constructed. The city would not have issued those bins until the home was completed. Washington had the keys to the white U-Haul van, which turned out to be rented by Washington’s then live-in girlfriend. She testified that Washington used the van without her permission.
{¶5} Washington elected for a bench trial. As related to the vacant homes, the trial court found Washington guilty of two counts of burglary in violation of
{¶7} A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he 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 reasonаble doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. We will address each crime in turn.
{¶8} Washington was found guilty of felony vandalism in violation of
{¶9} The home in question was under construction and owned by the construction company. The rеpresentative testified that the damage delayed the project for over three weeks. Washington claims that because the construction of the home was only impeded and the company was able to proceed, that the evidence was insufficient to support the charge that the property damaged was necessary to the owner’s profession.
{¶10} In support, Washington relies on two cases, In re J.A.J., 8th Dist. Cuyahoga No. 96506, 2011-Ohio-4828, and State v. Sullivan, 8th Dist. Cuyahoga No. 94269, 2010-Ohio-5357. In the former case, several individuals vandalized an elementary school’s outdoor learning lab over a period of several days, destroying birdhouses and benches, and by painting obscene images on buildings and signs. In re J.A.J. at ¶ 2. The defendant was charged with felony vandalism based on the property being necessary to the owners’ profession. However, the principal indicated that the lab was rendered unusable because of the obscene nature of the graffiti. Id. at ¶ 15. There was no evidence indiсating that the defendant had participated in the graffiti, only that he had damaged a bench and a birdhouse. Id. The court held that J.A.J.’s actions did not
{¶11} In Sullivan, this court reached a similar conclusion. In that case, this court reversed a conviction, again based on
{¶12} Both cases are inapplicable in light of the facts as presented at Washington’s trial. The owner of the home under construction specifically testified to a three-week delay to replace the damaged property. The current case is akin to State v. Glass, 10th Dist. Franklin No. 11AP-890, 2012-Ohio-2993, in which the Tenth District upheld a similar conviction based upon evidence of a defendant breaking a seal over a residential electric meter owned by the city. Id. at ¶ 36. Although the evidence demonstrated that the seal was not necessary for the provision of electricity to the residence, the city could still provide electricity to the residence, the court held that the seal was necessary to protect the meter from harm or unauthorized removal, and to prevent people from stealing electricity from the city. Id. at ¶ 37. The court concluded that the seal was therefore necessary in order for the city to conduct its overall business of providing electricity to the public, and the state proved a violation of
{¶13} In this case, the contractor’s occupation is building a complete home. This is not a case where the contractor is merely providing services to an owner of the property. The owner is the builder, and thus, has an interest in the timely completion of the project. Although the damage did frustrate, but did not preclude, the ability to continue construction of the home, the property was necessary to the owner’s ability to conduct its business of providing a completed product to the ultimate purchaser. In making the repairs, the construction of the final product was delayed. Washington caused damage, delaying the construction of the home by three weeks and, by implication, the property damaged, the home being sold, was necessary to the owner’s profession. We overrule Washingtоn’s arguments to the contrary.
{¶14} Washington was found guilty of theft in violation of
{¶16} In this case, the owner of the property, relevant to the felony theft charge, testified that it would cost $1,000 to replace the plumbing stolen from the home. The additional repairs to fix all the damage totaled over $3,500. Washington’s argument that it was impossible to find him guilty of the felony theft is therefore without merit. The
{¶17} Finally, as it relates to Washington’s sufficiency of the evidence arguments, he claims that there was insufficient evidence to convict him of the burglary charges relating to the two vacant homes. Washington claims that the state failed to introduce any evidence that the homes were permanent or temporary habitations for the purposes of the burglary statute. We find no merit to his claims.
{¶18} Thе trial court found Washington guilty of two counts of burglary in violation of
{¶20} “Dwelling” is otherwise defined in the Ohio Revised Code and generally, it must be presumed the legislature is aware of other provisions of the Revised Code when drafting statutes. State v. Maurer, 15 Ohio St.3d 239, 254, 473 N.E.2d 768 (1984). A “dwelling” is “a building or conveyance of any kind that has a roof over it and that is designed to be occupied by people lodging in the building or conveyance at night * * *.” (Emphasis added.)
{¶21} Washington’s sole argument relies on State v. Lisiewski, 20 Ohio St.2d 20, 252 N.E.2d 168 (1969), in which the Ohio Supreme Court resolved the difference between an inhabited and uninhabited dwelling. Inasmuch as the Revised Code no longer distinguished crimes based on the inhabited nature of a dwelling, Washington’s reliance is misplaced. The Ohio Supreme Court, however, noted that a dwelling-house is “a building which by the mode of its construction or reсonstruction is suitable for a habitation.” Id. at 22. Again, the focus was on the design of the building, and not the status of the current occupation.
{¶22} In this case, both of the homes relating to the burglary charges were dwellings, and thus habitations, for the purposes of
{¶23} In his fourth assignment of error, Washington claims that his trial counsel rendered ineffective assistance by failing to file a motion to suppress evidence in violation of Washington’s constitutional rights.
{¶24} In order to substantiate a claim of ineffective assistance of counsel, the appellant must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny of defense counsel’s performance must be highly deferential. Strickland at 689. In Ohio, there is a presumption that a properly licensed attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. The defendant has the burden of proving his counsel rendered ineffective assistance. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223.
{¶26} In his fifth and sixth assignments of error, Washington advances similar arguments, whether the theft offenses, which supplied thе criminal purpose element of the burglary offenses, and the vandalism offense, supplying the criminal intent for the breaking and entering offense, should have merged with the respective burglary and breaking and entering offenses for the purposes of sentencing. In other words, Washington believes the trial court should have only sentenced him on two burglary and one breaking and entering charges, rather than all six counts. We find no merit to Washington’s claim.
{¶27} When a defendant’s conduct results in the commission of two or more offenses, that conduct can be charged separately, but the defendant can only be convicted and sentenced for one offense.
{¶28} This court has repeatedly held that once a defendant entered the structure with an intent to commit a crime inside, the crime of burglary was complete. State v. Richardson, 8th Dist. Cuyahoga No. 100115, 2014-Ohio-2055, ¶ 32, quoting State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-Ohio-3051, ¶ 80. Any crimes actually committed once the offender gained acсess were committed with separate conduct. Id. The same rationale applies with respect to the vandalism and breaking and entering counts. The breaking and entering occurred the moment Washington trespassed with a criminal purpose. Any actual offenses committed after the burglary and breaking and entering was separate conduct. See State v. Ballard, 8th Dist. Cuyahoga No. 98355, 2013-Ohio-373 (“when one offense was complete before another occurеd, the two offenses are committed separately“); State v. Maddox, 8th Dist. Cuyahoga No. 96885, 2012-Ohio-478 (noting the difference between the vandalism damage caused by the act of breaking and entering and the damage caused after the breaking and entering was completed for the purposes of the merger analysis). The theft and vandalism acts themselves were not actually necessary to committing the burglary and breaking and entering crimes, and therefore, it cannot be said that the same conduct resulted in the
{¶29} We note, however, that this issue may be in need of clarification by the legislature or the Ohio Supreme Court. The burglary statute expressly provides that an offender need only have the purpose to commit a criminal offense to accompany the trespass.
{¶30} For the foregoing reasons, Washington’s conviction is affirmed.
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 dеfendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR