No. 67610. | Ohio Ct. App. | Aug 4, 1995
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *512
Defendant-appellant Sean A. Waszily appeals from his bench trial conviction of one count of aggravated burglary in violation of R.C.
A review of the record on appeal indicates that only two witnesses testified at the trial, both of whom offered testimony on behalf of the prosecution. The first witness was Terri Savage, who stated the following: (1) she is twenty-six years old and unmarried; (2) on the date of the offense, June 5, 1993, she and her infant daughter resided at her parents' house at 144 West Grace Street, Bedford, Ohio; (3) Waszily is the father of her infant daughter; (4) on the date of the offense, the witness's parents were away for the weekend; (5) she and Waszily had telephone conversations earlier that day and had arranged for Waszily to come over to see the baby2; (6) Waszily called later that day to tell her that he would be late for the visit, so a new time for that day was agreed to by the couple; (7) as the day turned to evening, and Waszily had not appeared, the witness telephonically paged the defendant and told him that she was putting the *513 baby to bed soon, so Waszily said he would be over at another time later that evening; (8) this new time, approximately 10:00 p.m., also passed without Waszily appearing, so the witness again paged Waszily and told him that the baby was sleeping and to visit the baby the next day; (9) at approximately 11:00 to 11:30 p.m., Waszily, upset and angry, telephoned from a location down the street and said he wanted to come over to see the baby; (10) the witness, having been awakened from her sleeping, told him not to come over, it was too late in the evening; (11) at approximately 1:00 a.m., the witness was awakened by the knocking of Waszily at her side door; (12) speaking through a screened bathroom window, Waszily said that he wanted to come in to see the witness and the baby; (13) thinking that he had been drinking, the witness told him it was not a good idea to visit at that time of night and that his ranting and raving would wake the baby; (14) Waszily, being refused entry to the house, then put his fist through the bathroom window screen and entered the home through that window; (15) inside the home, Waszily was still upset and wanted to know where the baby was and whether she had another man in the house; (16) the couple argued and fought throughout the first floor of the structure, which awakened the baby, who was in an upstairs bedroom; (17) the couple went upstairs and retrieved the upset baby, and as Waszily calmed down in the kitchen, the witness threatened to call the police if he did not leave; (18) Waszily threatened to kill her if she called the police because he was on probation and he feared going back to jail; (19) some time later, Waszily's friend, Sam Trazino, who had been waiting in Waszily's car outside, came to the door and persuaded Waszily to leave the house; (20) as Waszily was leaving, the witness told him that he had better plan on fixing the screen because her parents would be mad, then locked the door and called the police; (21) the police arrived a short time later and could not locate the damaged bathroom window screen; (22) the entire episode of Waszily's visit and tirade took perhaps one hour; (23) the witness has had no contact with Waszily since that night; (24) Waszily stole nothing from the home; (25) the couple had been engaged for about one year at the time of the offense, but she gave him back the engagement ring on the night of the offense before he left the house; (26) neither she nor the baby was physically hurt in any way by Waszily, nor was there an attempt to hurt them by Waszily.
The second witness was city of Bedford Police Sergeant Robert Kohn, who testified as follows: (1) while on patrol on the date of the offense, he responded to a radio dispatch to the scene of the offense, arriving at the scene at 1:30 a.m.; (2) Savage told him what had occurred; (3) he searched the area and also radioed a broadcast of the suspect's identity and a description of the suspect's vehicle with license plate number; (4) a short time later, the suspect's vehicle was located, so the witness went to that location; (5) inside the suspect's vehicle the witness found the damaged bathroom window screen from Savage's house. *514
At the close of the prosecution's case the defense moved for acquittal pursuant to Crim.R. 29. This motion was denied.
The defense then rested subject to the admission into evidence of a series of letters between the couple. The defense then renewed its motion for acquittal. This motion was denied. The court then found Waszily guilty of the offense charged in the indictment.3
Following the preparation of a presentence investigation report, the court, on June 20, 1994, sentenced Waszily to a term of five to twenty-five years. This appeal presents two assignments of error.
In addressing an assignment based on sufficiency of the evidence, our review is based on whether a rational trier of fact, after viewing the evidence admitted at trial in a light most favorable to the prosecution, could have found the essential elements of the crime proven beyond a reasonable doubt. See State v. Jenks (1991),
In convicting Waszily of aggravated burglary, the trial court necessarily found the essential elements of the crime charged, to wit, that Waszily entered the home "with purpose to commit therein" a theft offense or a felony. See R.C.
The "theft" theory presented by the prosecution is clearly not supported by the evidence. By all indications, Waszily took the damaged screen to be repaired at the urging of Savage. Also, Savage testified that nothing was stolen from the house. Finally, the particular circumstances of this case support the contention that Waszily's purpose or intent at the moment of entering the structure was not *515
to steal a window screen but to visit his infant daughter and to remove any doubt from his mind that Savage was sleeping alone that night. See State v. Flowers (1984),
We also conclude that the evidence does not support a finding that Waszily had the purpose to commit a felony at the moment he entered the dwelling. Again, at the moment he entered the dwelling through the bathroom window, Waszily's intent, as demonstrated by the uncontested testimony of Savage, was to see his baby daughter and to see if his fiance was sleeping with another man. Threatening Savage with death should she call the police and restraining her liberty were not contemplated by Waszily at the moment he pulled his body through the window; rather, these reprehensible intentions and actions manifested themselves subsequent to the entry of the dwelling.
As all the essential elements of the charged offense have failed to have been demonstrated, the conviction for the offense of aggravated burglary is necessarily vacated.4
The first assignment of error is sustained.
In this assignment, appellant argues that the indictment on the charged offense, aggravated burglary, was vague in failing to provide information as to which element, a theft or a felony, Waszily had the purpose to commit, thereby providing inadequate notice of the charges he would be required to defend.
The one-count indictment in this case for aggravated burglary in violation of R.C.
"* * * [Defendant] unlawfully and by force, stealth, or deception, trespassed in an occupied structure as defined in Section
"SPECIFICATION ONE: (Violence)
"The Grand Jurors further find and specify that during the commission of the offense, the offender caused physical harm to Terri Savage."
Quite clearly, the indictment language tracked the language of the statute, which is allowed and has been held to provide adequate notice of the elements of the charged offense. State v.Murphy (1992),
As a subargument in this assignment, appellant argues that the bill of particulars did not give him fair notice of the specific charges, theft or felony, which formed the basis for the indictment. A reading of the bill of particulars in this case reflects a reiteration of the indictment with the addition of the date, time and location of the offense.
Appellant's understanding of the purpose of a bill of particulars is flawed. A bill of particulars' purpose is to "particularize the conduct of the accused alleged to constitute the charged offense." State v. Sellards (1985),
The second assignment of error is overruled.
The judgment is affirmed in part and reversed in part, the conviction is vacated, and defendant is discharged. The trial court is further ordered to take the necessary steps to effect the release of the appellant from prison.
Judgment accordingly.
PORTER, J., concurs.
NUGENT, J., dissents.
"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section
"* * *
"(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present." (Emphasis added.)
The pertinent language of App.R. 12(B), which authorizes this discretionary power we exercise in this majority opinion, provides:
"When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered [in this case, the acquittal on the offense of aggravated burglary] or remand the case to the court with instructions to render such judgment or final order." (Emphasis added.)
Dissenting Opinion
While I agree with the majority of this court in the disposition set forth in Part II of the opinion, I respectfully dissent from the majority's decision to reverse appellant's conviction set forth in Part I.
After a thorough review of the record before this court, I believe that the trial court did not err in finding that the evidence presented before it proved beyond a reasonable doubt that appellant committed all the essential elements of aggravated burglary as defined in R.C
Of utmost importance in the majority's decision is the finding that the evidence presented in the instant case does not constitute aggravated burglary as defined in R.C.
Therefore, under the facts of the present case, I would affirm the verdict of the trial court. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether the evidence, if believed, would convince the average mind of the defendant's guilt beyond 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 essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991),
Pursuant to my belief that the purpose element of R.C.
However, the majority has found that the evidence does not support a finding that appellant had the purpose to commit a theft offense or felony as required by R.C.
"Neither the parties nor the trial court requested at trial any potential lesser included offenses to the charged offense of aggravated burglary, such as burglary, R.C.
As previously stated, I believe the evidence presented was sufficient for the trial court to find that the appellant had the "purpose" required for a conviction pursuant to R.C.
An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other, (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense. State v. Deem (1988),
In the present case, even if one agrees with the majority and finds that the appellant did not enter the home with the requisite "purpose" to warrant a conviction for aggravated burglary, the facts, as outlined in the majority opinion and admitted in appellant's brief, clearly warrant a conviction for burglary.
Again, it must be stressed that the present case was a bench trial; therefore, the majority's concern about the trial court's failure to mention lesser included offenses is misplaced. Because the present case was a bench trial, none of the typical safeguards regarding the giving of jury instructions on lesser included offenses is pertinent. See, for example, Deem, supra;State v. Thomas (1988),
"[I]f evidence tending to prove a lesser included offense is present and a jury is inhibited by the charge from finding defendant guilty thereof, the collective *520 conscience of that body may too easily be disposed to fabricate the elements of the crime charged in the indictment and to find defendant guilty as charged rather than risk, by a verdict of acquittal, turning the malefactor loose upon a society grievously harmed by his act."
In its footnote 4, the majority stresses that its decision not to remand the present case is based upon the following factors: "(1) the parties at trial did not seek a lesser included offense; (2) the trial court, which is presumed to have acted with regularity and considered the potential lesser offenses available before ruling on the case, did not mention any lesser included offenses at trial and did not find the defendant guilty of any lesser offenses; (3) we do not wish to usurp the functions of the county prosecutor and the grand jury,particularly where more than one lesser offense may apply, for if they wish to have this defendant charged with one of the lesser offenses, that is their determination."
What the majority fails to consider is that, because the present case was a bench trial, the parties at trial were not required to seek a lesser offense. A criminal defendant is entitled to a charge on a lesser included offense only where the evidence warrants it. State v. Kidder (1987),
The trial court clearly knew the law and specifically found that the appellant forcibly trespassed in the permanent habitation of the Savages when persons were present with the "purpose to commit therein any theft offense or any felony." The majority states that the trial court "did not mention any lesser included offenses at trial and did not find the defendant guilty of any lesser included offenses." (See majority opinion, footnote 4). Of course not. The trial court found the defendant guilty of the greatest of all the property offenses: aggravated burglary. By finding the defendant guilty of the greater offense, the trial court necessarily found that all the elements of the lesser included offenses were present. Deem, supra. Proof which will support a conviction for a principal offense will invariably support a conviction on the lesser. State v. Nolton,supra.
In its opinion, the majority admits that the "lesser included offenses mentioned in footnote 3 would apply under the facts of this case." Notwithstanding this admission, the majority decides not to enter judgment against appellant on the lesser included offense of burglary, R.C.
"* * * When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered, or remand the cause to the court with instructions to render such judgment or final order." (Emphasis added.)
App.R. 12(B) clearly states that the appellate courtshall act in a certain manner upon reversal or remand. However, the majority states that it has chosen not to exercise the authority of App.R. 12(B) and then presents three reasons for its decision. It is my opinion that this failure to "render the judgment or final order that the trial court should have rendered" is a violation of the mandates expressed within App.R. 12(B).
App.R. 12(B) is clear in its language: "[Upon a finding] that the appellant is entitled to * * * judgment * * *, the court of appeals shall reverse the judgment * * * and render the judgment * * * that the trial court should have rendered, or remand the cause to the court with instructions to render such judgment." Nothing within App.R. 12(B) grants the discretionary power used by the majority herein.
The majority states that it acts in this manner because it does not "wish to usurp the functions of the county prosecutor and the grand jury, particularly where more than one lesser[included] offense may apply." (Emphasis added.) I find the majority's rationalization in this matter spurious. App.R. 12(B) clearly mandates that the role and function of the appellate court is to "render the judgment or final order that the trial court should have rendered." It is my opinion that the majority's decision not to enter an appropriate judgment is a clear avoidance of the mandated responsibilities set forth in App.R. 12(B). Ironically, the majority's decision acts to usurp nobody's function other than its own.
In essence, the majority holds that even though appellant's acts satisfied the statutory definition of burglary (R.C.
The majority holds that such an act by the appellate court would "usurp the functions of the county prosecutor and the grand jury." This assertion by the majority fails to properly consider the roles of those two entities. Neither the role of the county prosecutor nor that of the grand jury could possibly be usurped *522
if this court were to remand the case on a lesser included offense. See State v. Davis (1982),
While I agree that it is within the purview of the majority, upon review of the entire record, to find that the "purpose" element necessary for aggravated burglary did not exist beyond a reasonable doubt, I do not agree that it is within the purview of this court to simply ignore its statutory role and fail to enter a judgment based upon the undisputed facts.
The undisputed facts5 are as follows:
(1) Appellant did not reside at or own, nor was he welcome at, the home of Savage's parents at 144 West Grace Street, Bedford, Ohio.
(2) On the night of June 5, 1993, appellant came to the residence and demanded entry.
(3) At that time, appellant knew that Savage's home was occupied.
(4) After being denied entry, appellant "punched" the screen window and forcibly entered the home.
(5) Appellant refused to leave the home until he was ready to leave even though Savage repeatedly asked him to leave.
Appellant concedes that, at a minimum, his conduct amounted to trespassing on the land or premises of another. What both the majority and appellant ignore are the undisputed facts that the "premises of another" in which appellant forcibly trespassed were an occupied structure that was the permanent habitation of several persons who were present at the time of the forcible trespass.
It is my opinion that these facts, undisputed by the parties, clearly satisfy the statutory definition of burglary, pursuant to R.C.
"(A) No person, by force, stealth, or deception, shall do any of the following:
"* * *
"(3) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present."
Contrary to appellant's contentions, a review of the facts shows that the acts of appellant were not merely a criminal trespass; rather, appellant acted in a manner which clearly fulfills the greater offense of burglary. *523
Appellant knew he did not have the privilege to enter upon Savage's property. Moreover, it is undisputed that Savage expressly communicated to appellant that he was not welcome at her home. At the moment appellant remained on Savage's land,
after she expressly told him to leave, he at least committed a criminal trespass. Therefore, under the facts presented, all of the events leading up to appellant's "forcible entrance" into Savage's home at least constituted criminal trespass per R.C.
The majority agrees with these facts but refuses to remand appellant's conviction to the trial court for resentencing on the lesser included offense of burglary. I cannot speculate on the reasoning behind the majority's decision; however, the reasoning behind the imposition of a felony conviction for appellant's actions is clearly stated in the Committee Comment to H.B. No. 511, which states as follows:
"This section defines a lesser included offense to aggravated burglary, by employing the basic elements of the more serious offense, but without the specific elements of inflicting or threatening injury, or of being armed, or that the structure involved is a home. Even without the additional elements, theoffense is viewed as serious, because of the higher risk orpersonal harm involved in maliciously breaking and entering anoccupied, as opposed to an unoccupied, structure." (Emphasis added.)
It is my opinion that the failure of the majority to enter judgment against appellant for burglary, R.C.
Therefore, based on the foregoing, I would affirm the judgment of the trial court or, in the alternative, enter judgment against appellant for burglary, R.C.