STATE OF OHIO v. WILLIAM WESEMANN
C.A. No. 25908
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 25, 2012
[Cite as State v. Wesemann, 2012-Ohio-247.]
WHITMORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 08 06 1914
{1} Defendant-Appellant, William Wesemann, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{2} Wesemann and the victim in this case, Melissa Riccardi, had a lengthy, tumultuous relationship with one another and two children, born in 2001 and 2004, respectively. The two lived in several different states ovеr the years, but often separated for periods of time due to Wesemann‘s behavior. In 2000, Wesemann was convicted of assaulting Riccardi while the two lived in Pennsylvania. They later reconciled and moved to South Carolina, but Riccardi ultimately decided to end the relationship and move baсk to Ohio with their two children. Wesemann and Riccardi remained in phone contact after she left South Carolina. Yet, Riccardi never told Wesemann where she lived because she was afraid of him and did not want him to come near her.
{4} On May 22, 2008, the police came to the apartment after receiving a 911 call from Riccardi. Riccardi informed the police that she and Wesemann had argued over the use of hеr cell phone as well as some other matters. During the encounter, Wesemann grabbed and twisted Riccardi‘s wrist and threw her cell phone at her. He also threatened to physically harm her father and her cousin if she called them for help. Because Wesemann fled the apartment when thе police arrived, however, they were unable to locate him.
{5} After the incident on May 22, 2008, Riccardi took her two children to a hotel and remained there for about a week. She visited the apartment several times, but did not want to stay there because she feared Wesemann would return. Mеanwhile, Wesemann contacted his sister to try to gain access to the apartment and reclaim his few belongings. Wesemann‘s sister, Emily Wesemann, refused to help him, but learned from Wesemann a few days later that he had gotten his belongings. Emily then phoned Riccardi and her family to inform them that Wesemann had gоtten his things. When Riccardi learned what Wesemann had said, she immediately phoned the police and asked for an escort to go to her apartment with her. Riccardi and the police went to the apartment on May 27, 2008, and discovered that it had been extensively damaged and several of Riccardi‘s possessions were missing.
{6} On June 19, 2008, a grand jury indicted Wesemann on the following counts: (1) burglary, in violation of
{7} Wesemann appealed from his convictions, and this Court vacated his sentence and remanded the matter due to a post-release control error. State v. Wesemann, 9th Dist. No. 24588, 2009-Ohio-5168. Upon remand, the trial court properly advised Wesemann of post-release control and issued a new sentencing entry. Wesemann now appeals from his convictions and raises onе assignment of error for our review.
II
Assignment of Error
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT-APPELLANT WATKINS’ MOTION FIR (sic) JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29.”
{8} In his sole assignment of error, Wesemann argues that the trial court erred by denying his
{9} Initially, we note that the body of Wesemann‘s brief contains a limited argument that his convictions are against the manifest weight of the evidence. His captioned assignment of error, however, only addresses sufficiency and the crux of his argument sounds in sufficiency,
{10} “A review of a
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such 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 hаve found the essential elements of the crime proven beyond a reasonable doubt. Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
No person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person * * * is present or likely to be present, with purpose to commit in the habitation any criminal offense.
R.C. 2911.12(A)(2) .
“A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”
{11} “No person shall cause, or create a substantial risk of physical harm to any property of another without the other person‘s consent * * * [k]nowingly, by any means.”
{12}
(A) No person shall knowingly cause or attempt to causе physical harm to a family or household member.
* * *
(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.
Domestic violence will be elevated to a felony of the fourth degree if an offender has a qualifying prior conviction.
{13} Riccardi testified that Wesemann stayed with her for several months before the incidents that occurred in May 2008. Riccardi explained that she did not want Wesemann to live with her, but would not force him to leave because she was afraid for herself and her children. She testified that she was the only person on the lease at her apartment, never gave Wesemann a key to the apartment, and always locked the apartment when she was not at home. Riccardi stated that she was generally home all day and all evening, so Wesemann had access to the apartment while she was there.
{14} Riccardi testified that Wesemann grabbed and twisted her wrist on May 22, 2008, when the two had a fight over her cell phone. Wesemann caused Riccardi to drop the phone and later threw it at her. He also threatened to hurt several of her family members if she tried to call for help. After Wesemann hurt Riccardi, he went upstairs to yell at the children. At that point,
{15} The State introduced a certified copy of Wesemann‘s 2000 conviction for simple assault in Pennsylvania and relied upon the prior conviction to elevate the offense level of Wesemann‘s domestic violence charge. See
{16} A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon;
(3) attempts by physical menace to put another in fear of imminent serious bodily injury * * *.
18 Pa.C.S.A. § 2701(a)(1) -(3).
Wesemann argues that his fourth-degree felony conviction is based on insufficient evidence because the State failed to prove that simple assault is substantially similar to domestic violence. Yet, Wesemann does not offer any casе law in support of his contention that simple assault is not substantially similar to domestic violence.
{17} With regard to his criminal damaging conviction, Wesemann argues that it is based on insufficient evidence because the State failed tо prove the cause of the damage to Riccardi‘s apartment. Riccardi, however, testified that the apartment was in fine condition when she visited it a few days before May 27, 2008, and that she had locked the apartment the last time she was there. Leslie Horton, Riccardi‘s neighbor, testified that she saw Wesemann entering and exiting the apartment in the afternoon “a day or so” before the police came on May 27th. At that time, Horton saw Wesemann remove a couch from the apartment with the help of some other people and throw it out in a dumpster across the streеt. The police also found a blood stain in the apartment, and the Bureau of Criminal Identification and Investigation confirmed that Wesemann could not be eliminated as the source of the blood. Further, Wesemann called his sister and told her he had retrieved his possessions. To retrieve his possessions, it would have been necessary for Wesemann to gain access to Riccardi‘s apartment.
{18} The State provided circumstantial evidence here that Wesemann damaged Riccardi‘s apartment. “The Ohio Supreme Court has held that ‘[c]ircumstantial evidence and direct evidence inherently possess the same probative value * * *‘” State v. Cook, 9th Dist. No. 25573, 2011-Ohio-4391, ¶ 16, quoting State v. Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Viewing the evidence in a light most favorable to the State, it was reasonable for the jury to conclude that Wesemann caused the damage to Riccardi‘s apartment. Thus, Wesemann‘s criminal damaging conviction is not based on insufficient еvidence.
{19} Finally, Wesemann argues that his burglary conviction is based on insufficient evidence because the State failed to prove that: (1) he trespassed in the apartment where he had
{20} The evidence also supports the conclusion that it was likely someone would be present when Wesemann entered the apartment. Riccardi testified that she usually was home every day and every night. Furthermore, she had two small children, and the vast majority of their belongings remained at the apartment. Although she stayed at a hotel the week that Wesemann entered her apartment, Riccardi testified that she went back to the apartment several times during the week to pick up additional items that she needed. Moreover, it is unclеar that Wesemann knew Riccardi was staying at a hotel instead of at her apartment. A rational tier of fact, therefore, could have found that it was likely someone would be present when Wesemann entered the apartment.
{21} Further, a rational trier of fact could have concluded that the State presented sufficient evidence of Wesemann‘s intent to commit a criminal act. Riccardi testified that Wesemann caused an extensive amount of damage to her apartment. Horton, Riccardi‘s neighbor, also testified that she saw Wesemann throw Riccardi‘s couch into a dumpster across the street from her apartment. Viewing the evidence in a light most favorable to the State, the
{22} The record supports the conclusion that a rationаl trier of fact could have found the elements of burglary, criminal damaging, and domestic violence were proven beyond a reasonable doubt. Consequently, Wesemann‘s convictions are not based on insufficient evidence and his sole assignment of error is overruled.
III
{23} Wesemann‘s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR
APPEARANCES:
RHONDA L. KOTNIK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.