State v. WilliamsState v. Williams
JUDGMENT: AFFIRMED
JOURNALIZED:
ATTORNEYS FOR APPELLANT
Robert Tobik
Cuyahoga County Public Defender
Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Richard Mendelsohn
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Angelo Williams appeals his convictions for burglary, vandalism, and possession of criminal tools. He assigns the following error for our review:
“I. Appellant was deprived of his liberty without due process of law, where his convictions for burglary, vandalism, and possession of criminal tools were against the manifest weight of the evidence.”
{¶ 2} Having reviewed the record and pertinent law, we affirm Williams‘s convictions. The apposite facts follow.
Facts
{¶ 3} Williams was indicted for one count each of burglary, vandalism, and possession of criminal tools. He waived his right to a jury trial; the matter proceeded before the bench.
{¶ 4} On January 11, 2008, Officer William Feador and his partner responded to a radio broadcast that a break-in was occurring at 1405 East 85th Street in Cleveland, Ohio. Upon arriving at the scene, the officers noticed the back door was off its hinges; they heard noises emanating from the basement. Officer Feador yelled, “Police.”
{¶ 6} Upon returning to the car, Officer Feador questioned the men about their identities. In response, Williams stated that he had only been in the house a few minutes and had just started cutting the wires. No one had lived in the house since September 18, 2007; however, the property was owned by an out-of-state entity. The property was managed by Transactional Realty, which was responsible for checking the property once a week and allowing realtors access to the property. The broker from Transactional Realty testified that photos were taken of the house once a week to prove to the owner that the management contract was being complied with. The previous periodic checks revealed no damage to the house. Although the broker had never physically been to the home, the records indicated that prior to the vandalism, the house
{¶ 7} Williams testified that he accompanied his co-defendant, Glenn Kellogg, to the house. Kellogg did not tell him where they were going. He stated that Kellogg went into the house and that the only reason he followed him inside was to tell Kellogg to leave. He denied telling the officers that he cut the wires and claimed the door was already off its hinges when he arrived.
{¶ 8} The trial court found Williams guilty of burglary, vandalism, and possession of criminal tools. The court sentenced Williams to 18 months of community control.
Manifest Weight of the Evidence
{¶ 9} In his sole assigned error, Williams contends his convictions were against the manifest weight of the evidence. We disagree.
{¶ 10} At the outset, we note that Williams, by arguing that the state failed to prove the elements of burglary and vandalism, is presenting a sufficiency of the evidence argument, not a manifest weight of the evidence argument. In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-22021, the Ohio Supreme Court
“The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. In Thompkins, the court distinguished between sufficiency of the evidence and manifest weight of the evidence, finding that these concepts differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence‘s effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose evidence is more persuasive-the state‘s or the defendant‘s? We went on to hold that although there may be sufficient evidence to support a judgment, it could nevertheless be against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.”
Burglary
{¶ 11} A conviction for burglary pursuant to
{¶ 12} We conclude sufficient evidence was presented showing Williams entered the house with stealth. “Stealth” has been defined as “any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within a residence of another without permission.”2 Williams contends because no witnesses to the break-in testified, there was no evidence regarding how he entered the house. Although there was no testimony as to how Williams gained entrance to house, circumstantial evidence supports the inference he gained entrance by stealth. Williams and his co-defendant did not attempt to gain entrance via the front or side doors. Instead, the door in the back of the house was forced off its hinges. Although we cannot discern whether Williams or his co-defendant forced the door open, there is no question that entry was made in the back of the home to prevent detection by neighbors. Because circumstantial evidence is given the same weight as direct evidence, sufficient evidence was presented that Williams committed the burglary with stealth.3
“‘Occupied Structure’ means any house * * * to which 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.”
{¶ 14} Williams contends the house was not occupied because no one had lived there for over four months; however, the relevant question in determining if a structure is “occupied” concerns the residential purpose of the dwelling, rather than the presence or absence of an occupant.4 “Thus, a structure which is dedicated and intended for residential use, and which is not presently occupied as a person‘s habitation, but, which has neither
{¶ 15} Here, although no one had been living in the house for over four months, the house was not abandoned. Despite its vacancy, it still had a residential purpose. In fact, it was owned by an out-of-state entity that was selling the property as a residential dwelling. Given these facts, we find that the building was an “occupied structure” within the meaning of
Vandalism
{¶ 16} Williams also contends that no evidence was presented regarding the incurred cost of the damages caused by the vandalism. We disagree.
{¶ 17} Williams was convicted of vandalism pursuant to
“(A) No person shall knowingly cause serious physical harm to an occupied structure or any of its contents.”
{¶ 18} Therefore, the state had to prove serious physical harm occurred as an element of the offense. The degree of the offense is determined based on the damage done to the property. Pursuant to
{¶ 19} When computing the value or amount of physical harm involved for purposes of determining whether a violation of
“(3) If the property is not covered under division (B)(1) of this section and the physical harm is such that the property cannot be restored substantially to is former condition, the value of the property, * * * in the case of real property * * * is the difference in the fair market value of the property immediately before and immediately after the offense.”
{¶ 20} The staff notes to
{¶ 21} Photographs depicting the damage to the property were entered into evidence. The person who took the photographs did not testify at trial, but Officer Feador testified the photographs accurately portrayed the condition of the property. The photographs depicted numerous wires
{¶ 22} The real estate broker did not personally go the property to view the damage; however, as the broker for the property, he did have knowledge as to the value of the property. He testified that the value of the property prior to the vandalism was $9,000 and that because the electrical and plumbing systems were damaged, it was now worthless. Given the fact the original value of the home was low, it was not outside the realm of reason that gutting the electrical and plumbing systems would make the house worthless. Because the value of the home was so low, it would not be worth repairing the wiring and plumbing. Therefore, we conclude sufficient evidence was presented that the damage exceeded $5,000 dollars.
Criminal Tools
{¶ 23} Williams contends his criminal possession conviction was against the manifest weight of the evidence because he did not use or bring the tools onto the premises. Officer Feador, however, testified that Williams told him that he had just “just started to cut the wires” when the officer arrived, indicating that Williams did use the tools. Although Williams denies he told the officers he “cut the wires,” resolving which witness was
Judgment affirmed.
It is ordered that appellee recover of appellant its 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. The defendant‘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
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MARY J. BOYLE, J., and
LARRY A. JONES, J., CONCUR.