State v. Watkins , 2012 Ohio 4279 ( 2012 )

[Cite as State v. Watkins, 2012-Ohio-4279.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97783
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DALONTE L. WATKINS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549984
BEFORE: Kilbane, J., Rocco, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEY FOR APPELLANT
Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Mark J. Mahoney
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Dalonte Watkins (“Watkins”), appeals his burglary
conviction. Finding no merit to the appeal, we affirm.
{¶2} In May 2011, Watkins was charged in a five-count indictment. Count 1
charged him with burglary, Count 2 charged him with theft, Count 3 charged him with
vandalism, Count 4 charged him with possessing criminal tools and carried a furthermore
clause, and Count 5 charged him with criminal damaging. The indictment identified
Jillian Edgell (“Edgell”) as the victim. In December 2011, the matter proceeded to a jury
trial, at which the following evidence was adduced.
{¶3} At approximately 2:45 a.m. on April 28, 2011, Lakewood police officers,
Patrick Mullen (“Mullen”) and Kevin Jones (“Jones”), responded to a call that two males
dressed in dark clothing were riding bicycles and looking into cars on Lakeland Avenue
in Lakewood, Ohio. When the officers arrived on scene, they observed both males
carrying duffle bags and riding bicycles in the middle of the street. Mullen stopped his
police cruiser right next to one of the males, whom he later identified as Watkins. He
instructed Watkins to stop and asked to speak with him. Watkins got off the bicycle and
placed the two duffle bags he was carrying on the ground. As Mullen exited his vehicle
to approach Watkins, Watkins ran away. Mullen pursued him through the yards of the
homes on Lakeland Avenue. While chasing after Watkins, Mullen got caught on a fence
and was unable to apprehend him.
{¶4} Meanwhile, Jones stopped the other male, later identified as P.T. Jones
exited his police cruiser and ran after P.T. Jones grabbed P.T. off the bicycle and began
to question him. P.T. was carrying one duffle bag. The bag was open and Jones
observed some video games inside the bag. When Jones asked P.T. who the video games
belonged to, he “fumbled over his words” and replied, “oh, this is my cousin’s stuff.”
Jones then heard Mullen radio for assistance, so he placed P.T. under arrest for a curfew
violation and assisted Mullen with the search for Watkins.1
{¶5} The police found toy handcuffs, a Nintendo Wii game console, three
Nintendo Wii game controllers, three Nintendo Wii video games, a PlayStation 3 game
console, Sharpie markers, and a silver hammer in the bag P.T. was carrying. The police
also found a flashlight, a lighter, a glass pipe used to smoke marijuana, two Nintendo Wii
game controllers, a faceplate from a car stereo, a diamond bracelet, a pair of diamond
earrings, and two gold rings in P.T.’s pockets. In the bags carried by Watkins, the
officers found a laptop, MP3 player, several pairs of sunglasses, an Xbox 360 game
console, and some video games.
{¶6} P.T. told the officers that the property came from a house located at 1503
Lakeland Avenue, which was approximately six houses from where Watkins and P.T.
were stopped by the police. When the officers arrived at the 1503 Lakeland Avenue,
1P.T. was 17 years old at the time of the incident.
which is Edgell’s residence, they observed a vehicle in the driveway with a broken
window. They also observed that the back door was forced open with the glass broken
out of it. On the inside, the house was in complete disarray, with cabinets thrown to the
floor, broken glass, and clothes everywhere. While the officers were inside, Raymond
Metz (“Metz”), Edgell’s grandfather, arrived at the house. Metz was looking after the
house while Edgell was on vacation with her children and her sister, Ashley Edgell
(“Ashley”). He advised the police that Edgell called him and asked him to check on the
house.
{¶7} Edgell asked her grandfather to check on the house because Ashley
received a call sometime between 2:00 a.m. to 3:00 a.m. from her nephew’s cell phone,
which Edgell left at home. They suspected Watkins was the person who called from the
cell phone. Watkins and Ashley had previously dated for three years. During that time,
Watkins had been at Edgell’s house several times. Ashley and Watkins would babysit
Edgell’s children and sometimes Watkins would spend the night at her house. Ashley
told Watkins that Edgell and her family were going on vacation. However, shortly
before leaving for vacation, Ashley and Watkins ended their relationship.
{¶8} After his arrest, P.T. was transported to the Lakewood Police Department.
P.T. told the police that he and Watkins broke into Edgell’s home and stole various items.
P.T. testified that he met Watkins through his cousin, who was Watkins’s girlfriend at
the time of trial. P.T. further testified that Watkins called him and asked to meet him at
the corner store on West 85th Street in Cleveland. Watkins told P.T. that they were
going to rob a house in Lakewood. P.T. testified that when they got to the house, which
P.T. later found out was Edgell’s residence, Watkins used a key to get into the door.
Watkins later broke the glass on the door to make it look like a robbery. Once inside,
P.T. and Watkins went their separate ways and began stealing various items. P.T.
testified that he broke the window of Edgell’s car with a hammer he took from inside the
house. After approximately 20 minutes, they left the house and took off on two bicycles
that were in the garage. As they started riding the bicycles down the street, they were
stopped by Mullen and Jones.
{¶9} At the conclusion of trial, the jury found Watkins guilty of all counts. The
trial court merged Counts 1 and 2 for purposes of sentencing and sentenced Watkins to
three years in prison on Count 1, one year in prison on each of Counts 3 and 4, and 60
days in jail on Count 5. The court ordered that all counts be served concurrently to each
other, for an aggregate of three years in prison.
{¶10} Watkins now appeals, raising the following three assignments of error for
review.
ASSIGNMENT OF ERROR ONE
[Watkins’s] conviction for burglary (F-2) in violation of [R.C.
2911.12(A)(2)] is contrary to the manifest weight of the evidence as the
state of Ohio failed to establish beyond a reasonable doubt that [Watkins]
trespassed in an occupied structure when another person other than an
accomplice was present or likely to be present.
ASSIGNMENT OF ERROR TWO
The state of Ohio failed to establish beyond a reasonable doubt when
viewed by the manifest weight of the evidence that [Watkins] either
participated or was an accomplice in the burglary at the 1503 Lakeland
Avenue residence.
ASSIGNMENT OF ERROR THREE
The trial court abused its discretion by refusing to grant a request for a
continuance of the trial date in order for [Watkins] to authenticate a text
message intended to be used by [him] for impeachment of [P.T.].
Manifest Weight
{¶11} In the first and second assignment of error, Watkins argues his burglary
conviction is against the manifest weight of the evidence. With regard to a manifest
weight challenge:
[the] reviewing court asks whose evidence is more persuasive — the state’s
or the defendant’s? * * * “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. [State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing [Tibbs
v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)].
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
{¶12} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight
grounds is reserved for “‘the exceptional case in which the evidence weighs heavily
against the conviction.’” Id., quoting Martin.
{¶13} In the instant case, Watkins was convicted of burglary under
R.C. 2911.12(A)(2), which provides in pertinent part: “[n]o person, by force, stealth, or
deception, shall * * * [t]respass in an occupied structure * * * that is a permanent or
temporary habitation of any person when any person other than an accomplice of the
offender is present or likely to be present, with purpose to commit in the habitation any
criminal offense[.]”
{¶14} Watkins first argues that the jury’s finding that a “person other than an
accomplice of the offender * * * likely to be present” was against the manifest weight of
the evidence because Edgell was on vacation at the time of the burglary. We note that in
determining whether persons are likely to be present under R.C. 2911.12(A)(2), what the
defendant knows at the time is irrelevant; rather, the issue is whether it was objectively
likely that persons were likely to be there. State v. Dewitt, 3d Dist. No. 1-09-25,
2009-Ohio-5903; State v. Pennington, 12th Dist. No. CA2006-11-136, 2007-Ohio-6572.
“[A] person is likely to be present when a consideration of all the circumstances would
seem to justify a logical expectation that a person could be present.” State v. Cantin, 132
Ohio App.3d 808, 813, 726 N.E.2d 565 (8th Dist.1999), citing State v. Green, 18 Ohio
App.3d 69, 480 N.E.2d 1128 (10th Dist.1984).
{¶15} Typically, where a burglary occurs and the occupying family is temporarily
absent, a showing that the occupied structure is a permanent dwelling, which is regularly
inhabited and the occupants were in and out on the day in question, will be sufficient
evidence to support a conviction for burglary. State v. Kilby, 50 Ohio St.2d 21, 25, 361
N.E.2d 1336 (1977). However, this court and other Ohio courts have found that if the
occupants of the dwelling are on vacation, and there is evidence that the occupants have
given a neighbor or other caretaker permission or access to the home regularly, then there
will be sufficient evidence that a person is “likely to be present” for purposes of
R.C. 2911.12(A)(2), a second degree felony burglary offense. See State v. Cochran, 8th
Dist. No. 50057, 1986 Ohio App. LEXIS 5481 (Jan. 30, 1986); State v. Robinson, 8th
Dist. Nos. 49501, 49518, and 49577, 1985 Ohio App. LEXIS 9055 (Oct. 24, 1985) (a
“person other than an accomplice of the offender is * * * likely to be present” when the
homeowner or occupant was away on vacation, but had given keys to a neighbor to check
on the house periodically). See also Dewitt; Pennington.
{¶16} Here, Edgell testified that she asked Metz to periodically check on her house
while she was on vacation for six days and that Metz had just checked on her house the
day before the burglary. Edgell further testified that because Metz was responsible for
checking on her house, she asked him to go to the house when they received the call from
her son’s cellphone. Based on this evidence, we do not find that the jury clearly lost its
way in finding that the “likely to be present” element in R.C. 2911.12(A)(2) was met.
{¶17} Watkins next argues that his burglary conviction is against the manifest
weight of the evidence because P.T.’s testimony that Watkins was involved in the
burglary was not credible. Specifically, he refers to P.T.’s testimony that: (1) Watkins
used a key located at the top of the back door to gain entry into the house, but Edgell
testified that she did not have a spare key outside and (2) he discussed the burglary with
his cousin, who was Watkins’s girlfriend, and acknowledged that Watkins was not
involved.
{¶18} We recognize that:
[t]he determination of weight and credibility of the evidence is for the trier
of fact. The rationale is that the trier of fact is in the best position to take
into account inconsistencies, along with the witnesses’ manner and
demeanor, and determine whether the witnesses testimony is credible. As
such, the trier of fact is free to believe or disbelieve all or any of the
testimony. Consequently, although an appellate court must act as a
“thirteenth juror” when considering whether the manifest weight of the
evidence requires reversal, it must give great deference to the fact finder’s
determination of the witnesses’ credibility. (Citations omitted.)
State v. Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10, quoting State v.
Blackman, 8th Dist. No. 95168, 2011-Ohio-2262, ¶ 21.
{¶19} Upon review, we do not find that the jury clearly lost its way in assessing
P.T.’s testimony. When the prosecutor asked P.T. if he observed Watkins grab the key
from the top of the door, he replied “[n]o, but I seen the key there. I didn’t see him grab
it from there, but I seen the key when I got there.” He further testified that Watkins
broke the glass on the door “[t]o — make it look like a robbery.” With regard to P.T.’s
conversation with his cousin, P.T. acknowledged that he did not correct his cousin when
she said Watkins was not involved. P.T. testified that he just said what she wanted to
hear and responded “uh-huh.” He “told her that because [he] knew that she was going to
be right behind [Watkins’s] butt, the whole way. So [he] told her what she wanted to
hear. It wasn’t to make [himself] look good.” Thus, we cannot say the jury clearly lost
its way and created such a manifest miscarriage of justice that Watkins’s conviction must
be reversed and a new trial ordered.
{¶20} Accordingly, the first and second assignments of error are overruled.
Motion for Continuance
{¶21} In the third assignment of error, Watkins argues the trial court abused its
discretion when it denied his motion for a continuance in order to authenticate a text
message intended to impeach P.T.’s testimony.
{¶22} “The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge. [Thus, an] appellate court must not reverse the
denial of a continuance unless there has been an abuse of discretion.” State v. Unger, 67
Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589,
84 S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Bayless, 48 Ohio St.2d 73, 101, 357 N.E.2d
1035 (1976). An abuse of discretion “‘implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶23} The Ohio Supreme Court has stated that the following facts can be
considered when determining whether a continuance should have been granted: “the
length of delay requested, prior continuances, inconvenience, the reasons for the delay,
whether the defendant contributed to the delay, and other relevant factors.” State v.
Landrum, 53 Ohio St.3d 107, 115, 559 N.E.2d 710 (1990).
{¶24} In the instant case, Watkins’s defense counsel advised the trial court that
Watkins received a text message from P.T. on December 2, 2011. However, Watkins did
not advise his counsel of the text message until the day before trial on December 13,
2011. Defense counsel informed the prosecutor about the text the same day, but did not
inform the trial court until the next day, which was the first day of trial. Defense counsel
requested a continuance of eight to ten days so that the text message could be
authenticated by the cellphone carrier. The trial court denied Watkins’s motion for
continuance, stating that:
I allowed you to ask [P.T.] about if there was any communication between
him and [Watkins]. * * * [T]his case had been going on a long time * * *
[a]nd * * * has been continued [eight times.]” * * * It was set for trial July
18th. It was continued. And then it was set for trial on August 2nd, and it
was continued. Then it was set for August 22nd, and it was continued. It
was set for August 31st, it was continued. It was set for September 19th, it
was continued. * * * So if this evidence was so important, it was given to
your client on December the 2nd, this [text], and it takes eight to ten days to
authenticate it, you could have done so before trial. * * * I think I’ve been
more than gracious in granting as many continuances as I can, to allow you
and defense team to strategize and come up with these — this evidence. *
* * [Furthermore,] I don’t think you are allowed to use extrinsic evidence to
impeach the witnesses unless it goes to the truthfulness.
{¶25} Here, the trial court’s decision was not unreasonably, arbitrarily, or
unconscionably made. The trial court stated that it has previously granted eight
continuances and noted the authentication could have been completed by defense counsel
prior to trial. Furthermore, the trial court considered the admissibility of the text
message under the Ohio Rules of Evidence. Under these circumstances, we do not find
that the denial of Watkins’s continuance amounted to an abuse of discretion by the trial
court.
{¶26} Therefore, the third assignment of error is overruled.
{¶27} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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 defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR