State v. Cook , 2016 Ohio 4574 ( 2016 )

[Cite as State v. Cook, 2016-Ohio-4574.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26809
:
v. : Trial Court Case No. 15-CR-757
:
SYLVANIUS COOK :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 24th day of June, 2016.
...........
MATHIAS H. HECK, JR., by KIRSTEN BRANDT, Atty. Reg. No. 0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
DARRELL L. HECKMAN, Atty. Reg. No. 0002389, Harris, Meyer, Heckman &
Denkewalter, LLC, One Monument Square, Suite 200, Urbana, Ohio 43078
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Sylvanius Cook was convicted of one count of aggravated burglary, a first-
degree felony, and two counts of assault, first-degree misdemanors, after a trial to the
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court. He later was sentenced to a mandatory prison term of six years on the aggravated
burglary and six months for each of the assault charges, to run concurrently with the
felony prison sentence.
{¶ 2} Cook’s assigned appellate counsel filed a motion for leave to withdraw under
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), stating that
“[c]ounsel has read the transcript and found there is no arguable basis for filing a brief for
Appellant.” (Motion, etc. at 1). The motion also contained an “ANDERS BRIEF,” which
included a statement of the case and a potential assignment of error. By order filed on
January 28, 2016, we informed Cook of the Anders filing and advised him of both his right
to file his own brief and the time limit for doing so. Cook has not filed anything, and the
time for filing has expired.
The facts and proceedings
{¶ 3} On March 7, 2015, Sylvanius Cook began beating on the front door of the
residence of his former girlfriend, Sherina Bunch, who was pregnant with his child. Cook
had not lived at her residence since December 25, 2014 when he was escorted from the
premises by police officers who were called after he kicked in the door on that occasion.
At that time, the police allowed him to retrieve his clothing and belongings. Present in the
house with Bunch on March 7, 2015 was her friend, and Cook’s cousin, China Lipscomb.
They did not let Cook inside. He kicked in the door and entered. He got into an argument
with Lipscomb and choked her with both of his hands around her neck. Cook also kneed
Bunch in the stomach, punched her in the mouth with his fist causing a cut inside her
mouth, and choked her for three to four seconds. The argument then moved outside
before Cook left in his vehicle. After the police arrived, Cook returned but then fled upon
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seeing them.
{¶ 4} On April 9, 2015, Cook was indicted for one count of aggravated burglary in
violation of R.C. 2911.11(A)(1) and two counts of assault, one each for Bunch and
Lipscomb. He signed a jury waiver, which was filed on May 22, 2015. A bench trial was
conducted on June 2, 2015. On June 10, 2015, the trial court found Cook guilty on all
three counts. At a July 2, 2015 sentencing hearing, the trial court orally indicated that
Cook would serve eight years in prison on the aggravated burglary concurrent with 180
days of incarceration on each of the assault charges. No entry was filed confirming this
sentence. On July 29, 2015, the trial court sua sponte conducted a completely new re-
sentencing hearing, including an oral victim-impact colloquy with Sherina Bunch, and
allocution by the defendant and counsel. The trial court indicated it had considered the
pre-sentence investigation, the purposes and principles of sentencing, the seriousness
and recidivism factors in the Revised Code, and the requirements of R.C. 2929.13. It
imposed a sentence of a six years of imprisonment on the aggravated-burglary charge
concurrent with two sentences of 180 days of incarceration on the assault charges. The
trial court properly advised Cook about restitution, costs, post-release control, and
appellate rights. On August 4, 2015 a Termination Entry was filed incorporating this
sentence.
Potential assignments of error
{¶ 5} Although appellate counsel found no merit to the appeal, he identifies one
potential assignment of error for our consideration. That potential argument is consistent
with the argument defense counsel made at the time of the trial: although the evidence
supported that Cook did break in and did assault Bunch and Lipscomb, the evidence did
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not support that he broke in with the purpose to commit a criminal offense, and the
criminal purpose, if any, developed after his entry.
{¶ 6} The applicable statute, R.C. 2911.11, states:
(A) No person, by force, stealth, or deception, shall trespass in an occupied
structure or in a separately secured or separately occupied portion of an
occupied structure, when another person other than an accomplice of the
offender is present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the structure any
criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on
another[.]
{¶ 7} We conclude, as counsel acknowledged, that the potential assignment of
error lacks arguable merit. “Trespass” is defined in terms of the following: “No person,
without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises
of another [.]” R.C. 2911.21(A)(1). As for the mens-rea element of aggravated burglary,
“a defendant may form the purpose to commit a criminal offense at any point during the
course of a trespass.” State v. Fontes, 87 Ohio St. 3d 527, 721 N.E.2d 1037 (2000),
syllabus. Therefore, the State must show that the offender “invaded the dwelling for the
purpose of committing a crime or that he formed that intent during the trespass.” State v.
Gardner, 118 Ohio St. 3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 33, citing Fontes at
syllabus; see also State v. Perry, 2d Dist. Montgomery No. 26421, 2015-Ohio-2181, ¶ 27.
Here, at all times, Cook’s entry and presence in the house constituted a continuing
trespass. Accordingly, an argument that he must have had the intent to commit a criminal
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offense before he kicked in the door lacks arguable merit.
Anders review
{¶ 8} Finally, we have performed our duty under Anders to conduct an
independent review of the record. We thoroughly have reviewed the docket, the various
filings, the trial transcript, and the sentencing disposition. We have found no non-frivolous
issues for review. Accordingly, the judgment of the Montgomery County Common Pleas
Court is affirmed.
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FAIN, J., and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Kirsten Brandt
Darrell L. Heckman
Sylvanius Cook
Hon. Richard Skelton