State v. Rusu , 2024 Ohio 1155 ( 2024 )

[Cite as State v. Rusu, 2024-Ohio-1155.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO/CITY OF AKRON C.A. Nos. 30756
30984
Appellee
v.
APPEAL FROM JUDGMENT
MICHAEL H. RUSU ENTERED IN THE
AKRON MUNICIPAL COURT
Appellant COUNTY OF SUMMIT, OHIO
CASE No. 22 CRB 07188
DECISION AND JOURNAL ENTRY
Dated: March 27, 2024
STEVENSON, Presiding Judge.
{¶1} Defendant-Appellant, Michael Rusu, appeals from the judgment of the Akron
Municipal Court, alleging that the evidence against him was insufficient to support his convictions
and that his trial counsel was ineffective for failing to request a mistaken belief jury instruction.
For the reasons set forth below, this Court affirms.
I.
{¶2} Mr. Rusu was charged with one count of theft in violation of Akron City Code
(“A.C.C.”) 131.15, and two counts of criminal damaging in violation of A.C.C. 131.06. The theft
count and one of the counts of criminal damaging pertain to events that took place on October 3,
2022, in Akron Municipal Court Case Number 22 CRB 07185. The remaining count of criminal
damaging pertains to events that occurred on January 27, 2023, in Akron Municipal Court Case
Number 23 CRB 00693.
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{¶3} Mr. Rusu pleaded not guilty to all the charges. The matter proceeded to a jury trial.
At the close of the City’s case, Mr. Rusu moved for an acquittal under Crim.R. 29(A) which the
trial court denied. Mr. Rusu did not present a defense and rested his case. Mr. Rusu renewed his
motion for acquittal, which the trial court again denied. The jury found him guilty on all three
counts. After a pre-sentence investigation, the trial court sentenced Mr. Rusu to a total of 180 days
in jail with 90 days suspended, ordered him to obey all laws for two years, and placed him on
probation for one year.
{¶4} Mr. Rusu timely appealed in Case Number 22 CRB 07185. He moved to file a
delayed appeal in Case Number 23 CRB 00693 and to consolidate the two cases for purposes of
appeal. This Court granted both motions. Mr. Rusu asserts three assignments of error for our
review.
II
ASSIGNMENT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FAILED
TO GRANT APPELLANT’S CRIM.R. 29(A) MOTION FOR JUDGMENT
OF ACQUITTAL ON ALL THREE CHARGES.
ASSIGNMENT OF ERROR NUMBER TWO
THE EVIDENCE PRESENTED TO THE JURY IN THIS CASE WAS NOT
SUFFICIENT AND THUS WAS A VIOLATION OF APPELLANT’S RIGHT
TO DUE PROCESS AS GUARANTEED UNDER THE OHIO AND
FEDERAL CONSTITUTIONS.
{¶5} In his first and second assignments of error, Mr. Rusu challenges the sufficiency of
the evidence. In his first assignment of error, he argues that the trial court erred in denying his
Crim.R. 29(A) motions for acquittal because the City did not prove the essential elements of the
crimes charged beyond a reasonable doubt. For the same reason, he argues in his second
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assignment of error that the jury’s verdict was not supported by sufficient evidence. We disagree
with Mr. Rusu.
{¶6} Crim.R. 29(A) provides that the trial court “on motion of a defendant * * * shall
order the entry of a judgment of acquittal of one or more offenses charged * * * if the evidence is
insufficient to sustain a conviction * * *.” “A motion for acquittal under Crim.R. 29(A) is
governed by the same standard as the one for determining whether a verdict is supported by
sufficient evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37.
{¶7} Whether a conviction is supported by sufficient evidence is a question of law, which
we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review,
our “function * * * 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.”
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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.”
Id. A sufficiency review does not “resolve evidentiary conflicts or assess the credibility of
witnesses * * *.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10. Sufficiency
“concerns the [Prosecution’s] burden of production and is, in essence, a test of adequacy.” State v.
Wilk, 9th Dist. Medina No. 22CA0008-M, 2023-Ohio-112, ¶ 9.
{¶8} At trial, the City presented the testimony of the two complainants, L.B., and A.F.,
and two Akron Police Officers. Video footage from L.B.’s security camera was admitted into
evidence as the City’s exhibit. The testimony and evidence revealed the following.
{¶9} Mr. Rusu lives next door to L.B. L.B. testified that when Mr. Rusu moved in about
five years ago, a property line dispute immediately arose between them. As a result of that dispute,
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L.B. had her property surveyed. The surveyor placed a survey pin in the ground to mark the
property line. A.F., who lives on the other side of Mr. Rusu, was aware of the issues between L.B.
and Mr. Rusu, and had assisted L.B. at various times in handling the disputes with Mr. Rusu. A.F.
was present when the surveyor put the survey pin in the ground. L.B. also marked her property
line with a wooden fence post that she purchased, and later, with a shorter metal stake that A.F.
purchased. The fence post and metal stake are located near the sidewalk.
{¶10} A.F. and L.B. both testified that the metal stake and fence post were placed on
L.B.’s property approximately six to eight inches from the survey pin to give Mr. Rusu extra room
to get his car in and out of the driveway. A.F. also installed a wooden fence along the side of
L.B.’s house next to Mr. Rusu’s house that was even with the fence post. In addition, L.B. placed
audio-visual security cameras on the side of her house facing Mr. Rusu’s house. The cameras are
triggered by any objects that get close to the fence line and send a loud alarm signal to notify L.B.
of an encroachment. When asked at trial whether Mr. Rusu had ever said anything to her about
the stakes and fence post, L.B. answered that the only thing Mr. Rusu has ever said to her is “[g]et
that garbage off my property.”
{¶11} On October 3, 2022, A.F. was sitting on his porch and observed Mr. Rusu come out
of his house and walk over to the area of L.B.’s fence post and metal stake. After taking some
pictures, Mr. Rusu pulled the fence post out of the ground and threw it onto his front yard. He
then kicked the stake a couple times, pulled it out of the ground, and threw it down a few feet
away. Mr. Rusu proceeded to pick up a rock that was lying on L.B.’s property close to where the
stake and fence post had been and took it over to his tree lawn. He then walked back to the stake,
picked it up from the ground, stumbled and nearly fell, then walked with the stake in his hand over
to the space between his truck and house. A.F. did not see where Mr. Rusu took the stake, but Mr.
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Rusu did not return it and it was never recovered. A.F. never gave Mr. Rusu his consent to take
the stake. A.F. testified that he paid between $30 and $42 for the stake. Mr. Rusu did not pay
A.F. for the stake.
{¶12} L.B. testified that she observed the same sequence of events on her security camera.
She said that when Mr. Rusu walked over to his truck with the stake, she heard a “cling” sound
but never saw what he did with the stake thereafter. She assumed it either fell on the ground or
was thrown into Mr. Rusu’s truck based on the “cling” sound. After Mr. Rusu left, she retrieved
the fence post and rock. The fence post was bent in the middle. She looked for the stake but it
was “nowhere to be found.” She did not give Mr. Rusu permission to dislodge the fence post and
stake nor to keep the stake. Mr. Rusu did not return the stake. The police were summoned and
Office Kyle Heidecker responded. Office Heidecker spoke with A.F. and L.B. and viewed the
security footage. He saw the bent fence post and was told about the missing metal stake. Mr.
Rusu was charged with theft of the metal stake and criminal damaging of the fence post.
{¶13} After the events on October 3, 2022, L.B. purchased a green metal pole
approximately four feet high and placed it on the property line between hers and Mr. Rusu’s
property, near the sidewalk. According to L.B. and A.F., on January 27, 2023, they observed Mr.
Rusu get into his truck and pull out of the driveway to let his brother out. While doing so, Mr.
Rusu drove over the metal pole. He then pulled across the street and parked while he waited for
his brother to leave. After his brother pulled out, Mr. Rusu backed into his driveway and ran over
the metal pole a second time. He then pulled forward, drove over the top of the metal pole again,
backed over it once more, and parked his truck in the driveway. The police were again summoned.
{¶14} When Officer Dylan Thompson arrived, he reviewed the video footage, took A.F.
and L.B.’s statements, and saw that the metal pole was bent at a “90 degree angle” and was
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“damaged beyond its useable state.” A.F. testified that it was “[b]ent all up” and “curly” and had
to be removed so as not to pose a hazard. Mr. Rusu told Officer Thompson that the metal pole
was on his property. However, Officer Thompson testified that he observed that the metal pole
was on L.B.’s side of the survey pin. Mr. Rusu was charged with criminal damaging of L.B.’s
metal pole. The metal pole was later replaced by two metal stakes that were secured by cement
blocks.
{¶15} Mr. Rusu was convicted of theft of A.F.’s stake under A.C.C. 131.15, and criminal
damaging of L.B.’s fence post and metal pole under A.C.C. 131.06. A.C.C. 131.15 prohibits theft
and provides that:
A. No person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either:
1. Without the consent of the owner or person authorized to give consent;
2. Beyond the scope of the express or implied consent of the owner or person
authorized to give consent;
3. By deception;
4. By threat.
{¶16} The mens rea element of theft requires two mental states: a “purpose to deprive the
owner of property” and that the defendant must “knowingly obtain or exert control over” the
property. Under A.C.C. 130.08(A), “[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.” “A person acts knowingly, regardless of his purpose, when he
is aware that his conduct will probably cause a certain result or will probably be of a certain nature.
A person has knowledge of circumstances when he is aware that the circumstances probably exist.”
A.C.C. 130.08(B).
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{¶17} “Deprive” is defined in A.C.C. 131.01 as:
1. To withhold property of another permanently, or for such period as to appropriate
a substantial portion of its value or use, or with purpose to restore it only upon
payment of a reward or other consideration;
2. To dispose of property so as to make it unlikely that the owner will recover it; or
3. To accept, use, or appropriate money, property, or services, with purpose not to
give proper consideration in return for the money, property, or services, and without
reasonable justification or excuse for not giving proper consideration.
{¶18} Mr. Rusu argues that there was no evidence that he acted with a “purpose to
deprive” and did not “knowingly exert control over” A.F.’s metal stake when he pulled it out of
the ground and took it somewhere. He argues that because there was a property line dispute, his
purpose was to “[g]et that garbage off my property” rather than to take it. We disagree with Mr.
Rusu.
{¶19} The City’s evidence showed that A.F. purchased the stake. Mr. Rusu does not
dispute that A.F. is the “owner of [the] property” under A.C.C. 131.15(A). When Mr. Rusu walked
over to the stake, physically pulled it up from the ground, then picked it back up and walked away
with it, he was aware of his actions. There was no evidence that he acted involuntarily. Therefore,
Mr. Rusu “knowingly * * * exert[ed] control over [the stake].” A.C.C. 131.15(A); A.C.C.
130.08(B).
{¶20} There was also no evidence that A.F. gave Mr. Rusu permission to take the stake
and not return it, even if it had been on Mr. Rusu’s property. When Mr. Rusu failed to return the
stake without consent to do so, he demonstrated an intent to “cause a certain result,” i.e., to “[t]o
dispose of property so as to make it unlikely that the owner will recover it,” and thus, acted with
“purpose to deprive” A.F. of the stake, thereby committing the crime of theft. A.C.C. 131.15(A)(1).
Furthermore, there was no evidence that Mr. Rusu paid or offered to pay A.F. for the missing stake.
Therefore, Mr. Rusu acted “with purpose not to give proper consideration in return for the * * *
8
property,” additional evidence that Mr. Rusu “deprive[d]” A.F. of the stake. A.C.C. 131.01. If Mr.
Rusu was sincere in his desire to merely remove his neighbor’s stake that was on his land, he
would have returned it to L.B. Simply stated, Mr. Rusu took something that did not belong to him
and did not return it.
{¶21} Accordingly, the evidence, when viewed in the light most favorable to the City,
would convince the average mind that Mr. Rusu was guilty of theft of A.F.’s stake beyond a
reasonable doubt in violation of A.C.C. 131.15.
{¶22} Mr. Rusu was also convicted of two counts of criminal damaging, one count
regarding L.B.’s fence post from the incident on October 3, 2022, and the other count regarding
L.B.’s metal pole from the incident on January 27, 2023. A.C.C. 131.06, which forbids criminal
damaging, provides that:
A. No person shall cause, or create a substantial risk of physical harm to any
property of another without his consent:
1. Knowingly, by any means;
***
{¶23} To reiterate, “[a] person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably be of a certain nature.
A person has knowledge of circumstances when he is aware that such circumstances probably
exist.” A.C.C. 130.08(B). “Physical harm to property” means “[a]ny tangible or intangible
damage to property which, in any degree, results in loss to its value or interferes with its use or
enjoyment.” A.C.C. 130.02.
{¶24} Regarding the fence post, Mr. Rusu makes the same argument here that he did with
respect to A.F.’s stake. He argues that he did not knowingly cause damage to the fence post, but
instead, merely intended to remove it from his property. For the same reasons outlined above, we
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reject that argument. If Mr. Rusu had truly wanted to remove the fence post from his property, he
would not have thrown it onto his own front yard, but instead, would have returned it to L.B. Even
if the fence post was on his property without his consent, that would not have given Mr. Rusu the
right to harm it.
{¶25} The City’s evidence showed, and Mr. Rusu does not argue otherwise, that the fence
post and metal pole belonged to L.B. and are therefore the “property of another.” A.C.C.
131.06(A). The fence post was bent in the middle as a result of Mr. Rusu throwing it onto his
property, and the metal pole was “bent all up” and “curly” “beyond its useable state.” Therefore,
both of those items were altered from their original condition, and thus, incurred “physical harm
to property;” that is, “tangible * * * damage * * * which, in any degree, results in loss to its value
or interferes with its use or enjoyment.” A.C.C. 130.02. L.B. did not consent to Mr. Rusu harming
those items. The fact that Mr. Rusu drove over the metal pole multiple times as he was pulling in
and out of his driveway raises the reasonable inference that he did not do so by accident as he
claims. Thus, when Mr. Rusu threw the fence post into his front yard and ran over the metal pole
three times with his vehicle, resulting in damage, he had knowledge that his actions would “cause
a certain result or [would] be of a certain nature[;]” that is, “create a substantial risk of physical
harm to any property of [L.B.] without [her] consent[,]” and therefore, committed the crime of
criminal damaging. A.C.C. 130.08(B); A.C.C. 131.06.
{¶26} Mr. Rusu claims that the City’s evidence is insufficient that he created a risk of
physical harm to L.B.’s metal pole because L.B.’s son put it in the ground knowing that Mr. Rusu
would likely drive over it. He also claims that L.B. then set up surveillance cameras so that she
could record him driving over the stake that her son planted. There is no testimony in the record
establishing these claims; rather, Mr. Rusu invites us to infer these facts from his arguments.
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However, our duty in an appeal of the sufficiency of the evidence is to view the evidence in the
light most favorable to the prosecution, not the defendant. Further, Mr. Rusu does not point this
Court to any location in the transcript or record that demonstrates these alleged facts. Under
App.R. 12(A), this Court may disregard any alleged errors where the party raising it has failed to
identify in the record the error on which the assignment of error is based. Accordingly, we will
disregard this argument.
{¶27} Based on the foregoing, when viewed in the light most favorable to the City, the
evidence would convince the average mind that Mr. Rusu was guilty of criminal damaging of
L.B.’s metal pole and fence post beyond a reasonable doubt in violation of A.C.C. 131.06.
{¶28} Mr. Rusu’s first and second assignments are without merit and overruled.
ASSIGNMENT OF ERROR NUMBER THREE
APPELLANT’S COUNSEL WAS INEFFECTIVE BY FAILING TO ASK
THE TRIAL COURT TO INSTRUCT THE JURY REGARDING THE
CONCEPT OF MISTAKEN BELIEF, ALL IN VIOLATION OF
APPELLANT’S RIGHTS AS GUARANTEED UNDER THE OHIO AND
FEDERAL CONSTITUTIONS.
{¶29} Mr. Rusu argues that his trial counsel was ineffective for not requesting a mistaken
belief jury instruction. He argues that had the jury instruction been requested and accepted by the
jury, it would have negated the “knowingly” element of all three charges. He maintains that the
City presented no evidence that he acted for any reason other than from a mistaken belief that the
items he was accused of stealing and damaging were on what he believed to be his property.
{¶30} The Court employs a two-step analysis when an allegation of ineffective assistance
of counsel is made. To warrant reversal based on ineffective assistance of counsel, the defendant
must show that his counsel was “deficient and that he was prejudiced by that deficiency.” State v.
Morgan, 9th Dist. Medina No. 07CA0124-M, 2008-Ohio-5530, ¶ 37. When assessing trial
11
counsel’s performance, this Court “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S.
668, 689 (1984). “‘[T]he defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.’” State v.
Bradley, 42 Ohio St.3d 136, 142 (1989), quoting Strickland at 694.
{¶31} “Ignorance or mistake of fact is a defense if it negates a mental state required to
establish an element of a crime, except that if the defendant would be guilty of a crime under the
facts as he believed them, then he may be convicted of that offense.” State v. Pecora, 87 Ohio
App.3d 687, 690 (9th Dist.1993). Jury instructions “must be based on the actual issues in the case
as presented by the evidence.” Id. citing State v. Rogers, 43 Ohio St.2d 28 (1975). “A court need
not give an instruction unless it applies to the facts in the case.” Id.{¶32} Mr. Rusu argues that the mistaken belief is in reference to his property line. He
maintains that the items damaged or taken were on his property. However, the location of the
items is not an element of the crimes charged and is completely irrelevant to whether Mr. Rusu
knowingly caused damage to or deprived another person of property. Therefore, even if sincere,
his belief that the items were on his property would not negate any of the elements of the offenses
under the facts as he believed them. Mr. Rusu could not take or damage the property of another
merely because he believed it was located on his property. Thus, Mr. Rusu would be guilty even
if the situation were as he believed. See Pecora at 690. Since the facts of the case did not support
a jury instruction on the mistake of fact defense, Mr. Rusu’s trial counsel was not deficient in not
requesting that instruction.
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{¶33} Having determined that trial counsel’s performance was not deficient, we need not
proceed to an analysis of whether Mr. Rusu was prejudiced by that deficiency because none exists.
Mr. Rusu’s third assignment of error is overruled.
III.
{¶34} Mr. Rusu’s assignments of error are overruled. The judgment of the Akron
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal
Court, 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 App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
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FLAGG LANZINGER, J.
CONCURS.
HENSAL, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
LAWRENCE J. WHITNEY, Attorney at Law, for Appellant.
DEBORAH S. MATZ, Director of Law, and RAYLYN M. TRICE and BRIAN D. BREMER,
Assistant Directors of Law, for Appellee.