State v. Collins , 2013 Ohio 488 ( 2013 )

[Cite as State v. Collins, 2013-Ohio-488.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98350
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STANLEY D. COLLINS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-552720
BEFORE: McCormack, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: February 14, 2013
ATTORNEY FOR APPELLANT
Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel South
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Stanley Collins (“Stanley Collins”), appeals from a
judgment of the Cuyahoga Court of Common Pleas that found him guilty of breaking and
entering and sentenced him to one year of community control sanctions.
Substantive Facts and Procedural History
{¶2} On July 22, 2011, North Randall police department received a call that two
males were stealing copper from the North Randall Mall. Stanley Collins was
apprehended as he was walking away from the mall, and subsequently indicted by a grand
jury for breaking and entering and possession of criminal tools. Stanley Collins pleaded
not guilty but waived a jury trial. At the bench trial, the state presented the testimony of
four police officers and a mall employee. Stanley Collins testified on his own behalf.
{¶3} The court found him guilty of breaking and entering but not guilty of
possession of criminal tools, and sentenced him to one year of community control.
{¶4} On appeal, Stanley Collins raises a single assignment of error for our
review. He claims there was insufficient evidence to support his conviction of breaking
and entering.
Sufficiency of the Evidence
{¶5} When reviewing a challenge of the sufficiency of the evidence, we examine
the evidence admitted at trial and 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, 574 N.E.2d 492 (1991). “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. at paragraph two of the syllabus.
{¶6} A sufficiency challenge requires us to review the record to determine
whether the state presented evidence on each of the elements of the offense. This test
involves a question of law and does not allow us to weigh the evidence. State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
Breaking and Entering
{¶7} The offense of breaking and entering is defined in R.C. 2911.13, which
states, in pertinent part: “(A) No person by force, stealth, or deception, shall trespass in an
unoccupied structure, with purpose to commit therein any theft offense, as defined in
section 2913.01 of the Revised Code, or any felony.”
Evidence Presented by the State
{¶8} At trial, the court heard testimony from four officers and a mall employee in
charge of security and maintenance. The police officers’ testimony established the
following facts. Around 9 a.m. on July 22, 2011, the police received a report that two
males were stealing copper from the Randall Park Mall — a long-closed mall with
boarded doors and windows. The report indicated two males entered the mall at an
entrance between Macy’s and PSI, a vocational school. When the police arrived, they
observed that the door, which had been boarded up, was “cracked open,” and some
plywood was knocked to the ground. Inside the dark mall, water was all over the
ground, and the walls were covered with mold.
{¶9} Once inside, the officers heard “banging” noises and traced the noises to a
Chinese restaurant in the food court area on the second floor. The area was muddy and
wet. As the officers approached the area, two males were heard talking. Officer
Chauncy Turner saw two males carrying pipes and putting them in a duffel bag. He
could see one male who was tall and slender, with “salt and pepper” matted-down hair,
but could not see his facial features. The other male was only a shadowy figure.
{¶10} When Officer Turner announced himself, both men ran off. The tall and
slender male with the matted-down hair ran to the left and up the stairs, and then
disappeared. The other male, Jeffrey Collins, whom Officer Turner had only seen
previously as a shadowy figure, went to the right, and ended up behind a dumpster located
at the back of the restaurant. He was holding cut-up bars of copper, and a screwdriver
and flashlight were found on him. Officer Turner placed Jeffrey Collins in custody
and asked the other officers to look out for the second male who got away, describing him
as a tall, slender, black male with his hair “matted on his head, like in a small afro.”
Officer Turner recalled Jeffrey Collins stating that he was with his brother or
brother-in-law, and that “Doug” was with him.
{¶11} Officer Shawn Schoger spotted Stanley Collins, who matched the
description given by Officer Turner, as he was walking away from the mall, about 30
yards from Sears’ glass doors, one of which was “slightly ajar.” Most notable in Stanley
Collins’s appearance was his clothes: although it was a sunny day, his pants were wet and
muddy. When questioned, Stanley Collins told Officer Schoger he came from a bus
stop. However, the officer found on his person a set of keys to an SUV parked nearby in
the parking lot. The officer also found a flashlight in his pocket.
{¶12} A mall employee responsible for the mall building’s security and
maintenance also testified. His duties included boarding up all doors and windows to
secure entrances to the mall. No one was allowed in the building without his
permission. He was asked by the police to survey the damages done to the pipes in the
kitchen area, and he estimated the damages to be between $10,000 and $15,000.
{¶13} Stanley Collins testified on his own behalf. He testified he was in the mall
area on the morning of the incident because he and his brothers, Michael and Jeffrey, as
well as another individual by the name of “Elmer Fudd,” were going to work for the
owner of Celltech, a store across from the mall. He and Jeffrey drove an SUV while the
other two rode in another vehicle. When they arrived, Celltech’s owner was not there,
so they drove to the Pearle Vision store near the mall, where Fudd’s sister worked.
Stanley Collins and his brother Jeffrey parked the SUV at a nearby parking lot. At one
point, Jeffrey Collins left their vehicle and walked toward the main entrance of the mall.
After 45 minutes of waiting for him to return, Stanley Collins decided to look for him.
He walked from the parking lot near Pearle Vision to the main entrance of the mall but
did not see Jeffrey Collins. As he walked back toward the Pearle Vision parking lot,
Officer Schoger stopped him and eventually arrested him.
{¶14} Stanley Collins testified that he had the flashlight on his person because he
did ceiling work. Although Officer Schoger testified that Stanley Collins had told him
he did not have a vehicle, Stanley Collins insisted he never made that statement to Officer
Schoger. Stanley Collins testified that he never went inside the mall and he did not
know whether his brother went inside. He testified initially that he never “scrapped”
with his brother Jeffrey Collins, but later admitted he had been to a scrap yard by the
name of Cash Scrap Aetna, bringing only aluminum cans there, however. When asked
about his height and weight, Stanley Collins stated he is 6’ 1” tall and weighs 185 pounds.
Circumstantial Evidence
{¶15} In this case, the state’s evidence consisted exclusively of circumstantial
evidence. “Proof of guilt may be made by circumstantial evidence, real evidence, and
direct evidence, or any combination of the three, and all three have equal probative
value.” State v. Zadar, 8th Dist. No. 94698, 2011-Ohio-1060, ¶ 18, citing State v.
Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988). Direct evidence exists when “a
witness testifies about a matter within the witness’s personal knowledge such that the trier
of fact is not required to draw an inference from the evidence to the proposition that it is
offered to establish.” State v. Cassano, 8th Dist. No. 97228, 2012-Ohio-4047, ¶ 13.
In contrast, “circumstantial evidence requires the drawing of inferences that are
reasonably permitted by the evidence.” Id. See also State v. Hartman, 8th Dist. No.
90284, 2008-Ohio-3683, ¶ 37 (“[c]ircumstantial evidence is the proof of facts by direct
evidence from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind”).
{¶16} Circumstantial evidence and direct evidence inherently possess the same
probative value. Jenks, 61 Ohio St.3d, 574 N.E.2d 492, paragraph one of the syllabus.
“Although there are obvious differences between direct and circumstantial evidence,
those differences are irrelevant to the probative value of the evidence — circumstantial
evidence carries the same weight as direct evidence.” Cassano at ¶ 13, citing State v.
Treesh, 90 Ohio St.3d 460, 485, 2001-Ohio-4, 739 N.E.2d 749. “Since circumstantial
evidence and direct evidence are indistinguishable so far as the jury’s fact-finding
function is concerned, all that is required of the jury is that it weigh all of the evidence,
direct and circumstantial, against the standard of proof beyond a reasonable doubt.”
Jenks at 272. “‘Circumstantial evidence is not only sufficient, but may also be more
certain, satisfying, and persuasive than direct evidence.’” State v. Hawthorne, 8th Dist.
No. 96496, 2011-Ohio-6078, quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325,
330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
Whether the Evidence is Sufficient in This Case
{¶17} The issue in this appeal is whether the circumstantial evidence presented by
the state is sufficient to convict Stanley Collins of breaking and entering, i.e., whether he
trespassed by force, stealth, or deception, with purpose to commit a theft offense. In
resolving this issue, we are mindful that, in reviewing a claim of insufficient evidence, we
look at the evidence in a light most favorable to the state.
{¶18} The issue in this case is one of identity — whether Stanley Collins was one
of the two males seen carrying pipes to a duffel bag but who fled when the police
approached. One of them, Jeffrey Collins, ran and was found by Officer Turner behind
a dumpster. Officer Turner did not see the face of the other male, but he was able to
give a description of him — a tall, slender, black male with matted-down hair — to the
other officers. Officer Schoger then spotted Stanley Collins, who matched the
description provided by Officer Turner, as he was walking away from a mall entrance, his
pants notably wet and muddy, even though it was a sunny day.
{¶19} Although there was no evidence in the state’s case directly proving that
Stanley Collins was the male who fled, circumstantial evidence is sufficient to establish
the identity of the accused. As the Twelfth District explained:
It is well-settled that, in order to warrant a conviction, the evidence must
establish beyond a reasonable doubt the identity of the accused as the
person who actually committed the crime. State v. Scott (1965), 3 Ohio
App.2d 239, 244, 210 N.E.2d 289. However, there is no general
requirement that the defendant must be visually identified in court by a
witness. Id. Rather, direct or circumstantial evidence is sufficient to
establish the identity of the accused as the person who committed the crime.
State v. Irby, Mahoning App. No. 03 MA 54, 2004-Ohio-5929, ¶ 16-21.
State v. Lawwill, 12th Dist. No. CA2007-01-014, 2008-Ohio-3592, ¶ 11. See also State
v. Brown, 10th Dist. No. 07AP-244, 2007-Ohio-6542, ¶ 19; State v. Kiley, 8th Dist. Nos.
86726 and 86727, 2006-Ohio-2469, ¶ 10.
{¶20} The circumstantial evidence presented by the state — which also included
Stanley Collins’s admission that he was in the vicinity of the mall with Jeffrey Collins
and that he had been to a scrap shop — when viewed in totality, made a compelling case
for Stanley Collins being the male who fled the scene when the police approached.
Applying the legal principle that circumstantial evidence and direct evidence inherently
possess the same probative value, we conclude that the circumstantial evidence in this
case would allow the trier of fact to reasonably infer that Stanley Collins was the tall,
slender, black male who ran away from the scene when Officer Turner approached.
{¶21} Stanley Collins did not dispute he was walking away from the mall when
Officer Schoger approached him, but claimed he was never inside the mall and offered an
explanation of why he was in the vicinity of the mall. The resolution of conflicting
testimony and the credibility of the witnesses remain within the province of the trier of
fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus. When reviewing a claim of insufficiency of the evidence, we are not permitted
to assess the credibility of the witnesses or otherwise weigh the evidence.
{¶22} “A verdict will not be disturbed based upon a claim of insufficient evidence
unless it is apparent that reasonable minds could not come to the conclusion reached by
the trier of fact.” Hawthorne, 8th Dist. No. 96496, 2011-Ohio-6078, ¶ 9, citing
Treesh, 90 Ohio St.3d at 484, 739 N.E.2d 749. Here, we cannot say reasonable minds
could not come to the conclusion reached by the trier of fact. We conclude the
evidence presented by the state, which is circumstantial, is sufficient for a conviction for
the offense of breaking and entering.
{¶23} The assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover of 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. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR