State v. Goss , 2012 Ohio 1951 ( 2012 )

[Cite as State v. Goss, 2012-Ohio-1951.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97348
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DOUGLAS GOSS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-547141
BEFORE: Boyle, P.J., Sweeney, J., and Keough, J.
RELEASED AND JOURNALIZED: May 3, 2012
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ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: David M. King
Erika B. Cunliffe
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Margaret A. Troia
Assistant County Prosecutor
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
Amey L. Tucker
Gittel Chaiko
Assistant County Prosecutors
9300 Quincy Avenue - 4th Floor
Cleveland, Ohio 44106
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MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Douglas Goss, appeals his conviction for burglary,
claiming that it was against the manifest weight of the evidence. Finding no merit to his
appeal, we affirm.
{¶2} Goss was indicted on three counts — burglary, vandalism, and possession
of criminal tools. He pleaded not guilty, and the case proceeded to a bench trial. After
the state rested, the trial court granted Goss’s Crim.R. 29 motion with respect to
vandalism, and the state dismissed the possession of criminal tools charge. After Goss
rested, the trial court found him guilty of burglary and sentenced him to one year in
prison. It also notified him that he would be subject to three years of postrelease control.
It is from this judgment that Goss appeals.
Bench Trial
{¶3} The state presented two witnesses, Kimberly Morris and Officer Timothy
Ward. Morris called the police after she heard noises in her father’s building when she
was visiting it on a Sunday morning in February 2011. When Officer Ward arrived, he
also heard the noises, which he said sounded like metal “knocking and banging.”
Officer Ward entered the basement of the building and found Goss there. Officer Ward
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testified that he “searched the building further to see if there was anyone else,” but he did
not see anyone else.
{¶4} Morris testified that her father owned the building. The first floor of the
building, which contained two storefronts, had been boarded up many years before the
burglary. Morris’s father used the first floor for storage. The second floor, however,
contained two apartments, one of which had still been occupied as recently as October
2010. Morris said her cousin had lived in one of the apartments until that time.
Morris’s cousin still received mail at the property, and had left several belongings there,
including a bedroom set, a bicycle, and some clothing. Morris explained that her father
intended to rent the apartment that her cousin had lived in once her cousin had removed
all of her belongings and they repaired some things.
{¶5} Morris testified that she stopped by the property at least once a week to
check on it. She had been there the day before the burglary and removed a ladder that
someone had placed in the back to get into the basement. She said that her sister stops
by frequently and her cousin stops by several times a week to get her mail.
{¶6} Morris testified that the heat to the building had been turned off when her
cousin moved out, but said that they never turned off the electricity. Two days prior to
discovering Goss in the building, however, someone had removed the electrical wires to
the house.
{¶7} Goss testified on his own behalf. Goss testified that he went to the
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building to help his friend who was “squatting” there. Goss said he helped his friend
place milk crates near the basement so that he could enter it. Goss testified that his
friend had a mattress and candles in the basement. Goss agreed that he did not
immediately tell the police about his friend. Goss said that he did not intend to steal
anything or do any damage to the building.
Manifest Weight of the Evidence
{¶8} In his sole assignment of error, Goss argues that his burglary conviction was
against the manifest weight of the evidence.
{¶9} In reviewing a claim challenging the manifest weight of the evidence,
[t]he question to be answered is whether there is substantial evidence upon
which a jury could reasonably conclude that all the elements have been
proved beyond a reasonable doubt. In conducting this review, we must
examine the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether 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. (Internal quotes
and citations omitted.) State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
{¶10} Goss was convicted of R.C. 2911.12(A)(3), which provides that
No person, by force, stealth, or deception, shall * * * [t]respass in an
occupied structure or in a separately secured or separately occupied portion
of an occupied structure, with purpose to commit in the structure or
separately secured or separately occupied portion of the structure any
criminal offense.
{¶11} “Occupied structure” is defined in part as
any house, building, * * * or other structure, * * * or any portion thereof,
[that] is maintained as a permanent or temporary dwelling, even though it is
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temporarily unoccupied and whether or not any person is actually present.
R.C. 2901.01(C).
{¶12} In State v. Green, 18 Ohio App.3d 69, 480 N.E.2d 1128 (10th Dist.1984),
the defendant was convicted of burglary. He argued that the state failed to prove that the
home was an occupied structure. The owner of the home had moved out three months
prior to the burglary, but returned to the house regularly to remove articles he had left
there and to clean it and make repairs. The Green court stated:
It is obvious that the General Assembly, in adopting the definition of
“occupied structure” found in R.C. 2909.01, intended to broaden the
concept of the offense of burglary from one of an offense against the
security of habitation, to one concerned with the serious risk of harm
created by the actual or likely presence of a person in a structure of any
nature. In that context, it is noteworthy that the General Assembly utilized
the word “maintained” in division (A), as opposed to “occupied,” although
it did use that latter word in division (B), which deals with structures other
than dwellings. We believe that the distinction between “maintained” and
“occupied” is significant, in the sense that the former alludes more to the
character or type of use for which the dwelling is intended to be subjected,
whereas the latter is more closely related to the actual use to which the
structure is presently being subjected.
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 been permanently abandoned nor
vacant for a prolonged period of time, can be
regarded as a structure “maintained” as a
dwelling within the meaning of division (A).
In this context, then, division (A) includes a
dwelling whose usual occupant is absent on
prolonged vacation, a dwelling whose usual
occupant is receiving long-term care in a
nursing home, a summer cottage, or a residential
rental unit which is temporarily vacant. In all
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these examples, even though the dwelling is not
being presently occupied as a place of
habitation, that situation is temporary, and
persons are likely to be present from time to
time to look after the property — to help
“maintain” its character as a dwelling. Id. at
71-72.
{¶13} In State v. Turner, 8th Dist. No. 86916, 2006-Ohio-4098, this court found
that a foreclosed home that the owner had vacated was an “occupied structure.” The
home went into foreclosure and the owner left sometime in the summer of 2004. In
January 2005, the defendant broke into the home. Relying on Green, this court
explained:
As noted by the trial court, testimony at trial revealed that the
Berkshire Road home was a residential home on a residential street.
Although the home was in foreclosure, and the record title holder was not
living at the home, there is no evidence that the property had been
permanently abandoned. Instead, testimony revealed that the property was
under the control of HUD, and that Michaelson, Connor & Boul was
actively managing the property for HUD. In addition, Mr. Middleton-Bey
testified that both he and other neighbors looked after the house and mowed
the grass. Therefore, the testimony at trial was replete with evidence that
the residence had not been permanently abandoned, and that neighbors were
monitoring the property. As such, the structure could qualify as an
occupied structure. Id. at ¶ 20.
{¶14} Goss does not challenge this law, or claim that the state failed to present
sufficient evidence to prove the elements of burglary beyond a reasonable doubt. Goss
contends, however, that the trial court judge, as the trier of fact, lost his way when he
determined that Goss entered the building with a criminal intent, and when he found the
building to be an occupied structure.
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{¶15} In challenging the manifest weight of the evidence regarding these two
elements of burglary, Goss questions the credibility of Officer Ward and Morris. He
claims Officer Ward’s testimony that he searched the entire building “far fetched” and
thus, “it was quite plausible that another individual was on the property that day.” And
he asserts that Morris’s testimony “defies logic,” contending that the photos that were
admitted into evidence “depict a property where it is unlikely that anyone could live
[there], let alone recently.”
{¶16} This court, however, is mindful that the weight of the evidence and the
credibility of witnesses are matters primarily for the trier of fact, and a reviewing court
must not reverse a verdict where the trier of fact could reasonably conclude from
substantial evidence that the state has proven the offense beyond a reasonable doubt.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of
the syllabus. The question is whether a new trial is mandated. A new trial is mandated
only in the “exceptional case in which the evidence weighs heavily against a conviction.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not find
this to be the exceptional case.
{¶17} We further conclude that the trial court did not lose its way regarding Goss’s
criminal intent to enter the building. From the facts of this case, it can be inferred that
Goss’s purpose in trespassing in the Morris building was to commit a theft offense or a
felony. Circumstantial evidence has the same value as direct evidence. State v. Nicely,
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39 Ohio St.3d 147, 151, 529 N.E.2d 1236 (1988). Circumstantial evidence was
presented that Goss entered the basement of the building by placing milk crates where a
basement door used to exist so that he could climb down into it. Moreover, Officer
Ward and Morris heard a lot of noise, metallic banging and knocking, creating a
reasonable inference that pipes were being removed from the building. The property
had already been vandalized many times. In State v. Flowers, 16 Ohio App.3d 313, 315,
475 N.E.2d 790 (10th Dist.1984), the court stated, “[T]here is a reasonable inference that
one who forcibly enters a dwelling * * * does so with the intent to commit a theft offense
in the absence of circumstances giving rise to a different inference.” In this case, it was
reasonable for the trial court judge to infer that Goss broke into the building to commit a
theft offense, especially considering the metallic banging that Officer Ward and Morris
heard.
{¶18} Goss’s sole assignment of error is overruled.
{¶19} 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.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR