State v. Roseberry , 197 Ohio App. 3d 256 ( 2011 )

[Cite as State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96166
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WAYMAN L. ROSEBERRY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-540130
BEFORE: Keough, J., S. Gallagher, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 17, 2011
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Margaret A. Troia
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, Judge.
{¶ 1} Defendant-appellant, Wayman L. Roseberry (“Roseberry”), appeals his
convictions. For the reasons that follow, we affirm in part, reverse in part, and remand
for a new trial.
{¶ 2} In August 2010, Roseberry was charged with one count each of aggravated
burglary and kidnapping, each containing firearm and forfeiture specifications; one count
of having weapons while under disability, with a forfeiture specification; and one count
each of burglary, theft, and receiving stolen property. Roseberry waived his right to a
jury trial and the case was tried to the court.
{¶ 3} The victim, Danielle Adams (“Adams”), testified that Roseberry was her
ex-boyfriend, and that when they were dating, he stayed at her residence every night, kept
personal belongings there, and had a house key. In the spring of 2010, they ended their
relationship, but Roseberry still visited Adams at her home even though she had taken her
key back from him.
{¶ 4} During the late hours of July 24 and early morning hours of July 25, while
she was at work, Adams exchanged text messages with Roseberry. Over objection,
Adams read out loud on direct examination her handwritten transcription of the
exchanged text messages. Adams testified the exchange between her and Roseberry was
as follows:
{¶ 5} “Roseberry: Man u did smething ill brak da window.
{¶ 6} “* *
{¶ 7} “Adams: Wht?
{¶ 8} “Roseberry: I dnt wnt to brake nothing to get n and u blocked da door so I
cant get n
{¶ 9} “* *
{¶ 10} “Adams: So you got my key huh
{¶ 11} “* *
{¶ 12} “Roseberry: OK can u un block da door I dnt have no where to go
{¶ 13} “Adams: Y u say u didn't have the key
{¶ 14} “Roseberry: Cuz who wnt ti be left n da streets
{¶ 15} “Roseberry: Man pease dnt make me do smething I dnt wnt please open
dat door
{¶ 16} “Roseberry: Man ima get n
{¶ 17} “Adams: I hope u aint breakin no window
{¶ 18} “Adams: Im at work go wit your best friend, he always got ur bck
remember
{¶ 19} “Roseberry: I neva said that im tryna get away I don’t wnt to do sht stupid
so please let me n
{¶ 20} “Adams: I said i’m at work
{¶ 21} “Roseberry: Ok how do i get in”
{¶ 22} Around noon on July 25, after receiving a call from her neighbor, Adams
left work. When she arrived at her home, she saw that her front window was broken and
she contacted the police. When the police arrived, Adams discovered that two
televisions, two DVD players, a gaming system, and a window air conditioner had been
stolen from her residence. Although she could not assess the value of the televisions,
DVD players, or air conditioner, Adams testified that the value of the gaming system was
$200.
{¶ 23} Later on the evening of July 25, Roseberry used a key to gain access to
Adams’s home. Adams testified that she did not give Roseberry permission to use the
key or enter her residence. According to Adams, when Roseberry entered her residence,
he was holding a silver gun in his hand.
{¶ 24} After a period of time, Adams drove Roseberry to get something to eat.
Adams testified that she went with him because he had a gun, but she could not recall if
he took the gun with him when they left the residence. About 15 minutes later, when
they returned back to her residence, Adams sent a text message to her neighbor, telling
him Roseberry was in her home with a gun.
{¶ 25} An East Cleveland police officer contacted Adams and she discreetly
informed the officer that Roseberry had a gun. The police arrived approximately five
minutes later. According to Adams, when Roseberry realized the police were outside the
residence, he walked toward the back of the house. When he returned to the living room,
he no longer had the gun in his hand. Roseberry then voluntarily exited the front door of
the residence, was detained, and arrested.
{¶ 26} Officer Steve Kaleal testified that he responded to the breaking and entering
call at approximately 12:40 p.m. on July 25. When he and his partner arrived at the
residence, he observed that a front window had been pushed out. After taking an
inventory of the property missing from the residence, he interviewed neighbors. Based
on a conversation with the next-door neighbor, Roseberry was a named suspect.
{¶ 27} Officer Robert Bailey testified that he responded to Adams’s address on
July 25 at 10:00 p.m. for a possible hostage situation. After Roseberry was detained,
Officer Bailey entered the residence, spoke with Adams regarding the weapon involved,
and located a silver handgun in the toilet reservoir of the first floor bathroom.
{¶ 28} Lieutenant Matthew Balli testified that he made the initial contact with
Adams and confirmed that she was being held at gunpoint by Roseberry. He testified
that once the weapon was found, he ran the firearm’s serial numbers through the National
Crime Information System and the Law Enforcement Automatic Data System and learned
that the firearm had been reported stolen out of the city of Strongsville.
{¶ 29} Michael Shymske testified that he was the owner of the firearm that was
recovered but that he had reported it stolen by an acquaintance in 2008. He testified that
he did not know Roseberry and did not give Roseberry permission to possess or use the
firearm.
{¶ 30} The State’s final witness was Detective Michael Delisle, who testified that
he conducted an interview with Adams during which she provided him with a written
statement. Included with the written statement was a handwritten compilation of the text
messages Adams and Roseberry exchanged on July 24 and 25. Detective Delisle
testified that he viewed Adams’s cell phone and took a series of photographs of the phone
that captured the text messages Adams indicated that she exchanged with Roseberry.
Detective Delisle said he took the photographs because he knew certain cell phone
companies only saved text messages for a limited period of time. The trial court, over
objection, received the photographs of the text messages into evidence as State’s exhibits
4-14. The photographs of the text messages included the content that Adams previously
testified to and read out loud in her direct testimony (State’s exhibits 4-10) and additional
text messages (State’s exhibits 11-14) that had the following content:
{¶ 31} “Did u break my window yet crazy
{¶ 32} “Not yet
{¶ 33} “U better not
{¶ 34} “How do I get n
{¶ 35} “Idk
{¶ 36} “Yea u do
{¶ 37} “Wht time do u get off
{¶ 38} “I think 7
{¶ 39} “Man I hpe I dnt go to jail
{¶ 40} “Jail 4 wht
{¶ 41} “Doin smething dumb”
{¶ 42} At the close of testimony and evidence, the trial court found Roseberry not
guilty of Count 1 — aggravated burglary, Count 2 — kidnapping, and Count 4 —
burglary, but guilty of the lesser-included charge of breaking and entering, Count 3 —
having weapons under disability, including the forfeiture specification, Count 6 —
receiving stolen property, and Count 7 — an amended count of misdemeanor theft.
Roseberry was sentenced to an aggregate term of two years in prison. He appeals,
raising three assignments of error, which will be addressed out of order.
Sufficiency of the Evidence
{¶ 43} In his first assignment of error, Roseberry contends that his convictions are
not supported by sufficient evidence. The test for sufficiency requires a determination of
whether the prosecution met its burden of production at trial. State v. Bowden, Cuyahoga
App. No. 92266, 2009-Ohio-3598, ¶12. 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(s) proven beyond a reasonable doubt.
State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
The Supreme Court of Ohio has held that when reviewing the sufficiency of the evidence,
an appellate court is to consider all of the evidence admitted at trial, even if the evidence
was improperly admitted. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903
N.E.2d 284, ¶19.
{¶ 44} Roseberry was found not guilty of burglary, but guilty of the lesser-included
charge of breaking and entering in violation of R.C. 2911.13. This section provides that
“[n]o person by force, stealth, or deception, shall trespass in an unoccupied structure, with
purpose to commit therein any theft offense * * * or any felony,” and “No person shall
trespass on the land or premises of another, with purpose to commit a felony.”
{¶ 45} The offense of breaking and entering requires that a defendant have the
specific intent of trespassing with the purpose to commit a felony. See State v. Copeland
(Jan. 18, 2002), Montgomery App. No. 18711. The purpose to commit a felony may be
proved by direct or circumstantial evidence. Furthermore, it is not necessary that the
purpose to commit a felony be formed before or at the time the initial trespass or entry is
achieved. State v. Bowling (Aug. 12, 1985), Clermont App. No. CA85-01-001, citing
State v. Jones (1981), 2 Ohio App.3d 20, 440 N.E.2d 580 (the “purpose to commit a
felony” element in R.C. 2911.13(B) may be formed while the trespass is in progress, and
the plan need not be formulated prior to the trespass).
{¶ 46} It is well established that “‘circumstantial evidence is sufficient to sustain a
conviction if that evidence would convince the average mind of the defendant’s guilt
beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046,
837 N.E.2d 315, ¶75, quoting State v. Heinish (1990), 50 Ohio St.3d 231, 238, 553
N.E.2d 1026. Circumstantial evidence carries the same weight as direct evidence.
Jenks. Circumstantial evidence is proof of facts or circumstances by direct evidence
from which the trier of fact may reasonably infer other related or connected facts that
naturally or logically follow. State v. Beynum (May 23, 1996), Cuyahoga App. No.
69206.
{¶ 47} From the facts of this case, it can be inferred that Roseberry’s purpose in
trespassing on Adams’s residence was to commit a theft offense or a felony.
Circumstantial evidence was presented that Roseberry forcefully trespassed on the
premises by breaking Adams’s window to gain entrance into the residence. In State v.
Flowers (1984), 16 Ohio App.3d 313, 315, 475 N.E.2d 790, the court stated that “there 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 is reasonable when, viewing the evidence in the light most
favorable to the prosecution, to infer that Roseberry’s purpose, either prior to or during
the commission of breaking into Adams’s residence, was to commit a theft offense. The
text messages established that Roseberry threatened to break Adams’s window, wanted to
get inside her residence, and was concerned that he was going to go to jail for doing
something “dumb.”
{¶ 48} The text messages circumstantially prove that Roseberry gained entrance
into the house and an inference can be made that he subsequently removed the property.
Moreover, Officer Kaleal testified that after speaking with Adams’s neighbor, Roseberry
was named a suspect.
{¶ 49} Viewing the evidence, whether properly admitted or not, in the light most
favorable to the prosecution, sufficient evidence was presented supporting Roseberry’s
conviction for breaking and entering.
{¶ 50} Additionally, we find sufficient evidence was presented to support
Roseberry’s conviction for theft. Pursuant to R.C. 2913.02(A)(1), regarding theft, “[n]o
person, with purpose to deprive the owner of property * * *, shall knowingly obtain or
exert control over * * * property * * * [w]ithout the consent of the owner or person
authorized to give consent.”
{¶ 51} Adams testified that when she left for work, the property that was
subsequently removed was in her residence. When she returned home, the window was
broken and the property was missing. Officer Kaleal testified that he and his partner
responded to Adams’s residence and observed that her front window was pushed out. As
part of his investigation, he spoke to neighbors to see if anyone had observed anything.
After interviewing the next-door neighbor, Roseberry became a suspect.
{¶ 52} This information obtained by Officer Kaleal, coupled with the text
messages exchanged between Adams and Roseberry, provides enough circumstantial
evidence to create an inference that Roseberry committed a theft offense inside Adams’s
residence. Accordingly, sufficient evidence was presented going to all the elements of
the theft offense.
{¶ 53} Roseberry was also convicted of having weapons while under disability, in
violation of R.C. 2923.13(A)(3). This section provides in pertinent part: “[U]nless
relieved from disability * * *, no person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been
convicted of any offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse * * *.”
{¶ 54} In this case, Roseberry stipulated to a 2010 drug trafficking conviction.
Adams testified that Roseberry entered her apartment carrying a silver gun in his hand.
When the police arrived at her residence, Adams observed Roseberry walk toward the
back of the residence with the gun, and when he returned to the living room, he did not
have the gun. Officer Bailey found a silver handgun in the toilet reservoir of the first
floor bathroom. The gun recovered was admitted into evidence and Adams testified she
thought it was the gun Roseberry had — the gun was the same size and color. Adams
also testified that she did not own the gun that was found in her home. This evidence
was sufficient to establish that Roseberry had the firearm in violation of R.C.
2923.13(A)(3).
{¶ 55} Roseberry was also convicted of receiving stolen property in violation of
R.C. 2913.51, which provides that “[n]o person shall receive, retain, or dispose of
property of another knowing or having reasonable cause to believe that the property has
been obtained through commission of a theft offense.”
{¶ 56} In this case, sufficient evidence demonstrated that Roseberry received or
retained the firearm and had reasonable cause to believe the firearm was obtained through
a theft offense. Lieutenant Balli testified that the gun found in Adams’s residence was
reported stolen in 2008 by Michael Shymske. Although Roseberry had no involvement
with the theft of Shymske’s gun, his conviction is supported by sufficient evidence
because Roseberry’s previous drug conviction prevented him from legally purchasing or
obtaining a gun and therefore he would have reasonable cause to believe that the gun he
possessed was stolen.
{¶ 57} Accordingly, Roseberry’s first assignment of error is overruled.
Evid.R. 803(5) and 901: Text Messages and Photographs
{¶ 58} In his third assignment of error, Roseberry argues that the trial court erred
by allowing testimony and admitting and receiving evidence of the alleged text messages
between Adams and himself.
{¶ 59} Evidentiary rulings made at trial rest within the sound discretion of the trial
court. State v. Lundy (1987), 41 Ohio App.3d 163, 535 N.E.2d 664; State v. Graham
(1979), 58 Ohio St.2d 350, 390 N.E.2d 805. “The term ‘abuse of discretion’ connotes
more than an error of law or judgment. It implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Nielson v. Meeker (1996), 112 Ohio App.3d
448, 679 N.E.2d 28.
{¶ 60} Roseberry first contends that the trial court abused its discretion in allowing
Adams to read her handwritten transcription of the text messages out loud in open court
on direct examination. The State argues that the trial court’s ruling was proper pursuant
to Evid.R. 803(5), but recognizes that the handwritten transcription could not be received
as an exhibit into evidence.
{¶ 61} Under Evid.R. 803(5) regarding hearsay exceptions, a recorded recollection
is “[a] memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable him to testify fully and
accurately, shown by the testimony of the witness to have been made or adopted when the
matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.”
{¶ 62} In order to admit a statement into evidence pursuant to Evid.R. 803(5), “a
party must establish: (1) the witness has a lack of present recollection of the recorded
matter; (2) the recorded recollection was made at a time when the matter was fresh in the
witness’s memory; (3) the recorded recollection was made or adopted by the witness; and
(4) the recorded recollection correctly reflects the prior knowledge of the witness.”
Dayton v. Combs (1993), 94 Ohio App.3d 291, 300, 640 N.E.2d 863.
{¶ 63} In this case, Adams testified that when she went to the police station, she
took her cell phone and wrote down the text messages exchanged between her and
Roseberry the night of July 24 through July 25. On direct examination, Adams stated she
could not recall the exact content of the messages she received, but when she wrote down
the text messages, her recollection of the content of the text messages was fresh in her
mind. When presented with the handwritten list, Adams also positively identified it as
her transcribed compilation of the text messages exchanged between her and Roseberry.
She testified that she knew the text messages were coming from Roseberry’s phone
because she knew his cell number at the time, although she admitted she currently could
not recall the number. Accordingly, the trial court did not abuse its discretion by
allowing Adams to read the series of text messages out loud pursuant to Evid.R. 803(5),
and the trial court’s exclusion of the handwritten compilation as an exhibit was proper.
{¶ 64} Roseberry also contends that the trial court abused its discretion in allowing
Adams to read the handwritten list of compiled text messages because the list was not
properly authenticated.
{¶ 65} Under Evid.R. 901(A), “[t]he requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what the proponent claims.” This rule invokes a
very low threshold standard, requiring only sufficient foundational evidence for the trier
of fact to conclude that the item is what its proponent claims it to be. State v. Craycraft,
Clermont App. Nos. CA2009-02-013 and CA2009-02-014, 2010-Ohio-596, ¶35. This
standard is less demanding than preponderance of the evidence. Id., citing State v.
Winfield (Feb. 7, 1991), Ross App. No. 1641. The proponent must only demonstrate a
“reasonable likelihood” that the evidence is authentic, which may be supplied by the
testimony of a witness with knowledge. Evid.R. 901(B); State v. Bell, Clermont App.
No. CA2008-05-044, 2009-Ohio-2335, ¶30.
{¶ 66} We find that the handwritten list was properly authenticated by Adams
because she was the person who created the list and she testified that the list was, in fact,
her handwritten list of the text messages exchanged between Roseberry and herself.
{¶ 67} Roseberry’s final challenge to the text messages is that the trial court
abused its discretion in (1) allowing Detective Delisle to testify regarding the photographs
he took of Adams’s cell phone, and (2) ultimately admitting and receiving the
photographs and their written content into evidence. The State argues that the
photographs were properly admitted and received into evidence as photographs and were
properly authenticated under Evid.R. 901.
{¶ 68} Again, evidence is properly authenticated under Evid.R. 901 when the
evidence is sufficient to support a finding that the matter in question is what the
proponent claims it to be. Evid.R. 901(A); Craycraft. For photographs, a witness with
personal knowledge of the subject of the photographs may authenticate them by testifying
that the photographs fairly and accurately depict the subject at the time they were taken.
State v. Hannah (1978), 54 Ohio St.2d 84, 88, 374 N.E.2d 1359.
{¶ 69} In this case, Detective Delisle testified that he viewed Adams’s cell phone
and text messages and took photographs of those text messages. At trial, when the
prosecutor showed him the photographs, State’s exhibits 4-14, Detective Delisle agreed
that the photographs appeared “to be a fair and accurate copy of the text messages from
Miss Adams’[s] phone on the date that [he] took those photos.” Accordingly, we find
that the photographs were properly authenticated by Detective Delisle.
{¶ 70} However, we find that the trial court abused its discretion in admitting the
photographs of the text messages that Adams did not testify to, i.e., State’s exhibits
11-14, because the content contained in the photographs is inadmissible hearsay.
{¶ 71} Hearsay “is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). A statement can be a written assertion. Evid.R. 801(A).
Statements made outside of the courtroom, offered at trial to prove the truth of what they
assert, are generally inadmissible as hearsay unless an exception applies. Evid.R. 801(C);
Evid.R. 802; State v. DeMarco (1987), 31 Ohio St.3d 191, 195, 509 N.E.2d 1256.
{¶ 72} In this case, the photographs contained out-of-court written statements.
The State was not using the photographs to show that Adams had a cell phone that
received text messages, but to show the written content of the text messages allegedly
exchanged between Adams and Roseberry to prove that Roseberry committed the
offenses of breaking and entering and theft.
{¶ 73} The photographs, State’s exhibits 4-14, showed the content of the text
messages between Adams and Roseberry. Adams testified and recited the content of the
text messages contained in exhibits 4-10, identifying which text messages she sent and
which were sent by Roseberry. Therefore, the text messages sent by Roseberry rendered
the content of conversation not hearsay pursuant to Evid.R. 801(D)(2), which provides
that statements that are offered against a party and are the party’s own statements are not
hearsay. Therefore, Roseberry’s statements in the text messages that Adams testified to
were admissible as admissions by a party-opponent under Evid.R. 801(D)(2)(a).
Accordingly, State’s exhibits 4-10, the photographs containing content of what Adams
previously testified to, were properly authenticated and not hearsay; thus admissible.
{¶ 74} However, the content of the text messages contained in exhibits 11-14 are
hearsay because they contain out-of-court statements used to prove the truth of the matter
asserted, specifically that Roseberry committed the acts of breaking and entering and
theft. Unlike the photographs that contained the content that Adams previously testified
to, Detective Delisle did not have knowledge of the content of the text messages. He did
not testify that he knew Roseberry’s cell phone or that he could determine from the cell
phone which messages were sent or received and by whom. The only method of
identifying the “speakers” and deciphering the content of those text messages was
through what Adams told Detective Delisle because nothing within the text messages
independently indicated the senders or speakers of the text messages. Therefore, the
hearsay exception under Evid.R. 801(D)(2)(a) cannot be used for these exhibits to be
received into evidence. Accordingly, we find that the trial court abused its discretion in
receiving these photographs of the text messages, State’s exhibits 11-14, into evidence
through Detective Delisle’s testimony alone.
{¶ 75} We note that in most cases involving electronic print media, i.e., texts,
instant messaging, and e-mails, the photographs taken of the print media or the printouts
of those conversations are authenticated, introduced, and received into evidence through
the testimony of the recipient of the messages. See Bell and Craycraft. Thus, the State
could have properly admitted the photographs through Adams’s testimony because she
was the recipient of the text messages, had personal knowledge of the content, and could
identity of the sender of the messages.
{¶ 76} We also find that the admission of these exhibits was not harmless error and
contributed to Roseberry’s conviction for breaking and entering and theft. Pursuant to
Crim.R. 52(A), “[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” To find an error harmless, a reviewing court
must be able to declare a belief that the error was harmless beyond a reasonable doubt.
State v. Lytle (1976), 48 Ohio St.2d 391, 403, 358 N.E.2d 623. A reviewing court may
overlook an error where the remaining admissible evidence, standing alone, constitutes
“overwhelming” proof of a defendant’s guilt. State v. Williams (1983), 6 Ohio St.3d
281, 290, 452 N.E.2d 1323. “Where there is no reasonable possibility that unlawful
testimony contributed to a conviction, the error is harmless and therefore will not be
grounds for reversal.” State v. Brown, 65 Ohio St.3d 483, 485, 1992-Ohio-61, 605
N.E.2d 46.
{¶ 77} In this case, the State needed to prove that Roseberry forcefully trespassed
on Adams’s property to commit a theft offense or felony and that he subsequently
committed an act of theft. Reviewing all the testimony given at trial and the content of
text messages sent, the content in State’s exhibits 11-14 was necessary to establish the
State’s case. Within those exhibits, the following texts were exchanged:
{¶ 78} “Did u break my window yet crazy
{¶ 79} “Not yet
{¶ 80} “U better not
{¶ 81} “How do I get n
{¶ 82} “Idk
{¶ 83} “Yea u do
{¶ 84} “Wht time do u get off
{¶ 85} “I think 7
{¶ 86} “Man I hpe I dnt go to jail
{¶ 87} “Jail 4 wht
{¶ 88} “Doin smething dumb”
{¶ 89} Prior to the admission of the text message photographs, Adams’s testimony
established only that Roseberry threatened to break her window to gain entrance, but did
not prove beyond a reasonable doubt that his purpose for breaking the window was to
take any property or commit any felony offense, and no evidence was presented linking
him to the removal of Adams’s property. From Adams’s testimony, an inference could
be drawn that Roseberry’s purpose in breaking the window was merely to find a place to
stay (“OK can u un block da door I dnt have no where to go,” “Cuz who wnt ti be left n
da streets”). The subsequent inadmissible text messages established that Roseberry was
going to break the window (“Not yet”) and was concerned about going to jail (“Man I hpe
I dnt go to jail” [for] “Doin smething dumb”).
{¶ 90} Moreover, Adams’s testimony alone does not establish that Roseberry took
the property from her residence. It cannot be inferred that Roseberry was the person who
removed the items from Adams’s residence merely because he threatened to break the
window. It is the subsequent inadmissible text messages that create the inference that he
was going to break the window and was concerned about going to jail for doing
something “dumb.”
{¶ 91} We cannot say that the trial court’s decision in receiving the inadmissible
text messages was harmless beyond a reasonable doubt or that absent the inadmissable
text messages, the remaining evidence constitutes overwhelming proof of Roseberry’s
guilt supporting his convictions for breaking and entering and theft. Therefore, the error
was not harmless, but prejudicial and it deprived Roseberry of a fair trial. Thus, we find
that the trial court abused its discretion in receiving State’s exhibits 11-14 into evidence.
{¶ 92} Accordingly, we find that the trial court did not abuse its discretion in
allowing Adams to read her handwritten compilation of text messages under Evid.R.
803(5) or in receiving State’s exhibits 4-10 into evidence. However, we find that State’s
exhibits 11-14 were improperly admitted and the error deprived Roseberry of a fair trial
on the breaking and entering and theft charges; thus, a new trial on those charges is
warranted. Roseberry’s third assignment of error is sustained in part and overruled in
part.
Manifest Weight of the Evidence
{¶ 93} In his second assignment of error, Roseberry argues that his convictions are
against the manifest weight of the evidence. Having concluded that Roseberry was
deprived of a fair trial regarding his convictions for breaking and entering and theft, thus
warranting a new trial, we will only address this assignment of error as it pertains to his
convictions for having weapons while under disability and receiving stolen property.
{¶ 94} A manifest weight challenge questions whether the prosecution met its
burden of persuasion. State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434 N.E.2d 1356.
A reviewing court may reverse the judgment of conviction if it appears that the trier of
fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio
St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio
App.3d 172, 175, 485 N.E.2d 717..
{¶ 95} Based on the record before us, the trial judge did not lose his way in
convicting Roseberry for having weapons while under disability and receiving stolen
property. The weight of the evidence demonstrated that Roseberry had a firearm in his
possession on the evening of July 25. Adams testified that when Roseberry realized the
police were at her residence, he walked to the back of the house. The officers searched
the house and recovered a stolen firearm from the toilet reservoir, which Adams identified
as the gun Roseberry had in his possession when he entered her residence. Furthermore,
the legal owner of the firearm testified that he did not give Roseberry permission to use or
possess his firearm, which was stolen in 2008. Because Roseberry had been previously
convicted of a drug offense, he could not obtain a firearm legally; therefore, he had
reasonable cause to believe the firearm was stolen.
{¶ 96} Accordingly, Roseberry’s remaining convictions are not against the
manifest weight of the evidence. His second assignment of error is overruled.
{¶ 97} Judgment is affirmed in part, reversed in part, and remanded for a new trial
on the breaking and entering and theft charges.
Judgment affirmed in part
and reversed in part,
and cause remanded.
S. GALLAGHER, P.J., and E. GALLAGHER, J., concur.