State v. Beatty

[Cite as State v. Beatty, 2021-Ohio-355.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2020-0015
JOHN BEATTY
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County
Court of Common Pleas, Case Nos.
CR2019-0035 & CR2019-0400
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 8, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX JAMES ANZELMO
Prosecuting Attorney 446 Howland Drive
Muskingum County, Ohio Gahanna, Ohio 43230
TAYLOR P. BENNINGTON
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2020-0015 2
Hoffman, J.
{¶1} Appellant John Beatty appeals the judgment entered by the Muskingum
County Common Pleas Court in Case No. CR2019-0035 convicting him of aggravated
burglary(R.C. 29ll.ll(A)(l)), assault on a peace officer (R.C. 2903.13(A)), vandalism (R.C.
2909.05(B)(2)) and possession of criminal tools (R.C. 2923.24(A)), and the judgment
entered by the Muskingum County Common Pleas Court in Case No. CR2019-0400
convicting him of escape (R.C. 2921.34(A)(1)), and sentencing him to an aggregate
prison term of eleven to twelve and one-half years. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Around 3:00 a.m. on January 16, 2019, police received a call from the
Walmart store in Zanesville, Ohio, indicating a man in the store, later identified as
Appellant, was acting in a suspicious manner. Appellant randomly filled a cart with high
price items, which store staff found unusual for that hour of the morning. Further, the
store recently had experienced thefts by a man matching Appellant’s description.
{¶3} Deputy Wade Kanavel responded to the call. Dep. Kanavel went to the
electronics department to observe Appellant, then made contact with Appellant. The
deputy explained Walmart was concerned with the amount of merchandise Appellant had
in his cart, and he asked how Appellant intended to pay for the merchandise. Appellant
indicated he intended to pay with cash. However, Appellant admitted upon further
questioning he did not have cash on his person. Appellant then told the deputy he would
pay with a credit card. However, Appellant also did not have a credit card with him.
Appellant told the deputy he would call his mother to come pay for the items.
{¶4} Dep. Kanavel asked Appellant for information about his identity. Appellant
provided two different names, and a date of birth. The deputy escorted Appellant to the
Muskingum County, Case No. CT2020-0015 3
front of the store, where Appellant was instructed to sit on a bench, while dispatch
checked the information. Deputy Chevy Hood had arrived, and waited by the front
entrance.
{¶5} Unable to confirm Appellant’s identity, police indicated Appellant would be
detained until they could ascertain his identity and check for outstanding warrants.
Appellant refused to stand up from the bench upon request. As the deputies attempted
to get Appellant off the bench, Appellant lowered his shoulder into Dep. Hood. Both
deputies fell to the ground, dislocating and fracturing Dep. Hood’s ankle.
{¶6} Appellant ran to the parking lot. Dep. Kanavel’s attempt to stop Appellant
with a taser gun was unsuccessful. Appellant got into a Toyota Tacoma truck and left the
parking lot. Other officers responded and began pursuit.
{¶7} Appellant was eventually pursued to Crock Road, where he turned into a
driveway. The driveway was icy, allowing Appellant to circle around and return to the
roadway. Appellant then backed into the police cruiser behind him, pushing it into a
second cruiser which had been following. Appellant continued to refuse to stop his truck.
{¶8} Eventually, a third cruiser arrived on the scene and pinned Appellant’s truck
between the cruisers. Appellant was apprehended.
{¶9} Appellant was indicted by the Muskingum County Grand Jury in case
number CR2019-0035 with aggravated burglary, aggravated robbery, felonious assault
on a peace officer, failure to comply, two counts of vandalism, and possession of criminal
tools, with a specification for forfeiture of the Toyota Tacoma truck.
{¶10} Appellant was initially found incompetent to stand trial. The court ordered
Appellant to be placed in a behavioral health facility in Athens, Ohio, for evaluation. While
Muskingum County, Case No. CT2020-0015 4
there, he grabbed an employee of the facility, took the employee’s keys, and escaped the
facility. Appellant was later found in a house in Zanesville. Appellant barricaded himself
in the residence and refused to come out until officers were able to enter the residence
and apprehend Appellant. Appellant was indicted by the Muskingum County Grand Jury
in case number CR2019-0400 with one count of escape.
{¶11} Appellant was restored to competency and the cases proceeded to a
negotiated plea. Appellant entered pleas of guilty in case number CR2019-0035 to
aggravated burglary, assault on a peace officer (amended from felonious assault on a
peace officer), one count of vandalism, and possession of criminal tools, including the
forfeiture specification. All other charges were dismissed. The trial court sentenced him
to eight years incarceration for aggravated burglary, eighteen months incarceration for
assault on a peace officer, twelve months incarceration for vandalism, and twelve months
incarceration for possession of criminal tools, to be served concurrently to each other, but
consecutively to the sentence imposed in CR2019-0400. Appellant also entered a plea
of guilty to escape in case number CR2019-0400. The trial court sentenced him pursuant
to the Reagan Tokes Act to a term of incarceration of 3-4½ years, to be served
consecutively to the sentence imposed in CR2019-0035, for an aggregate term of
incarceration of 11-12½ years.
{¶12} It is from the February 19, 2020 judgments of the Muskingum County
Common Pleas Court Appellant prosecutes his appeal, assigning as error:
I. JOHN BEATTY DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY IN CR2019-0035 OR CR2019-0400, IN
Muskingum County, Case No. CT2020-0015 5
VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
BEATTY’S TWO MOTIONS TO DISMISS HIS TRIAL COUNSEL, IN
VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION.
III. THE TRIAL COURT ERRED IN FINDING THAT BEATTY WAS
COMPETENT TO PROCEED WITH THE LEGAL MATTERS AGAINST
HIM, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
IV. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED
CODE’S SENTENCES FOR FIRST AND SECOND DEGREE
QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE
UNITED STATES AND OHIO.
V. THE TRIAL COURT PLAINLY ERRED BY FAILING TO MERGE
BEATTY’S OFFENSE OF POSSESSION OF CRIMINAL TOOLS AND
VANDALISM.
VI. JOHN BEATTY RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE
Muskingum County, Case No. CT2020-0015 6
UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION.
I.
{¶13} In his first assignment of error, Appellant argues his guilty pleas were not
knowingly, willingly and intelligently made because the trial court failed to inform him his
plea was a complete admission of guilt.
{¶14} Crim. R. 11(C) provides in pertinent part:
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following:
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
{¶15} Crim.R. 11(B), captioned “Effect of guilty or no contest pleas,” states a plea
of guilty “is a complete admission of the defendant's guilt.”
{¶16} The information a guilty plea is a complete admission of guilt, along with the
other information required by Crim.R. 11, ensures defendants enter pleas with knowledge
of rights they would forgo and creates a record by which appellate courts can determine
whether pleas are entered voluntarily. See State v. Nero (1990), 56 Ohio St.3d 106, 107,
564 N.E.2d 474; (1990). The right to be informed a guilty plea is a complete admission
Muskingum County, Case No. CT2020-0015 7
of guilt is not constitutional and therefore is subject to review under a standard of
substantial compliance. Id.{¶17} Although the failure to adequately inform a defendant of his constitutional
rights would invalidate a guilty plea under a presumption it was entered involuntarily and
unknowingly, failure to comply with respect to rights which are not constitutional in nature
will not invalidate a plea unless the defendant thereby suffered prejudice. Id. at 108, 564
N.E.2d 474. The test for prejudice is “whether the plea would have otherwise been made.”
Id. A defendant who has entered a guilty plea without asserting actual innocence is
presumed to understand he has completely admitted guilt. State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus. In such circumstances, a court's failure to
inform the defendant of the effect of his guilty plea as required by Crim.R. 11(C)(2) is
presumed not to be prejudicial. Id.{¶18} In the instant case, the trial court failed to inform Appellant his guilty plea
would constitute a complete admission of guilt. However, while at earlier hearings in the
case Appellant asserted there was no basis for the charges of aggravated burglary and
aggravated robbery, at the plea hearing Appellant failed to assert actual innocence of any
of the charges to which he was entering a plea. In fact, Appellant’s statement on the
record immediately after entering his pleas acknowledges his guilt:
THE DEFENDANT: Yes, sir, Your Honor. I wrote this last night.
Your Honor, I would like to start by saying that I am truly sorry to everyone
my actions affected. I don’t want to make excuses, but during the time that
these things took place, I was suffering a lot of loss. I lost my grandma, my
Muskingum County, Case No. CT2020-0015 8
best friend, my dog, and recently my wife. That’s not an excuse, but at the
time I wasn’t thinking right. I personally wanted to die and be with them.
Everything was just so unreal. Nobody can prepare for a loss like that.
I am so sorry to everyone I affected while being so self-destructive.
I know I handled things wrong, but I don’t feel that this sentence reflects my
crime. I am a man of my Lord and Savior Jesus Christ, and whatever I
receive today, I will take in faith. I just want the Court to understand my
actions that day were not made in a clear mind. Thanks for your time, Your
Honor.
{¶19} Tr. (2/18/20) 24-25.
{¶20} We find the Crim. R. 11 error is not prejudicial pursuant to Griggs, supra, as
Appellant did not assert actual innocence at his change of plea hearing.
{¶21} Appellant also argues he was forced to go forward with counsel who wanted
to pursue a plea bargain, and he did not have adequate time to consider his options before
being pressured by counsel to proceed with a guilty plea. He relies on representations
made in his docketing statement and his own statements made in the hearing on his
motion to dismiss counsel in support of his claims. The docketing statement is not
evidence, and the record does not support Appellant’s claim he did not have adequate
time to consider his options. Further, the mere fact counsel sought to pursue a plea
bargain does not demonstrate counsel pressured Appellant into entering a plea, rendering
Appellant’s plea involuntary. We find the record does not support Appellant’s claim his
Muskingum County, Case No. CT2020-0015 9
plea was not voluntarily and willingly made based on pressure from counsel and
inadequate time to consider his options.
{¶22} The first assignment of error is overruled.
II.
{¶23} In his second assignment of error, Appellant argues the trial court erred in
overruling his two motions to dismiss his court-appointed attorney.
{¶24} “To discharge a court-appointed attorney, the defendant must show a
breakdown in the attorney-client relationship of such magnitude as to jeopardize the
defendant's right to effective assistance of counsel.” State v. Coleman, 37 Ohio St.3d 286,
525 N.E.2d 792 (1988), paragraph four of the syllabus. “An indigent defendant has no
right to have a particular attorney represent him and therefore must demonstrate ‘good
cause’ to warrant substitution of counsel.” State v. Cowans, 87 Ohio St.3d 68, 72, 717
N.E.2d 298, quoting United States v. Iles, 906 F.2d 1122, 1130 (C.A.6, 1990).
{¶25} The trial court's decision is reviewed under an abuse of discretion standard.
Id. In order to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶26} On October 31, 2019, Appellant filed his first motion to remove his
appointed attorney. In his memorandum in support, he argued she discussed the
possibility of a plea deal with him despite the fact he believed there was no evidence to
support the charges of aggravated burglary and aggravated robbery and he was not
interested in a plea deal, and she refused his demands to file various pre-trial motions,
including a motion to suppress, a motion to dismiss, and a motion to continue the case.
Muskingum County, Case No. CT2020-0015 10
{¶27} The trial court held a hearing on the motion on November 13, 2019. At the
hearing, Appellant opined his attorney would not try to get the charges of aggravated
burglary and aggravated robbery dismissed despite the fact the State had no evidence
on those charges, and she would not file a motion to continue the case. Counsel noted
she had filed a motion to continue the case, and further tried to do what her client asked
to the best of her abilities within the bounds of the ethical rules and what she believed to
be adequate and competent legal representation.
{¶28} The record demonstrates counsel communicated with Appellant. Her
statements to the court reflect she understood what Appellant wanted; however, she
could only represent him within the bounds of the ethical rules and what she determined
to be competent legal representation under the facts of the instant case. There was not
a breakdown in communication between Appellant and his attorney, but rather a
disagreement as to the best line of defense. See State v. Murphy, 91 Ohio St.3d 516,
524, 2001-Ohio-112, 747 N.E.2d 765, 782. We find the trial court did not abuse its
discretion in overruling Appellant’s first motion to dismiss his attorney.
{¶29} Appellant filed a second motion to dismiss his attorney on February 7, 2020.
The trial court overruled the motion on February 18, 2020, after considering statements
made by Appellant and counsel at a hearing held February 14, 2020. A transcript of this
hearing has not been provided to this Court. Appellant’s praecipe for the transcript of the
proceedings requested only the transcript of the February 18, 2020 hearing on his change
of plea and sentencing. Appellant later filed a motion to supplement the record with the
transcripts of the hearings held on November 13, 2019 (first motion to dismiss counsel)
and June 14, 2019 (competency). This Court granted the motion to supplement; however,
Muskingum County, Case No. CT2020-0015 11
no request was made to supplement the record with the February 14, 2020 hearing on
Appellant’s second motion to dismiss his attorney. “When portions of the transcript
necessary for resolution of assigned errors are omitted from the record, the reviewing
court has nothing to pass upon and thus, as to those assigned errors, the court has no
choice but to presume the validity of the lower court's proceedings, and affirm.” Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385 (1980).
{¶30} The second assignment of error is overruled.
III.
{¶31} In his third assignment of error, Appellant argues the trial court erred in
finding him competent to stand trial.
{¶32} The standard for competence is set forth in R.C. 2945.37(G):
A defendant is presumed to be competent to stand trial. If, after a
hearing, the court finds by a preponderance of the evidence that, because
of the defendant's present mental condition, the defendant is incapable of
understanding the nature and objective of the proceedings against the
defendant or of assisting in the defendant's defense, the court shall find the
defendant incompetent to stand trial and shall enter an order authorized by
section 2945.38 of the Revised Code.
{¶33} Appellant was initially found incompetent to stand trial. The court ordered
Appellant to be placed in a behavioral health facility in Athens, Ohio, for evaluation. On
June 12, 2019, a report of Dr. John Tilley was filed in the trial court, finding Appellant was
Muskingum County, Case No. CT2020-0015 12
now competent to stand trial. At a hearing held June 14, 2019, Appellant stipulated to
these findings in the report concerning his competency to stand trial. Tr. (6/14/19) 4.
{¶34} Appellant now argues the conclusion he was competent was undermined
by the fact “the evaluator made a contradictory conclusion that Beatty had an ‘underlying
personality pathology’ that interfered with his ability to effectively engage in the legal
proceedings.” Brief of Appellant, p. 10. The trial court’s judgment includes the full quote
concerning this personality pathology, taken from the report of Dr. Tilley:
Dr. Tilley went on to state, “Secondary to what appears to be
underlying personality pathology, there is a substantial risk that Mr. Beatty
will intentionally act inappropriately or present as uncooperative with his
attorney or the legal proceedings in some fashion. However, any such
behavior will not, in all probability, be attributable to mental illness.
Presently, he has the capacity to understand the nature and objective of the
proceedings against him, he has the capacity to assist in his defense, and
he has the capacity to conform his behaviors to the demands of the legal
system, if he chooses to do.”
{¶35} Judgment Entry, June 17, 2019.
{¶36} The findings of Dr. Tilley concerning Appellant’s “underlying personality
pathology” are not in fact contradictory to his conclusion Appellant was competent to
stand trial. Rather, Dr. Tilley notified the trial court any appearance of incompetence on
Appellant’s part was most likely intentional misbehavior, and not a result of Appellant’s
Muskingum County, Case No. CT2020-0015 13
present mental condition as required by R.C. 2945.37(G). We find the trial court did not
err in finding Appellant competent to stand trial.
{¶37} The third assignment of error is overruled.
IV.
{¶38} Appellant was sentenced for his conviction of escape pursuant to the
Reagan Tokes Act. He argues the presumptive release provisions of the Act are
unconstitutional.
{¶39} For the reasons stated in this Court’s opinion in State v. Downard, 5th Dist.
Muskingum No. CT2019-0079, 2020-Ohio-4227, appeal allowed, 2020-Ohio-6835, we
find Appellant’s constitutional challenge is not yet ripe for review.
{¶40} The fourth assignment of error is overruled.
V.
{¶41} In his fifth assignment of error, Appellant argues the trial court committed
plain error in failing to merge his convictions of possession of criminal tools and vandalism
as allied offenses of similar import.
{¶42} An accused's failure to raise the issue of allied offenses of similar import in
the trial court forfeits all but plain error, and a forfeited error is not reversible error unless
it affected the outcome of the proceeding and reversal is necessary to correct a manifest
miscarriage of justice. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 3. Accordingly, an accused has the burden to demonstrate a reasonable probability
the convictions are for allied offenses of similar import committed with the same conduct
and without a separate animus. Id. Absent such showing, the accused cannot
Muskingum County, Case No. CT2020-0015 14
demonstrate the trial court's failure to inquire whether the convictions merge for purposes
of sentencing was plain error. Id.{¶43} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, the
Ohio Supreme Court revised its allied-offense jurisprudence. When considering whether
there are allied offenses that merge into a single conviction under R.C. 2941.25(A), both
the trial court and the reviewing court on appeal must first take into account the conduct
of the defendant. Id. In other words, how were the offenses committed? Id. If any of the
following is true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—
in other words, each offense caused separate, identifiable harm, (2) the offenses were
committed separately, and (3) the offenses were committed with separate animus or
motivation. Id.{¶44} In the instant case, Appellant was indicted on one count of possession of
criminal tools, a 1997 Toyota Tacoma, with purpose to use the same in commission of a
felony. The indictment does not specify the underlying felony offense, and a bill of
particulars was not filed in the instant case.
{¶45} Appellant argues the possession of criminal tools offense pertains to his use
of his truck to commit felony vandalism. The State argues in response Appellant
committed the offense of possession of criminal tools as soon as he fled Walmart in the
Toyota Tacoma. We agree.
{¶46} The crime of possession of criminal tools is defined by R.C. 2923.24(A) as,
“No person shall possess or have under the person's control any substance, device,
instrument, or article, with purpose to use it criminally.” The crime as defined includes no
Muskingum County, Case No. CT2020-0015 15
requirement the “criminal purpose” be a crime for which the defendant was indicted, nor
does it require the defendant possess the instrument for a singular criminal purpose; it
merely requires the purpose to use the instrument be criminal in nature.
{¶47} The crime of escape is defined by R.C. 2921.34(A):
(A)(1) No person, knowing the person is under detention, other than
supervised release detention, or being reckless in that regard, shall
purposely break or attempt to break the detention, or purposely fail to return
to detention, either following temporary leave granted for a specific purpose
or limited period, or at the time required when serving a sentence in
intermittent confinement.
{¶48} The recitation of the facts set forth following Appellant’s plea states
Appellant was detained at the front of the store by Dep. Kanavel, while Dep. Hood waited
at the front door to the Walmart. Officer indicated Appellant was going to continue to be
detained while they attempted to ascertain his identity in order to check for outstanding
warrants. While attempting to remove Appellant from the bench in the front of the store,
a scuffle ensued, during which Appellant knocked Dep. Hood to the ground, fracturing
Hood’s ankle. At this point, Appellant escaped the store. Dep. Kanavel attempted to tase
Appellant to stop him, but was unsuccessful, and Appellant fled the parking lot in the
Toyota Tacoma truck.
{¶49} Although Appellant was not separately charged with the felony offense of
escape relating to the events occurring at Walmart, the record demonstrates the court
Muskingum County, Case No. CT2020-0015 16
could have concluded Appellant possessed the truck with intent to use it purposefully for
the criminal offense of escape from detention by police at Walmart. Therefore, we find
Appellant has not demonstrated he could not be separately convicted of possession of
criminal tools, where the factual recitation demonstrated he used the truck with purpose
to commit the felony offense of escape.
{¶50} We find Appellant has not demonstrated the convictions are for allied
offenses of similar import committed with the same conduct and without a separate
animus, and therefore we find the trial court did not commit plain error in failing to inquire
whether the offenses should merge.
{¶51} The fifth assignment of error is overruled.
VI.
{¶52} In his sixth assignment of error, Appellant argues counsel was ineffective
for failing to raise the issue of the constitutionality of the Reagan Tokes Act, and for failing
to argue the offenses of vandalism and possession of criminal tools were allied offenses
of similar import and should therefore have merged.
{¶53} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, Appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). In other words, Appellant must show counsel’s conduct so undermined the
Muskingum County, Case No. CT2020-0015 17
proper functioning of the adversarial process that the trial cannot be relied upon as having
produced a just result. Id.{¶54} For the reasons stated in our discussion of Appellant’s fourth assignment of
error, the issue of the constitutionality of the Reagan Tokes Act is not yet ripe for review,
and therefore Appellant has not shown a reasonable probability of a change in the
outcome had counsel raised the issue in the trial court.
{¶55} For the reasons stated in our discussion of Appellant’s fifth assignment of
error, Appellant has not demonstrated a reasonable probability of a change in the
outcome had counsel argued possession of criminal tools and vandalism were allied
offenses of similar import and should therefore have merged.
{¶56} The sixth assignment of error is overruled.
{¶57} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, J.
Wise, Earle, J. concurs
Gwin, P.J., concurs in part, dissents in part
Muskingum County, Case No. CT2020-0015 18
Gwin, P.J., concurs in part; dissents in part
{¶58} I respectfully concur in the majority’s disposition of Beatty’s First, Second
Third, and Fifth Assignments of Error. However, I do so for the following reasons.
{¶59} In State v. Barksdale, 2 Ohio St.3d 126, 443 N.E.2d 501(1983), Barksdale
was indicted on one count of breaking and entering in violation of R.C. 2911.13(B), the
alleged trespass occurring on a car lot. During Barksdale’s jury trial it was established
without dispute that the subject car lot was open to the public at the time of Barksdale’s
entry thereon and that Barksdale had not been given permission either to enter any of the
vehicles present on the lot or to remove any items therefrom. Barksdale was convicted.
The court of appeals reversed Barksdale’s conviction, ruling that the state had failed to
prove an essential element of the crime of breaking and entering, i.e., trespass. The Ohio
Supreme Court accepted the state’s appeal to address the question of whether one who
enters premises open to the public with an intent to commit thereon a felonious act, forfeits
his right of entry and becomes a trespasser, subject to prosecution under R.C. 2911.13
for breaking and entering. The Ohio Supreme Court emphatically rejected this entreaty,
This court is convinced that were we to find that appellee, by virtue
of his felonious intent, lost his right to enter the lot, a dramatic and
completely unfounded change would be wrought in our system of justice.
Literally thousands of criminal defendants, heretofore chargeable with only
one offense, would suddenly find themselves answerable for a second, with
no concomitant benefit accruing to society for whose protection the criminal
statutes replete with their penalties exist. Without regard to the nature of
their crimes, defendants would incur liability for breaking and entering
Muskingum County, Case No. CT2020-0015 19
whenever they stepped onto premises-whether stores, offices or even their
own friends’ and relatives’ homes-with the intention of committing a felony.
Though we certainly do not wish to reward criminals for exploiting the
innocently extended invitations of merchants, shopkeepers and gracious
hosts, neither do we care to penalize criminals indiscriminately for acts for
which the General Assembly clearly intended no punishment.
The treatment that would be accorded a shoplifter, if appellant’s
construction of R.C. 2911.13(B) were to become the law, best exemplifies
the potential oppressiveness of such an interpretation of the breaking and
entering statute. Traditionally, theft and larceny statutes have been relied
on to prosecute shoplifters. Under the regime which appellant envisions,
however, a shoplifter would also be liable for breaking and entering, his
felonious purpose-shoplifting-having vitiated his privilege to enter the store,
a privilege enjoyed by the general public. The General Assembly clearly did
not intend such a radical and unwarranted extension of the breaking and
entering statute.
2 Ohio St.3d at 128, 443 N.E.2d 501. The Supreme Court concurred with the reasoning
expressed by the courts in Florida, Wisconsin and North Carolina which have addressed
the question posed in Barksdale concerning the proper application of breaking and
entering statutes. The Ohio Supreme Court concluded,
R.C. 2911.13 was designed to punish unauthorized entry with
felonious intent upon another’s property where the entry itself was
significantly egregious. The statute was not meant to function so as to
Muskingum County, Case No. CT2020-0015 20
enhance every criminal violation occurring on property not owned by the
defendant. Such a construction does no more than trivialize the offense of
breaking and entering, and cannot be embraced.
Moreover, we are strengthened in the views we express today by the
strictures of R.C. 2901.04(A), which mandates that: “Sections of the
Revised Code defining offenses or penalties shall be strictly construed
against the state, and liberally construed in favor of the accused.” To
interpret the breaking and entering statute in a way that imposes greater
liabilities upon criminal defendants than the General Assembly intended
comports with neither the words nor the spirit of R.C. 2901.04(A). See State
v. Carroll (1980), 62 Ohio St.2d 313, 405 N.E.2d 305 [16 O.O.3d 359]
2 Ohio St.3d at 129, 443 N.E.2d 501.
{¶60} I find the same reasoning would apply to the instant case. Beatty’s entrance
into the store open to the public would normally be insufficient to prove the element of
“trespass” necessary to sustain a conviction for aggravated burglary. The fact that he
either committed a theft offense or assaulted the police officer while in the store cannot
enhance those crimes into an aggravated burglary under the reasoning adopted by the
Ohio Supreme Court in Barksdale. However, a review of the record in the case at bar
reveals a letter to Beatty from his attorney dated March 20, 2019 that states, in relevant
part,
Please find enclosed a notice from Walmart informing you that you were
placed on the no trespass list on July 14, 2018. The Prosecutor provided this as
part of discovery.
Muskingum County, Case No. CT2020-0015 21
{¶61} Accordingly, it would appear that Beatty was a trespasser when he entered
the Walmart on January 16, 2019. Because he was a trespasser by virtue of having been
placed upon Walmart’s no trespassing list, he could be convicted of aggravated burglary.
Therefore, I concur in the majority’s disposition of Beatty’s First, Second Third, and Fifth
Assignments of Error.
{¶62} I respectfully dissent from the majority’s opinion concerning ripeness and
Appellant’s Fourth and Sixth Assignments of Error for the reasons set forth in my
dissenting opinion in State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-Ohio-
5501.
{¶63} I further note that the Ohio Supreme Court has accepted a certified conflict
on the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review on
direct appeal or only after the defendant has served the minimum term and been subject
to extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas No. L-19-
1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d
1505, 2020-Ohio-6913, 159 N.E.3d 1150(Table); State v. Downard, 5th Dist. Muskingum
No. CT2019-0079, 2020-Ohio-4227, appeal accepted on Appellant’s Proposition of Law
No. II, State v. Downard, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1507(Table)(Sua sponte, cause held for the decision in 2020-1266, State v. Maddox).
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOHN BEATTY :
:
Defendant-Appellant : Case No. CT2020-0015
For the reasons stated in our accompanying Opinion, the judgment of the
Muskingum County Court of Common Pleas, is affirmed. Costs assessed to Appellant.