State v. McLeod

[Cite as State v. McLeod, 2015-Ohio-245.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 14 CA 53
YUSUF A. MCLEOD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 13 CR 433
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 12, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM T. CRAMER
PROECUTING ATTORNEY 470 Olde worthington Road
20 South Second Street Suite 200
Fourth Floor Westerville, Ohio 43082
Newark, Ohio 43055
Licking County, Case No. 14 CA 53 2
Wise, P. J.
{¶1} Defendant-Appellant Yusuf McLeod appeals his June 5, 2014, sentence
and conviction entered in the Licking County Court of Common Pleas on two counts of
Burglary, two counts of Breaking and Entering, one count of Grand Theft and one count
of Receiving Stolen Property following a jury trial.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} As a result of his alleged involvement in two incidents of theft from
buildings on the Denison University campus, Appellant Yusuf McLeod was charged with
two counts of burglary, in violation of R.C. §2911.12(A)(1), both second degree felonies;
two counts of breaking and entering, in violation of R.C. §2911.13(B), both fifth degree
felonies; one count of receiving stolen property, in violation of R.C. §2913.51(A), which
was a fifth degree felony under R.C. §2913.71 because the property was a credit card;
and one count of grand theft, in violation of R.C. §2913.02(A)(1), a fourth degree felony.
{¶4} The undisputed facts are as follows:
Wallet Theft
{¶5} Maureen Harmon was the associate director of communications at
Denison University and worked in the Burton Morgan office building. Harmon had an
office with a door on the fourth floor of the building. The building houses various
administrative staff, including advancement and career services, and occasionally hosts
events. (T. at 110-113).
{¶6} On July 17, 2013, Harmon's credit card company alerted her to a number
of suspicious purchases. Harmon checked her purse and found that her wallet was
Licking County, Case No. 14 CA 53 3
missing. (T. at 114-115). Harmon remembered having her wallet with her at lunch that
day. (T. at 117). Harmon testified that when she left her office, she typically left her door
unlocked and ajar. (T. at 122-124). Sometime that day, a sales rep for Revol Wireless at
the Indian Mound Mall in Licking County sold a phone to someone using the name
Efrem Harris. The person provided a photo ID and used Harmon's credit card. The
person came back fifteen minutes later and purchased another phone for his brother.
The sales rep was 70% sure the person was Appellant. (T. at 157-164).
{¶7} A worker at Aeropostale at the same mall also remembered Appellant
purchasing some items that day. That worker stated that Appellant seemed suspicious
because he asked the worker to pick out clothes for him and did not care about the
price. The worker told her assistant manager about it afterwards. Later that night they
received a call from the police that the credit card Appellant used had been stolen. (T. at
170-179).
{¶8} The same day, someone also used Harmon's credit card to purchase
jewelry from a stand at the mall. The clerk remembered that the purchaser was a black
male, but could not positively identify that person as Appellant. (T. at 187-191).
{¶9} Laura Frame worked on the fifth floor of Burton Morgan building. (T. at
125-126). Frame learned of Harmon's missing wallet, then heard of other thefts which
occurred in the athletic building. Frame saw a surveillance photo of the suspect in the
athletic building thefts and recognized the person as Appellant. Frame realized she had
seen Appellant in their offices on the day Harmon's wallet was stolen, and he was
asking for directions to the student activity center. (T. at 128-132).
Licking County, Case No. 14 CA 53 4
{¶10} Betsy Russo also worked on the fifth floor of the Burton Morgan building.
(T. at 138-139). Russo also saw a photo from the athletic building thefts and recognized
the person as Appellant. Russo recalled that she had given Appellant directions on the
day Harmon's wallet was stolen. (T. at 141-143).
{¶11} Matthew Hughes also worked in the Burton Morgan building. Hughes
thought the person in the surveillance photos from the athletic building theft looked
similar to a person he had seen around his building. Hughes saw the person walk by his
office twice the day Harmon's wallet was stolen. Hughes was 80% sure the person was
Appellant. (T. at 292-298).
Athletic Facility Thefts
{¶12} Steven Romine was the assistant supervisor at the Denison athletic
facility. (T. at 196). In late July, the building was undergoing the final phase of
remodeling. (T. at 203-204). Romine testified that there was construction going on with
workers in and out. The workers mostly used the main entrance, but if they had big
equipment, they would come through one of the delivery/garage doors. (T. at 215-216).
{¶13} Romine testified that there was a cheerleading camp using the athletic
building Friday night, July 19, 2013. Romine stayed to supervise and lock up after they
left, which was between 10:00 and 11:00 p.m. (T. at 208-210). When Romine came into
work the next morning, he noticed items missing from his office, including a walkie-talkie
radio. Romine reported the loss to security and did a walk-through of the building, but
did not notice anything else missing. (T. at 206-207).
{¶14} Stuart Brown was the project manager for the construction on the athletic
facility. Brown testified that he had keys to the interior building doors, but not the
Licking County, Case No. 14 CA 53 5
exterior doors. Brown kept the keys hanging on the wall in their basement work area
when they were not being used. (T. at 303-305, 309-310). Brown got a call about the
thefts and went down to the facility to meet with some people. Brown checked for their
keys, but could not find them. Brown testified that he left the keys hanging on the wall in
the basement construction office on Friday night when he left. (T. at 305-306). The keys
were never recovered. (T. at 310). Brown denied that Appellant worked for the
construction company or any of their subcontractors in any capacity. (T. at 306).
{¶15} Steven Morrow was a janitor for Denison assigned to clean the common
areas of buildings at night when the buildings are closed. On Friday, July 19th, Morrow
arrived at work around 11:00 p.m. and was assigned to the athletic facility. Morrow saw
Appellant in the aquatic area that night. Morrow testified that he assumed Appellant was
a Denison employee because he had a Denison radio and a set of keys. Appellant
asked Morrow if he knew of any events going on and Morrow told him only the
cheerleading camp. The encounter was captured on surveillance cameras. (T. at 222-
227). Morrow left the athletic facility after about three hours and moved on to other
buildings. (T. at 227-228). Morrow was not suspicious that Appellant was in the athletic
facility after hours because there was construction, and they had workers in during the
week. Morrow stated that he had never seen Appellant before. (T. at 231-232).
{¶16} A secretary for the athletic department testified that she was missing some
cameras, projectors, and tripods. (T. at 240). The secretary testified that their equipment
is all tagged with a CSO number and sticker so that they can keep track of it for
inventory purposes. (T. at 241-245).
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{¶17} A Denison information security officer testified that they keep records of
serial numbers of electronic equipment. (T. at 275). They conducted a post-theft
inventory of equipment and created a spreadsheet showing what was missing with the
serial numbers. (T. at 276-278).
{¶18} Denison ultimately reported that it was missing fifteen computers, six
cameras, an iPad and an iPod. (T. at 267).
Investigation
{¶19} The police published a still photograph of the suspect from the
surveillance video. The photograph produced information that the suspect was
Appellant, and Appellant had a tattoo that matched the suspect in the video. (T. at 256-
258). The police located a car that was registered to Appellant. Officer King of the
Granville Police assisted in searching the car.
{¶20} Officer King testified that while they were examining the car, Appellant
walked up and said it was his car. Appellant gave them the keys so that they could
search it. Inside the car they found three IDs on the front passenger seat in a wallet: two
belonging to Appellant and one for someone named Efrem Harris. They also found the
cologne that was purchased with the stolen credit card. Lastly, they found two video
cameras that were traced back to Denison. (T. at 322-330).
{¶21} As a result of the investigation, Appellant was arrested by the Columbus
police. Officer Dailey of the Granville Police testified that he picked Appellant up from
the Columbus police in a grocery store parking lot. Dailey stated that the Columbus
police provided a bag containing Appellant's belongings, which included three cellular
Licking County, Case No. 14 CA 53 7
telephones, two of which had been purchased using Harmon's stolen credit card. (T. at
258-263). The police found pictures of Appellant on the phones. (T. at 354-355).
{¶22} Appellant testified in his own defense, denying that he was on campus on
the July 17, 2013, or that he was ever in the Burton Morgan building. (T. at 420).
{¶23} At the conclusion of the trial, the jury found Appellant guilty as charged. At
sentencing, the trial court merged the breaking and entering counts with the burglary
counts and also merged the grand theft count with the corresponding burglary count.
The trial court imposed a sentence of seven (7) years for each burglary count, to be
served consecutively. The trial court also sentenced Appellant to one (1) year in the
receiving stolen property count, to be served concurrently to the other sentences, for an
aggregate sentence of fourteen (14) years.
{¶24} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶25} “I. APPELLANT'S DUE PROCESS RIGHTS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION FOR
BURGLARY IN COUNT ONE, AND THE FINDING OF GUILT OF BREAKING AND
ENTERING ON COUNT TWO, WERE NOT SUPPORTED BY SUFFICIENT
EVIDENCE.
{¶26} “II. THE CONVICTION FOR BURGLARY IN COUNT ONE AND THE
FINDING OF GUILT FOR BREAKING AND ENTERING IN COUNT TWO WERE NOT
SUPPORTED BY THE WEIGHT OF THE EVIDENCE.
Licking County, Case No. 14 CA 53 8
{¶27} “III. APPELLANT'S DUE PROCESS RIGHTS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED BY PROSECUTORIAL
MISCONDUCT DURING THE CLOSING ARGUMENT.”
I., II.
{¶28} In his First and Second Assignments of Error, Appellant argues that his
convictions for burglary (Count 1) and breaking and entering (Count 2) were against the
manifest weight and sufficiency of the evidence. We disagree.
{¶29} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St. 3d 259 (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.” Jenks at
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On
review for manifest weight, a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine “whether in resolving conflicts in the evidence, 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.” State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). See also,
State v. Thompkins, 78 Ohio St. 3d 380, 1997–Ohio–52. The granting of a new trial
“should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.” Martin at 175.
{¶30} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St. 3d 182 (1990).
Licking County, Case No. 14 CA 53 9
The trier of fact “has the best opportunity to view the demeanor, attitude, and credibility
of each witness, something that does not translate well on the written page.” Davis v.
Flickinger, 77 Ohio St. 3d 415, 418, 1997-Ohio-260. In addition, circumstantial evidence
is that which can be “inferred from reasonably and justifiably connected facts.” State v.
Fairbanks, 32 Ohio St. 2d 34 (1972), paragraph five of the syllabus. “[C]ircumstantial
evidence may be more certain, satisfying and persuasive than direct evidence.” State v.
Richey, 64 Ohio St. 3d 353, 1992-Ohio-44. It is to be given the same weight and
deference as direct evidence. Jenks, supra.
{¶31} With regard to Counts 1 and 2, Appellant was convicted of burglary
pursuant to R.C. §2911.12(A) and breaking and entering pursuant to R.C. §2911.13(B),
which provide:
{¶32} R.C. §2911.12, Burglary:
{¶33} (A) No person, by force, stealth, or deception, shall do any of the
following:
{¶34} (1) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when another person other than
an accomplice of the offender is present, with purpose to commit in the structure or in
the separately secured or separately occupied portion of the structure any criminal
offense;
{¶35} (2) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or temporary
habitation of any person when any person other than an accomplice of the offender is
Licking County, Case No. 14 CA 53 10
present or likely to be present, with purpose to commit in the habitation any criminal
offense;
{¶36} (3) Trespass 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.
{¶37} R.C. §2911.13, Breaking and Entering:
{¶38} (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.
{¶39} (B) No person shall trespass on the land or premises of another, with
purpose to commit a felony.
{¶40} (C) Whoever violates this section is guilty of breaking and entering, a
felony of the fifth degree.
{¶41} Criminal trespass, in turn, is defined in R.C. §2911.21(A) as,
{¶42} No person, without privilege to do so, shall do any of the following:
{¶43} (1) Knowingly enter or remain on the land or premises of another;
{¶44} (2) Knowingly enter or remain on the land or premises of another, the use
of which is lawfully restricted to certain persons, purposes, modes, or hours, when the
offender knows the offender is in violation of any such restriction or is reckless in that
regard;
{¶45} (3) Recklessly enter or remain on the land or premises of another, as to
which notice against unauthorized access or presence is given by actual communication
Licking County, Case No. 14 CA 53 11
to the offender, or in a manner prescribed by law, or by posting in a manner reasonably
calculated to come to the attention of potential intruders, or by fencing or other
enclosure manifestly designed to restrict access;
{¶46} (4) Being on the land or premises of another, negligently fail or refuse to
leave upon being notified by signage posted in a conspicuous place or otherwise being
notified to do so by the owner or occupant, or the agent or servant of either.
{¶47} R.C. §2901.01(A)(12) defines “privilege” as “an immunity, license, or right
conferred by law, bestowed by express or implied grant, arising out of status, position,
office, or relationship, or growing out of necessity.”
{¶48} Appellant herein argues that the State failed to prove that he used “force,
stealth, or deception” to gain access to the building or Harmon’s office. Appellant
admits that “walking into an open office and stealing a wallet from an unattended purse
may be theft”, such action “does not constitute burglary or breaking and entering absent
actual evidence of stealth or deception.” (Appellant’s Brief at 11).
{¶49} With regard to the count of Breaking and Entering, we find that Appellant
was not charged under subsection (A) but under (B) which does not contain the “by
force, stealth or deception” element. We therefore find Appellant’s arguments as they
apply to the charge of breaking of entering to be not well-taken. Our remaining analysis
will apply only to the burglary charge.
{¶50} “Force is defined in Section 2901.01(A)(1) of the Ohio Revised Code as
‘any violence, compulsion, or constraint physically exerted by any means upon or
against a person or thing.’ ”
Licking County, Case No. 14 CA 53 12
{¶51} Under Ohio law, the opening of a door falls within the definition of force,
even if the door if unlocked. State v. Shirley, 9th Dist. No. 20569, 2002 WL 5177 at *2
(Jan. 2, 2002); State v. Hibbard, 12th Dist. Nos. CA 2001–12–276, CA 2001–12,286,
2003–Ohio–707. Additionally, to further open a door which is already partially open is
considered force. Goins v. State (1914), 90 Ohio St. 176; State v. Stump, Perry County,
5th Dist. App. No. 13-CA-0006, 2014-Ohio-1706
{¶52} The code defines “deception” as “knowingly deceiving another or causing
another to be deceived by any false or misleading representation, by withholding
information, by preventing another from acquiring information, or by any other conduct,
act, or omission that creates, confirms, or perpetuates a false impression in another,
including a false impression as to law, value, state of mind, or other objective or
subjective fact.” R.C. §2913.01(A)
{¶53} The Ohio Revised Code does not define “stealth.” However, the most
current version of the Ohio Jury Instructions gives the identical definition: “ ‘Stealth’
means any secret or sly act to avoid discovery and to gain entrance into or to remain
within a structure of another without permission.” 2 CR Ohio Jury Instructions 511.13(A).
{¶54} This Court and other appellate courts of this state have used a definition
that includes “remaining” on the premises as opposed to merely “entering” the
premises. See State v. Stone, 5th Dist. No.1999 AP 030012, 1999 WL 1072199 (Nov.
10, 1999); State v. Davis, 1st Dist. No. C–010477, 2002–Ohio–1982; State v. Patton, 2d
Dist. No. 2011 CA 94, 2013–Ohio–961 ¶ 14; In re Predmore, 3d Dist. Nos. 8–09–03, 8–
09–04, 8–09–05, 2010–Ohio–1626, ¶ 44; In re Carter, 4th Dist. Nos. 04CA15, 04CA16,
2004–Ohio–7285, ¶ 24; State v. DeBoe, 6th Dist. No. H–02–057, 2004–Ohio–403, ¶ 66;
Licking County, Case No. 14 CA 53 13
In re J.M., 7th Dist. No. 12 JE 3, 2012–Ohio–5283, ¶ 15; State v. Isom, 8th Dist. No
78959, 2001 WL 1671432, *4 (Nov. 29, 2001); State v. Trikilis, 9th Dist. Nos.
04CA0096–M, 04CA0097–M, 2005–Ohio–4266, ¶ 31; State v. Lane, 50 Ohio App. 2d
41, 47, 361 N.E.2d 535 (10th Dist.1976); State v. Sims, 11th Dist. No.2001–L–081,
2003–Ohio–324, ¶ 58; State v. Lamberson, 12th Dist. No. CA2000–04–012, 2001 WL
273806, (Mar. 19, 2001).
{¶55} Upon review of the testimony presented during trial, we find evidence of
force, stealth and/or deception with regard to the theft of the wallet.
{¶56} We find the element of force was proven when Ms. Harmon testified that
she only left her office door ajar which would have required Appellant to push the door
open further to gain access to her office. (T. at 483).
{¶57} We find that the jury could have found that the element of stealth was
proven by the evidence presented as to Appellant’s actions in pretending to have been
looking for the student center and asking for directions to the student center. Id.
Alternatively, the jury could have found that Appellant’s actions of walking back and
forth down the hallway outside of Harmon’s office on the fourth floor constituted stealth.
(T. at 294-295). The jury could also have found that these same acts constituted
“deception” as defined above.
{¶58} Accordingly, Appellant's convictions for burglary and breaking and
entering were not against the manifest weight and sufficiency of the evidence.
{¶59} Appellant’s First and Second Assignments of Error are denied.
Licking County, Case No. 14 CA 53 14
III.
{¶60} In his Third and final Assignment of Error, Appellant claims that
prosecutorial misconduct during closing arguments violated his Due Process rights. We
disagree.
{¶61} As set forth above, Appellant herein claims misconduct because of
statements made by the prosecutor during closing arguments. “The test regarding
prosecutorial misconduct in closing arguments is whether the remarks were improper
and, if so, whether they prejudicially affected substantial rights of the defendant.” State
v. Smith, 14 Ohio St. 3d 13, 14, 470 N.E.2d 883 (1984). “[T]he prosecution must avoid
insinuations and assertions which are calculated to mislead the jury.” Id. In cases of
clear misconduct, a mere instruction that closing arguments are not evidence is
insufficient to remedy the error. Id. at 15. A conviction will be reversed for prosecutorial
misconduct only where it is clear beyond a reasonable doubt that, absent the
prosecutor's comments, the jury would not have found the defendant guilty. State v.
Benge, 75 Ohio St. 3d 136, 141, 661 N.E.2d 1019, 1996–Ohio–227. Furthermore,
isolated comments by a prosecutor are not to be taken out of context and given their
“most damaging meaning.” See Donnelly v. DeChristoforo (1974), 416 U .S. 637, 647,
94 S. Ct. 1868, 40 L. Ed. 2d 431. Improper closing arguments must be viewed in the
context of the entire trial. Id. at ¶ 168. Generally, a prosecutor's conduct at trial is not
grounds for reversal unless that conduct deprives the defendant of a fair trial. State v.
Loza (1994), 71 Ohio St. 3d 61, 78, 641 N.E.2d 1082.
{¶62} At the end of the State’s closing arguments, the prosecutor made the
following statement:
Licking County, Case No. 14 CA 53 15
{¶63} “So you either convict him on the first version, or, please, write down an
apology and make sure you give it to him on his way out of the courtroom.” (T. at 500).
{¶64} Appellant argues that the prosecutor was, in effect, telling the jury that if
they decided to acquit Appellant, they should also find that he deserved an apology.
{¶65} We note Appellant failed to object to the aforesaid alleged instance of
prosecutorial misconduct. Error not raised in the trial court must be plain error in order
to reverse. State v. Johnson (Nov. 19, 1998), Richland App. No. 98–CA–42, 1998 WL
818026, citing State v. Long (1978), 53 Ohio St. 2d 91, 372 N.E.2d 804. Notice of plain
error is to be taken with utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice. Id. Plain error does not exist unless but for the
error, the outcome of the trial would clearly have been otherwise. State v. Nicholas
(1993), 66 Ohio St. 3d 431, 613 N.E.2d 225.
{¶66} Upon review of the record, we find that the prosecutor’s remarks appear to
be in response to Appellant’s defense theory. As to the wallet theft, Appellant claimed
that he was a victim of a misidentification. As to the thefts from the athletic center,
Appellant claimed to have been duped or made into unwittingly participating in a crime.
{¶67} Upon review, even assuming arguendo, the remark was improper, we are
unpersuaded that such would have prejudicially affected Appellant's substantial rights.
Licking County, Case No. 14 CA 53 16
{¶68} Appellant’s Third Assignment of Error is denied.
{¶69} For the foregoing reasons, the judgment of the Court of Common Pleas,
Licking County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 1210