COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59577, 59578 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION JAMES MOSELY : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 14, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case Nos. 241061 and 247524. JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones David L. Doughten Cuyahoga County Prosecutor 2000 Standard Building By: Edward F. Feran 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: James Mosely was convicted of breaking and entering (R.C. 2911.13) and possession of criminal tools (R.C. 2923.24) in common pleas case no. 241061. He also was found guilty of breaking and entering (R.C. 2911.13) and attempted theft (R.C. 2913.02, R.C. 2923.02) in common pleas case no. 247524. In consolidated appeals, Mosely challenges the sufficiency of the evidence on the breaking and entering conviction in the later case only./1\ We affirm. In reviewing the sufficiency of the evidence, we must consider the record in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the state proved beyond a reasonable doubt the essential elements of the crime. Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 61 Ohio St. 3d 259. Furthermore, the evaluation of witness credibility rests within the province of the trier of fact. State v. DeHass (1969), 10 Ohio St. 2d 230. R.C. 2911.13 defines "breaking and entering" and provides: "(A) No person[,] by force, stealth, or deception, shall trespass in an unoccupied structure, with /1\ Appellant's sole assignment of error: "The evidence is insufficient to sustain a conviction of breaking and entering in Cr-247524." - 2 - purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony. "(B) No person shall trespass on the land or premises of another, with purpose to commit a felony. ***." On December 12, 1989, between 9:00 and 9:30 p.m., Jeffrey Henning, properties manager for Central Cadillac, received a phone call from Honeywell Protection Services informing him of a possible break-in at the Central Motors building. Henning went to Central Motors, which is owned by Central Cadillac. Police, however, were unable to find anyone on the property. When the manager noticed plexiglass was missing from a window, he entered the building and placed a piece of wood over the opening. About fifteen to twenty minutes after Henning left the property, Honeywell personnel recalled him to indicate they had found someone inside the building. Henning testified he returned to the scene and noticed the wood was now missing from the window. On cross-examination, Henning acknowledged he observed footprints in the snow leading from the building on his first visit. Joseph White, a Honeywell guard and alarm serviceman, told the judge he responded to the second alarm at approximately 10:15 p.m. and observed someone in the building. According to White, this person was moving as if setting something down. When White heard glass break he yelled, "I'm outside waiting for you." The intruder responded, "F*** you." Police arrived and a search of the property disclosed a ladder inside the building next to the broken window. White found the defendant in a corner of the - 3 - building attempting to cover himself with plastic. Cleveland Police Officer John Mott arrested Mosely and found pliers and a pipe with cocaine residue in his pocket. Mosely argues this evidence is insufficient to establish he intended to commit a theft offense on the property. According to Mosely, he entered the building only to warm himself and, at most, was a trespasser. We hold the trial court reasonably could reject Mosely's version of the incident and find he intended to commit a theft. The manager noticed a large tool box had been moved thirty feet since his first visit to the building minutes before. The building had been forcibly entered and a ladder was found near a window. In light of these facts, we find sufficient evidence to uphold the conviction. Accordingly, the defendant's assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 4 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., SPELLACY, J., CONCUR. PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .