COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60022 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : MATTHEW FIELDS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 5, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. 239704 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Kreig J. Brusnahan Cuyahoga County Prosecutor 1406 West Sixth Street #400 By: John R. Kosko Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - JOHN V. CORRIGAN, J.: Matthew Fields appeals his conviction for aggravated burglary with an aggravated felony specification 1 after a jury trial. Fields raises three assignments of error challenging the sufficiency of the evidence, the trial court's continuation of trial in his absence and the court's refusal to instruct the jury on a lesser included offense. Upon review of the record, we affirm. Jeb Washington, age fifty-five, told the jury he lives in a four-unit apartment building on East 38th Street in Cleveland. He explained his apartment has two doors, the outside door has three glass pane windows and cannot be locked from the inside. Instead, Washington lodged a shovel under the door knob to prevent it from being opened. The inner door has several locks and is able to be locked from inside. While watching television at 1:00 a.m. on May 16, 1990, Washington heard someone knocking on the door. He unlocked the inside door and peered through the curtains of the outside door. He observed two men standing there, one large and tall whom he later identified as defendant, and the other man shorter and smaller in build. Both men were in their late twenties. 1 See Appendix. - 2 - The men said they were looking for a friend named, "Tony." Washington told them "Tony" lived upstairs and instructed them to use the other outside door to get to his apartment. The men then left. Washington testified that since his apartment had been broken into several times, he was suspicious of the men. Fearing for his safety, he went to his bedroom and got his .38 revolver and placed it in his back pocket. The men returned thirty to forty minutes later and began "banging" on Washington's door and windows. Washington opened the inside door, went to the outside door and asked them what they wanted. They asked him again where Tony lived. Thereafter, the three men exchanged words and an argument ensued. When Washington threatened to call the police, the defendant said, "I'm coming in," broke the lower window pane on the door, dislodged the shovel against the door and forced his way inside the apartment. Just as he entered, Washington fired one shot at the defendant from two feet away. Fields grabbed his shoulder and ran out the apartment. A neighbor told Washington she called the police. Approximately an hour later, he observed a police car on his street and approached the vehicle. Washington explained what happened and gave a description of the assailants. Officer Sean O'Donnel testified he spoke to Washington after responding to a call for shots fired on East 38th. The description given of one of the assailants matched an individual whom the police were questioning concerning a gunshot wound he - 3 - suffered at East 40th and Quincy. That man told police he was the victim of a robbery attempt. O'Donnell took Washington to the individual and Washington identified him as the assailant. Officer Pat White told the court he responded to a call for a robbery attempt at East 40th and Quincy and observed a man with a gunshot wound who identified himself as defendant. According to White, defendant told him he was at the Longwood Plaza at East 40th and Quincy when a man shot him in a robbery attempt. Detective Joseph Apsiga testified he questioned defendant while in custody. He initially told Apsiga he was walking down East 38th past Washington's apartment, when a man standing on the porch at that address pulled out a gun and shot him for no apparent reason while on the sidewalk. Later during questioning, Fields changed his story and said he was shot while standing on the porch. At trial, Fields denied each officer's account. Instead, he told the jury he and another man went to the apartment house Washington lived in looking for "Tony". He corroborated Washington's version that the three men got into an argument, but denied breaking the window or in any way entering or forcing his way into the apartment. In his first assignment of error, Fields claims the evidence is insufficient to sustain his conviction. - 4 - When reviewing the sufficiency of the evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. The assessment of witness credibility lies primarily with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2911.11 defines aggravated burglary and provides in part: "(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, *** or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, *** or any felony, when any of the following apply: "(1) The offender inflicts, or attempts or threatens to inflict physical harm on another; "*** "(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. "(B) Whoever violates this section is guilty of aggravated burglary, an aggravated felony of the first degree." Jeb Washington testified that after he threatened to call the police, defendant broke the window to the door and forced his way into the apartment. Thus, on the basis of his testimony, sufficient evidence was offered to show defendant entered Washigton's apartment with force, while Washington was present. The only real question is whether defendant entered the apartment - 5 - "with purpose to commit therein any theft offense *** or any felony." Since the intent of an accused person is only in his mind and is not ascertainable by another, it cannot be proved by direct testimony of another person but must be determined from the surrounding facts and circumstances. State v. Flowers (1984), 16 Ohio App. 3d 313, 314 citing State v. Huffman (1936), 131 Ohio St. 27. The Flowers court observed: "***[T]here is a reasonable inference that one who forcibly enters a dwelling, or a business place, does so with the intent to commit a theft offense in the absence of circumstances giving rise to a different inference." Id. at 315. In viewing the surrounding facts and circumstances, it is reasonable to infer that Fields entered the apartment with the purpose to commit a theft offense. Washington was fifty-five, while defendant and his companion were both described as being in their late twenties. When they first knocked on the door, Washington told them where Tony lived and how to get to his upstairs apartment. In light of this response, defendant's explanation that he returned to ask where Tony lived a second time is not credible. Moreover, after Washington threatened to call the police, the men replied they were not afraid of him. Finally, Washington testified defendant broke the window in order to gain entry. We conclude there was sufficient evidence of each element of aggravated burglary to support defendant's conviction beyond a reasonable doubt. - 6 - Accordingly, the first assignment of error is overruled. In his second assignment, Fields argues the court erred in proceeding with trial in his absence in contravention of Crim. R. 43(A) and the Confrontation Clause of the Sixth Amendment. Crim. R. 43(A) provides: "The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules. In all prosecutions, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the verdict. ***." Defendant failed to appear at the second day of trial. The trial judge instructed him to be present at 8:30 a.m., when he failed to appear, the court recessed until 9:45 a.m. Defense counsel called defendant's residence and was told he was not there. The court denied counsel's motion for a continuance and proceeded with trial. Fields eventually appeared in court at 11:00 a.m. When questioned about his absence on cross- examination, he stated he had been "at the welfare building" all morning. It is clear from the record that defendant's absence from trial the second day was voluntary. Crim. R. 43(A) specifically provides that a "defendant's voluntary absence after the trial - 7 - has been commenced in his presence shall not prevent continuing the trial ***." See, also, State v. Woods (1982), 8 Ohio App. 3d 56; State v. Phillips (1972), 34 Ohio App. 2d 217. Accordingly, the second assignment of error is overruled. In his final assignment of error, Fields argues the court erred in refusing to instruct the jury on the lesser-included offense of criminal trespass. Criminal trespass is a lesser-included offense of aggravated robbery. State v. Magnuson (1981), 2 Ohio App. 3d 21, 23. A defendant is only entitled to a lesser-included offense instruction, however, where the evidence warrants it. State v. Kidder (1987), 32 Ohio St. 3d 279, 280 citing Beck v. Alabama (1980), 447 U.S. 625, 636 fn. 12. In determining whether an instruction is warranted, the Ohio Supreme Court stated in State v. Nolton (1969), 19 Ohio St. 2d 133: "*** [I]f the trier could reasonably find against the state and for the accused upon one or more of the elements of the crime charged and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense, then a charge on the lesser included offense is both warranted and required, not only for the benefit of the state but for the benefit of the accused." Id. at 135. (Emphasis original.) The Supreme Court clarified this position in State v. Wilkens (1980), 64 Ohio St. 2d 382 stating: - 8 - "If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense." Id. at 388; See, also, State v. Kidder (1987), 32 Ohio St. 3d 279, 282- 283. The Wilkens court added: "The persuasiveness of the evidence regarding the lesser included offense is irrelevant. If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to defendant." Id. Criminal trespass is defined in R.C. 2911.21, which states in part: "(A) No person, without privilege to do so, shall do any of the following: "(1) Knowingly enter or remain on the land or premises of another; "*** "(4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified to do so by the owner or occupant, or the agent or servant of either. "*** "(D) Whoever violates this section is guilty of criminal trespass, a misdemeanor of the fourth degree." In the present case, Fields' defense was based on his testimony that he never entered Washington's apartment, but was - 9 - shot while standing on the porch. His defense, therefore, was a complete defense to the charge of aggravated burglary. We find the trier of fact could not reasonably find in favor of defendant on any of the elements of aggravated burglary. Jeb Washington testified Fields broke the window to his door, and forced his way through the door into the apartment. Given these circumstances, it is reasonable to infer Fields and his companion intended to commit a theft offense against the fifty-five year old Washington. We find that there were no set of facts presented whereby "*** the trier of fact *** [could have found] for the defendant and against the state on some element of the greater offense which was not required to prove the commission of the lesser offense ***." State v. Solomon (1981), 66 Ohio St. 2d 214, at paragraph two of the syllabus. Accordingly, this assignment of error is overruled and the judgment of the trial court is affirmed. - 10 - Judgment affirmed. 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. DYKE, P.J., JOHN F. CORRIGAN, J., CONCUR. JUDGE *JOHN V. CORRIGAN (*Sitting by Assignment: Judge John V. Corrigan, retired from the Eighth District Court of Appeals). 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. - 11 - APPENDIX Appellant's assignments of error are: I "A. The trial court erred by refusing to grant appellant's motion for acquittal pursuant to Ohio Rule of Criminal Procedure 29." "B. Appellant was convicted with evidence insufficient as a matter of law, thereby denying him his due process rights guaranteed by the fourteenth amendment to he United States Constitution." II "The trial court erred in proceeding with the trial of defendant in his absence pursuant to Ohio Criminal Procedure Rule 43(A) and the confrontation clause of the Sixth Amendment." III "The trial court erred in refusing to instruct the jury on the lesser-included offense of criminal trespass." R#####Wilson v. Rice COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60007 JOHN R. WILSON : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN P. RICE, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MARCH 5, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 162565 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: JEFFREY F. SLAVIN, ESQ. DANIEL J. SAMMON, ESQ. 75 Public Square, Suite 512 100 Erieview Plaza, Suite 2850 Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J., Defendant-appellant, John Rice, appeals the trial court judgment in favor of plaintiff-appellee, John Wilson, in the amount of $11,400 plus interest from December 20, 1984. On December 30, 1988, appellee filed a complaint wherein it was alleged that the appellant failed to repay the balance of a loan in the amount of $11,400. In his answer, the appellant denied the allegations contained in the complaint. The case proceeded to a bench trial on January 3, 1990. At trial, the following evidence was adduced: In the early part of 1984 appellant approached the appellee for the purpose of having the appellee and his company, Portfolio Securities Transaction Corp. ("Portfolio") raise funds for the formation of a limited partnership involving standardbred horses. A limited partnership agreement for Chautauqua Partners, Ltd. was prepared. Portfolio was appointed as Chautauqua's exclusive selling agent for the purpose of selling a minimum of fifteen and a maximum of thirty-five limited partnership units. If less than fifteen limited partnership units were sold, the offering would be terminated and there would be no limited partnership. Each limited partnership unit was offered for a minimum capital contribution of $31,430. Portfolio was to receive a sales commission of 10% of the limited partnership units sold. If all of the partnership units were sold, Portfolio would receive in - 3 - excess of $100,000. The appellant shipped standardbred horses, which were to be sold to Chautauqua Partners, Ltd. to Florida for training. Shortly thereafter Joe and Lyndel Adamsky, the horse trainers retained to train the horses, informed the appellant that they were in need of money to cover expenses incurred to feed, board, transport and train the horses. This information was subsequently conveyed to the appellee. On or about December 20, 1984, appellee issued a check in the amount of $17,000 to the horse trainers in order to cover the past costs for the care and maintenance of the horses. The appellant testified that the money was not advanced at the request of or on behalf of himself. Further, he indicated it was not a loan and the appellee was only to be reimbursed with funds generated from the sale of partnership units. The appellee testified that the money was sent to the horse trainers at the request and on behalf of the appellant as a loan. Further, he stated that the appellant had signed a note for the $17,000 loan but the note had been lost. At some point in the early part of 1985, the appellant forwarded a check in the amount of $6,000 to the appellee. The appellee maintained it was partial repayment for the $17,000 loan. The appellant contended it was given to the appellee at his request and that the appellee was to repay the appellant after the limited partnership units were sold. - 4 - Despite its efforts, Portfolio was unable to sell any of the limited partnership units. Appellant's assignments of error are interrelated and will be discussed together. They provide: I. JOHN R. WILSON DID NOT PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE MONEY ADVANCED BY HIM TO THE HORSE TRAINERS RETAINED BY CHAUTAUQUA PARTNERS, LTD. WAS A LOAN TO JOHN P. RICE, JR. II. THE FINDING OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the appellee failed to prove by a preponderance of the evidence that the money forwarded to the horse trainers was a loan. Further, appellant argues the finding of the trial court that the money was, in fact, a loan was not supported by competent, credible evidence. For the following reasons, appellant's arguments lack merit. It is elementary that the party who asserts a claim has the burden of proving the claim. McFadden v. Elmer L. Brewer Transportation Co. (1952), 156 Ohio St. 430, 433. In the instant case, it was the appellee's burden of proof to establish by a preponderance of the evidence that the transfer of the $17,000 to appellant's horse trainers constituted a loan. Grable v. Hendersen (1934), 49 Ohio App. 145. Preponderance of the evidence means the greater weight of the evidence. State v. Stumpf (1987), 32 Ohio St. 3d 95, 102. Furthermore, McCormick, Evidence (3 Ed. Cleary Ed. 1984), 957, - 5 - Section 339 provides: "The most acceptable meaning to be given to the expression, proof by a preponderance, seems to be proof which leads the [trier of fact] to find the existence of the contested fact is more probable than its nonexistence." Moreover, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. A reviewing court must give deference to the findings of the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80. The reasons for such deference were set forth in Seasons Coal as follows: The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections and use these observations in weighing the credibility of the proffered testimony. Id., at 80. After reviewing the record, we are persuaded that the trial court elected to believe the testimony of the appellee rather than the testimony of the appellant. Further, we find that the following testimony of the appellee, if believed, constituted competent, credible evidence supporting the trial court's judgment: Q. Did you lend $17,000 to the defendant, John Rice? A. I did. - 6 - Q. Is it represented by that $17,000 to the Adamskys? A. That is correct. Q. Why did you do that? A. That came about in December of 1984, when we were still trying to sell the units in the partnership. Mr.Rice told me that the Adamsky bill had not been paid and was it possible for me to pay that and have the funds repaid to me at a later date. I got an uncollateralized loan from the Huntington National Bank, a signature loan for the $17,000, and I forwarded the check on the 20th of December 1984 to Joe and Lyndel Adamsky, who were trainers for Mr. Rice at that time. Q. Now, did the Adamskys come to you for the money or did mr. Rice tell you he needed the money? A. I did not hear from the Adamskys. I heard only from Mr. Rice. Q. Now, was the money an investment or a loan? A. It was a bridge loan. Q. What was it to bridge? When you say it was a bridge loan, what was the bridge? A. Well, it was a loan. It was a bridge loan. What we call in our business a loan in order to keep the transaction moving. Q. Did you expect to be paid back whether one unit was sold, all the units or any of the units? A. I expected to be repaid period. - 7 - Q. Who was supposed to repay you? A. I thought either Mr. Rice as general partner or Mr. Rice personally, because they were one in the same. Q. Did you get a note from Mr. Rice? A. I did, but I lost it. Q. Okay. Did Mr. Rice repay you any money on that $17,000? A. Yes. He did pay down the principal amount. I believe it was about $6,000 or $5,500. Q. Do you recall when he paid you that money? A. It was right after the first of the year, in January of 1985. Q. Do you recall from what account it was paid? A. I believe he sent a personal check over from National City Bank. (Tr. 53-55.) In the instant case, there was such a conflict in the evidence that a reviewing court would not be justified in setting aside a judgment for or against either party on the weight of the evidence. We thus affirm the trial court judgment. Appellant's assignments of error are overruled. - 8 - It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J. SPELLACY, J. CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .