COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60275 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ERIC SCALES : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-250113 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. KALAM MUTTALIB, ESQ. Cuyahoga County Prosecutor 3500 Terminal Tower STEPHEN MILES, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Eric Scales, was indicted by the Cuyahoga County Grand Jury on April 12, 1990 in a two-count indictment, to-wit: one count of Aggravated Burglary in violation of R.C. 2911.11 and one count of Theft in violation of R.C. 2913.02. Count one of the indictment carried an aggravated felony specification. Trial by jury commenced on July 16, 1990. The jury returned guilty verdicts on both counts of the indictment. The trial court held a hearing on July 19, 1990 and found appellant guilty of the aggravated felony specification. Appellant was thereafter sentenced to a term of ten (10) to twenty-five (25) years on the first count and to a concurrent term of six (6) months on the second count. Appellant filed a timely notice of appeal. A careful review of the record compels affirmance. I. On February 2, 1990, Tracey Crawford resided at 7004 Kinsman Avenue, Cleveland, Ohio, with her five-month-old son, Devore Dunson. Devore's father, Louis Dunson, also periodically stayed at Crawford's apartment. Dunson, on the evening of February 1, 1990, was with a man named Melvin at the home of one of Dunson's friends. Melvin gave a one hundred dollar bill to Dunson along with the keys to his car. Melvin wanted Dunson to purchase crack cocaine for him. Dunson took the money and the keys to Melvin's car and drove to East 77th Street where he purchased the crack cocaine. Dunson - 3 - returned to Melvin and was accused of cheating him. Melvin instructed Dunson to take the money and straighten out the matter by recovering Melvin's money. Rather than do that, Dunson went to Crawford's apartment. Sometime later, Melvin and appellant arrived at Crawford's apartment in search of Dunson. Crawford recognized appellant's voice when he told her to open the door. Crawford refused to open the door. Nevertheless, appellant and Melvin gained access to the apartment by banging and beating the door and ultimately removing the heavy metal door from its hinges. The two men were successful due to the use of a crowbar type instrument which was carried by Melvin and something small carried by appellant. Both men then pushed open the door and entered Crawford's apartment. Appellant and Melvin proceeded to throw furniture around, breaking a mirror. Appellant told Dunson to "give up the money" but Dunson stated that he did not have any money. Appellant also "slung" Crawford around the room by her shirt. She wanted to talk to appellant and Melvin outside so she put on her coat. The coat had about $40 or $50 in the pocket and appellant removed that money after she refused to give it to him at Dunson's request. Melvin also took a black and white television set which belonged to Crawford. He subsequently sold it to Crawford's neighbor for $10. Dunson voluntarily left the apartment with appellant and Melvin. Crawford called the police at this time. - 4 - A Cleveland Police Officer, Tracy Cushler, responded to a robbery assignment and arrived at Crawford's apartment at approximately 7:20 a.m. He observed that the steel door to Crawford's apartment was removed from its hinges. The officer further observed pry marks around the doorjamb and the door, and described the door as looking as if "a large metal object had been banged against it several times". The apartment was also ransacked with clothes everywhere, seemingly removed from opened drawers and thrown about. Officer Cushler and Crawford left the apartment in search of Dunson, Melvin and the appellant. After touring the area in the officer's cruiser for approximately fifteen to twenty minutes, they returned to Crawford's apartment. Dunson was present in the apartment. II. For his first assignment of error, appellant contends that: "THE CONVICTION OF THE APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS ALL OF THE ELEMENTS OF OHIO REV. CODE SECTION 2911.11 AND 2913.02 WERE NOT PROVEN AT TRIAL." Appellant asserts that his conviction can only be upheld if it is believed that he entered Crawford's apartment to commit a theft offense or entered with Melvin to commit a theft offense. He argues, however, that the evidence is lacking on this critical element, and requires a reversal of his conviction as being against the manifest weight of the evidence. Appellant was charged with aggravated burglary, in violation of R.C. 2911.11, which provides in relevant part: - 5 - "(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: "* * * "(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." There is a reasonable inference that one who forcibly enters a dwelling does so with an intent to commit a theft offense in the absence of circumstances giving rise to a different inference. State v. Flowers (1984), 16 Ohio App. 3d 313; State v. Robinson (June 13, 1991), Cuyahoga App. No. 58700, unreported; State v. Gilham (Apr. 20, 1989), Cuyahoga App. No. 55297, unreported. A reviewing court will not reverse a jury verdict as being against the manifest weight of the evidence where there is substantial evidence upon which a jury could reasonably conclude that all elements of the offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In determining whether the verdict is against the manifest weight of the evidence, the court, reviewing the entire record, considers the credibility of the witnesses and determines 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 (1983), 20 Ohio App. 3d 173, 175. - 6 - In the case sub judice, the evidence was sufficient to enable the jury to reasonably find that appellant forcibly entered Crawford's apartment to commit a theft offense. The evidence reveals that appellant forcibly entered the apartment, ransacked it, and removed money from Crawford's coat pocket without her permission. Thus, this court is unable to conclude that the jury clearly lost its way in finding appellant guilty of aggravated burglary. For the foregoing reasons, we find that appellant's conviction of aggravated burglary is not against the manifest weight of the evidence. Appellant's first assignment of error is accordingly overruled. III. Appellant, in his second assignment of error, asserts that: "THE DEFENDANT WAS IMPROPERLY CONVICTED WITH A VIOLENCE SPECIFICATION EVEN THOUGH THE ACTUAL CONVICTION WAS NOT AN AGGRAVATED FELONY BUT AN ATTEMPTED AGGRAVATED FELONY." Appellant was indicted for one count of Aggravated Burglary (R.C. 2911.11) with an aggravated felony specification. The prior conviction at issue was for Attempted Felonious Assault (R.C. 2903.11, R.C. 2923.02(A)). Appellant argues that this "attempt" conviction does not support the aggravated felony specification and he was, therefore, improperly sentenced by the trial court. Felonious assault is an aggravated felony of the second degree. R.C. 2903.11. An attempt to commit an aggravated felony - 7 - of the first or second degree amounts to an aggravated felony of the next lesser aggravated degree than the aggravated felony attempted. R.C. 2923.02(E). In reading these two statutes together, an attempted felonious assault becomes an aggravated felony of the third degree. Therefore, appellant was properly indicted for and convicted of the aggravated felony specification. He was properly sentenced to a term of ten to twenty-five years for the aggravated burglary charge in light of his conviction of an aggravated felony of the third degree. See, R.C. 2929.11(B)(1)(b). Appellant's second assignment of error is overruled. Judgment affirmed. - 8 - 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. NAHRA, P.J., AND BLACKMON, J., CONCUR. SARA J. HARPER JUDGE 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. .