COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60286 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ROBERT STANTON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : MARCH 19, 1992 OF DECISION : _______________________ CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-252,587 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HYMAN FRIEDMAN, Public Defender ROBERT M. INGERSOLL, Assistant The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 2 - PATTON, J.: Defendant-appellant, Robert Stanton, was indicted on June 4, 1990 in a three count indictment. Count one charged aggravated burglary in violation of R.C. 2911.11 with a violence specifica- tion. Count two charged theft of property, valued at more than three hundred dollars but less than five thousand dollars in violation of R.C. 2913.02 with a violence specification. Count three charged possession of criminal tools in violation of R.C. 2923.24 with a violence specification. The indictments also charged co-defendants Pamela Ward and Debra Edwards with the commission of the same offenses, absent the violence specifica- tions. Prior to trial, Debra Edwards pled guilty to counts one and two with count three being dismissed. On July 3, 1990, a jury trial was commenced for the appellant and Pamela Ward. The evidence adduced at trial was as follows. On April 23, 1990, at 9:50 a.m., Aleta Taylor left her two family house at 436 East 115th Street and proceeded downtown in order to secure temporary welfare benefits while she was dis- abled. Ms. Taylor had recently undergone foot surgery and was temporarily disabled from her job as a cashier at Finast Super- - 3 - market. As a result of her recent foot surgery she was forced to utilize crutches. After completing her business at the welfare department and eating lunch, she returned home at 1:45 p.m. Upon her return she discovered that someone had forcibly entered her apartment through a rear door and that several items were missing. She testified that a microwave oven, her son's combination television/video cassette recorder, two phones, a chess set and a jar of pennies were missing from her apartment. She also testified that a stereo receiver was missing, which she identified as State's Exhibit 1. Ms. Taylor left her apartment and walked across the street to Lottie Morton's house. Lottie Morton is a neighbor who spends most of the day sitting on her front porch watching over the street. Ms. Morton explained that she observed the appellant carrying a microwave oven out of the front door of the duplex house while Ms. Ward was holding the door for him. She also observed Ms. Edwards carrying a radio. After exiting from the house they placed the items in the appellant's car and drove away. Ms. Taylor called the police and reported that the appel- lant, Ms. Ward and Ms. Edwards burglarized her apartment. Further, she provided the police with a description of the appellant's car and its license number. At trial, Ms. Edwards testified that she shared the lower apartment at 449 East 115th street with Boyd Preston, the appel- - 4 - lant and Pamela Ward. Aleta Taylor lived in the upstairs apart- ment. On April 23, 1990, Pamela Ward was moving out of the apartment and she and the appellant were there to help. While there, she and the appellant entered Ms. Taylor's apartment by way of the back stairs. She took a stereo-cassette player and a television. The appellant took a microwave oven, a stereo receiver and a jar of pennies. All of the items were then placed in appellant's car, together with Ms. Ward's personal items. Ms. Edwards testified that the appellant drove them to Ms. Ward's father's house where Ward was moving. The stolen items were placed inside Ms. Ward's father's house. Later that day Ward, Edwards and the appellant took the stolen items to Uncle Ben's Pawn shop on East 40th and Payne. On April 30, 1990, at 1:30 a.m., Officer Viccaro spotted appellant's car. He ran a check on the license plate and discov- ered it was listed on the Cleveland Police "hot sheet" as being wanted in an investigation of a robbery. After receiving back- up, Officer Viccaro pulled appellant's car over. The appellant, Ward and Edwards were removed from the vehicle and placed in the back of the police cruiser. The police then opened the vehicle's trunk and discovered Ms. Taylor's stereo receiver. The trio was placed under arrest and read their constitutional rights. Officer Viccaro then went to Ms. Ward's father's house to investigate whether any of Ms. Taylor's items were there. After - 5 - receiving permission to search the home, Officer Viccaro con- ducted a search which uncovered none of the other stolen items. Pamela Ward testified she had no knowledge that Ms. Edwards and the appellant had burglarized Ms. Taylor's home. She also denied holding the door open as the appellant and Ms. Edwards carried out the microwave oven and television. She did admit going to the pawn shop with the appellant and Ms. Edwards. Wendy Arnold, a state parole officer assigned to the appel- lant, testified on his behalf. Arnold testified she received phone calls from Debra Edwards and Pamela Ward. They told Arnold that they were the ones who stole Ms. Taylor's property and that the appellant merely helped them carry it to his car not knowing that the items were stolen. The appellant testified on his own behalf. He testified that he agreed to help Pamela Ward move her property to her father's house. He arrived at the house sometime between 11:40 a.m. and noon. As Ms. Ward was taking clothes out to his car, Debra Edwards asked him if he would also take some of her person- al items to Ms. Ward's father's house. The items included a stereo receiver, a television and a microwave oven, all of which had been salvaged from the house of Edward's mother which had recently been victimized by a fire. Edwards and the appellant carried the items from the basement and placed them in the appellant's car. - 6 - After delivering Ward's property to her father's house, Edwards told the appellant she would buy him gasoline if he took her to a pawn shop. At the pawn shop Edwards was able to pawn the television and the microwave, but was unable to pawn the stereo receiver which was left in appellant's trunk. Further, the appellant testified that he did not break into Ms. Taylor's apartment. He testified that he did not know from where Ms. Edwards acquired the items he found in the basement and he did not know that they were stolen. The jury found the appellant guilty as charged in the indictment. He was sentenced to a term of ten to twenty-five years on count one and two terms of one year on counts two and three, all three terms to run concurrently. The instant appeal followed. Appellant's first assignment of error provides: ROBERT STANTON HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR AGGRAVATED BURGLARY WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. Appellant maintains that the evidence is insufficient to sustain his conviction for aggravated robbery. Specifically, the appellant contends the state failed to show that the trespass occurred at a time when any person was likely to be present. Appellant's argument lacks merit. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that - 7 - the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 1969. The test for suffi- ciency review is set forth in State v. Martin (1983), 20 Ohio App. 3d 172, 175: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reason- able doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Martin, supra, citing Jackson v. Virginia (1979), 443 U.S. 307, 319. Appellant was convicted of aggravated robbery in violation of R.C. 2911.11, which provides in relevant part: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as de- fined 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 perma- nent or temporary habitation of any person, in which at the time any person is present or likely to be present. In State v. Kilby (1977), 50 Ohio St. 2d 21, the Ohio Su- preme Court held: Where the state proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and - 8 - out on the day in question, and that such house was burglarized when the family was temporarily absent, the state has presented sufficient evi- dence to support a charge of aggravated burglary under R.C. 2911.11. Id. at 25. Moreover, this court has held that where the evidence establishes that the burglarized house is the permanent dwelling place of a family and their house is burglarized during a brief and temporary absence, the family is still "likely to be present" within the meaning of R.C. 2911.11(A)(3). State v. Hinkle (Nov. 9, 1978), Cuyahoga App. No. 37847, unreported. In the instant case there was evidence presented by the state which established that Ms. Taylor had recently undergone foot surgery. Further, she was temporarily disabled from her job as a cashier at Finast. At 9:50 a.m., on the date of the rob- bery, Ms. Taylor left her apartment and proceeded downtown. Although Ms. Taylor was not present at the time of the robbery, we find that the state presented sufficient evidence to establish that she was likely to be present within the meaning of R.C. 2911.11(A)(3). Even assuming that the appellant knew that Ms. Taylor was temporarily absent, he had no knowledge of where she went or when she would return. In reviewing the evidence and testimony presented, and the inferences drawn therefrom in a light most favorable to the prosecution, we find that there was sufficient evidence presented to establish the elements of aggravated robbery. Accordingly, appellant's first assignment of error is overruled. - 9 - Next, we will address appellant's third assignment of error, which provides: THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the jury's guilty verdict was against the weight of the evidence and should be reversed. Specifically, appellant argues that the testimony of Debra Edwards was unreli- able and uncertain. Appellant's argument lacks merit. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing manifest weight of the evidence. The Martin court stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines wheth- er in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the convic- tion must be reversed and a new trial ordered.*** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra, at 175; see also State v. Davis (1988), 38 Ohio St. 3d 361, 365. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In the instant case the jury's verdict was supported by the manifest weight of the evidence. On the morning of the robbery Ms. Taylor left her apartment after locking the doors. When she arrived home she discovered that various items were missing including a microwave oven and a stereo receiver. Additionally, - 10 - she discovered that a back door had been forcibly entered. Lottie Morton who lives across the street from Ms. Taylor, testi- fied that she observed the appellant carry a microwave oven out the front door of the duplex which he placed in his car. Testi- mony also established that the stolen items were pawned at a local pawn shop. Further, one week following the theft the appellant was stopped by police who discovered Ms. Taylor's stolen stereo receiver in the trunk of appellant's car. More- over, Debra Edwards, a co-defendant who pled guilty to aggravated robbery and theft, testified that she and the appellant partici- pated in the robbery together. After reviewing the entire record, weighing the evidence and considering the credibility of the witnesses, we are not per- suaded that the jury clearly lost its way and created such a manifest miscarriage of justice that the appellant's conviction must be reversed. Thus, we conclude appellant's conviction for aggravated burglary is not against the manifest weight of the evidence. Accordingly, appellant's third assignment of error is overruled. Appellant's second assignment of error provides: ROBERT STANTON WAS DENIED HIS RIGHT TO A FAIR TRIAL BEFORE A JURY, WHEN THE TRIAL COURT REFUSED TO GIVE HIS REQUESTED JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF BURGLARY. Appellant argues that the trial court erred when it refused to give the requested jury instruction on the lesser included - 11 - offense of burglary. For the following reasons, appellant's argument lacks merit. Pursuant to R.C. 2945.74 and Crim. R. 31(C), a criminal defendant is entitled to an instruction on a lesser included offense whenever the trial court: (1) determines that the of- fense on which the instruction is requested is necessarily lesser than and included within the charged offense; and (2) after examining the facts of the case, ascertains that the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater. State v. Kidder (1987), 32 Ohio St. 3d 279, 280. Moreover, a charge on a lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St. 3d 213. Burglary is a lesser included offense of aggravated robbery. State v. Hamilton (Oct. 27, 1988), Cuyahoga App. No. 54571, unreported. Appellant argues the court should have instructed the jury on the lesser included offense of burglary as defined in R.C. 2911.12: (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. - 12 - Appellant maintains that Ms. Taylor was not likely to be present during the commission of the theft offenses. We do not agree. The undisputed evidence showed that Ms. Taylor's apartment was regularly inhabited by her and her child. Moreover, the state established that the trespass occurred at a time when Ms. Taylor was likely to be present. Ms. Taylor testified that she recently underwent foot surgery and thus was temporarily disabled from here job as a cashier at Finast. Ms. Taylor left her apart- ment at 9:50 a.m. and when she arrived home at 1:45 p.m. she discovered that her apartment had been burglarized. Although Ms. Taylor left here residence, given the fact that she was tempo- rarily disabled and out of work her temporary absence does not automatically eliminate the likelihood of her being present or the likelihood of her return during the commission of the theft offenses. See, Hamilton, supra, at 6-7. In light of the above, a jury charge on the lesser included offense of burglary was not warranted. We conclude that the evidence cannot reasonably be construed to support both an ac- quittal of aggravated burglary and a conviction of burglary. Accordingly, the trial court properly refused to charge the jury on burglary. Thus, appellant's second assignment of error is overruled. Appellant's fourth assignment of error provides: - 13 - ROBERT STANTON WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE REPEATED PROSECUTORIAL MISCONDUCT IN THE STATE'S CLOSING ARGUMENT. Appellant argues he was denied a fair trial by the prosecu- tor's misconduct during closing argument. Appellant's argument lacks merit. Addressing a prosecutor's comments during closing argument, the Ohio Supreme Court has stated: 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. [Citations omitted.] State v. Smith (1984), 14 Ohio St. 3d 13, 14. The prosecution is entitled to a certain degree of latitude in summation. State v. Liberatore (1982), 69 Ohio St. 2d 583, 589. Remarks of a prosecutor may be intemperate, unprofessional and may better be left unsaid; however, the conduct will not rise to a level sufficient to warrant reversal in all cases. State v. Woodards (1966), 6 Ohio St. 2d 14, 26. Moreover, the conduct of a prosecuting attorney is error only if it deprives the defendant of a fair trial. State v. Wade (1978), 53 Ohio St. 2d 182, vacated on other grounds, 438 U.S. 94. In deciding whether a defendant was denied a fair trial, this court must determine whether the fact finder would have found the defendant guilty absent the prosecutor's remarks. State v. Maurer (1984), 15 Ohio St. 3d 239. - 14 - Initially, appellant asserts the prosecutor impermissibly invoked the jury's sympathy for the victim and referred to facts not in evidence in the following portion of the closing argument: Second, I would like you as you are deliber- ating to keep in mind Aleta Taylor. Here we have a lady who is single. She has a child. She has two jobs. She is working at Finast and Winkleman's and also does get some money part time from Welfare also and more impor- tantly this medical care because she obviously has this child and is working part time at Finast. If you look at it, does it seem like she is trying to keep it together, even though obviously not living near great people, but trying to keep it together, but it is the only place she can afford to live. How about those items that were taken, maybe you or I, if you had $650 in stereo, AM/FM or television with a cassette recorder, that happened to be her little boy's television with a cassette recorder, we would just call our homeowner's or renter's insurance. MR. SAFFERIN: Objection. THE COURT: Overruled. MR. CAFFERKEY: She is without these items. I bet she is not taking a lot of trips to Europe or Cedar Point of [sic] Geauga Lake. This is her pleasure items in essence, a stereo and TV, a couple phones. Because of these two and Debra Edwards, that's all gone. She doesn't have that anymore. While it would mean quite a bit to us, I bet it means a hell of a lot more to her, probably a lot more. (Tr. 261-62.) - 15 - Next, appellant claims prejudicial error in the following portion of the prosecutor's closing argument: I think, Ladies and Gentlemen, if you view the evidence as the State has put forward and when you consider the credibility of Pam Ward and Robert Stanton on the stand and when you consider what Wendy Arnold, the defendant's own witness says from this stand, and I had just seen this lady this morning, I didn't talk to her at all until this afternoon prior to her taking the stand. I said, did Pam Ward say anything? Yes, I did an investigation, Pam Ward says she and Debra Edwards took the stuff and not Mr. Stanton. Debra Edwards apparently told the parole officer that and Debra Edwards gets on the stand Tuesday and says Mr. Stanton and I did it, not Pam Ward. They are all three in it together. This is a pack of liars. (Tr. 264-65.) The state presented overwhelming evidence of appellant's guilt. Lottie Morton testified that she observed the appellant carrying a microwave oven out of the front door of the duplex where the robbery occurred. Additional testimony established that stolen items, including the microwave, were pawned by the appellant and his two co-defendants. Further, when the appellant was stopped by police, Ms. Taylor's stolen stereo receiver was discovered in the trunk of his car. Moreover, Debra Edwards, one of the co-defendants, testified that she and appellant were responsible for removing the items from Ms. Taylor's apartment. - 16 - In light of the above, we are not persuaded that the appel- lant was denied a fair trial. After reviewing the entire record and considering the overwhelming evidence of appellant's guilt, we conclude that the jury would have found the appellant guilty absent the prosecutor's comments. Accordingly, appellant's fourth assignment of error is overruled. Appellant's fifth assignment of error provides: ROBERT STANTON WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, BY TRIAL COUNSEL'S FAILURE TO PRESERVE ISSUES FOR APPEAL. Appellant argues he was denied the effective assistance of counsel by counsel's failure to object to the trial court's denial of his request for an instruction on the lesser included offense of burglary. Appellant's fifth assignment of error is premised upon the incorrect assumption that defense counsel's actions waived review of the denial of the requested instruction. We have previously addressed herein the trial court's refusal to give the requested instruction and concluded the appellant was not entitled to the instruction. See discussion infra. Thus, appellant's fifth assignment of error alleging inef- fective assistance of counsel is without merit and is overruled. Judgment affirmed. - 17 - 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 Cuyahoga County Court of Common Pleas 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. NAHRA, 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .