COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68313 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION KENNETH B. THOMAS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 20, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-295085 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE J. SADD, Assistant JEFFREY MARGOLIS, Assistant 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DONALD GREEN Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: Kenneth Thomas appeals the judgment of the Common Pleas Court entered pursuant to jury verdicts finding him guilty of aggravated burglary and domestic violence. The incidents leading to Thomas's arrest and conviction began on the evening of March 9, 1993 when Debra McCormack returned to her home on West 52 Street in Cleveland. She was accompanied by her brother Michael and her friend Sandra Lee, the tenant of the residence who allowed Debra to stay in one of the bedrooms in exchange for rent. When they entered the home, Kenneth Thomas was already inside. Upon seeing Thomas, Debra McCormack walked into her back bedroom and Thomas followed. While she was changing her clothes, an argument ensued and she ran through the main part of the house still in her underwear and went next door to call the police. As she was leaving, Michael McCormack stepped in to stop the argument, and Thomas left. When the police arrived and discovered Thomas was no longer on the premises, they advised Debra McCormack to file a complaint and then left. Shortly thereafter, different police officers arrived with Thomas in the back seat of their squad car. Apparently, Thomas had flagged down the police officers and told them someone at the house had pulled a gun on him. These officers came to investigate the weapon allegation, patted down - 4 - the occupants and searched the house for weapons, but they found only a stun gun. They also ran a warrant check on Thomas and after discovering an outstanding, unrelated warrant, they arrested him. In accordance with the first officers' suggestion, Debra McCormack filed a complaint against Thomas and on June 7, 1993, the grand jury indicted him on one count each of aggravated burglary and domestic violence. At trial, Debra McCormack testified that she and Thomas lived together from 1990 until February 1993 when she left him because he beat her. She further stated that when she saw Thomas in the house that night she believed there would be an argument, so she went to her bedroom to change clothes and leave. She also stated that Thomas followed her into the bedroom and would not leave when she requested him to do so. He then asked for money and when she refused to give it to him, an argument started, he pushed her and threw her on the bed. At that point, she ran out of the bedroom, and then ran next door to call the police. Sandra Lee testified for the defense that Thomas had permission to be in the house because he lived there with McCormack and Lee. She further testified that when Debra McCormack and Thomas argued that night, Mike McCormack hit Thomas with a baseball bat and a friend of Mike McCormack pulled a gun on Thomas. The state's rebuttal witness, Cleveland Police Detective David Hace, testified that he interviewed Sandra Lee shortly - 5 - after the March 9, 1993 incident and she had indicated to him at that time, Thomas did not have permission to be in the house. After hearing the evidence, the jury found Thomas guilty of both aggravated burglary and domestic violence, and further found Thomas had been convicted of domestic violence on a previous occasion. Thomas now appeals and assigns three errors for our review. In his first assignment of error Thomas states: KENNETH THOMAS'(SIC) RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF AGGRAVATED BURGLARY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. Thomas contends the prosecution failed to prove beyond a reasonable doubt two elements of aggravated burglary: trespass by force, stealth or deception, and intent to commit a felony. The state believes the convictions were supported by sufficient evidence because the evidence showed no one gave Thomas permission to enter the home, Debra McCormack did not give him permission to enter her bedroom, and she informed him he must leave and he refused. In addition, the state contends the evidence demonstrated intent to commit a felony because the jury found Thomas guilty of the second count, domestic violence and the prior conviction, making this offense a felony. The issue presented for our consideration then, is whether or not the state presented sufficient evidence to convict Thomas of aggravated burglary. - 6 - The Ohio Supreme Court announced the appropriate test for determining sufficiency of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Having set forth the law regarding sufficiency, we next consider the state's burden to prove Appellant's guilt beyond a reasonable doubt. To prove that crime, the state must prove all the elements of aggravated burglary which are set out in R.C. 2911.11: (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 *** 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. *** The record reveals Debra McCormack testified that Thomas entered her home, and once inside after she returned home, he also entered her bedroom and refused to leave when she requested. - 7 - This evidence, if believed by the trier of fact, would be sufficient to prove beyond a reasonable doubt that Thomas trespassed in the occupied structure or in a separately occupied portion thereof. She also testified that once inside the bedroom Thomas refused to leave and pushed her down on the bed. This evidence, if believed, would be sufficient to prove the use of force and that Thomas trespassed on the premises with the intent to commit a felony. In State v. Powell (1991), 59 Ohio St.3d 62, the court stated in paragraph one of the syllabus: The crime of aggravated burglary continues so long as the defendant remains in the structure being burglarized. (R.C. 2911.11 and 2911.21, construed.) There the court considered the question of whether a defendant could be sentenced to a three year actual term of incarceration for possession of a firearm during commission of aggravated burglary where the weapon is acquired during the course of the felony. The court responded in the affirmative finding the express language of the statute dispositive, since the trespass statute, R.C. 2911.21 states: (A) No person, without privilege to do so, shall ***: (1) Knowingly enter or remain on the land or premises of another *** . (Emphasis added.) The court then stated at 63: The crime of aggravated burglary continues so long as the defendant remains in the structure being burglarized because the trespass of the defendant has not been completed. - 8 - Reasoning by analogy in this case, we conclude that the defendant's act of trespass continued while he entered Debra McCormack's bedroom and during and after his commission of the crime of domestic violence. Finally, the state presented evidence that the occupied structure was the permanent or temporary habitation of Debra McCormack and that she was present or likely to be present at the time. Accordingly, after viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt, as required by State v. Jenks, supra, and therefore, the first assignment of error is overruled. In his second assignment of error Appellant contends: KENNETH THOMAS WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL JURY AT HIS TRIAL BY THE INTRODUCTION OF INFLAMMATORY PHOTOGRAPHS. Thomas here argues that photographs admitted into evidence in this trial depict injuries to Debra McCormack from a prior domestic violence incident, and were, therefore, irrelevant because they did not depict whether Thomas had ever been convicted of domestic violence. Also, Thomas argues that even if the photographs were considered relevant, the probative value is substantially outweighed by their prejudicial effect since Thomas had stipulated to the prior domestic violence conviction, thereby making the photographs cumulative evidence. - 9 - The state urges that the trial court properly allowed the photographs into evidence because they are relevant to prove a necessary element of domestic violence. In the alternative the state urges the photographs are also relevant to prove aggravated burglary because the photographs present other act evidence indicating Thomas's intent when he entered the premises. The issue before us, then, is whether or not the trial court abused its discretion in admitting the photographs or denied Thomas the right to a fair trial. When considering the admissibility of evidence, we start with the rule that all relevant evidence is admissible. Evid. R. 402. On this issue, we recognize that when a prior conviction elevates the degree of the crime, and does not merely enhance penalty, the prior conviction is an essential element of the offense and must be proven by the state. State v. Allen (1987), 29 Ohio St.3d 53. Therefore, evidence of the prior conviction is relevant to the crime charged. However, the admissibility of relevant evidence, and of this prior conviction, is limited by Evid. R. 403(A) which prohibits admission of evidence under certain circumstances: Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. When considering the admissibility of photographs under Evid. R. 403, the question is whether the probative value is - 10 - substantially outweighed by the danger of unfair prejudice to the defendant; i.e., under Evid. R. 403, the probative value must be minimal and the prejudice great before the evidence may be excluded, and this matter is left to the sound discretion of the trial court. State v. Morales (1987), 32 Ohio St.3d 252; State v. Hill (1967), 12 Ohio St.2d 88, paragraph two of the syllabus; State v. Jacks (1989), 63 Ohio App.3d 200. In this case the defense had stipulated to a journal entry of the prior domestic violence conviction. The state need to prove the prior conviction because it constituted an element of domestic violence. (T. 222). Debra McCormack authenticated the photographs and testified to facts of the previous conviction. The photographs corroborated her testimony about the injuries she had received. In addition, the trial court gave cautionary instructions to the jury immediately after the direct examination of Debra McCormack: *** I want you to be aware of the fact that this relates to the furthermore finding in Count Number 2. *** There's some evidence that comes in, and it comes in as a result of an element concerning Count Number 2, about a prior conviction. I will give you a more elaborate instruction. Suffice it to say, it does not necessarily follow that because a party was convicted of something, I don't care whatever it is, in the past that that means that they committed the crime that is currently before you. *** (T. 234-35). Furthermore, our review of the record and examination of the photographs convince us that the photographs' probative value was not substantially outweighed by the danger of prejudice to the - 11 - defendant who had already stipulated to the prior conviction. Accordingly, the trial court did not err in admitting this evidence and the second assignment of error is without merit. In his third assignment of error Thomas contends: KENNETH THOMAS'S RIGHT TO A FAIR TRIAL, GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE,(SIC) SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR DURING CLOSING ARGUMENT. Thomas here argues that the prosecutor acted improperly on two occasions during closing argument, thus denying his right to a fair trial. Thomas contends the prosecutor improperly referred to a defense witness and unfairly commented upon the defendant's failure to testify. The state contends the statements did not deny Thomas a fair trial because the first statement was inferred from the evidence and the second statement merely responded to defense counsel's closing argument. The issue for our resolution, then, is whether these comments made by the prosecutor during closing argument denied Thomas a fair trial. In order to decide this issue, we must review the law regarding prosecutorial misconduct. In State v. Smith, 14 Ohio St.3d 13 at 14, the Ohio Supreme Court, citing United States v. Dorr (C.A.5, 1981), 636 F.2d 117, stated the test for prosecutorial misconduct: The test regarding prosecutorial misconduct in closing arguments is whether the remarks were - 12 - improper and, if so, whether they prejudicially affected substantial rights of the defendant. In this case, the first challenged remark referred to defense witness Sandra Lee. The prosecutor stated, "She hasn't worked a day in her life and needs money, and is probably getting it from that guy right there, right now." (T. 512) and the trial judge sustained defense counsel's objection to this statement. This statement is improper because it argued a fact not in evidence, and related to questions earlier asked of Lee during cross-examination. At T. 371: Q: He's not paying you for your testimony here today, is he? A: No. Later on page 394 the prosecutor again asked Lee: Q: Are you sure you haven't gotten money from the Defendant to testify? A: No. The prosecutor should have known this to be improper argument. While improper, however, this singular statement in final argument did not prejudicially affect the substantial rights of the defendant in this case, especially where the careful, alert trial judge sustained defense counsel's objection, thereby quickly alerting the jury to the prosecutor's impropriety. The second comment cited by Thomas involves the prosecutor's reference to the defendant. The prosecutor stated, "Nobody got on that stand and admitted to any crime." (T. 502). - 13 - In this case, the prosecutor made the challenged statement during the rebuttal portion of his final argument after defense counsel stated the following in his final argument: *** He's not charged with domestic violence on January 12th. He's already answered those charges. He's already been convicted. He already pled no contest, which means he admitted the facts. He admitted that he did what he did on January 12th. (T. 489). The trial court sustained the state's timely objection to this statement and requested that defense counsel confine his argument to the evidence. (T. 489) Accordingly, the statement made by the prosecutor that "Nobody got on that stand and admitted to any crime" responded to the defense position that Thomas "admitted that he did what he did on January 12th." In fact, Thomas did not admit anything, but rather stipulated to the journal entry for the prior conviction. Our review of the transcript again reflects improper remarks by the prosecutor in response to an obvious misstatement by defense counsel. In every instance, the judge ruled appropriately and in this instance, sustained defense counsel's timely objection to this improper prosecutorial argument. The court also specifically instructed the jury that it may not draw an inference from the defendant's exercise of his constitutional right not to testify. We cannot conclude in light of the stipulated prior conviction for domestic violence and other evidence of that conviction presented in this case, and the jury instruction given - 14 - by the trial judge, that this improper statement of the prosecutor prejudicially affected the substantial rights of the defendant in this instance. However, these same comments made in a different case may prejudicially affect another defendant's substantial rights and the prosecutor is so advised, but do not form the basis for reversal of these convictions for the reasons indicated. Accordingly, this assignment of error is not well taken. Judgment affirmed. - 15 - 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. SPELLACY, P.J., and BLACKMON, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .