COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68883 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION COURTNEY ASHFORD : : Defendant-Appellant : : DATE OF ANNOUNCEMENT August 7, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 317460 JUDGMENT: Affirmed in part, Reversed in part. DATE OF JOURNALIZATION: __________________________ APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. CHARLES H. BRAGG, ESQ. Cuyahoga County Prosecutor The Courtyard Office Park GEORGE RUKOVENA, ESQ. 7055 Engle Road, Ste. 1-103 Assistant County Prosecutor And th 8 Floor Justice Center COURTNEY ASHFORD, Pro Se 1200 Ontario Street Inmate No. 303-860 Cleveland, Ohio 44113 P. O. Box 901 Leavittsburg, Ohio 44430 PATRICIA ANN BLACKMON, J.: Courtney Ashford, defendant-appellant, appeals a jury s verdict convicting him of aggravated burglary, theft, and receiving - 2 - stolen property; thereafter, the trial court sentenced him accordingly. Ashford assigns the following two errors for our review: I. THE CONVICTION OF THE APPELLANT, COURTNEY ASHFORD FOR AGGRAVATED BURGLARY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS INSUFFICIENT TO SUSTAIN HIS CONVICTION AS A MATTER OF LAW. II. THE OFFENSES OF THEFT AND RECEIVING STOLEN PROPERTY WERE ALLIED OFFENSES OF SIMILAR IMPORT AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING CONVICTIONS AGAINST THE APPELLANT FOR BOTH OF THESE OFFENSES AND IN FAILING TO SENTENCE THE APPELLANT FOR ONLY ONE OF THESE OFFENSES. Ashford also assigns the following three errors pro se: III. DEFENDANT/APPELLANT WAS DEPRIVED CONFLICT FREE REPRESENTATION, A VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENT. IV. THE TRIAL COURT ERRED IT S (sic) AFFIRMATIVE DUTY TO INQUIRE INTO THE POSSIBLE CONFLICT OF INTEREST AS SET FORTH PURSUANT TO STATE V. GILLARD, (1992) 64 OHIO ST.ED 304, 595 N.E.2D 878. V. WHETHER PLAIN ERRORS OF DEFECTS AFFECTED APPELLANT S SUBSTANTIAL RIGHT TO A FAIR TRIAL PURSUANT TO CRIMINAL RULE 52(3) AND EVID.R. 103(D). Having reviewed the record and the legal arguments of the parties, we affirm in part the trial court s judgment, reverse it in part, and remand the case for re-sentencing. The apposite facts follow. On October 10, 1994, Danielle Kawalek returned to her first- floor apartment at approximately 10:30 am. Once inside, she noticed various items were missing in her kitchen: the portable - 3 - phone, the cable box, the VCR with remote, the Nintendo game, and her camera. The kitchen window lock was broken and the window shade had been raised. Kawalek went next door and called her boyfriend, Cleveland Narcotics Officer Greg Whitney. Thereafter, her mother called the police. Whitney, who was off-duty, came to the apartment. Once there, he saw a man standing at the front of the building s driveway pacing back and forth. The man, later identified as Terry Hollins, asked Whitney if he would help him jump start his car. When Whitney replied that he didn t have time, Hollins asked, are you straight? Whitney recognized the question as slang for are you interested in buying cocaine? Whitney asked Hollins what he was talking about and Hollins told him he had a couple of rocks if Whitney was interested. Whitney identified himself as a police officer and started to place Hollins under arrest. He obtained his name and address and went to get handcuffs from his car. At that time, Hollins fled. Whitney went into the apartment, observed its condition, and awaited the arrival of the investigating officers. Once the officers arrived, Whitney told them about the man he had encountered upon arrival at the building. The officers told Whitney they stopped Hollins along with Courtney Ashford earlier that morning about eight blocks away from the apartment. Hollins was holding a Nintendo game. When warrant checks on the pair turned up nothing, they were released. - 4 - Police took photographs of the apartment and dusted for fingerprints. Once the apartment was processed, Officer Richard Russell returned to the area where Hollins and Ashford were spotted and found them. After Whitney identified Hollins as the man he saw outside the apartment building, Hollins was arrested for aggravated burglary. Courtney Ashford was released. Police were able to match a fingerprint taken from the cable box to Courtney Ashford s fingerprints. Ashford was arrested on October 17 and subsequently indicted for aggravated burglary with two prior aggravated felony specifications, theft with two prior offense specifications and two violence specifications, and receiving stolen property with prior theft offense specifications and two violence specifications. After a jury trial, Ashford was convicted on all counts and sentenced to fifteen to twenty-five years in prison for aggravated burglary, and two to ten years for each of the remaining two counts. The two to ten year sentences were to be served concurrently along with the aggravated burglary sentence. This appeal followed. In his first assignment of error, Ashford argues his conviction for aggravated burglary was against the manifest weight of the evidence and based on legally insufficient evidence. Specifically, he argues the state failed to prove any person was likely to be present at Kawalek s home at the time of the crime an essential element of the crime of aggravated burglary. R.C. 2911.11(A) defines aggravated burglary as follows: No person, by force, stealth, or deception, shall trespass in an occupied structure *** - 5 - with purpose to commit a 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; (2) the offender has deadly weapon or dangerous ordnance *** on or about his person or under his control; (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. Ashford suggests that, in order to prove the victim was present or likely to be present, the state had to prove that she was in and out of the house on the day in question. Although we agree that the work habits of a victim are important in appropriate cases, we conclude they are inapplicable to the facts of this case. The appropriate issue in any of these cases is whether a person is present or whether it is uncertain when the occupier would be present. State v. Johnson (Oct. 10, 1991), Cuyahoga County App. No. 59096, citing, State v. Fowler (1983), 4 Ohio St.3d 16 and State v. Wilson (1979), 58 Ohio St.2d 52. In Fowler, the Ohio Supreme Court held that the standard of review is whether the state showed more than that a person dwelled in the structure. In Franklin County, the appellate court in interpreting State v. Durham (1976), 49 Ohio App.2d 231, concluded that the likelihood of being present may be proved by evidence that the residence was regularly inhabited, that the resident was in and out on the day of the crime, and the burglary occurred while the resident was temporarily absent. State v. Clark (March 28, 1996), Franklin App. No. 95APA11-1428. In this case, there was no evidence that Kawalek was employed or that her work habits regularly took her away from the apartment - 6 - during certain times of the day. Kawalek testified she had lived in the apartment approximately one year. She stated she left home the previous evening and returned home on the morning of the burglary to walk her dog. There is no evidence that she was working or engaged in any activity that regularly took her away from home during the morning hours. The evidence indicated only a temporary absence from the apartment. Under the circumstances, the state presented sufficient evidence upon which the jury could conclude that she was likely to be present at the time of the burglary. See State v. Robinson (1996), 108 Ohio App.3d 428, 433. Additionally, Ashford argues that the weight of the evidence leaned towards an acquittal and not a conviction. Thus, he argues the jury lost its way. Our approach in resolving this issue is governed by the recent Ohio Supreme Court decision in State v. Thompkins (1997), 78 Ohio St.3d 380. In Thompkins, the court held that a reviewing court may only reverse on an issue of weight when that court, after reviewing the entire record, is convinced that the evidence weighs heavily against the conviction. Id. After reviewing this record, we are convinced that the evidence weighed heavily in favor of Ashford s conviction. His fingerprint was found at the premises. He was seen earlier in the area and his co-defendant stated he had received one of the stolen items from Ashford. When Ashford was arrested, he was found in the vicinity of the crime. In view of these facts, we conclude the jury did not lose its way; justice was served. Consequently, his first assigned error is overruled. - 7 - In his second assignment of error, Ashford argues that, under the facts of this case, the crimes of theft and receiving stolen property were allied offenses. Ohio courts have held that receiving stolen property and grand theft are allied offenses of similar import. State v. Bryant (December 26, 1996), Summit App. No. 17618, unreported; State v. Stone (1990), 69 Ohio App.3d 383, 390. The State concedes this point. In this case, the record is devoid of any evidence that the crimes of theft and receiving stolen property were committed with a separate animus for each offense. Accordingly, Ashford s second assignment of error is sustained and we reverse and remand for the trial court to sentence on the appropriate charge. In his third assignment of error, Ashford argues pro se that he was denied the effective assistance of counsel. He argues that his trial attorney, Kevin McFaul, was ineffective. He claims McFaul failed to investigate the fingerprint taken from the crime scene, failed to object to testimony by three police officers about a statement made by Terry Hollins regarding Ashford s participation in the crime. He furthermore claims a conflict of interest because McFaul was the son of Sheriff Gerald McFaul. In order to prove his claim of ineffective assistance of counsel, Ashford must prove that trial counsel s representation fell below an objective standard of reasonableness and that the defective performance prejudicially affected the defense. Strickland v. Washington (1984), 466 U.S. 668, 693. Ashford must - 8 - show that, but for the unprofessional errors, the outcome of the trial would have been different. Id. at 698. Following this standard, we conclude the trial attorney acted reasonably. A representative of the Latent Fingerprint Section of the Scientific Investigation Unit testified that the fingerprint at the scene matched a known print of Ashford from Cleveland Police files as well as a print taken from Ashford during the trial. The state also presented evidence that the print found at the scene was matched by computer analysis with Ashford s via the Automated Fingerprint Identification System. With respect to the statements made by Hollins, they were clearly admissible pursuant to State v. Price (1992), 80 Ohio App.3d 108. Price held that statements made by a witness to a police officer at the scene of a crime which are offered to explain the conduct of his investigation are not hearsay. Id. As for his argument of conflict of interest, this is merely an unsubstantiated allegation, which lacks merit. Consequently, we overrule his third assignment of error. We also overrule his fourth assignment of error. Having found no indication of a conflict of interest involving Ashford s trial counsel, we conclude the trial court was under no obligation to inquire as to the existence of such conflict. In his fifth assignment of error, Ashford argues that plain errors deprived him of his right to a fair trial. He argues that the prosecutor improperly told jurors in his opening statement that Ashford committed the robbery. Any error in this statement by the - 9 - prosecutor is harmless in light of the trial court s instruction that the opening statements of counsel are not evidence. With respect to Ashford s arguments about the credibility of the police officers testimony, we note that the credibility of witnesses is a matter to be determined by a jury. State v. Dehass (1967), 10 Ohio St.2d 230, 231. Accordingly, we overrule Ashford s fifth assignment of error. Judgment affirmed in part, reversed in part, and remanded for re-sentencing. - 10 - This cause if affirmed in part and reversed in part and remanded for re-sentencing. It is ordered that Appellant and Appellee share the 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 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. JAMES D. SWEENEY, C.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court s decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .