COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71276 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION GREGORY McDOUGALL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-328342 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOSE TORRES Assistant Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender KATHLEEN W. WOOD Assistant Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113-1569 -2- O'DONNELL, J.: Gregory McDougall appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of aggravated burglary, burglary, and vandalism, alleging his convictions for aggravated burglary and burglary are not supported by sufficient evidence, his counsel failed to represent him effectively, and that the court committed plain error by admitting evidence concerning McDougall's prior convictions and allowing the prosecution to refer to those statements in closing argument. Having thoroughly reviewed the transcript, we conclude appellant's assignments of error are without merit and affirm. The history of the relationship between the appellant and Sherry McDougall is instructive in analyzing this case. The couple married in 1985, but soon divorced. The parties then reconciled and began living together again, but never formally married. During this time, police arrested appellant for domestic violence against Sherry McDougall, and he served time in prison. While appellant served this time, McDougall obtained a second divorce from him arising from her alleged common-law marriage to him. Following this second divorce, the court awarded custody of their child, Gina, to Sherry and also awarded her the residence, a double house with a third apartment in the rear. Following his release from prison, Sherry rented the rear apartment to appellant and the upstairs apartment to Fred Farley. Appellant agreed to help care for Gina while Sherry worked by -3- waking Gina in the mornings, making her breakfast, and helping get her ready for her afternoon day care sessions. The incidents which gave rise to this case occurred on August 9, around noon, and early in the morning on August 10, 1995, shortly after midnight. On August 9, 1995, as Sherry left to take Gina to her day care class, they heard a loud noise and saw appellant pushing open the front door of their home with a hammer in his hand, damaging property, and kicking their dog. When Sherry returned later that evening, she discovered that appellant had gained entrance to her apartment by breaking down the side door and had attempted to repair the broken door frame. Inside her apartment, she discovered appellant had hammered holes into the walls and damaged her property. Later that evening, on August 10, 1995, a few minutes after midnight, appellant attempted to gain entrance to Fred Farley's apartment; when Farley locked him out, appellant kicked down the door and threatened to shoot him. Following that incident, appellant again broke into McDougall's apartment, threatened Gina, and took her to his apartment. Police then arrived and arrested him. Subsequently,the grand jury indicted appellant for one count of burglary in connection with the daytime incident at McDougall's apartment on August 9, 1995, and two counts of aggravated burglary, one count of domestic violence, and two counts of vandalism in connection with the incidents on August 10, 1995. -4- Thereafter, the court conducted a jury trial where, during its case in chief, the prosecution elicited testimony from Sherry McDougall concerning appellant's prior convictions for domestic violence. Fred Farley also testified that he feared appellant because he knew appellant as a violent person who had threatened him in the past. At the close of the state's case, the appellant moved for acquittal pursuant to Crim. R. 29(A), but the court denied the motion. The defense presented no testimony. Subsequently, during closing arguments, the prosecution referred to the testimony of both McDougall and Farley. Following charge and deliberation, the jury returned verdicts finding appellant guilty of the August 9, 1995 burglary and vandalism of McDougall's residence; guilty of the August 10,1995 aggravated burglary of McDougall's and Farley's residences; not guilty of the August 10, 1995 charge of domestic violence to McDougall; and not guilty of vandalizing Farley's residence. At that point, appellant again moved for acquittal pursuant to Crim. R. 29(C) regarding the two counts of aggravated burglary, but the court denied the motion and imposed sentence. This appeal is from those convictions and presents three assignments of error for our review. The first assignment of error states as follows: I. APPELLANT'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE COURT DENIED HIS MOTION FOR DIRECTED ACQUITTAL OF AGGRAVATED BURGLARY AND BURGLARY CHARGES WHEN THE STATE HAD FAILED -5- TO PRESENT EVIDENCE SUFFICIENT TO CONVICT HIM OF THOSE OFFENSES. Appellant contends the court erred in denying his motion for acquittal because the state failed to prove he trespassed in McDougall's apartment on August 9, and on August 10,1995, a necessary element of those offenses; and that the state also failed to prove that he entered McDougall's and Farley's apartments with the purpose to commit felonies on August 10, 1995. The state asserts it established all the elements of the crimes of aggravated burglary and burglary, and the court acted properly in denying appellant's motions for acquittal. The issue then presented for our review concerns whether the state proved all of the elements of the crimes of burglary and aggravated burglary as alleged on August 9, and August 10, 1995. The Ohio Supreme Court recently set forth the standard of review for cases involving the sufficiency of evidence in State v. Taylor (1997), 78 Ohio St.3d 15, at 18: In reviewing a record for sufficiency, [t]he relevant inquiry is whether, after reviewing 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. quoting State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus (in part). We begin this inquiry by reviewing the state's burden of proof in this case. R.C. 2911.12(A)(3) defines burglary as follows: (A) No person, by force, stealth, or deception, shall do any of the following: -6- (3) Trespass in a permanent or temporary habitation of any person when any person is present or likely to be present. R.C. 2911.11 defines aggravated burglary and states, in part: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, ***, 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: *** (1) The offender inflicts, or attempts or threatens to inflict physical harm on another. Trespass is defined in R.C. 2911.21 as follows: (A) No person, without privilege to do so, shall do any of the following: *** (2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the offender knows he is in violation of any such restriction or is reckless in that regard; We recognize in connection with this assignment of error that appellant had a privilege to enter McDougall's apartment each morning. Although the evidence shows that appellant had McDougall's permission to enter the residence to wake Gina and make her breakfast, this permission granted him a limited license for a particular purpose. Both Sherry and Gina testified that, on August 9, 1995, appellant entered their apartment by kicking in the door, began beating holes into the walls with a hammer, and threw the microwave into the dog's cage. Both also testified that appellant broke down the door to gain entrance again on August 10, 1995. Clearly these entrances into the apartment exceeded appellant's authority which had been granted for the limited purpose of assisting seven year old Gina in the mornings. Viewing this -7- evidence in a light most favorable to the prosecution, we hold the state presented sufficient evidence of the element of trespass to sustain convictions for burglary and aggravated burglary on these occasions. Regarding appellant's claims that the state failed to prove his purpose in entering McDougall's and Farley's apartments on August 10, 1995, Farley testified that appellant broke down his door, threatened to kill him, broke his lamp, and forced him out of his own apartment. McDougall testified that appellant broke down her door, pushed her down, and threatened to kill Gina. In State v. Frazier (1979), 58 Ohio St.2d 253, at 256, the court explained an accused may be guilty of aggravated burglary even if no felony is actually committed. Thus, the fact that the jury did not convict appellant of either domestic violence in connection with the incident at McDougall's apartment or vandalism in connection with the incident at Farley's apartment is not dispositive of whether he committed aggravated burglary. The state need only prove the appellant intended to commit a felony at the time of entry. In this case, the facts and circumstances in evidence clearly support the jury's inference that the appellant intended to commit felonies at the time he entered McDougall's and Farley's apartments. After consideration of the evidence in this case, viewed in a light most favorable to the prosecution, we conclude the state proved the essential elements of aggravated burglary. Accordingly, this assignment of error is overruled. -8- We consider appellant's remaining assignments of error jointly as they concern similar legal issues: II. GREGORY McDOUGALL WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN COUNSEL'S FAILURE TO OBJECT TO THE STATE'S IMPROPER AND PREJUDICIAL USE OF OTHER ACTS EVIDENCE UNDERMINED THE FAIRNESS AND RELIABILITY OF HIS TRIAL. III. IT WAS PLAIN ERROR FOR THE TRIAL COURT TO ALLOW THE PROSECUTOR TO REFER TO BAD ACTS EVIDENCE IN CLOSING ARGUMENT, ENCOURAGING THE JURY TO INFER THAT APPELLANT WAS A VIOLENT MAN WHO WAS LIKELY TO COMMIT THE CRIMES CHARGED, WITHOUT GIVING THE JURY A CURATIVE INSTRUCTION. Appellant argues he received ineffective assistance of counsel because his defense counsel failed to object to McDougall's testimony about his prior conviction for domestic violence, and Farley's testimony that he feared appellant, and the prosecutor's references to this testimony during closing argument; appellant further contends the court committed plain error when it allowed the state to elicit such testimony. The state argues because appellant did not object during trial, he waived his right to appeal; furthermore, defense counsel's failure to object does not amount to ineffective assistance of counsel, and such comments do not rise to the level of plain error. The issues for our consideration here are whether appellant had effective assistance of counsel and whether the trial court committed plain error by allowing the testimony. -9- We begin our analysis by reviewing the law regarding ineffective assistance of counsel. As the Supreme Court stated in Strickland v. Washington (1984) 466 U.S. 668, 686, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to establish such a claim, an appellant must make two showings. Appellant must establish his counsel performed deficiently by showing errors so grievous that counsel did not function as the counsel guaranteed under the Sixth Amendment. Appellant must then prove this deficient performance prejudiced the defense. This standard requires counsel's errors be so serious as to deprive the appellant of the opportunity for a fair trial. Id. at 687. In assessing the assistance of defense counsel, the proper standard is that of reasonably effective assistance, and in order to succeed on a claim for ineffective assistance, an appellant must show counsel's advice and performance did not fall within the range of competence demanded of attorneys in criminal cases. Strickland466 U.S. at 687. As the Ohio courts have explained, in order to show a defendant has been prejudiced by counsel's performance, one must show a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley (1989) 42 Ohio St.3d 136, 137 at para. 2 syllabus. -10- We continue our review by examining the law regarding plain error. In State v. Davis (1975), 44 Ohio App.2d 335,343, we explained * * * in a case in which the appellant alleges that it was prejudicial error to allow the jury to hear certain testimony, the reviewing court must first determine if it was error to allow the jury to hear this testimony, and if so, whether such error was prejudicial or harmless. The court continued at 347 stating The Ohio test then for determining whether the admission of inflammatory and otherwise erroneous evidence is harmless non-constitutional error requires the reviewing court to look at the whole record, leaving out the disputed evidence, and then to decide whether there is other substantial evidence to support the guilty verdict. Furthermore, the U.S. Supreme Court determined in Harrington v. California (1969) 395 U.S. 250, 254, that in reviewing these questions, the court must examine the entire record, disregarding the improper evidence, and determine whether there is remaining overwhelming evidence of the appellant's guilt. When the error implicates federal constitutional rights, in order for the error to be held harmless, the reviewing court must conclude the error harmless beyond a reasonable doubt, or stated differently, the court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant's conviction. Chapman v. California (1967), 386 U.S. 18, 24. Thus, the Ohio test requires substantial evidence remaining exclusive of the tainted materials in order to find harmless error, while the constitutional standard requires overwhelming evidence -11- exclusive of the tainted materials and a finding of harmless error beyond a reasonable doubt. In this case, appellant has not met the test of ineffective assistance of counsel or demonstrated plain error. Based upon our review of the entire record, we have determined independent overwhelming evidence of the appellant's guilt beyond a reasonable doubt exists regarding the elements of burglary and aggravated burglary from which the jury reached its verdicts in this case. The appellant failed to prove defense counsel's performance fell below the standard of reasonable representation and failed to demonstrate the likelihood of a different outcome had the contested evidence been excluded. Accordingly, these assignments of error are overruled. 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 -12- 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. MATIA, P.J., and SPELLACY, J., CONCUR. JUDGE TERRENCE O'DONNELL 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 journalization of this court's announcement of decision by the .