COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71315 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JAMES GOODMAN : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 17, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-340528 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARK R. MAJER Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender JEAN M. GALLAGHER Assistant Public Defender 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 O'DONNELL, J.: James Goodman appeals from the judgment of the common pleas court entered pursuant to jury verdict finding him guilty of aggravated burglary and intimidation. 2 The record reveals that on May 24, 1996, about 2:00 P.M., Goodman forcibly entered the home of Roland and Carol Vollmer, located at 26376 Hilliard Boulevard, in Westlake, Ohio, by breaking the frame on the window screen and entered through an unopened kitchen window but, when he encountered their son, Russell, laying on his bed, he abruptly left without taking anything or injuring anyone. Russell immediately told his father, Roland, who had been in the shower and who quickly dressed, rushed outside with Russell, saw Goodman walking into the driveway of their neighbors, Robert and Diane Kay, about four houses from the Vollmer residence, and then telephoned Westlake police. Goodman then knocked on the Kays' door, stated he felt ill and asked them to call him a cab. Unable to arrange a cab for Goodman, Robert Kay offered to drive Goodman to West 117th Street and Clifton Boulevard, in Lakewood, Ohio, where Goodman said he lived. Minutes after they drove away, Russell Vollmer approached Diane Kay and told her of the Vollmers' incident with Goodman. Diane Kay then telephoned Lakewood police, informed them of Goodman's actions and of Robert Kay's driving him to the Lakewood location. Robert Kay then dropped Goodman off at a restaurant called Clifton Lunch, located on the corner of West 117th St. and Clifton Boulevard. Following this, Lakewood police stopped Kay and, after he identified Goodman sitting in the restaurant, they arrested Goodman and returned him to the Vollmer home where Russell Vollmer identified him. The record further reveals that, from June 7 through June 9, 3 1996, Goodman made numerous collect calls from a coin telephone located near his cell in the Justice Center, to the Vollmer home in which he threatened to harm or kill Roland Vollmer if he testified against Goodman. The grand jury indicted Goodman on one count of aggravated burglary and one count of intimidation which stated he knowingly and by force or by unlawful threat of harm to any person or property, did attempt to influence, intimidate or hinder Roland C. Vollmer, a victim of a crime in the filing or prosecution of criminal charges. The court found Goodman to be indigent, assigned counsel for him and conducted a jury trial. Following his convictions on both counts, the court sentenced him to ten to twenty-five years, on count one, with two years consecutive, on count two, and imposed fines of $10,000.00 and $5,000.00 respectively. The court then appointed the public defender to represent him on appeal and ordered that transcripts be provided at state's expense in accordance with Crim.R. 32(A)(2). Goodman now appeals and raises two assignments of error for our review. The first assignment of error states: MR. GOODMAN'S RIGHTS UNDER ART. I, SECT. 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN THERE WAS INSUFFICIENT EVIDENCE OF AGGRAVATED BURGLARY AND INTIMIDATION. Goodman contends the court erred when it denied his Crim.R. 29 motion for acquittal on both counts. Regarding aggravated 4 burglary, he urges the state failed to adduce evidence that he acted with purpose to commit a theft offense or felony. Regarding intimidation,he argues the state failed to prove that he directed his actions toward a victim of a crime in the filing or prosecution of criminal charges, alleging that, since Vollmer, at the time of Goodman's telephone calls, had already filed aggravated burglary charges against him, Vollmer was not intimidated in the filing or prosecution of those charges, and further alleging the state should have charged him with intimidating a witness in a criminal case in the discharge of his duty, per R.C. 2921.04(B). The state urges that Goodman's convictions are supported by sufficient evidence arguing, with respect to aggravated burglary, the jury may infer the purpose with which Goodman acted and further arguing, with regard to intimidation, that the evidence supports Goodman's efforts to intimidate Vollmer in the prosecution of the aggravated burglary charges. The issue presented for our review then is whether the trial court properly denied Goodman's Crim.R. 29 motion for acquittal based upon insufficient evidence. We begin our analysis by reviewing Crim.R. 29(A) which states in relevant part: * * * The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or offenses * * *. With respect to sufficiency, the Ohio Supreme Court recently 5 articulated the standard of review in State v. Taylor (1997), 78 Ohio St.3d 15, 18: * * * [The 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 * * *. At trial, here, the state assumed the burden to prove Goodman's guilt of aggravated burglary beyond a reasonable doubt. R.C. 2911.11 defines this offense as: (A) No person, by force * * * shall trespass in an occupied structure * * * with purpose to commit therein any theft offense * * * 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 * * *. (Emphasis added). In this case, the state presented the testimonies of Russell and Roland Vollmer, from which any rational trier of fact could have found that Goodman forcibly entered the Vollmer home, through the kitchen window, at a time when Roland and Russell occupied it and that it was their permanent place of habitation. In State v. Flowers (1984), 16 Ohio App.3d 313, 314-315, the court, in considering evidence of an offender's intent in entering another's home, stated in relevant part: Since the intent of an accused person is only in his mind and is not ascertainable by another, it cannot be proved by direct testimony of another person but must be determined from the surrounding facts and circumstances * * *. * * * [T]here is a reasonable inference that 6 one who forcibly enters a dwelling * * * does so with the intent to commit a theft offense in the absence of circumstances giving rise to a different inference * * *. * * * Persons do not ordinarily forcibly enter a dwelling being occupied by others unless there is an intent to commit a crime, the most likely crime being a theft offense * * *. Here, the circumstances give rise to an inference that Goodman entered the Vollmer home with purpose to commit a theft offense, but left abruptly when he discovered residents in the home. Accordingly, we find no error in this part of the court's ruling. The state also assumed the burden to prove guilt of intimidation beyond a reasonable doubt. R.C. 2921.04 defines this offense as: * * * (B) No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to * * * intimidate * * * th e victim of a crime in the filing or prosecution of criminal charges, or a witness in a criminal case in the discharge of his duty * * *. (Emphasis added). Here, the record reflects the testimonies of Roland Vollmer, Carol Vollmer and Mark Hudson, a service representative for Ameritech, demonstrating that Goodman telephoned the Vollmer home on numerous occasions between June 7 and June 9, 1996 threatening to harm or kill Roland Vollmer if he testified at trial. Since Goodman attempted to intimidate Vollmer during the prosecution of this case, a reasonable trier of fact could have found the essential elements of intimidation proven beyond a reasonable doubt. Accordingly, this assignment of error is overruled. 7 The second assignment of error states: THE TRIAL COURT ERRED WHEN IT IMPOSED FIFTEEN THOUSAND DOLLARS IN FINES ON A DEFENDANT WHO WAS FOUND INDIGENT FOR PURPOSES OF COUNSEL AT TRIAL AND FOR PURPOSES OF APPEAL, OBJECTED ON THE GROUNDS THAT HE WAS INDIGENT, AND WHO CANNOT EVEN APPLY FOR PAROLE FOR AT LEAST EIGHT YEARS. Goodman contends the trial court abused its discretion when it imposed $15,000.00 in fines since he informed the court of his indigency and will be incarcerated for at least eight years before he can apply for parole. The state urges the court did not abuse its discretion when it imposed the fines on Goodman because they are aggregate fines and Goodman failed to show they caused him undue hardship. The issue presented for our review is whether the court abused its discretion in imposing $15,000.00 in aggregate fines on Goodman. In considering this issue, we apply R.C. 2929.14 which states in relevant part: (A) In determining whether to impose a fine for a felony and the amount and method of payment of a fine, the court shall consider * * * the ability and resources of the offender and the nature of the burden that payment of a fine will impose on him * * *. (C) The court shall not impose a fine or fines for felony that, in the aggregate * * * exceed the amount that the offender is or will be able to pay by the method and within the time allowed without undue hardship to himself or his dependents * * *. (Emphasis added). Here, Goodman informed the court of his indigency. Based upon his financial condition, the court appointed trial counsel, 8 appellate counsel, and ordered the transcripts for appeal prepared at state's expense. In State v. Gutierrez (1994), 95 Ohio App.3d 414, 418, the court considered a similar set of circumstances and stated in relevant part: Under the circumstances of this case, the relevant inquiry is what assets (i.e., real or personal property, employment benefits, inheritances,or other ability to gain assets) did [appellant] have that would enable him to pay the mandatory fine. In the case before us, there is no evidence the trial court considered or determined Goodman's ability to pay or gain assets, nor the nature of the burden that payment of the $15,000.00 fine will impose on him, whether the fine exceeded the amount he will be able to pay without undue hardship to himself or his dependents or whether he possessed any assets that would enable him to pay the fine. Since the court failed to make these findings, it abused its discretion when it imposed the fine on Goodman. Accordingly, this assignment of error has merit and we vacate the $15,000.00 fine. Affirmed in part, reversed in part and remanded for further proceedings in accordance with this opinion. 9 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. DYKE, P.J., and HOLMES, J., CONCUR (Justice Robert E. Holmes, Retired, the Supreme Court of Ohio, Sitting by Assignment) 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 .