COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71650 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION YUSEF WHITFIELD : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 16, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-328,764 JUDGMENT : AFFIRMED IN PART; VACATED IN PART; AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor MARK MAJER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender KATHLEEN W. WOOD, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44ll3-1569 TIMOTHY E. McMONAGLE, J.: 2 This court is asked to decide whether there was sufficient evidence to convict defendant-appellant, Yusef Whitfield ( appellant ), for the offense of breaking and entering as well as to decide whether his multiple convictions were against the manifest weight of the evidence. For the reasons that follow, we vacate his conviction for breaking and entering but otherwise affirm the remaining convictions. The record reflects that appellant and an accomplice were confronted by State Park Ranger Nigel Mills in the Gordon Park parking lot in the City of Cleveland after Officer Mills received information of criminal activity taking place there. Joseph Oliver, the individual who witnessed the events as they unfolded, testified that he observed two individuals driving around the parking lot in a green Buick. Although he could not positively identify the appellant as the driver, he did testify that the driver was a heavy-set black male who used a crutch. He further testified that he saw the driver exit the vehicle and, using his crutch, break the window of a van and remove certain property contained therein. After reporting his observations to Officer Mills, appellant and his accomplice were apprehended by Ofc. Mills when the latter pulled his police cruiser in front the Buick and activated its overhead emergency lights. Ofc. Mills testified that as he was approaching the vehicle, the driver reversed the Buick, ran over some block barriers, drove into a grassy area and, shortly thereafter, struck a small crab apple tree. The force of the impact broke the tree, causing the vehicle to become lodged there. 3 At this point, appellant's accomplice, the passenger in the car, fled on foot toward Martin Luther King Boulevard. The officer pursued the accomplice and eventually apprehended him. After returning to the parking lot area, Ofc. Mills observed that appellant, in the meantime, was able to dislodge his vehicle from the tree stump but, in so doing, ran into a truck in the parking lot, causing the Buick to become disabled. Mr. Oliver, continuing to observe these events, testified that he saw the driver break into a van, which had an attached boat trailer, located in the parking lot and drive away. Based on these events, a grand jury returned a five-count indictment charging appellant with (1) receiving stolen property in violation of R.C. 2913.51, (2) breaking and entering in violation of R.C. 2911.13, (3) theft in violation of R.C. 2913.02, (4) grand theft in violation of R.C. 2913.02 and (5) failure to comply with an order or signal of police officer in violation of R.C. 2921.331. Each of these counts contained a violence specification while the theft charge contained three furthermore clauses for prior convictions. The failure-to-comply charge likewise contained a furthermore clause but for causing a substantial risk of serious physical harm. The jury found appellant guilty on all counts as charged. He was subsequently sentenced to three to ten years for counts one, three and four; one to five years on count two; and three to five years on count five. Counts one, three, four and five were to run consecutive to each other while count two was to run concurrent with the other counts. 4 Appellant timely appeals and assigns the following errors for our review: . WHERE THE STATE FAILED TO PRESENT EVIDENCE THAT APPELLANT COMMITTED A TRESPASS, HIS CONVICTION FOR "BREAKING AND ENTERING" UNDER R.C. 2911.13(B) VIOLATED ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. II. WHEN NO RELIABLE EVIDENCE LINKED YUSEF WHITFIELD WITH ANY OF THE OFFENSES CHARGED, HIS CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. I. In his first assignment of error, appellant contends that there is insufficient evidence to sustain his conviction for breaking and entering as the element of trespass was not proven. The state, on the other hand, argues that appellant trespassed on park property when his presence there became unprivileged by virtue of appellant's commission of a felony, i.e., failure to comply with an order or signal of a police officer. When reviewing a claim of insufficient evidence, the relevant inquiry is whether any rational fact finder, viewing the evidence in a light most favorable to the state, could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 309; State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; see, also, State v. Eley (1996), 77 Ohio St.3d 174, 179. The test for sufficiency is whether the evidence is legally sufficient to support a jury verdict as a matter of law. State v. Thompkins 5 (1997), 78 Ohio St.3d 380, 386; see, also, Jenks, 61 Ohio St.3d at 273. R.C. 2911.13 describes the offense of breaking and entering and provides, in part: (B) No person shall trespass on the land or premises of another with the purpose to commit a felony. Criminal trespass is defined in R.C. 2911.21 as: (A) No person, without privilege to do so, shall do any of the following: (1) Knowingly enter or remain on the land or premises of another; (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; * * * In State v. Barksdale (1983), 2 Ohio St.3d 126, the Supreme Court of Ohio determined that a criminal defendant cannot be subject to charges for breaking and entering when the substance of that charge stems from the defendant's otherwise lawful entrance onto property albeit that the defendant committed a felony once on the property. In this regard, the Barksdale court did not accept the state's argument that the defendant in that case had vitiated his lawful, privileged entry onto an automobile dealer's lot during business hours once the defendant decided to commit a felony theft offense once there. Accord State v. McNear (Feb. 21, 1985), Cuyahoga App. No. 48446, unreported; cf. State v. Lyons (1985), 18 6 Ohio St.3d 204 (an otherwise unauthorized entry upon property constitutes a trespass where property is such that fee is charged and person entering property has no intention of paying fee); State v. Smith (June 11, 1992), Cuyahoga App. No. 60632, unreported (breaking and entering offense upheld where defendant's entry into fee-charging garage parking lot was not privileged because defendant had no intention of paying fee and defendant committed theft felony once on the premises); State v. Delgado (Apr. 30, 1992), Cuyahoga App. No. 60574, unreported (breaking and entering offense upheld where defendant's entry onto university parking lot was not privileged because lot was for university students, faculty, staff and visitors and defendant was none of those). In this case, the testimony adduced at trial revealed that Gordon Park is a lakefront park open to the public during regularly posted hours. It was not disputed that appellant was on the property during the hours it was open to the public; therefore, his entry onto that property was lawful and privileged. As such, this court cannot accept the state's argument that appellant's otherwise lawful entry became unlawful upon his commission of a felony offense. To do so would be contrary to the admonition set forth by the Ohio Supreme Court in Barksdale: This court is convinced that were we to find that [the defendant], by virtue of his felonious intent, lost his right to enter the lot, a dramatic and completely unfounded change would be wrought in our system of justice. Literally, thousands of criminal defendants, heretofore chargeable with only one offense, would suddenly find themselves answerable for a second, with no concomitant benefit accruing to society for whose 7 protection the criminal statutes replete with their penalties exists. Without regard to the nature of their crimes, defendants would incur liability for breaking and entering whenever they stepped onto premises--whether stores, offices or even their own friends' and relatives' homes--with the intention of committing a felony. Though we certainly do not wish to reward criminals for exploiting the innocently extended invitations of merchants, shopkeepers and gracious hosts, neither do we care to penalize criminal indiscriminately for acts for which the General Assembly clearly intended no punishment. Id. at 128. There is no reason for any different reasoning to attach to a public park. Appellant lawfully entered Gordon Park while it was open to the public. That he decided to commit a felony once there does not convert his otherwise lawful entry into an unlawful trespass. Because there is insufficient evidence with which to find that appellant trespassed onto the property in question, appellant's conviction for breaking and entering cannot stand. Accordingly, appellant's first assignment of error is sustained and his conviction for breaking and entering is hereby vacated. II. In his second assignment of error, appellant contends that his remaining convictions are against the manifest weight of the evidence. Specifically, appellant argues that the state's identification evidence was too unreliable to support his convictions. 8 A reviewing court will not reverse a jury verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, syllabus; see, also, State v. Smith (1991), 61 Ohio St.3d 284, 289. In determining whether a trial court's decision is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by a reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10, syllabus; State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442 and 64443, unreported. In making this determination, however, an appellate court must accord deference to the fact finder's conclusions regarding the witnesses' credibility as the fact finder is in a better position to observe the witnesses' demeanor. State v. DeHass (1969), 10 Ohio St. 2d 230. Moreover, the decision to reverse a judgment as against the manifest weight of the evidence is to be exercised with 9 extreme caution and only in the exceptional case where it is evident that the evidence weighs manifestly against conviction. State v. Wilson, supra. After a thorough review of the testimony adduced at trial, we do not find that the identification testimony linking appellant with these crimes was that vague, uncertain or unreliable so as to require reversal of his convictions. Appellant states rather emphatically that Ofc. Mills' testimony was conflicting in that he first testified that he pulled in front of of the Buick and later testified that he approached the vehicle. Appellant construes these two versions to be irreconcilable in that the former suggests that the officer was inside his cruiser and the latter that he was outside. This court is unable to accept appellant's tortuous attempt to make these two terms irreconcilable. The term approach cannot be construed to denote the position of Ofc. Mills relative to his cruiser. Nor are either of these two versions irreconcilable with the officer's testimony that he exited his car after the Buick became stuck on the tree stump. Appellant's semantic arguments are not persuasive and certainly do not equate with evidence that is vague and conflicting so as to make Ofc. Mills' identification of appellant as the driver of the Buick suspect. Appellant next argues that Ofc. Mills' identification was unreliable because the officer could not accurately observe the driver because the Buick's windows were darkened or that the officer was looking into the Buick in the glare of full sun. This, 10 he argues, is especially true if Ofc. Mills were observing the driver from his cruiser. A review of the transcript reveals that Ofc. Mills testified that only the rear window was darkened. Because the officer pulled in front of the Buick, the fact that the rear window was darkened should be no hindrance in the officer's observation of the driver's features. Moreover, the officer testified that he was no more than twelve feet from the driver and was able to identify appellant as the driver. This testimony does not rise to the level of being vague, uncertain or unreliable so as to find appellant's convictions against the manifest weight of the evidence. Accordingly, appellant's second assignment of error is not well taken. III. In summary, appellant's conviction for breaking and entering is not sustained by the evidence and is hereby vacated. As a result, this case is remanded to the trial court for re-sentencing. Appellant's remaining convictions, however, are otherwise affirmed. 11 This case is affirmed in part, vacated in part and remanded to the lower court for re-sentencing. It is ordered that appellee and appellant split 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 Cuyahoga Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial court, however, for re-sentencing. 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 ANN DYKE, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 decison 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 .