COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72904 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION EDWARD KIMMIE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JULY 2, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-349,507 JUDGMENT : AFFIRMED AND REMANDED : FOR RE-SENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor MICHAEL S. NOLAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MYRON P. WATSON Attorney at Law 310 Lakeside Avenue, N.W. Suite 595 Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Defendant-appellant Edward Kimmie appeals from his convictions for burglary and possession of criminal tools. Appellant contends his convictions were based upon insufficient evidence and further contends he was denied the effective assistance of counsel at his jury trial. Appellant also argues the trial court failed to arti- culate sufficient reasons for imposing upon him the maximum sen- tence for his burglary conviction. After a thorough review of the record, this court finds appellant's convictions were supported by sufficient evidence and finds appellant's trial counsel was not ineffective in his representation of appellant; however, the trial court's explanation regarding appellant's sentences was inadequate. Therefore, appel- lant's convictions are affirmed, but this case is remanded for re- sentencing. Appellant's convictions stem from an incident that occurred on February 19, 1997. On that evening, Jacqueline Bradshaw, who lived in the middle unit of a five-unit townhouse apartment complex located at 447 East 142 Street in Cleveland, Ohio, decided to take her visiting mother to a concert at Playhouse Square. The women departed the apartment at approximately 7:45 p.m. Bradshaw's brother, Jondarr Virgil Bradshaw ( Virgil ), also lived at the apartment complex. The unit in which Virgil lived was on the corner, next to the narrow driveway that led to the small rear parking lot of the complex. Virgil arrived home from his place of employment at approximately 5:30 p.m. and remained there while his mother and sister proceeded on their outing. -3- Bradshaw's neighbors also were home that evening. Andrekia Bush, who, with her two sons, lived in the unit located between Bradshaw and Virgil, was having her unit painted by her uncle. As a consequence of this, several of Bush's relatives were also in her unit socializing with each other. At approximately 8:30 p.m., one of Bush's guests was leaving, so she accompanied him to the rear door of her unit, which faced the parking lot. Bush opened the door and noticed that a black Caprice Classic 1 automobile was entering the parking lot. The driver of the car, later identified as appellant, turned it around and parked in the driveway. The vehicle attracted Bush's attention not only because she had never seen that car before but because its radio was on and the music was really, really loud. The noise from the car also attracted the attention of Bush's mother and of Virgil, both of whom were indoors. Although Virgil did not look out any of his apartment windows at that time, he worried that the excessive speed he heard from the noisy car might endanger someone or something in the parking lot. Bush's mother, however, did look out an upstairs window; she observed appellant's car for a moment before returning to the care of her grandchild. While Bush accompanied her guest outside and watched him walk to his vehicle, she also observed appellant. Appellant exited his car and approached the rear door of Bradshaw's apartment. Once there, appellant began beating on her door and ringing the 1Quotes indicate testimony given by a witness at appellant's trial. -4- [door]bell. Bush stood only eight to ten feet away; thus, she could clearly see appellant's next activity: appellant urinated on the door. At that point, Bush re-entered her unit, where she continued her observations from her rear window. Bush saw appellant re-enter his car and then exit the driveway so that her guest was able to leave the parking lot. Then Bush's boyfriend, Chris Williams, arrived in his truck. Since Williams had failed to keep a commitment to drive Bush home from work, after letting him into her apartment, Bush proceeded to have an argument with him about the time. During this discussion, Bush's mother left the apartment to pick up her boyfriend. Bush and Williams remained in her kitchen. Within a short time, Bush heard someone beating on the front door of her apartment. She told her relatives she would answer the door. Bush opened her door to see appellant standing outside. Appellant asked Bush, [I]s Jacqueline Bradshaw home[?] Bush replied to appellant that he was at the wrong apartment. However, Bush was suspicious of appellant; therefore, she refused directly to respond to his query concerning where Bradshaw lived. Bush merely told appellant she would inform Bradshaw that he came by. She then closed her door and returned to her kitchen. At approximately 9:00 p.m., Ophelia Nixon, who lived in the apartment on the other side of Jacqueline Bradshaw, emerged from her unit on her way to retrieve her husband from his barber shop business. Nixon was startled to see a man, later identified as -5- appellant, standing in front of the rear window of Bradshaw's unit. Nixon asked appellant, [W]hat's going on[?] Appellant's response was to proceed to the door of Bradshaw's unit, whereupon he began ringing the doorbell and stating, I know she is home. Nixon could see, however, that no lights were illuminated inside Bradshaw's apartment. Moreover, she observed that the screen on the window appellant had been standing near was bent all the way out. Furthermore, she could see that Bradshaw's automobile was absent from the parking lot. Nixon told appellant he shouldn't be doing that and, somewhat concerned for her safety, continued to her car; however, she also maintained her observation of appellant. Appellant chose at that point to walk to the side of the apartment building going towards the front. Nixon took the opportunity of appellant's absence to proceed to Virgil's apartment. She knocked on Virgil's door and, when he answered, reported her suspicion that someone was trying to break into his sister's apartment. Thereafter, Nixon left on her ori- ginal errand. Virgil put on his coat and went outside to investigate. He walked the perimeter of the building without encountering anyone. However, when he eventually came to the rear of his sister's apartment, he saw that in addition to the damage to the screen covering it, the rear window had been broken, a metal bar *** was lying on the ground, and some footprints were impressed into the dirt beneath the window. Although Virgil attempted to -6- ascertain if someone was inside, he could not be sure; therefore, he returned to his own apartment and placed a telephone call to the Cleveland Police Department. Virgil posted himself by the rear door of his sister's apartment as he waited for the police to respond. While he waited, Andrekia Bush's mother returned to the apartment complex and paused to have a conversation with him. It was during this discourse that Virgil learned appellant had been seen at his sister's apartment by Bush and her visitors as well as Nixon. Virgil also learned the source of the noisy music he had heard earlier outside since Bush's mother described the vehicle appellant had been seen driving. After approximately forty-five minutes, the police still had not responded to his telephone call. Virgil was cold from his vigil; therefore, he went back inside his apartment to warm himself. He remained alert for outside noises, however, Within a short time, Virgil heard the same loud music that [he] had heard earlier in the evening. Virgil looked out his front window and observed a vehicle, later identified as appel- lant's, slowly moving northbound along East 142 Street. The vehicle entered a parking lot across the street and stopped. Since the vehicle resembled an undercover police car, Virgil quickly stepped outside, expecting to meet a police officer. Instead, he saw the driver exit the vehicle, open the rear driver's side door, retrieve an object that appeared to me to be a television set from the sidewalk, and place it inside the rear of the vehicle. From the windows in Bush's apartment, Bush, her -7- mother and Chris Williams also observed the driver, later identi- fied as appellant, carry the television set to the car and place it inside. Appellant then re-entered the car and drove away. Virgil attempted to chase the vehicle, but his pursuit was unsuccessful. When he returned to the apartment building, he noticed the front door of his sister's apartment had been pulled open and the screen door had been pushed aside. By this time, Virgil's neighbors had come outdoors; therefore, when Virgil went inside his sister's apartment to ascertain the welfare of her dog, he was accompanied by Chris Williams. Virgil noticed that his sister's television set and cable box, later valued at over $300, were missing. He could see also that objects were strewn all over the floor of the living room. Virgil soon retrieved his sister's frightened dog from an upstairs bedroom. As he emerged from the apartment, a police zone car arrived at the scene. The officers conversed with the people standing outdoors, determined intruders were no longer inside Bradshaw's apartment, and advised Virgil that Bradshaw should file a report at the Sixth District Police Station. Bradshaw arrived home at approximately 11:30 p.m. Her brother and her neighbors, who had remained outside, immediately informed her of what had transpired during the evening. From their de- scription of the man seen in the vicinity of her apartment, Bradshaw surmised she was acquainted with him; appellant was a former co-worker who had visited her apartment a few months previously to retrieve a letter of reference Bradshaw had prepared -8- for him. More recently, appellant had telephoned with a request to borrow money, which Bradshaw had refused. Bradshaw telephoned a police detective with whom she had recently been associated through her employment with juvenile court, William Cunningham. Cunningham obtained some addresses where appellant might be located from the police department's computer, then drove to the Sixth District Police Station to meet with Bradshaw. On his way, Cunningham decided to drive past one of the addresses on his list; as he did so, he noticed a black Chevrolet Caprice in the driveway. When Cunningham arrived at the police station, Bradshaw was there with her brother and Chris Williams. Cunningham requested the two men accompany him to the address where he had seen the black Chevrolet; however, by the time the three of them had returned, the car was no longer in the driveway. Therefore, Cunningham returned to the police station, told Bradshaw and the others to proceed home, then arranged for an immediate investiga- tion of the incident. Cunningham monitored the gathering of evidence at the scene, including fingerprints and blood samples from the broken glass of the rear window. Later, police forensic analysts determined both that the fingerprints matched those of appellant and that the blood samples were consistent with appellant's blood type. When the evidence-gathering portion of the investigation had concluded in the early morning hours of February 22, 1997, Cunningham again proceeded with Virgil and Williams to the address -9- where he had observed the black car. This time, the car was in the driveway of the home. Both Virgil and Williams identified it as the car they had seen earlier in the evening at the apartment complex. Cunningham went to the door of the house, which was answered by a woman. The woman refused Cunningham's request to speak with appellant. At that point, Cunningham went to the black Chevrolet in the driveway and used a flashlight to look inside the car. He observed what appeared to be bloodstains on the driver's-side door panel and the seat. Cunningham immediately called for a tow of the vehicle to the police storage lot, where photographs were taken. Police detectives also took samples of the blood on the upholstery. Forensic analysis later showed the blood samples were consistent with appellant's blood type. Appellant subsequently was indicted on two counts; viz., burglary, R. C. 2911.12, and possession of criminal tools, to-wit: a Chevrolet Caprice, R.C. 2923.24. Appellant entered a plea of not guilty to the charges and retained counsel to represent him. After several pretrials, appellant's case proceeded to a jury trial. The state presented eleven witnesses during its case-in-chief, including Bradshaw, Virgil, several of their neighbors, and Cunningham and several other officers and forensic examiners involved in the investigation of the incident. Photographs and laboratory results also were entered into evidence. Appellant presented no testimony on his own behalf. Subsequently, the jury found appellant guilty of the charges. The trial court thereupon -10- sentenced appellant to concurrent terms of incarceration of eight years on count one and one year on count two. Appellant has filed a timely appeal of his convictions and presents three assignments of error for review. Appellant's first assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION BY DENYING APPELLANT'S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL ON COUNTS I AND II PURSUANT TO OHIO CRIMINAL RULES OF PROCEDURE. In a conclusory fashion and without citation to any authority as required by App.R. 16(A)(7), appellant asserts the state failed to provide sufficient evidence to prove identity; i.e., that appellant was the perpetrator of the crime that occurred at Bradshaw's apartment. This court disagrees. The Ohio Supreme Court recently has stated the following as the test to be applied when considering a claim such as appel- lant's: When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact. Jenks, 61 Ohio St.3d at 273, 574 N.E.2d at 503. See, also, State v. Bridgeman (1978), 55 Ohio St.2d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus. State v. Dennis (1997), 79 Ohio St.3d 421, at 430-31. -11- The supreme court also has acknowledged *** circumstantial evidence may be more certain, satisfying, and persuasive than direct evidence. State v. Jackson (1991), 57 Ohio St.3d 29, at 38. Thus, it is not error if proof of appellant's guilt were based upon circumstantial as well as direct evidence. State v. Franklin (1991), 62 Ohio St.3d 118, 124; State v. Jenks (1991), 61 Ohio St.3d 259, 272; State v. Nicely (1988), 39 Ohio St.3d 147. The following evidence of appellant's guilt was adduced by the state: (1) appellant knew Bradshaw and had been to her apartment previously; (2) Bradshaw recently had refused to give appellant money; (3) on the evening of the incident, appellant was seen driving a black Chevrolet Caprice in the small parking lot of Bradshaw's apartment complex; (4) appellant's car and his behavior attracted the residents' attention; (5) Bush saw appellant at Bradshaw's door, attempting to gain admittance; (6) shortly thereafter, Nixon saw appellant at Bradshaw's rear window and noticed the screen was bent all the way out ; (7) between the time Nixon reported appellant's actions to Virgil and Virgil's circuit of the building, the rear window to Bradshaw's apartment was broken; (8) appellant's fingerprints and blood matching appellant's blood type were found on the broken glass of the window; (9) appellant subsequently was seen by several people at the front of the apartment complex carrying a television set into his car; (10) thereafter, Virgil discovered Bradshaw's front door had been opened; and (11) when he entered his sister's apartment, Virgil discovered Bradshaw`s television set was missing. -12- Construing this evidence in a light most favorable to the state, a rational factfinder could have found beyond a reasonable doubt that on February 19, 1997, appellant was the perpetrator of the crimes of burglary and possession of criminal tools, to-wit: a Chevrolet Caprice, that occurred at Bradshaw's apartment. State v. Dennis, supra; State v. Jenks, supra; State v. Cobb (Feb. 10, 1994), Cuyahoga App. No. 64685, unreported; State v. Weber (Dec. 23, 1997), Franklin App. No. 97APA03-323, unreported; see, also, State v. Ward (1993), 85 Ohio App.3d 537; State v. Powell (1993), 87 Ohio App.3d 157. Accordingly, appellant's first assignment of error is overruled. Appellant's second assignment of error states: THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS BLOOD EVIDENCE OBTAINED FROM APPELLANT'S CAR WITHOUT CONSENT OR A SEARCH WARRANT. Appellant asserts his counsel was ineffective for his failure to challenge the evidence obtained from the black Chevrolet automobile. Appellant's assertion is insupportable since he is seeking to castigate defense counsel for failure to do a vain act and for a decision in a matter of trial strategy. In Ohio, a properly licensed attorney is presumed competent. State v. Smith (1985), 17 Ohio St.3d 98. One claiming ineffective assistance of counsel bears the burden of demonstrating: (1) there has been a substantial violation of an essential duty owed to him by counsel; and (2) he has been thereby prejudiced. State v. Lytle -13- (1976), 48 Ohio St.2d 391; State v. Bradley (1989), 42 Ohio St.3d 136, citing Strickland v. Washington (1984), 466 U.S. 668; see, also, State v. Smith, supra. The establishment of prejudice requires proof that there exists a reasonable probability that were it not for counsel's errors, the result of the trial could have been different. State v. Bradley, supra, paragraph three of the syllabus. Moreover, this court will not second-guess what could be considered to be a matter of trial strategy. State v. Smith, supra. The record of this case with regard to trial counsel's actions fails to demonstrate counsel's performance fell below an objective standard of reasonableness, initially because although appellant supports his assertion with the premise the search of his car was illegal, a review of the facts demonstrates that it was not. It has long been the rule that where an initial intrusion by police officers is lawful, an incriminating object that comes into plain view during that intrusion may be seized without a warrant. State v. Williams (1978), 55 Ohio St.2d 82. Whether an object is in plain view is determined by the following analysis: In order for evidence to be seized under the plain view exception to the search warrant requirement it must be shown that (1) the initial intrusion which afforded the authori- ties the plain view was lawful; (2) the dis- covery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities. Id., at syllabus 1. -14- The Ohio Supreme Court defined the last requirement of the plain view doctrine in the syllabus of State v. Halczyszak (1986), 25 Ohio St.3d 301, thusly: The immediately apparent requirement of the plain view doctrine is satisfied when police have probable cause to associate an object with criminal activity. On ascertaining the required probable cause to satisfy the immediately apparent require- ment, police officers may rely on their spe- cialized knowledge, training and experience. (Emphasis added.) In this case, Cunningham had driven to the address where appellant might be located in order to permit Virgil and Williams to view the car he had seen there earlier. Thus, since Cunningham merely was pursuing the investigation, he had a legitimate purpose for his presence there. Moreover, since the car in the driveway was identified by both Virgil and Williams as the one that they had seen that evening at the apartment complex, Cunningham was justified in approaching the vehicle and viewing the inside of it with his flashlight. Finally, when Cunningham saw what appeared to be bloodstains, his immediate seizure of the car was proper. See, e.g. State v. Rodgers (Nov. 3, 1994), Cuyahoga App. No. 66487, unreported. Clearly, trial counsel did not violate any substantial duty in failing to make futile motions to suppress evidence; therefore, counsel cannot be deemed ineffective on this ground. See, e.g. State v. Thompson (1988), 46 Ohio App.3d 157. -15- Secondly, a review of the record demonstrates that trial counsel, in opening argument, admitted appellant's blood was found that night; however, he chose to mitigate the prejudice of the introduction of this evidence by contending no one actually had seen appellant breaking into Bradshaw's apartment. Counsel's cross-examination of the witnesses was designed to highlight this defense. This, certainly, was a matter of trial strategy. Indeed, in view of the number of witnesses who had seen appellant at Bradshaw's apartment that evening, it may have been the only option available to defense counsel. State v. Mallard (June 30, 1994), Cuyahoga App. No. 65743, unreported. In any case, in view of the overwhelming evidence of appel- lant's guilt that existed at the scene, the record herein fails to show, with reasonable probability, that the jury's verdict would have been different had trial counsel objected to the introduction of the evidence obtained from the vehicle. Therefore, since appellant can demonstrate neither that trial counsel's actions fell below an objective standard of reasonable representation nor that he was prejudiced by trial counsel's actions, appellant has failed to support his claim he was denied his right to effective assistance of counsel. Accordingly, appellant's second assignment of error is overruled. Appellant's third assignment of error states: -16- THE TRIAL COURT ERRED AND ABUSED ITS DISCRE- TION BY IMPOSING THE MAXIMUM SENTENCE ON THE APPELLANT. Appellant argues the trial court failed to make the analysis required by R.C. 2929.19(B)(2)(d) and R.C. 2929.14(C) prior to imposing a term of imprisonment of eight years for his conviction for burglary. This court is constrained to agree. Appellant was sentenced pursuant to Ohio's new sentencing statutes, which are commonly referred to as Senate Bill 2. Prior to the enactment of Senate Bill 2, a silent record was presumed by appellate courts to support the trial court's sentence. See, e.g. State v. Lazada (1995), 107 Ohio App.3d 189. However, for purposes of appellate review, R.C. 2953.08(G)(1) now requires the record affirmatively to support the trial court's sentence. Moreover, R.C. 2929.19(B)(2)(d) mandates the following: (2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances: * * * (d) If the sentence is for one offense and it imposes a prison term for the offense that is the maximum prison term allowed for that offense by division (A) of section 2929.14 of the Revised Code, its reasons for imposing the maximum prison term *** (Emphasis added.) R.C. 2929.14(C) specifically states the circumstances under which the maximum prison sentence may be imposed as follows: Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an -17- offender for a felony may impose the longest prison term authorized for the offense pursu- ant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section. (Emphasis added.) In this case, the trial court stated the following at the time of appellant's sentencing: This Court has considered the statutory fac- tors in this matter. I've obviously had an opportunity to listen, as has the jurors (sic) in this case to the facts of the case concern- ing your conduct on that night in question. And the utter contempt, and the disregard you had not only for the woman who occupied the apartment that you burglarized, but for the rights of the other people in that complex, to enjoy their peace and quiet. You fully ex- pressed your contempt for that woman, not only by breaking into her home and invading her privacy, but by urinating on her door step (sic). The type of contempt that you seem to have for the law, and the members of this community, is reflected in your wrap (sic) sheet. I only have your wrap (sic) sheet which indi- cates your prior record in Cuyahoga County. It is five pages long. And it does reference prior convictions outside of this county. The offenses that you have (sic) alleged to have committed, includes (sic) forgery, uttering, uttering (sic), theft, failure to come to court while out on bond, breaking and enter- ing, grand theft, possession of criminal tools, drug abuse, drug offenses, grand theft, intimidation of witnesses, felonious assault and other burglary charges. I find that you are not an amenable person to rehabilitation. You apparently have been in and out of the penitentiary a couple of times. You don't get it yet. -18- You're sentenced to eight years at LCI, and costs. You are credited for your time served. From the foregoing, clearly the trial court considered appellant to have committed a disgusting form of burglary. The trial court also considered appellant to pose a likelihood of committing future crimes based upon his prior criminal record. Nevertheless, although the trial court's decision may be amply justified based upon the information it had available to it, the sentencing statutes are stated in the conjunctive; therefore, the trial court was required also to set forth for the record all the factors which it considered relevant to its determination of sentence, including whether the crime was the worst form as described by the factors listed in R.C. 2929.12(B). Without such explicit findings on the record, this court previously has held the trial court imposition of the maximum penalty was improper. State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported; see, also, State v. Garcia (Mar. 2, 1998), Clermont App. No. CA97-04- 042, unreported; cf., State v. Wooden (Feb. 11, 1998), Summit App. No. 18448, unreported; State v. Spillman (Feb. 10, 1998), Franklin App. No. 97APA07-929, unreported; State v. Garrard (Dec. 24, 1997), Wayne App. No. 97CA0032, unreported. Accordingly, appellant's third assignment of error is sustained. Appellant's convictions are affirmed. This case is remanded for re-sentencing in accordance with this opinion. -19- 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 Cuyahoga County Court of Common Pleas 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. PATRICIA A. BLACKMON, A.J. and ANN DYKE, J. CONCUR JUDGE KENNETH A. ROCCO 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 .