COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73382 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION RANDAL THIGPEN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-349193. JUDGMENT: MODIFIED AND, AS MODIFIED, AFFIRMED, DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Sherry F. McCreary, Esq. Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Patricia J. Smith, Esq. 4403 St. Clair Avenue Cleveland, OH 44103 TIMOTHY E. McMONAGLE, J.: Randal Thigpen, Sr. ( appellant ) appeals his conviction of Burglary [R.C. 2911.12(A)(3)] after a bench trial. Appellant -2- challenges the state's introduction of certain evidence at trial and asserts that the verdict was against the manifest weight of the evidence. For the reasons stated below, we modify the judgment of the trial court and remand the matter for further proceedings consistent with this opinion. On March 31, 1997, appellant was indicted on one count of Aggravated Burglary pursuant to R.C. 2911.11 for the events which took place at 721 Literary Avenue on the evening of February 13th, 1997. Appellant entered a plea of not guilty to the charge against him. On August 4, 1997, appellant waived his right to a jury trial and the matter proceeded to a bench trial. The state and the defense each presented the testimony of three witnesses. The undisputed facts adduced at trial are as follows. Appellant and Arlie Stark ( Stark ) lived together for fifteen years and are the parents of two minor children: Randal Thigpen, Jr. ( JT ), age 15; and Samantha, age 11. Christopher Stark, age 20, is also the son of Arlie Stark. On February 13, 1997, appellant and Stark were living apart. Stark, Christopher and Samantha were residing at 721 Literary Avenue in an upstairs apartment of the house. At that time appellant lived with his girlfriend Diana on West 15th Street. Although he customarily lived with his father (appellant), JT spent the two previous days staying with his mother at the apartment at 721 Literary Avenue because of a dispute between them over an excessive phone bill which JT accumulated. During the course of that evening Diana called Stark's house to check on JT and she determined that the -3- children were home without adult supervision. As a result, appellant called the house to tell JT that he had to come home with him. JT refused to go home and angry phone conversations took place. Appellant, driven by George Christian, went to the house to pick up his son, JT. Appellant entered the doorway on the first floor and proceeded up the stairs to the closed front door of the apartment where he knocked on the door and told JT to come out. The state's first witness, Arlie Stark, testified that on the evening of February 13th, she was away from her home but received a page from her son, Christopher. She returned home and found her children (Christopher, JT and Samantha) upset. She said that the boys reported to her that appellant had kicked in the door to their house. She observed a footprint on the outside of the door and she saw the new door lock was shattered. She testified that Christopher was very shaken and recounted the events to her, telling her that appellant had taken a swing at him. Christopher told her that he had put Samantha into the bedroom and he then called the police. She said JT was upset, was crying and related the same story to her. The police arrived on the scene and talked to both boys. She testified that three months later, in May, appellant left a threatening message on her voice mail. She went to the police with the message on tape and the police recorded the message. Over objection of defense counsel, the audio tape of the phone message was played. On the tape, appellant had made threats to Stark regarding her testifying against him in this matter. -4- The state next called Christopher Stark who testified as to his version of the events which led to the charge against appellant. Christopher said that appellant twice demanded entry to the house. Appellant yelled for them to open the door or he would kick it in. Although Christopher told him to leave, appellant started kicking the door. At that point, the door swung open and appellant came through. Christopher was sitting on a chair near the door and tried to get past appellant. Appellant swung at him and appellant's fist hit Christopher on the side of his head. Christopher put Samantha into her room and dialed 911. It appeared that appellant also hit JT and he fell to the ground. Appellant left the house. JT was upset by the incident. Chris then paged his mother who arrived before the police. The state's final witness, Officer Walter Skoropys, testified that he arrived at 721 Literary Avenue in response to a police radio broadcast. At the scene, he noted that there were broken wood pieces and a damaged lock on the front entry door. He noted that JT appeared traumatized and he saw that Christopher Stark had redness at the temple on the right side of his head. Officer Skoropys related Christopher's version of the incidents which he heard at the scene. Christopher told him that appellant was knocking and pounding at the door until it swung open from the force. He said appellant had a verbal confrontation with his son, JT; he said appellant pulled JT by the hair until he fell. Christopher said he moved his sister from the scene and called police. Officer Skoropys noted the footprint on the door. The -5- state rested its case and the defense moved for acquittal pursuant to Crim.R. 29 which was denied. The defense called its first witness, Randal Thigpen Jr. ( JT ), who testified that appellant called the house but Christopher answered the phone and hung up on appellant. Appellant called back and talked to JT. Appellant told him that he had to come home because his mother wasn't there. A verbal altercation took place and JT hung up the phone on appellant. Appellant called again but JT hung the phone up. About twenty minutes later, JT saw appellant's car pull up; appellant got out of the passenger side and yelled to him from downstairs; then he walked up the stairs and knocked on the door. JT told him he was going to call the police so appellant left. JT opened the door to make sure appellant left the house. When the door was open, JT kicked the outside of door. During this time, Christopher was in the bedroom on the phone. JT said that on the day before he slammed into the door while wrestling and broke off the metal piece of the latch. Christopher called the police and paged his mother after appellant left. His mother arrived about thirty minutes later. She first talked to Christopher; then she asked him if he wanted to get back at appellant to get even. His mother concocted the story that appellant kicked through the door, punched Christopher and pulled JT by the hair. JT went along with his mother's plan because she agreed to pay him and take him shopping in return for his cooperation. That night, when the police arrived, they first talked to his mother and Christopher. JT then gave police the -6- story as they had concocted. JT testified that the entire police report which he gave on February 19th was a lie. He lived with the lie until June 3rd when he couldn't take it anymore. He knew appellant was in jail over the intimidation charge, he was sick and tired of having lied on June 3rd, he locked himself in his room and his mother called the police. As a result of this incident his mother sent him to appellant's house because she couldn't control him. JT said that in April they went to the Second District to drop charges but they were unable to do so. Finally, JT gave a taped statement to appellant's attorney on June 12th in which he recanted his police statement. He testified that the statement which he made on June 12th was the truth. On cross-examination, JT admitted that at the time of the incident he was so angered by appellant that he agreed to his mother's suggestion of getting back at appellant. Although he said it was his mother's idea to make up the story, he admitted that in his June statement that when his mother arrived home Christopher told his mother that appellant had kicked in the door. He conceded that Christopher had a red mark on his face but said the mark resulted from Christopher slapping himself after his mother got home but before the police arrived. Diana Thigpen, wife of appellant, testified that these events started when she called the house to check on JT and determined there was no adult supervision that night. She first spoke to Christopher and then to JT. Appellant then talked to JT and told him that he had to come home. Appellant, with George Christian -7- driving, left to pick up JT but arrived home without the child. Appellant told her he came home without JT because JT said he was going to call the police and tell them appellant had kicked the door in. Later, appellant was charged with the crime. Diana and Stark made two trips to the Second District Police Station to drop the charges against appellant. Christopher and JT accompanied them on one of the trips. However, each attempt was unsuccessful. Diana said she believed that Stark knew that it was JT, not appellant, who kicked the door because Stark admitted it to her while they were in the Justice Center cafeteria. On cross- examination, Diana admitted that appellant told her that JT had said he was going to call the police. As its final witness, the defense called George Christian who drove appellant to the Literary address to pick up his son JT that night. Christian said he parked the car, appellant went up the stairs, knocked on the door and came back down in a minute-and-a- half or two minutes. Appellant told him that the boys had called the police. The bottom door was open and Christian observed appellant reach the top of the stairs and stop. Christian was able to see appellant's feet the entire time indicating that he did not raise them to kick the door. The defense rested and renewed its motion for acquittal pursuant to Crim.R. 29 which was denied. On August 11, 1997, the trial court found appellant guilty of Burglary in violation of R.C. 2911.12(A)(3), the lesser but included offense of the indicted charge of Aggravated Burglary. -8- Appellant was sentenced to serve a term of two years of Community Control with conditions under the supervision of the adult probation department. Appellant timely appeals and advances two assignments of error for our review. I. THE TRIAL COURT ERRED WHEN IT ALLOWED OTHER ACT EVIDENCE TO BE ADMITTED WHERE THE EVIDENCE WAS WHOLLY IRRELEVANT TO THE CHARGE OF AGGRAVATED BURGLARY. II. THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT GUILTY OF BURGLARY IN VIOLATION OF OHIO REVISED CODE S2911.12(A)(3) WHERE THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT SUCH A CONVICTION. We begin with a review of appellant's second assignment of error. In his second assigned error, appellant complains that the weight of the evidence does not support a conviction of Burglary in violation of R.C. 2911.12(A)(3). We agree. Moreover, we find that the evidence presented was insufficient to support a finding of guilt even on the lesser but included charge of Burglary, pursuant to R.C. 2911.12(A)(3), as found by the trial court. It is well-established that an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing 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. State v. Jenks (1991), 61 Ohio St.3d 259 following Jackson v. Virginia (1979), 443 U.S. 307. -9- Appellant was originally charged with Aggravated Burglary pursuant to R.C. 2911.11. The Bill of Particulars filed by the state indicated that the state of Ohio intended to prove that: *** on or about February 13, 1997, at approximately 9:40 p.m., and at the location of 721 Literary Road (sic), upstairs, in the City of Cleveland, Ohio the defendant, Randal Thigpen, unlawfully did by force, stealth or deception, trespass in an occupied structure as defined in Section 2909.01 of the revised code, or in a separately secured or separately occupied portion of an occupied structure when Randal Thigpen, Jr. and/or Christopher Stark not an accomplice of the offender, was present, with purpose to commit in the structure any criminal offense and inflicted or attempted to inflict or threatened to inflict physical harm on Randal Thigpen Jr. and/or Christopher Stark, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio. However, after trial to the bench appellant was convicted of Burglary, R.C. 2911.12(A)(3), constituting a felony of the third degree. The elements are as follows: (1) No person by force, stealth, or deception, shall do any of the following: (2) trespass (3) in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, (4) with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense. As such, it can be determined that the element of Aggravated Burglary, which the trial court did not find supported by the evidence, was appellant's infliction or attempt or threat to inflict physical bodily harm on another. -10- The evidence presented in this case, if believed by the trier of fact, shows that appellant (1) by force (2) trespassed (3) into an occupied structure. The record fails to reveal evidence sufficient to demonstrate that appellant trespassed into the house with purpose to commit any criminal offense. We recognize that it may be found that, absent circumstances to the contrary, one who forcefully enters a dwelling raises the reasonable inference that he does so with the intent to commit a theft offense. State v. Flowers (1984), 16 Ohio App.3d 313. However, the particular circumstancesof this case support the contention that appellant's purpose and intent at the moment of entering the house was quite simply to bring his son, JT, home with him. Therefore, with the circumstancesof this case, no reasonable inference could be drawn that appellant entered the house to commit a theft offense. Further, the trial court, when it determined that the evidence failed to support a conviction of Aggravated Burglary and reduced the charge to Burglary , implicitly found the evidence insufficient to support the conclusion that appellant's purpose and intent included the infliction or attempt to inflict bodily harm. Therefore, a careful review of the record before us leads us to conclude that on the evidence presented, no rational trier of fact could find beyond a reasonable doubt that appellant had the purpose to commit a criminal offense upon entering the house. As all the essential elements of the offense of Burglary have not been demonstrated, appellant's conviction may not stand. Under the facts of this case and upon careful review of the record before us, -11- we find that the actions of appellant fulfill the required elements of R.C. 2911.12(A)(4), a lesser but included offense of Aggravated Burglary . Although we find the evidence does not support a theory that appellant entered the house with the requisite purpose to commit in the structure *** any criminal offense[,] we see the evidence as presented is sufficient to support a finding that appellant did in fact enter the occupied premises by force. R.C. 2911.12(A)(4) provides: No person, by force, *** shall trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present. Accordingly, we find that the evidence adduced at trial was insufficient to support a conviction of Burglary pursuant to R.C. 2911.12(A)(3), but sufficient to support a conviction of Burglary pursuant to R.C. 2911.12(A)(4). Appellant asserts that his conviction was against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered ***. See, Tibbs v. Florida (1982), 457 U.S. 31. Martin, supra at 175. -12- In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines and may be taken into account by the 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 ***; and 8) whether the evidence is vague, uncertain, conflicting or fragmentary. Mattison (1985), 23 Ohio App.3d 10, 14. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Upon a review of the record before us, we do not find that the trier of fact so lost his way in determining from the evidence that appellant forcefully entered the occupied premises of Arlie Stark. However, where there is insufficient evidence to support the required element of the crime of Burglary as set forth in R.C. 2911.12(A)(3)that appellant entered the premises with purpose to commit a criminal offense, it follows that the weight of the evidence cannot support such determination. Consequently, to the extent that we have found the evidence to be insufficient to -13- support this element necessary for conviction pursuant to R.C. 2911.12(A)(3), appellant's argument has merit. The decision of the trial court finding appellant guilty of R.C. 2911.12(A)(3) is against the manifest weight of the evidence. Finally, in his first assigned error, appellant contends that the trial court erred in admitting evidence of other acts to show his propensity toward criminal conduct in violation of Evid.R. 404(B). The subsequent act evidence which the state was permitted to introduce at trial was a tape recording of a phone call made by appellant to the victim in which he verbally abused the victim and threatened to kill her if she testified against him at the trial. This tape recording subsequently became grounds for a separately charged offense of intimidation. Specifically, appellant contends that this evidence had no relevance and its introduction was so unfairly prejudicial that reversal is required. Evid.R. 404 (B) provides: Evidence of other crime, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, of absence of mistake or accident. R.C. 2945.59 provides: In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing -14- the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. Evidence of crimes or other acts is admissible only when it is relevant to one of the matters listed in the statute, such as motive or intent. State v. Thompson (1981), 66 Ohio St.2d 496. At trial, the state asserted the relevance of this evidence was to show appellant's consciousness of guilt or under 404(B) evidence of intent. On appeal, the state argues that this evidence shows appellant's intent, scheme or system of operation in breaking into Stark's home. We find this asserted relevance to be without merit. For the purpose of proving a scheme, plan or system, it is error for the trial court to admit testimony concerning other crimes not inextricably related to the crime charged. State v. Lytle (1976), 48 Ohio St.2d 391. Upon a careful review of the evidence, we do not see the evidence presented to indicate intent, scheme or system of operation as contemplated by the statute, nor do we see these acts to be inextricably related. As such, we find that the introduction of the evidence to have been error. However, error in the admission of other act testimony is harmless when there is no reasonable possibility that the testimony contributed to the accused's conviction. Chapman v. California (1967), 386 U.S. 18; State v. Lytle, supra, paragraph three of the syllabus. Here, the matter was tried to the court and not to a jury. Where a matter is tried to the court a presumption exists -15- that the court considered only the relevant, material and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary. State v. Lott (1990), 51 Ohio St.3d 162. Additionally, such error is harmless where there is no reasonable possibility that the testimony contributed to the accused's conviction. City of Columbus v. Taylor (1988), 39 Ohio St.3d 162. Upon a careful review of the evidence before us, disregarding the tape recorded testimony admitted in error, we conclude that the record demonstrates evidence of appellant's guilt aside from the disputed evidence. Accordingly, we find appellant's first assignment of error without merit. In accordance with the analysis above, we find the evidence presented to support a conviction of Burglary pursuant to R.C. 2911.12(A)(4) and we reduce appellant's judgment of conviction from Burglary pursuant to R.C. 2911.12(A)(3), a felony of the third degree, to Burglary pursuant to R.C. 2911.12(A)(4), a felony of the fourth degree. We remand the matter to the trial court for re- sentencing consistent with this decision. Judgment modified and, as modified, affirmed. -16- It is ordered that appellant and appellee equally 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 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 re-sentencing and execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE JUDGE O'DONNELL, P.J. and KARPINSKI, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .