COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78594 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION GROVER C. HOLDEN : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: July 5, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-389286 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART. DATE OF JOURNALIZATION: _____________________ APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor SALEH S. AWADALLAH, Assistant 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: SUSAN J. MORAN, ESQ. 55 Public Square, Suite 1700 Cleveland, Ohio 44113-1901 COLLEEN CONWAY COONEY, J.: Defendant-appellant, Grover C. Holden, appeals his conviction for theft and aggravated burglary. For the reasons below, we reverse in part and affirm in part. -2- In January 2000, Holden was hired by Ray Sohrabi, the property manager of an apartment complex located in Cleveland, to clean and repair furnaces. Holden told Sohrabi that his son-in-law, Michael Sheppard, was available to repair and remodel the empty units at the apartment. Sohrabi agreed to have Sheppard perform repair work, and provided Holden with keys to the apartment complex. Holden testified that Sohrabi wanted Holden to buy the materials for the remodeling work and act as the building manager. In addition to the repair work, Holden also told Sohrabi that he could get tenants for the units. Holden rented several units and collected rent and security deposits. Sohrabi told Holden to bring the rent money to his office and he would reimburse Holden for the remodeling items. Holden did not bring the rent money so Sohrabi instructed Holden to return his keys and told him that he was not welcome at the apartment, and if Holden returned there, Sohrabi would call the police. Holden testified that he met with Sohrabi, who told him that he was fired, and that he should remove the materials and the tools from unit 6. The day after this meeting, Sohrabi called Sheppard and the two men changed all of the locks at the apartment. While changing the locks, Sohrabi and Sheppard were most concerned with unit 6 because the remodeling and repair materials and Sheppard's tools were contained in that unit. They testified that they saw these items in unit 6 on February 16, 2000. At approximately -3- midnight, Holden came to Sheppard's home looking for the keys to the apartment. On February 17, 2000, Sheppard did not want to go to the apartment alone because Holden had threatened him the night before. Sheppard called the police who met him there at approximately 8:30 a.m., walked through the apartment complex with him, and then left. At approximately 11:00 a.m., Holden called Sheppard at the apartment and said that he was going to kick the damn doors down and take all the stuff . Sheppard immediately called Sohrabi who called the police. From a parking lot across the street, Sheppard saw Holden and his son arrive at the apartment. Holden's son placed a barrel under the window of unit 6 and popped the window open with a pen knife. He then let Holden in through the door of the apartment. Holden and his son both testified that they did not break into the apartment through a window, but a tenant let them into the building. Holden further testified that the tools in unit 6 were histools, and that Sheppard had taken them without his permission while he was incarcerated for three days in February. Holden also stated that the remodeling materials were his. After the items were removed from unit 6, Sheppard approached Holden's van and saw the materials that had been stored in unit 6 in the van. Sheppard testified that Holden stole approximately $750 worth of Sheppard's tools from unit 6. Sohrabi testified that remodeling materials valued at $1,961.27 were taken from unit 6. -4- After taking the materials, Holden sent a bill to Sohrabi for the materials. Sheppard described each tool that belonged to him that was in unit 6, and testified that the only tool which was Holden's was a torch. He stated that he did not trust Holden and that is why he failed to retrieve the tools when Holden told him that they were in his garage. Holden was indicted on one count of burglary, one count of theft for taking Sheppard's tools, and another count of theft for taking the doors and wood moldings1 from the apartment. A jury found him guilty on all counts. The court sentenced Holden to two years of community control sanctions with conditions. Holden raises the following assignments of error: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR ACQUITTAL AS TO THE CHARGE OF BURGLARY WHEN THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF THE ELEMENTS OF THE OFFENSE. II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR ACQUITTAL AS TO THE CHARGE OF THEFT WHEN THE STATE FAILED TO PROVE THE ESSENTIAL ELEMENTS OF THE OFFENSE. In his first and second assignments of error, Holden argues that the State did not have a sufficient amount of evidence to establish all the elements required to convict him of aggravated burglary and two theft violations. 1 The indictment referenced refrigerator doors and moldings. There was no evidence that refrigerator doors were taken. -5- The concept of sufficiency of evidence is defined in State v. Thompkins (1997), 78 Ohio St.3d 380, 386-87, as follows: With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433*** sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict, is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. 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, 574 N.E.2d 492, paragraph two at syllabus. R.C. 2911.12(A)(3) provides: (A) No person, by force, stealth, or deception, shall do any of the following: (3) Trespass in an occupied structure or in a separately secured or separately occupied portion of any occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense. Holden argues that the State failed to prove that unit 6 was an occupied structure as defined by R.C. 2909.01(C), and that Holden entered unit 6 with the intent to commit a criminal offense. Thus, Holden claims the State has failed to establish the requisite elements of R.C.2911.12(A)(3). -6- There is no question that unit 6 of the apartment complex was an occupied structure. R.C. 2909.01, in pertinent part, defines an occupied structure as follows: (C) "Occupied structure" means any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies: (4) At the time, any person is present or likely to be present in it. Although under repair, unit 6 was occupied. Holden argues that the situation at hand is similar to State v. Collier (1984), 22 Ohio App.3d 25, 488 N.E.2d 887, wherein the court determined that a hotel room under repair and blocked off to patrons constituted an unoccupied structure, and thus, an essential element of R.C. 2911.12 was missing. However, in dicta the Collier court noted that the offense occurred at 10:30 p.m. when repair personnel were unlikely to be present. Collier, 22 Ohio App.3d at 30. In contrast, Holden broke into unit 6 at 12:00 p.m. Further, Sheppard testified that he was present at the building, and that Holden was aware of his presence because he called Sheppard on his cell phone minutes before his arrival. As stated by this court in State v. Ashford (Dec. 11, 1986), Cuyahoga App. No. 51366, unreported, [t]he gist of the term `occupied' is the actual or likely presence of a person at the time of the offense. The facts presented at trial established that although Sheppard was not actually present in unit 6, he was likely to be present at the time -7- of Holden's offense. Thus, for purposes of R.C. 2911.12 the structure was occupied. Furthermore, R.C. 2911.12 (A)(3) provides an alternate basis for a burglary conviction where an individual lawfully enters the occupied structure but unlawfully enters separately secured or occupied areas of that structure. State v. Mayernick (Oct. 25, 1990), Cuyahoga App. No. 57660, unreported. Thus, whether Holden and his son broke through the window or were let into the building by a tenant is of no consequence. After the lawful entry of the building, Holden unlawfully entered the separately secured unit 6. Therefore, Holden's contention is without merit. Further, sufficient evidence was presented that Holden entered unit 6 with the purpose to commit the criminal offense of theft. Sheppard testified that approximately $750 worth of tools belonging to him were present in the unit. Although Holden testified that these tools were his, Sheppard's ability to list the tools by brand name and type served as credible evidence that the tools belonged to Sheppard, not Holden. As such, Holden's intent to commit a criminal offense upon entering unit 6 was supported by sufficient evidence. Holden also maintains that the State failed to establish an essential element of each theft charge brought against him because he was sincerely mistaken in believing the items that he took from unit 6 belonged to him and not Sohrabi or Sheppard. R.C. 2913.02 provides: (A) No person, with purpose to deprive the owner of property or services, shall knowingly -8- obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent. In regard to the theft offense based on Holden's taking of the tools, sufficient evidence has been presented that the tools taken by Holden belonged to Sheppard. As stated above, Sheppard testified that he stored his tools in unit 6 while he was working at the apartment building. Further, Holden admitted to taking the tools from unit 6 and did not deny that he took tools belonging to Sheppard. Holden also admitted that the tools are still in his possession. Thus, sufficient evidence of each element of a theft offense existed to support Holden's conviction. However, Holden's argument that insufficient evidence existed to support the theft conviction based on his act of taking the wood moldings and doors has merit. Sohrabi was aware that Holden had purchased materials for the apartment building, but he was not aware of the specific items purchased. Further, Sohrabi claims that Holden told him that he purchased the materials with the money that he collected from the tenants, and thus, these items were Sohrabi's property. However, Holden testified that he purchased the materials with his credit card. Sheppard, who was present when Holden purchased the materials, also testified that Holden purchased the materials with his own credit card. Further, Sheppard testified that Holden bought all of the remodeling supplies that he used in the empty units, including wood, doors, locks and plumbing supplies. Sohrabi -9- also testified that at least one of the purposes of the meeting with Holden was to reimburse Holden for the remodeling materials that he had purchased. Thus, since Holden purchased the materials with his personal credit card, and since Sohrabi had not reimbursed him for these materials, arguably the wood moldings and doors belonged to Holden. Therefore, sufficient evidence existed to support Holden's contention that he is the rightful owner of the wood moldings and doors taken from unit 6. As such, he did not have the specific intent to deprive the owner, Sohrabi, of his property which is required for a finding of guilt under R.C. 2913.02. See State v. Snowden (1982), 7 Ohio App.3d 358. Accordingly, an essential element of the theft offense has not been met. Therefore, insufficient evidence existed to support a conviction of theft in regard to Holden's action of taking the remodeling materials from unit 6. The facts above establish that the State presented evidence on each element of the aggravated burglary count and on each element of one of the theft counts in order to bring these charges to the jury. See Jenks, 61 Ohio St.3d at 259. As such, Holden's challenge of the sufficiency of the evidence regarding aggravated burglary and theft of tools is without merit. However, his assignment of error regarding his conviction on the charge of theft of the wood moldings and doors is well taken. III. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE 1, OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO -10- THE UNITED STATES CONSTITUTION WHEN COUNSEL FAILED TO REQUEST A JURY INSTRUCTION ON MISTAKE OF FACT. Holden contends that his lawyer's failure to request a jury instruction on mistake of fact constitutes constitutionally ineffective assistance of counsel. This court reviews a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674; State v. Tollivar (July 31, 1997), Cuyahoga App. No. 71349, unreported; see State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, certiorari denied (1990), 497 U.S. 1011, 110 S. Ct. 3258, 111 L. Ed. 2d 768; State v. Hyde (Jan. 11, 2000), Cuyahoga App. No. 77592, unreported. Under Strickland, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 at paragraph one of the syllabus. To show such prejudice, a defendant must prove that, but for his lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different. Id. at paragraph two of the syllabus. Judicial scrutiny of a lawyer's performance must be highly deferential. State v. Sallie (1998), 81 Ohio St.3d 673, 674, 693 N.E.2d 267. The evidence presented does not support a mistake of fact defense regarding the ownership of tools taken by Holden. Thus, -11- there was no error in Holden's trial attorney's decision not to request a mistake of fact charge to the jury on this offense. Cf. State v. Brumback (1996), 109 Ohio App.3d 65, 75; 671 N.E.2d 1064 (A trial court does not err in refusing an instruction if it does not apply to the facts governing the case.) Holden's conviction on one of the theft charges, and his aggravated burglary conviction stand because Holden has failed to show that he was mistaken as to the owner of the tools in question. Next, we determine whether Holden's counsel erred in failing to seek a mistake of fact charge with respect to Holden's taking of the wood moldings and doors. As stated in State v. Brady (1988), 48 Ohio App.3d 41, 43, 548 N.E.2d 278, 281: Where, in the trial of a criminal case, the substance of instructions to the jury requested by the defendant is completely embraced in the court's general charge, the defendant is denied no constitutional or statutory right in the court's refusal to give such requested instructions. Id., citing, State v. Lakes (1964), 120 Ohio App. 213, 27 O.O. 2d 430, 200 N.E. 2d 310. The charge given to the jury on this offense, in pertinent part, reads as follows (italicized emphasis added): Count Two Theft R.C. 2913.02 *** Before you can find the defendants guilty, you must find beyond a reasonable doubt that *** the defendants did knowingly obtain or exert control over property, to wit: refrigerator doors and wood molding, with purpose to deprive the owner, Ray Sohrabi, of said property, without the consent of the owner ***. Knowingly. *** How Determined. *** -12- You will determine *** whether there existed at the time in question in the mind of the defendant an awareness of the probability that the refrigerator doors and wood molding were the property of another *** and that the defendant had a specific intention to deprive the owner of that property. *** Purpose. Purpose to deprive the owner of his property or services is an essential element of the crime of theft. Result. ***. It must be established in this case that at the time in question there was present in the mind of the defendant a specific intention to deprive the owner of his property. *** Owner. Owner means any person, other than the actor, who is the owner of *** property. *** If you find the state failed to prove beyond a reasonable doubt any one or more of the essential elements of the offense of theft as charged in count two of the indictment, your verdict must be not guilty according to your findings. The fact that Holden's defense attorney failed to request a mistake charge is a professionally unreasonable error at best. This error, however, did not have an actual effect on the outcome of the trial because the general charge to the jury fully embraced the mistake of fact defense by emphasizing that the property must belong to another before a defendant can be convicted of a theft offense. Thus, Holden has failed to show that prejudice arose from his trial attorney's failure to request such a charge. Therefore, Holden's contention that the actions of his attorney deprived him of effective assistance of counsel is without merit. He has failed to show that had his attorney behaved differently, the result of the proceedings would have been different. See Bradley 42 Ohio St.3d 136, at syllabus. As such, Holden has failed to meet the requirements set forth in the second prong of the test in Strickland, and therefore, this assignment of error is not well taken. -13- Judgment affirmed in part, and reversed in part. Conviction on second theft count involving the remodeling materials is vacated. -14- It is ordered that appellant and appellee 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's convictions having been affirmed in part, 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. MICHAEL J. CORRIGAN, J., and KENNETH A. ROCCO, P.J., CONCUR JUDGE COLLEEN CONWAY COONEY 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .