State v. Roseberry
| Citation | 197 Ohio App.3d 256,2011 -Ohio- 5921,967 N.E.2d 233 |
| Decision Date | 17 November 2011 |
| Docket Number | No. 96166.,96166. |
| Parties | The STATE of Ohio, Appellee, v. ROSEBERRY, Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
William D. Mason, Cuyahoga County Prosecuting Attorney, and Margaret A. Troia, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, Akron, for appellant.
[Ohio App.3d 261]{¶ 1} Defendant-appellant, Wayman L. Roseberry, appeals his convictions. For the reasons that follow, we affirm in part, reverse in part, and remand for a new trial.
{¶ 2} In August 2010, Roseberry was charged with one count each of aggravated burglary and kidnapping, each containing firearm and forfeiture specifications; one count of having weapons while under disability, with a forfeiture specification; and one count each of burglary, theft, and receiving stolen property. Roseberry waived his right to a jury trial, and the case was tried to the court.
{¶ 3} The victim, Danielle Adams, testified that Roseberry was her ex-boyfriend and that when they were dating, he stayed at her residence every night, kept personal belongings there, and had a house key. In the spring of 2010, they ended their relationship, but Roseberry still visited Adams at her home even though she had taken her key from him.
{¶ 4} During the late hours of July 24 and early morning hours of July 25, while she was at work, Adams exchanged text messages with Roseberry. Over objection, Adams read out loud on direct examination her handwritten transcription of the exchanged text messages. Adams testified that the exchange between her and Roseberry was as follows:
{¶ 5} “Roseberry: Man u did smething ill brak da window.
{¶ 6} “* *
{¶ 8} “Roseberry: I dnt wnt to brake nothing to get n and u blocked da door so I cant get n
{¶ 9} “* *
{¶ 10} “Adams: So you got my key huh
{¶ 11} “* *
{¶ 12} “Roseberry: OK can u un block da door I dnt have no where to go
{¶ 13} “Adams: Y u say u didn't have the key
{¶ 14} “Roseberry: Cuz who wnt ti be left n da streets
{¶ 15} “Roseberry: Man pease dnt make me do smething I dnt wnt please open dat door
{¶ 16} “Roseberry: Man ima get n
{¶ 17} “Adams: I hope u aint breakin no window
[Ohio App.3d 262]{¶ 18} “Adams: Im at work go wit your best friend, he always got ur bck remember
{¶ 19} “Roseberry: I neva said that im tryna get away I don't wnt to do sht stupid so please let me n
{¶ 20} “Adams: I said i'm at work
{¶ 21} “Roseberry: Ok how do i get in”
{¶ 22} Around noon on July 25, after receiving a call from her neighbor, Adams left work. When she arrived at her home, she saw that her front window had been broken, and she contacted the police. When the police arrived, Adams discovered that two televisions, two DVD players, a gaming system, and a window air conditioner had been stolen from her residence. Although she could not assess the value of the televisions, DVD players, or air conditioner, Adams testified that the value of the gaming system was $200.
{¶ 23} Later on the evening of July 25, Roseberry used a key to gain access to Adams's home. Adams testified that she did not give Roseberry permission to use the key or enter her residence. According to Adams, when Roseberry entered her residence, he was holding a silver gun in his hand.
{¶ 24} After a period of time, Adams drove Roseberry to get something to eat. Adams testified that she went with him because he had a gun, but she could not recall whether he took the gun with him when they left the residence. About 15 minutes later, when they returned to her residence, Adams sent a text message to her neighbor, telling him Roseberry was in her home with a gun.
{¶ 25} An East Cleveland police officer contacted Adams, and she discreetly informed the officer that Roseberry had a gun. The police arrived approximately five minutes later. According to Adams, when Roseberry realized that the police were outside the residence, he walked toward the back of the house. When he returned to the living room, he no longer had the gun in his hand. Roseberry then voluntarily exited the front door of the residence, was detained, and was arrested.
{¶ 26} Officer Steve Kaleal testified that he responded to the breaking-and-entering call at approximately 12:40 p.m. on July 25. When he and his partner arrived at the residence, he observed that a front window had been pushed out. After taking an inventory of the property missing from the residence, he interviewed neighbors. Based on a conversation with the next-door neighbor, Roseberry was a named suspect.
{¶ 27} Officer Robert Bailey testified that he responded to Adams's address on July 25 at 10:00 p.m. for a possible hostage situation. After Roseberry was detained, Officer Bailey entered the residence, spoke with Adams regarding the [Ohio App.3d 263]weapon involved, and located a silver handgun in the toilet reservoir of the first-floor bathroom.
{¶ 28} Lieutenant Matthew Balli testified that he made the initial contact with Adams and confirmed that she was being held at gunpoint by Roseberry. He testified that once the weapon was found, he ran the firearm's serial numbers through the National Crime Information System and the Law Enforcement Automatic Data System and learned that the firearm had been reported stolen out of the city of Strongsville.
{¶ 29} Michael Shymske testified that he was the owner of the firearm that was recovered but that he had reported it stolen by an acquaintance in 2008. He testified that he did not know Roseberry and did not give Roseberry permission to possess or use the firearm.
{¶ 30} The state's final witness was Detective Michael Delisle, who testified that he conducted an interview with Adams, during which she provided him with a written statement. Included with the written statement was a handwritten compilation of the text messages that Adams and Roseberry had exchanged on July 24 and 25. Detective Delisle testified that he viewed Adams's cell phone and took a series of photographs of the phone that had captured the text messages Adams indicated that she had exchanged with Roseberry. Detective Delisle said he took the photographs because he knew certain cell-phone companies saved text messages only for a limited period of time. The trial court, over objection, received the photographs of the text messages into evidence as state's exhibits 4 through 14. The photographs of the text messages included the content that Adams had previously testified to and read out loud in her direct testimony and additional text messages that had the following content:
{¶ 31} “Did u break my window yet crazy
{¶ 32} “Not yet
{¶ 33} “U better not
{¶ 34} “How do I get n
{¶ 35} “Idk
{¶ 36} “Yea u do
{¶ 37} “Wht time do u get off
{¶ 38} “I think 7
{¶ 39} “Man I hpe I dnt go to jail
{¶ 40} “Jail 4 wht
{¶ 41} “Doin smething dumb”
[Ohio App.3d 264]{¶ 42} At the close of testimony and evidence, the trial court found Roseberry not guilty of Count 1—aggravated burglary, Count 2—kidnapping, and Count 4—burglary, but guilty of the lesser included charge of breaking and entering, Count 3—having weapons under disability, including the forfeiture specification, Count 6—receiving stolen property, and Count 7—an amended count of misdemeanor theft. Roseberry was sentenced to an aggregate term of two years in prison. He appeals, raising three assignments of error, which will be addressed out of order.
{¶ 43} In his first assignment of error, Roseberry contends that his convictions are not supported by sufficient evidence. The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden, Cuyahoga App. No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. 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(s) proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The Supreme Court of Ohio has held that when reviewing the sufficiency of the evidence, an appellate court is to consider all the evidence admitted at trial, even if the evidence was improperly admitted. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 19.
{¶ 44} Roseberry was found not guilty of burglary, but guilty of the lesser included charge of breaking and entering in violation of R.C. 2911.13. This section provides, “No person by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense * * * or any felony,” and “No person shall trespass on the land or premises of another, with purpose to commit a felony.”
{¶ 45} The offense of breaking and entering requires that a defendant have the specific intent of trespassing with the purpose to commit a felony. See State v. Copeland (Jan. 18, 2002), Montgomery App. No. 18711, 2002 WL 63161 The purpose to commit a felony may be proved by direct or circumstantial evidence. Furthermore, it is not necessary that the purpose to commit a felony be formed before or at the time the initial trespass or entry is achieved. State v. Bowling (Aug. 12, 1985), Clermont App. No. CA85–01–001, 1985 WL 7703, citing State v. Jones (1981), 2 Ohio App.3d 20, 440 N.E.2d 580 ().
{¶ 46} It is well established that “ ‘circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the [Ohio App.3d 265]defendant's guilt beyond a reasonable doubt.’ ” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish (1990), 50 Ohio St.3d 231, 238, 553 N.E.2d 1026. Circumstantial evidence carries the same...
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