[Cite as State v. Sparent, 2012-Ohio-586.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 96710



                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     JOSEPH SPARENT
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-541868

        BEFORE: Stewart, P.J., Cooney, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     February 16, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Andrew Rogalski
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

      {¶1} Defendant-appellant, Joseph Sparent, was convicted of four counts of theft

and four counts of burglary in four cases that were consolidated for trial. The state

charged that Sparent, a painting contractor, stole items from homeowners while on four

separate painting jobs. Sparent testified at trial and admitted the thefts, but maintained

that there was insufficient evidence to prove the trespassing element of the burglary

counts. He claimed at trial, as he now does on appeal, that the evidence showed that his

presence in each of the four houses was privileged because he was validly admitted as a
business “licensee.”

                                               I

       {¶2} The state charged Sparent with burglary under R.C. 2911.012(A)(2). That

section states that no person, by force, stealth, or deception, shall:

       {¶3} “Trespass in an occupied structure or in a separately secured or separately

occupied portion of an occupied structure that is 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, with purpose to commit in the habitation any criminal offense[.]”

       {¶4} As relevant here, “trespass” means that without privilege to do so, one

knowingly enters or remains on the land or premises of another. R.C. 2911.21(A)(1).

       {¶5}    In support of his first four assignments of error, arguing that the evidence

is insufficient to sustain the burglary convictions, Sparent cites State v. Barksdale, 2 Ohio

St.3d 126, 443 N.E.2d 501 (1983), in which the Ohio Supreme Court held that it would

not extend the breaking and entering statute to cover a situation in which Barksdale, being

lawfully on a car lot after the lot had closed, entered vehicles on the lot and committed

theft offenses. Barksdale had appealed his conviction on grounds that the state failed to

prove the lack of privilege element of trespassing because the car lot was open to the

public at the time he committed the offenses. The court reasoned that extending the

breaking and entering laws to apply to Barksdale would result in a shoplifter being “liable

for breaking and entering, his felonious purpose — shoplifting — having vitiated his

privilege to enter the store, a privilege enjoyed by the general public.” Id. at 128
(footnote omitted). Noting that thousands of criminals could be charged with burglary

under such circumstances, it found that the “[t]he General Assembly clearly did not intend

such a radical and unwarranted extension of the breaking and entering statute.” Id.

       {¶6} The Supreme Court distinguished Barksdale in State v. Steffen, 31 Ohio

St.3d 111, 115, 509 N.E.2d 383 (1987), upholding an aggravated burglary conviction by

finding that Steffen’s permission to enter the victim’s house had been terminated once he

began his assault on the occupants of the house. Noting that Barksdale involved a public

car lot as opposed to the private home scenario in Steffen, the court stated: “The interest

of a private person in the inviolability of his home is materially greater than that of a

business owner in his business premises, particularly where the business premises are

open to the public.” The court also noted that “a privilege once granted may be revoked”

and that “unlike in Barksdale, the felony committed, once on the premises, was one of

violence, directed against a human being who had the ability and the authority to revoke

the privilege of initial entry, if such privilege was in fact granted * * *.” Id.

       {¶7} This court, relying on Steffen, upheld a burglary conviction in State v.

Lofton, 8th Dist. No. 91330, 2009-Ohio-3732, 2009 WL 2263819, finding that Lofton’s

privilege to enter the victim’s house was revoked when Lofton assaulted the victim as a

result of being denied money. We found that once the assault began, Lofton knew that

his privilege to be in the victim’s house terminated, thus establishing the trespass element

of burglary. Id. at ¶45.

       {¶8} Sparent did not commit an act of violence in any of the four houses
involved in this case, but that fact does not necessarily distinguish this case from Steffen

and Lofton. The question in those cases was whether the privilege to enter the premises

had been revoked. That question was easily answered because the violent assaults in

each case surely exceeded the scope of the privilege to enter into, or remain in, the

houses.

       {¶9}   The homeowners-victims who hired Sparent in this case granted him a

limited privilege to enter their houses for the specific purpose of painting certain areas

within the homes. Regardless of whether Sparent actually did paint the premises as

contracted, the court could rationally find that he exceeded the scope of the privilege to

enter by stealing from the homeowners. It matters not that in some cases he stole items

from rooms where he had been contracted to paint, and in other cases he stole from rooms

that he was not contracted to paint. When a homeowner brings in a contractor to work in

the house, the contractor’s privilege to enter the house is premised on the homeowner’s

trust that the contractor will not exceed the scope of the privilege to enter. This trust is

implied by the nature of the contract itself.

       {¶10} Sparent was hired to do nothing more than paint. The nature of the job

required him to walk through certain areas of the houses. But by rummaging through the

homeowners’ personal belongings, he plainly acted beyond the narrow scope of the

privilege granted to be inside the houses.      The court could rationally conclude that

Sparent’s thefts caused him to lose the privilege to be on the premises, thus making him a

trespasser and establishing the elements of burglary.
                                             II

      {¶11} In his fifth assigned error, Sparent argues that his convictions are against

the manifest weight of the evidence. However, with the exception of referencing an

“undisputed fact” regarding Count 3, Sparent merely incorporates the arguments made in

support of his claim that the convictions were not supported by sufficient evidence. A

claim that a conviction is against the manifest weight of the evidence is qualitatively

different from a claim that a conviction is not supported by sufficient evidence. State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus.

The failure to present a separate argument on each claim of an appeal is a violation of

App.R. 16(A)(7), so we disregard this assignment of error. State v. Brown, 8th Dist. No.

87932, 2007-Ohio-527, 2007 WL 416702, ¶ 13.

                                            III

      {¶12}    Sparent’s sixth assignment of error is premised on at least one of his

convictions for burglary being reversed, thus necessitating a resentencing of the

remaining counts. Having found no error with the burglary counts, this assignment of

error is now moot.

      {¶13} Judgment affirmed.

      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.




MELODY J. STEWART, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR
