[Cite as State v. Calderwood, 194 Ohio App.3d 438, 2011-Ohio-2913.]



          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 95269



                              THE STATE OF OHIO,
                                                          APPELLEE,

                                                     v.

                                    CALDERWOOD,
                                                          APPELLANT.


                                          JUDGMENT:
                                           AFFIRMED


                                Criminal Appeal from the
                           Cuyahoga County Common Pleas Court
                                   Case No. CR-533942

                BEFORE:            Blackmon, P.J., Jones, J., and Cooney, J.

               RELEASED AND JOURNALIZED:                              June 16, 2011
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William D. Mason, Cuyahoga County Prosecuting Attorney, and John P.
Colan, Assistant Prosecuting Attorney, for appellee.

John F. Corrigan, for appellant.




      PATRICIA ANN BLACKMON, Presiding Judge.

      {¶ 1} Appellant, William Calderwood, appeals his burglary conviction

and assigns the following three errors:

            I. The trial court erred in denying appellant’s motion for
      acquittal pursuant to Ohio Criminal Rule 29 where there was
      insufficient evidence that appellant trespassed by force, stealth, or
      deception, in an occupied structure.

           II. Appellant’s conviction for burglary was against the
      manifest weight of the evidence.

             III. The trial court erred by allowing a police detective to
      testify that he spoke with the owner of the property who advised
      him that appellant did not have permission to be inside the
      structure.

      {¶ 2} Having reviewed the record and relevant law, we affirm

Calderwood’s conviction. The apposite facts follow.

                                          Facts

      {¶ 3} The Cuyahoga County Grand Jury indicted Calderwood on one

count of burglary and 72 counts of arson arising out of a burglary of a house,

which subsequently exploded, damaging several houses on West 83rd Street.

The state presented 67 witnesses to testify at trial.       The jury acquitted
                                       3
Calderwood of the arson counts but found him guilty of the burglary count;

therefore, we will focus on the evidence surrounding the burglary.

      {¶ 4} While   investigating   the explosion, detectives learned that

neighbors had seen Calderwood removing items such as appliances and pipes

from the house. Calderwood lived next door to the home and also owned rental

property down the street.    Neighbors observed Calderwood use a dolly to

transport the items to his rental property. Calderwood admitted to the arson

investigators that he had taken the property.       He also admitted to his

cellmate and to his wife during a phone call from jail that he had taken the

copper and appliances from the house.         Thus, it was undisputed that

Calderwood took the items. The disputed issues are whether the house was

occupied and whether Calderwood had permission to be inside the house.

      {¶ 5} Daniel Garman testified that he had lived in the house for 15

years. In late 2008, the home was in the process of being sold but was not

abandoned. In fact, Garman periodically checked on the house, paid to have

the lawn cut, and paid the utility bills. The home was eventually sold to EZ

Access Funding, which is a real estate holding company located in California.

In February 2009, EZ hired Marty Rickelman as a property manager to

prepare the home for rental or sale.

      {¶ 6} Rickelman assessed the property as needing minor repairs in

order to be ready for sale or rental.    On one of his visits to the property,
                                      4
Rickelman was approached by Calderwood.           Rickelman explained that he

worked for the owner of the home and was preparing the house for sale or

rental. Calderwood offered to help clean out the house, but Rickelman told

him that it was the contractor’s job.       Rickelman did not give Calderwood

permission to enter the house and did not give him a key. Rickelman ceased

working for EZ in May 2009.

         {¶ 7} In June 2009, EZ hired Rajsunhip Sandhu as Rickelman’s

replacement. When Sandhu visited the property in the fall of 2009, the side

door was open and the lights were on. He took photos of the home and then

rekeyed and locked the side door.      At that time, the appliances were still

there.

         {¶ 8} When he returned to the property on January 12, 2010, there was

a sign in the window saying “No copper. Stolen by Travis Hopp.” Also, the

door that he had previously rekeyed appeared to have been kicked open and

was braced with a two by four so that it could not be reopened with his key.

Sandhu was about to leave when Calderwood approached him. Calderwood

produced a key that opened the front door. He told Sandhu that the prior

property manager, Rickelman, had given him the key. Calderwood admitted

that he put the sign in the front window and that he had called the police

regarding the stolen copper. Sandhu’s inspection of the property indicated that

all the appliances and copper pipes were missing. Sandhu noted that the
                                       5
copper pipes were removed with precision and not simply yanked out,

indicating that the vandal took his time.

       {¶ 9} At a Weed and Seed 1 meeting conducted after the explosion,

Calderwood admitted taking the appliances and copper but stated that he had

the owner’s permission and that he had capped the pipes. He also told the

leader of the program, Brian Kazy, and Lieutenant Stevens from the

Cleveland Arson Investigation Unit that he had obtained the key by breaking

into the lock box on the door. The jury found Calderwood guilty of burglary;

the trial court sentenced him to three years in prison.

                               Insufficient Evidence

       {¶ 10} In his first assigned error, Calderwood argues that there was

insufficient evidence to support his conviction for burglary.

       {¶ 11} Crim.R. 29 mandates that the trial court issue a judgment of

acquittal when the state’s evidence is insufficient to sustain a conviction for

the offense. Crim.R. 29(A) and sufficiency-of-evidence review require the same

analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d

386.




       The Weed and Seed program is a federal initiative funded by the Department
       1

of Justice and supervised by the United States Attorney’s Office that seeks to weed
out crime in neighborhoods and provides preventative and intervention services to
improve the neighborhoods.
                                       6
      {¶ 12} In analyzing the sufficiency issue, the reviewing court must view

the evidence “in the light most favorable to the prosecution” and ask whether

“any rational trier of fact could have found the essential elements of the crime

[proven] beyond a reasonable doubt.”         (Emphasis omitted.)       Jackson v.

Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v.

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus; State v. Carter (1995), 72 Ohio St.3d 545, 651 N.E.2d 965.

      {¶ 13} A conviction for burglary pursuant to R.C. 2911.12(A)(3) requires

the state to prove that Calderwood, by force, stealth, or deception, and with

the intent to commit any criminal offense, entered an occupied structure with

the purpose to commit in the structure a criminal offense.            Calderwood

contends that the evidence failed to show that the house was an occupied

structure, because no one had lived in it for two years.

      {¶ 14} R.C. 2909.01(C) defines an “occupied structure” as “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: (1) It is maintained as a permanent or temporary dwelling,

even though it is temporarily unoccupied and whether or not any person is

actually present.”

      {¶ 15} While Calderwood contends that the house was not occupied

because no one lived there, the relevant inquiry in determining whether a
                                     7
structure is occupied concerns the residential purpose of the dwelling, rather

than the presence or absence of an occupant. State v. Green (1984), 18 Ohio

App.3d 69, 480 N.E.2d 1128 (home left vacant after the owners moved to

another residence was still an occupied structure because it was being

maintained as a dwelling); State v. Williams, Cuyahoga App. No. 92668,

2009-Ohio-6826 (fact that no one lived in the house for four months is

irrelevant in determining whether it was an occupied structure); State v.

Charley, Cuyahoga App. No. 82994, 2004-Ohio-3463 (structure is still occupied

despite the fact that the owner was in a nursing home and the daughter was

having the house restored); State v. Sharp, Cuyahoga App. No. 86827,

2006-Ohio-3158 (structure’s status as an occupied structure depends on the

residential purpose of the dwelling rather than the presence or absence of an

occupant); State v. Tornstrom (Nov. 19, 1998), Cuyahoga App. No. 72898 (a

home uninhabitable while undergoing major renovations was found to be an

occupied structure).

      {¶ 16} Here, although no one had been living in the house, the house was

not abandoned.         The evidence showed that the house maintained its

residential purpose even though it was vacant. The owners of the property

had hired property managers to supervise the property until renovations were

completed and the house was sold or rented. In fact, until the burglary, the

house was fully equipped with appliances and a furnace. Given these facts,
                                      8
we conclude that the house was an “occupied structure” within the meaning of

R.C. 2909.01(C)(1).     Accordingly, Calderwood’s first assigned error is

overruled.

                        Manifest Weight of the Evidence

      {¶ 17} In his second assigned error, Calderwood argues that his burglary

conviction was against the manifest weight of the evidence. He argues that

the evidence showed he had permission to be on the premises because he had a

key to the house and helped take care of the property by turning the lights on

to make the house look occupied.

      {¶ 18} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶ 25, the Ohio Supreme Court addressed the standard of review

for a criminal manifest-weight challenge, as follows:

             The criminal manifest-weight-of-the-evidence standard was
      explained in State v. Thompkins [1997], 78 Ohio St.3d 380, * * *
      678 N.E.2d 541. In Thompkins, the court distinguished between
      sufficiency of the evidence and manifest weight of the evidence,
      finding that these concepts differ both qualitatively and
      quantitatively. Id. at 386, 678 N.E.2d 541. The court held that
      sufficiency of the evidence is a test of adequacy as to whether the
      evidence is legally sufficient to support a verdict as a matter of
      law, but weight of the evidence addresses the evidence’s effect of
      inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a
      reviewing court asks whose evidence is more persuasive — the
      state’s or the defendant’s? We went on to hold that although there
      may be sufficient evidence to support a judgment, it could
      nevertheless be against the manifest weight of the evidence. Id. at
      387, 678 N.E.2d 541. “When a court of appeals reverses a
      judgment of a trial court on the basis that the verdict is against
      the weight of the evidence, the appellate court sits as a ‘thirteenth
      juror’ and disagrees with the factfinder’s resolution of the
                                     9

      conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v.
      Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

      {¶ 19} Calderwood contends that the evidence did not support the state’s

contention that he obtained the key by breaking into the lock box on the door.

Both of EZ’s property managers testified that Calderwood was not given

permission to go into the homes and that they did not provide Calderwood

with a key to the home.     Moreover, the Weed and Seed program director,

Brian Kazy, and Lieutenant Stevens testified that Calderwood had told them

that he obtained the key to the house by breaking into the lock box.

      {¶ 20} Calderwood argues that it would have been impossible for him to

have a key from the lock box because Sandhu testified that he had removed

the lock box and rekeyed the door. However, the door that Sandhu rekeyed

was the side door, not the front door. Calderwood had a key to the front door.

 While Sandhu testified that Calderwood told him that the prior property

manager, Rickelman, gave him the key, Rickelman stated that he did not give

Calderwood a key nor did he give him permission to be inside the house.

Given this evidence, we conclude that the jury did not lose its way and create a

manifest miscarriage of justice by finding that Calderwood did not have

permission to be inside the home. Accordingly, Calderwood’s second assigned

error is overruled.

                                Hearsay Evidence
                                     10
      {¶ 21} In his third assigned error, Calderwood argues that the trial court

erred by allowing Detective Good to testify that the president of EZ told him

that Calderwood did not have permission to be inside the structure.

      {¶ 22} In addition to the evidence that EZ’s president told the detective

that Calderwood did not have permission to be inside the house, both

Rickelman and Sandhu, who were agents of EZ, testified that Calderwood did

not have permission to enter the house and that they did not provide him with

a key. Given this additional evidenc,e any error the court may have made in

admitting the statement of EZ’s president is harmless under Crim.R. 52(A),

because the evidence was cumulative.         Accordingly, Calderwood’s third

assigned error is overruled.

                                                           Judgment affirmed.


      JONES and CONWAY COONEY, JJ., concur.
