[Cite as State v. Watkins, 2012-Ohio-4279.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97783




                                      STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.


                               DALONTE L. WATKINS
                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-549984

        BEFORE: Kilbane, J., Rocco, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      September 20, 2012
ATTORNEY FOR APPELLANT

Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Mark J. Mahoney
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Dalonte Watkins (“Watkins”), appeals his burglary

conviction. Finding no merit to the appeal, we affirm.

      {¶2} In May 2011, Watkins was charged in a five-count indictment. Count 1

charged him with burglary, Count 2 charged him with theft, Count 3 charged him with

vandalism, Count 4 charged him with possessing criminal tools and carried a furthermore

clause, and Count 5 charged him with criminal damaging. The indictment identified

Jillian Edgell (“Edgell”) as the victim. In December 2011, the matter proceeded to a jury

trial, at which the following evidence was adduced.

      {¶3} At approximately 2:45 a.m. on April 28, 2011, Lakewood police officers,

Patrick Mullen (“Mullen”) and Kevin Jones (“Jones”), responded to a call that two males

dressed in dark clothing were riding bicycles and looking into cars on Lakeland Avenue

in Lakewood, Ohio. When the officers arrived on scene, they observed both males

carrying duffle bags and riding bicycles in the middle of the street. Mullen stopped his

police cruiser right next to one of the males, whom he later identified as Watkins. He

instructed Watkins to stop and asked to speak with him. Watkins got off the bicycle and

placed the two duffle bags he was carrying on the ground. As Mullen exited his vehicle

to approach Watkins, Watkins ran away. Mullen pursued him through the yards of the
homes on Lakeland Avenue. While chasing after Watkins, Mullen got caught on a fence

and was unable to apprehend him.

      {¶4} Meanwhile, Jones stopped the other male, later identified as P.T. Jones

exited his police cruiser and ran after P.T. Jones grabbed P.T. off the bicycle and began

to question him. P.T. was carrying one duffle bag. The bag was open and Jones

observed some video games inside the bag. When Jones asked P.T. who the video games

belonged to, he “fumbled over his words” and replied, “oh, this is my cousin’s stuff.”

Jones then heard Mullen radio for assistance, so he placed P.T. under arrest for a curfew

violation and assisted Mullen with the search for Watkins.1

      {¶5} The police found toy handcuffs, a Nintendo Wii game console, three

Nintendo Wii game controllers, three Nintendo Wii video games, a PlayStation 3 game

console, Sharpie markers, and a silver hammer in the bag P.T. was carrying. The police

also found a flashlight, a lighter, a glass pipe used to smoke marijuana, two Nintendo Wii

game controllers, a faceplate from a car stereo, a diamond bracelet, a pair of diamond

earrings, and two gold rings in P.T.’s pockets. In the bags carried by Watkins, the

officers found a laptop, MP3 player, several pairs of sunglasses, an Xbox 360 game

console, and some video games.

      {¶6} P.T. told the officers that the property came from a house located at 1503

Lakeland Avenue, which was approximately six houses from where Watkins and P.T.

were stopped by the police. When the officers arrived at the 1503 Lakeland Avenue,


      1P.T.   was 17 years old at the time of the incident.
which is Edgell’s residence, they observed a vehicle in the driveway with a broken

window. They also observed that the back door was forced open with the glass broken

out of it. On the inside, the house was in complete disarray, with cabinets thrown to the

floor, broken glass, and clothes everywhere. While the officers were inside, Raymond

Metz (“Metz”), Edgell’s grandfather, arrived at the house. Metz was looking after the

house while Edgell was on vacation with her children and her sister, Ashley Edgell

(“Ashley”). He advised the police that Edgell called him and asked him to check on the

house.

         {¶7} Edgell asked her grandfather to check on the house because Ashley

received a call sometime between 2:00 a.m. to 3:00 a.m. from her nephew’s cell phone,

which Edgell left at home. They suspected Watkins was the person who called from the

cell phone. Watkins and Ashley had previously dated for three years. During that time,

Watkins had been at Edgell’s house several times. Ashley and Watkins would babysit

Edgell’s children and sometimes Watkins would spend the night at her house. Ashley

told Watkins that Edgell and her family were going on vacation. However, shortly

before leaving for vacation, Ashley and Watkins ended their relationship.

         {¶8} After his arrest, P.T. was transported to the Lakewood Police Department.

P.T. told the police that he and Watkins broke into Edgell’s home and stole various items.

P.T. testified that he met Watkins through his cousin, who was Watkins’s girlfriend at

the time of trial. P.T. further testified that Watkins called him and asked to meet him at

the corner store on West 85th Street in Cleveland. Watkins told P.T. that they were
going to rob a house in Lakewood. P.T. testified that when they got to the house, which

P.T. later found out was Edgell’s residence, Watkins used a key to get into the door.

Watkins later broke the glass on the door to make it look like a robbery. Once inside,

P.T. and Watkins went their separate ways and began stealing various items.         P.T.

testified that he broke the window of Edgell’s car with a hammer he took from inside the

house. After approximately 20 minutes, they left the house and took off on two bicycles

that were in the garage. As they started riding the bicycles down the street, they were

stopped by Mullen and Jones.

       {¶9} At the conclusion of trial, the jury found Watkins guilty of all counts. The

trial court merged Counts 1 and 2 for purposes of sentencing and sentenced Watkins to

three years in prison on Count 1, one year in prison on each of Counts 3 and 4, and 60

days in jail on Count 5. The court ordered that all counts be served concurrently to each

other, for an aggregate of three years in prison.

       {¶10} Watkins now appeals, raising the following three assignments of error for

review.

                             ASSIGNMENT OF ERROR ONE

       [Watkins’s] conviction for burglary (F-2) in violation of [R.C.
       2911.12(A)(2)] is contrary to the manifest weight of the evidence as the
       state of Ohio failed to establish beyond a reasonable doubt that [Watkins]
       trespassed in an occupied structure when another person other than an
       accomplice was present or likely to be present.

                            ASSIGNMENT OF ERROR TWO

       The state of Ohio failed to establish beyond a reasonable doubt when
       viewed by the manifest weight of the evidence that [Watkins] either
       participated or was an accomplice in the burglary at the 1503 Lakeland
       Avenue residence.

                            ASSIGNMENT OF ERROR THREE

       The trial court abused its discretion by refusing to grant a request for a
       continuance of the trial date in order for [Watkins] to authenticate a text
       message intended to be used by [him] for impeachment of [P.T.].

                                       Manifest Weight

       {¶11} In the first and second assignment of error, Watkins argues his burglary

conviction is against the manifest weight of the evidence. With regard to a manifest

weight challenge:

       [the] reviewing court asks whose evidence is more persuasive — the state’s
       or the defendant’s? * * * “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 conflicting testimony.           [State v.
       Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing [Tibbs
       v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)].

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

       {¶12} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983).        Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.
       {¶13} In the instant case, Watkins was convicted of burglary under

R.C. 2911.12(A)(2), which provides in pertinent part: “[n]o person, by force, stealth, or

deception, shall * * * [t]respass in 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[.]”

       {¶14} Watkins first argues that the jury’s finding that a “person other than an

accomplice of the offender * * * likely to be present” was against the manifest weight of

the evidence because Edgell was on vacation at the time of the burglary. We note that in

determining whether persons are likely to be present under R.C. 2911.12(A)(2), what the

defendant knows at the time is irrelevant; rather, the issue is whether it was objectively

likely that persons were likely to be there.     State v. Dewitt, 3d Dist. No. 1-09-25,

2009-Ohio-5903; State v. Pennington, 12th Dist. No. CA2006-11-136, 2007-Ohio-6572.

“[A] person is likely to be present when a consideration of all the circumstances would

seem to justify a logical expectation that a person could be present.” State v. Cantin, 132

Ohio App.3d 808, 813, 726 N.E.2d 565 (8th Dist.1999), citing State v. Green, 18 Ohio

App.3d 69, 480 N.E.2d 1128 (10th Dist.1984).

       {¶15} Typically, where a burglary occurs and the occupying family is temporarily

absent, a showing that the occupied structure is a permanent dwelling, which is regularly

inhabited and the occupants were in and out on the day in question, will be sufficient

evidence to support a conviction for burglary. State v. Kilby, 50 Ohio St.2d 21, 25, 361
N.E.2d 1336 (1977). However, this court and other Ohio courts have found that if the

occupants of the dwelling are on vacation, and there is evidence that the occupants have

given a neighbor or other caretaker permission or access to the home regularly, then there

will be sufficient evidence that a person is “likely to be present” for purposes of

R.C. 2911.12(A)(2), a second degree felony burglary offense. See State v. Cochran, 8th

Dist. No. 50057, 1986 Ohio App. LEXIS 5481 (Jan. 30, 1986); State v. Robinson, 8th

Dist. Nos. 49501, 49518, and 49577, 1985 Ohio App. LEXIS 9055 (Oct. 24, 1985) (a

“person other than an accomplice of the offender is * * * likely to be present” when the

homeowner or occupant was away on vacation, but had given keys to a neighbor to check

on the house periodically). See also Dewitt; Pennington.

      {¶16} Here, Edgell testified that she asked Metz to periodically check on her house

while she was on vacation for six days and that Metz had just checked on her house the

day before the burglary. Edgell further testified that because Metz was responsible for

checking on her house, she asked him to go to the house when they received the call from

her son’s cellphone. Based on this evidence, we do not find that the jury clearly lost its

way in finding that the “likely to be present” element in R.C. 2911.12(A)(2) was met.

      {¶17} Watkins next argues that his burglary conviction is against the manifest

weight of the evidence because P.T.’s testimony that Watkins was involved in the

burglary was not credible. Specifically, he refers to P.T.’s testimony that: (1) Watkins

used a key located at the top of the back door to gain entry into the house, but Edgell

testified that she did not have a spare key outside and (2) he discussed the burglary with
his cousin, who was Watkins’s girlfriend, and acknowledged that Watkins was not

involved.

      {¶18} We recognize that:

      [t]he determination of weight and credibility of the evidence is for the trier
      of fact. The rationale is that the trier of fact is in the best position to take
      into account inconsistencies, along with the witnesses’ manner and
      demeanor, and determine whether the witnesses testimony is credible. As
      such, the trier of fact is free to believe or disbelieve all or any of the
      testimony. Consequently, although an appellate court must act as a
      “thirteenth juror” when considering whether the manifest weight of the
      evidence requires reversal, it must give great deference to the fact finder’s
      determination of the witnesses’ credibility. (Citations omitted.)

State v. Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10, quoting State v.

Blackman, 8th Dist. No. 95168, 2011-Ohio-2262, ¶ 21.

      {¶19} Upon review, we do not find that the jury clearly lost its way in assessing

P.T.’s testimony. When the prosecutor asked P.T. if he observed Watkins grab the key

from the top of the door, he replied “[n]o, but I seen the key there. I didn’t see him grab

it from there, but I seen the key when I got there.” He further testified that Watkins

broke the glass on the door “[t]o — make it look like a robbery.” With regard to P.T.’s

conversation with his cousin, P.T. acknowledged that he did not correct his cousin when

she said Watkins was not involved. P.T. testified that he just said what she wanted to

hear and responded “uh-huh.” He “told her that because [he] knew that she was going to

be right behind [Watkins’s] butt, the whole way. So [he] told her what she wanted to

hear. It wasn’t to make [himself] look good.” Thus, we cannot say the jury clearly lost
its way and created such a manifest miscarriage of justice that Watkins’s conviction must

be reversed and a new trial ordered.

      {¶20} Accordingly, the first and second assignments of error are overruled.



                                 Motion for Continuance

      {¶21} In the third assignment of error, Watkins argues the trial court abused its

discretion when it denied his motion for a continuance in order to authenticate a text

message intended to impeach P.T.’s testimony.

      {¶22} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge. [Thus, an] appellate court must not reverse the

denial of a continuance unless there has been an abuse of discretion.” State v. Unger, 67

Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981), citing Ungar v. Sarafite, 376 U.S. 575, 589,

84 S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Bayless, 48 Ohio St.2d 73, 101, 357 N.E.2d

1035 (1976). An abuse of discretion “‘implies that the court’s attitude is unreasonable,

arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

      {¶23} The Ohio Supreme Court has stated that the following facts can be

considered when determining whether a continuance should have been granted: “the

length of delay requested, prior continuances, inconvenience, the reasons for the delay,

whether the defendant contributed to the delay, and other relevant factors.” State v.

Landrum, 53 Ohio St.3d 107, 115, 559 N.E.2d 710 (1990).
       {¶24} In the instant case, Watkins’s defense counsel advised the trial court that

Watkins received a text message from P.T. on December 2, 2011. However, Watkins did

not advise his counsel of the text message until the day before trial on December 13,

2011. Defense counsel informed the prosecutor about the text the same day, but did not

inform the trial court until the next day, which was the first day of trial. Defense counsel

requested a continuance of eight to ten days so that the text message could be

authenticated by the cellphone carrier. The trial court denied Watkins’s motion for

continuance, stating that:

       I allowed you to ask [P.T.] about if there was any communication between
       him and [Watkins]. * * * [T]his case had been going on a long time * * *
       [a]nd * * * has been continued [eight times.]” * * * It was set for trial July
       18th. It was continued. And then it was set for trial on August 2nd, and it
       was continued. Then it was set for August 22nd, and it was continued. It
       was set for August 31st, it was continued. It was set for September 19th, it
       was continued. * * * So if this evidence was so important, it was given to
       your client on December the 2nd, this [text], and it takes eight to ten days to
       authenticate it, you could have done so before trial. * * * I think I’ve been
       more than gracious in granting as many continuances as I can, to allow you
       and defense team to strategize and come up with these — this evidence. *
       * * [Furthermore,] I don’t think you are allowed to use extrinsic evidence to
       impeach the witnesses unless it goes to the truthfulness.

       {¶25} Here, the trial court’s decision was not unreasonably, arbitrarily, or

unconscionably made.         The trial court stated that it has previously granted eight

continuances and noted the authentication could have been completed by defense counsel

prior to trial.   Furthermore, the trial court considered the admissibility of the text

message under the Ohio Rules of Evidence. Under these circumstances, we do not find
that the denial of Watkins’s continuance amounted to an abuse of discretion by the trial

court.

         {¶26} Therefore, the third assignment of error is overruled.

         {¶27} Judgment is affirmed.

         It is ordered that appellee recover from appellant 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.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

 KENNETH A. ROCCO, P.J., and
 EILEEN A. GALLAGHER, J., CONCUR
