[Cite as State v. Bronczyk, 2011-Ohio-5924.]


                 Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96326



                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                             JOSEPH J. BRONCZYK
                                                     DEFENDANT-APPELLANT



                        JUDGMENT:
            AFFIRMED IN PART, MODIFIED IN PART,
             REVERSED IN PART AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-540345

        BEFORE:            Rocco, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: November 17, 2011

                                               -i-
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ATTORNEY FOR APPELLANT

Jennifer J. Scott
P.O. Box 770403
Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Holly M. Welsh
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant     Joseph    Bronczyk    appeals    from   his

convictions for burglary, theft, attempted burglary, possession of criminal

tools, and tampering with evidence, and from the eight-year prison term the

trial court imposed for those convictions.

      {¶ 2} Bronczyk presents six assignments of error.     He claims his trial

counsel rendered ineffective assistance, his convictions are not supported by

either sufficient evidence or the manifest weight of the evidence, the

introduction into evidence of one of the state’s exhibits violated his “right to
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remain silent,” and the trial court failed to comply with statutory

requirements in sentencing him.

      {¶ 3} Upon a review of the record, this court cannot agree that

Bronczyk’s trial counsel was ineffective. In addition, Bronczyk’s convictions

for burglary, attempted burglary, and possession of criminal tools are

supported by the evidence. However, the state failed to present sufficient

evidence to prove the allegations of the furthermore clause set forth in Count

2, theft, and failed to present sufficient evidence to support Bronczyk’s

conviction for tampering with evidence.

      {¶ 4} This disposition requires a modification of Bronczyk’s conviction

on Count 2, and reversal of his conviction on Count 6. Except with respect to

Bronczyk’s convictions on Counts 2 and 6, his arguments with respect to the

trial court’s imposition of sentence are rejected. Bronczyk’s convictions and

sentences, therefore, are affirmed in part, modified in part, and reversed in

part, and this case is remanded for resentencing consistent with this opinion.

      {¶ 5} Bronczyk’s convictions in this case result from two separate

incidents. The first occurred on the afternoon of July 15, 2010.

      {¶ 6} Antoinette Finding testified that she was reading the newspaper

at her kitchen table when she looked out her window and noticed activity

taking place across the street at her neighbor’s house. A man, whom she
                                     4

recognized as Bronczyk, was walking around Eugene Mueller’s yard.           As

Finding watched, Bronczyk picked up a ladder lying in the front lawn, then

carried the ladder around to the rear of Mueller’s house.

      {¶ 7} Soon thereafter, Finding saw Bronczyk climb onto the roof of the

“breezeway” that connected Mueller’s garage to his house. Bronczyk crossed

the roof to the house’s second-floor window, lifted, and disappeared into

Mueller’s house. Finding called the Parma police.

      {¶ 8} A few minutes later, two police officers arrived at Mueller’s

house, viz., Eric Jezior and Edward Pinc. They walked around the property,

noticing a ladder against the rear of the house. When the officers looked up

to the second floor, they saw Bronczyk exiting backwards from the window.

      {¶ 9} Jezior immediately called out to Bronczyk, who appeared to be

“startled” at the sound. The officers asked him to come down; they moved

the ladder slightly to better facilitate the process. Bronczyk explained to the

officers that he was doing work around the house for Mueller, went up to the

roof, and “couldn’t get to the ladder to get down, so he was going through the

house to come downstairs and unlock a door” to let himself out.

      {¶ 10} Bronczyk’s explanation made little sense to the officers, since

they saw him emerge from the window, and since the ladder had been

propped against the roof within his reach.        They proceeded to contact
                                      5

Mueller by telephone. Mueller confirmed that he had hired Bronczyk to do

some outside chores, but indicated Bronczyk had no reason to be inside the

house. Nevertheless, Mueller told the officers that he wanted to speak to

Bronczyk before taking any action, so the two officers left.

      {¶ 11} When Mueller returned to the house after work, Bronczyk came

over and told him that the reason “he pried the window up” was because “the

ladder fell off the garage roof.”    Mueller initially believed Bronczyk, but

subsequently noticed some items inside the house were moved.              In

particular, Mueller saw that “a Sony camera and two diamond rings” were in

a cardboard box placed near the window that Bronczyk had opened.

      {¶ 12} After making this discovery, Mueller went to the police station

and wrote out a complaint.       Officer Oliver Simic investigated Mueller’s

complaint on July 17, 2010.       Simic spoke to Finding and Mueller, took

photographs of the exterior of Mueller’s house, and photographed the items

inside the box near the window. A warrant was issued for Bronczyk’s arrest.

      {¶ 13} The second incident occurred on the afternoon of July 31, 2010.

Angel Williams testified she lived in Parma on Theota Avenue. Her address

was “four blocks” east of Bronczyk’s residence. She went into her kitchen to

“grab something to eat” and, as she looked out the window, she saw “a

strange man,” later identified as Bronczyk, enter her backyard.
                                     6

      {¶ 14} At first, Williams thought Bronczyk might be searching for a lost

pet, but then she heard “the handle of [her] screen door in the back jiggle.”

She approached her rear door, and, looking through the glass panes, “saw this

man trying to get into the window of [her] children’s bedroom.” Williams

called 911.

      {¶ 15} While she was on the telephone, Bronczyk returned to “the back

stoop with a screwdriver in his hand.” She stepped closer to her rear door,

and she and Bronczyk “were face-to-face with the glass of the door between

us.” Bronczyk saw Williams standing there with a telephone; “he ran.”

      {¶ 16} Pinc was one of the officers who heard the radio broadcast about

Williams’s call. He advised his colleagues that the description of both the

incident and the suspect were similar to an earlier incident in which he had

been involved. Pinc provided Bronczyk’s address to the other officers.

      {¶ 17} Officer Thomas O’Grady drove to the street where Bronczyk

resided.   As O’Grady turned onto the street, he saw Bronczyk walking

toward his home across a neighbor’s lawn. Bronczyk approached the side

door of his home as O’Grady drove into Bronczyk’s driveway.         Although

O’Grady stopped and ordered Bronczyk to remain outside, Bronczyk replied

“he’s not going to jail,” and entered his home.        O’Grady and another

responding officer eventually forced their way into the house to arrest
                                       7

Bronczyk. After the arrest, O’Grady observed a screwdriver on the driveway

on “the right side of the side door”; he took the tool as evidence.

      {¶ 18} Parma police officers retrieved Williams and conducted a “cold

stand.” Williams asked the officers to move Bronczyk a little closer before

she identified him as the man who attempted to enter her home.

      {¶ 19} Bronczyk subsequently was indicted on six counts, i.e., 1)

burglary, with a notice of prior conviction (“NPC”) and a repeat violent

offender specification (“RVO”); 2) theft, with a furthermore clause alleging

that the victim was an elderly person and that the value of the property was

between $500 and $5,000; 3) possession of criminal tools, to wit: a ladder,

with a furthermore clause that the offense occurred in the commission of a

felony; 4) attempted burglary; 5) possession of criminal tools, to wit: a

screwdriver, with a furthermore clause that the offense occurred in the

commission of a felony; and, 6) tampering with evidence.

      {¶ 20} Bronczyk eventually signed a waiver of his right to a jury trial

with respect to the NPC and RVO in Count 1 and the case proceeded. After

the court denied his Crim.R. 29 motions for acquittal, the jury found

Bronczyk guilty on all counts. The trial court also found him guilty on the

NPC and RVO. The trial court subsequently imposed a total prison sentence

of eight years for Bronczyk’s convictions.
                                          8

         {¶ 21} Bronczyk presents the following six assignments of error in this

appeal.

         {¶ 22} “I.     The Appellant was denied his right of due process

based upon ineffective assistance of counsel.

         {¶ 23} “II.    The evidence was insufficient to sustain a finding of

guilt because the state failed to present evidence to establish beyond

a reasonable doubt the elements necessary to support the conviction

[sic].

         {¶ 24} “III.    Appellant’s convictions were against the manifest

weight of the evidence.

         {¶ 25} “IV.     The trial court violated Appellant’s constitutional

right to remain silent when it permitted introduction of State’s

Exhibit 3.

         {¶ 26} “V.     The trial court abused its discretion in sentencing

Appellant to the maximum penalty without consideration of the

overriding        purposes      of   felony   sentencing   or   the   mandatory

sentencing factors.

         {¶ 27} “VI.     The trial court abused its discretion in sentencing

Appellant        to     the   maximum     period   of   incarceration   without
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articulating judicially reviewable reasons for imposition of the

sentence.”

      {¶ 28} Bronczyk argues in his first assignment of error that his trial

counsel provided ineffective assistance for failing to file a motion to sever the

counts of the indictment for trial.      He contends the joinder of the two

incidents for trial violated Evid.R. 404(B). This court disagrees.

      {¶ 29} In order to successfully assert a constitutional claim of ineffective

assistance of counsel, a defendant must show not only that his attorney made

errors so serious that she was not functioning as “counsel,” as guaranteed by

the Sixth Amendment, but also that the deficient performance was so serious

as to deprive defendant of a fair and reliable trial. Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373.

      {¶ 30} Since there are many ways to provide effective assistance in any

given case, judicial scrutiny of counsel’s performance must be highly

deferential, and there will be a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance. Id.; see,

also, Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164. Thus,

counsel will not be deemed ineffective for failing to make futile motions.
                                      10

State v. Kirk, Cuyahoga App. Nos. 95260 and 95261, 2011-Ohio-1687, ¶44,

citing State v. Leonard, Cuyahoga App. No. 93496, 2010-Ohio-3601, ¶27.

      {¶ 31} Crim.R. 8(A) allows for the joinder of multiple offenses in the

same indictment “if the offenses charged * * * are of the same or similar

character, or are based on the same act or transaction, or are based on two or

more acts or transactions connected together or constituting parts of a

common scheme or plan, or are part of a course of criminal conduct.”

(Emphasis added.)

      {¶ 32} Generally, the law favors joining multiple offenses in a single

trial if the offenses are “of the same or similar character.”       State v. Lott

(1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. A defendant who challenges

joinder must demonstrate the joinder prejudiced his rights. Id.

      {¶ 33} A defendant’s claim of prejudicial joinder may be rebutted in two

ways, viz., first, if in separate trials the state could introduce evidence of the

joined offenses as “other acts” under Evid.R. 404(B), and, second, if the state

can show that “evidence of each crime joined at trial is simple and direct.”

Id.; see, also, State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d

1239, ¶198. “Thus, when simple and direct evidence exists, an accused is not

prejudiced by joinder regardless of * * * Evid.R. 404(B).” Lott at 163.
                                        11

      {¶ 34} A review of the record in this case demonstrates joinder was

proper because the offenses were of the same or a similar character and were

part of the same course of criminal conduct.         Each incident involved

Bronczyk’s attempt to burglarize a home in his neighborhood.             Two

straight-forward incidents occurred, the evidence involving each incident was

simple and direct, and there is no indication from the record that the jury

confused the evidence.    State v. Shabazz, Cuyahoga App. Nos. 95567 and

95588, 2011-Ohio-2919, ¶31.

      {¶ 35} Under these circumstances, Bronczyk cannot demonstrate trial

counsel provided ineffective assistance by failing to challenge joinder of the

offenses in the same indictment.         State v. Fannin, Delaware App. No.

10CAA030028, 2011-Ohio-3211; see, also, Kirk at ¶45.         Bronczyk’s first

assignment of error, accordingly, is overruled.

      {¶ 36} In his second assignment of error, Bronczyk argues that the trial

court erred in denying his motions for acquittal, because his convictions in

Counts 1, 2, and 4 1 are not supported by sufficient evidence.     This court

agrees with his argument in part, and also finds plain error occurred with

respect to his conviction on Count 6.


      1 Bronczyk presents no argument with respect to his convictions for
possession of criminal tools and tampering with evidence.
                                      12

      {¶ 37} A motion for acquittal under Crim.R. 29(A) is governed by the

same standard used for determining whether a verdict is supported by

sufficient evidence.   State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417,

847 N.E.2d 386, ¶37. “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. * * * .” Id.

      {¶ 38} Bronczyk was convicted of several different offenses.      Count 1

charged him with burglary, in violation of R.C. 2911.12(A)(2), which provides

that “[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,” in this case, as charged in Count 2, theft.

      {¶ 39} Bronczyk asserts the state provided insufficient evidence that he

trespassed in Mueller’s house with the purpose to commit a theft, because the

evidence indicated Bronczyk actually did not take anything. However, the

actual commission of the theft is immaterial; it is necessary only that the

defendant had that purpose. State v. Colegrove (1998), 123 Ohio App.3d 565,
                                    13

704 N.E.2d 645; see, also, State v. Khomkalov, Cuyahoga App. No. 94600,

2011-Ohio-327.

     {¶ 40} Proof of guilt may be made by circumstantial evidence, real

evidence, and direct evidence, or any combination of the three, and all three

have equal probative value. State v. Nicely (1988), 39 Ohio St.3d 147, 529

N.E.2d 1236.     “Circumstantial evidence and direct evidence inherently

possess the same probative value and therefore should be subjected to the

same standard of proof.”    State v. Jenks (1991), 61 Ohio St.3d 259, 574

N.E.2d 492, at paragraph two of the syllabus.

     {¶ 41} In this case, the police interrupted Bronczyk as he was backing

out of a second-story window. Bronczyk lacked a legitimate reason for going

into Mueller’s house, provided a preposterous reason for his actions there,

and appeared to leave inside near the window a box of valuables that he was

unable to remove because the police surprised him.       This evidence was

sufficient to prove Bronczyk committed burglary and theft, as alleged in

Counts 1 and 2. Khomkalov.

     {¶ 42} However, the record reflects the state provided no evidence to

prove either portion of the furthermore clause attached to Count 2. No one

testified about Mueller’s date of birth. Moreover, Mueller never provided his

age, and stated he was at work when the incident occurred; therefore, he was
                                     14

not retired. In addition, although Mueller testified some items of value to

him had been placed into the box found by the window, he provided no dollar

amount from which the jury could determine the cost of those items.

      {¶ 43} Under these circumstances, Bronczyk’s conviction for felony theft

is based upon insufficient evidence. His conviction on Count 2, therefore,

must be modified to first-degree misdemeanor theft. R.C. 2913.02(B)(2).

      {¶ 44} The trial court acted appropriately in denying Bronczyk’s motion

for acquittal with respect to Count 4. Williams’s testimony that Bronczyk

was a stranger to her and that, after he entered her backyard, he tried to “get

into the window of [her] children’s bedroom” before he approached her door

“with a screwdriver in his hand” constituted sufficient circumstantial

evidence to establish the elements of attempted burglary. State v. Carson,

Medina App. No. 10CA0094-M, 2011-Ohio-4989; State v. Gibbs, Cuyahoga

App. No. 94349, 2011-Ohio-76.

      {¶ 45} Although Bronczyk presents no argument with respect to his

conviction on Count 6,2 this court finds plain error occurred when the trial

court denied Bronczyk’s motion for acquittal on that count. Bronczyk was

charged therein with violating R.C. 2921.12(A)(1), which states: “No person,

knowing that an official proceeding or investigation is in progress, or is about


      2See   fn. 1.
                                      15

to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove

any * * * thing, with purpose to impair its value or availability as evidence in

such proceeding or investigation.”

      {¶ 46} According to O’Grady, as he approached Bronczyk’s house he saw

Bronczyk grab the side door handle, make “eye contact,” and enter his home.

After Bronczyk’s arrest, O’Grady found a screwdriver on the driveway near

the side door.

      {¶ 47} O’Grady did not see Bronczyk either holding the tool, disposing of

it, or even discarding it. According to O’Grady, the screwdriver lay in plain

view and displayed nothing unusual; it was not even dirty. A police officer’s

testimony that he retrieved an obvious item, without more, is insufficient to

prove the defendant committed the crime of tampering with evidence. State

v. Spears, 178 Ohio App.3d 580, 2008-Ohio-5181, 899 N.E.2d 188; cf., State v.

Gosha, Cuyahoga App. No. 95290, 2011-Ohio-2278 (citing cases in which the

defendant “threw” the item during a chase).           Consequently, Bronczyk’s

conviction for that offense is reversed.

      {¶ 48} Bronczyk’s second assignment of error, therefore, is overruled in

part and sustained in part.

      {¶ 49} Bronczyk argues in his third assignment of error that his

convictions for burglary, theft, and attempted burglary are against the
                                    16

manifest weight of the evidence.        He bases this argument, in part, on

Mueller’s testimony that he “believed” Bronczyk’s explanation for his

presence on the roof, and Williams’s admission that she did not know

Bronczyk’s reason for being at her house.

     {¶ 50} In reviewing a claim challenging the manifest weight of the

evidence, the appellate court determines whether “there is substantial

evidence upon which a jury could reasonably conclude that all the elements

have been proved beyond a reasonable doubt.” State v. Leonard, 104 Ohio

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81.      This court examines the

entire record in order to determine whether the jury clearly lost its way and

created such a manifest miscarriage of justice that the convictions must be

reversed and a new trial ordered. Id.

     {¶ 51} The jury did not lose its way in evaluating the evidence presented

in this case.     Carson; State v. Austin, Lucas App. No. L-09-1011,

2009-Ohio-6258; Gibbs.    Clearly, Mueller tried to withdraw his written

statement to the police alleging Bronczyk committed burglary and theft

because Bronczyk and his mother later elicited Mueller’s sympathy.

     {¶ 52} Moreover, although Bronczyk presented testimony indicating he

had an innocent reason for entering Mueller’s house, and, at the time

Williams experienced the attempted break-in at her home, he was at home
                                      17

helping his mother, Bronczyk’s mother was hardly an objective witness.

During her testimony, she not only prevaricated at times, but also

contradicted herself at some points. The jury reasonably could determine

she provided an unreliable account of her son’s actions.              Therefore,

Bronczyk’s convictions are supported by the manifest weight of the evidence.

      {¶ 53} Accordingly, Bronczyk’s third assignment of error is overruled.

      {¶ 54} Bronczyk argues in his fourth assignment of error that the trial

court violated his constitutional rights when it permitted the state to

introduce into evidence a letter Mueller wrote on Bronczyk’s behalf to an

“Officer Roy.” Bronczyk contends the letter allowed the jury to infer that he

had a past history of criminal behavior.

      {¶ 55} A trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case; therefore, an appellate court’s

review of the trial court’s decision is limited to whether the lower court

abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543

N.E.2d 1233; Jenks at 281. The term “abuse of discretion” implies that the

court’s attitude is unreasonable, arbitrary, or unconscionable. Finnerty.

      {¶ 56} In this case, no abuse of discretion occurred, because the record

reflects that “Officer Roy” was never identified. The state presented several

Parma police officers as witnesses in this case. Although Bronczyk objected
                                      18

to the letter on the basis that it was written to his probation officer, the jury

could not have known that fact. Mueller acknowledged that he no longer

desired to pursue criminal charges against Bronczyk for the July 15, 2010

incident. His letter simply reflected his change of heart.

      {¶ 57} In light of the ambiguity of the identity of “Officer Roy,” this court

cannot find that the trial court either violated Bronczyk’s constitutional

rights or abused its discretion in admitting the letter into evidence. See, e.g.,

State v. Brust (June 26, 1992), Pike App. No. 478.             Bronczyk’s fourth

assignment of error, accordingly, is overruled.

      {¶ 58} Bronczyk’s fifth and sixth assignments of error challenge his

sentence. He contends that the trial court “failed to consider [either] the

proportionality or the consistency of the sentence” when it imposed a

“maximum” term upon him, and that the trial court failed to provide its

reasons for choosing a “maximum sentence.”

      {¶ 59} This court previously has determined herein that Bronczyk’s

conviction for theft must be modified and his conviction for tampering with

evidence is reversed. This disposition necessitates a remand of this case for

resentencing   consistent with the premise set forth by the Ohio Supreme

Court in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824;

cf., State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381. To
                                     19

the extent his contentions pertain to his other convictions, they lack merit for

three reasons.

      {¶ 60} First, Bronczyk did not receive a “maximum” sentence.     The trial

court stated it would not impose “any RVO time,” and, in addition, imposed

concurrent rather than consecutive terms for all of Bronczyk’s convictions.

      {¶ 61} Second, the record reflects the trial court considered the statutory

guidelines before pronouncing sentence. Bronczyk did not raise the issue of

proportionality either prior to or at the sentencing hearing; consequently, he

waived the issue he presents in his fifth assignment of error.          State v.

Gonzales, Cuyahoga App. No. 96058, 2011-Ohio-4415, ¶20.

      {¶ 62} Third, the trial court is not required to provide reasons for its

decisions in sentencing. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320,

941 N.E.2d 768.    Nevertheless, the trial court noted that earlier “lenient”

sentences had failed to deter Bronczyk’s criminal behavior, and his

victimization of his neighbors in this case warranted a stronger deterrent.

This court cannot find the trial court abused its discretion under these

circumstances.    State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124.

      {¶ 63} For the foregoing reasons, Bronczyk’s fifth and sixth assignments

of error are overruled.
                                     20

      {¶ 64} Bronczyk’s convictions and sentences for burglary, attempted

burglary, and possession of criminal tools are affirmed. His conviction for

theft in Count 2 is modified, and his conviction for tampering with evidence in

Count 6 is reversed and vacated. This case is remanded for resentencing

consistent with this opinion.

      It is ordered that appellant recover from appellee 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

convictions having been affirmed in part, any bail pending appeal is

terminated. Case remanded to the trial court for resentencing.

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

Rule 27 of the Rules of Appellate Procedure.



______________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
