[Cite as State v. Skrepenski, 2014-Ohio-2835.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                              Court of Appeals No. WD-13-036

        Appellee                                           Trial Court No. 13 CR 86

v.

David Skrepenski, II                                       DECISION AND JUDGMENT

        Appellant                                          Decided: June 27, 2014

                                                    *****

        Paul A. Dobson, Prosecuting Attorney, Thomas A. Matuszak and
        David T. Harold, Assistant Prosecuting Attorneys, for appellee.

        Lawrence A. Gold, for appellant.

                                                    *****

        YARBROUGH, P.J.

                                                 I. Introduction

        {¶ 1} Appellant, David Skrepenski, II, appeals his conviction in the Wood County

Court of Common Pleas, following a jury trial, of two counts of burglary in violation of

R.C. 2911.12(A)(1) and (D), felonies of the second degree. We affirm.
                         A. Facts and Procedural Background

       {¶ 2} Appellant was indicted on two counts of burglary stemming from events that

took place on October 27 and October 29, 2012. At the jury trial on those two counts, the

following evidence was entered. Still photographs taken from video surveillance show

appellant and his accomplice, Charles Dickson, attempting to steal electronic items from

the Walmart in Bowling Green, Ohio. The October 27, 2012 photographs show the two

men separately entering the store through the main entrances. They proceeded to each

fill a shopping cart with electronic items and then deposit the cart in the lawn and garden

section outside. The men then exited the store. A Walmart employee testified that a

short time later, he observed the two men in a black jeep near the fence beside the lawn

and garden area. One of the men appeared to be using a tool to cut through the fence.

When the employee approached, the man threw the tool in the jeep and the pair drove

away quickly. Although the fence had been cut, no merchandise was taken on that day.

       {¶ 3} Two days later, on October 29, 2012, appellant and Dickson again entered

the store. One of the store associates recognized the men from the photographs taken on

the 27th. That associate notified the store’s loss prevention associate, John Murlin.

Murlin contacted the Bowling Green police, and then watched on the store’s surveillance

camera as the two men again loaded shopping carts with electronic items. This time,

however, the two men simply pushed the carts to the front of the store, past the checkout

lanes, and walked out of the main exits. The men did not attempt to pay for the items.




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Outside, as the two men were loading the items into the black jeep, police officers

arrived. Appellant and Dickson were subsequently taken into custody.

       {¶ 4} The events of October 27 and October 29, 2012, were not disputed by

appellant at the trial, nor did appellant dispute that he was the person in the surveillance

photos. Rather, the main issue centered on whether the state could prove the trespass

element of burglary.

       {¶ 5} In defining the offense of burglary, R.C. 2911.12(A) provides,

              No person, by force, stealth, or deception, shall do any of the

       following:

              (1) Trespass in an occupied structure or in a separately secured or

       separately occupied portion of an occupied structure, when another person

       other than an accomplice of the offender is present, with purpose to commit

       in the structure or in the separately secured or separately occupied portion

       of the structure any criminal offense.

Criminal trespass, in turn, is defined in R.C. 2911.21(A) as,

              No person, without privilege to do so, shall do any of the following:

              (1) Knowingly enter or remain on the land or premises of another;

              (2) Knowingly enter or remain on the land or premises of another,

       the use of which is lawfully restricted to certain persons, purposes, modes,

       or hours, when the offender knows the offender is in violation of any such

       restriction or is reckless in that regard;




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              (3) Recklessly enter or remain on the land or premises of another, as

       to which notice against unauthorized access or presence is given by actual

       communication to the offender, or in a manner prescribed by law, or by

       posting in a manner reasonably calculated to come to the attention of

       potential intruders, or by fencing or other enclosure manifestly designed to

       restrict access;

              (4) Being on the land or premises of another, negligently fail or

       refuse to leave upon being notified by signage posted in a conspicuous

       place or otherwise being notified to do so by the owner or occupant, or the

       agent or servant of either.

       {¶ 6} Specifically, appellant focused on whether the state could prove that he was

without privilege to enter onto Walmart’s property. To that end, the state elicited

Murlin’s testimony regarding Walmart’s procedures in “trespassing” a person. Murlin

testified that where a person stole items from the store, that person would be

automatically trespassed (i.e., forbidden to return to Walmart) if the incident involved

violence, if the amount stolen rose to the level of a felony, or if it was a second offense.

Murlin described that the standard procedure for trespassing a person is that the loss

prevention officer would provide a form letter to the offender, notifying him or her that

he or she is no longer allowed on Walmart property. The offender would then sign the

form letter. If the offender refused to sign the letter, the loss prevention officer would

simply read the letter to the offender. Murlin testified that Walmart retains signed letters




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for three years from the date of the incident. In addition, Walmart maintains an

electronic database of the incidents, which includes a field for whether the offender was

trespassed.

          {¶ 7} Murlin testified that Walmart’s electronic database included a number of

incidents involving appellant and Dickson. Those incident reports were entered as

evidence. Notably, the first incident report, relating to a December 8, 2008 event,

included a narrative that appellant “has been trespassed from all Wal-Marts.” Moreover,

Murlin stated that the first incident report, as well as all subsequent reports, indicated that

appellant had been trespassed because the “trespass” field contained the entry “YES.”

Murlin, however, was unable to obtain the actual letter read to or signed by appellant as it

was no longer retained by Walmart, but he did provide a blank copy of the standard form

letter.

          {¶ 8} In addition to Murlin’s testimony, the state called appellant’s co-perpetrator,

Dickson, as a witness. As to the issue of trespass, Dickson testified that he had been

trespassed from Walmart previously, and that he knew he was not allowed on Walmart’s

property. Dickson admitted, though, that he did not think to tell appellant that he was not

allowed on the property.

          {¶ 9} Following the presentation of the state’s case, appellant moved for an

acquittal pursuant to Crim.R. 29, which the trial court denied. Appellant then rested

without calling any witnesses. The matter was submitted to the jury, and after a few




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hours of deliberation, the jury returned a verdict of guilty as to both counts. The trial

court proceeded immediately to sentencing, and ordered appellant to serve eight years in

prison on each count, with the terms to be served concurrently.

                                 B. Assignments of Error

       {¶ 10} Appellant has timely appealed his conviction, raising three assignments of

error for our review:

               1. The trial court erred in denying Appellant’s Rule 29 Motion for

       Acquittal at the completion of the state’s case in chief.

               2. Appellant received ineffective assistance of counsel in violation

       of his rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, §10 of the Constitution of the State of

       Ohio.

               3. Appellant’s conviction was against the manifest weight of the

       evidence presented at trial.

                                        II. Analysis

       {¶ 11} We will begin by addressing appellant’s second assignment of error.

                                 A. Ineffective Assistance

       {¶ 12} To demonstrate ineffective assistance of counsel, appellant must satisfy the

two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel’s performance fell

below an objective standard of reasonableness, and a reasonable probability exists that




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but for counsel’s error, the result of the proceedings would have been different. Id. at

687-688, 696. “Judicial scrutiny of counsel’s performance must be highly deferential. *

* * [A] court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance * * *.” State v. Bradley, 42 Ohio St.3d

136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689. In addition,

       [A] court need not determine whether counsel’s performance was deficient

       before examining the prejudice suffered by the defendant as a result of the

       alleged deficiencies. The object of an ineffectiveness claim is not to grade

       counsel’s performance. If it is easier to dispose of an ineffectiveness claim

       on the ground of lack of sufficient prejudice, which we expect will often be

       so, that course should be followed. Id. at 143, quoting Strickland at 697.

       {¶ 13} In his appeal, appellant asserts four ways in which counsel was ineffective.

First, he argues counsel was ineffective for failing to argue further the subject of a motion

in limine at trial prior to Dickson testifying. In his motion in limine, appellant sought to

exclude “all of the crime reports, narrative, photos, supplemental reports, narratives,

videos, timelines, and composite spreadsheet for all incidents other than the October 27

and October 29, 2012 incidents.” Although he does not specify on appeal what portion of

Dickson’s testimony he believes should be excluded, we presume he is referring to

Dickson’s statements regarding their previous escapades at Walmart. Because we find

that the trial court properly allowed Dickson’s testimony, we conclude that appellant’s

first claim of ineffective assistance is without merit.




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       {¶ 14} Evid.R. 404(B) provides, “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Here, the state solicited Dickson’s testimony to prove that appellant had

knowledge of the fact that he was without privilege to enter Walmart’s property.

Alternatively, the state solicited the testimony to show that Dickson was without

privilege to enter Walmart’s property, and that appellant was complicit in Dickson’s

commission of the burglary offenses on October 27 and October 29, 2012. Thus,

Dickson’s testimony was not offered as impermissible character evidence as prohibited

by Evid.R. 404(B). Furthermore, although Dickson’s testimony is prejudicial to

appellant, it was not unfairly so, and we cannot say that the trial court abused its

discretion in determining that the probative value of Dickson’s testimony was not

substantially outweighed by any unfair prejudice from it. See Evid.R. 403(A) (“Although

relevant, evidence is not admissible if its probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”).

Therefore, because Dickson’s testimony was admissible, appellant has failed to establish

that the result of the proceedings would have been different had counsel further argued

the motion in limine at trial.




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       {¶ 15} Second, appellant argues that counsel was ineffective for failing to object

to Dickson’s statement that appellant had been in prison. Specifically, Dickson testified

on direct examination:

       A      When I got out of prison I hooked back up with [appellant].

       Q      And that is when it started?

       A      Yeah.

       Q      So, you – do you remember when you got out of prison?

       A      In 2010, but [appellant] was in prison. When he just got out.

       {¶ 16} Again, we cannot conclude that the result of the proceeding would have

been different had counsel objected to Dickson’s statement. Immediately after cross-

examination, and within four minutes of the offending testimony, the state requested that

Dickson’s testimony be stricken and that a limiting instruction be given. The trial court

agreed, and instructed the jury, “Jurors, during the course of Mr. Dickson’s testimony he

made a statement to the effect that the defendant David Skrepenski was in prison. That

statement is stricken and you are to disregard it completely in all of your deliberations.”

Because the instruction was given, and because a presumption exists that the jury follows

the instructions given to it by the trial court, State v. Murphy, 65 Ohio St.3d 554, 584,

605 N.E.2d 884 (1992), appellant has suffered no prejudice. Therefore, his second basis

for ineffective assistance of counsel is without merit.

       {¶ 17} Next, appellant argues counsel was ineffective for failing to cross-examine

Dickson more thoroughly. Appellant fails, however, to argue what trial counsel should




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have attempted to elicit on cross-examination, or how Dickson’s direct testimony could

have been undermined by more effective cross-examination. Thus, appellant has failed to

meet his burden of demonstrating a reasonable probability that the result of the

proceeding would have been different had counsel more zealously cross-examined

Dickson. Consequently, we find appellant’s third basis for ineffective assistance of

counsel to be meritless.

       {¶ 18} Finally, appellant contends counsel was ineffective for failing to object to

the state’s use of leading questions when eliciting what promises had been made to

Dickson in exchange for his testimony. Even assuming that appellant is correct that the

use of leading questions was inappropriate, appellant has again failed to provide any

argument for how the result of the proceedings would have been different if an objection

had been made. Therefore, appellant’s fourth basis for ineffective assistance of counsel

is without merit.

       {¶ 19} Having found that appellant has not demonstrated a reasonable probability

of any prejudice resulting from trial counsel’s perceived errors, we hold that his claim for

ineffective assistance of counsel must fail. Accordingly, appellant’s second assignment

of error is not well-taken.

                              B. Crim.R. 29 Motion for Acquittal

       {¶ 20} In his first assignment of error, appellant argues that the trial court erred

when it denied his motion for acquittal at the close of the state’s case in chief. We review

the denial of a Crim.R. 29(A) motion for acquittal under the same standard used to




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review a sufficiency of the evidence claim. State v. Barnes, 6th Dist. Wood. No. WD-07-

024, 2008-Ohio-1854, ¶ 10. Under that standard, “[t]he 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.”

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

       {¶ 21} Appellant contends that the state failed to present evidence proving that he

had been forbidden from being on Walmart’s property. In particular, appellant points out

that Murlin was unable to provide the actual letter read to or signed by appellant when he

was allegedly “trespassed.” Further, appellant notes that Murlin admitted that he had no

personal knowledge that appellant was ever read the letter or told that he could no longer

enter Walmart’s property. Thus, appellant concludes that the state failed to submit

evidence on the trespass element of his burglary charges. The state, on the other hand,

argues, inter alia, that evidence existed as to appellant’s status as a trespasser in the form

of the Walmart incident reports and Murlin’s testimony as to the meaning of the fields on

those reports.

       {¶ 22} We agree with the state. The incident reports, when viewed in a light most

favorable to the prosecution, could lead a rational trier of fact to the conclusion that

appellant had indeed been told that he was no longer welcome on Walmart’s property,

and was, in fact, trespassing on October 27 and October 29, 2012. Accordingly, we hold

that the trial court did not err when it denied appellant’s Crim.R. 29 motion. Appellant’s

first assignment of error is not well-taken.




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                                   C. Manifest Weight

       {¶ 23} In his final assignment of error, appellant contends that his conviction is

against the manifest weight of the evidence for the same reasons as stated in his first

assignment of error.

       {¶ 24} Under the standard for reviewing manifest weight claims, we must review

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine “whether 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.” State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997). “The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs heavily against

the conviction.” Id. This is not that exceptional case.

       {¶ 25} Here, although the actual letter provided to appellant at the time he was

first trespassed was never introduced, the evidenced presented to the jury included

Walmart’s incident reports demonstrating that he had been trespassed, Murlin’s

testimony regarding the standard procedure involved in trespassing a person, and

Dickson’s testimony that he and appellant had attempted to steal from Walmart before

and that he, himself, had been trespassed because of his actions. From this evidence, we

cannot say that the jury clearly lost its way and created a manifest miscarriage of justice

when it determined that appellant did not have a privilege to be on Walmart’s property,




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and thus found that appellant’s actions satisfied the trespass element of the burglary

charges. Therefore, we hold that appellant’s conviction is not against the manifest weight

of the evidence.

       {¶ 26} Accordingly, appellant’s third assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 27} For the foregoing reasons, the judgment of the Wood County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See
also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Stephen A. Yarbrough, P. J.                                JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



          This decision is subject to further editing by the Supreme Court of
      Ohio's Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court's web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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