[Cite as State v. Riddick, 2020-Ohio-1117.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                                    No. 108511
                 v.                                 :

BARRY RIDDICK,                                      :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 26, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-632390-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jillian J. Piteo, Assistant Prosecuting
                 Attorney, for appellee.

                 Barry Riddick, pro se.


RAYMOND C. HEADEN, J.:

                   Defendant-appellant           Barry   Riddick   (“Riddick”)   appeals   his

conviction for breaking and entering. For the reasons that follow, we affirm.
Procedural and Substantive History

               On September 11, 2018, Riddick was indicted on one count of

breaking and entering in violation of R.C 2911.13(B) and one count of possessing

criminal tools in violation of R.C. 2923.24(A), both felonies of the fifth degree. These

charges arose from an incident on September 3, 2018, in which Cleveland police

officers responded to Wilkoff & Sons, L.L.C., (“Wilkoff”) a scrap yard located near

East 47th Street and Woodland Avenue in Cleveland, Ohio.

               Brandon Erskine (“Erskine”) is the owner of First Line Defense, a

security company used by Wilkoff. On September 3, 2018, Erskine was working at

Wilkoff and received a call around 2:30 in the afternoon from another guard on duty

who reported hearing talking and noises coming from the front of the property.

When Erskine responded to that area, he observed metal being thrown over the

fence from Wilkoff property in the area of a large hole in the fence. He then observed

two men run from the property into the woods nearby. At trial, Erskine identified

Riddick as one of the men he observed running away from the property. Security

was unable to apprehend either man at that point.

               Later in the afternoon on September 3, 2018, Erskine received

another call. Erskine responded to the area of the call and observed three men

throwing scrap outside of Wilkoff’s fence. When the men saw security approaching,

they fled. Two of the men ran into the woods, and Riddick attempted to run away

but got stuck between trailers just outside of Wilkoff property, where he was

ultimately apprehended. A struggle ensued between Riddick and the security
officers. Erskine observed Riddick reach for something in his pocket and used

pepper spray. Ultimately, security handcuffed Riddick and called police and EMS

to the scene.

                On November 9, 2018, Riddick filed a motion for a hearing on his

desire to represent himself at trial. Following a hearing on November 14, 2018, the

court granted Riddick’s motion and appointed standby counsel. On November 14,

2018, the state filed a motion to admit evidence of other acts pursuant to

Evid.R. 404(B) regarding five previous incidents in which Riddick had been

convicted of breaking and entering onto the same property.

                On February 27, 2019, a jury trial began. The state called Cleveland

police officer Patrick Valencic (“Officer Valencic”), who testified that he responded

to Wilkoff on September 3, 2018, and observed a handcuffed Riddick being treated

for pepper spray by EMS. Officer Valencic testified that he and his partner went to

the hospital with Riddick and that a piece of scrap metal, introduced into evidence

by the state, was found on Riddick during a pat down at the hospital. The state also

called Denver Staller (“Staller”), the vice president of Wilkoff. Staller testified as to

the nature and boundaries of Wilkoff’s property, as well as the company’s ongoing

problem with thieves breaking into the property through holes in the fence

bordering the property. Staller also testified that he had personally caught Riddick

in the act of stealing from Wilkoff on numerous prior occasions. The state also called

Erskine as a witness, who described the events of September 3, 2018, that led to

Riddick’s apprehension.
              Riddick testified on his own behalf. He stated on direct examination

that he had been on Wilkoff property to steal prior to his apprehension on

September 3, 2018. On cross-examination, the state questioned him about his

history of stealing from Wilkoff, including his prior convictions.

              On February 28, 2019, the jury returned a verdict of guilty of breaking

and entering in violation of R.C. 2911.13(B). The jury was unable to reach a

unanimous decision as to possession of criminal tools, and the court declared a

mistrial as to that offense. The state elected to proceed on the remaining count of

breaking and entering. The court referred Riddick to the probation department for

the preparation of a presentence investigation report.

              On April 2, 2019, the court held a sentencing hearing. The court

heard from the prosecutor, Staller, and Riddick. The court ultimately sentenced

Riddick to 12 months in prison and three years of postrelease control. The court also

ordered Riddick to pay court costs.

              Riddick appeals, presenting five assignments of error for our review.

Law and Analysis

I. Sufficiency of the Evidence

              In his first assignment of error, Riddick argues that the trial court

erred in denying his Crim.R. 29 motion for acquittal because his conviction was not

supported by sufficient evidence. A Crim.R. 29 motion for acquittal tests the

sufficiency of the evidence. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-

578, ¶ 13. Crim.R. 29 mandates that the trial court issue a judgment of acquittal
where the state’s evidence is insufficient to sustain a conviction for an offense. State

v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶ 21. Accordingly, we

review a trial court’s denial of a defendant’s motion for acquittal using the same

standard we apply when reviewing a sufficiency of the evidence claim. Id. at ¶ 21-

23.

               The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997).

               Riddick argues that there was insufficient evidence to support his

conviction for breaking and entering. R.C. 2911.13(B) provides that “[n]o person

shall trespass on the land or premises of another, with purpose to commit a felony.”

In support of this argument, Riddick asserts that there was no evidence presented

that he was actually on Wilkoff property or that he had the purpose to commit a

felony.

               With respect to whether or not Riddick was on Wilkoff property, he

argues that there is no video evidence, circumstantial evidence, or other testimony

that placed him on the property. A review of the record shows that this argument is

meritless. Erskine testified that on two separate occasions on September 3, 2018,
he observed metal being thrown over the fence, and that he subsequently observed

Riddick attempt to flee from security. The second time Riddick attempted to flee,

he was apprehended just outside of Wilkoff property.           Staller, Wilkoff’s vice

president, testified that the company has a chronic theft problem. The fence

surrounding the property has several holes in it as a result of constant attempts by

thieves to steal scrap. Staller testified that he had personally encountered Riddick

on the property numerous times prior to September 3, 2018. Staller also testified

that based on the unique nature of the scrap Wilkoff recycles and Wilkoff’s

somewhat isolated location in an industrial area, an individual who was not

employed by Wilkoff would generally have no purpose to be on or near Wilkoff

property. Further, Riddick himself testified that he had previously been on Wilkoff

property to steal scrap metal. All of this is sufficient to conclude that Riddick

trespassed on Wilkoff property on September 3, 2018.

               With respect to whether Riddick trespassed with the purpose to

commit a felony, Riddick argues that the state failed to establish that he intended to

steal any amount of scrap, let alone the threshold amount required for a felony theft

offense. The purpose to commit a felony may be proved by direct or circumstantial

evidence. State v. Roseberry, 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d

233, ¶ 45 (8th Dist.). Here, the state presented evidence that Wilkoff dealt with

specialized materials and regularly suffered thousands of dollars in losses as a result

of individuals breaking into the property and stealing materials. Evidence was also

presented, in the form of Riddick’s own testimony, that he had previously trespassed
on Wilkoff property with the purpose to commit theft. At trial and on appeal,

Riddick was adamant that he did not have the purpose or ability to steal more than

$1,000 of material from Wilkoff.

              Ohio courts have held that when a person is apprehended following a

trespass, it is reasonable to infer that he did “‘so with the intent to commit a theft

offense, in the absence of circumstances giving rise to a different inference.’” State

v. Powers, 8th Dist. Cuyahoga No. 86365, 2006-Ohio-2458, ¶ 23, quoting State v.

Miller, 8th Dist. Cuyahoga No. 79975, 2002-Ohio-1416. Further, a jury is not

required to accept a competing inference of innocence if it may infer guilt, beyond a

reasonable doubt, from the same circumstances. State v. Levingston, 106 Ohio

App.3d 433, 437, 666 N.E.2d 312 (2d Dist.1995). Following a thorough review of

the record, we conclude that there was sufficient evidence presented at trial that

Riddick had the purpose to commit felony theft when he trespassed on Wilkoff

property. Therefore, Riddick’s first assignment of error is overruled.

II. Manifest Weight of the Evidence

              In Riddick’s second assignment of error, he argues that his conviction

was against the manifest weight of the evidence.         Unlike a challenge to the

sufficiency of evidence, a manifest weight challenge attacks the quality of the

evidence and questions whether the state met its burden of persuasion at trial. State

v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 25, citing Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 13. When reviewing a manifest weight

challenge, a court reviews the entire record, weighing all evidence and reasonable
inferences and considering the credibility of the witnesses, to determine whether the

trier of fact clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541.

                In support of this assignment of error, Riddick argues that the state

relied on improper other acts evidence — specifically, his prior convictions for

breaking and entering against the same victim — and that without this, there was no

evidence supporting his conviction. We will address Riddick’s arguments regarding

the admission of other acts evidence in our analysis of Riddick’s third, fourth, and

fifth assignments of error.        Because Riddick does not make an independent

argument that his conviction was against the manifest weight of the evidence, his

second assignment of error is overruled.1

III. Other Acts Evidence

                In Riddick’s remaining assignments of error, he challenges the

admission of other acts evidence pursuant to Evid.R. 404(B). Riddick’s third

assignment of error asserts that the trial court erred by failing to rule on the state’s

pretrial motion to admit other acts evidence. Riddick’s fourth assignment of error

asserts that the trial court erred by commenting on, and allowing the state to

introduce other acts evidence. Riddick’s fifth assignment of error asserts that the



       1 Pursuant to App.R. 12(A)(2), the court “may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on which
the assignment of error is based or fails to argue the assignment separately in the brief,
as required under App.R. 16(A).”
trial court erred in permitting testimony regarding other acts and failing to give his

suggested limiting instruction to the jury. We will address these assignments of

error together.

               Riddick’s first argument with respect to the introduction of other acts

evidence is that the trial court erred by failing to rule on the motion prior to the start

of the trial. As an initial matter, this argument is contradicted by the record. On

January 14, 2019, at the final pretrial hearing, the court announced that the state’s

motion to admit other acts evidence was granted.            Moreover, Evid.R. 404(B)

provides:

      In criminal cases, the proponent of evidence to be offered under this
      rule shall provide reasonable notice in advance of trial, or during trial
      if the court excuses pretrial notice on good cause shown, of the general
      nature of any such evidence it intends to introduce at trial.

The rule required that the state provide reasonable notice to Riddick of the general

nature of any Evid.R. 404(B) evidence it intended to introduce at trial. The state

complied with this rule by filing a pretrial motion. Before granting the motion, the

trial court stated that its ruling on the admission of Evid.R. 404(B) evidence would

be “an advisory ruling only.” The court went on to explain that its ultimate ruling

on the admission of Evid.R. 404(B) evidence would occur whenever the state

introduced Evid.R. 404(B) evidence at trial and the court would rule on any

objection by Riddick at that time. Therefore, Riddick’s third assignment of error is

overruled.
               Riddick’s next argument with respect to the introduction of

Evid.R. 404(B) evidence is that the trial court erred by allowing the state to

introduce this evidence at trial because it did not satisfy the three-part test set forth

in State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278. In

Williams, the Ohio Supreme Court laid out the test trial courts use to determine the

admissibility of Evid.R. 404(B) evidence. First, the court must consider whether the

evidence is “relevant to making any fact that is of consequence to the determination

of the action more or less probable than it would be without the evidence.” Id. at

¶ 20. Second, the court must consider whether the evidence is presented to prove

the character of the accused in order to show activity in conformity therewith or

whether the evidence is presented for a legitimate purpose stated in Evid.R. 404(B).

Id. Finally, the court must consider whether the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice. Id.

               The admission of evidence “lies within the broad discretion of the trial

court, and a reviewing court should not disturb evidentiary decisions in the absence

of an abuse of discretion that has created material prejudice.” State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio

St.3d 49, 64, 2001-Ohio-1290, 752 N.E.2d 904. Therefore, our review is limited to

determining whether the trial court’s admission of evidence was unreasonable,

arbitrary, or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23, 759 N.E.2d 1240

(2002).
              Here, each step of the Williams test was satisfied. Riddick argues that

the other acts evidence was irrelevant without providing any reasoning.           We

disagree. The fact that Riddick has numerous convictions for breaking and entering

against the same victim was relevant to show a common scheme or plan relevant to

the September 3, 2018 breaking and entering offense. The evidence helps to

establish that Riddick had a common scheme in the form of stealing scrap metal

from Wilkoff by entering a hole in the fence and throwing metal over the fence.

              Riddick also argues that the evidence was introduced in order to

prove his character and show that he was acting in conformity with that character,

again without providing any reasoning. Contrary to Riddick’s argument, there is

nothing in the record indicating that the evidence was introduced for this purpose,

rather than the purpose of showing a common scheme or plan.

              Finally, Riddick argues that the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice. We disagree. The other

acts evidence was highly probative because it served to establish that Riddick had a

common scheme or plan to steal from a particular victim using a particular method.

Further, to the extent that it was prejudicial, it was no more prejudicial than

Riddick’s own testimony that he had stolen from Wilkoff in the past, and this

prejudice does not substantially outweigh its probative value. Therefore, Riddick’s

fourth assignment of error is overruled.

              Riddick’s final argument with respect to Evid.R. 404(B) evidence is

that the trial court erred when it failed to give the limiting instruction Riddick
suggested. A trial court’s decision to grant or deny a requested jury instruction is

reviewed under an abuse of discretion standard. State v. Betliskey, 8th Dist.

Cuyahoga No. 101330, 2015-Ohio-1821, ¶ 17, citing State v. Williams, 8th Dist.

Cuyahoga No. 90845, 2009-Ohio-2026, ¶ 50. A trial court abuses its discretion

when it makes a decision that is unreasonable, unconscionable, or arbitrary. Id.,

citing State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

              Here, the Evid.R. 404(B) evidence was clearly introduced in order to

show that Riddick had a common scheme or plan. There is nothing in the record

indicating that the evidence of his prior convictions was being used to show his

character and that he was acting in conformity with that character on September 3,

2018. Further, before the evidence of his prior convictions was admitted at trial,

Riddick testified on direct examination that he had been on Wilkoff property in

order to commit theft prior to the September 3, 2018 incident. Therefore, the danger

of unfair prejudice from the Evid.R. 404(B) evidence was not substantially

outweighed by its probative value, and we cannot conclude that the trial court’s

failure to give a limiting instruction was an abuse of discretion. Riddick’s fifth

assignment of error is overruled.

              Judgment 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
convictions 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.



RAYMOND C. HEADEN, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
