[Cite as State v. Tolbert, 2019-Ohio-2557.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                  :           APPEAL NO. C-170711
                                                            TRIAL NO. B-1703355
        Plaintiff-Appellee,                     :

  vs.                                           :                O P I N I O N.

LUTHER TOLBERT,                                 :

      Defendant-Appellant.                      :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is:                Affirmed in Part, Vacated in Part, and Cause
                                          Remanded

Date of Judgment Entry on Appeal: June 26, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela Stagnaro, for Defendant-Appellant.
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M OCK , Presiding Judge.

       {¶1}    While defendant-appellant Luther Tolbert was properly convicted of

aggravated burglary, we conclude that the trial court improperly ordered him to stay

away from the victims’ family and that it failed to properly document the merger of

the second count of the indictment with the first. For that reason, we affirm the

judgment of the trial court in part, vacate it in part, and remand the cause for further

proceedings.

                                  An Argument Escalates

       {¶2}    Tolbert arrived at the home of Beverly and Wesley Ward on June 5,

2017. Tolbert had a child with one of the Wards’ granddaughters, Myshel Ward, and

he had driven to their residence to pick up his child. Because of previous incidents

involving Tolbert and the Wards, Tolbert had been told repeatedly that he was not

welcome in the home. When Tolbert arrived, Myshel’s aunt, Nicole Ward (“Nicole”),

was bringing in groceries. According to Nicole’s testimony, she spoke with Tolbert

briefly and told him that she would go get Myshel. When Nicole told Tolbert that he

had to come back later because Myshel was sleeping, Tolbert became angry and

stormed back to his car complaining that “she gon [sic] make me start.”

       {¶3}    Nicole continued to bring in groceries, and Tolbert entered the home

while Nicole was in the kitchen. Nicole testified that he was searching the house

asking where Myshel was. Nicole confronted Tolbert and told him he had to leave,

but Tolbert was acting “sporadically” and would not listen. Tolbert eventually made

his way to the back bedroom where Myshel was sleeping and began to hit her,

according to Nicole. Nicole testified that she heard one of the children yelling for

Beverly and Wesley Ward, telling them that Tolbert was hitting Myshel and that he

had a gun. An objection to that testimony was sustained. Nicole testified that she

did not see Tolbert with a gun.

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       {¶4}     Beverly Ward testified that she awoke when her great-granddaughter

pounded on the wall and yelled that Tolbert was in the home, hitting Myshel, and

that he had a gun. Mrs. Ward testified that she confronted Tolbert and told him to

leave. She then said that he “started to walk out the door, he turned around and

came back in the door and he pulled the gun on me.” According to Mrs. Ward, it was

a small, silver handgun and he pointed it in her face. The confrontation occurred on

the front porch of the home, which the Wards had converted into a computer room

and living area in the 1990s. The room had been decorated with bookcases, seating,

and computer equipment, and the Wards considered it part of their home, even

though the door to the computer room from the outside did not lock. Mr. Ward, who

had been standing behind her, then pulled Mrs. Ward into the living room, and

Tolbert left.

       {¶5}     Wesley Ward testified that after the couple had been awakened by

their great-grandchildren, he confronted Tolbert and asked him to leave.            But

because Tolbert would not listen to him, he left Mrs. Ward to address him and Mr.

Ward went onto the front porch. He testified that Mrs. Ward was yelling at Tolbert

that he needed to have someone else come pick up the child and that he was not

allowed in the home. Mr. Ward testified that Tolbert left through the porch area as

Mrs. Ward continued to yell at him. Tolbert then came back on the porch, yelling

“say it one more time. Say it one more time.”      Mr. Ward said that, at that point,

Tolbert produced a small, silver handgun and pointed it in his wife’s face. Mr. Ward

then pulled Mrs. Ward into the living room, and Tolbert left.

       {¶6}     While Tolbert was still at the residence, one of the residents called

911. The recording of the 911 call was played during the trial.

       {¶7}     Tolbert’s version of events differed significantly from the testimony of

the Ward family. Tolbert testified that he was at the home to pick up his son. He


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said that when he arrived he spoke with Nicole about picking up the child. He then

followed her to the house. When he reached the door, he picked up one of the

children and discovered that the child had a dirty diaper. He said that he offered to

change the child, and entered the home with Nicole. He then said that he went back

to find Myshel. When he could not get her to wake up, he started to move toward

that door. It was at that time, according to his testimony, that he was confronted by

Mr. and Mrs. Ward. He left the home and approached his vehicle. When he reached

the vehicle, he said that he was threatened by a member of the Ward family. He said

that he then retrieved a firearm from the vehicle, but said that he never brandished it

or pointed it at anyone. He testified that he then got into his vehicle and left.

       {¶8}    Sergeant Eric Catron from the Springfield Township Police

Department also testified at trial. He said that he arrived at the scene after Tolbert

had left but spoke to him on the phone when Tolbert called Myshel. During the

course of his investigation, Sergeant Catron also accessed the recordings of phone

calls that Tolbert made while he was being held at the Hamilton County Justice

Center. Sergeant Catron testified that only the first few calls were pertinent to his

investigation. The calls were between Tolbert and Myshel. Sergeant Catron had the

calls copied to a disk and transcribed. Both the recordings and transcriptions were

admitted into evidence and reviewed by the trial court during the course of the trial.

During his testimony, Sergeant Catron summarized the content of the calls by stating

that “he admits in various different ways to committing the offense several times. He

also denies it, and then he gives several different reasons why he did it.”

       {¶9}    Tolbert was indicted on two counts of aggravated burglary. The first

count alleged a violation of R.C. 2911.11(A)(2) and carried one- and three-year gun

specifications. The second count alleged a violation of R.C. 2911.11(A)(1). Tolbert

waived his right to a jury trial and the matter was tried to the court.             At the


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conclusion of the trial, the trial court found him guilty of both counts and both

specifications. The trial court sentenced him to three years in prison on count one,

and three years on the second gun specification. During the sentencing hearing, the

trial court told Tolbert that the second count would be merged with the first count,

but that decision was not memorialized in the judgment entry. The trial court also

ordered Tolbert to have no contact with the Ward family. In four assignments of

error, Tolbert now appeals.

                              The Admission of Evidence

       {¶10}   In his first assignment of error, Tolbert claims that the trial court

erred when it admitted a number of statements into evidence. He first claims that

the trial court improperly admitted the evidence of his jail calls as the calls had not

been authenticated, contained hearsay, and violated his right of confrontation as

announced in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004). He also argues that the statements made by the Wards’ great-granddaughter

that he was hitting Myshel and that he had a gun were improperly admitted.

       {¶11}   Tolbert concedes that he did not object to the evidence that he now

claims was improperly admitted and considered.          The failure to object to the

admission of evidence at trial waives all but plain error on appeal. See Crim.R.

30(A); State v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 15 (1st Dist.). “Notice of

plain error * * * is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. To prevail

on a claim that the trial court committed plain error, an appellant must demonstrate

that an error constitutes an obvious defect in the trial proceedings and demonstrate

that the error affected the outcome of the trial. State v. Gordon, 152 Ohio St.3d 528,

2018-Ohio-259, 98 N.E.3d 251, ¶ 23.

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       {¶12}    Beginning first with the admission of the jail calls, the record reflects

that defense counsel stipulated to the admission of the calls in their entirety. During

the trial, the following exchange took place:

                [Defense Counsel]: And did we want to address on the record

       while we’re up here, I know that there’s some audio recordings of some

       calls from the jail.

                I have spoken to my client; I believe they’ve been transcribed.

       I believe the transcription pretty accurately reflects what’s in the audio

       calls, and I don’t have a problem [stipulating] to those calls.

                It’s my understanding that Your Honor may have listened to

       them and looked at a transcript, so we don’t have to play them in open

       court.

                [The Court]: Right. I did both.

                [Defense Counsel]: And I’ve spoken to my client about the fact

       that I don’t have a problem allowing that to happen as opposed to

       having them done in open court. They’re a little hard to hear.

Thus, counsel was aware not only aware of the nature of the evidence, but also that

the trial court had already read the transcript and listened to the calls. If counsel had

any objection to all or part of the recordings, this was the time to raise it. But the

record makes clear, at that point, that the parties were in agreement that the

evidence would be admitted. And prior to the admission of the calls, counsel for

Tolbert had discussed the new evidence with the trial court, saying

                There is some new discovery that I did get this morning. It’s

       paraphrased by the officer, but I’d like to - - it’s apparently jailhouse

       calls.




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                I think some of it is helpful. It delves into my client’s concept

       of what happened that day, and the prosecutor probably feel’s it’s

       helpful, but I’d like to listen to the actual call.

Counsel did not object when the recordings and transcripts were offered for

admission by the state.

       {¶13}    Defense counsel made the decision not to object to the evidence,

believing that portions of it were helpful to Tolbert’s case. Nothing in the record

contradicts this conclusion. Therefore, it was not plain error to admit the transcripts

and recordings into evidence.

       {¶14}    Tolbert’s next argument presents a different question. Tolbert claims

that the trial court erred when it allowed the testimony of Mr. and Mrs. Ward that

one of their great-grandchildren had shouted that Tolbert was hitting Myshel and

that he had a gun. But Tolbert has failed to establish that the trial court relied upon

the statement when rendering its decision. A judge in a bench trial is presumed not

to have considered improper evidence in reaching a verdict. State v. Arnold, 147

Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. And this presumption stands

“unless it affirmatively appears to the contrary.” Id., quoting State v. Post, 32 Ohio

St.3d 380, 384, 513 N.E.2d 754 (1987). As the Sixth Appellate District has noted,

absent an affirmative showing in the record rebutting the presumption that the trial

court considered only relevant, material, and competent evidence in arriving at its

judgment, a ruling on admissibility of evidence in a bench trial presents no issue

reviewable as plain error. State v. Williams, 2013-Ohio-726, 987 N.E.2d 322, ¶ 31

(6th Dist.), citing In re B.P.K., 10th Dist. Franklin No. 12AP-343, 2012-Ohio-6166, ¶

16.

       {¶15}    There is nothing that demonstrates that the trial court considered any

improper evidence. In fact, the record demonstrates to the contrary. Testimony


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regarding what the great-grandchild may have shouted through the Wards’ closed

bedroom door was first introduced in the testimony of Nicole Ward. When she said

that the great-grandchildren had yelled that Tolbert was hitting Myshel and that he

had a gun, defense counsel objected, and the trial court sustained the objection. And

at no point during either the trial or sentencing did the trial court reference the

statement, Tolbert hitting Myshel, or Tolbert threatening Myshel with the gun.

       {¶16}   Tolbert claims that this was the only evidence that he had a weapon in

the house; but that argument is premised on the assertion that that porch area was

not part of the house for the purposes of the aggravated-burglary statute. R.C.

2911.11(A)(2) states that

       No person, by force, stealth, or deception, shall 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, if * * * [t]he offender has a deadly

       weapon or dangerous ordnance on or about the offender's person or

       under the offender's control.

An “occupied structure” is defined as

       any house, building, outbuilding, watercraft, aircraft, railroad car,

       truck, trailer, tent, or other structure, vehicle, or shelter, or any

       portion thereof, * * * [that] * * * is maintained as a permanent or

       temporary dwelling, even though it is temporarily unoccupied and

       whether or not any person is actually present.

(Emphasis added.) R.C. 2909.01(C)(1).




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       {¶17}   Tolbert argues that the porch “was a sitting area outside the house

that just happened to be enclosed.” But, as the state points out, the pictures of the

area are such that the factfinder could conclude that the area was part of the

residence. The area had been remodeled in the 1990s, it was attached to the main

portion of the home, it had been decorated and furnished, and the residents spent

time in the area during the warmer months, which would include the month of June

when this offense occurred. There was ample evidence that the front porch area was

part of the residence; i.e., a portion of a house that is maintained as a permanent

dwelling.

       {¶18}   Since there was evidence that Tolbert was inside the “residence” with

the handgun other than the testimony about what the great-grandchildren had said,

Tolbert has pointed to nothing in the record to indicate that the trial court

considered the statement when making its determination of his guilt. We overrule

his first assignment of error.

                          Ineffective Assistance of Counsel

       {¶19}   In his second assignment of error, Tolbert claims that his trial counsel

was ineffective and that, as a result, he was denied a fair trial. To prevail on an

ineffective-assistance-of-counsel claim, Tolbert must show that trial counsel's

performance fell below an objective standard of reasonableness, and that he was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). In order to demonstrate prejudice, Tolbert must

establish that, but for counsel's errors, there is a reasonable probability that the

result of trial would have been different. State v. Burke, 97 Ohio St.3d 55, 2002-

Ohio-5310, 776 N.E.2d 79, ¶ 6. The failure to make an adequate showing on either

prong is fatal to an ineffective-assistance-of-counsel claim. See Strickland at 697.



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       {¶20}   First, Tolbert claims that counsel was ineffective for failing to object

to the testimony presented in the first assignment of error. But, as set forth above,

trial counsel appears to have made the decision to allow the recorded phone calls

into evidence as part of his trial strategy. Refraining from objecting to otherwise

objectionable evidence may, depending upon the circumstances, be sound trial

strategy. See State v. Proffitt, 12th Dist. Butler No. CA2016-07-134, 2017-Ohio-1236,

¶ 32. As for the failure to object to the claimed hearsay statements of the great-

grandchild, Tolbert cannot show that the trial court considered the statements and,

as a result, cannot demonstrate that he has suffered any prejudice as a result of the

testimony.

       {¶21}   Tolbert next claims that trial counsel was ineffective for allowing

Sergeant Catron to summarize the contents of the phone calls.        He argues that the

summary “was not accurate”; but does not explain how it was inaccurate. Even if

this was correct—a fact that Tolbert has failed to establish—the record clearly

demonstrates that the trial court listened to the recordings and reviewed the

transcript on its own. Tolbert was not prejudiced by any inaccuracy in the summary

done by Sergeant Catron.

       {¶22}   Tolbert also argues that counsel was ineffective for failing to object to

the imposition of a no-contact order as a portion of his sentence. Since we will

address that issue in Tolbert’s final assignment of error, we need not address it here.

See App.R. 12(A)(1)(c). We overrule Tolbert’s second assignment of error.

                            Sufficiency/Weight of Evidence

       {¶23}   In his third assignment of error, Tolbert claims that his conviction

was based upon insufficient evidence and was contrary to the manifest weight of the

evidence. In a challenge to the sufficiency of the evidence, the question is whether,

after viewing the evidence in the light most favorable to the state, any rational trier of

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fact could have found all the essential elements of the crime proved beyond a

reasonable doubt.     State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. When considering a challenge to the weight of the

evidence, the court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485

N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.

       {¶24}    In order for the trial court to find Tolbert guilty of aggravated

burglary, in violation of R.C. 2911.11(A)(2), the state had to prove that Tolbert by

force, stealth, or deception, trespassed in an occupied structure or in a separately

secured or separately occupied portion of an occupied structure, when another

person was present, with purpose to commit in the structure any criminal offense, if

he had a deadly weapon on or about his person or under his control. Tolbert’s

argument hinges upon finding one version of the events more credible than another

version. Therefore, the main thrust of his argument here is the manifest weight—

rather than the sufficiency—of the evidence. We will address each of his arguments

in turn.

       {¶25}    Tolbert first claims that he did not enter the home by means of “force,

stealth, or deception.” He argues that he simply followed Nicole Ward into the

home. It is unclear how precisely Tolbert entered the home. He followed Nicole

Ward, but it is unclear if he opened a closed door or if he walked through the open

door. Either way, the statutory element had been met in this case.

       {¶26}    It has long been established in Ohio that the force element of an

aggravated-burglary charge can be accomplished through the opening of a closed but


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unlocked door.     See State v. Lane, 50 Ohio App.2d 41, 361 N.E.2d 535 (10th

Dist.1976). Therefore, had Tolbert opened the closed door, this action would have

been sufficient to meet the definition of force.

       {¶27}   Alternately, if he walked in the open door, the record supports the

conclusion that he entered by stealth. Nicole Ward testified that Tolbert entered the

home while she was in the kitchen putting away groceries. She said:

       A.      Then I went back in and continued to put the groceries up,

       because I had gone grocery shopping just before I had came back

       home.

               And like seconds later, all of a sudden he’s coming in the

       home, he’s talking about where is Myshel at? Where is Myshel?

       Q.      Now where in the home is he at that point?

       A.      He’s in our kitchen at this time, and I’m putting groceries

       away, like I never once told you to come in or anything.

From this evidence, the trial court could properly conclude that the element was met.

       {¶28}   Tolbert next argues that the state failed to prove that he trespassed

with the intent to commit a criminal offense, claiming that he entered the property

only with the intent to pick up his son. But the intent to commit a criminal offense

need not be formed prior to entry of the premises, but may be formed any time

during the trespass. See State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889

N.E.2d 995, ¶ 33. Once inside the home, he brandished a weapon and threatened

Mrs. Ward. While he may not have had this intention when he entered the premises,

the record supports the conclusion that once Myshel told him to come back later, his

intent changed.

       {¶29}   Tolbert next argues that he did not trespass in an occupied structure,

claiming that he was only on the front porch when he had the handgun. He argues


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that “[i]t was a sitting area outside the house that just happened to be enclosed.”

But, as we have previously discussed, the record supports the conclusion that the

porch was part of the residence for the purposes of R.C. 2911.11(A)(2).

       {¶30}    Finally, Tolbert argues that there was no evidence that that he had

inflicted or attempted to inflict physical harm on Mrs. Ward. But, as we determine in

the fourth assignment of error, the trial court merged the physical-harm aggravated-

burglary count during the sentencing hearing. Therefore, Tolbert was not harmed by

any error in this regard. See State v. Coleman, 2016-Ohio-7335, 72 N.E.3d 1086, ¶

66 (6th Dist.) (error involving evidence relating to merged counts is harmless when

the evidence goes only to the merged counts).

       {¶31}    Tolbert also argues that the trial court improperly convicted him of

the three-year gun specification “because he did not display, brandish, indicate

possession of, or use the gun to facilitate the offense.” This is only true if you believe

his version of events and discredit the version of events testified to by Mr. and Mrs.

Ward. We overrule Tolbert’s third assignment of error.

                                       Sentencing

       {¶32}    In his final assignment of error, Tolbert first claims that the trial court

improperly issued a no-contact order against him.             A no-contact order is a

community-control sanction. State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-

2089, 35 N.E.3d 173, ¶ 17. “[W]hen a prison term and community control are

possible sentences for a particular felony offense, absent an express exception, the

court must impose either a prison term or a community-control sanction or

sanctions.” Id. at ¶ 31. Therefore, the trial court did not have the authority to impose

both a prison sentence and a no-contact order. See id. at ¶ 32. The state concedes

error in this regard.



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          {¶33}   Tolbert also argues that the trial court erred when it failed to merge

count two with count one. A review of the record indicates that the trial court did

order count two to be merged with count one, but the entry incorrectly reflects that

the trial court had ordered the sentences to be run concurrently. The state also

concedes error in this regard. We therefore sustain Tolbert’s fourth assignment of

error.

                                         Conclusion

          {¶34}   Having considered each of Tolbert’s assignments of error, we affirm

the judgment of the trial court in part, vacate the no-contact order, and remand the

matter to the trial court with instructions to correct its entry to reflect that count two

of the indictment was merged with count one. When correcting the entry, the trial

court should also remove reference to the no-contact order that we have vacated

herein.

                        Judgment affirmed in part, vacated in part, and cause remanded.

ZAYAS and BERGERON, JJ., concur.

Please note:
          The court has recorded its own entry on the date of the release of this opinion.




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