[Cite as State v. Vidal, 2016-Ohio-8115.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2016-P-0018
        - vs -                                  :

EMILIO O. VIDAL,                                :

                 Defendant-Appellant.           :



Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
0270 C.

Judgment: Modify and affirm as modified.


Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant Prosecutor,
and Kristina Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH
44266 (For Plaintiff-Appellee).

Shubhra N. Agarwal, 3766 Fishcreek Road, #289, Stow, OH 44224 (For Defendant-
Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Emilio O. Vidal, appeals his conviction and sentence

for Burglary and Possessing Criminal Tools, following a bench trial in the Portage

County Court of Common Pleas. The issues to be determined by this court are whether

Burglary is a lesser-included offense of Aggravated Burglary; whether Burglary and

Possessing Criminal Tools are supported by the weight and sufficiency of the evidence

when a defendant entered a home uninvited, dressed in black, and carrying pepper
spray and zip ties; and whether a defendant may be sentenced to serve a prison term

as well as be ordered to have no contact with the victim. For the following reasons, we

modify and affirm as modified the judgment of the court below.

      {¶2}   On April 16, 2015, the Portage County Grand Jury issued an Indictment,

charging Vidal with Aggravated Burglary, a felony of the first degree, in violation of R.C.

2911.11(A)(2) and (B), with a firearm specification pursuant to R.C. 2929.14 and

2941.145; and Possessing Criminal Tools, a felony of the fifth degree, in violation of

R.C. 2923.24(A) and (C).

      {¶3}   A trial before the judge was held on June 16, 2015.            The following

pertinent testimony and evidence were presented.

      {¶4}   Marwan Mohammed Alansari was at his home in Kent on April 13, 2015,

when he saw two men pull up in a car and walk to the side of his house. He went to the

side door where he saw one man in the house and the other one “just stepped into [the]

house.”   Alansari asked what they wanted and one man said “I thought you were

James.” The two men exited and Alansari observed them walk away toward Lincoln

Street. Both men were wearing hoodies and caps which covered their head and ears.

      {¶5}   Alansari called 911 and, shortly thereafter, police arrived and took him to

Lincoln Street, where two men had been arrested. He identified them as the men inside

of his house. When asked if he saw one of the individuals who entered his home in the

courtroom, Alansari said he was “not sure.”

      {¶6}   Sergeant Jason Short of the Kent Police Department responded to the call

of a burglary in progress at around 7:30 a.m. on April 13 and was advised that the

suspects were headed toward Lincoln Street. Within a few minutes, he and another




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officer, Drake Oldham, located Vidal and the other suspect, Evan Ecklund, on Lincoln

Street, about a block and a half away from Alansari’s home. They matched Alansari’s

description of the suspects. Vidal was wearing black pants, a black hooded sweatshirt,

a black ski mask, black and blue gloves “like a worker’s glove,” and a blue bandana

around his neck. The men did not try to flee from the police. Short discovered that

Vidal had pepper spray in his pocket and zip ties and goggles in the front of his

sweatshirt. The officers found a gun in Ecklund’s pocket.

         {¶7}     Officer Oldham and Sergeant Short were only a minute or two from the

area of the burglary when they received the call and located the suspects. Oldham

opined that the clothing they were wearing, including the hoodies, caps, and gloves, did

not seem “appropriate for the weather.” In Ecklund’s backpack, there were various

items, including a wrench with tape wrapped around the handle “that can be used as a

club.”

         {¶8}     Officer Michael Fleming responded to Alansari’s home and noted that he

seemed “nervous” and “confused.” He was taken to identify the defendants, “got really

excited and said, yeah, that’s them. That’s them.” Fleming explained that there was no

photo array and that the men were wearing their black hoodies at the time of the

identification.

         {¶9}     At the close of the State’s evidence, Vidal moved for acquittal pursuant to

Crim.R. 29. The court denied this motion.

         {¶10} On June 19 and June 26, 2015, Vidal filed Briefs on Motion for Acquittal.

The State filed a Response on June 26, 2015.




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         {¶11} The court issued a Journal Entry on July 24, 2015, in which it found Vidal

guilty of the lesser-included offense of Burglary, a felony of the second degree, in

violation of R.C. 2911.12(A)(2), and Possessing Criminal Tools, as charged in the

indictment, and not guilty of the firearm specification.

         {¶12} A sentencing hearing was held on September 21, 2015. An Order and

Journal Entry was filed on September 22, 2015, ordering that Vidal serve a prison term

of three years for Burglary and one year for Possessing Criminal Tools, to run

concurrently. It also ordered that he “have no contact with the victim in this matter.”

         {¶13} Vidal filed an Amended Motion for Leave to File Delayed Appeal on March

21, 2016, which was granted. On appeal, Vidal raises the following assignments of

error:

         {¶14} “[1.]   The trial court committed reversible error when it overruled Mr.

Vidal’s Crim.R. 29(A) motion for acquittal because the evidence was insufficient to

support a conviction for burglary and possessing criminal tools.

         {¶15} “[2.] Mr. Vidal’s conviction for burglary and possessing criminal tools was

against the manifest weight of the evidence.

         {¶16} “[3.] The trial court committed reversible error and plain error in ordering

Mr. Vidal to have no contact with the victim.

         {¶17} “[4.] Mr. Vidal was denied his constitutional right to effective assistance of

counsel at trial when his trial counsel failed to object to the court ordering him to have

no contact with the victim.”




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           {¶18} As Vidal did in his brief, we will consider the first two assignments of error,

which relate to the manifest weight of the evidence and the sufficiency of the evidence,

jointly.

           {¶19} Pursuant to Crim.R. 29(A), “[t]he court on motion of a defendant * * *, after

the evidence on either side is closed, shall order the entry of a judgment of acquittal * * *

if the evidence is insufficient to sustain a conviction of such offense or offenses.” In

reviewing the sufficiency of the evidence, an appellate court must “examine the

evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State

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

following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “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. “In essence, sufficiency is a test of

adequacy.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

           {¶20} In contrast, manifest weight of the evidence “addresses the evidence’s

effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court

asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An

appellate court must consider all the evidence in the record, the reasonable inferences,

the credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the




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conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

      {¶21} Vidal first argues that the court erred in finding him guilty of Burglary, since

it is not a lesser-included offense of Aggravated Burglary.

      {¶22} Vidal was indicted for Aggravated Burglary, in violation of R.C.

2911.11(A)(2), which provides:

             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 any of the following apply:

             ***

             (2) The offender has a deadly weapon or dangerous ordnance on or

             about the offender’s person or under the offender’s control.

      {¶23} To prove Burglary, for which Vidal was convicted, the State was required

to show that, “by force, stealth or deception” he “[t]respass[ed] in an occupied structure

or in a separately secured or separately occupied portion of 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.” R.C. 2911.12(A)(2).

      {¶24} To determine whether an offense is a lesser-included offense of another,

“a court shall consider whether one offense carries a greater penalty than the other,




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whether some element of the greater offense is not required to prove commission of the

lesser offense, and whether the greater offense as statutorily defined cannot be

committed without the lesser offense as statutorily defined also being committed.”

State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, paragraph two of

the syllabus.   This case involved “a bench trial, and unlike a jury, which must be

instructed on the applicable law, a trial court judge is presumed to know the applicable

law and apply it accordingly.” State v. Turner, 11th Dist. Ashtabula No. 2004-A-0005,

2004-Ohio-5632, ¶ 15, citing State v. Eley, 77 Ohio St.3d 174, 180-181, 672 N.E.2d 640

(1996).

      {¶25} It has been repeatedly held that Burglary is a lesser-included offense of

Aggravated Burglary. This is the case because “the common elements of both offenses

are (a) trespass in an occupied structure (b) by force, stealth, or deception (c) when

another person is present (d) with purpose to commit any criminal offense,” and

because “[t]he additional element of inflicting physical harm or having a deadly weapon

is found only in the greater offense of aggravated burglary.” State v. McKinney, 11th

Dist. Trumbull No. 2007-T-0004, 2008-Ohio-3256, ¶ 163; State v. Wamsley, 7th Dist.

Columbiana No. 05 CO 11, 2009-Ohio-1858, ¶ 58.

      {¶26} There was sufficient evidence to support the trial court’s determination that

a Burglary conviction was warranted.      As to the trespass element, the State was

required to prove that Vidal did, “without privilege to do so, * * * [k]nowingly enter or

remain on the land or premises of another.” State v. Galloway, 11th Dist. Lake No.

2013-L-060, 2014-Ohio-1154, ¶ 23, citing R.C. 2911.21(A)(2). Alansari testified that




                                           7
Vidal and Ecklund, two men he did not know, had stepped inside of the home, where he

and another individual lived, while Alansari was present.

      {¶27} Vidal argues that the State failed to prove that force, stealth, or deception

was used to trespass in the home, contending that there was a lack of testimony to

establish whether the door through which they entered was locked or closed. Ohio

courts have generally held that the force requirement is met when a defendant enters

through a closed, but unlocked, door. State v. Snyder, 192 Ohio App.3d 55, 2011-Ohio-

175, 947 N.E.2d 1281, ¶ 18 (9th Dist.) (citing cases from multiple appellate districts). In

this case, no testimony was given to prove whether the door through which Vidal and

Ecklund entered was locked or closed. There was no evidence presented to show that

force was used.

      {¶28} However, there was sufficient evidence to prove that the trespass was

achieved by stealth. “Stealth” has been defined as “any secret, sly or clandestine act to

avoid discovery and to gain entrance into * * * a residence of another without

permission.” (Citation omitted.) State v. Bullard, 11th Dist. Trumbull No. 2009-T-0096,

2010-Ohio-3464, ¶ 23.     Vidal and Ecklund, wearing hoodies and hats/bandanas that

could be used to cover their faces, had burglary tools concealed in their pockets and a

backpack, approached Alansari’s home, did not go to the front door, did not knock or

otherwise announce their presence, and walked to the side of the home. They then

entered a side door toward the rear of the house. This supports a conclusion that their

objective was to obtain entry into the home without seeking permission to do so. This

evidence was sufficient to demonstrate that stealth was used to trespass. See State v.

Gibbs, 8th Dist. Cuyahoga No. 94349, 2011-Ohio-76, ¶ 12 (where the defendant “did




                                            8
not go to the front of the house” and did not knock or ring the doorbell, went to the rear

of the house, and climbed onto the sunroof by a window, stealth was used to attempt to

trespass inside the house); State v. Sims, 11th Dist. Lake No. 2001-L-081, 2003-Ohio-

324, ¶ 62 (where a defendant walked slowly through an apartment complex lobby and

began running toward the garage while the security guard was on the phone, and “had

no legitimate purpose for being in the garage,” there was sufficient evidence of stealth);

also compare State v. Steele, 12th Dist. Preble No. CA2014-07-005, 2015-Ohio-1705, ¶

27 (stealth was proven when the defendant “cinched his hood over his face to hide his

identity”).

        {¶29} The State also proved that Vidal had the purpose to commit a criminal

offense within the structure.     “The purpose with which a person does an act is

determined from the manner in which it is done, the means or weapon used, and all the

other facts and circumstances in evidence.” (Citation omitted.) State v. Johnson, 11th

Dist. Lake No. 2006-L-259, 2007-Ohio-5783, ¶ 40. Testimony established that Vidal

was wearing gloves, dark clothes, a bandana and a hat, clothing that Officer Oldham

opined was inappropriately warm for the weather. Vidal was carrying pepper spray, zip

ties, and goggles, and accompanying Ecklund who had a firearm and the wrench. The

purpose to commit a theft or other crime was supported by the evidence of Vidal’s

possession of these items and their entering the house in the manner they did. Based

on the foregoing, there was sufficient evidence to support the Burglary conviction, which

justified conviction on the lesser-included offense.

        {¶30} Regarding the manifest weight of the evidence, the foregoing testimony

from both the victim and the police officers weighs in favor of a conviction for Burglary.




                                             9
Specifically Alansari testified to Vidal’s conduct and his unauthorized entry into the

home while he was inside. Officer testimony established the existence of criminal tools

that evidenced Vidal’s purpose for entry. There is limited evidence to contradict the

State’s version of the events.

       {¶31} While Alansari testified that Ecklund said, “I thought you were James,” and

the two intruders exited once they encountered Alansari, neither Ecklund nor Vidal

testified that they knew someone who lived in the house or had any valid reason to

enter it.   They did not knock at the front door, they entered silently through the side

door, and were wearing items that would not typically be worn when meeting a friend.

Further, although Vidal stresses that the men did not run when they were turned away

from the home, this is only one piece of evidence to consider. When considering all of

the evidence, especially possession of items the officers recognized as tools used in

burglaries, we cannot find the conviction was against the weight of the evidence.

       {¶32} To the extent that Vidal emphasizes that Alansari was unable to identify

Vidal at trial as one of the men that entered the home, there is little question that Vidal

was one of the men who entered. Alansari identified him right after the event occurred.

Vidal was arrested just minutes after the burglary, only blocks from Alansari’s home,

and was wearing the exact clothing described by Alansari.

       {¶33} Vidal also argues that one of the two men was “outside the home” at the

time Alansari confronted them. The testimony of Alansari, however, was that one man

was in the house, and the other one “just stepped into my house” at the time of the

confrontation. This does not mean that either man was “outside the house,” but merely

that the second man had just entered.




                                            10
       {¶34} Vidal also argues that his conviction for Possessing Criminal Tools was

not supported by sufficient evidence and was against the weight of the evidence.

       {¶35} R.C. 2923.24(A) provides that “[n]o person shall possess or have under

the person’s control any substance, device, instrument, or article, with purpose to use it

criminally.”

       {¶36} Vidal specifically emphasizes that he was not in possession of the

wrench/club that was part of the criminal tools the trial court cited in its judgment. Even

presuming that Vidal could not be held responsible for this item, there is no question

that he had pepper spray, zip ties, goggles, a mask, and gloves. While these items may

have independent and legitimate uses, “[u]nder the circumstances of their possession in

this case, it was reasonable for the trier of fact to infer that appellant possessed these

items with the intent to use them criminally.” State v. Veselka, 6th Dist. Lucas No. L-95-

343, 1997 Ohio App. LEXIS 881, 5 (Mar. 14, 1997). Given the circumstances outlined

above, we find that the conviction for Possessing Criminal Tools was supported by the

weight of evidence and that there was sufficient evidence to support the conviction.

       {¶37} The first and second assignments of error are without merit.

       {¶38} In his third assignment of error, Vidal argues that the trial court erred in

determining that he could have no contact with the victim, since both a prison term and

community control sanctions cannot be imposed. In his fourth assignment of error, he

argues that trial counsel’s failure to object to this error amounted to ineffective

assistance of counsel.

       {¶39} The State concedes that the “no contact” portion of the sentence was

made in error and that this court “should vacate the trial court’s no-contact order.”




                                            11
       {¶40} “The court hearing an appeal [of a felony sentence] shall review the

record, including the findings underlying the sentence or modification given by the

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the

sentence and remand the matter to the sentencing court for resentencing * * * if it

clearly and convincingly finds * * * [t]hat the record does not support the sentencing

court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence

is otherwise contrary to law.” R.C. 2953.08(G)(2)(a) and (b).

       {¶41} The Ohio Supreme Court has recently held that, in sentencing a

defendant, “as a general rule, when 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.” State v.

Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31. Recognizing that

a no-contact order is a community-control sanction, it held that, when prison terms were

imposed for the felony convictions against a defendant, the court could not also impose

a no-contact order for the same offenses. Id. at ¶ 32.

       {¶42} In the present case, Vidal was sentenced to prison terms for both offenses

for which he was convicted, Burglary and Possessing Criminal Tools. As such, the trial

court was not permitted to also impose a no-contact order arising from the conduct

leading to these convictions. Thus, we affirm Vidal’s prison sentence but modify the

court’s September 22, 2015 Order and Journal Entry to eliminate the no-contact portion

of the sentence. See State v. Vans, 8th Dist. Cuyahoga No. 103618, 2016-Ohio-3263,

¶ 22. The order is affirmed as modified.




                                             12
       {¶43} To the extent that Vidal argues ineffectiveness arising from counsel’s

failure to object to the foregoing error, given the disposition of the third assignment of

error, this issue is moot.

       {¶44} The third assignment of error is with merit, to the extent indicated above.

The fourth assignment of error is moot.

       {¶45} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is modified and affirmed as modified. Costs to be taxed against the

parties equally.


CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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