[Cite as State v. Strong, 2017-Ohio-859.]




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


State of Ohio                                    Court of Appeals No. H-16-001

        Appellee                                 Trial Court No. CRI-2015-0680

v.

Kyle W. Strong                                   DECISION AND JUDGMENT

        Appellant                                Decided: March 10, 2017

                                            *****

        James J. Sitterly, Huron County Prosecuting Attorney, for appellee.

        Sarah A. Nation, for appellant.

                                            *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Kyle Strong, appeals the judgment of the Huron County Court of

Common Pleas, finding him guilty following a jury trial of one count of burglary, one

count of attempted burglary, one count of tampering with evidence, and one count of
theft from the elderly, and sentencing him to a combined prison term of 7 years and 11

months.1 For the reasons that follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} On October 16, 2015, the Huron County Grand Jury returned a four-count

indictment, charging appellant with one count of burglary in violation of R.C.

2911.12(A)(1), a felony of the second degree, one count of attempted burglary in

violation of R.C. 2923.02(A) and 2911.12(A)(2), a felony of the third degree, one count

of tampering with evidence in violation of R.C. 2921.12(A)(1) and (B), a felony of the

third degree, and one count of theft from the elderly in violation of R.C. 2913.02(A)(1)

and (B)(3), a felony of the fifth degree.

       {¶ 3} The matter proceeded to a two-day jury trial on the indicted charges

beginning on December 16, 2015. Prior to opening statements, the jury embarked on a

jury view of the scene of the alleged crimes. Neither anyone from the prosecution, nor

appellant or his defense counsel accompanied the jury on the jury view.

       {¶ 4} Thereafter, the testimony from the trial revealed the following. In the

morning hours of September 18, 2015, the Bellevue Police Department received a report

of a burglary at 206 Elm Street. Officers responded to a scene where the victim, a 74-

year-old woman, described that she awoke to find two men inside her house. The men



1
 Appellant’s prison term was also ordered to be served consecutively to an 11-month
prison term for violation of community control in case No. CRI-2013-0844, for a total
prison term of 8 years and 10 months.




2.
asked her for her prescription medications, and also took loose change, jewelry, her

cordless telephones, and a box of fudge pops from the freezer.

       {¶ 5} Several police officers canvassed the surrounding area looking for the two

men. Shortly thereafter, a couple of blocks away, Officer Frank Gleason noticed two

men crowded together inside the screen door of 135 Gunther Street. Gleason testified

that the two men were wearing masks. As Gleason approached, the two men went

around the house where he observed them attempting to break into a window. Gleason

ordered them to stop and get down on the ground. One of the men complied. The other

fled the scene. Gleason testified that the person that fled was wearing a green baseball

hat. At the scene, the officers recovered the loose change, the victim’s jewelry, and the

box of fudge pops, which were still partially frozen. The cordless telephones were later

discovered in a trash can on the path between 206 Elm Street and 135 Gunther Street.

       {¶ 6} The suspect who was apprehended was identified as Robert Gilbert. While

he was in the back of the police cruiser, Gilbert was read his Miranda rights. Gilbert then

responded that the other person with him was appellant. However, at trial, Gilbert

testified that he was unsure of who was with him at the time of the break-ins. Gilbert did

testify, though, that appellant was with him the night before, and they had done

substantial amounts of drugs together.

       {¶ 7} While searching the scene at 135 Gunther Street, officers found a green

baseball hat lying on the ground in the path of where the second suspect fled. The hat

was submitted for DNA analysis, and it was found to contain a single source of DNA,




3.
which was consistent with appellant’s DNA profile. The expected frequency of that

particular DNA profile is 1 in 315 quadrillion.

       {¶ 8} Following the state’s presentation of evidence, appellant moved for a

Crim.R. 29 judgment of acquittal as to the count of attempted burglary based on the

conduct at 135 Gunther Street. Appellant argued that there was no testimony from the

homeowner that would establish that appellant was trespassing on the property. Instead,

Gilbert testified that he knew the owner of the property, that the owner was a drug dealer,

and that Gilbert had been there on several occasions. Further, appellant argued that there

was no evidence to demonstrate that appellant had a purpose or intent to commit a crime

at 135 Gunther Street. The trial court denied appellant’s motion.

       {¶ 9} Thereafter, the defense rested without calling any witnesses. The matter was

then submitted to the jury, which returned with a verdict of guilty as to all counts.

                                   II. Assignment of Error

       {¶ 10} Appellant has timely appealed his judgment of conviction, and now asserts

three assignments of error for our review:

                 I. The trial court erred in denying appellant’s Rule 29 motion to

       acquit.

                 II. The defendant’s conviction is based upon insufficient evidence

       and his conviction is against the manifest weight of the evidence.




4.
                 III. Defense counsel’s performance of his duties was deficient in

       that he made errors so serious that he failed to function as the counsel

       guaranteed by the Sixth Amendment and appellant was prejudiced by said

       errors.

                                         III. Analysis

       {¶ 11} In his first assignment of error, appellant argues that the court erred when it

denied his motion to acquit relative to the count of attempted burglary at 135 Gunther

Street. We review a denial of a Crim.R. 29 motion to acquit under the same standard as

the one 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. In reviewing a

record for sufficiency, “[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.

       {¶ 12} Here, the elements of burglary provide that no person

       by force, stealth, or deception, shall * * * (2) Trespass 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).




5.
       {¶ 13} In his brief, appellant argues that there is no evidence that he was present at

135 Gunther Street, that he was trespassing on the property, or that his purpose was to

commit a criminal offense. We disagree.

       {¶ 14} As to his presence at 135 Gunther Street, the evidence consists of Gilbert’s

statements in the back of the police cruiser that identify appellant as the second burglar,

as well as Gleason’s testimony that the second burglar was wearing a green hat, and a

green hat that was found on the property in the direction in which the second burglar fled

contained a single DNA profile that matched appellant’s DNA. From this, we conclude

that a rational trier of fact could have found that appellant was the second burglar.

       {¶ 15} As to whether appellant was trespassing on the property with the purpose to

commit a criminal offense, the evidence shows that, in the morning hours, Gilbert and

appellant were crouched together inside a screen door wearing dark clothing and masks.

They then proceeded around the house and were seen by Gleason attempting to enter the

house through a window. Nearby were the contents stolen from the victim at 206 Elm

Street. When confronted by the officer, appellant fled.

       {¶ 16} Appellant argues that there was no testimony from the owner of 135

Gunther Street that appellant did not have permission to be there. However, we find that

a rational juror could reasonably infer that appellant did not have permission based on his

conduct in trying to break in through a window. See State v. Colon, 8th Dist. Cuyahoga

No. 61253, 1992 Ohio App. LEXIS 6320 (Dec. 17, 1992) (reasonable to infer that the




6.
defendant did not have permission to be on the property where he was seen on the lower

level wearing black gloves and removing stereo equipment).

       {¶ 17} In addition, a rational juror could also infer from the circumstances that

appellant intended to commit a criminal offense. “Criminal intent can be inferred from

the presence, companionship and conduct of a criminal defendant both before and after

the offense is committed.” State v. Weimer, 2016-Ohio-3116, 66 N.E.3d 50, ¶ 51 (11th

Dist.), citing State v. Mootispaw, 110 Ohio App.3d 566, 570, 674 N.E.2d 1222 (4th

Dist.1996). Here, Gilbert and appellant had been doing drugs all night, they had just

broken into another person’s home looking for drugs, and Gilbert knew that the owner of

135 Gunther Street was a drug dealer. Thus, it is reasonable to infer that appellant was

intending to steal drugs from 135 Gunther Street. Therefore, we hold that the trial court

did not err in denying appellant’s Crim.R. 29 motion because the evidence was sufficient

to support a finding of guilty on the count of attempted burglary.

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

       {¶ 19} In his second assignment of error, appellant argues that his convictions on

the other three counts were based on insufficient evidence and against the manifest

weight of the evidence because the state failed to establish his identity. Specifically,

appellant argues that the victim at 206 Elm Street could not identify either burglar, and

did not recognize appellant at trial. Additionally, he notes that Gleason was unable to see

the second burglar’s face. Finally, appellant references Gilbert’s inability at trial to

remember who was with him during the burglary and attempted burglary.




7.
       {¶ 20} Insufficiency and manifest weight are distinct legal theories. In contrast to

the sufficiency standard articulated above, when reviewing a manifest weight claim,

              The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the [trier of fact] clearly lost

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

       conviction must be reversed and a new trial ordered. 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. State v. Lang,

       129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State

       v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶ 21} Here, we find that appellant’s convictions are not based on insufficient

evidence or against the manifest weight of the evidence. As we discussed in appellant’s

first assignment of error, appellant’s identity is established through Gilbert’s statements

in the police cruiser that appellant was the other burglar, as well as through the DNA

evidence from the green baseball hat that Gleason testified the second burglar was

wearing. Therefore, we hold that a rational juror could have found that appellant was the

second burglar, and we further hold that the jury did not lose its way and commit a

manifest miscarriage of justice in so concluding that appellant was the second burglar.

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




8.
           {¶ 23} Finally, in his third assignment of error, appellant argues that he received

ineffective assistance of counsel when his trial counsel failed to attend the jury view and

waived appellant’s presence at the view, and when counsel failed to call appellant to

testify.

           {¶ 24} To prevail on a claim of ineffective assistance, 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 demonstrate that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694. “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 697.

           {¶ 25} In arguing that counsel was ineffective for failing to attend the jury view

and waiving appellant’s presence at the view, appellant argues that he was prejudiced

because counsel had “no opportunity to see what the jury and trier of fact viewed.”

“Prejudice is presumed when counsel is totally absent from a crucial stage of trial.” State

v. Tyler, 50 Ohio St.3d 24, 38, 553 N.E.2d 576 (1990). However, a jury view of a crime

scene is not a crucial stage. Id.; see also State v. Spaulding, Slip Opinion No. 2016-Ohio-

8126, ¶ 105 (“[A] jury’s view of a crime scene is neither evidence nor a crucial stage in




9.
the proceedings.”). Further, appellant has not articulated any specific, actual prejudice

that resulted from counsel’s nonattendance. Therefore, we hold that appellant has failed

to satisfy the second Strickland prong, and his claim of ineffective assistance on this basis

is without merit.

        {¶ 26} Turning to his claim of ineffective assistance based on appellant not being

called to testify in his own defense, we note that “[t]he ultimate decision of whether a

defendant will testify on his own behalf is the defendant’s.” State v. Ryan, 6th Dist.

Wood No. WD-05-064, 2006-Ohio-5120, ¶ 24, citing State v. Edwards, 119 Ohio App.3d

106, 109, 694 N.E.2d 534 (10th Dist.1997). Furthermore, “[w]hether or not a defendant

testifies is purely a tactical decision.” Id. at ¶ 23, citing State v. Bey, 85 Ohio St.3d 487,

499, 709 N.E.2d 484 (1999). As such, “it cannot be challenged on appeal on the grounds

of ineffective assistance of counsel, unless it is shown that the decision was the result of

coercion.” Id. Here, appellant does not allege, and the record does not demonstrate any

coercion by his trial counsel to prevent him from testifying. Therefore, we hold that

appellant has not demonstrated that counsel’s performance fell below an objective

standard of reasonableness, and thus his claim of ineffective assistance on this basis must

fail.

        {¶ 27} Accordingly, appellant’s third assignment of error is without merit.




10.
                                     IV. Conclusion

       {¶ 28} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Huron County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of his 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
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




11.
