[Cite as State v. Rosa, 2014-Ohio-2764.]



                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                  Nos. 100324 and 100325



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       EDITO M. ROSA

                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                     Criminal Appeals from the
                             Cuyahoga County Court of Common Pleas
                           Case Nos. CR-13-571929 and CR-13-572712-A

        BEFORE: Boyle, A.J., Celebrezze, J., and Stewart, J.

        RELEASED AND JOURNALIZED:                   June 26, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Amy Venesile
Assistant County Prosecutor
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

      {¶1} In this consolidated appeal, defendant-appellant, Edito Rosa, appeals his

convictions in two cases, raising the following two assignments of error:

             I. Trial counsel provided ineffective representation by failing to
      request a more specific bill of particulars and by failing to challenge the
      charging instrument used in the case.

             II. Mr. Rosa’s right to due process was violated where the trial court
      found him guilty of breaking and entering where the evidence was
      insufficient to support such a conviction.

      {¶2} Finding no merit to the appeal, we affirm.

                               Procedural History and Facts

      {¶3} In March 2013, Rosa was indicted in two separate cases for alleged criminal

activity occurring on the same day but in two separate locations involving his

ex-girlfriend, the victim. In Cuyahoga C.P. No. CR-13-571929, the grand jury returned a

five-count indictment: breaking and entering in violation of R.C. 2911.13(B); violating a

protective order in violation of R.C. 2919.27(A)(1); menacing by stalking in violation of

R.C. 2903.211(A)(1); criminal damaging in violation of R.C. 2909.06(A)(1); and

telecommunication harassment, in violation of R.C. 2917.21(A)(5). In Cuyahoga C.P.

No. CR-13-572712, Rosa was also indicted on another five counts: burglary in violation of

R.C. 2911.12(A)(3); violating a protective order in violation of R.C. 2919.27(A)(1);

criminal damaging in violation of R.C. 2909.06(A)(1); menacing by stalking in violation

of R.C. 2903.211(A)(1), and telecommunication harassment in violation of R.C.

2917.21(B).
       {¶4} Rosa pleaded not guilty to all the charges and waived his right to have the

case heard by a jury. The two cases were consolidated for trial and proceeded to a bench

trial where the following evidence was presented.

       {¶5} In January 2012, the victim, who had dated Rosa for approximately two

years, obtained an order of protection against him after he “shot up” her car with an AK47.

 The order of protection was in effect on February 16, 2013 — the day of the events

giving rise to the charges filed against Rosa in the underlying cases.

       {¶6} The victim testified that on February 16, 2013, she received several phone

calls and text messages from Rosa while she was working at Hillcrest Hospital in Mayfield

Heights.   According to the victim, Rosa blamed her for an incident that occurred two

weeks earlier when the police visited Rosa’s home and impounded his car and dog after

the victim reported his threat “to shoot up the Second District.” The victim ultimately

learned that Rosa had arrived at her employment during the last call that she answered

from him. The victim testified that Rosa ranted, “you think I’m playing with you?        You

think I’m f’ing playing with you?     You owe me money. You’re going to give me my

money.”    The victim further testified that “all of a sudden, I heard a real loud crash and I

knew he was doing something to my car.”          The victim ran to her car in the hospital

parking garage and observed Rosa driving away. The two windows on the driver’s side

of her car had been smashed and a golf club was found in the car.          Rosa reported the

incident to the Mayfield Heights police and then went home.
       {¶7} Later on that same day, after the victim had returned home to her apartment

in Strongsville, she was walking out to her vehicle when she observed Rosa by her car

with a knife, slashing her tires.   The victim immediately ran back to her apartment and

called 911.

       {¶8} The trial court acquitted Rosa of the burglary count pertaining to Rosa’s

actions at the hospital in Cuyahoga C.P. No. CR-13-572712.           The trial court also

acquitted Rosa of the criminal damaging count in Cuyahoga C.P. No. CR-13-572712,

wherein the indictment erroneously identified the tires having been slashed at the hospital

as opposed to the windows broken. The trial court, however, found Rosa guilty of the

remaining counts and imposed a concurrent sentence of two years in prison.

       {¶9} Rosa appeals, raising two assignments of error.

                             Ineffective Assistance of Counsel

       {¶10} In his first assignment of error, Rosa argues that his trial counsel was

ineffective by failing to request a more specific bill of particulars and by failing to

challenge the indictment.

       {¶11} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.         Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus.

         {¶12} Rosa argues that the state overcharged him in two separate indictments —

asserting separate offenses for the same conduct — and that his trial counsel should have

moved for dismissal or, at the minimum, requested a more specific bill of particulars to

identify the underlying felony supporting the felony counts of violating a protective order.

 According to Rosa, his trial counsel erroneously “focused her attention on the underlying

burglary and breaking and entering counts, evidently assuming that those felonies provided

the basis for the protection order enhancements,” while ignoring the menacing by stalking

counts, both of which would also enhance the protection order violations to a felony. We

find Rosa’s arguments unpersuasive.

         {¶13} While we acknowledge that the bill of particulars failed to identify the

specific felony that Rosa committed while violating a protective order, an element that

elevates the offense from a misdemeanor to a felony, we cannot say that the defense

counsel’s failure to request clarification in this case prejudiced Rosa.   Contrary to Rosa’s

assertion, the record reveals that defense counsel challenged all of the separately indicted

felonies that could have supported the violating a protective order counts, including the

menacing by stalking count in each case.      Specifically, defense counsel argued that the

menacing by stalking count was only a misdemeanor offense because the furthermore

clause stating that Rosa was trespassing at the time of the offense was not proven by the

state.      Based on the discovery exchanged in the case, defense counsel’s
cross-examination of the victim, as well as defense counsel’s stated arguments at trial, we

simply cannot agree that Rosa or his trial counsel did not know the nature of the charges

against him or the state’s evidence in support.   See State v. Robinson, 2d Dist. Greene No.

2013-CA-33, 2014-Ohio-1663 (trial counsel’s failure to obtain bill of particulars did not

support ineffective assistance of counsel claim due to lack of prejudice).

       {¶14} As for the state improperly identifying the victim’s tires being slashed in

support of both criminal damaging counts, we still find no prejudice because the trial court

granted Rosa’s Crim.R. 29 motion with respect to the improperly charged count in

Cuyahoga C.P. No. CR-13-572712.        We further note that the other charges in each case

arose out of different conduct occurring at different locations and therefore supported the

separately charged offenses in each case.

       {¶15} Thus, given that Rosa has failed to demonstrate a reasonable probability that

the proceedings would have been different had his trial counsel requested a more specific

bill of particulars or moved to dismiss the indictment, we find no merit to his ineffective

assistance of counsel claim. The first assignment of error is overruled.

                                Sufficiency of the Evidence

       {¶16} In his second assignment of error, Rosa argues that the state failed to present

sufficient evidence to support a conviction of breaking and entering.

       {¶17}   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.      When an appellate court reviews a record upon a sufficiency
challenge, “‘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. Leonard, 104 Ohio

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Applying this standard, the

state clearly met its burden of production.

       {¶18} Rosa was convicted of a single count of breaking and entering, a violation of

R.C. 2911.13(B), which provides that “[n]o person shall trespass on the land or premises

of another, with purpose to commit a felony.”   He argues that the state failed to prove the

trespass element to support the conviction.

       {¶19} R.C. 2911.21 governs trespass and provides in pertinent part that “[n]o

person, without privilege to do so, shall * * * knowingly enter or remain on the land or

premises of another.”

       {¶20} Relying on this court’s decision in State v. Whitfield, 8th Dist. Cuyahoga No.

71650, 1997 Ohio App. LEXIS 4648 (Oct. 16, 1997). Rosa argues that his presence onto

a parking lot open to the public does not satisfy the definition of trespass. In Whitfield,

the defendant entered a public park during the park’s regularly posted hours and therefore

the defendant’s entry was lawful and privileged.    The Whitfield court observed that the

defendant’s decision to commit a felony once there “does not convert his otherwise lawful

entry into an unlawful trespass.” Id. at *8.
       {¶21} In this case, however, Rosa entered the private lot of the victim’s apartment

complex.    The state presented evidence that the lot was a private lot — not public —

available only for the apartment complex tenants and their visitors.          Here, Rosa was

neither a tenant nor visitor at the time that he entered the parking lot.     Furthermore, the

state presented evidence that Rosa was subject to an order of protection that expressly

prohibited him from entering the victim’s residence, including the parking lot at this

location. Construing this evidence in a light most favorable to the state, we find that the

state presented sufficient evidence of the element of trespass.

       {¶22} We find this case to be more analogous to this court’s earlier decision in

State v. Delgado, 8th Dist. Cuyahoga No. 60574, 1992 Ohio App. LEXIS 2268 (Apr. 30,

1992), which recognized that the defendant was trespassing when he entered a parking lot

where he had no privilege to be.    In Delgado, the defendant entered a university parking

lot that was restricted to students, faculty, or staff. Since the defendant did not fall into

either category, the defendant was a trespasser on the lot.       Similarly, Rosa did not have

privilege to enter the private parking lot of the victim’s apartment complex and therefore

was trespassing thereon.

       {¶23} The second assignment of error is overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover of 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 conviction 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.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
MELODY J. STEWART, J., CONCUR
