[Cite as State v. Cotton, 2017-Ohio-5807.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102581




                                       STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                 SYLVESTER COTTON

                                                               DEFENDANT-APPELLANT




                                    JUDGMENT:
                               VACATED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-584941-B

        BEFORE:           Jones, J., Kilbane, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: July 13, 2017
ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender

BY: Francisco E. Luttecke
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Eleina Thomas
          Gregory J. Ochocki
          John E. Jackson
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} This opinion is issued on reopening of this case after this court’s first

decision in State v. Cotton, 8th Dist. Cuyahoga No. 102581, 2015-Ohio-5419, 55 N.E.3d

573.   For the reasons that follow, we vacate the aggravated burglary conviction and

remand for resentencing.

       {¶2} Defendant-appellant Sylvester Cotton and his codefendant, Michael Brooks,

were tried in a joint jury trial for numerous crimes associated with the armed robbery of

Michael Ewart, Jr.1 The jury and court convicted the defendants on all the charges,

which included convictions for aggravated burglary.        Cotton and Brooks were sentenced

to prison terms of 78 years and 75 years, respectively. Both defendants appealed, and

the cases, although not consolidated, were heard before the same panel of judges.

       {¶3} In Cotton’s appeal, appellate counsel contended, among other things, that the

evidence was insufficient to sustain Cotton’s attempted murder and felonious assault

convictions. See Cotton at ¶ 8-21. We agreed as to one of the attempted murder counts,

but disagreed as to the other attempted murder and felonious assault counts and affirmed

those convictions. Id.

       {¶4} In Brooks’s appeal, appellate counsel contended, among other things, that the

evidence was insufficient to sustain his aggravated burglary conviction.        We agreed and

sustained his assignment of error relative to that count.          State v. Brooks, 8th Dist.

Cuyahoga No. 102551, 2016-Ohio-489, 56 N.E.3d 357, ¶ 36-41.



       1
        Both defendants were charged with having weapons while under disability, notices of prior
convictions and repeat violent offender specifications, which were tried to the bench.
      {¶5} Cotton sought to reopen his appeal, contending that his appellate counsel was

ineffective by failing to raise the issue of the sufficiency of the aggravated burglary

conviction, and we granted his request to reopen. He now presents the following two

assignments of error for our review:

      I. Mr. Cotton’s aggravated burglary conviction violated his state and
      federal constitutional rights to due process of law, because the evidence was
      insufficient to establish all the requisite elements of that offense.

      II. Appellate counsel provided ineffective assistance of counsel when it
      failed to assert a sufficiency claim regarding the aggravated burglary charge
      on behalf of Mr. Cotton.

      {¶6} In order to establish a claim of ineffective assistance of counsel, the applicant

must demonstrate that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). The two-prong analysis in Strickland is also the appropriate standard when

determining ineffective assistance of appellate counsel. State v. Were, 120 Ohio St.3d

85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10. To show ineffective assistance of appellate

counsel, Cotton must prove that his counsel was “deficient for failing to raise the issues

he now presents and that there was a reasonable probability of success had he presented

those claims on appeal.” State v. Sheppard, 91 Ohio St.3d 329, 329, 744 N.E.2d 770

(2001).

      {¶7} Relative to the aggravated burglary, in Cotton, we described the facts as

follows:

      the victim testified that on the night of April 25, 2014, he returned home to
      his apartment in the city of Euclid to find three males hiding in the back
      entrance to his apartment building. Two of the males were later identified
       as Cotton and Michael Brooks. The victim testified that all three males
       were armed with guns and that they demanded the victim’s wallet.

Cotton, 8th Dist. Cuyahoga No. 102581, 2015-Ohio-5419, 55 N.E.3d 573, at ¶ 3.

       {¶8} In Brooks, because the aggravated burglary conviction was raised, we

described the events surrounding the crime in more detail as follows:

       Ewart testified that generally no one could enter his apartment building
       complex through the front door because it was locked. Therefore, Ewart
       customarily entered through the back door, which, presumably, was
       unlocked. Ewart testified that on the evening of the crimes, “I got to the
       back door, he came out the back; and I saw a guy, and around the back.
       And he came out the basement with another guy. I saw him around the
       back.” As he was testifying, Ewart was pointing to Brooks and Cotton.
       Therefore, the assistant prosecuting attorney followed up with questions as
       to who “he” referred to. Ewart testified that Brooks was the first “he”
       Ewart referred to, meaning that Brooks was the one who “came out the
       back.”

       In reference to Cotton, Ewart testified that “[h]e came around the back.
       When I was coming in the hallway, but when them two ran out the
       basement, he came running back, coming out the door. When I turned to
       the right, I saw him standing there.”

Brooks, 8th Dist. Cuyahoga No. 102551, 2016-Ohio-489, 56 N.E.3d 357, at ¶ 37-38.

       {¶9} This court found that the above-mentioned testimony on “exactly where the

perpetrators were when Ewart approached the back door [was] minimal and somewhat

confusing.”    Id. at ¶ 39. Based on the testimony, this court concluded that although it

established that Brooks was, at some point, in the basement of the apartment building, it

was not sufficient evidence to sustain an aggravated burglary conviction for the reasons

that follow:

       Specifically, there was no testimony that the theft occurred inside the
       apartment building. The testimony was that the perpetrators were coming
       out of the building as Ewart approached. Ewart only testified that he was
       “coming in the hallway”; he never testified that he actually made it into the
       building, or that the theft occurred inside the building. We are not
       persuaded by the state’s contention that Ewart testified that he was in the
       hallway during the encounter. The testimony that the state points to was
       Ewart’s response to the state’s questioning of him as to the layout, in
       general, of the hallway. Ewart never specifically stated, however, that he
       was in the hallway when he encountered Brooks or that that was where the
       theft occurred. Thus, the evidence was insufficient to support the
       aggravated burglary charge.

Id. at ¶ 40; but see ¶ 52-54 (Stewart, J., dissenting) (citing the assistant prosecuting

attorney’s description of the perpetrators “standing in the apartment,” and noting that

       [a]lthough only the victim’s responses to the questions — not the questions
       themselves — constitute evidence, at no time does the victim correct
       anything referenced in a question that suggests the burglary took place
       anywhere but inside of his apartment building (or at least in the doorway of
       his building).

       {¶10} The dissent further contended that even if the evidence was insufficient to

prove that the theft took place inside the apartment building, “at a minimum the evidence

demonstrated that the armed theft occurred in an occupied structure.”

       {¶11} For the same reasons that this court articulated in Brooks, we likewise find

the evidence was insufficient to sustain an aggravated burglary conviction against Cotton

and that, under the circumstances presented here, his appellate counsel was ineffective for

not raising the issue in his first appeal.

       {¶12} Accordingly, we sustain Cotton’s two assignments of error, vacate the

aggravated burglary conviction, and remand the case to the trial court to issue an amended

judgment of conviction with deletion of the aggravated burglary conviction and to

resentence Cotton with deletion of that count.

       It is ordered that appellant recover of appellee 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS WITH
SEPARATE OPINION

MELODY J. STEWART, J., DISSENTING:

       {¶13} Consistent with my dissenting opinion in State v. Brooks, 2016-Ohio-489,

56 N.E.3d 357 (8th Dist.), I conclude that the state offered sufficient evidence from which

a rational trier of fact could infer that the elements of aggravated burglary were

established.

       {¶14}   All of the judges on the panel agree that the evidence of where the theft

occurred was unclear, but whether it was unclear to us is immaterial to how we review

questions regarding the sufficiency of the evidence.      The question is how the jury

viewed the evidence and the inferences arising from the testimony.

       {¶15} The inferences from the evidence are important:

       a reviewing court “faced with a record of historical facts that supports
       conflicting inferences must presume — even if it does not affirmatively
       appear in the record — that the trier of fact resolved any such conflicts in
       favor of the prosecution, and must defer to that resolution.”

(Emphasis added.) Cavazos v. Smith, 565 U.S. 1, 7, 132 S.Ct. 2, 181 L.Ed.2d 311

(2011), quoting Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979).
       {¶16} The majority, as it did in Brooks, maintains that the only evidence of where

the burglary occurred is based on questions asked by the state that assumed that the theft

occurred inside the apartment building. This conclusion disregards the testimony by the

victim: “When I was coming in the hallway, but when them two ran out the basement, he

came running back, coming out the door.      When I turned to the right, I saw him standing

there.” Parsing these statements shows that the jury could infer the following: the victim

was physically entering the apartment building (“coming in the hallway”), saw two men

run out of the building (“them two ran out of the basement”), and did not move from

where he stood at the door to the apartment (“turned to the right”).      From this, the jury

could reasonably infer that the theft occurred in the doorway to the apartment building,

satisfying the R.C. 2911.11(A) element that an aggravated burglary occur in an occupied

structure or “any portion thereof.” See R.C. 2911.11(C)(1).

       {¶17} Tellingly, Cotton himself cites the Brooks opinion to state that “the

possibility exists that the entirety of the criminal acts in question occurred outside the

apartment building.”      (Emphasis added.)       Appellant’s brief at 6, citing Brooks,

2016-Ohio-489, 56 N.E.3d 357, at ¶ 40.          If it was only “possible” that the crime

occurred outside the apartment building, Cotton has not provided a basis for reversal.

The evidence is considered “legally sufficient” if, after viewing the evidence most

favorably to the state, “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. If, as Cotton indicates, there was

some basis for conflict in the record about where the theft occurred, as a reviewing court

we must presume that the jury found that the offense occurred at the door of the building
and defer to that finding.
