[Cite as State v. Cook, 2016-Ohio-4574.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 26809
                                                 :
 v.                                              :   Trial Court Case No. 15-CR-757
                                                 :
 SYLVANIUS COOK                                  :
                                                 :   (Criminal Appeal from
         Defendant-Appellant                     :    Common Pleas Court)
                                                 :

                                            ...........

                                           OPINION

                             Rendered on the 24th day of June, 2016.

                                            ...........

MATHIAS H. HECK, JR., by KIRSTEN BRANDT, Atty. Reg. No. 0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, Harris, Meyer, Heckman &
Denkewalter, LLC, One Monument Square, Suite 200, Urbana, Ohio 43078
     Attorney for Defendant-Appellant

                                           .............

HALL, J.

        {¶ 1} Sylvanius Cook was convicted of one count of aggravated burglary, a first-

degree felony, and two counts of assault, first-degree misdemanors, after a trial to the
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court. He later was sentenced to a mandatory prison term of six years on the aggravated

burglary and six months for each of the assault charges, to run concurrently with the

felony prison sentence.

       {¶ 2} Cook’s assigned appellate counsel filed a motion for leave to withdraw under

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that

“[c]ounsel has read the transcript and found there is no arguable basis for filing a brief for

Appellant.” (Motion, etc. at 1). The motion also contained an “ANDERS BRIEF,” which

included a statement of the case and a potential assignment of error. By order filed on

January 28, 2016, we informed Cook of the Anders filing and advised him of both his right

to file his own brief and the time limit for doing so. Cook has not filed anything, and the

time for filing has expired.

                               The facts and proceedings

       {¶ 3} On March 7, 2015, Sylvanius Cook began beating on the front door of the

residence of his former girlfriend, Sherina Bunch, who was pregnant with his child. Cook

had not lived at her residence since December 25, 2014 when he was escorted from the

premises by police officers who were called after he kicked in the door on that occasion.

At that time, the police allowed him to retrieve his clothing and belongings. Present in the

house with Bunch on March 7, 2015 was her friend, and Cook’s cousin, China Lipscomb.

They did not let Cook inside. He kicked in the door and entered. He got into an argument

with Lipscomb and choked her with both of his hands around her neck. Cook also kneed

Bunch in the stomach, punched her in the mouth with his fist causing a cut inside her

mouth, and choked her for three to four seconds. The argument then moved outside

before Cook left in his vehicle. After the police arrived, Cook returned but then fled upon
                                                                                       -3-


seeing them.

      {¶ 4} On April 9, 2015, Cook was indicted for one count of aggravated burglary in

violation of R.C. 2911.11(A)(1) and two counts of assault, one each for Bunch and

Lipscomb. He signed a jury waiver, which was filed on May 22, 2015. A bench trial was

conducted on June 2, 2015. On June 10, 2015, the trial court found Cook guilty on all

three counts. At a July 2, 2015 sentencing hearing, the trial court orally indicated that

Cook would serve eight years in prison on the aggravated burglary concurrent with 180

days of incarceration on each of the assault charges. No entry was filed confirming this

sentence. On July 29, 2015, the trial court sua sponte conducted a completely new re-

sentencing hearing, including an oral victim-impact colloquy with Sherina Bunch, and

allocution by the defendant and counsel. The trial court indicated it had considered the

pre-sentence investigation, the purposes and principles of sentencing, the seriousness

and recidivism factors in the Revised Code, and the requirements of R.C. 2929.13. It

imposed a sentence of a six years of imprisonment on the aggravated-burglary charge

concurrent with two sentences of 180 days of incarceration on the assault charges. The

trial court properly advised Cook about restitution, costs, post-release control, and

appellate rights. On August 4, 2015 a Termination Entry was filed incorporating this

sentence.

                               Potential assignments of error

      {¶ 5} Although appellate counsel found no merit to the appeal, he identifies one

potential assignment of error for our consideration. That potential argument is consistent

with the argument defense counsel made at the time of the trial: although the evidence

supported that Cook did break in and did assault Bunch and Lipscomb, the evidence did
                                                                                         -4-


not support that he broke in with the purpose to commit a criminal offense, and the

criminal purpose, if any, developed after his entry.

       {¶ 6} The applicable statute, R.C. 2911.11, states:

       (A) 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:

       (1) The offender inflicts, or attempts or threatens to inflict physical harm on

       another[.]

       {¶ 7} We conclude, as counsel acknowledged, that the potential assignment of

error lacks arguable merit. “Trespass” is defined in terms of the following: “No person,

without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises

of another [.]” R.C. 2911.21(A)(1). As for the mens-rea element of aggravated burglary,

“a defendant may form the purpose to commit a criminal offense at any point during the

course of a trespass.” State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037 (2000),

syllabus. Therefore, the State must show that the offender “invaded the dwelling for the

purpose of committing a crime or that he formed that intent during the trespass.” State v.

Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 33, citing Fontes at

syllabus; see also State v. Perry, 2d Dist. Montgomery No. 26421, 2015-Ohio-2181, ¶ 27.

Here, at all times, Cook’s entry and presence in the house constituted a continuing

trespass. Accordingly, an argument that he must have had the intent to commit a criminal
                                                                                          -5-


offense before he kicked in the door lacks arguable merit.

                                      Anders review

       {¶ 8} Finally, we have performed our duty under Anders to conduct an

independent review of the record. We thoroughly have reviewed the docket, the various

filings, the trial transcript, and the sentencing disposition. We have found no non-frivolous

issues for review. Accordingly, the judgment of the Montgomery County Common Pleas

Court is affirmed.

                                      .............



FAIN, J., and FROELICH, J., concur.


Copies mailed to:

Mathias H. Heck
Kirsten Brandt
Darrell L. Heckman
Sylvanius Cook
Hon. Richard Skelton
