[Cite as State v. Bronczyk, 2011-Ohio-5924.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96326
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JOSEPH J. BRONCZYK DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, MODIFIED IN PART, REVERSED IN PART AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-540345
BEFORE: Rocco, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: November 17, 2011
-i- 2
ATTORNEY FOR APPELLANT
Jennifer J. Scott P.O. Box 770403 Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Holly M. Welsh Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Joseph Bronczyk appeals from his
convictions for burglary, theft, attempted burglary, possession of criminal
tools, and tampering with evidence, and from the eight-year prison term the
trial court imposed for those convictions.
{¶ 2} Bronczyk presents six assignments of error. He claims his trial
counsel rendered ineffective assistance, his convictions are not supported by
either sufficient evidence or the manifest weight of the evidence, the
introduction into evidence of one of the state’s exhibits violated his “right to 3
remain silent,” and the trial court failed to comply with statutory
requirements in sentencing him.
{¶ 3} Upon a review of the record, this court cannot agree that
Bronczyk’s trial counsel was ineffective. In addition, Bronczyk’s convictions
for burglary, attempted burglary, and possession of criminal tools are
supported by the evidence. However, the state failed to present sufficient
evidence to prove the allegations of the furthermore clause set forth in Count
2, theft, and failed to present sufficient evidence to support Bronczyk’s
conviction for tampering with evidence.
{¶ 4} This disposition requires a modification of Bronczyk’s conviction
on Count 2, and reversal of his conviction on Count 6. Except with respect to
Bronczyk’s convictions on Counts 2 and 6, his arguments with respect to the
trial court’s imposition of sentence are rejected. Bronczyk’s convictions and
sentences, therefore, are affirmed in part, modified in part, and reversed in
part, and this case is remanded for resentencing consistent with this opinion.
{¶ 5} Bronczyk’s convictions in this case result from two separate
incidents. The first occurred on the afternoon of July 15, 2010.
{¶ 6} Antoinette Finding testified that she was reading the newspaper
at her kitchen table when she looked out her window and noticed activity
taking place across the street at her neighbor’s house. A man, whom she 4
recognized as Bronczyk, was walking around Eugene Mueller’s yard. As
Finding watched, Bronczyk picked up a ladder lying in the front lawn, then
carried the ladder around to the rear of Mueller’s house.
{¶ 7} Soon thereafter, Finding saw Bronczyk climb onto the roof of the
“breezeway” that connected Mueller’s garage to his house. Bronczyk crossed
the roof to the house’s second-floor window, lifted, and disappeared into
Mueller’s house. Finding called the Parma police.
{¶ 8} A few minutes later, two police officers arrived at Mueller’s
house, viz., Eric Jezior and Edward Pinc. They walked around the property,
noticing a ladder against the rear of the house. When the officers looked up
to the second floor, they saw Bronczyk exiting backwards from the window.
{¶ 9} Jezior immediately called out to Bronczyk, who appeared to be
“startled” at the sound. The officers asked him to come down; they moved
the ladder slightly to better facilitate the process. Bronczyk explained to the
officers that he was doing work around the house for Mueller, went up to the
roof, and “couldn’t get to the ladder to get down, so he was going through the
house to come downstairs and unlock a door” to let himself out.
{¶ 10} Bronczyk’s explanation made little sense to the officers, since
they saw him emerge from the window, and since the ladder had been
propped against the roof within his reach. They proceeded to contact 5
Mueller by telephone. Mueller confirmed that he had hired Bronczyk to do
some outside chores, but indicated Bronczyk had no reason to be inside the
house. Nevertheless, Mueller told the officers that he wanted to speak to
Bronczyk before taking any action, so the two officers left.
{¶ 11} When Mueller returned to the house after work, Bronczyk came
over and told him that the reason “he pried the window up” was because “the
ladder fell off the garage roof.” Mueller initially believed Bronczyk, but
subsequently noticed some items inside the house were moved. In
particular, Mueller saw that “a Sony camera and two diamond rings” were in
a cardboard box placed near the window that Bronczyk had opened.
{¶ 12} After making this discovery, Mueller went to the police station
and wrote out a complaint. Officer Oliver Simic investigated Mueller’s
complaint on July 17, 2010. Simic spoke to Finding and Mueller, took
photographs of the exterior of Mueller’s house, and photographed the items
inside the box near the window. A warrant was issued for Bronczyk’s arrest.
{¶ 13} The second incident occurred on the afternoon of July 31, 2010.
Angel Williams testified she lived in Parma on Theota Avenue. Her address
was “four blocks” east of Bronczyk’s residence. She went into her kitchen to
“grab something to eat” and, as she looked out the window, she saw “a
strange man,” later identified as Bronczyk, enter her backyard. 6
{¶ 14} At first, Williams thought Bronczyk might be searching for a lost
pet, but then she heard “the handle of [her] screen door in the back jiggle.”
She approached her rear door, and, looking through the glass panes, “saw this
man trying to get into the window of [her] children’s bedroom.” Williams
called 911.
{¶ 15} While she was on the telephone, Bronczyk returned to “the back
stoop with a screwdriver in his hand.” She stepped closer to her rear door,
and she and Bronczyk “were face-to-face with the glass of the door between
us.” Bronczyk saw Williams standing there with a telephone; “he ran.”
{¶ 16} Pinc was one of the officers who heard the radio broadcast about
Williams’s call. He advised his colleagues that the description of both the
incident and the suspect were similar to an earlier incident in which he had
been involved. Pinc provided Bronczyk’s address to the other officers.
{¶ 17} Officer Thomas O’Grady drove to the street where Bronczyk
resided. As O’Grady turned onto the street, he saw Bronczyk walking
toward his home across a neighbor’s lawn. Bronczyk approached the side
door of his home as O’Grady drove into Bronczyk’s driveway. Although
O’Grady stopped and ordered Bronczyk to remain outside, Bronczyk replied
“he’s not going to jail,” and entered his home. O’Grady and another
responding officer eventually forced their way into the house to arrest 7
Bronczyk. After the arrest, O’Grady observed a screwdriver on the driveway
on “the right side of the side door”; he took the tool as evidence.
{¶ 18} Parma police officers retrieved Williams and conducted a “cold
stand.” Williams asked the officers to move Bronczyk a little closer before
she identified him as the man who attempted to enter her home.
{¶ 19} Bronczyk subsequently was indicted on six counts, i.e., 1)
burglary, with a notice of prior conviction (“NPC”) and a repeat violent
offender specification (“RVO”); 2) theft, with a furthermore clause alleging
that the victim was an elderly person and that the value of the property was
between $500 and $5,000; 3) possession of criminal tools, to wit: a ladder,
with a furthermore clause that the offense occurred in the commission of a
felony; 4) attempted burglary; 5) possession of criminal tools, to wit: a
screwdriver, with a furthermore clause that the offense occurred in the
commission of a felony; and, 6) tampering with evidence.
{¶ 20} Bronczyk eventually signed a waiver of his right to a jury trial
with respect to the NPC and RVO in Count 1 and the case proceeded. After
the court denied his Crim.R. 29 motions for acquittal, the jury found
Bronczyk guilty on all counts. The trial court also found him guilty on the
NPC and RVO. The trial court subsequently imposed a total prison sentence
of eight years for Bronczyk’s convictions. 8
{¶ 21} Bronczyk presents the following six assignments of error in this
appeal.
{¶ 22} “I. The Appellant was denied his right of due process
based upon ineffective assistance of counsel.
{¶ 23} “II. The evidence was insufficient to sustain a finding of
guilt because the state failed to present evidence to establish beyond
a reasonable doubt the elements necessary to support the conviction
[sic].
{¶ 24} “III. Appellant’s convictions were against the manifest
weight of the evidence.
{¶ 25} “IV. The trial court violated Appellant’s constitutional
right to remain silent when it permitted introduction of State’s
Exhibit 3.
{¶ 26} “V. The trial court abused its discretion in sentencing
Appellant to the maximum penalty without consideration of the
overriding purposes of felony sentencing or the mandatory
sentencing factors.
{¶ 27} “VI. The trial court abused its discretion in sentencing
Appellant to the maximum period of incarceration without 9
articulating judicially reviewable reasons for imposition of the
sentence.”
{¶ 28} Bronczyk argues in his first assignment of error that his trial
counsel provided ineffective assistance for failing to file a motion to sever the
counts of the indictment for trial. He contends the joinder of the two
incidents for trial violated Evid.R. 404(B). This court disagrees.
{¶ 29} In order to successfully assert a constitutional claim of ineffective
assistance of counsel, a defendant must show not only that his attorney made
errors so serious that she was not functioning as “counsel,” as guaranteed by
the Sixth Amendment, but also that the deficient performance was so serious
as to deprive defendant of a fair and reliable trial. Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989),
42 Ohio St.3d 136, 538 N.E.2d 373.
{¶ 30} Since there are many ways to provide effective assistance in any
given case, judicial scrutiny of counsel’s performance must be highly
deferential, and there will be a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance. Id.; see,
also, Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164. Thus,
counsel will not be deemed ineffective for failing to make futile motions. 10
State v. Kirk, Cuyahoga App. Nos. 95260 and 95261, 2011-Ohio-1687, ¶44,
citing State v. Leonard, Cuyahoga App. No. 93496, 2010-Ohio-3601, ¶27.
{¶ 31} Crim.R. 8(A) allows for the joinder of multiple offenses in the
same indictment “if the offenses charged * * * are of the same or similar
character, or are based on the same act or transaction, or are based on two or
more acts or transactions connected together or constituting parts of a
common scheme or plan, or are part of a course of criminal conduct.”
(Emphasis added.)
{¶ 32} Generally, the law favors joining multiple offenses in a single
trial if the offenses are “of the same or similar character.” State v. Lott
(1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. A defendant who challenges
joinder must demonstrate the joinder prejudiced his rights. Id.
{¶ 33} A defendant’s claim of prejudicial joinder may be rebutted in two
ways, viz., first, if in separate trials the state could introduce evidence of the
joined offenses as “other acts” under Evid.R. 404(B), and, second, if the state
can show that “evidence of each crime joined at trial is simple and direct.”
Id.; see, also, State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d
1239, ¶198. “Thus, when simple and direct evidence exists, an accused is not
prejudiced by joinder regardless of * * * Evid.R. 404(B).” Lott at 163. 11
{¶ 34} A review of the record in this case demonstrates joinder was
proper because the offenses were of the same or a similar character and were
part of the same course of criminal conduct. Each incident involved
Bronczyk’s attempt to burglarize a home in his neighborhood. Two
straight-forward incidents occurred, the evidence involving each incident was
simple and direct, and there is no indication from the record that the jury
confused the evidence. State v. Shabazz, Cuyahoga App. Nos. 95567 and
95588, 2011-Ohio-2919, ¶31.
{¶ 35} Under these circumstances, Bronczyk cannot demonstrate trial
counsel provided ineffective assistance by failing to challenge joinder of the
offenses in the same indictment. State v. Fannin, Delaware App. No.
10CAA030028, 2011-Ohio-3211; see, also, Kirk at ¶45. Bronczyk’s first
assignment of error, accordingly, is overruled.
{¶ 36} In his second assignment of error, Bronczyk argues that the trial
court erred in denying his motions for acquittal, because his convictions in
Counts 1, 2, and 4 1 are not supported by sufficient evidence. This court
agrees with his argument in part, and also finds plain error occurred with
respect to his conviction on Count 6.
1 Bronczyk presents no argument with respect to his convictions for possession of criminal tools and tampering with evidence. 12
{¶ 37} A motion for acquittal under Crim.R. 29(A) is governed by the
same standard used 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. “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.
{¶ 38} Bronczyk was convicted of several different offenses. Count 1
charged him with burglary, in violation of R.C. 2911.12(A)(2), which provides
that “[n]o person, by force, stealth, or deception, shall * * * [t]respass in 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,” in this case, as charged in Count 2, theft.
{¶ 39} Bronczyk asserts the state provided insufficient evidence that he
trespassed in Mueller’s house with the purpose to commit a theft, because the
evidence indicated Bronczyk actually did not take anything. However, the
actual commission of the theft is immaterial; it is necessary only that the
defendant had that purpose. State v. Colegrove (1998), 123 Ohio App.3d 565, 13
704 N.E.2d 645; see, also, State v. Khomkalov, Cuyahoga App. No. 94600,
2011-Ohio-327.
{¶ 40} Proof of guilt may be made by circumstantial evidence, real
evidence, and direct evidence, or any combination of the three, and all three
have equal probative value. State v. Nicely (1988), 39 Ohio St.3d 147, 529
N.E.2d 1236. “Circumstantial evidence and direct evidence inherently
possess the same probative value and therefore should be subjected to the
same standard of proof.” State v. Jenks (1991), 61 Ohio St.3d 259, 574
N.E.2d 492, at paragraph two of the syllabus.
{¶ 41} In this case, the police interrupted Bronczyk as he was backing
out of a second-story window. Bronczyk lacked a legitimate reason for going
into Mueller’s house, provided a preposterous reason for his actions there,
and appeared to leave inside near the window a box of valuables that he was
unable to remove because the police surprised him. This evidence was
sufficient to prove Bronczyk committed burglary and theft, as alleged in
Counts 1 and 2. Khomkalov.
{¶ 42} However, the record reflects the state provided no evidence to
prove either portion of the furthermore clause attached to Count 2. No one
testified about Mueller’s date of birth. Moreover, Mueller never provided his
age, and stated he was at work when the incident occurred; therefore, he was 14
not retired. In addition, although Mueller testified some items of value to
him had been placed into the box found by the window, he provided no dollar
amount from which the jury could determine the cost of those items.
{¶ 43} Under these circumstances, Bronczyk’s conviction for felony theft
is based upon insufficient evidence. His conviction on Count 2, therefore,
must be modified to first-degree misdemeanor theft. R.C. 2913.02(B)(2).
{¶ 44} The trial court acted appropriately in denying Bronczyk’s motion
for acquittal with respect to Count 4. Williams’s testimony that Bronczyk
was a stranger to her and that, after he entered her backyard, he tried to “get
into the window of [her] children’s bedroom” before he approached her door
“with a screwdriver in his hand” constituted sufficient circumstantial
evidence to establish the elements of attempted burglary. State v. Carson,
Medina App. No. 10CA0094-M, 2011-Ohio-4989; State v. Gibbs, Cuyahoga
App. No. 94349, 2011-Ohio-76.
{¶ 45} Although Bronczyk presents no argument with respect to his
conviction on Count 6,2 this court finds plain error occurred when the trial
court denied Bronczyk’s motion for acquittal on that count. Bronczyk was
charged therein with violating R.C. 2921.12(A)(1), which states: “No person,
knowing that an official proceeding or investigation is in progress, or is about
2See fn. 1. 15
to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove
any * * * thing, with purpose to impair its value or availability as evidence in
such proceeding or investigation.”
{¶ 46} According to O’Grady, as he approached Bronczyk’s house he saw
Bronczyk grab the side door handle, make “eye contact,” and enter his home.
After Bronczyk’s arrest, O’Grady found a screwdriver on the driveway near
the side door.
{¶ 47} O’Grady did not see Bronczyk either holding the tool, disposing of
it, or even discarding it. According to O’Grady, the screwdriver lay in plain
view and displayed nothing unusual; it was not even dirty. A police officer’s
testimony that he retrieved an obvious item, without more, is insufficient to
prove the defendant committed the crime of tampering with evidence. State
v. Spears, 178 Ohio App.3d 580, 2008-Ohio-5181, 899 N.E.2d 188; cf., State v.
Gosha, Cuyahoga App. No. 95290, 2011-Ohio-2278 (citing cases in which the
defendant “threw” the item during a chase). Consequently, Bronczyk’s
conviction for that offense is reversed.
{¶ 48} Bronczyk’s second assignment of error, therefore, is overruled in
part and sustained in part.
{¶ 49} Bronczyk argues in his third assignment of error that his
convictions for burglary, theft, and attempted burglary are against the 16
manifest weight of the evidence. He bases this argument, in part, on
Mueller’s testimony that he “believed” Bronczyk’s explanation for his
presence on the roof, and Williams’s admission that she did not know
Bronczyk’s reason for being at her house.
{¶ 50} In reviewing a claim challenging the manifest weight of the
evidence, the appellate court determines whether “there is substantial
evidence upon which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.” State v. Leonard, 104 Ohio
St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶81. This court examines the
entire record in order to determine whether the jury clearly lost its way and
created such a manifest miscarriage of justice that the convictions must be
reversed and a new trial ordered. Id.
{¶ 51} The jury did not lose its way in evaluating the evidence presented
in this case. Carson; State v. Austin, Lucas App. No. L-09-1011,
2009-Ohio-6258; Gibbs. Clearly, Mueller tried to withdraw his written
statement to the police alleging Bronczyk committed burglary and theft
because Bronczyk and his mother later elicited Mueller’s sympathy.
{¶ 52} Moreover, although Bronczyk presented testimony indicating he
had an innocent reason for entering Mueller’s house, and, at the time
Williams experienced the attempted break-in at her home, he was at home 17
helping his mother, Bronczyk’s mother was hardly an objective witness.
During her testimony, she not only prevaricated at times, but also
contradicted herself at some points. The jury reasonably could determine
she provided an unreliable account of her son’s actions. Therefore,
Bronczyk’s convictions are supported by the manifest weight of the evidence.
{¶ 53} Accordingly, Bronczyk’s third assignment of error is overruled.
{¶ 54} Bronczyk argues in his fourth assignment of error that the trial
court violated his constitutional rights when it permitted the state to
introduce into evidence a letter Mueller wrote on Bronczyk’s behalf to an
“Officer Roy.” Bronczyk contends the letter allowed the jury to infer that he
had a past history of criminal behavior.
{¶ 55} A trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case; therefore, an appellate court’s
review of the trial court’s decision is limited to whether the lower court
abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543
N.E.2d 1233; Jenks at 281. The term “abuse of discretion” implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable. Finnerty.
{¶ 56} In this case, no abuse of discretion occurred, because the record
reflects that “Officer Roy” was never identified. The state presented several
Parma police officers as witnesses in this case. Although Bronczyk objected 18
to the letter on the basis that it was written to his probation officer, the jury
could not have known that fact. Mueller acknowledged that he no longer
desired to pursue criminal charges against Bronczyk for the July 15, 2010
incident. His letter simply reflected his change of heart.
{¶ 57} In light of the ambiguity of the identity of “Officer Roy,” this court
cannot find that the trial court either violated Bronczyk’s constitutional
rights or abused its discretion in admitting the letter into evidence. See, e.g.,
State v. Brust (June 26, 1992), Pike App. No. 478. Bronczyk’s fourth
{¶ 58} Bronczyk’s fifth and sixth assignments of error challenge his
sentence. He contends that the trial court “failed to consider [either] the
proportionality or the consistency of the sentence” when it imposed a
“maximum” term upon him, and that the trial court failed to provide its
reasons for choosing a “maximum sentence.”
{¶ 59} This court previously has determined herein that Bronczyk’s
conviction for theft must be modified and his conviction for tampering with
evidence is reversed. This disposition necessitates a remand of this case for
resentencing consistent with the premise set forth by the Ohio Supreme
Court in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824;
cf., State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381. To 19
the extent his contentions pertain to his other convictions, they lack merit for
three reasons.
{¶ 60} First, Bronczyk did not receive a “maximum” sentence. The trial
court stated it would not impose “any RVO time,” and, in addition, imposed
concurrent rather than consecutive terms for all of Bronczyk’s convictions.
{¶ 61} Second, the record reflects the trial court considered the statutory
guidelines before pronouncing sentence. Bronczyk did not raise the issue of
proportionality either prior to or at the sentencing hearing; consequently, he
waived the issue he presents in his fifth assignment of error. State v.
Gonzales, Cuyahoga App. No. 96058, 2011-Ohio-4415, ¶20.
{¶ 62} Third, the trial court is not required to provide reasons for its
decisions in sentencing. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320,
941 N.E.2d 768. Nevertheless, the trial court noted that earlier “lenient”
sentences had failed to deter Bronczyk’s criminal behavior, and his
victimization of his neighbors in this case warranted a stronger deterrent.
This court cannot find the trial court abused its discretion under these
circumstances. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124.
{¶ 63} For the foregoing reasons, Bronczyk’s fifth and sixth assignments
of error are overruled. 20
{¶ 64} Bronczyk’s convictions and sentences for burglary, attempted
burglary, and possession of criminal tools are affirmed. His conviction for
theft in Count 2 is modified, and his conviction for tampering with evidence in
Count 6 is reversed and vacated. This case is remanded for resentencing
consistent with this opinion.
It is ordered that appellant recover from 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. The defendant’s
convictions having been affirmed in part, any bail pending appeal is
terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________ KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and SEAN C. GALLAGHER, J., CONCUR