[Cite as State v. Curley, 2024-Ohio-1031.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30510
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE RICHARD CURLEY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 21 10 36787
DECISION AND JOURNAL ENTRY
Dated: March 20, 2024
FLAGG LANZINGER, Judge.
{¶1} Defendant-Appellant Richard Curley appeals from his convictions for multiple
counts of burglary and attempted burglary in the Summit County Court of Common Pleas. This
Court affirms.
I.
{¶2} On October 19, 2021, a grand jury indicted Curley on one count of burglary, a
felony of the second degree, in violation of R.C. 2911.12(A)(2). He was also charged with seven
counts of attempted burglary, felonies of the third degree, in violation of R.C. 2911.12(A)(2)/R.C.
2923.02. On June 22, 2022, the State filed a supplemental indictment charging Curley with an
additional two counts of burglary and an additional seven counts of attempted burglary. Prior to
trial, the State dismissed multiple counts and amended the indictment to renumber the remaining
three counts of burglary and seven counts of attempted burglary. Curley pleaded not guilty. 2
Throughout the proceedings and trial Curley represented himself with assistance from court-
appointed standby counsel.
{¶3} Curley moved to suppress evidence obtained from his vehicle. After a hearing, the
trial court denied Curley’s motion to suppress.
{¶4} The matter proceeded to a jury trial. The State called twenty witnesses to testify.
Additionally, many exhibits were admitted as evidence at trial, including security camera videos,
body camera videos, recordings of 911 calls, and photographs. Curley chose not to testify or call
any witnesses.
{¶5} After hearing the evidence, the jury found Curley guilty of three counts of burglary
and four counts of attempted burglary. Curley now appeals raising two assignments of error for
our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING MR. CURLEY’S MOTION TO SUPPRESS THE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT THAT WAS ISSUED AND EXECUTED IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶6} In his first assignment of error, Curley argues that the trial court erred when it
denied his motion to suppress evidence because the judge executed a search warrant in violation
of his constitutional rights. Curley presents two arguments. First, Curley argues the affidavit
supporting the search warrant did not sufficiently identify the items to be searched and seized from
the car. Second, Curley asserts that there was no probable cause for police to obtain a search
warrant of Curley’s car, asserting that the supporting affidavit failed to show a sufficient nexus
between the vehicle and the burglary investigation. We disagree. 3
{¶7} As a preliminary matter, “[a]rguments that were not raised in the trial court cannot
be raised for the first time on appeal.” JPMorgan Chase Bank, N.A. v. Burden, 9th Dist. Summit
No. 27104, 2014-Ohio-2746, ¶ 12. In his motion to suppress, Curley quoted the law and asserted
his rights were violated. However, “a motion to suppress evidence * * * must state the motion’s
legal and factual bases with sufficient particularity to place the prosecutor and the court on notice
of the issues to be decided.” State v. Shindler, 70 Ohio St. 3d 54 (1994), syllabus. Other than
quoting relevant caselaw and asserting his rights were violated, Curley did not challenge the
particularity of the warrant’s description of the items sought. Curley did not state the legal and
factual bases with sufficient particularity to place the prosecutor and court on notice. Additionally,
the issue was not raised with sufficient particularity by Curley at his suppression hearing. Curley
raises this argument for the first time on appeal. Accordingly, this Court will not consider Curley’s
first argument regarding particularity.
{¶8} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,
the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357,
366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if they are
supported by competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d
19 (1982). “Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Burnside at ¶ 8, citing State v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).
Accordingly, this Court grants deference to the trial court’s findings of fact but conducts a de novo 4
review of whether the trial court applied the appropriate legal standard to those facts. State v.
Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 12 (9th Dist.).
{¶9} A search warrant may only be issued “‘upon probable cause,’ meaning only when
the affidavit supporting the warrant establishes a ‘fair probability that contraband or evidence of a
crime will be found in a particular place * * *.’” State v. Schubert, 171 Ohio St.3d 617, 2022-
Ohio-4604, ¶ 11, quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). On appeal, the duty of this
Court is to ensure that the magistrate had a substantial basis for concluding that probable cause
existed. Schubert at ¶ 11. “[E]ven though the existence of probable cause is a legal question[,] *
* * a warrant should be upheld when the issuing judicial officer had a substantial basis for believing
that probable cause existed, regardless of what the reviewing court’s independent determination
regarding probable cause might be.” Id. “[T]rial and appellate courts should accord great
deference to the magistrate’s determination of probable cause, and doubtful or marginal cases in
this area should be resolved in favor of upholding the warrant.” State v. George, 45 Ohio St.3d
325 (1989), paragraph two of the syllabus.
{¶10} Curley asserts that the affidavit that Detective Kelley submitted in support of the
search warrant lacked probable cause. Curley asserts that there were no facts within the affidavit
to suggest that Curley’s car “was in any way used in the commission of the alleged offenses.”
Curley further asserts that his car was parked legally and was only located because police looked
for a car registered in his name. In the affidavit supporting the search warrant, Detective Kelley
averred that: (1) he had been employed by the Akron Police Department for 24 years, (2) he was
investigating a burglary that occurred on October 5, 2021, on Ecton Road, (3) within the previous
month, Detective Kelley was investigating other “burglaries in the same area with property * * *
taken during the incidents” and that “various sources of security footage depict[ed Curley] 5
attempting to break into homes in the same area[,]” (4) on October 5, 2021, “Ring Doorbell Camera
footage” showed Curley entering a residence’s “enclosed porch and peering through the
windows[,]” (5) multiple witnesses reported observing Curley “casing” the neighborhood, (6)
Curley was arrested after residents around Ecton Road chased and cornered Curley, (7) Akron
Police had located an abandoned vehicle registered to Curley in the Ecton Road area,
approximately one-half mile from the location of Curley’s arrest, (8) Curley’s vehicle was secured
and towed for processing, and (9) Curley had “a substantial criminal history and was recently
released from prison for burglary and related offenses.”
{¶11} Upon review of the detective’s affidavit, we conclude that it provided the magistrate
or judge with a substantial basis for concluding that probable cause existed. See Schubert at ¶ 11.
The detective’s statements within the affidavit created a fair probability that contraband or
evidence of a crime would be found within the car. We, therefore, conclude that the trial court did
not err when it denied Curley’s motion to suppress. Curley’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
MR. CURLEY’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE POSSESSION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶12} Curley argues that his convictions for burglary and attempted burglary are against
the manifest weight of the evidence. We disagree.
{¶13} When considering a challenge to the manifest weight of the evidence, this Court is
required to consider the entire record, “weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine 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 6
must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
“A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily
against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26.
This Court “will not overturn a conviction as being against the manifest weight of the evidence
simply because the trier of fact chose to believe the State’s version of events over another version.”
State v. Warren, 9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 25, quoting State v. Tolliver, 9th
Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 15.
{¶14} Initially, we note that in Curley’s arguments he asserts several times that the State
did not set forth evidence to support certain elements of his convictions. He contends both that the
trier of fact lost its way and that the State failed to prove all elements of the crimes charged beyond
a reasonable doubt. The latter argument, however, sounds in sufficiency rather than weight. See
State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25 (“Sufficiency concerns the
burden of production and tests whether the prosecution presented adequate evidence for the case
to go to the jury.”). Because Curley’s stated assignment of error presents this Court with strictly a
weight challenge and because that is the only standard of review that he sets forth in his brief, we
limit our review to that issue. See State v. Poland, 9th Dist. Medina No. 14CA0003-M, 2014-Ohio-
5737, ¶ 24. See also State v. Kepich, 9th Dist. Summit No. 27520, 2015-Ohio-1920, fn.1.
{¶15} An individual who violates R.C. 2911.12(A)(2) is guilty of burglary. R.C.
2911.12(D). R.C. 2911.12(A)(2) states that “[n]o person, by force, stealth, or deception, shall * *
* [t]respass 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 * * *.” “‘Force’ means any violence, compulsion, or 7
constraint physically exerted by any means upon or against a person or thing.” R.C.
2901.01(A)(1).
{¶16} Attempt is defined by R.C. 2923.02(A), which provides that “[n]o person,
purposely or knowingly, and when purpose or knowledge is sufficient culpability for the
commission of an offense, shall engage in conduct that, if successful, would constitute or result in
the offense.” Thus, “[a] criminal attempt occurs when the offender commits an act that constitutes
a substantial step toward the commission of an offense.” State v. Carson, 9th Dist. Summit No.
26900, 2013-Ohio-5785, ¶ 26. “A person acts purposely when it is the person’s specific intention
to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, it is the offender’s specific
intention to engage in conduct of that nature.” R.C. 2901.22(A).
Count One – Ecton Road Burglary
{¶17} Count one of the indictment alleged that Curley committed burglary on October 5,
2021, at a residence located on Ecton Road. Curley argues that the jury’s determination that he
gained access to that residence by force, stealth, or deception was against the manifest weight of
the evidence. Additionally, Curley argues that the jury’s determination was against the manifest
weight of the evidence because no items were stolen from the residence.
{¶18} At trial, L.W. testified that he lives at his residence on Ecton Road in Akron. L.W.
testified that he has a motion activated Ring Doorbell on his front and back doors. L.W. testified
that on October 5, 2021, at 3:28 a.m. he received an alert from Ring that someone was inside his
attached “[e]ntirely enclosed” back porch. After receiving the alert, L.W. “jumped out of bed,
grabbed [his] phone, [and] ran down the steps” from the second floor. Once on the ground floor,
L.W. testified that he saw an individual “leaving the back” of his enclosed porch. L.W. called 911. 8
The recording of the 911 call was played during trial, in which L.W. explains that “the prowler”
left his house through the backdoor of his porch as he came downstairs, but he captured a video of
him. L.W. testified that the man fled the scene, going around his house towards the front, and then
further down the road. L.W. provided Akron Police with one video, which was admitted as
evidence during trial. The footage from the camera, which is located inside his enclosed porch,
shows a man, who was later identified as Curley, walking inside the porch and looking into the
home.
{¶19} Officer Culver testified that he was L.W.’s neighbor and an off-duty police officer.
Officer Culver also lived on Ecton Road. Officer Culver was alerted by his Blink Camera that
someone was in his front yard and near his front door. He walked outside looking for the person
but did not see anything. He walked around looking for someone when he heard a “siren going off
at [his] neighbor’s house.” He began to pursue the man, who fled from the neighbor’s yard when
the sirens activated.
{¶20} K.H. testified that he lives at a third residence on Ecton Road. K.H. testified that he
had a Ring security camera alarm system. The Ring security system woke him with an alert
indicating someone was in his driveway. When he viewed the video feed on his phone, he saw a
man in his driveway. K.H. went downstairs and looked out the window. He saw his neighbor,
Officer Culver, walking in the road “definitely in pursuit” of someone. K.H. testified that he knew
someone was in his driveway, so he decided to open his door. Opening his door tripped K.H.’s
alarm and activated the exterior lights of his house and a siren. Officer Culver and K.H. both
testified that with the lights and siren activated, the man fled across the street, and was pursued by
Officer Culver. K.H. grabbed a taser and exited his house to assist Officer Culver in attempting to
apprehend the man. K.H. followed the man and Officer Culver until he found them wrestling on 9
the ground. K.H. used the taser on the man, who then surrendered until the authorities arrived. The
police identified the man to be Curley. L.W. identified Curley as the man who L.W. witnessed
leaving his enclosed porch.
{¶21} The jury’s determination that Curley entered the residence on Ecton Road by force,
stealth, or deception is not against the manifest weight of the evidence. The evidence at trial
established that Curley was inside the attached enclosed porch at L.W.’s house, which is accessed
by means of a door. We cannot conclude that the jury lost its way by choosing to believe Curley
used force to open the door. See Snyder at ¶ 19; R.C. 2901.01(A)(1).
{¶22} Curley’s argument that the jury’s verdict is against the manifest weight of the
evidence because nothing was stolen from the Ecton Road residence lacks merit. Contrary to
Curley’s argument, R.C. 2911.12(A)(2) does not require an offender to steal anything. R.C.
2911.12(A)(2) only mandates that an offender trespass in an occupied structure “with purpose to
commit in the habitation any criminal offense * * *.” Other courts have held that, “[w]here a person
forces entry into a structure, it is reasonable to infer that he did so with the intent to commit a theft
offense, in the absence of circumstances giving rise to a different inference.” State v. New, 10th
Dist. Franklin No. 05AP-930, 2006-Ohio-2965, ¶ 15. See also State v. Levingston, 106 Ohio App.
3d 433, 437 (2d Dist.1995). The jury could reasonably infer that Curley had used force to enter the
enclosed porch and that he had entered with the intention to commit a theft. Having reviewed the
record, this Court concludes that this is not the exceptional case in which the evidence weighs
heavily against Curley’s conviction on count one. Otten, 33 Ohio App.3d at 340.
Count Nine – Portage Drive Burglary
{¶23} Count nine of the indictment alleged that Curley committed burglary at a Portage
Drive residence. Curley argues that the jury’s determination that he gained access to the Portage 10
Drive residence by force, stealth, or deception was against the manifest weight of the evidence.
Additionally, Curley argues that the jury’s verdict was against the manifest weight of the evidence
because the jury could infer someone else may have committed the burglary.
{¶24} During the trial, the State called M.S. Sr. who testified that he lives on Portage
Drive in Akron. M.S. Sr. testified that he owns an ADT security system which is activated “when
you open the doors” to the house while the alarm is armed. He further testified that on September
29, 2021, between 3:00 a.m., and 5:00 a.m., his security alarm went off while he was sleeping.
After waking, M.S. Sr. went downstairs to discover a window and his back door open. M.S. Sr.
testified that after securing his house, he called the police. After the police arrived, M.S. Sr. and
the police noticed that a screen had been lifted on a second window, though the window was locked
and not opened.
{¶25} M.S. Jr. also testified that he lives at the same residence on Portage Drive. M.S. Jr.
testified that after his father had called the police, he noticed that his black Motorola cellphone
was missing. The cellphone had a crack in it. Using an online tracker, M.S. Sr. was able to track
the missing phone to a local pawn shop.
{¶26} The State also called Akron Police Detective Kelley who testified that in September
of 2021, he was assigned to investigate multiple burglaries in the Highland Square area. Detective
Kelley testified that he visited National Jewelry and Pawn as part of his investigation. Detective
Kelley spoke with the shop’s manager, S.T. The State called S.T. who testified that he is the
manager of National Jewelry and Pawn. S.T. testified that on September 29, 2021, Curley
attempted to pawn a cellphone, but it was cracked. S.T. testified that he could identify Curley as
the individual who attempted to pawn the cracked cellphone because he had a copy of Curley’s 11
driver’s license. Detective Rhodaback testified that M.S. Jr.’s phone was found while executing
the search within Curley’s car.
{¶27} The jury’s determination that Curley entered the residence on Portage Drive by
force, stealth, or deception was not against the manifest weight of the evidence. M.S. Sr. testified
that the residence was secured by a security system. That security system alarm went off in the
early morning of September 29, 2021. M.S. Sr. testified that he discovered a door and window
opened. Another window’s screen had been moved. M.S. Jr. testified that his cellphone was
missing from the ground floor. “‘Force’ means any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). We cannot conclude
that the jury lost its way by choosing to believe Curley attempted to open the first window,
successfully opened the second window, and then opened the door. See Snyder, 2011-Ohio-175,
at ¶ 19.
{¶28} Curley’s argument that the jury’s verdict is against the manifest weight of the
evidence because the jury could infer someone else may have committed the burglary lacks merit.
The State presented evidence that Curley attempted to pawn a cracked cellphone at National
Jewelry and Pawn hours after the burglary on Portage Drive. Police officers found M.S. Jr.’s
cracked cellphone in Curley’s vehicle. While Curley admits the evidence at trial demonstrates that
Curley possessed M.S. Jr.’s cellphone, he alleges it fails to establish that he stole the cracked
cellphone. We cannot conclude that the jury lost its way by choosing to infer that Curley’s
possession of the phone indicated that he had committed the burglary. See State v. Smith, 6th Dist.
Lucas Nos. L-16-1113, L-16-1114, L-16-1115, 2017-Ohio-5762, ¶ 57. Having reviewed the
record, this Court concludes that this is not the exceptional case in which the evidence weighs 12
heavily against Curley’s conviction on count nine. State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986).
Count Ten –Barwell Street Burglary
{¶29} Count ten of the indictment alleged that Curley committed burglary at a residence
located on Barwell Street. Curley argues that the jury’s determination on count ten that he gained
access to the Barwell Street residence by force, stealth, or deception was against the manifest
weight of the evidence. Additionally, Curley argues that the jury’s verdict was against the manifest
weight of the evidence because the jury could infer someone else may have committed the
burglary.
{¶30} At trial, E.P. testified that he lives on Barwell Street. He testified that he purchased
a gold watch and a gold chain and retained the receipts for those purchases. He further testified
that he stored those items on a table in the entry to his kitchen, “about eight feet” inside his side
door. E.P. testified that the watch and necklace were reported stolen in September 2021. E.P.
testified that he knew Curley because they worked together at Mustard Seed Café. Though he was
familiar with Curley, E.P. had never invited Curley to his home, nor did he give his gold watch
and gold chain to Curley.
{¶31} S.T., the manager of National Jewelry and Pawn, testified that on September 29,
2021, Curley pawned E.P.’s gold watch for $40. Detective Kelley testified that E.P.’s gold chain
was found in Curley’s possession at the time of his arrest.
{¶32} As with Count 9, the jury’s determination that Curley entered the residence on
Barwell Street by force, stealth, or deception is not against the manifest weight of the evidence.
Curley pawned E.P.’s gold watch and was in possession of E.P.’s gold chain at the time of his
arrest. We cannot conclude that the jury lost its way by choosing to infer that Curley’s possession 13
of the E.P.’s gold watch and E.P.'s gold chain indicated that he had committed the burglary. See
Smith, 2017-Ohio-5762, at ¶ 57. The jury could reasonably infer that Curley gained access via the
closed side door and stole E.P.’s items.
{¶33} Curley’s argument that the jury’s verdict is against the manifest weight of the
evidence because the jury could infer someone else may have committed the burglary also lacks
merit. “Circumstantial evidence and direct evidence inherently possess the same probative value
* * *.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus. “Although the
State was unable to produce any physical evidence or eyewitness testimony definitively placing
[Curley] at [the residence on Barwell Street], the State set forth a wealth of circumstantial evidence
implicating [Curley].” State v. Garcia, 9th Dist. Summit Nos. 27810, 27811, 2016-Ohio-4667, ¶
41. E.P. testified that he stored his gold watch and gold chain in his kitchen. The items were
reported stolen from his residence. Curley was in possession of E.P.’s gold necklace when he was
arrested. Curley pawned E.P.’s watch. Having thoroughly reviewed the record, we cannot conclude
that the jury lost its way when it convicted Curley on count ten for burglary. See Otten, 33 Ohio
App.3d at 340.
Count Four – Kathleen Street Attempted Burglary
{¶34} Count four of the indictment alleged that Curley committed attempted burglary on
September 20, 2021, at a residence located on Kathleen Street. Curley argues that his conviction
for attempted burglary on Count 4 is against the manifest weight of the evidence because (1)
nothing was stolen from the residence on Kathleen Street, and (2) Curley never gained access to
the residence on Kathleen Street.
{¶35} At trial, J.G. testified that she lives on Kathleen Street in Akron. J.G. testified that
she has a motion-activated Blink camera system. She testified that on September 20, 2021, she 14
received an alert of “[s]omeone walking up on the porch at 4:30 in the morning, realizing that the
camera clicked on, and then trying to hide.” The Blink camera video was admitted at trial and
shows a man, later identified as Curley, walking up to the front door of the house, seeing the
camera, and then ducking out of view. J.G. additionally testified that a screen had been pulled
away from her window, stating she “realized there was a screen that * * * someone had obviously
started to try to move * * *.” A photograph of the damaged screen was admitted as evidence.
{¶36} Curley’s arguments that the jury’s verdict is against the manifest weight of the
evidence on count four because he never stole property from the residence on Kathleen Street or
gained access to Kathleen Street lack merit. To prove attempted burglary, the State need not show
that the defendant was successful in entering the property or stealing anything. See State v.
Daylong, 10th Dist. Franklin No. 19AP-279, 2021-Ohio-4192, ¶ 39 (10th Dist.); State v. Dillard,
10th Dist. Franklin Nos. 18AP-178, 18AP-179, 2018-Ohio-4842, ¶ 25; State v. Clelland, 83 Ohio
App.3d 474, 488 (4th Dist.1994). “A criminal attempt occurs when the offender commits an act
that constitutes a substantial step toward the commission of an offense.” Carson, 2013-Ohio-5785,
at ¶ 26. The Blink camera footage shows Curley ducking out of sight. J.G. testified that her
window’s screen was damaged as though someone had attempted to enter her home. We cannot
conclude that the jury lost its way by choosing to infer that Curley was responsible for damaging
the screen when the Blink camera footage showed Curley present at the residence. This Court has
previously held that evidence that a residence has signs of forced entry shows an attempt to enter
the residence by force. See State v. Golston, 9th Dist. Summit No. 22154, 2005-Ohio-8, ¶ 18. After
a careful review of the record, this Court cannot conclude that the jury lost its way and created a
manifest miscarriage of justice when it found Curley guilty on count four of attempted burglary.
See Otten, 33 Ohio App.3d at 340. 15
Count Five – Casterton Road Attempted Burglary
{¶37} Count five of the indictment alleged that Curley committed attempted burglary on
September 20, 2021, at a residence located on Casterton Road. Curley argues that his conviction
for attempted burglary on count five is against the manifest weight of the evidence because (1)
nothing was stolen from the residence on Casterton Road, and (2) Curley never gained access to
the residence on Casterton Road.
{¶38} At trial, B.K. testified that she lives on Casterton Road in Akron. B.K. testified that
she owns a Ring camera system that is motion activated and sends alerts to her cellphone. She
testified that she received an alert of an unidentified person in her yard and at her backdoor at 3:14
a.m. on September 23, 2021. She provided two videos to Akron Police, which were viewed during
the trial. The videos show Curley approaching the backdoor of the residence via the driveway,
entering the enclosure which surrounded the backdoor, and then leaving that enclosure to exit
around towards the other side of the house.
{¶39} Curley’s arguments that the jury’s verdict is against the manifest weight of the
evidence on count five because he never stole property from the residence on Casterton Road or
gained access to Casterton Road lack merit. To prove attempted burglary, the State need not show
that the defendant was successful in entering the property or stealing anything. See Daylong, 2021-
Ohio-4192, at ¶ 39; Dillard, 2018-Ohio-4842, at ¶ 25; Clelland, 83 Ohio App.3d at 486. “A
criminal attempt occurs when the offender commits an act that constitutes a substantial step toward
the commission of an offense.” Carson, 2013-Ohio-5785, at ¶ 26. The video camera shows Curley
approaching the backdoor of the residence and entering the enclosure which surrounded the
backdoor. Ohio courts have held that evidence establishing an offender’s attempt to enter a
stranger’s residence at night, without explanation, raises an inference that the offender intended to 16
commit a theft offense in the residence. E.g., State v. Burgett, 3d Dist. Marion No. 9-10-37, 2010-
Ohio-5945, ¶ 25. After a careful review of the record, this Court cannot conclude that the jury lost
its way and created a manifest miscarriage of justice when it found Curley guilty of attempted
burglary. See Otten, 33 Ohio App.3d at 340.
Count Seven & Count Eight – Kenilworth Drive Attempted Burglaries
{¶40} Counts seven and eight of the indictment alleged that Curley committed attempted
burglaries on October 3, 2021, at two residences located on Kenilworth Drive. Curley argues that
his convictions for attempted burglary on counts seven and eight are against the manifest weight
of the evidence because (1) nothing was stolen from either residence on Kenilworth Drive, and (2)
Curley never gained access to either residence on Kenilworth Road.
{¶41} At trial, C.F. testified that he lives at a residence on Kenilworth Drive in Akron.
C.F. testified that he owns a Blink Camera that sends alerts to his cellphone. C.F. testified that the
Blink Camera sent him an alert on October 3, 2021, at 5:30 a.m. After waking, C.F. viewed the
video recording sent from his Blink Camera. C.F. testified that he went downstairs and looked out
his front door. Across the street he saw the same man in the video, “attempting to break into the
front door of my neighbor across the street.” C.F. further testified that he watched the man leave
his neighbor’s porch, get into a dark colored Volkswagen, and drive away. At this point C.F. called
911. C.F. further testified that he did not know what happened between the time when he received
the Blink Camera Alert and when he walked downstairs to see someone on his neighbor’s porch.
C.F. provided Akron Police with one video, which was viewed during the trial. The Blink camera
video shows a man approaching the front door of C.F.’s residence on Kenilworth Drive, look up
and down the street, reach towards the doorknob, attempt to enter, and then turn away from the
door when it does not open. C.F. is the general manager at Mustard Seed Café and knows Curley 17
because he previously employed Curley as a line cook. C.F. identified Curley as the individual in
the video.
{¶42} M.G. testified that she lives at another residence on Kenilworth Drive in Akron.
M.G. testified that she does not have a security camera system. M.G. testified that when she woke
around 9:00 a.m. on October 3, 2021, and received a text sent earlier in the morning from C.F.
M.G. testified that she inspected her house and found that the doorknob to her side door had
“obviously been yanked on” so that she had to “rescrew in the doorknob[] so that it was tight.”
{¶43} Curley’s arguments that the jury’s verdict is against the manifest weight of the
evidence on counts seven and eight because he never stole from either Kenilworth Drive residence
lacks merit. To prove attempted burglary, the State need not show that the defendant successfully
stole anything. See Daylong, 2021-Ohio-4192, at ¶ 39. The video camera at C.F.’s residence on
Kenilworth Drive clearly shows Curley approaching the front door of the house, looking up and
down the street, attempting to open the door, and then leaving when the door does not open. C.F.
testified that he saw the same man in the Blink Camera video, “attempting to break into the front
door of my neighbor across the street.” M.G. testified that her doorknob had been damaged. With
regard to count seven at C.F.’s residence on Kenilworth Drive, an offender’s attempt to enter a
stranger’s residence at night, without explanation, raises an inference that the offender intended to
commit a theft offense in the residence. E.g., Burgett, 2010-Ohio-5945, at ¶ 25. With regard to
count eight at M.G.’s residence on Kenilworth Drive, this Court has previously held that evidence
that a residence has signs of forced entry or evidence that a doorknob was rattled shows an attempt
to enter the residence by force. Golston, 2005-Ohio-8, at ¶ 18. After a careful review of the record,
this Court cannot conclude that the jury lost its way and created a manifest miscarriage of justice
when it found Curley guilty of attempted burglary. See Otten, 33 Ohio App.3d at 340. 18
{¶44} Curley’s arguments that the jury’s verdict is against the manifest weight of the
evidence on counts seven and eight because he never gained access to either residence on
Kenilworth Drive also lacks merit. To prove attempted burglary, the State need not show that the
defendant was successful in entering the property. See Daylong, 2021-Ohio-4192, at ¶ 39. The
video camera at C.F.’s residence on Kenilworth Drive shows Curley approaching the front door of
the house, looking up and down the street, attempting to open the door, and then leaving when the
door does not open. C.F. testified that he saw the Curley, “attempting to break into the front door
of my neighbor across the street.” Other courts have held that evidence establishing an offender’s
attempt to enter a stranger’s residence at night, without explanation, raises an inference that the
offender intended to commit a theft offense in the residence. E.g., Burgett, 2010-Ohio-5945, at ¶
25. Though Curley was not able to gain access to the two residences, the jury could reasonably
infer that if he had been able to gain access to either residence, he would have entered. After a
careful review of the record, this Court cannot conclude that the jury lost its way and created a
manifest miscarriage of justice when it found Curley guilty of attempted burglary. See Otten, 33
Ohio App.3d at 340. We find that Curley’s convictions for attempted burglary on counts seven and
eight were not against the manifest weight of the evidence.
Other Arguments
{¶45} In setting forth his claim that his convictions are against the manifest weight of the
evidence, Curley makes other arguments relating to ineffective assistance of counsel and plain
error. His captioned assignment of error only pertains to the manifest weight of the evidence. This
Court has held that “[a]n appellant’s captioned assignment of error ‘provides this Court with a
roadmap on appeal and directs this Court’s analysis.’” State v. Pleban, 9th Dist. Lorain No.
10CA009789, 2011-Ohio-3254, ¶ 41, quoting State v. Marzolf, 9th Dist. Summit No. 24459, 2009- 19
Ohio-3001, ¶ 16. This Court will not address arguments that fall outside the scope of an appellant’s
captioned assignment of error. See Pleban at ¶ 41. Curley’s other arguments are outside the scope
of his stated assignment of error, and we decline to address them. App.R. 16(A)(7). Curley’s
second assignment of error is overruled.
III.
{¶46} Curley’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JILL FLAGG LANZINGER FOR THE COURT 20
SUTTON, P. J. HENSAL, J. CONCUR.
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee.