[Cite as State v. Mills, 2019-Ohio-706.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 107233
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN MILLS, JR.
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-621007-A
BEFORE: Boyle, J., Kilbane, A.J., and Headen, J.
RELEASED AND JOURNALIZED: February 28, 2019 ATTORNEY FOR APPELLANT
Rick L. Ferrara 2077 East 4th Street, Second Floor Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor BY: Nathaniel Tosi Anthony Thomas Miranda Assistant County Prosecutors Justice Center 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, John Mills, Jr., appeals his burglary conviction and sentence.
He raises three assignments of error for our review:
1. The state presented insufficient evidence of appellant’s guilt.
2. The manifest weight of evidence did not support a conviction of appellant.
3. The trial court erred in granting restitution for new security measures for the
victim’s home, a recovery not sanctioned under restitutionary law.
{¶2} Finding merit to Mills’s third assignment of error, we affirm in part, reverse in
part, and remand.
I. Procedural History and Factual Background
{¶3} On September 13, 2017, the Cuyahoga County Grand Jury indicted Mills for one
count of burglary in violation of R.C. 2911.12(A)(2), and one count of petty theft in violation of R.C. 2913.02(A)(1). Mills pleaded not guilty, and the case proceeded to a bench trial in March
2018.
{¶4} The state first called Jeremias Fuentes, the victim, who testified that on August 28,
2017, he was living by himself in the upstairs part of a duplex in Cleveland. He stated on that
day he was off work and that he went to the gym for about an hour. Fuentes testified that upon
returning home, he noticed things missing from his home, including a laptop, Bluetooth speaker,
jewelry and a watch, a television, and a book bag. He testified that the laptop cost him $300, the
speaker was $50, the watch was $250, the television was $250, and the book bag was $50. He
never received an estimate for the jewelry. He stated that he found a window and doors open
that were locked and closed when he left for the gym.
{¶5} Fuentes called the police, and as he waited he spoke with Mills in his driveway and
explained what happened. According to Fuentes, he noticed that Mills had an “aircast boot” on
his leg and was holding a drink. Fuentes stated that Mills asked if the intruder went “through the
window or something like that?” Fuentes said the conversation with Mills was “brief” and that
Mills “went on his way” shortly after.
{¶6} When a police officer arrived approximately two and one-half hours later, Fuentes
showed the officer his home and gave a statement. He stated that as the officer was about to
leave, Mills’s sister, Marcilla, approached. Fuentes explained that Marcilla lived next door with
her mother and brother. Marcilla had Fuentes’s book bag in hand, which contained his laptop.
Fuentes said that the laptop no longer worked and he had to purchase a new hard drive that cost
him $150. {¶7} Fuentes stated that although the police officer told him that a forensic team would
come out to take fingerprints, none did so. He also said that besides the initial officer, he spoke
to a detective over the phone the next day, August 29.
{¶8} The state next called Marcilla Mills. Marcilla lived with her mother and two
brothers and Mills stayed in the garage. She testified that when she came home and learned that
the neighbor’s house was broken into, she “started looking around” areas on her property. She
stated that Mills was sleeping in the garage when she returned home, and when she entered the
garage, she found “a book bag that had a laptop in it.” She said that the book bag was covered
by a coat. She said that she immediately took the book bag and laptop over to the neighbor’s
property and that the police officer was notified. She testified that after the police officer took
Mills into custody, she additionally found the Bluetooth speaker in a bag of chips and a television
cord also in the garage.
{¶9} Marcilla testified that she was not contacted by any law enforcement officials to
come out and take any further evidence after Mills was taken into custody and that the only items
the police officer took from the garage on August 28, 2017, were Mills’s wallet and identification.
{¶10} The state’s last witness was Detective James Holt, who was assigned to follow up
on the incident at Fuentes’s home. Detective Holt “reviewed the report and the details of the
arrest” and spoke with Marcilla, who “confirmed * * * where she recovered [Fuentes’s] property.”
He also said that he tried contacting Fuentes a number of times and spoke with him to confirm
the details of the report. Detective Holt stated that while the Scientific Investigation Unit
(“SIU”) was requested to go out and process the scene, there was never a follow-up. He
explained that the SIU does not perform follow-ups when it is unable to contact the victim or
when “the scene becomes contaminated and [SIU cannot] do it.” He stated that there were no attempts to collect DNA or fingerprint evidence from the Fuentes’ home. Detective Holt also
testified that he interviewed Mills after his arrest and that Mills denied committing the burglary.
{¶11} The state rested, and Mills moved for an acquittal under Crim.R. 29, which the trial
court denied. Mills did not call any witnesses and renewed his Crim.R. 29 motion, which the
trial court again denied.
{¶12} The trial court found Mills guilty of all charges. The trial court subsequently
sentenced Mills to a two-year prison term for burglary, a felony of the second degree, and a
180-day jail term (which Mills already served) for petty theft, a misdemeanor of the first degree.
The trial court advised Mills that “postrelease control [was] part of [his] prison sentence for up to
three years discretionary” for his felony conviction. The trial court also ordered restitution to the
victim in the amount of $623.
{¶13} In October 2018, the trial court issued a nunc pro tunc entry to correct its postrelease
control advisement. The journal entry stated that Mills was subject to postrelease control for
three years mandatory.
{¶14} It is from this judgment that Mills now appeals.
II. Law and Analysis
A. Sufficiency
{¶15} In his first assignment of error, Mills argues that there was insufficient evidence to
support his burglary conviction. Specifically, he argues that there was insufficient evidence
because “(1) mere presence is not enough to show that [he] committed a burglary; and (2) the
victim’s absence from the home showed that it was objectively unlikely for someone to be present
during the burglary.” {¶16} A sufficiency challenge essentially argues that the evidence presented was
inadequate to support the jury verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). “‘The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ (Emphasis sic.)” State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient evidence constitutes a
denial of due process.” Thompkins at 386, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211,
72 L.Ed.2d 652 (1982). When reviewing a sufficiency of the evidence claim, we review the
evidence in a light most favorable to the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661
N.E.2d 1068 (1996).
{¶17} R.C. 2911.12(A)(2), which sets forth the elements for burglary under which Mills
was convicted, states,
No 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[.]
1. Mere Presence
{¶18} Mills first argues that the state failed to “present evidence that he took any action
that amounted to burglary[.]” He points to the lack of eyewitness, forensic, or photographic
evidence and the state’s inability to locate the other allegedly stolen items besides the speaker,
television cord, book bag, and laptop.
{¶19} Proof of guilt may be made by circumstantial evidence, which “requires the drawing
of inferences that are reasonably permitted by the evidence[.]” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 739
N.E.2d 749 (2001). Further, forensic evidence is not required to uphold a burglary conviction.
[A] jury [may] infer that “a defendant committed theft or burglary where there is both a close temporal proximity between the commission of the crime and the defendant’s possession of the stolen items, and the defendant fails to provide a credible explanation for his possession of the stolen items or ‘other circumstances indicative of guilt’ exist.”
State v. Stewart, 6th Dist. Lucas No. L-17-1107, 2018-Ohio-3517, ¶ 45, quoting State v. Smith,
6th Dist. Lucas Nos. L-16-1113, L-16-1114, and L-16-1115, 2017-Ohio-5762.
{¶20} Here, Mills was observed by and even spoke to Fuentes within an hour or so of the
burglary and some of the stolen items were found in the place where Mills slept and, in fact,
within feet of where he was sleeping. Construing the evidence in a light most favorable to the
prosecution, we find the circumstantial evidence presented by the state was sufficient to convict
Mills of burglary under R.C. 2911.12(A)(2).
2. Likely to be Present
{¶21} Mills also argues there was insufficient evidence that someone was “likely to be
present” at the time of the burglary, as required by R.C. 2911.12(A)(2). We have explained,
A person is likely to be present when a consideration of all the circumstances would seem to justify a logical expectation that a person could be present. * * * In determining whether persons were present or likely to be present under R.C. 2911.12(A)(2), “the defendant’s knowledge concerning habitation is not material. The issue is not whether the burglar subjectively believed that persons were likely to be there, but whether it was objectively likely.” * * * Merely showing that people dwelled in the residence is insufficient; the state must adduce specific evidence that the people were present or likely to be present at the time of the burglary. * * *
State v. Cole, 8th Dist. Cuyahoga Nos. 103187, 103188, 103189, and 103190, 2016-Ohio-2936, ¶ 40, quoting State v. Palmer, 8th Dist. Cuyahoga No. 89957, 2008-Ohio-2937, ¶ 13. The Ohio Supreme Court has recognized that the state can establish the “likely to
be present” element under R.C. 2911.12(A)(2) by showing that the occupants of
the dwelling were “in and out on the day in question” and were temporarily absent
when the burglary occurred. State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336
(1977), paragraph one of the syllabus. Conversely, Ohio courts have found that “if
the occupants of a house are gone for the entire workday, they are not ‘likely to be
present’ during the day.” State v. Miller, 2d Dist. Clark No. 2006 CA 98,
2007-Ohio-2361, ¶ 16. See also State v. Meisenhelder, 8th Dist. Cuyahoga No.
76764, 2000 Ohio App. LEXIS 4745 (Oct. 12, 2000) (where a person individually
occupies an apartment and his usual and ordinary work habits take him away from
that apartment regularly during certain hours of the day, there is minimal likelihood
that a person will be present in the structure) Id. at 14, citing State v. Lockhart, 115
Ohio App.3d 370, 373, 685 N.E.2d 564 (8th Dist.1996).
State v. Jones, 8th Dist. Cuyahoga No. 104233, 2017-Ohio-288, ¶ 20-21.
{¶22} In Jones, we found insufficient evidence to show that someone was likely to be
present when the defendant broke into the victim’s home under R.C. 2911.12(A)(2). We stated
that there was no evidence that the victim was likely to return home during the workday and the
victim’s testimony that he “‘sometimes’ worked at home” only “established a possibility that he
could have been home at the time of the burglary and that the ‘mere possibility’ [was] insufficient
to establish the ‘likely to be present’ element.” (Emphasis sic.) Id. at ¶ 25.
{¶23} Here, Fuentes testified that he was not working on August 27, 2016, and that he was
in and out, only leaving his home to go to the gym for an hour. We find this to be sufficient to
establish that someone was “likely to be present” in Fuentes’s home during the burglary. {¶24} Accordingly, we overrule Mills’s first assignment of error.
B. Manifest Weight of the Evidence
{¶25} In his second assignment of error, Mills argues that his burglary conviction was
against the manifest weight of the evidence because “no person saw [Mills] enter the home, []
another person was implicated[,] [and Mills] could have simply received stolen property.” We
disagree.
{¶26} Unlike sufficiency of the evidence, a challenge to the manifest weight of the
evidence attacks the credibility of the evidence presented. Thompkins, 78 Ohio St.3d at 387, 678
N.E.2d 541. Because it is a broader review, a reviewing court may determine that a judgment of a
trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is
against the weight of the evidence. Id., citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d
148 (1955).
{¶27} When reviewing a manifest weight challenge, an appellate court sits as the
“thirteenth juror” and
review[s] the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of the witnesses and determines whether in resolving
conflicts in evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed[.]
Id., citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶28} Further, we must be mindful that questions of weight and credibility are primarily
for the trier of fact to determine. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212
(1967). This is because “‘[t]he demeanor of witnesses, the manner of their responses, and many
other factors observable by a jury * * * simply are not available to an appellate court on review.’” State v. Bailey, 8th Dist. Cuyahoga No. 97754, 2012-Ohio-3955, ¶ 11, quoting State v.
Bierbaum, 3d Dist. Seneca No. 13-88-18, 1990 Ohio App. LEXIS 1204 (Mar. 4, 1990).
“[W]hen considering a manifest weight challenge, the trier of fact is in the best position to take
into account inconsistencies, along with the witnesses’ manner, demeanor, gestures, and voice
inflections, in determining whether the proffered testimony is credible.” State v. McNamara, 8th
Dist. Cuyahoga No. 104168, 2016-Ohio-8050, ¶ 36, citing State v. Kurtz, 8th Dist. Cuyahoga No.
99103, 2013-Ohio-2999. “The [factfinder] may take note of any inconsistencies and resolve
them accordingly, ‘believing all, part, or none of a witness’s testimony.’” State v. Hill, 8th Dist.
Cuyahoga No. 98366, 2013-Ohio-578, ¶ 33, quoting State v. Raver, 10th Dist. Franklin No.
02AP-604, 2003-Ohio-958. “Therefore, we afford great deference to the factfinder’s
determination of witness credibility.” McNamara at ¶ 36, citing State v. Ball, 8th Dist. Cuyahoga
No. 99990, 2014-Ohio-1060. Accordingly, reversing a conviction and ordering a new trial under
a manifest weight of the evidence claim should be saved for the “exceptional case in which the
evidence weighs heavily against the conviction.” State v. Bridges, 8th Dist. Cuyahoga No.
100805, 2014-Ohio-4570, ¶ 67, citing Thompkins.
{¶29} In support of his argument, Mills argues that the trial court should not have found
Marcilla or Fuentes’s testimony to be credible due to the “lack of corroborating evidence
presented at trial[,]” including “the stolen goods themselves; photos of the goods; photos of the
Fuentes’[s] property; photos of entry; photos of the garage; or photos of the current condition of
the merchandise.” We disagree.
{¶30} The trier of fact in this case, the trial court itself, heard testimony from both
Marcilla and Fuentes and found them to be credible. The trial court also heard testimony from
Detective Holt regarding the investigative steps he did and did not take regarding the charges against Mills. Considering the temporal proximity between the time the burglary occurred and
the moment when some of the stolen items were found where Mills slept — actually was sleeping
— we cannot say that this is the “exceptional case” warranting a reversal based on the manifest
weight of the evidence. Accordingly, we overrule Mills’s second assignment of error.
C. Restitution
{¶31} In his third assignment of error, Mills argues that the trial court erred by “issuing
restitution for damages not caused by or during the burglary[,]” specifically, for “the new locks on
the home as well as an alarm system that was placed in the home after [the burglary].”
{¶32} R.C. 2929.18(A)(1) provides,
Restitution by the offender to the victim of the offender’s crime * * * in an amount
based on the victim’s economic loss. * * * If the court imposes restitution, at
sentencing, the court shall determine the amount of restitution to be made by the
offender. If the court imposes restitution, the court may base the amount of
restitution it orders on an amount recommended by the victim, the offender, a
presentence investigation report, * * * and other information, provided that the
amount the court orders as restitution shall not exceed the amount of the economic
loss suffered by the victim as a direct and proximate result of the commission of
the offense.
{¶33} Thus, prior to imposing restitution, a trial court must determine the amount of
restitution to a reasonable degree of certainty, ensuring that the amount is supported by competent,
credible evidence. State v. Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990). It is also well
settled that there must be a “due process ascertainment that the amount of restitution bears a
reasonable relationship to the loss suffered.” State v. Williams, 34 Ohio App.3d 33, 34, 516 N.E.2d 1270 (2d Dist.1986). Documentary and/or testimonial evidence must be introduced to
demonstrate the victim’s economic loss. State v. Marbury, 104 Ohio App.3d 179, 181-182, 661
N.E.2d 271 (8th Dist.1995).
{¶34} At sentencing, the state requested $623 in restitution for “the laptop, which was
returned broken, new locks on the home, as well as an alarm system that was placed in the home
after this incident.”
{¶35} In State v. Plants, 8th Dist. Cuyahoga No. 101552, 2014-Ohio-5293, this court
reversed the trial court’s imposition of restitution for a security system the victim installed after
the defendant’s criminal acts. We said, “the stated reason the victims installed the security
system was to deter future crime by [the defendant]. The cost to install, therefore, was a
consequential cost and not an economic cost as defined by statute.” Id. at ¶ 5.
{¶36} Applying Plants, we agree with Mills that the trial court erred in imposing
restitution for new locks and an alarm system. The state also concedes this point, stating “the
addition of a security system after a burglary is not the type of restitution contemplated under R.C.
2929.18(A)(1).”
{¶37} The state nonetheless argues that the value of the items that Fuentes lost due to the
burglary was $800, which included $300 for the laptop, $250 for the watch, and $250 for the
television, and that the amount of restitution “is reasonable and is reflective of the economic loss
suffered by the victim.”
{¶38} The indictment in this case only charged Mills for petty theft for the laptop and
television. It did not charge him for other items allegedly stolen from Fuentes’s home, including
the watch, and therefore, the trial court could not order him to pay restitution relating to the watch
or other items besides the television and laptop. See State v. Williams, 8th Dist. Cuyahoga No. 102080, 2015-Ohio-1957, ¶ 13 (“Because Williams was not charged with and did not plead guilty
to the theft of Bascom’s daughter’s phone, restitution relating to the loss of the phone is
inappropriate in this case because it does not qualify as an economic loss caused by the
defendant’s illegal conduct for which he was convicted.”). Accordingly, we sustain Mills’s third
assignment of error, vacate the trial court’s imposition of restitution, and reverse and remand for a
new hearing. On remand, pursuant to R.C. 2929.18(A)(1), the trial court is not permitted to
consider the victim’s installment of a security system or locks that were not broken as a result of
the break-in as part of its restitution award.
{¶39} Judgment affirmed in part, reversed in part, and remanded to the lower court for
further provisions consistent with this opinion.
It is ordered that appellant and appellee share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
__________________________________ MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, A.J., and RAYMOND C. HEADEN, J., CONCUR