[Cite as State v. Lacavera,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96242

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

WILLIAM LACAVERA DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-539829

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

RELEASED AND JOURNALIZED: March 1, 2012 ATTORNEY FOR APPELLANT

Thomas E. Conway 75 Public Square, Suite 700 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Holly Welsh Brett Kyker Assistant County Prosecutors The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:

{¶1} Defendant-appellant, William Lacavera, appeals his convictions for

aggravated burglary, aggravated robbery, felonious assault, disrupting public service,

receiving stolen property, possessing criminal tools, kidnapping, forgery, and theft. For

the reasons that follow, we affirm his convictions but remand the case for a partial

resentencing.

Procedural History and Facts

{¶2} In 2010, Lacavera was charged in an 18-count indictment with two counts

each of aggravated burglary, aggravated robbery, kidnapping, felonious assault, and

forgery; four counts of theft; and one count each of disrupting public service, receiving

stolen property, misuse of credit cards, and possessing criminal tools. The matter

proceeded to a jury trial, at which the following pertinent evidence was presented.

{¶3} Betty DeGirolamo testified that in July 2010 she was 75 years old and

lived alone in her house in Parma. The house next door belonged to Lacavera’s

grandparents and he had lived in it for a short while after they died. DeGirolamo

testified she knew “Billy,” as she called Lacavera, since he was a child and had loaned

him $2500 to pay his bills in 2009. She also gave him $500 to fix her car and lent him

her car “off and on” “for a few months.” Lacavera never repaid the loan.

{¶4} Around 11:15 a.m. on July 5, 2010, a man knocked on DeGirolamo’s back

door. He asked for Billy. DeGirolamo, who was hard of hearing, opened the locked

door. The man pushed the door in and shoved DeGirolamo up against the wall. The man asked her where the money was and then pushed her down the basement stairs. The

man followed DeGirolamo down into the basement, raised a “tire iron” up from behind

his back, ripped the phone from the wall, and asked her again where she kept her money.

He told her to lay there and keep her “big F’ing mouth shut.”

{¶5} DeGirolamo told the man where her purse was located. He went upstairs

and she could hear him rummaging around the house. He left shortly thereafter but

DeGirolamo was unable to get up. She laid on the floor until later that afternoon when

her niece stopped by to take the garbage out.

{¶6} DeGirolamo was transported to the hospital by ambulance. She suffered a

concussion, numerous abrasions and cuts, and spent ten days in the hospital. The man,

later identified as Alvie Williams, had stolen DeGirolamo’s wallet and a lockbox that

contained her and her late husband’s wedding rings, her engagement ring, money, and

personal papers.

{¶7} Parma police responded to the scene, processed the house, and recovered a

“pry bar” that had been left on DeGirolamo’s bed. Police recovered DNA from

Williams on the interior of the back door and DNA from Williams, Lacavera, and an

“unknown individual” on the pry bar.

{¶8} Parma police officer Thurston Voisine testified that shortly after the

burglary he and two other officers went to Lacavera’s house in Brookpark and spoke with

his girlfriend in the backyard. They found Lacavera hiding behind his pool. They

asked Lacavera where he was earlier in the day and he told the officers he had gone grocery shopping. Officer Voisine told Lacavera that his truck had been spotted in the

area of a break-in and Lacavera stated that he went to his grandparent’s house to check on

it because there had recently been burglaries in the area. Lacavera consented to a search

of his truck, but the officers did not find anything associated with the crimes. Lacavera

was not arrested at this time.

{¶9} Williams testified that he met Lacavera in December 2009 through a drug

connection. He testified that his relationship with Lacavera “revolved” around drugs.

On July 5, he received a call from Lacavera, and the two men discussed “robbing”

DeGirolamo’s house. Lacavera told Williams it would be an “easy lick” and no one

would be home. Williams testified that Lacavera originally brought up the idea of

breaking into DeGirolamo’s house a week or two prior to July 5.

{¶10} According to Williams, Lacavera picked him up at his house in Cleveland

and was driving his white Ford pickup. They drove to Parma and parked the truck at

Lacavera’s grandparent’s house. They went inside, spoke briefly, and then Williams

walked over to DeGirolamo’s house. Williams testified that he heard a television on

inside the house so he knocked on the door. Williams stated he was surprised when

DeGirolamo answered the door because Lacavera had told him no one would home. He

admitted to pushing DeGirolamo down the basement stairs and stealing her wallet and

lockbox.

{¶11} When Williams returned to Lacavera, he told him that he had pushed “an

elderly woman” down the stairs but Lacavera “did not seem too concerned.” {¶12} Williams testified that the two men left, drove to Cleveland, and spent the

stolen money on “some pills.” They then went to Williams’s house where they shared

the pills with Williams’s girlfriend, Rhanjani Rosado. Lacavera, Williams, and Rosado,

then drove to several grocery stores where Rosado used the stolen credit card. A

surveillance video tape entered into evidence showed Lacavera driving his truck into the

parking lot of Dave’s Supermarket with Williams and Rosado. Williams and Rosado went

into the grocery store while Lacavera stayed in his car. Lacavera also used the stolen

credit card to buy gas.

{¶13} The three separated and Williams and Rosado continued to use the stolen

credit card at various stores. Later the same day, Lacavera picked Williams up and

drove him to Sandusky, Ohio, to try and sell the coins that had been in the lockbox, but

they did not end up selling them.

{¶14} Williams testified that he tried to use the stolen credit card the next day, but

the card had been cancelled. He went and pawned the coins and jewelry; Williams

received $837 for the items, which he kept.

{¶15} On July 15, the police arrested Williams and Rosado at home. Both gave

oral and written statements implicating Lacavera. During his testimony, Williams

verified phone records of text messages he had sent to Lacavera leading up to and after

the burglary. Williams testified that he pled guilty to burglary and robbery and agreed to

testify against Lacavera.

{¶16} Rosado testified that she lived with Williams and knew Lacavera because he and Williams spoke every day. Lacavera would call Williams searching for Oxycontin.

On July 5, Williams received a call from Lacavera who later came to pick Williams up in

his white truck. When the men returned, Williams had a credit card that he told Rosado

belonged to his grandmother. She admitted to using the credit card at several stores to

buy things for Williams and clothes and shoes for her kids.

{¶17} Rosado testified that later in the day Williams received another call from

Lacavera. Lacavera picked Williams up. The two men returned to Williams’s house

around 10:30 p.m. A week later, Rosado asked Williams about the credit card. Rosado

then called Lacavera, who told her it was “from a lick.” When Rosado and Williams

were arrested on July 15, Rosado told officers she had used the credit card but did not

know it was stolen. She made oral and written statements to the detective and made a

second written statement in October 2010. Rosado testified she pled guilty to one count

each of forgery and obstructing justice and agreed to testify against Lacavera.

{¶18} Parma police detective David Milter testified regarding his investigation into

the home invasion. He testified that when he first spoke with Lacavera on July 8,

Lacavera was only “a person of interest” in the case; Lacavera denied being involved in

the burglary.

{¶19} After Detective Milter reviewed the credit card records from DeGirolamo’s

bank, he and another detective went to the stores where her credit card had been used and

viewed surveillance video. An employee of CVS pharmacy identified Rosado. He

arrested Williams and Rosado at their house and Rosado identified Lacavera. {¶20} Later that day, Lacavera came to the police station and was shown a photo

line-up with Williams’s picture in it. He did not identify Williams as someone he knew.

The detective then advised Lacavera of his rights and showed him surveillance photos of

Rosado and Williams. At that time, Lacavera acknowledged knowing the couple. He

also identified his white truck. He told the detective that he had given the couple a ride

to the grocery store and also admitted to recently using drugs.

{¶21} Based on the evidence presented at trial, the jury convicted Lacavera of one

count of aggravated burglary, aggravated robbery, felonious assault, disrupting public

service, receiving stolen property, and possessing criminal tools; two counts of

kidnapping and forgery; and three counts of theft. The trial court sentenced Lacavera to

a total of six years in prison.

{¶22} It is from this conviction that Lacavera now appeals, raising the following

three assignments of error for our review:

I. The trial court erred in failing to grant appellant’s motion for judgment of acquittal on the charges of [aggravated burglary], [kidnapping], [aggravated robbery], and [felonious assault.]

II. The jury’s verdicts of guilty as to all counts of which appellant was found guilty were against the manifest weight of the evidence.

III. The offenses of [aggravated burglary], [kidnapping], [aggravated robbery], and [felonious assault] were allied offenses of similar import and should merge for purposes of sentencing.

Sufficiency and Manifest Weight of the Evidence

{¶23} Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes

a finding of sufficiency. State v. McCrary, 10th Dist. No. 10AP-881,

,

, ¶ 11, citing State v. Braxton, 10th Dist. No. 04AP-725,

,

, ¶ 15. Thus, a determination that a conviction is

supported by the weight of the evidence will also be dispositive of the issue of

sufficiency.

We find the manifest weight of the evidence argument dispositive

here.

{¶24} The weight of the evidence concerns the inclination of the greater amount of

credible evidence offered to support one side of the issue rather than the other. State v.

Thompkins,

,

,

. Although there

may be sufficient evidence to support a judgment, a court may nevertheless conclude that

a judgment is against the manifest weight of the evidence.

{¶25} When presented with a challenge to the manifest weight of the evidence, an

appellate court may not merely substitute its view for that of the trier of fact, but must

review 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 must be reversed and a new trial ordered.

An appellate court should

reserve reversal of a conviction as being against the manifest weight of the evidence for

only the most “exceptional case in which the evidence weighs heavily against the

conviction.”

{¶26} Lacavera argues that there was insufficient evidence to support his

convictions for aggravated burglary, kidnapping, aggravated robbery, and felonious

assault and these convictions were against the manifest weight of the evidence.1

{¶27} Lacavera claims that because Williams testified that Lacavera told him no

one would be home at the victim’s house, there was no evidence that he was complicit in

the crimes because he did not intend for DeGirolamo to get hurt. Lacavera claims that

Williams, on his own accord, harmed DeGirolamo and Lacavera could not be held

accountable for anything Williams chose to do when he encountered the victim. We

disagree.

{¶28} The state proceeded on a theory that Lacavera was complicit in the crimes

because he aided and abetted Williams. “To support a conviction for complicity by

aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the

defendant supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the criminal intent

of the principal. Such intent may be inferred from the circumstances surrounding the

crime.” State v. Johnson,

,

,

, syllabus.

“Participation in criminal intent may be inferred from presence, companionship and

conduct before and after the offense is committed.” Id. at 245, quoting State v. Pruett,

,

(4th Dist. 1971).

Lacavera does not challenge the sufficiency of the evidence as to the remaining counts for 1

which he was convicted; therefore, we will not consider whether the state provided sufficient evidence to sustain those convictions or whether they were against the manifest weight of the evidence. {¶29} A defendant is presumed to have intended the reasonably foreseeable,

natural, and probable consequences of his acts. State v. Clark,

,

(1978); State v. Lockett,

,

(1976); State v.

Farmer,

,

(1951). This presumption is rebuttable and the

matter is one ultimately for the trier of fact. State v. Wright, 2d Dist. No. CA 6394,

(Sep. 30, 1980).

{¶30} Lacavera claims that the state provided insufficient evidence that he was

complicit in harming the victim because he did not think she would be home at the time

of the burglary. But in Lockett, the Ohio Supreme Court recognized that a defendant

may be convicted as an aider or abettor when there is no prior criminal plan to commit a

specific act. Specifically, the Court found that the record established

“that the appellant participated in the planning and commission of the robbery and acquiesced in the use of a deadly weapon to accomplish the robbery. Under these circumstances, it might be reasonably expected by all the participants that the victim’s life would be endangered by the manner and means of performing the act conspired.” Id. at 62.

The Court concluded, “the appellant, as well as the other participants is bound by all the

consequences naturally and probably arising from the furtherance of the conspiracy to

commit the robbery.” Id.

{¶31} Likewise, here, Lacavera is bound by the consequence that arose from the

conspiracy he and Williams had to commit the burglary. There was ample evidence at

trial that Lacavera organized the commission of the crime. He called Williams and told

him that burglarizing the victim’s home would be “an easy lick.” Lacavera had lived next door to DeGirolamo and had previously borrowed money from her and her car.

DeGirolamo testified at trial that she saw Lacavera’s truck in his grandparents’ driveway

on the day of the burglary. Williams testified that Lacavera drove him to DeGirolamo’s

house and waited next door while the crimes were committed. The two men then left

and went to buy drugs with the money Williams took from DeGirolamo’s home.

Williams further testified that he told Lacavera that he had pushed the elderly victim

down the stairs and Lacavera did not appear concerned. Lacavera then drove Williams

and Rosado to different stores so they could use the victim’s credit card. Finally,

physical evidence linked Lacavera to the crime as his DNA was found on the prybar

Williams left in DeGirolamo’s home.

{¶32} Based on these facts, the jury did not lose its way or create a manifest

miscarriage of justice in convicting Lacavera. Accordingly, his convictions were not

against the manifest weight of the evidence. This conclusion is also dispositive of his

claim that his convictions were not supported by sufficient evidence.

{¶33} The first and second assignments of error are overruled.

Sentencing

{¶34} In the third assignment of error, Lacavera argues that his convictions for

aggravated burglary, kidnapping, aggravated robbery, and felonious assault should have

merged because they were allied offenses of similar import.

{¶35} When a defendant’s conduct results in the commission of two or more

“allied” offenses of similar import, that conduct can be charged separately, but the defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A). In

2010, the Ohio Supreme Court modified the test for determining whether offenses are

allied offenses of similar import. State v. Johnson,

,

,

. The Court directed trial courts to look at the

elements of the offenses in question and determine whether it is possible to commit one

offense and commit the other with the same conduct, not whether it is possible to commit

one without committing the other. Id. at ¶ 46.

{¶36} If the answer to such question is in the affirmative, the court must then

determine whether the offenses were committed by the same conduct. If the answer to

the above two questions is yes, then the offenses are allied offenses of similar import and

must merge. If, however, the court determines that commission of one offense will never

result in the commission of the other, or if there is a separate animus for each offense,

then the offenses will not merge. Id. at ¶ 48-51.

{¶37} Lacavera maintains that his convictions were allied because he, as

Williams’s co-conspirator, committed them with the same animus; therefore, they should

have merged for the purposes of sentencing. As it pertains to this assignment of error,

Lacavera was convicted of kidnapping, in violation of R.C. 2905.01(A)(2); aggravated

robbery, in violation of R.C. 2911.01(A)(3); felonious assault, in violation of R.C.

2903.11(A)(1); and aggravated burglary, in violation of R.C. 2911.11(A)(1). We will

consider each conviction in turn.

Kidnapping, Aggravated Robbery, and Felonious Assault {¶38} Lacavera was convicted of aggravated robbery, in violation of R.C.

2911.01(A)(3), which reads:

(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:

***

(3) Inflict, or attempt to inflict, serious physical harm on another.

{¶39} Lacavera was further convicted of kidnapping, in violation of R.C.

2905.01(A)(2):

(A) No person, by force, threat, or deception, * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:

***

(2) To facilitate the commission of any felony or flight thereafter.

{¶40} Lacavera was convicted of felonious assault pursuant to R.C.

2903.11(A)(1), which provides: “No person shall knowingly * * * [c]ause serious

physical harm to another * * *.”

{¶41} In State v. Hicks, 8th Dist. No. 95169,

,

,

¶ 11, we noted the following guidelines first set forth in State v. Logan,

,

(1979), to determine “whether kidnapping and an offense of

similar import are committed with separate animus” were still applicable. In Logan, the

Ohio Supreme Court held that:

(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;

(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. Logan, at the syllabus.

{¶42} In this case, there is nothing in the record that would lead us to conclude that

the type or length of restraint Williams used against DeGirolamo satisfies any of the

factors set forth in Logan such that the kidnapping was not an allied offense of similar

import to aggravated robbery and felonious assault. The victim’s “restraint of

movement” was incidental to the robbery of her property and the serious physical harm

Williams caused. Accordingly, the trial court should have merged these charges prior to

sentencing. State v. Fears,

,

(1999); State v.

Stall, 3d Dist. No. 3-10-12,

,

; State v. Wilson, 8th

Dist. No. 91971,

,

, affirmed by

,

,

; State v. Hicks, 8th Dist. No. 95169,

,

, ¶ 18.

{¶43} Next, we consider whether the felonious assault and aggravated robbery

merge and find that they do. Williams committed the felonious assault when he

knowingly caused serious physical harm to the victim by pushing her down her basement

steps. He completed the offense of aggravated robbery when he then stole her property.

We find that the offenses were committed with the same animus. See generally State v. Darnell, 5th Dist. No. 10 CAA 10 0083,

,

.

Aggravated Burglary

{¶44} Finally, in considering whether the aggravated burglary is allied to the

convictions for felonious assault, kidnapping, and aggravated robbery, we find that it is.

{¶45} Aggravated burglary, in violation of R.C. 2911.11(A)(1), provides:

(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;

* * *.

{¶46} There is little doubt that it is possible to commit the aggravated burglary and

commit the aggravated robbery, kidnapping, and felonious assault as charged with the

same conduct. Moreover, based on this record, the aggravated burglary was committed

with the same animus as the felonious assault, kidnapping, and aggravated robbery.

Although one could argue that Lacavera and Williams only had the initial intent to

burglarize the victim’s home and that intent was separate from the intent to harm her once

Williams discovered she was present in the house, Lacavera was convicted of a violation

of R.C. 2911.11(A)(1). Williams’s breaking into the house and inflicting physical harm

on the victim by pushing her down the stairs (and thus completing the aggravated

burglary) occurred as part of the same transaction as the other crimes. Therefore, it was committed with the same animus.

{¶47} In sum, Lacavera may be found guilty of felonious assault, kidnapping,

aggravated robbery, and aggravated burglary but sentenced for only one. Therefore, the

case is remanded for resentencing on these charges. At the sentencing hearing, it is the

state that will elect which allied offense it will pursue against Lacavera. State v.

Whitfield,

,

,

, ¶ 25.

{¶48} Therefore, the conviction is affirmed in part, reversed in part, and the case is

remanded for resentencing as outlined above.

It is ordered that appellant and appellee split 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. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE KENNETH A. ROCCO, J., CONCURS; MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY