[Cite as State v. McLeod,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 14 CA 53 YUSUF A. MCLEOD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 13 CR 433

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 12, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT WILLIAM T. CRAMER PROECUTING ATTORNEY 470 Olde worthington Road 20 South Second Street Suite 200 Fourth Floor Westerville, Ohio 43082 Newark, Ohio 43055 Licking County, Case No. 14 CA 53 2

Wise, P. J.

{¶1} Defendant-Appellant Yusuf McLeod appeals his June 5, 2014, sentence

and conviction entered in the Licking County Court of Common Pleas on two counts of

Burglary, two counts of Breaking and Entering, one count of Grand Theft and one count

of Receiving Stolen Property following a jury trial.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶3} As a result of his alleged involvement in two incidents of theft from

buildings on the Denison University campus, Appellant Yusuf McLeod was charged with

two counts of burglary, in violation of R.C. §2911.12(A)(1), both second degree felonies;

two counts of breaking and entering, in violation of R.C. §2911.13(B), both fifth degree

felonies; one count of receiving stolen property, in violation of R.C. §2913.51(A), which

was a fifth degree felony under R.C. §2913.71 because the property was a credit card;

and one count of grand theft, in violation of R.C. §2913.02(A)(1), a fourth degree felony.

{¶4} The undisputed facts are as follows:

Wallet Theft

{¶5} Maureen Harmon was the associate director of communications at

Denison University and worked in the Burton Morgan office building. Harmon had an

office with a door on the fourth floor of the building. The building houses various

administrative staff, including advancement and career services, and occasionally hosts

events. (T. at 110-113).

{¶6} On July 17, 2013, Harmon's credit card company alerted her to a number

of suspicious purchases. Harmon checked her purse and found that her wallet was Licking County, Case No. 14 CA 53 3

missing. (T. at 114-115). Harmon remembered having her wallet with her at lunch that

day. (T. at 117). Harmon testified that when she left her office, she typically left her door

unlocked and ajar. (T. at 122-124). Sometime that day, a sales rep for Revol Wireless at

the Indian Mound Mall in Licking County sold a phone to someone using the name

Efrem Harris. The person provided a photo ID and used Harmon's credit card. The

person came back fifteen minutes later and purchased another phone for his brother.

The sales rep was 70% sure the person was Appellant. (T. at 157-164).

{¶7} A worker at Aeropostale at the same mall also remembered Appellant

purchasing some items that day. That worker stated that Appellant seemed suspicious

because he asked the worker to pick out clothes for him and did not care about the

price. The worker told her assistant manager about it afterwards. Later that night they

received a call from the police that the credit card Appellant used had been stolen. (T. at

170-179).

{¶8} The same day, someone also used Harmon's credit card to purchase

jewelry from a stand at the mall. The clerk remembered that the purchaser was a black

male, but could not positively identify that person as Appellant. (T. at 187-191).

{¶9} Laura Frame worked on the fifth floor of Burton Morgan building. (T. at

125-126). Frame learned of Harmon's missing wallet, then heard of other thefts which

occurred in the athletic building. Frame saw a surveillance photo of the suspect in the

athletic building thefts and recognized the person as Appellant. Frame realized she had

seen Appellant in their offices on the day Harmon's wallet was stolen, and he was

asking for directions to the student activity center. (T. at 128-132). Licking County, Case No. 14 CA 53 4

{¶10} Betsy Russo also worked on the fifth floor of the Burton Morgan building.

(T. at 138-139). Russo also saw a photo from the athletic building thefts and recognized

the person as Appellant. Russo recalled that she had given Appellant directions on the

day Harmon's wallet was stolen. (T. at 141-143).

{¶11} Matthew Hughes also worked in the Burton Morgan building. Hughes

thought the person in the surveillance photos from the athletic building theft looked

similar to a person he had seen around his building. Hughes saw the person walk by his

office twice the day Harmon's wallet was stolen. Hughes was 80% sure the person was

Appellant. (T. at 292-298).

Athletic Facility Thefts

{¶12} Steven Romine was the assistant supervisor at the Denison athletic

facility. (T. at 196). In late July, the building was undergoing the final phase of

remodeling. (T. at 203-204). Romine testified that there was construction going on with

workers in and out. The workers mostly used the main entrance, but if they had big

equipment, they would come through one of the delivery/garage doors. (T. at 215-216).

{¶13} Romine testified that there was a cheerleading camp using the athletic

building Friday night, July 19, 2013. Romine stayed to supervise and lock up after they

left, which was between 10:00 and 11:00 p.m. (T. at 208-210). When Romine came into

work the next morning, he noticed items missing from his office, including a walkie-talkie

radio. Romine reported the loss to security and did a walk-through of the building, but

did not notice anything else missing. (T. at 206-207).

{¶14} Stuart Brown was the project manager for the construction on the athletic

facility. Brown testified that he had keys to the interior building doors, but not the Licking County, Case No. 14 CA 53 5

exterior doors. Brown kept the keys hanging on the wall in their basement work area

when they were not being used. (T. at 303-305, 309-310). Brown got a call about the

thefts and went down to the facility to meet with some people. Brown checked for their

keys, but could not find them. Brown testified that he left the keys hanging on the wall in

the basement construction office on Friday night when he left. (T. at 305-306). The keys

were never recovered. (T. at 310). Brown denied that Appellant worked for the

construction company or any of their subcontractors in any capacity. (T. at 306).

{¶15} Steven Morrow was a janitor for Denison assigned to clean the common

areas of buildings at night when the buildings are closed. On Friday, July 19th, Morrow

arrived at work around 11:00 p.m. and was assigned to the athletic facility. Morrow saw

Appellant in the aquatic area that night. Morrow testified that he assumed Appellant was

a Denison employee because he had a Denison radio and a set of keys. Appellant

asked Morrow if he knew of any events going on and Morrow told him only the

cheerleading camp. The encounter was captured on surveillance cameras. (T. at 222-

227). Morrow left the athletic facility after about three hours and moved on to other

buildings. (T. at 227-228). Morrow was not suspicious that Appellant was in the athletic

facility after hours because there was construction, and they had workers in during the

week. Morrow stated that he had never seen Appellant before. (T. at 231-232).

{¶16} A secretary for the athletic department testified that she was missing some

cameras, projectors, and tripods. (T. at 240). The secretary testified that their equipment

is all tagged with a CSO number and sticker so that they can keep track of it for

inventory purposes. (T. at 241-245). Licking County, Case No. 14 CA 53 6

{¶17} A Denison information security officer testified that they keep records of

serial numbers of electronic equipment. (T. at 275). They conducted a post-theft

inventory of equipment and created a spreadsheet showing what was missing with the

serial numbers. (T. at 276-278).

{¶18} Denison ultimately reported that it was missing fifteen computers, six

cameras, an iPad and an iPod. (T. at 267).

Investigation

{¶19} The police published a still photograph of the suspect from the

surveillance video. The photograph produced information that the suspect was

Appellant, and Appellant had a tattoo that matched the suspect in the video. (T. at 256-

258). The police located a car that was registered to Appellant. Officer King of the

Granville Police assisted in searching the car.

{¶20} Officer King testified that while they were examining the car, Appellant

walked up and said it was his car. Appellant gave them the keys so that they could

search it. Inside the car they found three IDs on the front passenger seat in a wallet: two

belonging to Appellant and one for someone named Efrem Harris. They also found the

cologne that was purchased with the stolen credit card. Lastly, they found two video

cameras that were traced back to Denison. (T. at 322-330).

{¶21} As a result of the investigation, Appellant was arrested by the Columbus

police. Officer Dailey of the Granville Police testified that he picked Appellant up from

the Columbus police in a grocery store parking lot. Dailey stated that the Columbus

police provided a bag containing Appellant's belongings, which included three cellular Licking County, Case No. 14 CA 53 7

telephones, two of which had been purchased using Harmon's stolen credit card. (T. at

258-263). The police found pictures of Appellant on the phones. (T. at 354-355).

{¶22} Appellant testified in his own defense, denying that he was on campus on

the July 17, 2013, or that he was ever in the Burton Morgan building. (T. at 420).

{¶23} At the conclusion of the trial, the jury found Appellant guilty as charged. At

sentencing, the trial court merged the breaking and entering counts with the burglary

counts and also merged the grand theft count with the corresponding burglary count.

The trial court imposed a sentence of seven (7) years for each burglary count, to be

served consecutively. The trial court also sentenced Appellant to one (1) year in the

receiving stolen property count, to be served concurrently to the other sentences, for an

aggregate sentence of fourteen (14) years.

{¶24} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶25} “I. APPELLANT'S DUE PROCESS RIGHTS UNDER THE STATE AND

FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION FOR

BURGLARY IN COUNT ONE, AND THE FINDING OF GUILT OF BREAKING AND

ENTERING ON COUNT TWO, WERE NOT SUPPORTED BY SUFFICIENT

EVIDENCE.

{¶26} “II. THE CONVICTION FOR BURGLARY IN COUNT ONE AND THE

FINDING OF GUILT FOR BREAKING AND ENTERING IN COUNT TWO WERE NOT

SUPPORTED BY THE WEIGHT OF THE EVIDENCE. Licking County, Case No. 14 CA 53 8

{¶27} “III. APPELLANT'S DUE PROCESS RIGHTS UNDER THE STATE AND

FEDERAL CONSTITUTIONS WERE VIOLATED BY PROSECUTORIAL

MISCONDUCT DURING THE CLOSING ARGUMENT.”

I., II.

{¶28} In his First and Second Assignments of Error, Appellant argues that his

convictions for burglary (Count 1) and breaking and entering (Count 2) were against the

manifest weight and sufficiency of the evidence. We disagree.

{¶29} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks,

(1991). “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.” Jenks at

paragraph two of the syllabus, following Jackson v. Virginia,

(1979). On

review for manifest weight, a reviewing court is to examine 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 jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” State v. Martin,

(1st Dist. 1983). See also,

State v. Thompkins,

, 1997–Ohio–52. The granting of a new trial

“should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.”

.

{¶30} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison,

(1990). Licking County, Case No. 14 CA 53 9

The trier of fact “has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page.” Davis v.

Flickinger,

, 418,

. In addition, circumstantial evidence

is that which can be “inferred from reasonably and justifiably connected facts.” State v.

Fairbanks,

(1972), paragraph five of the syllabus. “[C]ircumstantial

evidence may be more certain, satisfying and persuasive than direct evidence.” State v.

Richey,

,

. It is to be given the same weight and

deference as direct evidence.

{¶31} With regard to Counts 1 and 2, Appellant was convicted of burglary

pursuant to R.C. §2911.12(A) and breaking and entering pursuant to R.C. §2911.13(B),

which provide:

{¶32} R.C. §2911.12, Burglary:

{¶33} (A) No person, by force, stealth, or deception, shall do any of the

following:

{¶34} (1) 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;

{¶35} (2) Trespass 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 Licking County, Case No. 14 CA 53 10

present or likely to be present, with purpose to commit in the habitation any criminal

offense;

{¶36} (3) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, with purpose to commit in the

structure or separately secured or separately occupied portion of the structure any

criminal offense.

{¶37} R.C. §2911.13, Breaking and Entering:

{¶38} (A) No person by force, stealth, or deception, shall trespass in an

unoccupied structure, with purpose to commit therein any theft offense, as defined in

section 2913.01 of the Revised Code, or any felony.

{¶39} (B) No person shall trespass on the land or premises of another, with

purpose to commit a felony.

{¶40} (C) Whoever violates this section is guilty of breaking and entering, a

felony of the fifth degree.

{¶41} Criminal trespass, in turn, is defined in R.C. §2911.21(A) as,

{¶42} No person, without privilege to do so, shall do any of the following:

{¶43} (1) Knowingly enter or remain on the land or premises of another;

{¶44} (2) Knowingly enter or remain on the land or premises of another, the use

of which is lawfully restricted to certain persons, purposes, modes, or hours, when the

offender knows the offender is in violation of any such restriction or is reckless in that

regard;

{¶45} (3) Recklessly enter or remain on the land or premises of another, as to

which notice against unauthorized access or presence is given by actual communication Licking County, Case No. 14 CA 53 11

to the offender, or in a manner prescribed by law, or by posting in a manner reasonably

calculated to come to the attention of potential intruders, or by fencing or other

enclosure manifestly designed to restrict access;

{¶46} (4) Being on the land or premises of another, negligently fail or refuse to

leave upon being notified by signage posted in a conspicuous place or otherwise being

notified to do so by the owner or occupant, or the agent or servant of either.

{¶47} R.C. §2901.01(A)(12) defines “privilege” as “an immunity, license, or right

conferred by law, bestowed by express or implied grant, arising out of status, position,

office, or relationship, or growing out of necessity.”

{¶48} Appellant herein argues that the State failed to prove that he used “force,

stealth, or deception” to gain access to the building or Harmon’s office. Appellant

admits that “walking into an open office and stealing a wallet from an unattended purse

may be theft”, such action “does not constitute burglary or breaking and entering absent

actual evidence of stealth or deception.” (Appellant’s Brief at 11).

{¶49} With regard to the count of Breaking and Entering, we find that Appellant

was not charged under subsection (A) but under (B) which does not contain the “by

force, stealth or deception” element. We therefore find Appellant’s arguments as they

apply to the charge of breaking of entering to be not well-taken. Our remaining analysis

will apply only to the burglary charge.

{¶50} “Force is defined in Section 2901.01(A)(1) of the Ohio Revised Code as

‘any violence, compulsion, or constraint physically exerted by any means upon or

against a person or thing.’ ” Licking County, Case No. 14 CA 53 12

{¶51} Under Ohio law, the opening of a door falls within the definition of force,

even if the door if unlocked. State v. Shirley, 9th Dist. No. 20569,

at *2

(Jan. 2, 2002); State v. Hibbard, 12th Dist. Nos. CA 2001–12–276, CA 2001–12,286,

2003–Ohio–707. Additionally, to further open a door which is already partially open is

considered force. Goins v. State (1914),

; State v. Stump, Perry County,

5th Dist. App. No. 13-CA-0006,

{¶52} The code defines “deception” as “knowingly deceiving another or causing

another to be deceived by any false or misleading representation, by withholding

information, by preventing another from acquiring information, or by any other conduct,

act, or omission that creates, confirms, or perpetuates a false impression in another,

including a false impression as to law, value, state of mind, or other objective or

subjective fact.” R.C. §2913.01(A)

{¶53} The Ohio Revised Code does not define “stealth.” However, the most

current version of the Ohio Jury Instructions gives the identical definition: “ ‘Stealth’

means any secret or sly act to avoid discovery and to gain entrance into or to remain

within a structure of another without permission.” 2 CR Ohio Jury Instructions 511.13(A).

{¶54} This Court and other appellate courts of this state have used a definition

that includes “remaining” on the premises as opposed to merely “entering” the

premises. See State v. Stone, 5th Dist. No.1999 AP 030012,

(Nov.

10, 1999); State v. Davis, 1st Dist. No. C–010477, 2002–Ohio–1982; State v. Patton, 2d

Dist. No. 2011 CA 94, 2013–Ohio–961 ¶ 14; In re Predmore, 3d Dist. Nos. 8–09–03, 8–

09–04, 8–09–05, 2010–Ohio–1626, ¶ 44; In re Carter, 4th Dist. Nos. 04CA15, 04CA16,

2004–Ohio–7285, ¶ 24; State v. DeBoe, 6th Dist. No. H–02–057, 2004–Ohio–403, ¶ 66; Licking County, Case No. 14 CA 53 13

In re J.M., 7th Dist. No. 12 JE 3, 2012–Ohio–5283, ¶ 15; State v. Isom, 8th Dist. No

78959,

, *4 (Nov. 29, 2001); State v. Trikilis, 9th Dist. Nos.

04CA0096–M, 04CA0097–M, 2005–Ohio–4266, ¶ 31; State v. Lane,

,

(10th Dist. 1976); State v. Sims, 11th Dist. No.2001–L–081,

2003–Ohio–324, ¶ 58; State v. Lamberson, 12th Dist. No. CA2000–04–012,

, (Mar. 19, 2001).

{¶55} Upon review of the testimony presented during trial, we find evidence of

force, stealth and/or deception with regard to the theft of the wallet.

{¶56} We find the element of force was proven when Ms. Harmon testified that

she only left her office door ajar which would have required Appellant to push the door

open further to gain access to her office. (T. at 483).

{¶57} We find that the jury could have found that the element of stealth was

proven by the evidence presented as to Appellant’s actions in pretending to have been

looking for the student center and asking for directions to the student center.

Alternatively, the jury could have found that Appellant’s actions of walking back and

forth down the hallway outside of Harmon’s office on the fourth floor constituted stealth.

(T. at 294-295). The jury could also have found that these same acts constituted

“deception” as defined above.

{¶58} Accordingly, Appellant's convictions for burglary and breaking and

entering were not against the manifest weight and sufficiency of the evidence.

{¶59} Appellant’s First and Second Assignments of Error are denied. Licking County, Case No. 14 CA 53 14

III.

{¶60} In his Third and final Assignment of Error, Appellant claims that

prosecutorial misconduct during closing arguments violated his Due Process rights. We

disagree.

{¶61} As set forth above, Appellant herein claims misconduct because of

statements made by the prosecutor during closing arguments. “The test regarding

prosecutorial misconduct in closing arguments is whether the remarks were improper

and, if so, whether they prejudicially affected substantial rights of the defendant.” State

v. Smith,

,

(1984). “[T]he prosecution must avoid

insinuations and assertions which are calculated to mislead the jury.”

In cases of

clear misconduct, a mere instruction that closing arguments are not evidence is

insufficient to remedy the error.

. A conviction will be reversed for prosecutorial

misconduct only where it is clear beyond a reasonable doubt that, absent the

prosecutor's comments, the jury would not have found the defendant guilty. State v.

Benge,

, 141,

, 1996–Ohio–227. Furthermore,

isolated comments by a prosecutor are not to be taken out of context and given their

“most damaging meaning.” See Donnelly v. DeChristoforo (1974), 416 U .S. 637, 647,

,

. Improper closing arguments must be viewed in the

context of the entire trial. Id. at ¶ 168. Generally, a prosecutor's conduct at trial is not

grounds for reversal unless that conduct deprives the defendant of a fair trial. State v.

Loza (1994),

,

.

{¶62} At the end of the State’s closing arguments, the prosecutor made the

following statement: Licking County, Case No. 14 CA 53 15

{¶63} “So you either convict him on the first version, or, please, write down an

apology and make sure you give it to him on his way out of the courtroom.” (T. at 500).

{¶64} Appellant argues that the prosecutor was, in effect, telling the jury that if

they decided to acquit Appellant, they should also find that he deserved an apology.

{¶65} We note Appellant failed to object to the aforesaid alleged instance of

prosecutorial misconduct. Error not raised in the trial court must be plain error in order

to reverse. State v. Johnson (Nov. 19, 1998), Richland App. No. 98–CA–42,

, citing State v. Long (1978),

,

. Notice of plain

error is to be taken with utmost caution, under exceptional circumstances, and only to

prevent a manifest miscarriage of justice.

Plain error does not exist unless but for the

error, the outcome of the trial would clearly have been otherwise. State v. Nicholas

(1993),

,

.

{¶66} Upon review of the record, we find that the prosecutor’s remarks appear to

be in response to Appellant’s defense theory. As to the wallet theft, Appellant claimed

that he was a victim of a misidentification. As to the thefts from the athletic center,

Appellant claimed to have been duped or made into unwittingly participating in a crime.

{¶67} Upon review, even assuming arguendo, the remark was improper, we are

unpersuaded that such would have prejudicially affected Appellant's substantial rights. Licking County, Case No. 14 CA 53 16

{¶68} Appellant’s Third Assignment of Error is denied.

{¶69} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is affirmed.

By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

JWW/d 1210