[Cite as State v. Ortiz,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-14-1251

Appellee Trial Court No. CR0201401056

v.

Frederico Ortiz III DECISION AND JUDGMENT

Appellant Decided: March 11, 2016

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Defendant-appellant, Frederico Ortiz, III, appeals the November 19, 2014

judgment of the Lucas County Court of Common Pleas which, following a jury trial

convicting him of aggravated robbery, aggravated burglary, felonious assault, and attempted burglary, sentenced him to a total of ten years of imprisonment. Because we

find that neither the jury nor the court erred, we affirm.

{¶ 2} Appellant was indicted on January 13, 2014, on one count each of

aggravated robbery, aggravated burglary, robbery, felonious assault, and attempted

aggravated burglary. The charges stemmed from the November 29, 2013 break-ins at

two apartments in Oregon, Lucas County, Ohio.

{¶ 3} The matter proceeded to a jury trial on October 20, 2014, and the following

relevant testimony was elicited. The victim, M.C., 84 on the day of trial, testified that on

the evening of November 29, 2013, he was watching television in his apartment in

Oregon, Ohio, when he heard someone knocking at the door. He looked through the

peephole and saw a male adjusting his hood. Thinking it might be a neighbor, M.C.

stated that he opened the door a bit; the male then burst into the apartment, began

punching him and demanded his wallet. M.C. identified appellant as the perpetrator.

M.C. stated that once he was knocked down, appellant began “stomping” him.

{¶ 4} M.C. stated that following the attack, he was transported to the hospital

where he received stitches to his ear and forehead. M.C. testified that the police

presented a photo array and he identified appellant as the perpetrator.

{¶ 5} M.C. was cross-examined about his opportunity to observe and identify the

perpetrator given the lighting conditions and the hood over his head. When questioned,

M.C. stated that he observed the individual through the peephole for approximately 30

seconds, with his glasses on, and opened the door because he could not hear him.

2. {¶ 6} M.C.’s neighbor testified that at approximately 9:30 p.m. on the date of the

incident, he heard someone yelling that he was dying. He opened his door and observed

an individual run out of M.C.’s apartment and run up the stairs. He stated that the person

was dark-skinned and likely African American. The neighbor called 9-1-1.

{¶ 7} Victim J.N. testified that she lives in Oregon, Ohio, and that on November

29, 2013, at approximately 10:00 p.m. she was in her bedroom watching television when

she heard a “thump” and a “crash.” She grabbed her cell phone and a knife, telephoned

9-1-1, and proceeded to the living room where she observed that the sliding glass door

was shattered, open about six inches, and that the vertical blinds had been opened. J.N.

observed someone just outside her door standing and staring at her. J.N. stated that she

looked at him for 10 to 15 seconds before he ran away and that he was wearing a black

hoodie. J.N. testified that on December 6, 2013, police presented her with a photo array

and that she identified appellant as the individual who broke her sliding glass door.

{¶ 8} J.N. was cross-examined regarding the lighting in her living room at the time

she saw the perpetrator and her ability to identify him. J.N. stated that there was a small

lamp on but that the back patio was dark. She was also questioned about her 9-1-1 call

where she indicated that all she saw was a man in a black hoodie. She explained that

after the 9-1-1 call, she walked further into the living room and was able to observe him

more closely.

{¶ 9} Neighbor T.R. testified that on the evening of November 29, 2013, she heard

a loud crash. She went out on her back patio and noticed a man walking from patio to

3. patio. She yelled out to him and he ran away. T.R. stated that she went around to the

front of the complex and observed an individual get into a truck, but she could not tell if

it was the same person.

{¶ 10} Oregon Police Officer Brandon Gardull testified that he responded to the 9-

1-1 call by the neighbor of M.C. He described the blood in M.C.’s home and relayed a

similar account of the incident as M.C.’s testimony.

{¶ 11} Oregon Police Officer Michael Worden also responded to the 9-1-1 call

and observed M.C.’s apartment. While in the apartment, another call of a possible

burglary came in from the apartment complex across the street. He proceeded to the

complex and observed a male matching the hoodie description exiting a truck in the

adjacent apartment complex. The male saw the officer and began running. Wordon

stated that he and another officer began chasing the individual through the apartment

complex; he was found by a third officer getting out of another vehicle. He was then

placed in handcuffs. Appellant was identified as the individual. Wordon testified that he

conducted the search of appellant and saw what he believed to be blood spots on his

tennis shoes. The shoes were taken as evidence and submitted for testing.

{¶ 12} Oregon Police Officer Brett Smith was also part of the foot chase. He

encountered appellant inside a car digging through the glove box and center console.

When asked, appellant stated that the car belonged to an unnamed friend. Appellant was

then placed in handcuffs.

4. {¶ 13} Bureau of Criminal Investigation (“BCI”) forensic biologist Alex Thiel

testified that in this case a hooded sweatshirt, shoes, and a DNA standard of M.C. were

submitted for testing. Thiel stated that the shoes presumptively tested positive for blood

so he sent it along with M.C.’s DNA standard, to another facility for DNA testing. The

sweatshirt was not examined. Hallie Garofalo, also of the BCI, testified that she

conducted the DNA testing on the shoes and determined that victim, M.C., could not be

excluded as the source.

{¶ 14} An Oregon police officer acted as the blind administrator for the photo

array shown to M.C. In other words, he did not know the identity of the suspect. The

administrator stated that no one told M.C. who, if anyone, to choose and that he identified

appellant as the perpetrator. A second blind administrator presented the photo array to

victim J.N.; she also identified appellant as the perpetrator.

{¶ 15} Oregon Police Detective Kevin Spangler investigated the incidents.

Spangler testified that he interviewed appellant at the police station. The interview was

played to the jury. Spangler compiled the photo array and submitted items to BCI. He

also testified regarding the photographs he took of M.C.’s injuries.

{¶ 16} Detective Spangler testified regarding a recorded jail conversation

involving appellant; it was played to the jury. The gist of the conversation with

appellant’s sister was that the incident occurred because appellant was angry and had

been drinking and after leaving his apartment “took it out on dude.”

5. {¶ 17} Following the presentation of the evidence and deliberations, the jury found

appellant guilty of aggravated burglary, aggravated robbery, felonious assault, and

attempted burglary. At his November 18, 2014 sentencing hearing, appellant’s counsel

argued that his convictions for aggravated burglary, aggravated robbery and felonious

assault were allied and subject to merger and a concurrent sentence. The state had no

objection to running the aggravated robbery and felonious assault sentences concurrently

but requested they run consecutive to the aggravated burglary and attempted burglary

convictions. The court agreed and sentenced appellant to a total of ten years of

imprisonment. This appeal followed.

{¶ 18} Appellant raises five assignments of error for our review:

Assignment of Error No. 1: Appellant’s convictions are not

supported by sufficient evidence and are against the manifest weight of the

evidence.

Assignment or Error No. 2: The facts of this case dictate that the

offenses of aggravated burglary, felonious assault, and aggravated robbery

should merge.

Assignment of Error No. 3: The trial court erred in sentencing

appellant to terms of incarcerat[ion] for the merged offenses.

Assignment of Error No. 4: The trial court erred in imposing

restitution pursuant to R.C. 2929.18(A).

6. Assignment of Error No. 5: The trial court erred in imposing the cost

of appointed counsel fees and costs of confinement.

{¶ 19} Appellant’s first assignment of error argues that his convictions were not

supported by legally sufficient evidence and were against the weight of the evidence.

Appellant makes specific arguments regarding his conviction for attempted burglary.

{¶ 20} Sufficiency of the evidence and manifest weight of the evidence are

quantitatively and qualitatively different legal concepts. State v. Thompkins,

,

(1997). Sufficiency of the evidence is purely a question

of law.

At its core, sufficiency of the evidence is a determination of adequacy and a

court must consider whether the evidence was sufficient to support the conviction as a

matter of law.

The proper analysis 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.’” State v. Williams,

,

(1996), quoting State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 21} In contrast, a manifest weight challenge questions whether the state has met

its burden of persuasion.

. In making this determination, the court of

appeals sits as a “thirteenth juror” and, after:

“reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created

7. such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered. The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.”

quoting State v. Martin,

,

(1st Dist. 1983).

{¶ 22} Appellant’s attempted burglary conviction, R.C. 2923.02 and

2911.12(A)(1), required that the state prove that appellant knowingly engaged in conduct

that, if successful, would have established that appellant entered a structure by stealth or

deception with the purpose to commit, in the structure, any criminal offense.

{¶ 23} Intent to commit a criminal offense may be inferred from the surrounding

facts and circumstances. State v. Johnson,

,

(1978). In

particular, “it is difficult to ascertain the intent of a person in forcibly entering an

occupied structure if he is apprehended [or interrupted] before he commits any overt act

inside the premises.” State v. Flowers,

,

(10th

Dist. 1984), overruled on other grounds by State v. Fontes,

,

(2000). In such a situation, unless circumstances giving rise to a different

inference are present, a reasonable inference arises that the person entered the structure

with the intent to commit a theft offense. Id.; State v. Levingston,

,

(2d Dist. 1995).

{¶ 24} Here, appellant argued that his conviction was not supported by sufficient

evidence and was against the weight of the evidence because it was “plausible” that his

8. only intent was to break the glass door. However, in addition to the door being broken

J.N. testified that it had been opened six inches. Appellant further admitted during his

police interview that he was a thief and had been breaking into cars that night. He also

stated that he had gone into an apartment after seeing a television but a barking dog

scared him away. These facts lead to a reasonable inference that appellant broke and

opened the door with the intent to commit a theft offense.

{¶ 25} Appellant next requests under his first assignment of error, that this court

“review the record in its entirety, and determine whether each element of the offenses

were met, and supported by sufficient evidence.” Appellant further requests that we

“weigh the credibility of all the evidence and determine whether the convictions should

be reversed as against the manifest weight of the evidence.” Absent specific arguments

and references to the record illustrating deficits in the evidence presented at trial, this

court is not charged with searching the record for any potential error. State v. Smith, 6th

Dist. Lucas No. L-05-1350,

, quoting State v. Watson,

,

(12th Dist. 1998).

{¶ 26} Based on the foregoing, we find that appellant’s conviction for attempted

burglary was supported by sufficient evidence and was not against the weight of the

evidence. Appellant’s first assignment of error is not well-taken.

{¶ 27} In his next assignment of error, appellant argues that under the facts of the

case the offenses of aggravated burglary, aggravated robbery, and felonious assault were

9. allied and should have been merged. Specifically, appellant contends that the offenses

were perpetrated against a single victim with a single state of mind.

{¶ 28} R.C. 2941.25 provides:

(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant

may be convicted of only one.

(B) Where the defendant’s conduct constitutes two or more offenses

of dissimilar import, or where his conduct results in two or more offenses

of the same or similar kind committed separately or with a separate animus

as to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶ 29} In State v. Ruff,

,

,

, the

Supreme Court of Ohio clarified how courts are to determine whether offenses are allied.

The court noted that the allied-offenses analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant’s conduct. Id. at ¶ 26. However, conduct

is but one factor to consider when determining whether offenses are allied. Id. at ¶ 21.

The court stated:

As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must

ask three questions when defendant’s conduct supports multiple offenses:

10. (1) Were the offenses dissimilar in import or significance? (2) Were they

committed separately? and (3) Were they committed with separate animus

or motivation? An affirmative answer to any of the above will permit

separate convictions. The conduct, the animus, and the import must all be

considered. Id. at ¶ 31.

{¶ 30} The court further explained that offenses are of dissimilar import “if they

are not alike in their significance and their resulting harm.” Id. at ¶ 21. Thus, “two or

more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the

defendant’s conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.” Id. at ¶ 26. The evidence at trial

or during a plea or sentencing hearing will reveal whether the offenses have similar

import. Id.

{¶ 31} Utilizing the Ruff analysis in the present case, we find that the three

offenses were committed with a separate animus and, thus, were not subject to merger.

As to the aggravated burglary charge, the evidence presented at trial demonstrated that

the aggravated burglary was committed when appellant hit M.C. and forcibly pushed his

way into the apartment.

{¶ 32} The aggravated robbery occurred when appellant punched M.C. and

demanded his wallet. Once M.C. was knocked to the ground, appellant committed a

felonious assault by “stomping” on him. During his recorded jail conversation, appellant

stated that at the time of the offenses he had been angry at his roommate and “took it out

11. on dude.” Accordingly, we find that appellant’s second assignment of error is not well-

taken and is denied.

{¶ 33} Appellant next argues, in his third assignment of error, that the trial court

erred when it sentenced him to three separate prison terms of which the court ordered two

to be served concurrently. Specifically, appellant argues that because the offenses of

aggravated robbery and felonious assault were allied and merged, he could only be

sentenced for one of the offenses.

{¶ 34} As set forth above, because we concluded that the offenses of aggravated

robbery and felonious assault were not allied, we find that the trial court did not err in

sentencing appellant to concurrent sentences. Appellant’s third assignment of error is not

well-taken.

{¶ 35} Appellant’s fourth assignment of error argues that the trial court’s

imposition of restitution under R.C. 2929.18(A) was plain error. Appellant argues that

the order of $103.50 to victim, M.C., and $250 to Wood Springs Properties was not

supported by credible evidence.

{¶ 36} R.C. 2929.18(A) provides, in relevant part:

Except as otherwise provided in this division and in addition to

imposing court costs pursuant to section 2947.23 of the Revised Code, the

court imposing a sentence upon an offender for a felony may sentence the

offender to any financial sanction or combination of financial sanctions

12. * * * . Financial sanctions that may be imposed pursuant to this section

include, but are not limited to, the following:

(1) Restitution by the offender to the victim of the offender’s crime

or any survivor of the victim, in an amount based on the victim’s economic

loss. If the court imposes restitution, the court shall order that the restitution

be made to the victim in open court, to the adult probation department that

serves the county on behalf of the victim, to the clerk of courts, or to

another agency designated by the court. 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, estimates or receipts

indicating the cost of repairing or replacing property, 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. (Emphasis added.)

{¶ 37} Reviewing the record, we note that the non-disclosable portion of the

presentence investigation report is consistent with the trial court’s restitution order. Thus,

we conclude that the trial court did not commit plain error when it ordered restitution.

Appellant’s fourth assignment of error is not well-taken.

13. {¶ 38} In his fifth and final assignment of error, appellant argues that the court

erred when it imposed the costs of appointed counsel and confinement without

determining appellant’s ability to pay. Prior to the imposition of costs of assigned

counsel and confinement, the court is not required to conduct a hearing on a defendant’s

ability to pay; rather, the record must contain some evidence that the court considered the

defendant’s financial ability to pay. State v. Baughman, 6th Dist. Lucas No. L-11-1045,

, ¶ 43, citing State v. Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-

6919, ¶ 13.

{¶ 39} In the present case, the trial court’s sentencing judgment entry contains the

following language regarding costs:

Defendant found to have, or reasonably may be expected to have, the

means to pay all or part of the applicable costs of supervision, confinement,

assigned counsel, and prosecution as authorized by law. Defendant ordered

to reimburse the State of Ohio and Lucas County for such costs and to pay

restitution in the amount of $353.00. This order of reimbursement and

restitution is a judgment enforceable pursuant to law by the parties in

whose favor it is entered. Defendant further ordered to pay the cost

assessed pursuant to R.C. 9.92(C), 2929.18 and 2951.021. Notification

pursuant to R.C. 2947.23 given.

{¶ 40} At the November 18, 2014 sentencing hearing, the trial court further stated:

14. You are further ordered to pay all cost of prosecution. You are

further ordered to pay restitution in the amount of $103.50 to [M.C.], as

well as $250 to Wood Springs Properties, Court appointed counsel fees,

and any fees permitted pursuant to Revised Code 2929.18(A)(4), the Court

finding the Defendant has the ability to pay these amounts.

{¶ 41} Appellant’s argument relies on several cases from this court where we

concluded that the trial court failed to properly consider a defendant’s ability to pay prior

to the imposition of appointed counsel and confinement costs. Specifically, appellant

turns our attention to State v. King, 6th Dist. Lucas No. L-12-1013,

(only evidence that the defendant completed tenth grade) and State v. Copeland, 6th Dist.

Lucas Nos. L-11-1103, L-11-1104, L-11-1105, L-11-1106,

(defendant 71

on release date after 18-year prison sentence and no high school diploma)

{¶ 42} Conversely, arguing that the costs of confinement and appointed counsel

were properly imposed, the state cites multiple cases from this court where we concluded

that the record supported appellant’s ability to pay. See State v. Flowers, 6th Dist. Lucas

No. L-14-1141,

(defendant 32 at the time of sentencing, had his GED,

and was employed up until arrest); State v. Heidelburg , 6th Dist. Sandusky No. S-12-

042,

(defendant was 37 years old, completed high school, held a few

jobs in the past); State v. Donaldson, 6th Dist. Lucas No. L-11-1264,

(although 41 and a history of substance abuse, defendant had a job history).

15. {¶ 43} Applying the relevant case law, in the present case the record reveals that at

the time of sentencing appellant was 25 years old and had received his GED. Appellant

was single with one dependent and a limited work history. We conclude that these facts

support a finding of appellant’s ability to pay the costs of confinement and appointed

counsel. Accordingly, we find that appellant’s fifth assignment of error is not well-taken.

{¶ 44} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and sentencing and the judgment of the Lucas County

Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay

the costs of this appeal.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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