State v. Balderas , 2019 Ohio 4503 ( 2019 )

[Cite as State v. Balderas, 2019-Ohio-4503.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-18-053
Appellee Trial Court No. 2017CR0355
v.
Rene R. Balderas DECISION AND JUDGMENT
Appellant Decided: November 1, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Rene Balderas, appeals from the July 17, 2018 judgment of the
Wood County Court of Common Pleas sentencing him, following his conviction by a
jury, of burglary, a violation of R.C. 2911.12(A)(2) and 2911.12(D), a felony of the
second degree. For the reasons which follow, we affirm.
{¶ 2} Appellant was indicted July 20, 2017, on one count of burglary for a
residential burglary that was committed on April 18, 2017 (Count 2). He was
subsequently indicted on December 21, 2017, on one count of burglary for a residential
burglary that was committed on April 14, 2017 (Count 1). The cases were consolidated
for trial. Following a jury trial, appellant was convicted of Count 1 relating to the
April 14, 2017 burglary but acquitted of Count 2 regarding the April 18, 2017 burglary.
Appellant was sentenced to a prison term of eight years. Appellant appeals and asserts
the following assignments of error:
I. The Trial Court erred when it denied the Defendant’s motion to
strike.
II. The Defendant was Convicted Against the Manifest Weight of
the Evidence.
{¶ 3} While the evidence presented at trial addressed two separate burglaries,
appellant was convicted of only one offense. The following evidence was presented with
regard to the April 14, 2017 burglary in Bowling Green, Ohio, of which appellant was
convicted.
{¶ 4} A minor testified that at approximately 10:00 p.m. on April 14, 2017, she
was walking with friends when she saw an old rusted, red Jeep in a neighbor’s driveway
which she did not recognize. It had a license plate on the back but not on the front of the
car. Although it was dark outside, a lamp across the street enabled her to see an
unknown, heavyset, approximately 30-year-old man with curly black hair and a red shirt
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smoking on the porch. She could tell the man saw them and was watching them. She
and her friends continued walking around the block and came back to check on the
situation. On their second pass by the house, she saw the man was no longer on the porch
and a light had been turned on inside the house. They continued to walk around the block
until they saw the lights had been turned off and the same man was standing behind the
door frame of the house as if he was trying to hide himself. The group hid behind a shed
so it looked like they had walked away, but they continued to watch the man. He came
out of the house and was carrying a bag which appeared to have things in it. He closed
the door and drove off. The witness tried to find a cigarette butt on the porch, but she
could not. The witness later identified appellant in a photographic lineup and was very
sure he was the man who had been on the porch. Officer Kusmeriek testified he
conducted the blind picture line-up on April 21, 2017, and the witness immediately
identified appellant on a certainty scale of 9/10.
{¶ 5} The homeowner testified he was at work when he was notified by a neighbor
that someone had been in his home. The homeowner returned home to find the home in
disarray and cigarettes thrown on the floor. A dresser had been moved and a television
which had been positioned in front of the window was overturned on the floor. The
homeowner did not know appellant and no one had permission to enter his home. Bags
which normally hung by the door were missing, along with a briefcase with a tablet and
jewelry. He identified his wife’s jewelry as that which appellant later pawned.
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{¶ 6} Detective Mulinix investigated the burglary and authenticated the
photographs admitted into evidence which he had taken inside and outside of the
premises. He found the entry point for the burglary was a window in the bedroom where
someone had pushed a dresser and television away from the window. He could not find
any cigarette butts around the porch.
{¶ 7} The detective received a tip from a parole officer that appellant had
contacted the parole officer to advise him that appellant’s cousin, Mario Flores, had
committed two burglaries and described the location of both (one of which matched the
above burglary). The detective was familiar with the men and directed Detective
Hartman to conduct an online search to see if any of the stolen items had been pawned.
When the detective learned appellant had pawned some jewelry, the detective had the
victim identify the pawned items. The detective further testified that he has had many
cases where the suspect has pawned items, probably because they do not understand law
enforcement has the capability of finding out who pawned the items.
{¶ 8} Detective Hartman testified he assisted Detective Mulinix in the
investigation of the burglaries and checked the online jewelry resale site to find appellant
had sold jewelry on April 17, 2017. Detective Hartman also testified that a lot of
criminals do not attempt to hide their identity when pawning stolen items.
{¶ 9} Detective Hartman was familiar with appellant and knew that he did not
have a valid driver’s license. While Detective Hartman was searching for appellant,
Flores, and Ray Garcia, the detective saw appellant driving a vehicle. Detective Hartman
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stopped appellant and observed a ring in the cup holder of the center console. No jewelry
was found on appellant’s person.
{¶ 10} Detective Mulinix conducted a search of appellant’s vehicle after he was
arrested and found shoes and clothing, including a red shirt, tablets, cameras, and other
electrical devices. During a police interview, appellant denied being involved with the
two burglaries. When he was told his vehicle was seen at one of the scenes, he indicated
Flores had borrowed the car that night. However, Joanne Sprague, with whom Flores
lived, testified that appellant would never have loaned his car to Flores because he does
not have a license. While the vehicle appellant had been driving the day of his arrest
does not belong to appellant, it was never reported stolen after the titled owner was
contacted.
{¶ 11} In his first assignment of error, appellant argues the trial court erred when it
denied his motion to strike the testimony of Detective Hartman where, in response to a
question by the defense, the officer stated his unsolicited opinion that many suspects do
not attempt to conceal their identity when they pawn stolen property. Appellant also
objected at trial to similar testimony by Detective Mulinex. Appellant asserts this
unsolicited statement was highly prejudicial to appellant. However, the only basis
appellant asserts for excluding the testimony is that it is character evidence prohibited by
Evid.R. 404. We find, however, the detective’s opinions were not character evidence
because the statements relate to other offenders. Rather, appellant’s objection addresses
the relevancy of the evidence.
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{¶ 12} A trial court’s decision to grant or deny a motion to strike evidence is
reviewed under an abuse of discretion standard. State v. McKelton, 148 Ohio St. 3d 261,
2016-Ohio-5735, 70 N.E.3d 508, ¶ 181. Therefore, we will not reverse the trial court
decision absent a showing that the decision was “unreasonable, arbitrary or
unconscionable.” State v. Beasley, 152 Ohio St. 3d 470, 2018-Ohio-16, 97 N.E.3d 474,
¶ 12, citing Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 13} We agree with appellee that appellant opened the door to the detective’s
comment by asking the detective whether it was true that appellant did not conceal his
identity when he pawned the jewelry using his own name. In addition to answering
“yes,” the detective added his opinion that criminals often use their own name because
they do not understand the police can investigate pawned goods. While the court could
have stricken the comment as unresponsive, we cannot find it was an abuse of discretion
when appellant has failed to demonstrate how he was prejudiced by the comment and
there was sufficient other evidence which supported the conviction. Therefore, we find
appellant’s first assignment of error not well-taken.
{¶ 14} In his second assignment of error, appellant asserts his conviction was
contrary to the manifest weight of the evidence. Despite his assignment of error,
appellant argues the prosecution failed to introduce “sufficient evidence to establish a
conviction and the conviction was contrary to the manifest weight of the evidence.”
(Emphasis added.)
6.
{¶ 15} Sufficiency and manifest weight arguments are distinct. State v.
Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus.
The appellate court must first consider whether there was sufficient evidence presented as
to the allegations of the indictment to warrant submitting the case to the jury; and, if there
was sufficient evidence, then consider whether the manifest weight of the evidence
supported the verdict. Thompkins at 386-387.
{¶ 16} Sufficiency of the evidence is a legal question of whether there was
adequate evidence to present a case to the jury and whether the evidence was sufficient as
a matter of law to support the verdict. Thompkins at 386. The appellate court does not
weigh the evidence nor assess the credibility of the witnesses. State v. Beasley, 153 Ohio
St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 207; State v. Walker, 55 Ohio St. 2d 208,
212, 378 N.E.2d 1049 (1978). The evidence must be viewed in favor of the prosecution
and we must find that “any rational trier of fact could have found the essential elements
of the crime [were proven] beyond a reasonable doubt.” Beasley, quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 17} A challenge to the weight of the evidence questions whether or not “the
greater amount of credible evidence” was admitted to support the findings of fact.
Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting
Thompkins at 387. When weighing the evidence, the court of appeals must consider
whether the evidence in a case is conflicting or where reasonable minds might differ as to
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the inferences to be drawn from it, consider the weight of the evidence, and consider the
credibility of the witnesses to determine if “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.” Id. at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717
(1st Dist.1983).
{¶ 18} To establish the offense of burglary, the prosecution was required to prove
that appellant, “by force, stealth, or deception,” trespassed “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.” R.C. 2911.12(A)(2).
{¶ 19} Appellant asserts he was convicted solely upon the testimony of Flores who
was not credible; a young woman who was not credible; and circumstantial evidence. He
further argues there was no evidence he entered the residence with the purpose to commit
a theft offense. Instead, he asserts, the prosecution established only that appellant
possessed stolen property.
{¶ 20} First, Flores’s testimony only concerned the April 18, 2017 burglary, of
which appellant was acquitted. Therefore, we do not consider it in our review. Second,
any credibility determination regarding the witness to the April 14, 2017 burglary is
within the province of the jury. The eyewitness testified the lighting was adequate to
observe appellant’s actions, the turning on and off of the home lights, appellant’s furtive
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exit from the home, and that he left the home carrying a bag filled with something. The
witness was also able to identify appellant and the vehicle he was driving when he was
apprehended matched her description. Furthermore, there was additional direct evidence
that the home was entered at nighttime through a bedroom window, which caused the
dresser to be moved and television to be overturned. The homeowner testified he did not
know appellant and no one should have been in the house. Finally, there was evidence
appellant pawned jewelry the homeowner identified as the jewelry stolen from the
residence. Based on this evidence, a reasonable inference could be made that appellant
entered the premises with force and stealth with the intent to steal items in the home.
{¶ 21} Upon a review of all of the evidence, we find there was sufficient evidence
to submit the case to the jury and support the verdict as a matter of law. We also find the
conviction was not contrary to the manifest weight of the evidence. Therefore, we find
appellant’s second assignment of error not well-taken.
{¶ 22} Having found the trial court did not commit error prejudicial to appellant
and that substantial justice has been done, the judgment of the Wood County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
9.
State v. Balderas
C.A. No. WD-18-053
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
Arlene Singer, J.
_______________________________
Christine E. Mayle, 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.supremecourt.ohio.gov/ROD/docs/.
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