State v. Matthews , 2015 Ohio 3614 ( 2015 )

[Cite as State v. Matthews, 2015-Ohio-3614.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1134
Appellee Trial Court No. CR0201301070
v.
Xzavier Matthews DECISION AND JUDGMENT
Appellant Decided: August 31, 2015
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Joseph J. Urenovitch, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Xzavier Matthews, appeals from the May 30, 2014 judgment of
the Lucas County Court of Common Pleas sentencing him following his conviction of
burglary, aggravated burglary with a firearm specification, felonious assault with a
firearm specification, aggravated robbery with a firearm specification, and grand theft of
a motor vehicle. For the reasons which follow, we affirm.
ASSIGNMENT OF ERROR NUMBER 1
THE TRIAL COURT ABUSED ITS DISCRETION DENYING
DEFENDANT’S MOTION FOR SEPARATE TRIALS, CAUSING
PREJUDICE TO DEFENDANT.
ASSIGNMENT OF ERROR NUMBER 2
DEFENDANT’S CONVICTION FOR BURGLARY, COUNT ONE
OF THE INDICTMENT, WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.
ASSIGNMENT OF ERROR NUMBER 3
DEFENDANT’S CONVICTION FOR AGGRAVATED
BURGLARY, FELONIOUS ASSAULT, AGGRAVATED ROBBERY,
AND GRAND THEFT OF A MOTOR VEHICLE IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 2} This case involves two incidents that occurred on August 8 and 28, 2011.
On August 8, 2011, appellant is alleged to have attempted to enter a home while the
residents were away. On August 28, 2011, appellant is alleged to have entered an
occupied home and, when confronted, threatened the victims with a gun, assaulted and
shot one of the victims, and left the premises with the couple’s television and car.
{¶ 3} Appellant was indicted in two separate indictments, which were joined for
trial. Appellant was charged with committing six offenses: (1) burglary, a violation of
R.C. 2911.12(A)(2) and (D); (2) aggravated burglary, a violation of R.C. 2911.11(A)(1);
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(3) felonious assault, a violation of R.C. 2903.11(A)(2), with a firearm specification
(R.C. 2941.145); (4) attempted murder, a violation of R.C. 2923.02, with a firearm
specification (R.C. 2941.145); (5) aggravated robbery, a violation of R.C. 2911.01(A)(1),
with a firearm specification (R.C. 2941.145); and (6) grand theft of a motor vehicle, a
violation of R.C. 2913.02(A)(1) and (B)(5). Appellant moved for relief from prejudicial
joinder pursuant to Crim.R. 14, arguing that the counts rising from two separate
incidences should not have been joined. The trial court denied the motion. Appellant
renewed his motion at trial, and, again, the trial court denied the motion.
{¶ 4} We address appellant’s second and third assignments of error first. In his
second assignment of error, appellant argues that his conviction for burglarizing the
Ducat home was not supported by sufficient evidence.
{¶ 5} A challenge to the sufficiency of the evidence is a question of law. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The standard for
determining whether there is sufficient evidence to support a conviction is whether the
evidence admitted at trial, “if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. 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.”
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,
superseded by constitutional amendment on other grounds as stated in State v. Smith, 80
Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4, citing Jackson v. Virginia, 443 U.S.
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307, 319, 99 S.Ct. 2781, 61 L.E.2d 560 (1979). Accord Thompkins. Therefore, “[t]he
verdict will not be disturbed unless the appellate court finds that reasonable minds could
not reach the conclusion reached by the trier-of-fact.” State v. Dennis, 79 Ohio St.3d
421, 430, 683 N.E.2d 1096 (1997), quoting Jenks at 273. In determining whether the
evidence is sufficient to support the conviction, the appellate court does not weigh the
evidence nor assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208,
212, 378 N.E.2d 1049 (1978), and State v. Willard, 144 Ohio App.3d 767, 777-778, 761
N.E.2d 688 (10th Dist.2001). But, the court must view the evidence in the light most
favorable to the prosecution. Jenks, supra. If the state “relies on circumstantial evidence
to prove an element of the offense charged, there is no requirement that the evidence
must be irreconcilable with any reasonable theory of innocence in order to support a
conviction” so long as the jury is properly instructed as to the burden of proof, i.e.,
beyond a reasonable doubt. Jenks at paragraph one of the syllabus.
{¶ 6} To establish burglary pursuant to R.C. 2911.12(A)(2), the state was required
to prove that appellant:
by force, stealth, or deception, trespass[ed] 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.
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{¶ 7} The following evidence was admitted at trial. Douglas Ducat testified he
and his wife were returning home at 8:00 a.m. after running an errand. His home is
located at the end of a dead-end street. All of the doors to his home were locked except
for a three-season porch, from which there is access to the home through a wooden
sliding door. When Ducat arrived home and turned into his driveway, he saw a gray
minivan parked in the driveway and a man standing behind the minivan near the rear of
his house putting something into the garbage cans. Appellant admitted being the man
who was at the Ducats’ home.
{¶ 8} Ducat’s wife exited the car first and confronted appellant. Mr. Ducat
followed and confronted appellant in the backyard. Appellant responded that he was
looking for someone to repair his car. Mr. Ducat did not recognize the name appellant
supplied and did not know anyone who repaired cars. The conversation lasted about ten
minutes as Mr. Ducat and appellant walked toward the front of the house. Mr. Ducat
became suspicious of appellant when he started acting nervous, so Mr. Ducat asked
appellant to empty his pockets. As appellant began to comply, however, Mr. Ducat told
appellant to stop and pointed him to a neighbor who was working on a boat. As Mr.
Ducat was moving his car into the driveway, he saw appellant at the neighbor’s house
knocking on their front door.
{¶ 9} After appellant had left, Mr. Ducat examined the back porch area and found
that the door had gouge marks on the top and bottom side of the lock. Mr. Ducat had not
seen the gouge marks before. Mr. Ducat did not believe that he could have missed seeing
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the marks previously because he passes through the door on a regular basis and the height
of the door causes the lock to fall at eye level. Mr. Ducat also found that keys left on the
porch were missing. Mr. Ducat checked the garbage cans and found a bag in which the
man had defecated and placed one of their beach towels. Mr. Ducat had used the garbage
can the night before and knew this bag had not been there.
{¶ 10} Detective Singlar, the lead investigator, testified he spoke with the Ducats
and they described the man who was at their home as being tall, approximately six foot,
and skinny, and an African-American. The man also had a gold decoration on his teeth
and a full sleeve tattoo on one arm. The man was not wearing glasses. The detective
observed the pry marks on the Ducat’s door. He did not observe any other damage or
deterioration on the home. The Bureau of Investigation refused to test the fecal matter.
The department was able to obtain latent fingerprints, but nothing sufficient was revealed
from the national fingerprint database. A few weeks later, the detective was able to
develop a possible suspect, based upon information from another detective, and prepared
a photo array. The detective could not remember how the other detective came up with
appellant’s name. Mr. Ducat was able to identify appellant from the photo array and he
identified appellant again at trial as the man who tried to burglarize his home.
{¶ 11} Appellant denied having attempted to break into the Ducat home. He had
not noticed any damage to the exterior of the home. He testified he was directed by
someone at a neighboring McDonald’s to Mr. Ducat to hire him to do bodywork on
appellant’s car. When Mr. Ducat arrived home, appellant and Mr. Ducat talked about the
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car as they headed toward appellant’s car. Mr. Ducat suggested a neighbor who could do
bodywork. After appellant had started his car, Mrs. Ducat came up to the car yelling and
asked appellant to empty his pockets. Appellant drove to the neighbor’s home, but no
one was home.
{¶ 12} Appellant challenges that there was no direct evidence of criminal intent.
However, “[c]ircumstantial evidence and direct evidence inherently possess the same
probative value.” Jenks, 61 Ohio St.3d at paragraph one of the syllabus, 574 N.E.2d 492.
In this case, we find that there was sufficient circumstantial evidence to support the
conviction. Appellant admitted he was the man the Ducats found at their home. Mr.
Ducat testified that there were gouge marks on the lock area of the door which were not
there earlier. The investigating detective confirmed the presence of the marks, but could
not testify as to when they were made. Items were moved on the porch and their keys
were missing. Appellant was seen throwing something into the garbage and Mr. Ducat
found a bag that he had not seen in the garbage the night before. The home was located
at the end of a dead-end street. Appellant gave a vague answer why he was at a private
home. Appellant acted nervous. This evidence alone was sufficient for a trier of fact to
conclude that appellant had entered the porch by stealth and had attempted to enter the
interior of the home by force. Therefore, appellant’s second assignment of error is not
well-taken.
{¶ 13} In his third assignment of error, appellant argues that his conviction of
aggravated burglary, felonious assault, aggravated robbery, and grand theft of a motor
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vehicle arising out of the incident involving the Gacsals was contrary to the manifest
weight of the evidence.
{¶ 14} Even when there is sufficient evidence to support the verdict, a court of
appeals may decide that the verdict is against the weight of the evidence. Thompkins, 78
Ohio St.3d at paragraph two of the syllabus, 678 N.E.2d 541. 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 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).
{¶ 15} To obtain a conviction of aggravated burglary, felonious assault,
aggravated robbery, and grand theft of a motor vehicle the prosecution was required to
prove the following: (1) aggravated burglary—appellant did “by force, stealth, or
deception, * * * trespass in an occupied structure * * *, when another person other than
an accomplice of the offender is present, with purpose to commit in the structure * * *
any criminal offense, * * * and [t]he offender inflicts, or attempts or threatens to inflict
physical harm on another”; (2) felonious assault—appellant “knowingly * * * [c]ause[ed]
or attempt[ed] to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordnance”; (3) attempted murder—appellant “purposely or knowingly * * *
engage[d] in conduct that, if successful, would constitute” murder; (4) aggravated
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robbery—appellant “in attempting or committing a theft offense, * * * or in fleeing
immediately after the attempt or offense * * * [had] a deadly weapon on or about [his]
person or under [his] control and either display[ed] the weapon, brandish[ed] it,
indicate[d] that [he] possess[ed] it, or use[d] it”; and (5) grand theft of a motor vehicle—
appellant “with purpose to deprive the owner of property or services, * * * knowingly
obtain[ed] or exert[ed] control over * * * [an automobile] * * * [w]ithout the consent of
the owner or person authorized to give consent.”
{¶ 16} The following evidence was presented regarding the second offense. Frank
Gacsal, the victim, had a lengthy prior felony criminal background. He testified that he
and his wife, Jacqueline, had moved into their home several days before August 28, 2011.
The couple was watching TV that evening with the lights on in the living room. His wife
got up and went into the hallway and Gacsal heard his wife talking to someone and
asking who the person was. Gacsal flew off the couch and ran around the corner and
crashed into a person causing the person to hit the wall and fall into a bedroom. The man
landed on the bed and was hitting Gacsal with his left hand while Gacsal was hitting the
man with his right hand. Gacsal wondered why the man was not using his right hand, so
Gacsal switched hands and reached down the man’s right arm to find he was holding a
pistol. The pistol fired and a bullet struck Gacsal in the corner of his right eye and passed
through his left cheek and lodged into his arm. Gacsal jumped over the bed and landed
on his hands and knees. He could not see anything because of the blood and because the
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bedroom was dark. He could not remember anything after that point, except seeing the
man stealing their car. Gacsal could not give a description of the man.
{¶ 17} Jacqueline Gacsal testified that when she went to the unlit hallway of her
home that night, she encountered a man, wearing a black hoodie sweatshirt with the hood
up, a white scarf around his head with the eyes cut out, black pants, and red tennis shoes.
He was not wearing glasses. She also saw that he was carrying a silver gun, which he
pointed at her. While the light in the hallway was off, the light from the living room gave
her a clear view of the man. When she screamed and asked what he was doing there, her
husband came running, and he ran into the man. The two men fell into the bedroom and
onto the bed. She followed them into the room, heard two gunshots, and saw a flash of
light. She turned on the lights and saw blood and her husband’s face bleeding. The
intruder lay on the bed. His mask and hoodie had fallen off and she could clearly see his
face. The intruder told her to get the car keys while he pointed the gun at her. He
followed her and stood about two feet away in the lighted living room while she faced
him and could again clearly see his face. When he left through the front door with the
keys, she returned to the bedroom to check on her husband and started to call 911. The
intruder returned to the bedroom, still without his hoodie or mask, and pointed the gun at
her again and asked her who she had called. He took her cell phone just as the 911
operator answered and put it in his pocket. Again, she faced him as he handed her the car
keys and demanded that she tell him which key to use for the car. He directed her out of
the bedroom and told her to unhook the TV and Blu-ray player and carry them to the car.
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It took her some time to disconnect the TV and the intruder walked back to the bedroom
while she worked. He directed her to load up the car while he got inside the car. As soon
as she saw his hands on the steering wheel, she ran around the side of the house. Her
husband was coming out of the house as the intruder drove away. She ran to the
neighbor’s house to use the phone.
{¶ 18} She described the intruder to one of the first police officers on the scene,
telling him that she had seen his face when his mask came off. She testified that she
described the intruder as a black man who was wearing a black sweatshirt. He did not
have glasses. She could not recall describing the tonal color of his skin until after
Detective Cooper inquired. She could not recall having talked to the police officers who
transported her downtown or any other officer.
{¶ 19} When she arrived at the police station, she spoke with Detective Cooper.
He was trying to calm her down because she was still in shock from the incident.
Detective Cooper inquired about the intruder’s skin color tone and she replied that the
intruder’s skin color was the same as the detective. He also asked about the intruder’s
height and she thought he was taller than Detective Cooper. She could not recall giving
an exact height. She could not recall tattoos or any other distinguishing features.
{¶ 20} On September 1, 2014, she called the police to ask for a sketch artist to
draw the intruder because she could remember what he looked like. A detective brought
her a photo array at the hospital entrance where her husband was recuperating. She was
able to identify appellant as the intruder from both the photo array and again in person at
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trial. Sometime after she learned appellant’s name but still within ten days after the
incident, while her husband was still in the hospital, she checked appellant’s posts on a
social network and noticed he was wearing the same red shoes she remembered from the
night of the attack. She later mentioned that fact to the detective.
{¶ 21} Detective Cooper, the lead investigator, testified that he arrived at the
Gacsal home after Frank Gacsal had been taken to the hospital. The point of entry into
the home was determined to have been through a window in the main bedroom. No
fingerprints were obtained. It was clear that a struggle had occurred in the bedroom and
two shots had been fired. He recalled that Mrs. Gacsal was very upset at the time, but she
was calmer by the time he interviewed her at the station. She described the intruder as a
20- to 24-year-old black man about the height of the detective or a little taller (the
detective is six feet tall), with hair pulled back in a bun, like an Afro puff. The detective
did not recall or report Mrs. Gacsal as describing the intruder as a dark-skinned man, but
other reports indicated that she had given other officers this description. The other
reports also did not include a description of the intruder’s hair. In the photo of appellant
that was used, he did not appear to have dark-toned skin or an Afro puff. Detective
Cooper testified he would not classify appellant as a dark-skinned man.
{¶ 22} On September 1, the detective had a photo array shown to Mrs. Gacsal.
The detective obtained the photographs for the array by submitting the description of the
intruder into a national database. The detective also discussed the case with other
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detectives and appellant’s name was mentioned. Therefore, appellant’s mug shot was
added to the photo array. He observed Mrs. Gacsal identify appellant right away.
{¶ 23} The detective also learned that a neighbor had observed an African-
American man walking up and down the street 20 minutes prior to the intrusion. The
man was described as being 250 pounds and six feet tall. The man met up with some
other people and then left. The neighbor did not see the other men closely enough to
identify them.
{¶ 24} The detective believed that Jacqueline Gacsal may have obtained
appellant’s name from the warrant for his arrest. The detective leader learned that
Jacqueline Gacsal had looked appellant up on a social network.
{¶ 25} Detective Quinn testified that he showed the photo array prepared by
Detective Cooper to Jacqueline Gacsal. She immediately identified defendant as the
intruder without any hesitation or further inquiry.
{¶ 26} Officer Trudeau testified when he arrived at the scene, there were a few
officers there already and he approached Mrs. Gacsal to identify her while the other
officers attended to the injured victim. Mrs. Gacsal was hysterical and was crying and
screaming. He tried to calm her down. Detective Cooper asked the officer to transport
Mrs. Gacsal downtown. The officer could not remember if she made statements about
the incident at the scene or while he was transporting her, but he recorded her statements.
He reported that Mrs. Gacsal described the assailant was an 18- to 20-year-old, dark-
skinned black male, wearing a black hoodie sweatshirt and black baggy pants, and he was
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carrying a silver revolver. She also said that the man looked like he had a mask made of
a severed white T-shirt sleeve stretched over his head with holes cut out for his eyes. She
did not mention that the mask came off during the encounter. Mrs. Gacsal also stated that
her dog never barked until after she had seen the man.
{¶ 27} Appellant testified that he is currently 22 years old, six-feet or six-feet one-
inch tall, and weighs 190 pounds. He described himself as an African-American with
light-colored skin. He was wearing glasses. At the time of trial, he was under the
supervision of the North Coast Correctional Institution as a result of a prior 11-year
sentence for the crimes of burglary, arson, and tampering with evidence, which occurred
in Wood County. Prior to that sentence, appellant had been sentenced in Lucas County
on two separate occasions for attempted burglary and receiving stolen property.
Appellant testified that he did not commit the crime involving the Gacsals and had never
been to that address or known the Gacsals.
{¶ 28} When all of the evidence is considered as a whole, we find that the judge,
as the trier of fact, did not lose his way in evaluating the evidence and drawing inferences
from the direct evidence. It is clear that the man who wrongfully entered the Gacsal
home committed the charged offenses. The only issue raised by appellant is whether he
was properly identified as the perpetrator. Mrs. Gacsal was the only witness able to
identify the perpetrator, but she was fully able to view him and described his appearance
to the police. She identified appellant as the perpetrator both through a photo array
viewed a few days after the crime and again at trial. Appellant, however, denies being
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the perpetrator. Appellant challenges that Mrs. Gacsal’s identification is flawed because
she described the perpetrator to Officer Trudeau as a dark-skinned black man, but
appellant does not have dark-toned skin. Furthermore, her identification of appellant as
the perpetrator occurred after she had researched appellant on social media and attended
several criminal hearings.
{¶ 29} The trial court found Mrs. Gacsal to be credible and appellant not credible.
The court’s conclusion is not unreasonable. Mrs. Gacsal testified that she never
discussed the perpetrator’s skin tone so the report could have been inaccurate. She did
have a clear view of appellant and was able to identify him four days later in a photo
array of various skin-toned black men. Mrs. Gacsal did not search appellant on the
internet until after identifying him in the photo array. Her search only confirmed her
identification because she recognized his shoes from a photograph on his site. While
Mrs. Gacsal saw appellant at the preliminary hearings, they did not occur until nearly a
year after she identified appellant from the photo array because appellant was not
apprehended until almost a year after the incident. Therefore, we find that appellant’s
conviction was not contrary to the manifest weight of the evidence. Appellant’s third
assignment of error is found not well-taken.
{¶ 30} In his first assignment of error, appellant argues that the trial court abused
its discretion when it denied his motion to sever the charges for trial.
{¶ 31} Under Crim.R. 14, a defendant may challenge the joinder of offenses for
trial when the joinder results in prejudice to the defense. The burden of proving prejudice
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is on the defendant. State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981),
syllabus. The state may rebut a claim of prejudice by showing the state could introduce
evidence of the joined offenses as other acts under Evid.R. 404(B), or that joinder of the
trials is not prejudicial because the evidence of each crime is simple and direct, State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 50. If the state can
establish that the evidence is simple and direct, it need not prove the evidence would be
separately admissible. State v. Johnson, 88 Ohio St.3d 95, 109, 723 N.E.2d 1054 (2000)
(citations omitted). The trial court’s decision is reviewable under an abuse of discretion
standard. LaMar at ¶ 49.
{¶ 32} Appellant first argues that the convictions occurred only because the
cumulative effect of the evidence of both charges being presented in one trial. He
contends the evidence to convict in each case was weak. We disagree. Upon a review of
the evidence we find that there was simple and direct evidence presented that was
sufficient to sustain each verdict as discussed infra. Because the evidence was simple
and direct, the state was not required to show that it could have introduced evidence of
the joined offenses as other acts under Evid.R. 404(B).
{¶ 33} Second, appellant asserted that joinder of the offenses affected his defense
strategy and the exercise of his Fifth Amendment rights. This argument has been
addressed by the Ohio Supreme Court and rejected. Even though a joint trial will compel
the defendant to determine whether testifying as to one charge but not the other would
result in the trier of fact drawing adverse inferences, this is not the type of coercion the
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Fifth Amendment prohibits. State v. Roberts, 62 Ohio St.2d 170, 175-76, 405 N.E.2d 247(1980).
{¶ 34} Therefore, we find the trial court properly denied appellant’s Crim.R. 14
motion and appellant’s first assignment of error is not well-taken.
{¶ 35} Having found that the trial court did not commit error prejudicial to
appellant, the judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24.
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
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, 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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