[Cite as State v. Calderwood, 194 Ohio App.3d 438, 2011-Ohio-2913.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

 

JOURNAL ENTRY AND OPINION 

No. 95269

THE STATE OF OHIO,

APPELLEE,

v. 

CALDERWOOD,

APPELLANT.

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Common Pleas Court 

Case No. CR-533942 

 BEFORE: Blackmon, P.J., Jones, J., and Cooney, J. 

 RELEASED AND JOURNALIZED: June 16, 2011 
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William D. Mason, Cuyahoga County Prosecuting Attorney, and John P. 

Colan, Assistant Prosecuting Attorney, for appellee. 

John F. Corrigan, for appellant. 

PATRICIA ANN BLACKMON, Presiding Judge. 

{¶ 1} Appellant, William Calderwood, appeals his burglary conviction 

and assigns the following three errors: 

I. The trial court erred in denying appellant’s motion for 

acquittal pursuant to Ohio Criminal Rule 29 where there was 

insufficient evidence that appellant trespassed by force, stealth, or 

deception, in an occupied structure. 

II. Appellant’s conviction for burglary was against the 

manifest weight of the evidence. 

III. The trial court erred by allowing a police detective to 

testify that he spoke with the owner of the property who advised 

him that appellant did not have permission to be inside the 

structure. 

{¶ 2} Having reviewed the record and relevant law, we affirm 

Calderwood’s conviction. The apposite facts follow. 

Facts 

{¶ 3} The Cuyahoga County Grand Jury indicted Calderwood on one 

count of burglary and 72 counts of arson arising out of a burglary of a house, 

which subsequently exploded, damaging several houses on West 83rd Street. 

The state presented 67 witnesses to testify at trial. The jury acquitted 
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Calderwood of the arson counts but found him guilty of the burglary count; 

therefore, we will focus on the evidence surrounding the burglary. 

{¶ 4} While investigating the explosion, detectives learned that 

neighbors had seen Calderwood removing items such as appliances and pipes 

from the house. Calderwood lived next door to the home and also owned rental 

property down the street. Neighbors observed Calderwood use a dolly to 

transport the items to his rental property. Calderwood admitted to the arson 

investigators that he had taken the property. He also admitted to his 

cellmate and to his wife during a phone call from jail that he had taken the 

copper and appliances from the house. Thus, it was undisputed that 

Calderwood took the items. The disputed issues are whether the house was 

occupied and whether Calderwood had permission to be inside the house. 

{¶ 5} Daniel Garman testified that he had lived in the house for 15 

years. In late 2008, the home was in the process of being sold but was not 

abandoned. In fact, Garman periodically checked on the house, paid to have 

the lawn cut, and paid the utility bills. The home was eventually sold to EZ 

Access Funding, which is a real estate holding company located in California. 

In February 2009, EZ hired Marty Rickelman as a property manager to 

prepare the home for rental or sale. 

{¶ 6} Rickelman assessed the property as needing minor repairs in 

order to be ready for sale or rental. On one of his visits to the property, 
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Rickelman was approached by Calderwood. Rickelman explained that he 

worked for the owner of the home and was preparing the house for sale or 

rental. Calderwood offered to help clean out the house, but Rickelman told 

him that it was the contractor’s job. Rickelman did not give Calderwood 

permission to enter the house and did not give him a key. Rickelman ceased 

working for EZ in May 2009. 

{¶ 7} In June 2009, EZ hired Rajsunhip Sandhu as Rickelman’s 

replacement. When Sandhu visited the property in the fall of 2009, the side 

door was open and the lights were on. He took photos of the home and then 

rekeyed and locked the side door. At that time, the appliances were still 

there. 

{¶ 8} When he returned to the property on January 12, 2010, there was 

a sign in the window saying “No copper. Stolen by Travis Hopp.” Also, the 

door that he had previously rekeyed appeared to have been kicked open and 

was braced with a two by four so that it could not be reopened with his key. 

Sandhu was about to leave when Calderwood approached him. Calderwood 

produced a key that opened the front door. He told Sandhu that the prior 

property manager, Rickelman, had given him the key. Calderwood admitted 

that he put the sign in the front window and that he had called the police 

regarding the stolen copper. Sandhu’s inspection of the property indicated that 

all the appliances and copper pipes were missing. Sandhu noted that the 
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copper pipes were removed with precision and not simply yanked out, 

indicating that the vandal took his time. 

{¶ 9} At a Weed and Seed 1 meeting conducted after the explosion, 

Calderwood admitted taking the appliances and copper but stated that he had 

the owner’s permission and that he had capped the pipes. He also told the 

leader of the program, Brian Kazy, and Lieutenant Stevens from the 

Cleveland Arson Investigation Unit that he had obtained the key by breaking 

into the lock box on the door. The jury found Calderwood guilty of burglary; 

the trial court sentenced him to three years in prison. 

Insufficient Evidence

{¶ 10} In his first assigned error, Calderwood argues that there was 

insufficient evidence to support his conviction for burglary. 

{¶ 11} Crim.R. 29 mandates that the trial court issue a judgment of 

acquittal when the state’s evidence is insufficient to sustain a conviction for 

the offense. Crim.R. 29(A) and sufficiency-of-evidence review require the same 

analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 

386. 

 1

The Weed and Seed program is a federal initiative funded by the Department 

of Justice and supervised by the United States Attorney’s Office that seeks to weed 

out crime in neighborhoods and provides preventative and intervention services to 

improve the neighborhoods.
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{¶ 12} In analyzing the sufficiency issue, the reviewing court must view 

the evidence “in the light most favorable to the prosecution” and ask whether 

“any rational trier of fact could have found the essential elements of the crime 

[proven] beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. 

Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. 

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the 

syllabus; State v. Carter (1995), 72 Ohio St.3d 545, 651 N.E.2d 965. 

{¶ 13} A conviction for burglary pursuant to R.C. 2911.12(A)(3) requires 

the state to prove that Calderwood, by force, stealth, or deception, and with 

the intent to commit any criminal offense, entered an occupied structure with 

the purpose to commit in the structure a criminal offense. Calderwood 

contends that the evidence failed to show that the house was an occupied 

structure, because no one had lived in it for two years. 

{¶ 14} R.C. 2909.01(C) defines an “occupied structure” as “any house, 

building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or 

other structure, vehicle, or shelter, or any portion thereof, to which any of the 

following applies: (1) It is maintained as a permanent or temporary dwelling, 

even though it is temporarily unoccupied and whether or not any person is 

actually present.” 

{¶ 15} While Calderwood contends that the house was not occupied 

because no one lived there, the relevant inquiry in determining whether a 
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structure is occupied concerns the residential purpose of the dwelling, rather 

than the presence or absence of an occupant. State v. Green (1984), 18 Ohio 

App.3d 69, 480 N.E.2d 1128 (home left vacant after the owners moved to 

another residence was still an occupied structure because it was being 

maintained as a dwelling); State v. Williams, Cuyahoga App. No. 92668, 

2009-Ohio-6826 (fact that no one lived in the house for four months is 

irrelevant in determining whether it was an occupied structure); State v. 

Charley, Cuyahoga App. No. 82994, 2004-Ohio-3463 (structure is still occupied 

despite the fact that the owner was in a nursing home and the daughter was 

having the house restored); State v. Sharp, Cuyahoga App. No. 86827, 

2006-Ohio-3158 (structure’s status as an occupied structure depends on the 

residential purpose of the dwelling rather than the presence or absence of an 

occupant); State v. Tornstrom (Nov. 19, 1998), Cuyahoga App. No. 72898 (a 

home uninhabitable while undergoing major renovations was found to be an 

occupied structure). 

{¶ 16} Here, although no one had been living in the house, the house was 

not abandoned. The evidence showed that the house maintained its 

residential purpose even though it was vacant. The owners of the property 

had hired property managers to supervise the property until renovations were 

completed and the house was sold or rented. In fact, until the burglary, the 

house was fully equipped with appliances and a furnace. Given these facts, 
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we conclude that the house was an “occupied structure” within the meaning of 

R.C. 2909.01(C)(1). Accordingly, Calderwood’s first assigned error is 

overruled. 

Manifest Weight of the Evidence

{¶ 17} In his second assigned error, Calderwood argues that his burglary 

conviction was against the manifest weight of the evidence. He argues that 

the evidence showed he had permission to be on the premises because he had a 

key to the house and helped take care of the property by turning the lights on 

to make the house look occupied. 

{¶ 18} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 

N.E.2d 1264, ¶ 25, the Ohio Supreme Court addressed the standard of review 

for a criminal manifest-weight challenge, as follows: 

The criminal manifest-weight-of-the-evidence standard was 

explained in State v. Thompkins [1997], 78 Ohio St.3d 380, * * * 

678 N.E.2d 541. In Thompkins, the court distinguished between 

sufficiency of the evidence and manifest weight of the evidence, 

finding that these concepts differ both qualitatively and 

quantitatively. Id. at 386, 678 N.E.2d 541. The court held that 

sufficiency of the evidence is a test of adequacy as to whether the 

evidence is legally sufficient to support a verdict as a matter of 

law, but weight of the evidence addresses the evidence’s effect of 

inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a 

reviewing court asks whose evidence is more persuasive — the 

state’s or the defendant’s? We went on to hold that although there 

may be sufficient evidence to support a judgment, it could 

nevertheless be against the manifest weight of the evidence. Id. at 

387, 678 N.E.2d 541. “When a court of appeals reverses a 

judgment of a trial court on the basis that the verdict is against 

the weight of the evidence, the appellate court sits as a ‘thirteenth 

juror’ and disagrees with the factfinder’s resolution of the 
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conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v. 

Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. 

{¶ 19} Calderwood contends that the evidence did not support the state’s 

contention that he obtained the key by breaking into the lock box on the door. 

Both of EZ’s property managers testified that Calderwood was not given 

permission to go into the homes and that they did not provide Calderwood 

with a key to the home. Moreover, the Weed and Seed program director, 

Brian Kazy, and Lieutenant Stevens testified that Calderwood had told them 

that he obtained the key to the house by breaking into the lock box. 

{¶ 20} Calderwood argues that it would have been impossible for him to 

have a key from the lock box because Sandhu testified that he had removed 

the lock box and rekeyed the door. However, the door that Sandhu rekeyed 

was the side door, not the front door. Calderwood had a key to the front door. 

 While Sandhu testified that Calderwood told him that the prior property 

manager, Rickelman, gave him the key, Rickelman stated that he did not give 

Calderwood a key nor did he give him permission to be inside the house. 

Given this evidence, we conclude that the jury did not lose its way and create a 

manifest miscarriage of justice by finding that Calderwood did not have 

permission to be inside the home. Accordingly, Calderwood’s second assigned 

error is overruled. 

Hearsay Evidence
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{¶ 21} In his third assigned error, Calderwood argues that the trial court 

erred by allowing Detective Good to testify that the president of EZ told him 

that Calderwood did not have permission to be inside the structure. 

{¶ 22} In addition to the evidence that EZ’s president told the detective 

that Calderwood did not have permission to be inside the house, both 

Rickelman and Sandhu, who were agents of EZ, testified that Calderwood did 

not have permission to enter the house and that they did not provide him with 

a key. Given this additional evidenc,e any error the court may have made in 

admitting the statement of EZ’s president is harmless under Crim.R. 52(A), 

because the evidence was cumulative. Accordingly, Calderwood’s third 

assigned error is overruled. 

Judgment affirmed. 

JONES and CONWAY COONEY, JJ., concur.