[Cite as State v. Broom, 2011-Ohio-4952.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 95965

STATE OF OHIO 

PLAINTIFF-APPELLEE

vs. 

RAY BROOM

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-536414 

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

RELEASED AND JOURNALIZED: September 29, 2011 
ATTORNEY FOR APPELLANT

Rick Ferrara 

1424 East 25th Street 

Cleveland, OH 44114 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Brad S. Meyer 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 8th Floor 

Cleveland, OH 44113 

MELODY J. STEWART, P.J.: 

{¶ 1} Defendant-appellant, Ray Broom, appeals from his convictions for criminal 

trespass and vandalism, and argues that the support for his conviction for vandalism is 

insufficient and against the manifest weight of the evidence. He also contends that the 

trial court’s impromptu increase of his time of imprisonment at the sentencing hearing 

was an abuse of discretion and contrary to law because the action taken was done without 

due consideration and in disregard of the statutorily required sentencing factors. 
{¶ 2} Bob Rose, the co-owner of a scrap metal business located in an industrial 

park, proceeded to his establishment around midnight on April 13, 2010 after receiving 

notification of a security alarm activation. Power had been terminated to the structure 

after wires were cut; the business had experienced a similar break-in two nights earlier. 

{¶ 3} The Cleveland police department also responded and conducted a search of 

the premises while accompanied by Rose. The officers then entered an unlit building 

identified by Rose as the source of the alarm, and while using flashlights, discovered 

Broom and co-defendant Eddie Miller hiding behind a large industrial machine. Broom 

and Miller were patted down, arrested, and taken to the police station. The police then 

performed a search of both men; Miller possessed a flashlight and a headlamp while no 

items were found on Broom. 

{¶ 4} The subsequent investigation by police revealed a damaged door in addition 

to severed power lines. A tool bag, bolt cutters, ladder, and a wire stripping device were 

photographed and retrieved by detectives while processing the crime scene. However, 

the recovered items were not dusted for fingerprints since they were covered by an oily 

substance. 

{¶ 5} Broom was subsequently indicted for breaking and entering, theft, 

vandalism, and possession of criminal tools. A jury trial commenced on September 1, 

2010, and the state successfully moved to amend Broom’s indictment to incorporate the 

lesser included offenses of criminal trespass and petty theft. The jury ultimately returned 

a verdict of guilty to criminal trespass and vandalism. 
{¶ 6} The trial court held a sentencing hearing on October 6, 2010. Broom 

stipulated to restitution to compensate Rose for damages related to the vandalism 

conviction. The court recounted his criminal history, made note of his lack of remorse, 

and stated that there were “plenty good reasons to send you to prison.” Nevertheless, the 

court decided that remanding Broom to a work release facility was appropriate in this 

instance, since this sentence would allow him to repay the victim and simultaneously 

protect the community. Upon hearing the terms of his sentence, Broom became highly 

disruptive and had to be removed from the courtroom. The court then suspended the 

hearing due to his outburst and additionally stated on the record that a final order had yet 

to be entered. 

{¶ 7} The sentencing hearing resumed on October 8, 2010. The court in this 

instance expressed concerns that Broom’s demonstrated volatility could in fact 

compromise community safety, and also opined that his criminal history and capacity for 

hysterics suggested a high probability of recidivism. Broom was given an opportunity to 

speak and offered an apology to the court for his previous behavior, but nevertheless 

exhibited no remorse for his actions. In fact, he tempered his concession with the 

statement: “But if I’m right, I’m right. Simple as that.” The court proceeded to 

consider the factors set forth in R.C. 2929.11 for purposes of felony sentencing, and also 

the factors contained in R.C. 2929.12 relating to recidivism and seriousness of conduct. 

The court then declared that Broom was not amenable to community control sanctions 

and sentenced him to a nine-month prison term. Broom yet again became disruptive and 
interrupted the court with protestations, and with this the court increased his sentence to 

the term of one year. 

{¶ 8} Broom asserts that the manifest weight and sufficiency of evidence in 

support of his conviction for vandalism is inadequate because the state’s evidence merely 

demonstrates that he was on the property during the incident and this was not persuasive 

enough to overcome the presumption of his innocence. He reiterates his involvement 

was limited to passively accompanying Miller, that he was not on scene to aid and abet, 

and opines that the state’s presentation consisting solely of testimonial evidence 

demonstrates that he was merely present during the incident. Broom points to the fact 

that no forensic evidence was presented to prove that he had handled the tools used in 

furtherance of the crimes, that his vehicle was not present at the scene, and that he did not 

even have a flashlight. 

{¶ 9} The state conversely argues that every element of vandalism was in fact 

proven because all it was required to show was that Broom knowingly caused physical 

harm to the property of another. The state observes that Broom walked onto the 

property, was discovered while hiding in an area containing tools utilized to damage and 

traverse a fence, entered through a locked door, and that power lines were severed. The 

state finally maintains that circumstantial evidence is sufficient to prove guilt beyond a 

reasonable doubt. 

{¶ 10} When conducting a review of the sufficiency of the evidence, an appellate 

court must conclude, “after reviewing the evidence in a light most favorable to the 
prosecution, whether any reasonable trier of fact could have found the essential elements 

of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 

259, 273, 574 N.E.2d 492. When reviewing a manifest weight of the evidence claim, 

“[t]he appellate court sits as the ‘thirteenth juror’ and, reviewing the entire record, weighs 

all the reasonable inferences, considers the credibility of witnesses and determines 

whether, in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. 

{¶ 11} The criminal offense of vandalism is defined by R.C. 2909.05(B)(1)(a), 

stating: “[n]o person shall knowingly cause physical harm to property that is owned or 

possessed by another, when *** [t]he property is used by its owner or possessor in the 

owner’s or possessor’s profession, business, trade, or occupation, and the value of the 

property or the amount of physical harm involved is five hundred dollars or more ***.” 

While the mere presence of a defendant at the scene of a crime is not singularly sufficient 

to establish complicity by aiding and abetting, evidence demonstrating that a defendant 

“supported, assisted, encouraged, cooperated with, advised, or incited the principal in the 

commission of the crime,” accompanied by criminal intent, is sufficient. State v. Widner 

(1982), 69 Ohio St.2d 267, 269, 431 N.E.2d 1025; State v. Johnson, 93 Ohio St.3d 240, 

2001-Ohio-1336, 754 N.E.2d 796, syllabus. “Such intent may be inferred from the 

circumstances surrounding the crime.” Johnson, 93 Ohio St.3d 240, syllabus. 
{¶ 12} “Proof of guilt may be made by circumstantial evidence, real evidence, and 

direct evidence, or any combination of the three, and all three have equal probative 

value.” State v. Zadar, 8th Dist. No. 94698, 2011-Ohio-1060, ¶18, citing State v. Nicely

(1988), 39 Ohio St.3d 147, 529 N.E.2d 1236. “Circumstantial evidence is not only 

sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” 

Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20. 

{¶ 13} In this instance, the fact that business owner Rose’s property had been 

comparably damaged by the severing of power lines only two days earlier can not be 

attributed to sheer coincidence. After the first incident and to increase surveillance, Rose 

collaborated with the alarm security provider to ensure alarm integrity for purposes of 

thwarting any comparable criminal attempt. Rose arrived on scene approximately 15 

minutes after receiving notification of the second break-in. A brief time later, Broom 

was discovered by police hiding behind large machinery in a previously undamaged 

building that presently had sustained more than $3,000 in damages. 

{¶ 14} Under these circumstances, Broom’s assertion that he passively 

accompanied Miller is neither reasonable nor plausible. Reasonable minds would 

conclude that the aggregate circumstantial evidence is wholly consistent with his 

participation in the underlying criminal acts, and logically supports a finding of guilt. As 

a result, Broom’s first two assignments of error are not well taken and are accordingly 

overruled. 
{¶ 15} Broom, in his third and fourth assignments of error, contends that the 

sentencing hearing was tainted, contrary to law, and also that the trial court abused its 

discretion. He argues that the trial court failed to state for the record its rationale for 

imposing the maximum sentence, or even why it rashly increased his sentence from nine 

months to one year at the same sentencing hearing. Broom requests that the sentence 

imposed be reversed and the case remanded with instructions to impose the original 

nine-month sentence. 

{¶ 16} The state correctly notes that a trial court is not required to make specific 

findings or even give reasons prior to imposition of a maximum sentence. The state also 

echoes the trial court’s appraisal of Broom not being a viable candidate for work release 

or community control sanctions due to his history of probation violations as well as his 

propensity for volatility. 

{¶ 17} A trial court possesses broad discretion to impose a prison sentence within 

the statutory range. State v. Gatson, 8th Dist. No. 94668, 2011-Ohio- 460, ¶15. In order 

to find an abuse of discretion, we must find that the trial court’s attitude was 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio 

St.3d 217, 219, 450 N.E.2d 1140. 

{¶ 18} Public policy disapproves of maximum sentences except for those 

wrongdoers conforming to characteristic criteria including, but not limited to, recidivism. 

 In this instance, R.C. 2929.14(C) is instructive and provides “the court imposing a 

sentence upon an offender for a felony may impose the longest prison term authorized for 
the offense *** only upon offenders who committed the worst forms of the offense, upon 

offenders who pose the greatest likelihood of committing future crimes ***.” “R.C. 

2929.13(B) creates a preference for (but not a presumption in favor of) community 

control (formerly probation) for lower-level felonies [and also] allows, but does not 

mandate, findings before imprisonment for felonies of the fourth or fifth degree ***.” 

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶43. All considered, 

trial courts have wide latitude and “full discretion to impose a prison sentence within the 

statutory range and are [not] required to make findings or give their reasons for imposing 

maximum, consecutive, or more than the minimum sentences.” State v. Mathis, 109 

Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶37. 

{¶ 19} In this instance, the trial court on two occasions conducted thorough and 

deliberate fact-finding to ascertain the appropriate punishment to be imposed within the 

applicable sentencing range. Initially, the court reasoned that community control through 

work release would provide an appropriate sanction and also fulfill the required 

restitution in order to make the victim whole. Broom’s tantrum brought the initial 

sentencing hearing to an abrupt halt prior to the execution of sentence, and this espisode 

gave the trial court pause to reconsider. 

{¶ 20} Thereafter, the court arrived at the conclusion that incarceration in fact 

would be more appropriate in light of Broom’s 15 prior offenses, proclivity for 

recidivism, and lack of remorse when viewed in combination with his contempt for 

authority. The trial court’s presumptions rang true when, at the continued sentencing 
hearing held several days later and during its pronouncement of a nine-month term of 

incarceration, Broom again had a disturbing outburst, prompting imposition of a one-year 

sentence. 

{¶ 21} The trial court did not abuse its discretion in sentencing Broom to a oneyear term of incarceration even though it is greater than the initially expressed term of 

nine months because the earlier sentence had not been executed. See State v. Dawkins, 

8th Dist. No. 88022, 2007-Ohio-1006, ¶7 (a trial court has the authority to amend its 

sentence and impose a more severe punishment at any time before the execution of its 

initial sentence commences). Furthermore, a sentence of one year falls within the 

statutory range for a felony of the fifth degree. Accordingly, Broom’s third and fourth 

assignments of error are overruled. 

Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case remanded 

to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 
 

 

MELODY J. STEWART, PRESIDING JUDGE 

LARRY A. JONES, J., and 

COLLEEN CONWAY COONEY, J., CONCUR