[Cite as State v. Rogers , 2019-Ohio-4834.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2018-L-119 - vs - : FRANK M. ROGERS, : Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Cas e No. 2018 CR 000458.

Jud g ment: Affirmed in part and reversed and vacated in part.

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Stree t, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 ( For Defendant-Appellant )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Frank M. Rogers, appeals the October 22, 2018, Judgm ent Entry of the Lake County Court of Common Pleas sentencing him t o four years on each of six counts of burglary for a total of 24 years to be run con secutively. For the reasons discussed herein, the judgment of the Lake County Court of Comm on Pleas is affirmed in part and reversed and vacated in part.2 {¶2} Mr. Rogers was indicted on six counts of burglary that all occu rred on October 19, 2017. The case proceeded to trial and the jury ult imately convicted him on all six counts of burglary, felonies of the second degree, in v iolation of R.C. 2911.12(A)(2). The court sentenced Mr. Rogers to four years in prison on each count, to be run consecutively to one another, and ordered him to pay restitution to each of the victims. Mr. Rogers now appeals and sets forth four assignment s of error for our review, which we take out of order. {¶3} Mr. Rogers’ third assignment of error states: {¶4} The convictions for burglary were not supported by sufficient evidence against Rogers. {¶5} Specifically, he calls into question whether there was sufficie nt evidence against him and whether the trial court erred in denying the mo tion for Crim.R. 29 acquittal at the close of the evidence. {¶6} A Crim.R. 29 motion “challenges the sufficiency of the evidence introduced by the state to support a conviction.” State v. Figueroa , 11th Dist. Ashtabula No. 2016-A-0034, 2018-Ohio-1453, ¶32. When reviewing the suffi ciency of the evidence, we are required to weigh the evidence in favor of the prosecution. State v. Jenks, 61 Ohio St.3d 259, (1991), paragraph two of the syllabus, super seded by constitutional amendment on other grounds in State v. Smith, 80 Ohio St.3d 89 (1997). The question is whether “ʻa reasonable mind [m]ight fairly find each element of the offense beyond a reasonable doubt.”’ State v. Bridgeman , 55 Ohio St.2d 261, 263 (1978), quoting United States v. Collon , 426 F.2d 939, 942 (6th Cir. 1970). {¶7} Crim.R. 29(A) states in pertinent part, “[t]he court on motion of a defendant or on its own motion, after the evidence on either side is clos ed, shall order the entry of3 a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conv iction of such offense or

offenses.” Id. “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proved beyond a

reasonable doubt.” Bridgeman, supra, at syllabus

. {¶8} Mr. Rogers was convicted of six counts of burglary, as defined by R.C. 2911.12(A)(2), which states: {¶9} (A) No person, by force, stealth, or deception, shall do any of the following: {¶10} * * * {¶11} (2) Trespass in an occupied structure or in a separately secure d 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 t o be present, with purpose to commit in the habitation any criminal offense[.] {¶12} Under this assignment of error, Mr. Rogers specifically asserts the state did not establish that someone was likely to be present in the homes. “The term ‘likely to be present’ ‘“connotes somet hing more than a mere possibilit y, (* * *). A person is likely to be present when a consideration of all the circumstan ces would seem to justify a logical expectation that a person could be present.”‘” State v. Haas , 11th Dist. Portage No. 2009-P-0068, 2010-Ohio-6249, ¶33, quoting State v. Mitchell , 183 Ohio App.3d 254, 2009-Ohio-3393, at ¶18 (6th Dist.). See also State v. Burkett, 11th Dist. Portage No. 2009-P-0069, 2010-Ohio-6250, ¶32. “Critically, whe re the occupants of a house are almost always absent as part of their fixed work sche dule, they are not likely4 to be present during their regular working hours.” State v. Braden , 1st Dist. Hamilton No. C-170097, 2018-Ohio-563, ¶12. {¶13} The burden is on the state to show that someone was likely to b e present. If the state fails to present any such evidence, the conviction cannot stand. See State v. Cochran, 11th Dist. Geauga No. 2006-G-2697, 2007-Ohio-345, ¶48. (Convic tion and sentence reversed on one count when the state failed to provide evidence anyone was likely to be present at the time of the offense.). {¶14} In this case, the state presented evidence in four of the six c ounts of burglary to show that the homeowners were likely to present. {¶15} In support of Count 1, Mr. Zenisek testified that he and his wi fe lived at one of the burglarized homes, and that they were both retired. When the burglary occurred, his wife was at the grocery store and he had left to run a quick errand. {¶16} In support of Count 2, Mr. Chaffee testified that he and his fa mily lived at one of the burglarized homes. Ms. Chaffee was commonly in and out of the home throughout the day, and at the time of the burglary, she had te mporarily left to pick up

her children from school. {¶17} In support of Count 4, Mrs. Hathy testified that she and her hu sband lived at one of the burglarized homes. She works out of their home, and when she has to be away, her father regularly stops by to care for her dogs. {¶18} In support of Count 5, Mrs. Reho testified that she and her hus band lived at one of the burglarized homes. While they both usually work during the day, she was off on vacation on the day the burglary had occurred but had te mporarily left to visit family and go to the grocery store.5 {¶19} However, the state did not establish that “any person other tha n the accomplice of the offender is present or likely to be present” in Counts 3 and 6. {¶20} Regarding Count 3, Miguel Silva-Rangel testified that he lived at one of the burglarized homes with his parents and two brothers. Howev er, his parents left for work and his brothers left for school or the babysitter’s house in the early morning. Miguel and his brother returned from school around 2:30 p.m. T here was no testimony or evidence presented that this schedule was not their usual ro utine, nor that on October 19, 2017 it was likely that anyone was going to be home between 6:00 a.m. and 2:30 p.m., when the burglary occurred. {¶21} Likewise, regarding Count 6, Ms. Wayman testified that she live d at one of the burglarized homes but worked during the day. In fact, on t he day in question, she testified she knew it was going to be a long day; she got up at 5:00 a.m. “as [she] always [does]” and left for work around 7:30 a.m. She worked n ine hours and went directly to her daughter’s house to baby-sit, not returning to her home until around 9:30 p.m. She expressly testified that she did not give anyone perm ission to be in her home that day. No evidence or testimony was presented to show this was an atypical schedule. Thus, the state failed to establish that anyone was likely to be home at the time the burglary occurred. {¶22} Accordingly, we find that the state failed to establish that an yone was likely to be present in the homes that are the subject of Count s 3 and 6. As no lesser included offenses were provided in the indictment or the jury i nstructions, we are constrained to reverse and vacate Mr. Rogers’ convictions on Co unts 3 and 6. See State v. Bernard, 11th Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶55 (findi ng if there was insufficient evidence to support the trial court’s de nial of appellant’s motion for6 acquittal, the convictions must be vacated) . See also Blockburger v. United States , 284 U.S. 299, (1932); State v. Zima , 102 Ohio St.3d 61, 2004-Ohio-1807, ¶41 (“ Blockburger applies to bar successive prosecutions for greater and lesser i ncluded offenses whatever the order of trials.”). {¶23} Mr. Rogers’ third assignment of error has merit solely as it re lates to Counts 3 and 6; with regard to Counts 1, 2, 4, and 5, his third assignment of error has

no merit. {¶24} Mr. Rogers’ second assignment of error states: {¶25} The convictions for burglary were against the manifest weight o f the evidence. {¶26} When a court reviews the manifest w eight of the evidence, it mu st observe the entire record, weigh the evidence and all reasonable infere nces, and consider the credibility of the witnesses. State v. Sprecker , 11th Dist. Lake No. 2016-L-098, 2017- Ohio-7291, ¶44, citing State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). In resolving conflicts in the evidence and deciding witness credibility, the court determines whether the trier of fact clearly lost its way and created such a manif est miscarriage of justice that the judgment must be reversed and a new trial ordered. Thompkins, supra , citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “‘The discretionary p ower to grant a new trial should only be exercised in the exceptional c ase in which the evidence weighs heavily against the conviction.’” Thompkins, supra, citing Martin, supra, at 720- 721. “The role of the reviewing court is to engage in a limite d weighing of the evidence in determining whether the state properly carried its burden of persuasion. * * * If the evidence is susceptible to more than one interpretation, an app ellate court must7 interpret it in a manner consistent with the verdict.” (Citati ons omitted.) Sprecker,

supra , at ¶46. {¶27} Specifically, Mr. Rogers asserts that the jury lost its way in determining that he had committed any of the burglaries. As discussed unde r his third assignment of error, we agree as it pertains to Counts 3 and 6; however, f or the following reasons, we are not convinced the jury los t its way as it pertains to Co unts 1, 2, 4, and 5. {¶28} Based on the description of the vehicle seen by a victim’s neig hbors and surveillance footage from a nearby business, Medina police init iated a traffic stop of a 2004 pewter GMC Yukon thought to be the vehicle used in these b urglaries. Ms. Bednarski and Mr. Rogers were passengers in the vehicle, which was owned and driven by Mr. Blackburn. Police also discovered in the vehicle severa l items linked to the burglarized homes in Lake County, including a distinct Mario Ka rt blanket, a custommade drawer from one of the victim’s closet, and several used v ideo games that police were ultimately able to trace b ack to one of the victims using GameStop receipts. {¶29} Mr. Blackburn, Mr. Rogers’ co-defendant, is also charged with s ix counts of burglary. As part of a plea agreement, however, Mr. Blackbu rn agreed to testify against Mr. Rogers in exchange for the prosecution recommending only four years imprisonment to be run concurrently with the time he is present ly serving. At trial, Mr. Blackburn testified that he and Mr. Rogers burglarized numerous homes in Lake County on October 19, 2017. According to Mr. Blackburn, he drove Mr. Rogers to the locations, and at each house, Mr. Rogers would exit the vehicle, break int o the house by blunt force or return to the car to obtain tools to break in, and the n five or ten minutes later would return to the vehicle with a pillowcase, blanket, or cont ainer of items from the house. The state presented evidence that Mr. Blackburn had sev erely limited mobility8 due to injuries sustained in a motorcycle accident. Mr. Blackb urn testified that he did not enter the houses himself because he walked too slowly, and it caused him pain to navigate stairs. {¶30} Additionally, Ms. Bednarski, who was not charged in relation to the Lake County burglaries, testified that Mr. Rogers and Mr. Blackburn took some of the stolen items to her house. She testified that Mr. Rogers bragged abou t how he and Mr. Blackburn had committed seven burglaries in one day and showed her some of the items they had taken. She was able to recall several stolen it ems, including specific pieces of jewelry, bowling balls, and the Mario Kart blanket. {¶31} Furthermore, the state presented evidence that Mr. Blackburn an d Mr. Rogers’ cell phone records indicate that they were near four of the homes around the times the homes were burglarized. While Mr. Rogers presented e vidence that others have used his cell phone in the past, he did not assert that wa s the case on October 19, 2017, and offered no alternative location for his whereabouts t hat day. {¶32} In light of all the evidence, we cannot say that the jury lost its way in convicting Mr. Rogers’ on Counts 1, 2, 4, and 5. Thus, Mr. Rog ers’ second assignment of error has merit solely as it relates to Counts 3 and 6; with regard to Counts 1, 2, 4, and 5, his second assignment of error has no merit. {¶33} Mr. Rogers’ first assignment of error states: {¶34} Rogers was denied his right to the effective assistance of coun sel in violation of the Sixth amendment and Article I, Section 10 o f the Ohio Constitution. {¶35} To establish ineffective assistance of counsel, the defendant “ must show (1) deficient performance by counsel, that is, performance fall ing below an objective standard of reasonable representation, and (2) prejudice-a reas onable probability that,9 but for counsel’s errors, the result would have been different. ” State v. Myers , 154 Ohio St.3d 405, 2018-Ohio-1903, ¶183, citing Strickland v. Washington , 466 U.S. 668, 694 (1984). {¶36} “There are countless ways to provide effective assistance in an y given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland , supra, at 689. See also State v. Rice , 11th Dist. Lake No. 2018-L-065, 2019-Ohio-1415, ¶88. Furthermore, “‘“because of th e difficulties inherent in making the evaluation, a court must indulge a strong presump tion that counsel’s conduct falls within the wide range of reasonable, professional assistance. (* * *).” * * * Counsel’s performance will not be deemed ineffective unless and until counsel’s performance is proved to have fallen below an objective standar d of reasonable representation and, in addition, prejudice arises from counsel’ s performance. [Thus,] [t]o warrant reversal, ‘the defendant must show that there is a reas onable probability that, but for counsel’s unprofessional errors, the result of the proc eeding would be different. A reasonable probability is a p robability sufficient to undermi ne confidence in the outcome.” * * *’”” (Citations omitted.) Id. at ¶89. {¶37} Mr. Rogers argues three ways in which he believes his trial cou nsel was ineffective. First, he asserts they failed to adequately cross -examine and impeach

witnesses. {¶38} Both during trial and sentencing, Mr. Rogers made diffuse speec hes objecting to his counsel’s performance. He repeatedly asked hi s counsel to “bring up issues regarding [the] cross-examination of Michael Blackburn” and prior statements about which houses were burglarized in order to show that Mr. “ Blackburn was placing him at the scene in order to obtain the benefit of a light sent ence.” He asserts there is10 an audio recording of Mr. Blackburn misidentifying one of the b urglarized homes. We are not persuaded that the presentation of this evidence would have changed the

ultimate outcome of the case. Mr. Blackburn testified that he was able to specifically identify four of the houses they burglarized, as well as detail s of the surrounding areas. This was corroborated by Sgt. Radovanic with the Lake County sh eriff’s department, who testified that Mr. Blackburn was able to identify at least some of the burglarized

homes. {¶39} Additionally, Mr. Rogers also asserts his counsel should have s hown that Mr. Blackburn was selling items from the burglaries to impeach Mr. Blackburn’s testimony. These text messages however, were actually discusse d by the prosecution on direct examination and by his defense counsel on cross-exami nation of Sgt. Radovanic. Specifically, Sgt. Radovanic testified that he disc overed text message communications between Mr. Blackburn and Glenn Filmore, who Mr. Blackburn identified as his drug dealer, that discussed selling an Xbox a nd related equipment. {¶40} Even if viewing Mr. Rogers’ arguments as true, we are not persu aded his counsel was ineffective. It is well established that “[t]he sc ope of cross-examination falls within the ambit of trial strategy, and debatable trial t actics do not establish

ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, ¶101. See also State v. Smith, 89 Ohio St.3d 323, (2000). (Finding even questionable trial strategy does not compel a finding of ineffe ctive assistance of counsel. “In these situations, we normally defer to counsel’s judgment.”). Thus, Mr. Rogers’ assertion that his counsel was ineffective for failing to impeach Mr. Blackburn by use of these text messages is without merit.11 {¶41} Second, Mr. Rogers asserts his counsel was ineffective for fail ing to raise the issue of Rogers’ competency to stand trial. {¶42} “‘[A] person [who] lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.’” Smith, supra, at 329, quoting Drope v.

Missouri , 420 U.S. 162, 171 (1975). Mr. Rogers argues that he was unab le to assist in preparing his defense because he had such ineffective assistanc e of counsel. Capacity, however, does not require that a defendant assist in preparing his defense,

but that he has the capacity to do so. Mr. Rogers points to his “rambling, and somewhat incoherent speeches” as showing he had “mental difficulties.” His speeches, however, rather tend to show he understood the nature of the proceedings . He makes arguments about witnesses’ testimony and their purported motivations, abo ut events that occurred in the days surrounding the burglaries in Lake County, and abou t how long he will be incarcerated. During sentencing, he asks whether this sentence is to run concurrently with the sentences from Medina and Cuyahoga counties. Mr. Roge rs has not presented sufficient evidence to show he lacked the mental capacity to st and trial and his assertion

that his trial counsel was ineffective for failing to ask for a competency hearing is without

merit. {¶43} Finally, Mr. Rogers also faults his trial counsel for failing t o move to dismiss at the close of the state’s case, but instead moved at the close of the defense case. He fails to show, however, that had his counsel made a C rim.R. 29 motion at the

close of the state’s evidence there was a reasonable likelihood the result would have

been different than when counsel made the motion later that sam e day. In fact, when counsel renewed the motion at the close of all evidence, the co urt considered all the12 evidence, including the state’s evidence, and denied the motion . While counsel could have moved for dismissal sooner, not doing so did not deprive M r. Rogers of any opportunity he would otherwise have been afforded. {¶44} Mr. Rogers’ first assignment of error is without merit. {¶45} Mr. Rogers’ fourth and final assignment of error states: {¶46} The trial court erred in awarding restitution where there was n o actual proof of the amounts owed. {¶47} Specifically, Mr. Rogers asserts the trial court cannot order r estitution without a showing of actual economic loss. However, R.C. 2929. 18(A)(1) provides, in pertinent part: {¶48} Restitution by the offender to the victim of the offender’s cri me * * * in an amount based on the victim’s economic loss. * * * If the court imposes restitution, at sentencing, the court shall determine t he amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restituti on it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicat ing the cost of repairing or replacing property, and other informat ion, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim a s a direct and proximate result of the commission of the offense. I f the court decides to impose restitution, the court shall hold a hea ring on restitution if the offender, victim, or survivor disputes the a mount. {¶49} In accordance with R.C. 2929.18, the court based the amount of restitution on information provided by the victims in a presentence investi gation report. The report contained an itemized list of lost items and their monetary val ue for each victim, as well as various insurance documents and receipts, all of which suppo rt the amount the court ordered Mr. Rogers to repay. Mr. Rogers also asserts the court erred by failing to hold a hearing to determine the amount of restitution. However, as stated in R.C. 2929.18, a hearing is only required if there is a dispute as to the amount. Here, no dispute as to13 the amount was raised at sentencing. Thus, the court did not e rr by not holding a hearing. {¶50} Furthermore, failure to object to the imposition of restitution waives the issue on appeal except for a review for plain error. State v. Whitman , 11th Dist. Lake No. 2011-L-131, 2012-Ohio-3025, ¶21. Thus, to the extent Mr. R ogers specifically disputes the amount owed to the Hathys on appeal, we review onl y for plain error. “A claimed error is plain error only if it is obvious, and ‘but fo r the error, the outcome of the trial clearly would have been otherwise.’” Id. , quoting State v. Long , 53 Ohio St.2d 91 (1978), paragraph two of the syllabus. The Hathys submitted an itemized insurance report detailing the items tha t were stolen from their house. It was Ms. Hathy’s business to sell jewelry, so she had a substantial amount of jewelry at home that was stolen. The reported the value of her stolen property, according to insuran ce records, was $134,301.99. She received $7,198.54 from insurance, and the co urt ordered Mr. Rogers to repay the remaining unpaid loss of $127,103.45. We d iscern no plain error. {¶51} Mr. Rogers’ fourth assignment of error is without merit. {¶52} For the reasons set forth herein, Mr. Rogers’ conviction and se ntence on

Counts 3 and 6 are reversed and vacated. The amount of restitu tion Mr. Rogers was ordered to pay as to Count 3 ($1,440.00) and as to Count 6 ($77 0.20) is also reversed. Otherwise, the judgment of the Lake County Court of Common plea s is affirmed.

THOMAS R. WRIGHT, P.J., MATT LYNCH, J.,

concur.