[Cite as State v. Cook, 2016-Ohio-4574.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

SYLVANIUS COOK 

Defendant-Appellant 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 26809 

Trial Court Case No. 15-CR-757 

(Criminal Appeal from 

 Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 24th day of June, 2016. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by KIRSTEN BRANDT, Atty. Reg. No. 0070162, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. 

Box 972, 301 West Third Street, Dayton, Ohio 45402 

 Attorney for Plaintiff-Appellee 

 

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, Harris, Meyer, Heckman & 

Denkewalter, LLC, One Monument Square, Suite 200, Urbana, Ohio 43078 

 Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

HALL, J. 

{¶ 1} Sylvanius Cook was convicted of one count of aggravated burglary, a firstdegree felony, and two counts of assault, first-degree misdemanors, after a trial to the 
-2- 

court. He later was sentenced to a mandatory prison term of six years on the aggravated 

burglary and six months for each of the assault charges, to run concurrently with the 

felony prison sentence. 

{¶ 2} Cook’s assigned appellate counsel filed a motion for leave to withdraw under 

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that 

“[c]ounsel has read the transcript and found there is no arguable basis for filing a brief for 

Appellant.” (Motion, etc. at 1). The motion also contained an “ANDERS BRIEF,” which 

included a statement of the case and a potential assignment of error. By order filed on 

January 28, 2016, we informed Cook of the Anders filing and advised him of both his right 

to file his own brief and the time limit for doing so. Cook has not filed anything, and the 

time for filing has expired. 

The facts and proceedings 

{¶ 3} On March 7, 2015, Sylvanius Cook began beating on the front door of the 

residence of his former girlfriend, Sherina Bunch, who was pregnant with his child. Cook 

had not lived at her residence since December 25, 2014 when he was escorted from the 

premises by police officers who were called after he kicked in the door on that occasion. 

At that time, the police allowed him to retrieve his clothing and belongings. Present in the 

house with Bunch on March 7, 2015 was her friend, and Cook’s cousin, China Lipscomb. 

They did not let Cook inside. He kicked in the door and entered. He got into an argument 

with Lipscomb and choked her with both of his hands around her neck. Cook also kneed 

Bunch in the stomach, punched her in the mouth with his fist causing a cut inside her 

mouth, and choked her for three to four seconds. The argument then moved outside 

before Cook left in his vehicle. After the police arrived, Cook returned but then fled upon 
-3- 

seeing them. 

{¶ 4} On April 9, 2015, Cook was indicted for one count of aggravated burglary in 

violation of R.C. 2911.11(A)(1) and two counts of assault, one each for Bunch and 

Lipscomb. He signed a jury waiver, which was filed on May 22, 2015. A bench trial was 

conducted on June 2, 2015. On June 10, 2015, the trial court found Cook guilty on all 

three counts. At a July 2, 2015 sentencing hearing, the trial court orally indicated that 

Cook would serve eight years in prison on the aggravated burglary concurrent with 180 

days of incarceration on each of the assault charges. No entry was filed confirming this 

sentence. On July 29, 2015, the trial court sua sponte conducted a completely new resentencing hearing, including an oral victim-impact colloquy with Sherina Bunch, and 

allocution by the defendant and counsel. The trial court indicated it had considered the 

pre-sentence investigation, the purposes and principles of sentencing, the seriousness 

and recidivism factors in the Revised Code, and the requirements of R.C. 2929.13. It 

imposed a sentence of a six years of imprisonment on the aggravated-burglary charge 

concurrent with two sentences of 180 days of incarceration on the assault charges. The 

trial court properly advised Cook about restitution, costs, post-release control, and 

appellate rights. On August 4, 2015 a Termination Entry was filed incorporating this 

sentence. 

Potential assignments of error 

{¶ 5} Although appellate counsel found no merit to the appeal, he identifies one 

potential assignment of error for our consideration. That potential argument is consistent 

with the argument defense counsel made at the time of the trial: although the evidence 

supported that Cook did break in and did assault Bunch and Lipscomb, the evidence did 
-4- 

not support that he broke in with the purpose to commit a criminal offense, and the 

criminal purpose, if any, developed after his entry. 

{¶ 6} The applicable statute, R.C. 2911.11, states: 

(A) No person, by force, stealth, or deception, shall trespass in an occupied 

structure or in a separately secured or separately occupied portion of an 

occupied structure, when another person other than an accomplice of the 

offender is present, with purpose to commit in the structure or in the 

separately secured or separately occupied portion of the structure any 

criminal offense, if any of the following apply: 

(1) The offender inflicts, or attempts or threatens to inflict physical harm on 

another[.] 

{¶ 7} We conclude, as counsel acknowledged, that the potential assignment of 

error lacks arguable merit. “Trespass” is defined in terms of the following: “No person, 

without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises 

of another [.]” R.C. 2911.21(A)(1). As for the mens-rea element of aggravated burglary, 

“a defendant may form the purpose to commit a criminal offense at any point during the 

course of a trespass.” State v. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037 (2000), 

syllabus. Therefore, the State must show that the offender “invaded the dwelling for the 

purpose of committing a crime or that he formed that intent during the trespass.” State v. 

Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 33, citing Fontes at 

syllabus; see also State v. Perry, 2d Dist. Montgomery No. 26421, 2015-Ohio-2181, ¶ 27. 

Here, at all times, Cook’s entry and presence in the house constituted a continuing 

trespass. Accordingly, an argument that he must have had the intent to commit a criminal 
-5- 

offense before he kicked in the door lacks arguable merit. 

Anders review 

{¶ 8} Finally, we have performed our duty under Anders to conduct an 

independent review of the record. We thoroughly have reviewed the docket, the various 

filings, the trial transcript, and the sentencing disposition. We have found no non-frivolous 

issues for review. Accordingly, the judgment of the Montgomery County Common Pleas 

Court is affirmed. 

. . . . . . . . . . . . . 

FAIN, J., and FROELICH, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Kirsten Brandt 

Darrell L. Heckman 

Sylvanius Cook 

Hon. Richard Skelton