Opinion
No. 107270
04-25-2019
STATE OF OHIO, Plaintiff-Appellee, v. THERESA ROESKY, Defendant-Appellant.
Appearances: Jonathan N. Garver, for appellant. Michael C. O'Malley, Prosecuting Attorney, and Eben McNair, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND VACATED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-618668-A
Appearances:
Jonathan N. Garver, for appellant. Michael C. O'Malley, Prosecuting Attorney, and Eben McNair, Assistant Prosecuting Attorney, for appellee. LARRY A. JONES, SR., J.:
{¶ 1} Defendant-appellant Theresa Roesky ("Roesky") appeals her conviction for burglary, the subsequent conditions of her community control sanctions, and the fine the court imposed on her following a jury trial. For the reasons that follow, we vacate her conviction.
This is a companion case to State v. Hill, 8th Dist. Cuyahoga No. 107308. --------
{¶ 2} In July 2017, Roesky and her husband, Nathaniel Hill ("Hill"), were charged with burglary. Roesky and Hill pleaded not guilty at the arraignment and the matter proceeded to a joint jury trial.
{¶ 3} At trial, the state presented the testimony of five witnesses, including Crystal Daly ("Daly"), who testified that in May 2017, she had been living in a duplex on Lucknow Road in Cleveland. Daly referred to the residence as the family home. Daly lived in the upstairs unit and her sister, Jessica Crowe ("Crowe"), lived in the downstairs unit. Roesky, Hill, and their two children had been living in the house next door for about a year and a half.
{¶ 4} Daly testified that on May 30, 2017, at approximately 9:00 a.m., she returned home after taking her children to school and observed Roesky in her (Roesky's) front yard. As Daly pulled into the driveway and exchanged greetings with Roesky, Roesky shouted, "Hey!" and Daly saw Hill stick his head out of her sister's kitchen window. Daly testified that Hill was wearing blue latex gloves, and, when he saw her, he ducked back into the house and disappeared from sight. Daly looked over at Roesky, asked her what Hill was doing in her house, and told Roesky she was going to call the police.
{¶ 5} Daly testified that she backed out of her driveway, parked across the street, and immediately called the police. Daly testified that she initially told the police dispatcher that a stranger was in her sister's house, but then said it was her neighbor. Daly testified that she might have said "stranger" because of anxiety or because of being upset, but she had a very good look at Hill when he stuck his head out of the window.
{¶ 6} Daly's 911 call was entered into evidence and played for the jury. In the recording, Daly told the dispatcher Roesky is "circling" her (Daly's) house and she thinks that Roesky is looking for Hill. Daly did not see Hill exit the house.
{¶ 7} Crowe, Daly's sister, testified that on May 30, 2017, while on vacation in Nevada, she received a telephone call from Daly, who informed her of the burglary. Crowe cut her vacation short and returned to Cleveland the following day. Crowe testified that when she returned, she noticed a pair of tennis shoes were missing from the dining room and that a Power Wheels toy was missing from the back of the house. Crowe also noticed a crack in her kitchen window and damage to the window paneling in the bathroom. Crowe testified that neither window had any prior damage.
{¶ 8} Crowe also referred to the house on Lucknow Road as their family home. Crowe testified she was in the process of moving at the time the burglary occurred. Crowe stated that throughout the moving process, she would pack a few items, move a few boxes, but admitted she was generally taking her time. Crowe testified that she still considered the house on Lucknow Road her residence.
{¶ 9} Cleveland Police Officer Davonte Congress ("Officer Congress") testified that on May 30, 2017, he responded to the address in question on report of a possible burglary. Officer Congress testified that, after speaking with Daly about what she had observed, he and his partner searched the house to ensure that it was safe for the residents to enter. Officer Congress testified that while searching the house, he observed that the windows on the east and west sides of the house appeared to have been tampered with and also observed damage to a bathroom window. Officer Congress opined that damage to the bathroom window possibly resulted from the entrance or exit of the suspect.
{¶ 10} Roesky rested without calling any witnesses. Larry Walker ("Walker"), a self-employed auto mechanic, testified for Hill. Walker testified that he grew up with Hill and works with him on occasion. Walker testified that he picked up Hill at approximately 7:30 a.m. on May 30, 2017, to help him with purchasing baseball equipment. Shortly after Walker picked up Hill, a customer called requesting auto repair work, so they proceeded to the customer's location to effect the repair. Walker testified that Hill was with him throughout the day until approximately 6:00 p.m. On cross-examination, Walker testified that Roesky is his sister, and although he recalled picking up Hill in the latter part of May 2017, he was unsure of the specific date.
{¶ 11} The jury found Roesky and Hill guilty of the burglary. The trial court sentenced Roesky to a suspended prison term of 30 months, a $3,000 fine and court costs, and placed her on five years of community control sanctions. The court sentenced Hill to the same; Hill ended up violating his community control sanctions and was sentenced to 18 months in prison.
{¶ 12} Roesky filed a timely notice of appeal and raises four assignments of error for our review:
I. The evidence was insufficient to support a conviction for burglary.
II. Appellant's conviction is against the manifest weight of the evidence.
III. The alcohol-related community control conditions and the employment related community control conditions imposed by the trial court constitute an abuse of discretion because they are overly broad and not reasonably related to achieving the goals of community control, i.e. rehabilitation, administering justice, and ensuring good behavior.
IV. The imposition of a $3,000 fine is not supported by the record and is contrary to law because of Appellant's indigence and a recent stroke which prevents her from working and renders it unlikely that she will ever be able to pay the fine.
{¶ 13} The first assignment of error is dispositive of this appeal.
{¶ 14} In the first assignment of error, Roesky contends that her conviction for burglary was not supported by sufficient evidence.
{¶ 15} A challenge to the sufficiency of the evidence supporting a conviction requires a determination of whether the state met its burden of production. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1977). When reviewing sufficiency of the evidence, an appellate court must determine '"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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state's evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387; Jenks at id.
{¶ 16} Roesky was convicted of one count of burglary, in violation of R.C. 2911.12(A)(3), which provides that:
(A) No person, by force, stealth, or deception, shall do any of the following:
(3) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense.
{¶ 17} Roesky first contends that the state failed to present sufficient evidence that the property in question was an occupied structure, which is defined as
any house, * * * 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.
(2) At the time, it is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.
(3) At the time, it is specially adapted for the overnight accommodation of any person, whether or not any person is actually present.R.C. 2909.01(C)(1).
(4) At the time, any person is present or likely to be present in it.
{¶ 18} In support of this argument, Roesky claims Crowe was in an extended process of moving and, therefore, was not living at the house at the time the state alleged the burglary occurred.
{¶ 19} Although Roesky argues that the house was not occupied because Crowe had been in an extended process of moving, the relevant inquiry in determining if a structure is occupied concerns the residential purpose of the dwelling, rather than the presence or absence of an occupant. State v. Bell, 8th Dist. Cuyahoga No. 101489, 2015-Ohio-1294, ¶ 22, citing State v. Green, 18 Ohio App.3d 69, 480 N.E.2d 1128 (10th Dist.1984) (home left vacant after the owners moved to another residence was still an occupied structure because it was being maintained as a dwelling).
{¶ 20} Here, similar to the above cases, despite the fact that Crowe was in an extended process of moving, her house was not abandoned. Crowe testified that the house was their family home, and although she was in the process of moving, she still considered it her residence. Thus, the house was an "occupied structure" within the meaning of R.C. 2909.01(C)(1).
{¶ 21} Roesky next argues that there was insufficient evidence that she conspired with or aided Hill to trespass in the occupied structure "by force, stealth, or deception." On this point, we agree with Roesky. There was no evidence that Roesky committed the actual burglary. Accordingly, the state's theory was that Roesky aided and abetted her husband in the burglary.
{¶ 22} Under the complicity statute, "no person acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense." R.C. 2923.03(A)(2). In order to support a conviction for complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), "the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal." State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus. "In the absence of a conspiracy, or some preceding connection with the transaction, one does not aid or abet if he [or she] merely sees a crime being committed." State v. Ramirez, 6th Dist. Wood Nos. WD-00-050 and WD-00-062, 2001 Ohio App. LEXIS 3252, at 16-17 (July 20, 2001), citing State v. Starr, 24 Ohio App.2d 56, 58, 263 N.E.2d 572 (1st Dist.1970).
{¶ 23} Evidence of aiding and abetting another in the commission of a crime may be demonstrated by both direct and circumstantial evidence. State v. Tuttle, 8th Dist. Cuyahoga No. 52237, 1987 Ohio App. LEXIS 7776, 10 (July 2, 1987). "Where circumstantial evidence is relied upon to prove an essential element of a crime, such evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt." Tuttle at id., citing State v. Jacobozzi, 6 Ohio St.3d 59, 451 N.E.2d 744 (1983). Although an aider or abettor's shared criminal intent may be inferred from the circumstances surrounding the crime, mere association with the principal offenders or presence at the scene of the crime alone is insufficient to establish complicity. State v. Sims, 10 Ohio App.3d 56, 58, 460 N.E.2d 672 (8th Dist.1983).
{¶ 24} In Sims, this court concluded a defendant cannot be an aider or abettor unless
He [or she] knowingly does something which he [or she] ought not to do, or omits to do something he [or she] ought to do, which assists or tends in some way to affect the doing of the thing which the law forbids; in order to aid or abet, whether by words, acts, encouragement, support or presence, there must be something more than a failure to object unless one is under a legal duty to object.Id. at 59.
{¶ 25} The defendant in Sims was a passenger in a stolen vehicle when the driver was stopped by police officers who suspected the car had been stolen. This court found that there was a complete lack of any evidence that the defendant knowingly furthered the theft or retention of the stolen vehicle. Further, the defendant did not have constructive possession of any tools (the stolen license plate, the screwdriver found on the dashboard, or the automobile itself) to support the inference that he actively aided and abetted the theft or retention of stolen property. Id.
{¶ 26} The current case is analogous. The state contends that the initial interaction between Roesky and Daly "showed the conspiracy between the couple and caused Daly to call the police." Appellee brief, p. 5. We disagree.
{¶ 27} Daly testified that she was returning home from dropping her children off at school when she saw Roesky in her (Roesky's) yard. The two women started talking. At one point, Roesky yelled "Hey!" and Hill stuck his head out of Crowe's kitchen window and then ducked back into the residence.
{¶ 28} Daly testified in relevant part as follows:
Daly: At that point when I pulled in the driveway, Theresa was in her front yard; and I stopped; and we were talking.
State: All right. And was there anything unusual at that point about the two of you talking?
Daly: No.
State: All right. What happened next? Did you try to get into your house?
Daly: I said something along the lines like, "Oh, I got to go inside. I got to get ready for work," and when I said that, she screamed, "Hey!"
State: Was she screaming at you? Could you tell who she was -
Daly: I don't know who she was screaming at. It caught me off-guard why she was yelling "Hey!" But when she did that, I seen [sic] Nathaniel — he had two blue gloves on — pop his head out my sister's kitchen window.
{¶ 29} The only evidence connecting Roesky to the burglary was that she was outside of her own house, spoke to Daly, and at one point yelled "Hey!" Daly testified that she did not know to whom Roesky was yelling. At that point, Hill stuck his head out of Crowe's kitchen window. Daly testified that after she called the police, she observed Roesky go into her (Roesky's) backyard. On the 911 call, Daly told the dispatcher that Roesky was "circling my house" on foot and thought Roesky might be looking for Hill.
{¶ 30} Because Roesky lived next door, it would not be unusual that she would be present in her own yard. Again, Roesky's mere presence does not establish the requisite intent to aid and abet in a crime. See State v. Hall, 8th Dist. Cuyahoga No. 102789, 2016-Ohio-698, ¶ 12.
{¶ 31} Based on the record before us, we find that there was insufficient evidence of any criminal association between Roesky and Hill to support an inference that Roesky aided and abetted Hill in the burglary.
{¶ 32} In light of the facts of this case, we must sustain Roesky's assignment of error and reverse her conviction for burglary. That state failed to meet its burden to prove beyond a reasonable doubt that Roesky aided and abetted in the burglary.
{¶ 33} Our disposition of the first assignment of error renders the remaining assignments of error moot. App.R. 12(A)(1)(c).
{¶ 34} Judgment reversed; conviction and resulting sentence and fine vacated.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
LARRY A. JUDGE, SR., JUDGE MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR