State v. Waszily

James D. Sweeney, Presiding Judge. Defendant-appellant Sean A. Waszily appeals from his bench trial conviction of one count of aggravated burglary in violation of R.C. 2911.11(A)(3), as charged in the indictment. 1 For the reasons adduced below, we affirm in part and reverse in part, vacate the conviction and order the appellant discharged. A review of the record on appeal indicates that only two witnesses testified at the trial, both of whom offered testimony on behalf of the prosecution. The first witness was Terri Savage, who stated the following: (1) she is twenty-six years old and unmarried; (2) on the date of the offense, June 5, 1993, she and her infant daughter resided at her parents’ house at 144 West Grace Street, Bedford, Ohio; (3) Waszily is the father of her infant daughter; (4) on the date of the offense, the witness’s parents were away for the weekend; (5) she and Waszily had telephone conversations earlier that day and had arranged for Waszily to come over to see the baby 2 ; (6) Waszily called later that day to tell her that he would be late for the visit, so a new time for that day was agreed to by the couple; (7) as the day turned to evening, and Waszily had not appeared, the witness telephonically paged the defendant and told him that she was putting the *513 baby to bed soon, so Waszily said he would be over at another time later that evening; (8) this new time, approximately 10:00 p.m., also passed without Waszily appearing, so the witness again paged Waszily and told him that the baby was sleeping and to visit the baby the next day; (9) at approximately 11:00 to 11:30 p.m., Waszily, upset and angry, telephoned from a location down the street and said he wanted to come over to see the baby; (10) the witness, having been awakened from her sleeping, told him not to come over, it was too late in the evening; (11) at approximately 1:00 a.m., the witness was awakened by the knocking of Waszily at her side door; (12) speaking through a screened bathroom window, Waszily said that he wanted to come in to see the witness and the baby; (13) thinking that he had been drinking, the witness told him it was not a good idea to visit at that time of night and that his ranting and raving would wake the baby; (14) Waszily, being refused entry to the house, then put his fist through the bathroom window screen and entered the home through that window; (15) inside the home, Waszily was still upset and wanted to know where the baby was and whether she had another man in the house; (16) the couple argued and fought throughout the first floor of the structure, which awakened the baby, who was in an upstairs bedroom; (17) the couple went upstairs and retrieved the upset baby, and as Waszily calmed down in the kitchen, the witness threatened to call the police if he did not leave; (18) Waszily threatened to kill her if she called the police because he was on probation and he feared going back to jail; (19) some time later, Waszily’s friend, Sam Trazino, who had been waiting in Waszily’s car outside, came to the door and persuaded Waszily to leave the house; (20) as Waszily was leaving, the witness told him that he had better plan on fixing the screen because her parents would be mad, then locked the door and called the police; (21) the police arrived a short time later and could not locate the damaged bathroom window screen; (22) the entire episode of Waszily’s visit and tirade took perhaps one hour; (23) the witness has had no contact with Waszily since that night; (24) Waszily stole nothing from the home; (25) the couple had been engaged for about one year at the time of the offense, but she gave him back the engagement ring on the night of the offense before he left the house; (26) neither she nor the baby was physically hurt in any way by Waszily, nor was there an attempt to hurt them by Waszily. The second witness was city of Bedford Police Sergeant Robert Kohn, who testified as follows: (1) while on patrol on the date of the offense, he responded to a radio dispatch to the scene of the offense, arriving at the scene at 1:30 a.m.; (2) Savage told him what had occurred; (3) he searched the area and also radioed a broadcast of the suspect’s identity and a description of the suspect’s vehicle with license plate number; (4) a short time later, the suspect’s vehicle was located, so the witness went to that location; (5) inside the suspect’s vehicle the witness found the damaged bathroom window screen from Savage’s house. *514 At the close of the prosecution’s case the defense moved for acquittal pursuant to Crim.R. 29. This motion was denied. The defense then rested subject to the admission into evidence of a series of letters between the couple. The defense then renewed its motion for acquittal. This motion was denied. The court then found Waszily guilty of the offense charged in the indictment. 3 Following the preparation of a presentence investigation report, the court, on June 20, 1994, sentenced Waszily to a term of five to twenty-five years. This appeal presents two assignments of error. I “The trial court erred in convicting the appellant of aggravated burglary because there was insufficient evidence presented on the element of intent to commit a theft offense or a felony at the time of entry, and thus the appellant’s conviction is against the manifest weight of the evidence.” (Emphasis sic.) In addressing an assignment based on sufficiency of the evidence, our review is based on whether a rational trier of fact, after viewing the evidence admitted at trial in a light most favorable to the prosecution, could have found the essential elements of the crime proven beyond a reasonable doubt. See State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. In convicting Waszily of aggravated burglary, the trial court necessarily found the essential elements of the crime charged, to wit, that Waszily entered the home “with purpose to commit therein” a theft offense or a felony. See R.C. 2911.11(A). Appellee argues that these elements were satisfied as follows: (1) Waszily’s taking of the damaged window screen from the home constituted a theft offense; and (2) Waszily’s restraining Savage of her liberty and threatening Savage after entering the home demonstrated the felony element in that appellant’s actions were akin to kidnapping and releasing the victim in a safe place unharmed, a second degree felony pursuant to R.C. 2905.01(A) and (C). The “theft” theory presented by the prosecution is clearly not supported by the evidence. By all indications, Waszily took the damaged screen to be repaired at the urging of Savage. Also, Savage testified that nothing was stolen from the house. Finally, the particular circumstances of this case support the contention that Waszily’s purpose or intent at the moment of entering the structure was not *515 to steal a window screen but to visit his infant daughter and to remove any doubt from his mind that Savage was sleeping alone that night. See State v. Flowers (1984), 16 Ohio App.3d 313, 16 OBR 344, 475 N.E.2d 790 (absent circumstances to the contrary, one who forcefully enters a dwelling raises the reasonable inference that he does so with the intent to commit a theft offense); see, also, In re Dobbelaer (1993), 63 Ohio Misc.2d 303, 626 N.E.2d 709 (for purposes of R.C. 2911.11[A][3], the intent to commit a theft offense must exist at the time of a trespass). We also conclude that the evidence does not support a finding that Waszily had the purpose to commit a felony at the moment he entered the dwelling. Again, at the moment he entered the dwelling through the bathroom window, Waszily’s intent, as demonstrated by the uncontested testimony of Savage, was to see his baby daughter and to see if his fiance was sleeping with another man. Threatening Savage with death should she call the police and restraining her liberty were not contemplated by Waszily at the moment he pulled his body through the window; rather, these reprehensible intentions and actions manifested themselves subsequent to the entry of the dwelling. As all the essential elements of the charged offense have failed to have been demonstrated, the conviction for the offense of aggravated burglary is necessarily vacated. 4 The first assignment of error is sustained. II “The trial court’s conviction of appellant is erroneous because the appellant’s prosecution for aggravated burglary was initiated by an indictment that was so *516 defective that it deprived the appellant of due process of law, and the trial court lacked jurisdiction to convict the appellant.” In this assignment, appellant argues that the indictment on the charged offense, aggravated burglary, was vague in failing to provide information as to which element, a theft or a .felony, Waszily had the purpose to commit, thereby providing inadequate notice of the charges he would be required to defend. The one-count indictment in this case for aggravated burglary in violation of R.C. 2911.11(A)(3) provided the following: “ * * * [Defendant] unlawfully and by force, stealth, or deception, trespassed in an occupied structure as defined in Section 2909.01 of the Revised Code, or in a separately occupied portion thereof with the purpose to commit therein a theft offense as defined in Section 2913.01 of the Revised Code or a felony, and the occupied structure involved is the permanent or temporary habitation of Terri Savage, in which at the time any person was present or likely to be present. “SPECIFICATION ONE: (Violence) “The Grand Jurors further find and specify that during the commission of the offense, the offender caused physical harm to Terri Savage.” Quite clearly, the indictment language tracked the language of the statute, which is allowed and has been held to provide adequate notice of the elements of the charged offense. State v. Murphy (1992), 65 Ohio St.3d 554, 605 N.E.2d 884; State v. Mills (1992), 62 Ohio St.3d 357, 582 N.E.2d 972; Crim.R. 7(B). Further, an indictment is not improper or inadequate if it “does not designate and define the particular felony intended to be committed.” State v. Castell (Aug. 20, 1992), Cuyahoga App. No. 61352, unreported, at 4-5, 1992 WL 205130, citing State v. Groves (1909), 80 Ohio St. 351, 88 N.E. 1096. Accordingly, we conclude that the indictment in this case was not inadequate or ambiguous. As a subargument in this assignment, appellant argues that the bill of particulars did not give him fair notice of the specific charges, theft or felony, which formed the basis for the indictment. A reading of the bill of particulars in this case reflects a reiteration of the indictment with the addition of the date, time and location of the offense. Appellant’s understanding of the purpose of a bill of particulars is flawed. A bill of particulars’ purpose is to “particularize the conduct of the accused alleged to constitute the charged offense.” State v. Sellards (1985), 17 Ohio St.3d 169, 171, 17 OBR 410, 411-412, 478 N.E.2d 781, 784. It is not the purpose of a bill of particulars “to provide the accused with specifications of evidence or to serve as a substitute for discovery.” Id. We conclude that neither *517 the indictment nor the bill of particulars was inadequate for its intended purposes. The second assignment of error is overruled. The judgment is affirmed in part and reversed in part, the conviction is vacated, and defendant is discharged. The trial court is further ordered to take the necessary steps to effect the release of the appellant from prison. Judgment accordingly. Porter, J., concurs. Nugent, J., dissents. Footnotes [1] R.C. 2911.11(A)(3) provides: “(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: "(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.” (Emphasis added.) [2] The witness admitted that her parents disapproved of Waszily, and Waszily’s parents disapproved of the witness. [3] Neither the parties nor the trial court requested at trial any potential lesser included offenses to the charged offense of aggravated burglary, such as burglary (R.C. 2911.12[A][3], a fourth degree felony) or criminal trespass (R.C. 2911.21 [A][l] and [3], a fourth degree misdemeanor). Instead, defense counsel strategically relied on his ability to obtain an acquittal solely on the charged offense and foreclosed a possible intermediate result. [4] While the lesser included offenses mentioned in footnote 3 would apply under the facts of this case, we choose not to exercise our authority pursuant to App.R. 12(B) to modify the original conviction on the charged offense to a conviction on one of the lesser included offenses. We take this position for the reason that (1) the parties at trial did not seek a lesser included offense; (2) the trial court, which is presumed to have acted with regularity and considered the potential lesser offenses available before ruling on the case, did not mention any lesser included offenses at trial and did not find the defendant guilty of any lesser offenses; (3) we do not wish to usurp the functions of the county prosecutor and the grand jury, particularly where more than one lesser offense may apply, for if they wish to have this defendant charged with one of the lesser offenses, that is their determination. The pertinent language of App.R. 12(B), which authorizes this discretionary power we exercise in this majority opinion, provides: "When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered [in this case, the acquittal on the offense of aggravated burglaiy] or remand the case to the court with instructions to render such judgment or final order.” (Emphasis added.)