[Cite as State v. Scurry, 2011-Ohio-2243.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25116
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DESTEN D. SCURRY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 04 1254
DECISION AND JOURNAL ENTRY
Dated: May 11, 2011
MOORE, Judge.
{¶1} Appellant, Desten D. Scurry, appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} On April 11, 2009, a warrant was issued for the arrest of Desten D. Scurry on
charges of attempted rape and kidnapping. On April 16, 2009, Sergeant David Laughlin was
serving warrants in Akron and observed Scurry on Andrew Street. Scurry ran and Sergeant
Laughlin began to give chase. Around this same time, Roosevelt Grubbs returned home to his
residence on Andrew Street and saw police in the area looking for a man. Grubbs discovered
that the glass to the back door to his sunroom had been broken but did not see anyone in the
home. Police subsequently entered the home and found Scurry hiding behind a couch in the
sunroom.
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{¶3} On April 30, 2009, Scurry was indicted on one count of kidnapping in violation of
R.C. 2905.01(A)(4), a felony of the first degree, one count of attempted rape in violation of R.C.
2923.02 and R.C. 2907.02(A)(2), a felony of the second degree, one count of burglary in
violation of R.C. 2911.12(A)(1), a felony of the second degree, and one count of obstructing
official business in violation of R.C. 2921.31(A), a misdemeanor of the second degree. The
kidnapping and rape charges are unrelated to the burglary charge. The obstructing charge,
though related to the burglary charge, is not the subject of this appeal. On May 15, 2009, Scurry
entered a plea of not guilty and the matter proceeded to a jury trial on October 13, 2009. On
October 16, 2009, the jury found Scurry guilty of burglary and obstructing official business, and
not guilty of kidnapping and attempted rape. The trial court sentenced him to eight years of
incarceration.
{¶4} Scurry timely filed a notice of appeal. He raises two assignments of error for our
review.
II.
ASSIGNMENT OF ERROR I
“[SCURRY’S] CONVICTION FOR BURGLARY WAS BASED UPON
INSUFFICENT EVIDENCE AS A MATTER [OF] LAW.”
{¶5} In his first assignment of error, Scurry contends that his conviction for burglary is
not supported by sufficient evidence. Specifically, he contends that the State failed to prove that
another person was present when the trespass occurred. We do not agree.
{¶6} When considering a challenge to the sufficiency of the evidence, the court must
determine whether the prosecution has met its burden of production. To determine whether the
evidence in a criminal case was sufficient to sustain a conviction, an appellate court must view
that evidence in a light most favorable to the prosecution:
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“An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
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 crime proven
beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph
two of the syllabus.
{¶7} Scurry was convicted of burglary in violation of 2911.12(A)(1), which provides
that “[n]o person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure *
* * when another person other than an accomplice of the offender is present, with purpose to
commit * * * any criminal offense[.]” A trespass occurs where the offender, without privilege to
do so, knowingly enters or remains on the premises of another. R.C. 2911.21(A)(1).
{¶8} Scurry argues that because there was no evidence that anyone was in the house
when he broke the window and entered the home, the State failed to provide sufficient evidence
to support the conviction of burglary. The State, however, argues that trespass is a continuing
offense and the crime of burglary occurred when the homeowner returned and entered the home
while Scurry remained inside of the room.
{¶9} The Fourth and Eighth Districts have held that “a person need not be present in
order to sustain [a conviction under] R.C. 2911.12(A)(1). Instead, a burglary conviction may
stand if, during any time that the defendant is trespassing, a person enters the premises.
Essentially, the person’s presence converts a breaking and entering offense into a burglary
offense.” State v. Fairrow, 4th Dist. Nos. 02CA2668 & 02CA2680, 2004-Ohio-3145, at ¶28,
citing State v. Davis, 8th Dist. No. 83033, 2004-Ohio-1908, at ¶16.
{¶10} Here, the State avers that even though there is no evidence that a person was in
the home or the attached sunroom when Scurry entered the home, Scurry was still in the home,
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committing the offense of trespass, when Grubbs returned home. Thus, the offense was
converted into a burglary offense. We agree.
{¶11} Scurry’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“[SCURRY’S] CONVICTION FOR BURGLARY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶12} In his second assignment of error, Scurry contends that his conviction for burglary
is against the manifest weight of the evidence. We do not agree.
{¶13} When a defendant asserts that his conviction is against the manifest weight of the
evidence,
“an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339,
340.
This discretionary power should be invoked only in extraordinary circumstances when the
evidence presented weighs heavily in favor of the defendant. Id.
{¶14} Scurry’s manifest weight claim relies on the same arguments raised in the
sufficiency challenge. These arguments do not cast doubt on any testimony or otherwise attack
the credibility of the evidence.
{¶15} Sergeant Laughlin, with the Akron police department, testified that he was
serving warrants in Akron on April 16, 2009. An arrest warrant was issued for Scurry in
connection with an attempted rape and kidnapping. Sergeant Laughlin observed Scurry on
Andrew Street in Akron. He exited his vehicle and Scurry began running northbound across
Andrew Street. Sergeant Laughlin chased Scurry and identified himself as a police officer.
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{¶16} At one point Sergeant Laughlin lost sight of Scurry, but heard a loud crash as if
something were breaking. Sergeant Laughlin then conducted a “yard-by-yard” search looking
under cars and behind trash cans and other areas where a person could potentially hide. A car
pulled into the driveway at 1020 Andrew Street and the driver asked Sergeant Laughlin if he was
looking for someone. Sergeant Laughlin told the man that he was and gave a description of
Scurry.
{¶17} The driver turned out to be the owner of the home, Grubbs. Sergeant Laughlin
testified that Grubbs had gone to his sunroom and noticed that the glass to the screen door of his
sunroom was broken and alerted Sergeant Laughlin. Sergeant Laughlin testified that he entered
the sunroom, followed by Grubbs, and located Scurry hiding behind a couch. Sergeant Laughlin
ordered Scurry at gunpoint to come out from behind the couch. He then arrested him.
{¶18} Grubbs testified that he lives at 1020 Andrews Street in Akron, Ohio. On April
16, 2009, he came home to find a police officer standing in his driveway. The officer told him
that he was chasing a man and asked Grubbs to go into his house and look around to see if
everything was alright. Grubbs walked down his driveway and looked at the backdoor and
noticed the broken window at the entrance to his sunroom. The window was not broken when he
left the house about twenty minutes prior. Grubbs entered the sunroom and did not see anyone in
the room. When Grubbs turned around and exited the sunroom he saw the officer with his gun
drawn pointed toward the couch telling someone to freeze. Grubbs stepped out of the way and
witnessed the officer take Scurry into custody from the sunroom.
{¶19} Accordingly, upon review of the record, we do not conclude that “in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
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miscarriage of justice that the conviction must be reversed and a new trial ordered.” Otten, 33
Ohio App. 3d at 340. Scurry’s second assignment of error is overruled.
III.
{¶20} Scurry’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, J.
CONCURS
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BELFANCE, P. J.
DISSENTS, SAYING:
{¶21} I respectfully dissent as I would conclude that the State presented insufficient
evidence to sustain a conviction for a violation of R.C. 2911.12(A)(1). The legislature created
four different and distinct subsections within R.C. 2911.12. Violation of either R.C.
2911.12(A)(1) or R.C. 2911.12(A)(2) results in a second-degree felony. See R.C. 2911.12(C).
R.C. 2911.12(A)(1) currently provides that:
“[n]o person, by force, stealth, or deception, shall * * * [t]respass 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[.]” (Emphasis
added.)
While R.C. 2911.12(A)(2) currently states that:
“[n]o person, by force, stealth, or deception, shall * * * [t]respass in an occupied
structure or in a separately secured 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 to be present,
with purpose to commit in the habitation any criminal offense[.]” (Emphasis
added.)
{¶22} As the occupied structure discussed in R.C. 2911.12(A)(1) can be a permanent or
temporary habitation, see R.C. 2909.01(C), the main distinction between R.C. 2911.12(A)(1) and
(A)(2), given the current facts, is whether the defendant trespassed when someone was present or
when someone was present or likely to be present. There is no dispute that when Mr. Scurry
trespassed in the home no one was present. The plain language of the statute strongly suggests
that a conviction under R.C. 2911.12(A)(1) requires that someone other than the defendant or an
accomplice must be present when the defendant initially trespasses. See R.C. 2911.12(A)(1)
(“[n]o person, by force, stealth, or deception, shall * * * [t]respass in an occupied structure * * *
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when another person other than an accomplice of the offender is present[.]”). This notion is
further supported by the fact that the legislature enacted R.C. 2911.12(A)(2) as well, which
clearly accounts for situations such as the one before us. Further, because the legislature created
(A)(2) which covers situations such as this, I would not contort the language of (A)(1) in order to
sustain the conviction. The courts should not contort or extend the language of statutes in order
to accommodate the State’s failure to prove the case it chose to prosecute; to do so only
encourages the State to proceed under inappropriate statutory provisions.
{¶23} Thus, while I understand the majority’s reasoning and appreciate how the
majority reached its conclusion, I believe sustaining Mr. Scurry’s conviction for violating R.C.
2911.12(A)(1) under these facts essentially renders R.C. 2911.12(A)(2) meaningless and
unnecessary; a result that would seem to be contrary to legislative intent. Further, as the
Supreme Court of Ohio has not spoken on this precise issue, I am disinclined to read R.C.
2911.12(A)(1) as expansively as the majority.
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.