Youngstown Daily Legal News

Burglar who stole aluminum siding loses appeal

ANNIE YAMSON
Special to the Legal News
Published: February 19, 2014

A panel of judges in the 3rd District Court of Appeals recently affirmed the judgment of the Logan County Court of Common Pleas convicting Eric Johnston of breaking and entering, a fifth-degree felony.

Following his indictment, Johnson waived his right to a trial by jury, choosing to try his case to the bench, where he was subsequently found guilty.

The Logan County court ordered Johnston to serve three years of community control, pay a fine of $250, restitution in the amount of $350 and the costs of the prosecution.

Upon appeal, Johnston claimed that his conviction was based on insufficient evidence.

According to him, the state failed to prove beyond a reasonable doubt that he had trespassed under R.C. 2911.13(A).

“In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact,” wrote Judge Vernon Preston on behalf of the court of appeals.

Johnston, he pointed out, was convicted of one count of breaking and entering under R.C. 2911.13(A), which provides that “no person by force, stealth or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense ... or any felony.”

The charge against Johnston was based on his alleged theft of aluminum gutters, siding and spouting from a shed on a weekend property in the Indiana Lake area.

“(Johnston) argues that the state did not prove trespass because the state’s second of two witnesses — a neighbor who lived across the street from the property — testified only that she witnessed Johnston removing the materials from the shed, not that she witnessed Johnston entering the shed,” wrote Judge Preston.

The appellate panel found little merit to Johnston’s argument and concluded that there was sufficient evidence to support his conviction, including the element of trespass.

Judge Preston cited the property owner’s testimony that she and her husband stored the aluminum materials inside the shed and that they had noticed the materials were missing.

The neighbor testified that she witnessed Johnston taking the materials “out of the shed and loading it into the truck.”

The neighbor also told the court that she had known Johnston for at least 10 years and she had approached him and spoke to him face-to-face when she saw him taking the materials.

Johnston told her that he had permission to take the gutters and siding.

“She testified that there was ‘no doubt in her mind whatsoever’ that it was Johnston who was removing the materials from the shed,” wrote Judge Preston. “This is sufficient evidence to support the element of trespass.”

Johnston claimed the neighbor was not a credible witness but the court of appeals declined to address that argument, noting that it was for the trier of fact to assess the credibility of witness testimony.

Johnston then proceeded to allege ineffective assistance of counsel.

According to him, his attorney erred by calling him to testify because of his “lengthy record of thefts and one case of breaking and entering.”

Johnston claimed his attorney should not have asked him to testify because his criminal record was brought to light during cross-examination.

“Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance,” wrote Judge Preston. “Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance.”

The appellate panel held that, whether or not a defendant testifies is purely a tactical decision and Johnston failed to demonstrate that his attorney’s actions were prejudicial in any way.

Additionally, it concluded that the court did not use the knowledge of Johnston’s prior convictions for any improper purpose.

Presiding Judge John Willamowski and Judge Stephen Shaw concurred.

The case is cited State v. Johnston, 2014-Ohio-353.

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