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State v. Anthony

Court of Appeals of Ohio, Seventh District

June 21, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JOSEPH ANTHONY, DEFENDANT-APPELLANT.

Criminal Appeal from Common Pleas Court, Case No. 11 CR 142.

For Plaintiff-Appellee: Attorney Jane Hanlin Prosecutor Attorney George Sarap Assistant Prosecutor Jefferson County Justice Center.

For Defendant-Appellant: Attorney Eric Reszke.

JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Joseph J. Vukovich

OPINION

DeGENARO, P.J.

{¶1} Defendant-Appellant, Joseph Anthony, appeals the decision of the Jefferson County Court of Common Pleas, convicting him of one count of burglary and sentencing him accordingly. He contends that his sentence was erroneous and his conviction was against the manifest weight of the evidence. Anthony's assignments of error are meritless in part and meritorious in part. First, Anthony's conviction was not against the manifest weight of the evidence. Second, although Anthony's sentence was within the statutory range and the length was reasonable based upon the applicable sentencing factors, the trial court erred by failing to properly notify Anthony regarding the details of his post-release control and by failing to include the consequences for violating those conditions in the sentencing entry. Accordingly, Anthony's conviction is affirmed, his sentence is affirmed in part and the case remanded for a limited post-release control resentencing hearing pursuant to R.C. 2929.191(C).

Facts and Procedural History

{¶2} On September 7, 2011, the Jefferson County Grand Jury indicted Anthony on one count of burglary (R.C. 2911.12(A)(3)), a third-degree felony. The case proceeded to a jury trial during which the State presented testimony from multiple witnesses to set forth the facts of the burglary. On the evening of July 15, 2011, Doris Welday's house on Wheatley Street in Empire was burglarized. At the time of the burglary, Welday was in the hospital and her daughter, Carol Westbrook, was taking care of the house and had Power of Attorney for Welday.

{¶3} Between 9:30 and 10:00 p.m. on July 15, Carol received a phone call from a neighbor alerting her that the security lights had been activated at Welday's house. Carol's husband, Randy, and her younger son went to check on the house. First, they went up the ramp to the back porch and saw the door was still locked. They then observed that the basement door underneath the porch was open. According to Randy, nobody could have broken in from the outside because a bar holds the door shut and he had locked and secured the door earlier. The basement was dark and they did not have flashlights, but they could hear movement inside the basement. In the meantime, one of Welday's relatives had called the police. Randy and his son waited outside the house until Police Chief Matthew Donahue arrived.

{¶4} When Chief Donahue arrived, he announced his presence at the basement door. Shortly thereafter, Elizabeth Keenan exited the basement. Keenan is Welday's granddaughter and Carol and Randy's niece. Keenan lived with her mother next door to Welday's house. At the time, Anthony, Keenan's long-term boyfriend, lived with her and her mother. According to Carol, neither Keenan nor Anthony had permission to be in Welday's house. Carol also explained that Randy called her to bring the keys to the house over. Her older son picked her up and drove her over, and they arrived as Keenan was coming out of the basement.

{¶5} After Keenan exited the basement, the Chief asked her what she was doing in the house, and at first she said that she needed food from the freezer. The family members advised him that the freezer was upstairs on the back porch, not in the basement. Keenan then said that she heard a noise in the house. Chief Donahue placed Keenan into custody, handcuffed her with her hands behind her back and secured her in the back of his vehicle. Keenan complained that the handcuffs were cutting into her wrists, which the Chief explained is a normal reaction.

{¶6} Chief Donahue then performed a scan of the house. He asked the family to enter and told them not to touch anything but to advise him if anything was missing. Carol noticed that a flat-screen television was missing from the entertainment center in the living room and some figurines were missing that were usually in front of the television. The television was discovered in the basement. According to the Chief, the inside of the house was not damaged and the figurines were placed at the bottom of the television console.

{¶7} Chief Donahue then searched for a point of entry; he testified that he did not believe it was the basement door because the door had been locked with the bar and the door was not damaged. The front of the house had an enclosed porch. The Chief found a tire iron lying on the porch next to a window. He saw that the window had pry marks underneath it and the latches were broken. The window led into the living room and the curtains and blinds were pushed aside over the couch. He believed that this window was the point of entry.

{¶8} After he detained Keenan at the Welday residence, the Chief diffused an altercation between Carol's son and Anthony near Anthony's residence on Wheatley. He did not arrest Anthony that night. Later that evening, when he took Keenan to the Sheriff's Department, he asked her if Anthony was involved in the burglary and Keenan said no.

{¶9} Chief Donahue contacted Agent Edward Lulla, a crime scene investigator with the Ohio Bureau of Criminal Investigation, who conducted an investigation of the scene the next morning. Agent Lulla fingerprinted the window inside the porch, the television, and some of the figurines. The fingerprint evidence was very poor quality and there was not enough ridge detail to make a comparison with a known fingerprint. Agent Lulla explained that fingerprints could last for years on a surface if the surface is not wiped off or does not come into contact with water. DNA evidence was not taken from the scene.

{¶10} According to Chief Donahue, while he was investigating the burglary, Keenan was not very helpful, so he asked Sheriff Abdalla to speak with her. Keenan gave a statement to the Sheriff that Anthony was involved in the burglary; ...


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