from Seneca County Common Pleas Court Trial Court No. 18 CR
Jennifer L. Kahler for Appellant
M. Boes for Appellee
Defendant-appellant Sean M. Dayton ("Dayton")
appeals the judgment of the Seneca County Court of Common
Pleas, alleging that his conviction for attempted grand theft
was against the manifest weight of the evidence; that his
convictions for safecracking and possession of criminal tools
were not supported by sufficient evidence; and that the jury
instructions at trial should have included the lesser
included offense of criminal damaging. For the reasons set
forth below, the judgment of the trial court is affirmed.
and Procedural History
Jacqueline Brezina ("Brezina") is employed as a
teller at First National Bank in New Riegel, Ohio and lives
across the street from the branch at which she works. Tr.
116-117. On May 26, 2018 at 5:29 A.M., Brezina was at home
and was awakened by the sound of a "loud banging."
Tr. 117. She went to her front window where she saw a dark
minivan that had its hatch open. Tr. 117. The minivan was
next to a freestanding ATM that was located on the sidewalk
outside of the bank. Tr. 118-119, 215. One person was sitting
in the driver's seat of the minivan while another person
was standing outside of the minivan and using what appeared
to be a "crow bar" to strike the ATM repeatedly.
Tr. 118, 134.
Brezina said she heard a "shattering" sound as the
person repeatedly struck the ATM. Tr. 122. She could not
identify either of these individuals because their faces were
covered in "dark clothing" at this time. Tr. 119.
Suddenly, after another vehicle approached the ATM, the
person striking the ATM "jumped in the back" of the
minivan, and the minivan sped away. Tr. 122. Brezina
testified that she heard the sound of chains rattling as the
minivan pulled away. Tr. 123. At this point, Brezina called
9-1-1 and then called her supervisor. Tr. 124. While Brezina
was on the phone, she began to hear the sounds of sirens
approaching. Tr. 125, 129.
Deputy Richard Best ("Deputy Best"), who works for
the Seneca County Sherriff's Office, received a dispatch
at 5:29 A.M on May 29, 2018 that indicated an incident was
occurring at First National Bank. Tr. 137. When he arrived at
the bank, he saw a dark minivan and observed that the ATM had
sustained "heavy damage." Tr. 139. At this point,
"the driver of the van looked directly at [Deputy Best]
and then [took] off * * * at a high rate of speed." Tr.
140. Deputy Best then began pursuit of the minivan with his
lights and siren activated. Tr. 139-140. At this time, Deputy
Best observed that the hatch of the van was open and that the
van was dragging "a large log chain." Tr. 140. The
chain appeared to be attached to the rear axle of the
minivan. Tr. 140.
During this pursuit, the minivan reached speeds of one
hundred miles per hour. Tr. 141. Deputy Best radioed for
assistance from the Ohio State Patrol and the Fostoria Police
Department. Tr. 141. Responding to a call for assistance,
Officer Eric England ("Officer England"), a
patrolman with the Tiffin Police Department, set up spike
strips on a road that the minivan was reportedly headed
towards. Tr. 244. The minivan ran over the spike trips, which
punctured all four of the minivan's tires. Tr. 252.
Officer England, at this time, did not observe the driver of
the minivan make an attempt to stop his vehicle. Tr. 263.
Rather, the minivan continued to drive away from Deputy Best,
who continued the pursuit. Tr. 148-150.
After one of its tires came off, the minivan came to a stop.
Tr. 150. The driver and passenger were apprehended at this
time. Tr. 152. The driver was later identified as Dayton. Tr.
152, 250. During the course of their investigation, the
police determined that the minivan belonged to Dayton's
mother. Tr. 165. On June 13, 2018, Dayton was indicted for
one count of attempted grand theft in violation of R.C.
2913.02(A); one count of safecracking in violation of R.C.
2911.31(A); one count of fleeing or eluding a police officer
in violation of R.C. 2921.331(B); and one count of possession
of criminal tools in violation of R.C. 2923.24(A). Doc. 2.
This case proceeded to trial on November 26, 2018. Tr. 1.
At trial, the State introduced the ATM surveillance video.
Ex. 1. Tr. 219. In the video, the minivan pulls up beside the
ATM. Ex. 1. Dayton's accomplice can be seen getting out
of the minivan, bending over near the ATM, and moving around
the base of the machine, though what precisely he was doing
was out of the view of the video camera. Ex. 1. The
accomplice then steps aside while Dayton can be seen pulling
the minivan forward several times. Ex. 1. Tr. 234. As the
minivan pulls forward, the image in the surveillance video
lurches as though the ATM is moving. Ex. 1. The minivan then
stops, and Dayton's accomplice brings a sledgehammer
towards the ATM and strikes the machine repeatedly. Ex. 1.
Shortly thereafter, the accomplice gets into the minivan, and
Dayton drives away from the scene. Ex. 1.
At trial, Brezina, Deputy Best, and Officer England
testified. Tr. 116, 135, 240. During his testimony, Deputy
Best testified that he and several other officers examined
the minivan after Dayton and his accomplice had been
apprehended. Tr. 157. He stated the police discovered black
stocking caps, a black duffel bag, black rubber gloves,
knives, hatchets, and "an eight-pound, full-sized sledge
hammer" in the back of the minivan. Tr. 157-158. He also
testified that, at this time, the log chain was still
attached to the rear axle of the minivan. Tr. 158, 183. On
cross examination, Deputy Best stated that the ATM was
damaged as he drove past the bank in pursuit of Dayton. Tr.
177. However, he also testified that he did not witness
Dayton and his accomplice using the log chain in an attempt
to pull the ATM free from its mounting. Tr. 178-179.
Dean Keller ("Keller"), the president of First
National Bank, also testified about the damage that was done
to the ATM. Tr. 211. He stated that the front of the ATM has
a large screen under which is a "safe door." Tr.
222-223. This "safe door" is where money is
dispensed from the ATM and, thus, provides direct access to
the vault. Tr. 221. Keller also pointed to the fact that the
"safe door" was "extreme[ly]" damaged but
that the screen was not damaged. Tr. 223. He further stated
that the ATM could not be repaired because the damage to it
was too extensive. Tr. 224. He then testified that the
replacement cost of the ATM was $26, 000.00 and that the ATM
contained funds of $22, 320.00 on the morning of May 26,
2018. Tr. 225. Further, Keller authenticated surveillance
footage from the bank's security cameras that was then
admitted into evidence. Tr. 219.
After the State's case-in-chief, the Defense made a
Crim.R. 29 motion for acquittal as to each of the counts
charged against Dayton. Tr. 279. The trial court denied the
Defense's Crim.R. 29 motion. Tr. 284. The Defense then
objected to the jury instructions, arguing that a statement
on the lesser included offense of criminal damaging should be
included. Tr. 292. The trial court denied this request. Tr.
294. On November 27, 2018, the jury found Dayton guilty of
all four counts charged against him. Doc. 29. The trial court
then proceeded immediately to sentencing and subsequently
entered its judgment entry of sentencing on November 28,
2018. Tr. 373. Doc. 31.
Dayton filed his notice of appeal on December 18, 2018. Doc.
33. On appeal, appellant raises the following assignments of
First Assignment of Error
Appellant's conviction of attempted grand theft was
against the manifest weight of the evidence.
Second Assignment of Error
There was insufficient evidence presented at trial to support
appellant's conviction for safecracking.
Third Assignment of Error
There was insufficient evidence presented at trial to support
appellant's conviction for ...