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State v. Dayton

Court of Appeals of Ohio, Third District, Seneca

July 1, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SEAN M. DAYTON, DEFENDANT-APPELLANT.

          Appeal from Seneca County Common Pleas Court Trial Court No. 18 CR 0114

          Jennifer L. Kahler for Appellant

          Angela M. Boes for Appellee

          OPINION

          WILLAMOWSKI, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} Dayton filed his notice of appeal on December 18, 2018. Doc. 33. On appeal, appellant raises the following assignments of error:

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 ...

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