[Cite as State v. Pacific,
2021-Ohio-973.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28804
:
v. : Trial Court Case No. 2019-CR-2234
:
CHRISTOPHER PACIFIC : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 26th day of March, 2021.
...........
MATHIAS H. HECK, JR. by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Defendant-Appellant Christopher Pacific was found guilty after a bench trial
in the Montgomery County Court of Common Pleas of breaking and entering, a felony of
the fifth degree. The trial court sentenced Pacific to up to five years of community
control.
{¶ 2} Pacific appeals from his conviction, claiming that (1) the trial court erred in
allowing the State to amend the indictment and bill of particulars at trial, (2) the trial court
erred in failing to grant a reasonable continuance after amending the indictment, (3) the
trial court erred in denying his Crim.R. 29 motion, (4) his conviction was against the
manifest weight of the evidence, and (5) the judgment entry was inconsistent with the trial
court’s orally-pronounced sentence. For the following reasons, the trial court’s judgment
will be affirmed.
I. Factual and Procedural History
{¶ 3} On July 7, 2019, the Montgomery County Sheriff’s Department responded to
5345 Germantown Pike on a reported breaking and entering. Carol Slater, who lived at
that residence, informed the deputies that she heard voices and noises at a neighboring
property, a dilapidated former commercial nursery that consisted of a series of connected
buildings. The deputies walked around the greenhouse buildings and heard voices and
mechanical noises coming from inside. After entering the greenhouse, the deputies
encountered Pacific and two other individuals. Pacific had a chainsaw and was cutting
into a motor or air conditioning unit that was mounted to the ceiling. The deputies placed
the three individuals under arrest.
{¶ 4} On August 8, 2019, Pacific was indicted on one count of breaking and
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entering (unoccupied structure), in violation of R.C. 2911.13(A). The indictment
identified the unoccupied structure as “a nursery building, located at 5345 Germantown
Pike, Jefferson Township, Ohio.” Pacific requested a bill of particulars, which the State
provided. The bill of particulars stated, in relevant part, that the State would prove:
[O]n or about July 7, 2019, in Montgomery County, Ohio, the Defendant,
Christopher Pacific, did by force, stealth, or deception, trespass in an
unoccupied structure located at 5345 Germantown Pike, Jefferson
Township, Ohio, with purpose to commit therein any theft offense, as
defined in R.C. 2913.01(K), or any felony; in violation of R.C. 2911.13(A), a
felony of the fifth degree. In particular, the day of the incident, Montgomery
County Sheriff’s Deputies responded to a breaking and entering in progress
call where they located Defendant in a secured greenhouse-type building
actively sawing at a motor to remove it from the structure.
{¶ 5} The matter proceeded to a bench trial on January 28, 2020. The State
presented the testimony of Slater, two of the responding deputies, and Donald Wang, the
alleged owner of the greenhouse property. During the trial, the State presented evidence
that the address of the greenhouse actually was 5335 Germantown Pike, an abutting
property that shares a driveway with 5345 Germantown Pike. After the State rested, the
prosecutor moved, pursuant to Crim.R. 7(B), to amend the indictment and the bill of
particulars to reflect that address. The trial court granted the motion over defense
counsel’s objection. The court also denied defense counsel’s request for a continuance
based on the amendment of the indictment. The court reasoned that, because the
indictment described the property as a nursery and defense counsel had visited that
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property, Pacific was not prejudiced by the amendment.
{¶ 6} Defense counsel moved for a judgment of acquittal under Crim.R. 29, arguing
that the evidence was insufficient to sustain a conviction for the offense. The trial court
denied the oral motion. The defense then offered several exhibits, but called no
witnesses. Defense counsel renewed his Crim.R. 29 motion after the defense rested;
that motion also was denied.
{¶ 7} The trial court found Pacific guilty of breaking and entering and ordered a
presentence investigation. At the sentencing hearing, the trial court misstated that
Pacific had been found guilty of a felony of the fourth degree. The court sentenced
Pacific to up to five years of community control, and it orally notified him that he could be
required to serve 18 months in prison if he violated that community control. The trial
court’s written judgment entry, however, correctly indicated that breaking and entering
was a felony of the fifth degree, and it ordered that Pacific could be required to serve 12
months – not 18 months – if he violated his community control sanctions.
{¶ 8} Pacific appeals from his conviction, raising five assignments of error.
II. Amendment of the Indictment
{¶ 9} In his first assignment of error, Pacific claims that the trial court erred in
permitting the State to amend its indictment and bill of particulars at the conclusion of its
case-in-chief.
{¶ 10} “The purposes of an indictment are to give an accused adequate notice of
the charge, and enable an accused to protect himself or herself from any future
prosecutions for the same incident.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-
4707,
853 N.E.2d 1162, ¶ 7. Crim.R. 7(B) effectuates this purpose and sets forth the
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sufficiency requirements of an indictment. State v. Young, 2d Dist. Greene No. 2019-
CA-18, 2020-Ohio-1044, ¶ 28. That Rule requires that the indictment be signed and that
it “contain a statement that the defendant has committed a public offense specified in the
indictment.” Crim.R. 7(B). Indictments may be written “in the words of the applicable
section of the statute, provided the words of that statute charge an offense, or in words
sufficient to give the defendant notice of all the elements of the offense with which the
defendant is charged.”
Id.
{¶ 11} Crim.R. 7(D) authorizes the trial court – at any time before, during, or after
a trial – to amend the indictment in respect to “any defect, imperfection, or omission in
form or substance, or of any variance with the evidence, provided no change is made in
the name or identity of the crime charged.” We previously concluded that an amendment
to an indictment regarding the location of the offense does not change the name or identity
of the offense. See State v. Weber, 2d Dist. Montgomery No. 25508, 2013-Ohio-3172,
¶ 29 (amendment of indictment to allege that the rape occurred in a different county, as
reflected by the evidence, did not change the name or identity of offense and was not an
abuse of discretion).
{¶ 12} “Whether an amendment changes the name or identity of the offense
charged is a matter of law that we review de novo.” State v. Villamor-Goubeaux, 2016-
Ohio-7420, 72 N.E.3d 1185, ¶ 54 (2d Dist.), citing State v. Frazier, 2d Dist. Clark No.
2008-CA-118,
2010-Ohio-1507, ¶ 22. “If the amendment does not change the name or
identity of the crime charged, then we apply an abuse of discretion standard to review the
trial court’s decision to allow a Crim.R. 7(D) amendment.” (Citations omitted.) Frazier at
¶ 23. A trial court abuses its discretion “when it makes a decision that is unreasonable,
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unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966,
986 N.E.2d 971, ¶ 34.
{¶ 13} In this case, the indictment and bill of particulars alleged that on July 7,
2019, Pacific committed the offense of breaking and entering, in violation of R.C.
2911.13(A), a felony of the fifth degree. Both documents specified that the unoccupied
structure was a nursery/greenhouse, but incorrectly listed the property’s address as 5345
Germantown Pike. At trial, the State’s evidence established that 5345 Germantown Pike
was Slater's residential address, and the nursery was located at 5335 Germantown Pike.
{¶ 14} Under these facts, Crim.R. 7(D) authorized the trial court to correct the
misidentification of the nursery’s address in the indictment and bill of particulars. The
amendment did not alter the elements that the State was required to prove, and the
correction did not change either the name or identity of the crime charged.
{¶ 15} Moreover, nothing in the record suggests that Pacific was prejudiced by the
amendment. There was no dispute that the greenhouse property was the alleged scene
of the offense. The bill of particulars indicated that Pacific was found in the greenhouse
attempting to remove a motor from that property, and all of the State’s witnesses testified
about their actions with respect to the nursery property. Defense counsel indicated at
trial that he had visited the greenhouse property, and he cross-examined witnesses
regarding the condition of that property. Defense counsel was prepared to present
evidence challenging the State’s evidence regarding the ownership of the nursery
property and whether Pacific lacked privilege to be in the greenhouse. The trial court did
not abuse its discretion in permitting the amendment of the indictment and bill of
particulars to correct the property’s address.
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{¶ 16} Pacific’s first assignment of error is overruled.
III. Denial of Continuance
{¶ 17} Pacific’s second assignment of error claims that the trial court should have
granted him a continuance after allowing the amendment of the indictment and bill of
particulars.
{¶ 18} Crim.R. 7(D) further provides:
If any amendment is made to the substance of the indictment, information,
or complaint, or to cure a variance between the indictment, information, or
complaint and the proof, the defendant is entitled to … a reasonable
continuance, unless it clearly appears from the whole proceedings that the
defendant has not been misled or prejudiced by the defect or variance in
respect to which the amendment is made, or that the defendant’s rights will
be fully protected by proceeding with the trial, or by a postponement thereof
to a later day with the same or another jury. … No action of the court in
refusing a continuance or postponement under this division is reviewable
except after motion to grant a new trial therefor is refused by the trial court,
and no appeal based upon such action of the court shall be sustained nor
reversal had unless, from consideration of the whole proceedings, the
reviewing court finds that a failure of justice resulted.
{¶ 19} Pacific requested a continuance in conjunction with his objection to the
State’s motion to amend the indictment and the bill of particulars, arguing that the
amendment could have an impact on defense strategy. The trial court denied that
request, stating that it found no indication that Pacific was prejudiced, particularly given
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that defense counsel had gone to the nursery prior to trial. The court asked defense
counsel, “So what would you have done different? What’s the issue? I don’t get it.”
Defense counsel did not identify any issues or strategies that were affected by the
amendment.
{¶ 20} Pacific did not thereafter file a motion for a new trial. Accordingly, pursuant
to Crim.R. 7(D), the trial court’s denial of his request for a continuance is not reviewable.
Even if it were, the record does not support a conclusion that a failure of justice resulted
from the denial of the continuance.
{¶ 21} Pacific’s second assignment of error is overruled.
IV. Sufficiency and Manifest Weight of the Evidence
{¶ 22} In his third and fourth assignments of error, Pacific claims that the trial court
erred in denying his Crim.R. 29 motion for an acquittal and that his conviction was against
the manifest weight of the evidence.
{¶ 23} Crim.R. 29(A) provides:
The court on motion of a defendant or on its own motion, after the evidence
on either side is closed, shall order the entry of a judgment of acquittal of
one or more offenses charged in the indictment, information, or complaint,
if the evidence is insufficient to sustain a conviction of such offense or
offenses. The court may not reserve ruling on a motion for judgment of
acquittal made at the close of the state’s case.
{¶ 24} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court
applies the same standard as is used to review a claim based on the sufficiency of the
evidence. State v. Page, 2d Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 7, citing
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State v. Sheppeard, 2d Dist. Clark No. 2012-CA-27, 2013-Ohio-812, ¶ 51. “A sufficiency
of the evidence argument disputes whether the State has presented adequate evidence
on each element of the offense to allow the case to go to the jury or sustain the verdict
as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525,
¶ 10, citing State v. Thompkins,
78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). The
relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light
most favorable to the State, could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Dennis,
79 Ohio St.3d 421, 430,
683 N.E.2d 1096
(1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds could
not reach the conclusion reached by the trier-of-fact.”
Id.
{¶ 25} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12; see Eastley v.
Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179,
972 N.E.2d 517, ¶ 19. When reviewing
an argument challenging the weight of the evidence, an appellate court may not substitute
its view for that of the trier of fact. Rather, we 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 finder 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.
Thompkins at 387, quoting State v. Martin,
20 Ohio
App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
{¶ 26} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
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particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different
interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the
manifest weight of the evidence only in exceptional circumstances.
Martin at 175.
{¶ 27} “The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different.” Thompkins at 386.
However, where an appellate court determines that a conviction is not against the
manifest weight of the evidence, the conviction is necessarily based on legally sufficient
evidence. State v. McLoughlin, 2d Dist. Champaign No. 2017-CA-22,
2018-Ohio-2426,
¶ 8; State v. Million, 2d Dist. Montgomery No. 24744,
2012-Ohio-1774, ¶ 23.
{¶ 28} The trial court found Pacific guilty of violating R.C. 2911.13(A), which
provides: “No person by force, stealth, or deception, shall trespass in an unoccupied
structure, with purpose to commit therein any theft offense, as defined in section 2913.01
of the Revised Code, or any felony.” Pacific challenges the sufficiency of the State’s
evidence and the trial court’s conclusion regarding the weight of the evidence as to each
element of the offense.
A. Force, Stealth, or Deception
{¶ 29} First, Pacific claims that the State failed to establish that Pacific acted with
“force, stealth, or deception.” It appears undisputed that deception is inapplicable to this
case.
{¶ 30} “Force” is defined as “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1).
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Accordingly, the requirement of “force” is satisfied by “any effort physically exerted.”
State v. Hudson, 2018-Ohio-423,
106 N.E.3d 205, ¶ 16 (2d Dist.), quoting State v.
Johnson, 2d Dist. Montgomery No. 26961,
2017-Ohio-5498, ¶ 21. The opening of a
closed, but unlocked, door or window is sufficient to meet this requirement. E.g., State
v. Ball, 2d Dist. Clark No. 2017-CA-54,
2018-Ohio-605, ¶ 15 (defendant’s opening of
closed but unlocked window was sufficient to establish he entered by force); State v.
Cantrell, 2d Dist. Montgomery No. 26975,
2016-Ohio-7623, ¶ 12 (witness’s testimony that
defendant opened a screen door to walk through an open inner door of victim's apartment
was sufficient to prove “force”).
{¶ 31} The term “stealth” is not defined in the Ohio Revised Code, but we and other
Ohio appellate courts have defined it to mean “any secret, sly or clandestine act to avoid
discovery and to gain entrance into or to remain within” the relevant structure. State v.
Johnson at ¶ 18, citing, e.g., State v. Reeves, 2d Dist. Montgomery No. 16987, 1999 WL
129469 (Mar. 12, 1999). We have commented that evidence that a defendant entered
through a back entry secluded from view was sufficient to establish the element of stealth.
Reeves at *6, citing State v. Wolhfeil, 8th Dist. Cuyahoga No. 51983,
1987 WL 9133 (Apr.
2, 1987); Johnson at ¶ 19. The fact that an incident occurs in broad daylight does not
necessarily preclude evidence of stealth. See, e.g., Johnson at ¶ 20; In re Markunes, 2d
Dist. Montgomery Nos. 15601 & 15617,
1996 WL 531586 (Sept. 20, 1996) (evidence of
stealth existed where there was sufficient evidence that defendant’s conduct could be
construed as looking to see if the “coast was clear” before entering the open garage in
broad daylight).
{¶ 32} According to the State’s evidence at trial, the nursery property is a 7.5 acre
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parcel of land situated between Germantown Pike and Infirmary Road. Slater’s two-acre
residential property sits directly on Germantown Pike, and the nursery property surrounds
her property. Greenhouse buildings are located behind and to the north side of Slater’s
property. The two properties share a driveway off of Germantown Pike. Other than the
nursery property’s border with Slater’s property, wooded areas surround the nursery
grounds, and there is an unpaved footpath from Infirmary Road to the rear of the
greenhouse buildings.
{¶ 33} Donald Wang testified that he purchased the property in 2004, but he had
not operated it as a commercial nursery business. The greenhouse property was in
disrepair, with vines and foliage growing around and inside several of the connected
buildings. One structure was missing part of its roof. Wang, who lives in California,
testified that he secured the “openings” (not including the doors) to the building with
plywood. Some windows were covered with plastic mesh. The front of the building
along Slater’s property line had several doors and garage doors. Slater testified that the
two doors were closed and one overhead door was open “just a little crack.” None of the
entrances were easily accessible.
{¶ 34} Deputies were called to the scene at approximately 6:03 p.m. on July 7.
When Deputy Jamar Williams and his partner attempted to locate the voices and noises
reported by Slater, they were unable to access the greenhouse from the front, as the door
was closed and locked from the inside. The deputies eventually accessed the building
by peeling back some plexiglass panels that were attached to the building.
{¶ 35} Deputy Brian Krimmer approached from the rear of the greenhouse
property. He parked on Infirmary Road and walked through a “very heavily wooded” area
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with “a lot of underbrush.” Krimmer was unable to make entry to the buildings from the
back, so he walked around the rear building, which he described as being in “very rough
condition.” Krimmer occasionally encountered some missing windows, many of which
had green mesh. Deputy Krimmer eventually entered the structure by pushing aside
some mesh covering and going through a window.
{¶ 36} Deputies located a parked red vehicle belonging to one of the individuals
found in the greenhouse by a residence on Infirmary Road near the rear of the nursery
property. Slater testified that she had been home all day on July 7, and she did not see
anyone come onto her property or the portion of the greenhouse property near her home.
{¶ 37} Upon reviewing the evidence at trial, the trial court could have reasonably
concluded that Pacific entered the greenhouse building through stealth or force. The
State’s evidence indicated that Pacific and the others drove to the greenhouse property
in a red vehicle and parked on Infirmary Road, along the rear of the property. The court
could have reasonably found that Pacific traversed a heavily wooded area with significant
underbrush to reach the rear of the greenhouse buildings. The evidence further
indicated that Pacific gained entry to the greenhouse from the rear or side of the building,
an area not visible to Slater from her home. Slater, who lived adjacent to the front of the
greenhouse and shared a driveway with the property, was home during the day on July
7 and did not see anyone. The evidence thus reasonably supported a conclusion that
Pacific used stealth to reach and enter the greenhouse.
{¶ 38} The trial court also could have reasonably concluded that Pacific entered
the greenhouse by force. Wang testified that he had secured the openings to the
greenhouse buildings with plywood and “ma[de] sure that the accesses were basically
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covered over.” The responding deputies observed that some window openings were
covered with plastic mesh. The deputies testified that they had difficulty gaining entry
into the building; Deputy Williams entered by removing plexiglass panels, and Deputy
Krimmer pushed aside plastic mesh and climbed through a window opening. Although
the evidence suggested that Pacific entered the building from the rear or side, Slater
further testified that the doors on the front of the building had been closed when she
walked along the border between her property and the nursery property. The trial court
thus could have reasonably determined that Pacific had to use some degree of force to
enter the greenhouse.
B. Trespass
{¶ 39} Pacific next claims that the State failed to establish that he trespassed on
the greenhouse property. Specifically, Pacific asserts that a limited liability company was
the actual owner of the property and that there was no evidence that Wang had authority
to act on behalf of that company. He thus argues that the State failed to establish that
he acted without privilege or permission when he entered the greenhouse.
{¶ 40} For purposes of Pacific’s offense, trespass means “knowingly entering or
remaining on the land or premises of another, without a privilege or permission to be
there.” State v. Baker, 2016-Ohio-315,
58 N.E.3d 498, ¶ 21 (2d Dist.), citing R.C.
2911.21.
{¶ 41} The State addressed the trespass element of breaking and entering through
the testimony of Wang and Slater. Wang testified that he purchased the greenhouse
property in 2004, and the property was listed for sale at the time of trial. Wang had not
operated a commercial nursery on the property. Although Wang lived in California, he
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had visited the greenhouse property several times and secured the openings to the
building. Wang testified that he had a friendly relationship with Slater, the resident next
door to the property, and she informally looked after the property. Wang did not know
Pacific, and he did not give anyone permission to enter the greenhouse or to remove
items from the building. Wang acknowledged that he was behind on the taxes for the
greenhouse property, but he stated that he made several tax payments, including in 2014,
2015, and 2019.
{¶ 42} During her testimony, Slater identified Wang as the owner of the
greenhouse property. When asked if she had met the owner of the greenhouse property,
she responded that she had reached out to Wang after seeing several people taking items
from the greenhouse property. Wang had told Slater that he would come to look at the
property, and he advised her to call the police if she saw anyone else taking items from
the greenhouse. Slater testified that she called the police several times and she
contacted Wang when the police caught the people who were there.
{¶ 43} Construing the evidence in the light most favorable to the State, there was
sufficient evidence that Wang was the owner of the property, that he had not granted
permission to Pacific to enter the greenhouse and take things, and that Pacific was not
otherwise privileged to enter and remain on the premises. In addition, the State’s
evidence regarding how Pacific entered the property was sufficient to establish that
Pacific acted knowingly when he entered and remained at the greenhouse.
{¶ 44} At trial, Pacific offered two tax records for the nursery property (Def. Ex. C
& D). Both documents identified the owner of 5335 Germantown Pike as Germantown
Pike Investment Properties LLC. Pacific argues that Ohio law is “clear that there are
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distinct statutory provisions detailing when an individual may be authorized to act on
behalf of said legal corporate entity.” See R.C. Chapter 1705 (limited liability
companies). He asserts that the State failed to established “trespass” because “no
testimony was provided concerning any factual detail to support any individual’s lawful
right to act on behalf of the entity.”
{¶ 45} Wang was not asked about Germantown Pike Investment Properties LLC,
and he did not testify as to his status with that company. However, Defense Exhibit C,
a printout of “master information” for 5335 Germantown Pike from the Montgomery
County Treasurer’s website, indicated that tax-related mailings were to be sent to
“Germantown Pike Investment Properties LLC c/o Donald Wang” at Wang’s address in
California. Moreover, Wang expressly testified that he owned the property located at
5335 Germantown Pike, that he visited the property many times, that he performed
“clean-up” work at the property and secured it, that he communicated with Slater about
unauthorized entries onto the premises, and that he paid taxes on the property. The trial
court could have reasonably concluded that Wang was lawfully acting on behalf of the
limited liability company in performing these actions and that he also had authority to
grant or deny permission to be on the nursery property. The trial court’s conclusion that
Pacific trespassed when he entered the greenhouse was neither based on insufficient
evidence nor against the manifest weight of the evidence.
C. Unoccupied Structure
{¶ 46} Pacific next argues that the State failed to establish that he trespassed into
an “unoccupied structure.”
{¶ 47} The phrase “unoccupied structure” is not defined in R.C. 2911.13 or
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elsewhere in the Ohio Revised Code. State v. Fazenbaker, Ohio Slip Opinion No. 2020-
Ohio-6731, __ N.E.3d __, ¶ 7. The Ohio Supreme Court has used the definition of
“occupied structure” in R.C. 2909.01(C) to inform the inverse concept of “unoccupied
structure.” Id. R.C. 2909.01(C) defines “occupied structure” as
any house, building, outbuilding, watercraft, aircraft, railroad car, truck,
trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to
which any of the following applies:
(1) It is maintained as a permanent or temporary dwelling, even though it is
temporarily unoccupied and whether or not any person is actually present.
(2) At the time, it is occupied as the permanent or temporary habitation of
any person, whether or not any person is actually present.
(3) At the time, it is specially adapted for the overnight accommodation of
any person, whether or not any person is actually present.
(4) At the time, any person is present or likely to be present in it.
{¶ 48} The State’s evidence established that the structure at issue was a former
commercial greenhouse. The property was in disrepair, and there was no ongoing
business being conducted at the location. Pacific presented substantial evidence that
vines and other vegetation were growing in and around the greenhouse, that portions of
the building were missing its roof, and that some windows were missing. However, the
descriptions of the property provided by the State’s witnesses and the photographs of the
property show that the greenhouse remained a structure. The greenhouse does not
meet any of the definitions of an occupied structure. The trial court thus reasonably
concluded that the greenhouse constituted an “unoccupied structure” within the meaning
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of R.C. 2911.13(A).
D. Theft or Felony Offense
{¶ 49} Finally, Pacific argues that the State failed to present evidence of the value
of any property related to an alleged theft offense, and therefore the State failed to
establish that he was present at the property with the purpose to commit a felony.
{¶ 50} Pacific was found guilty of committing breaking and entering in violation of
R.C. 2911.13(A). Unlike R.C. 2911.13(B), which requires a purpose “to commit a felony,”
a charge under R.C. 2911.13(A) requires a purpose to commit “any theft offense” as
defined in R.C. 2913.01 or “any felony.” The State was not required to prove that Pacific
committed a felony theft offense.
{¶ 51} In this case, the State’s evidence supported a conclusion that Pacific
entered the greenhouse to commit petty theft, in violation of R.C. 2913.02, one of the
offenses listed in R.C. 2913.01. Of import, R.C. 2913.02 provides: “(A) No person, with
purpose to deprive the owner of property or services, shall knowingly obtain or exert
control over either the property or services in any of the following ways: (1) Without the
consent of the owner or person authorized to give consent[.]” Slater and the deputies
heard voices and mechanical noises prior to the deputies’ entry into the greenhouse.
When Deputy Williams located Pacific, Pacific was using a saw to cut something off of an
air conditioning unit mounted to the ceiling. (Deputy Krimmer thought it was a pump or
a motor.) From Pacific’s conduct, the trial court could have reasonably concluded that
Pacific trespassed “with purpose to commit therein any theft offense.”
{¶ 52} The trial court did not err in denying Pacific’s Crim.R. 29 motion, and
Pacific’s conviction was not against the manifest weight of the evidence. Pacific’s third
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and fourth assignments of error are overruled.
V. Discrepancy in Judgment Entry
{¶ 53} In his fifth assignment of error, Pacific raises that there is a discrepancy
between the sentence orally imposed and the court’s written judgment entry. Pacific
asks that we modify the judgment entry to reflect that he was convicted of a fifth-degree
felony and that his “alternate sentence” for violating community control is 12 months.
{¶ 54} It is well established that “a court speaks only through its journal entries, not
through its oral pronouncements.” State v. Smith, 2d Dist. Montgomery No. 26217,
2015-Ohio-700, ¶ 10. See also, e.g., State v. Henderson,
161 Ohio St.3d 285, 2020-Ohio-
4784,
162 N.E.3d 776, ¶ 39, citing State v. Hampton,
134 Ohio St.3d 447, 2012-Ohio-
5688,
983 N.E.2d 324, ¶ 15. In addition, a trial court lacks authority to reconsider its own
valid final judgment in a criminal case. E.g., State v. Raber,
134 Ohio St.3d 350, 2012-
Ohio-5636,
982 N.E.2d 684, ¶ 20; State ex rel. Dobson v. Handwork,
159 Ohio St.3d 442,
2020-Ohio-1069,
151 N.E.3d 613, ¶ 16.
{¶ 55} However, a nunc pro tunc entry is an appropriate vehicle for the trial court
to correct clerical or typographical errors in a judgment entry. State v. Donley, 2017-
Ohio-562, 85 N.E.3d 324, ¶ 103 (2d Dist.), citing Crim.R. 36; State v. Hibbler, 2d Dist.
Clark No. 2019-CA-19,
2019-Ohio-3689, ¶ 20. Accordingly, where a judgment entry
does not accurately reflect the sentence imposed at a sentencing hearing, the judgment
entry generally may be corrected by means of a nunc pro tunc entry.
{¶ 56} At the sentencing hearing, the court said that Pacific was found guilty of
breaking and entering, a felony of the fourth degree. However, a violation of R.C.
2911.13 is a felony of the fifth degree. R.C. 2911.13(C). Consistent with R.C. 2911.13,
-20-
the judgment entry states that Pacific was convicted of breaking and entering, a felony of
the fifth degree. Because the judgment entry accurately reflects the degree of Pacific’s
offense, his request to modify the degree of the offense in the judgment entry is moot.
{¶ 57} With respect to the prison sentence that the court could impose should
Pacific’s community control be revoked, the trial court orally informed Pacific that he had
an alternate sentence of 18 months in prison, which is the maximum prison sentence for
a felony of the fourth degree. See R.C. 2929.14(A)(4). The judgment entry, however,
states that the alternate sentence is 12 months, the maximum prison sentence for a felony
of the fifth degree. See R.C. 2929.14(A)(5). Given that Pacific asks us to modify the
alternate prison term to the term that is already stated in the judgment entry, this
requested modification is also moot.
{¶ 58} Pacific’s fifth assignment of error is overruled.
VI. Conclusion
{¶ 59} The trial court’s judgment will be affirmed.
.............
TUCKER, P. J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Carlo C. McGinnis
Hon. Richard Skelton
