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State v. Gentile3/27/1997
JUDGMENT AFFIRMED.
Defendant-appellant James Gentile appeals from his conviction of a single count of vandalism, R.C. 2909.05, after trial by jury, alleging he was denied effective assistance of counsel due to cumulative errors made by his counsel at trial. Finding no reversible error in the record below, we affirm the decision of the trial court.
The record reflects that defendant Gentile was indicted on a single count of vandalism in violation of R.C. 2909.05, alleging that Gentile, by throwing a large rock through the front store window of his landlord's property, caused more than $300, but less than $5000, damage. He was arraigned and pled "not guilty." Jury trial commenced on March 6, 1996.
At trial, the state presented evidence from four witnesses to maintain its case. Ed Byszewski, the owner of the building, testified that he and his common-law wife, Mary Rash, lived in the upstairs front apartment of the building, which houses three apartments and has two storefronts on the ground floor. Rash was responsible for the property management and had maintained a "miscellaneous and antique shop" in the storefront for ten years.
Defendant Gentile had occupied the downstairs rear apartment for about one year prior to the vandalism occurrence. As landlords, Byszewski and Rash initially had no problems with Gentile as a tenant, but, eventually, he began causing problems, which included loud parties, noise, music and too many people at the apartment, causing Rash to serve him with a written eviction notice on July 19. After receiving the notice, Gentile began to threaten and menace Rash daily. She said he tried to burn part of the back porch, and he kicked the railings off the other porch. He spitefully kicked in the glass window of a door to "assist" Byszewski in gaining entry to one of the store units, he spit in Byszewski's face, he put up signs that claimed the property was "highley vialated" , and he threatened to purposely hurt himself on the property and "own everything that [Byszewski] own ." A few days before the August 3 incident, Gentile claimed to have been hurt on the property, and he named Byszewski, the property owner, as defendant in the personal injury lawsuit.
During the early morning hours of August 3, Rash had been standing at her front door for about half an hour because she had not been sleeping well. She had been looking across the street at her elderly mother's house as she was concerned because her mother's lights were on, but she was fearful of going out to check on her mother because of the problems she had been having with Gentile. She heard a crash, opened her front door, and saw Gentile in front of the building, about two feet from the broken window.
She watched as he ran around the building. As the lighting was very bright, she was able to see that he was wearing dark shorts, tennis shoes and no shirt. She went into Byszewski's room and told him that Gentile had broken the window and she was going to call the police. From there, she heard Gentile's side door shut.
Byszewski went out to the front porch, but although he could see that the window was broken, he did not see anyone. Rash then went across the street to call the police. Byszewski went downstairs and walked around the side of the building. Although Gentile's storm door was closed, because his inner door was open, Byszewski was able to see Gentile on the couch with the television on. The police arrived in a matter of minutes in response to Rash's call.
Officer Robert Simon of the Cleveland Police Department testified that about 3:00 a.m. on August 3, he and his partner responded to a call of a male breaking into a s
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