COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59096 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MILTON JOHNSON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-226575 JUDGMENT: Modified, Affirmed as Modified, and Remanded for Resentencing. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public MICHAEL P. MALONEY, ESQ. Defender Assistant Prosecuting Attorney DONALD GREEN, ESQ. The Justice Center Assistant Public Defender 1200 Ontario Street Marion Building, Room 307 Cleveland, Ohio 44113 1276 West Third Street Cleveland, Ohio 44113-1569 - 1 - HARPER, J.: I. Appellant, Milton Johnson, was indicted by the Cuyahoga County Grand Jury on April 28, 1988 on one count of aggravated burglary, in violation of R.C. 2911.11 with an aggravated felony specification, and one count of theft, in violation of R.C. 2913.02 with a violence specification. On December 16, 1988, appellant was found guilty as charged by the jury. Appellant was sentenced on February 10, 1989 to the Orient Correctional Reception Center for a term of ten to twenty- five years on count one and six months on count two, to be served concurrently. II. Milton Johnson and his brother Danny Johnson lived at 3133 West 32nd Street in Cleveland, Ohio, at the home owned by Herta Pasternak. Ms. Pasternak testified that Mr. Johnson had lived at her house for quite some time. She testified that Mr. Johnson paid his rent in the past but had been in arrears. On March 28, 1988, Ms. Pasternak, in a written note, demanded that the two boarders pay their rent or move out of the premises. When she came home that evening, she noticed a video cassette recorder was missing and the window frame dented. John Neer, Ms. Pasternak's son-in-law, testified that he came home on the afternoon of March 28, 1988 at approximately 11:30 a.m. Mr. Neer, who also lived at 3133 West 32nd Street, came home during - 2 - his lunch break. Mr. Neer saw Milton and Danny Johnson load their belongings into a car. Mr. Neer testified that he observed the two boarders get into a car and drove off. He locked the house and went back to work at approximately 12:30 p.m. Mr. Neer testified that he checked the house after Milton and Danny left and found everything in order, including a video cassette recorder (VCR) in Milton and Danny's room. Karen Jones testified that she was a baby-sitter for one of Ms. Pasternak's grandchildren. On March 28, 1988, Ms. Jones picked up the child she baby-sits for from school at approximately 12:15 p.m. She further testified that she drove to her house on the afternoon in question by way of Ms. Pasternak's street. When she got to Ms. Pasternak's house, she slowed down briefly because the door was slightly opened. She looked up and saw Milton Johnson standing in the doorway holding a VCR. Lisa Maggerd testified that she is employed by Rent-A- Center. She stated that Rent-A-Center is the true owner of the VCR and that it was rented to Ms. Pasternak by her office. She did not know the exact cost of the VCR. Thomas Betzler testified that he drove his car to the Pasternak residence on West 32nd Street on March 28, 1988. He was there to help Danny and Milton get their things out of Ms. Pasternak's house. Mr. Betzler testified that after Danny's and Milton's clothes and bags were loaded into his car, he drove them to the east side of town at about 12:15 p.m. He did not see any VCR carried into the car by either Danny or Milton. Mr. Betzler - 3 - testified that he last saw Milton and Danny at about 12:45 p.m. on March 28, 1988. III. Appellant's assignments of error are as follows: "I. MILTON JOHNSON'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIME OF AGGRAVATED BURGLARY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. "II. MILTON JOHNSON WAS DENIED HIS FREEDOM WITHOUG [SIC] DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." Appellant, in his first assignment of error, argues that the trial court erred by permitting his conviction to stand when the state failed to prove his guilt beyond a reasonable doubt. Appellant contends that in order for a conviction of aggravated burglary to lie, the state must prove all elements of the crime beyond a reasonable doubt. Appellant specifically argues that the state did not prove the element of trespass because he is a tenant and had privilege to be present at the house. Appellant further argues that Ms. Pasternak could only evict him after a three-day notice to vacate has been served on him pursuant to R.C. 1923. Appellant cites Dayton Metropolitan Housing Authority v. Russel (1980), 16 Ohio Op. 3d 94, as authority that a "summons and complaint cannot be filed until at least three days after the notice is served". Appellant concluded that since he was still a tenant on the day in question, he can only be guilty of theft of his landlord's property. We disagree. This is not a forcible - 4 - entry and detainer action, so we shall refrain from discussing in detail landlord/tenant law. However, we hold that the R.C. 1923 notice requirement is inapplicable where a tenant voluntarily vacates a premises before his landlord files a complaint to have him evicted. In the within case, appellant received a note from his landlord asking him to pay his rent or vacate the premises. Appellant chose to voluntarily vacate the premises rather than to pay his rent. Therefore, the moment appellant vacated the premises, he was no longer a tenant as contemplated by the statute. The record reveals that appellant did not have keys to the house. When appellant moved all his things out of the house and Mr. Neer locked the door, he needed permission to re-enter the house. Appellant's failure to seek permission before entering the house constituted an unconsented and unprivileged entry and was punishable as a trespass. We note that this is not a typical case of a tenant who moved out and came back later to turn in his keys or who still had his keys, or a tenant who left his belongings in the house and came back to retrieve them. The state, therefore, presented sufficient evidence to show the defendant was a trespasser when he entered Ms. Pasternak's residence. Having decided that the evidence presented by the state was sufficient to show trespass, we must decide in light of other evidence presented whether the state proved other elements beyond a reasonable doubt to support a conviction of aggravated - 5 - burglary. We hold that the state did not so prove, and that appellant should have been found guilty of a lesser included offense of burglary. Constitutional Due Process requires that when the evidence adduced at trial is viewed in a light most favorable to the prosecution, the trier of fact should find all the essential elements of the offense of aggravated burglary beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Sorgee (1978), 54 Ohio St. 2d 264; Atkins v. State (1926), 115 Ohio St. 542. The Ohio Supreme Court in State v. Robinson (1976), 1 O.O.3d 61, 63-64, citing In Re Winship (1970), 397 U.S. 358, stated: "In criminal cases, the state has the burden not only to persuade the trier of fact that the defendant more probably than not committed the offense charged, but also to overcome any reasonable doubt of that fact. The state is constitutionally bound to prove beyond a reasonable doubt every fact necessary to constitute any crime for which it prosecutes a defendant." R.C. 2911.11 reads as follows: "(A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: "(1) The offender inflicts, or attempts or threatens to inflict physical harm on another; "(2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; "(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. - 6 - "(B) Whoever violates this section is guilty of aggravated burglary, an aggravated felony of the first degree." R.C. 2911.12 defines burglary as follows: "(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony. "(B) Whoever violates this section is guilty of burglary, an aggravated felony of the second degree." R.C. 2909.01 is referred to in both R.C. 2911.11 and 2911.12 and reads as follows: "Definitions. As used in sections 2909.01 to 2909.07 of the Revised Code, an 'occupied structure' is 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: "(A) Which is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied, and whether or not any person is actually present; "(B) Which at the time is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present; "(C) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present; "(D) In which at the time any person is present or likely to be present." In the committee comment under R.C. 2909.01, it is said: "This section supplies a definition of 'occupied structure' for use not only in connection with the arson offenses, but also for use elsewhere in the new code, e.g. section 2911.11 and 2911.12 (aggravated burglary and burglary). The definition's general - 7 - concept is that the actual or likely presence of a person in a structure, regardless of the nature of the structure itself, creates a more serious risk of harm from commission of arson, burglary, and related offenses, and thus warrants more severe treatment of offenders." In State v. Durham (1976), 49 Ohio App. 2d 231, the court held: "It becomes evident that the distinction between aggravated burglary and burglary thus turns not on the character of the habitation, but rather upon the existence of one or more of the distinguishing elements set forth in paragraphs (A)(1), (A)(2) and (A)(3) of R.C. 2911.11-- i.e., the likely presence at the time of the persons in the building, the use of weapons, or the threat of physical harm." In the case sub judice, the state failed to show that at the time appellant broke into Ms. Pasternak's house there was a minimal likelihood that a person will be present therein. Without this showing, appellant's conviction of aggravated burglary lacks an essential element of the crime. There is, therefore, insufficient evidence as a matter of law to uphold appellant's conviction on aggravated burglary. The state showed in the within case that the house burglarized by appellant was occupied by Ms. Pasternak, her daughter, son-in-law and her grandchildren. The implication of the state resting its case on only this showing is the underlying erroneous presumption that all it takes to convict on aggravated burglary is a showing that a permanent or temporary habitation or dwelling was burglarized. The Ohio Supreme Court in State v. Fowler (1983), 4 Ohio St. 3d 16, stated: "This court in State v. Wilson, supra, at page 56, held that the definitions of 'occupied structure' contained in R.C. 2909.01 are to be read disjunctively. Accordingly, we concluded in Wilson, at page 57, that - 8 - the elements of aggravated burglary that the state must prove are: (1) that the person trespassed by force, stealth, or deception; (2) in an occupied structure as defined in R.C. 2909.01 or in a separately occupied portion thereof; (3) with the purpose to commit therein a theft offense defined in R.C. 2913.01 or any felony; and (4) the presence of one of the three aggravating circumstances. In proving the second element of the offense, that the trespass was upon an 'occupied structure,' the state must prove the structure comes within one of the four definitions set out in R.C. 2909.01(A) through (D)." The Fowler court continued: "'If we were to agree with the appellant that [State v.] Kilby, supra [(1977), 50 Ohio St. 2d 21 (4 O.O.3d 80)], stands for the proposition that, once the state proves that a permanent or temporary habitation has been burglarized, it is presumed that a person is likely to be present, R.C. 2911.11(A)(3), as construed, would indeed violate the Due Process Clause in that it would unconstitutionally presume the existence of an element of the offense. [Citations omitted.]' State v. Wilson (1979), 58 Ohio St. 2d 52, 59 [12 O.O.3d 51]. (Emphasis added.)" Thus, in the case sub judice, the state has to prove that the fourth element of the Wilson court requirement is met, and that is, that at the time of the trespass by appellant, a person is present or likely to be present at Ms. Pasternak's home. The record shows that Ms. Pasternak goes to work in the morning and comes home between 5:00 and 6:00 p.m. Ms. Pasternak's daughter goes to work in the morning and comes home at 6:00 p.m. Ms. Pasternak's grandchildren are picked up by the baby-sitter and brought back home every day after 6:00 p.m. when their mother comes home. Mr. Neer testified that he goes to work in the morning and comes home between 6:00 p.m. and 7:00 p.m. with a lunch break at 11:30 a.m. when he is around the neighborhood. The record indicates that the burglary took place between 12:45 - 9 - p.m. and 1:15 p.m. when there was no likelihood that anybody would be at home, based on the individual work habits of the occupants of the house. As the court in Durham, supra, stated: "It is not, however, the knowledge of the defendant concerning habitation which is significant, but rather the probability or improbability of actual occupancy which in fact exists at the time of the offense, determined by all the facts surrounding that occupancy. "We conclude that where a person individually occupies an apartment and his usual and ordinary work habits take him away from that apartment regularly, during certain hours of the day, at the time there is a minimal likelihood that a person will be present therein. Therefore, the finding of aggravated burglary herein is based on insufficient evidence and, for such reason, is against the manifest weight of the evidence." We hold that in order for a conviction for aggravated burglary to lie, the state must present sufficient facts from which the jury can draw a permissible inference that at the time of the trespass there is a person present or a likelihood that a person would be present at the burglarized dwelling. The state satisfies this requirement when it presents evidence showing either that a person is present or that it is uncertain when the occupier(s) of the dwelling would be present. However, when the record conclusively shows that at the time of the trespass, the work habit of the occupier(s) keeps them away from the dwelling, thereby making it less likely that a person would be present at the dwelling, the state's burden is not met and a conviction for aggravated burglary cannot lie. Merely showing that a person or persons dwell in the structure is insufficient as a matter of law. - 10 - The state failed in the within case to present sufficient facts to enable the jury to draw a permissible inference that there is a likelihood that a person could be present at the Pasternak residence at the time of the burglary. Appellant's conviction of aggravated burglary should fail. See State v. Fowler, supra. However, there was sufficient evidence to support a finding by the jury of burglary pursuant to R.C. 2911.12 and to find the appellant guilty of such lesser included offense. "Accordingly, we act in accordance with R.C. 2945.79 (D), which reads: "(D) That the verdict is not sustained by sufficient evidence or is contrary to law; but if the evidence shows that the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and pass sentence on such verdict or finding as modified, provided that this power extends to any court to which the cause may be taken on appeal ***." "See State v. Butler, 11 Ohio St. 2d 23, 40 O.O.2d 43 (1967), State v. Creech, 5 Ohio App. 2d 179, 34 O.O.2d 311 (1964), State v. Mathews, 322 N.E.2d 289 (1974)." Durham, supra, at 285-286. It is, therefore, the judgment of this court that the judgment of the trial court, finding appellant guilty of aggravated burglary, be modified accordingly, without the granting or ordering of a new trial. It is further ordered that this cause be remanded to the trial court, under the authority of R.C. 2953.07, with instructions to carry this order of modification into effect and to impose the sentence as authorized - 11 - by R.C. 2911.12 and 2929.11, for a conviction of burglary. See Durham, supra; see also State v. Huntley (1986), 30 Ohio App. 3d 29. V. For his second assignment of error, appellant postulates that the trial court erred by permitting his conviction to stand when the state's evidence was against the manifest weight of the evidence. This court has the power to weigh the evidence, and if the case is a proper one and the question has been properly brought upon the record, it has a duty to do so. Hoover v. State (1914), 91 Ohio St. 41. See also State, ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. However, in light of our disposition of appellant's first assignment of error, appellant's second assignment of error is sustained to the extent that the insufficiency of the evidence resulted in the verdict being against the manifest weight of the evidence. The judgment of the trial court is modified, and as modified, the judgment is affirmed; further, the cause is remanded for resentencing consistent with this decision and the law. Judgment accordingly. - 12 - It is, therefore, considered that said appellee recover of said appellant its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN McMANAMON, P.J., and STILLMAN*, J., CONCUR. SARA J. HARPER JUDGE *Judge Saul G. Stillman, Retired, of the Eighth District Court of Appeals, sitting by assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .