COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60162 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION SAM ALGERIO : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 243218. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Scott G. Salisbury Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Paul F. Markstrom, Esq. 208 Ohio Savings Building 22255 Center Ridge Road Rocky River, Ohio 44116 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Sam Algerio appeals the jury verdict which found him guilty of aiding and abetting aggravated burglary in violation of R.C. 2911.11, not guilty of theft under R.C. 2913.02. Appellant was sentenced to a term of five to twenty- five years incarceration. On June 21, 1989, John Glus left his residence at 7804 Goodman Avenue, Cleveland, Ohio, at approximately 9:00 p.m. and returned at 1:00 a.m. the next morning. Upon his return he discovered that his home had been ransacked; the rear door was laying in the back yard and the inner door had been kicked in; Mr. Glus also discovered that his VCR was missing. (T. 58-59.) The DeRuyter family lives across the street from Mr. Glus, and both Mrs. DeRuyter and her sixteen year old son, Jason, testified on behalf of the State. Mrs. DeRuyter testified that: she lives at 7811 Goodman Avenue; she returned home on the evening of June 21, 1989, between 10:00 and 10:15 p.m.; Sam and Chris Algerio lived next door to Mr. Glus; she heard noise in Mr. Glus' backyard; she heard wood breaking; she could not see faces but could see figures, and that you could hear the noise back and forth (T. 24); she had seen five people at the Algerio house that evening, including appellant and his wife, Chris (T. 27); she also heard the sound of someone climbing over the chain link fence between the appellant's and the victim's homes (T. 29-30); she could see the shadows or figures "snooping around the corner - 3 - of the house or maybe going back and forth or hanging around that area where John's back door is located" (T. 30-31); she could see people in the appellant's living room carrying things, but you could not tell what (T. 31). Jason DeRuyter testified that: on his way home he heard the sound of wood breaking; at approximately 10:00 p.m. he saw appellant walking with his dog; the noise from the victim's backyard sounded like big branches breaking (T. 43); he heard someone jump over the fence (T. 45); and that appellant and his wife were both home that evening (T. 46); when he learned Mr. Glus had been burglarized "It all fit together, I heard his door was busted down and I heard the wood break, so it kind of all fit." (T. 48.) Mr. Glus testified that when he discovered the condition of his home, he went to the Algerio house to inquire if they had heard anything. Appellant told Mr. Glus that the television and radio were on full blast; and that appellant then started smiling (T. 62); that appellant said he would make a statement if requested to. (T. 63.) Cleveland Police Detective James Smelko testified that the testimony of the DeRuyters in court was essentially the same as their statements to the police (T. 71); that in her interview, appellant's wife stated that she was not home most of the evening in question; and that she heard nothing unusual. (T. 72.) Appellant's first assignment of error. I THE APPELLANT'S CONVICTION OF AGGRAVATED BURGLARY SHOULD BE REVERSED AS IT WAS NOT - 4 - SUPPORTED BY SUFFICIENT PROBATIVE EVIDENCE (A) THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING THE APPELLANT'S MOTION FOR ACQUITTAL UNDER CRIMINAL RULE 29. The test for determining sufficiency of the evidence is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. State v. Martin (1983), 20 Ohio App. 3 172. Appellant argues that the jury verdict should be overturned as there was insufficient evidence to support his conviction for aiding and abetting aggravated burglary. R.C. 2911.11 defines aggravated burglary as: (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; * * * * (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. (B) Whoever violates this section is guilty of aggravated burglary, an aggravated felony of the first degree. - 5 - Appellant was convicted of aiding and abetting the aggravated burglary, and R.C. 2923.03 defines complicity: (A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; (4) Cause an innocent or irresponsible person to commit the offense. Although the prosecution does not have the burden to prove that a principal was convicted of the underlying offense, R.C. 2923.03(B), the prosecution must show that the offense was committed, and that a principal committed the offense. In State v. Sims (1983), 10 Ohio App. 3d 56, this court reviewed the standard to convict for complicity. To establish that appellant was an aider or abettor, the State was required to show he assisted, incited or encouraged another to commit the offense. The Sims court stated: However, the terms "aid" and "abet" are familiar and simple legal terms. To aid is to assist. To abet is to incite or encourage. Mere association with the principal is not enough. State v. Clifton (1972), 32 Ohio App. 2d 284 [61 O.O.2d 348]. Black's Law Dictionary (Rev. 4 Ed. 1968) defines an "aider and abettor" in the following terms: - 6 - "One who assists another in the accomplishment of a common design or purpose; he must be aware of, and consent to, such design or purpose. Peats v. State, 213 Ind. 560, 12 N.E.2d 270, 277. "One who advises, counsels, procures, or encourages another to commit a crime, himself being guilty of some overt act or advocacy or encouragement of his principal, actually or constructively present when crime is committed, and participating in commission thereof by some act, deed, word, or gesture, Turner v. Commonwealth, 268 Ky. 311, 104 S.W.2d 1085, and sharing the criminal intent of the principal. State v. Reedy, 97 W.Va. 549, 127 S.E. 24, 28. In the case sub judice, the prosecution did not present evidence that appellant assisted another in the accomplishment of a common design or purpose. There was no evidence that appellant was aware of or consented to the underlying crime. There was no evidence presented which demonstrated that appellant advised, procured, or encouraged another to commit the crime of aggravated burglary. The State did not meet its burden of proving the appellant was guilty beyond a reasonable doubt of the crime of aiding and abetting an aggravated burglary. See also State v. Young (August 31, 1989), Cuyahoga App. No. 55769, unreported. In this assignment of error, the appellant also argues that it was error for the trial judge to deny the appellant's Crim. R. 29 motion for acquittal. We agree. The State did not present sufficient evidence to demonstrate that appellant either committed aggravated burglary or aided and abetted another to do so, for that decision to be one for the jury to determine. - 7 - Appellant's first assignment of error is well taken. Appellant's second assignment of error. II THE JURY VERDICT FINDING THE APPELLANT GUILTY OF AGGRAVATED BURGLARY AND NOT GUILTY OF THEFT WHICH WAS AN ELEMENT OF THE AGGRAVATED BURGLARY WAS AN INCONSISTENT VERDICT WHICH SHOULD BE REVERSED. The jury's findings were not inconsistent, and no reversal based on this issue is required. For a conviction of aggravated burglary under 2911.11, the jury need only conclude that appellant trespassed with the intent to commit a theft offense. Appellant's second assignment of error is not well taken. Judgment is reversed, and appellant is ordered discharged as to this conviction. - 8 - This cause is reversed. It is, therefore, considered that said appellant(s) recover of said appellee(s) his 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. JOHN T. PATTON, P.J., and PATRICIA A. BLACKMON, J., CONCUR. JAMES D. SWEENEY JUDGE 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. .