COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61253 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOSE COLON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 17, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-258146 JUDGMENT: Modified, and as Modified, Affirmed; Remanded for Resentencing. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR., ESQ. Cuyahoga County Prosecutor 75 Public Square Building ANTHONY L. MANNING, ESQ. Suite 1016 Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Jose Colon, appeals from his conviction for aggravated burglary following a jury trial in the Court of Common Pleas of Cuyahoga County. Appellant assigns four errors for review in which he challenges the trial court's denial of his motion for acquittal and its instructions to the jury. A review of the record reveals that the trial court did err in its instructions to the jury since the state failed to prove an essential element of aggravated burglary. I. Appellant, his wife and her child resided in the upper level of a two family home located at 4076 West 50th Street, Cleveland, Ohio. The wife and daughter of the landlord and owner, Thath Sam, lived in the lower half of the home ("the Sam residence"). On September 21, 1990, at approximately noon, Barbara Krakovsky observed appellant in the kitchen of the Sam residence from her home located directly next door at 4080 West 50th Street. Mrs. Krakovsky was alerted to her neighbor's home by the noise of appellant's vehicle which was parked in the driveway; the appellant usually parked only in the street. The vehicle was nevertheless parked in the driveway with the trunk, hood and doors open. Mrs. Krakovsky further testified that the appellant wore black gloves as he placed a large stereo speaker into his car. She telephoned her husband and returned to the window just in - 3 - time to see appellant drive away. Mrs. Krakovsky took down appellant's vehicle's license plate number. Sam arrived at 4076 West 50th Street at about 4:30 p.m. on September 21, 1990. He discovered that his stereo equipment, valued at $1,290, was missing, including a large speaker like the one seen by Mrs. Krakovsky. Some jewelry was also missing. Sam's property was never recovered. Patrolman Emerito Montalvo responded to the call of a reported theft at the Sam residence. After a brief investigation, he arrested the appellant. The first witness to testify for appellant was Jorge Pagan, appellant's employment supervisor. He testified that appellant was at work on September 21, 1990. Appellant's time card reflected that he arrived at work at approximately 7:35 a.m. and left at 4:09 p.m. Employees, however, were not required to punch out for lunch. Furthermore, Pagan could not verify that appellant was at work after 9:30 a.m. since Pagan left the job site for the day by that time. Appellant's wife, Tina Marie Colon, also testified on his behalf. She stated that appellant came home for lunch on September 21, 1990 at about 12:15 p.m. She explained that the trunk of their vehicle was open because appellant placed laundry bags inside it; the hood was open because appellant checked the vehicle's oil. Mrs. Colon drove her husband to work after lunch and denied there was any stereo equipment in the vehicle at that time. - 4 - The events of September 21, 1990 resulted in the indictment of appellant for one count of aggravated burglary with aggravated felony specifications and one count of theft with a violence specification. After the jury returned guilty verdicts on both counts, the trial court merged the two counts and sentenced appellant to a term of ten to twenty-five years. II. For his first and third assignments of error, the appellant contends that: "I. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION FOR JUDGMENT OF ACQUITTAL WHERE THE EVIDENCE DID NOT DISCLOSE THAT THE HABITATION INVOLVED WAS THAT OF THATH SAM AS ALLEGED IN THE INDICTMENT. "III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED THE MOTION FOR JUDGMENT OF ACQUITTAL AS THE PROSECUTION FAILED TO EXCLUDE REASONABLE THEORIES OF INNOCENCE." Motions for acquittal are governed by Crim.R. 29(A) which provides as follows: "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." Pursuant to this rule, a court shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Evans - 5 - (1991), 63 Ohio St.3d 231, 248. Accord, State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. A. Appellant, in his first assignment of error, avers that the state failed to demonstrate that Thath Sam used 4076 West 50th Street as his permanent or habitual residence. He bases this claim on Sam's testimony that he and his wife were currently separated and that he was renting accommodations at 3305 Henninger. Since the indictment rendered against appellant set forth that Sam lived at 4076 West 50th, appellant now argues that the trial court erred in not granting his Crim.R. 29 motion premised upon the discrepancy in the indictment. He uses this same argument in claiming that the state failed to prove that appellant took either Sam's jewelry or stereo equipment as stated in the indictment. A variance between an indictment and the proof in support thereof is not ground for acquittal unless the trial court finds that the variance is material to the merits of the case or prejudicial to the defendant. See, R.C. 2941.26. The misidentification of a victim, e.g., is not a variance which is either material to the merits of the case or prejudicial to the defendant. See, State v. Banks (May 16, 1985), Cuyahoga App. No. 48622, unreported; State v. Manning (Oct. 9, 1986), Cuyahoga App. Nos. 50882, 50883, unreported. This court finds the allegation that Sam used 4706 West 50th Street as his habitual or permanent residence is not the sort of - 6 - variance which requires acquittal. See, State v. Shoemaker (1917), 96 Ohio St. 570. The record amply demonstrates that Sam's wife and daughter remained at this residence which Sam owned and maintained while he rented at another location. Appellant who lived upstairs was not prejudiced by this variance. The record further reveals Sam testified that the missing stereo equipment belonged to him. Since the theft count in the indictment stated that appellant took both jewelry and stereo equipment belonging to Sam, there is no prejudicial variance. Appellant's first assignment of error is overruled. B. Appellant, in his third assignment of error, argues that the state did not exclude reasonable theories of innocence such as his being given permission by Sam's wife to be in the lower level of the residence located at 4706 West 50th Street. He asserts that the state merely relied on circumstantial evidence which is insufficient to support his conviction and required the trial 1/ court to grant his motion for acquittal. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the court held that: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would 1/ We recognize that there was direct evidence from Mrs. Krakovsky that appellant was in the Sam residence. However, this does not mean that appellant could not have been given permission from Sam's wife to be there or to take the stereo equipment. - 7 - convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." The Supreme Court of Ohio in Jenks thus overruled State v. Kulig (1974), 37 Ohio St.2d 157, and held that "[w]hen the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction." Jenks, paragraph one of the syllabus. After reviewing the evidence in the instant case in a light most favorable to the prosecution, it is evident that a rational trier of fact could have found that appellant was in the Sam residence without anyone's permission. Mrs. Krakovsky not only observed appellant in the lower level, she also observed him wearing black gloves and removing a piece of stereo equipment. It is reasonable to infer that appellant was not given permission to do so. Accordingly, appellant's third assignment of error is overruled. III. For his second assignment of error, appellant avers that: "II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO INSTRUCT UPON THE LESSER INCLUDED OFFENSE OF BURGLARY." Appellant asserts that the evidence adduced at trial warranted the inclusion of the jury instruction on the lesser included offense of burglary, included in the offense of - 8 - aggravated burglary. Appellant requested this instruction contrary to the state's argument that he waived this error on appeal. R.C. 2911.11(A) 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." R.C. 2911.12(A) defines the offense of 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." Both R.C. 2911.11 and 2911.12 refer to R.C. 2909.01, which sets forth the following: "Definitions. As used in section 2909.01 to 2909.07 of the Revised Code, an 'occupied structure' is any house, building, *** 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; - 9 - "(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 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." This court dealt directly with the issue presented by appellant in State v. Johnson (Oct. 10, 1991), Cuyahoga App. No. 59096, unreported. Therein we examined at great length the nature of the offense of aggravated burglary and what the state needs to present as evidence in order to prove its case by focusing on State v. Fowler (1983), 4 Ohio St.3d 16, and State v. Wilson (1979), 58 Ohio St.2d 52. We held as follows: "*** 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 in insufficient as a matter of law." - 10 - Thus, here, the state had to prove that at the time of appellant's presence in the lower half of 4706 West 30th Street, a person was present or was likely to be present in the lower half of the residence. The record shows that Sam left the residence at 7:30 a.m. every morning with his daughter. He did not return there until 4:30 p.m. every day. Sam testified that his wife left the residence at 6:00 a.m. every day and returned at 4:00 p.m. Finally, when asked, "So usually and normally there's nobody home during the day, correct?", Sam responded, "No, nobody home." The record thus indicates that the burglary took place at around noon when there was no likelihood that anybody would be in the lower half of the residence. The state, therefore, failed to prove an essential element of aggravated burglary as it failed to do in Johnson. Furthermore, the evidence that appellant's wife was present in the upper half of the residence at the time he entered the lower half is insufficient to prove this essential element. Any allegation that R.C. 2911.11 does not require the "person is present or likely to be present" evidence be presented with regard to the "separately secured or separately occupied portion" of an "occupied structure" directly disregards the intent of the aggravated burglary statute. Hence, it cannot be argued that the state only needs to prove a person was present or likely to be present in either of two apartments in a duplex house to show that "the occupied structure involved is the permanent or - 11 - temporary habitation of any person, in which at the time any person is present or likely to be present". In State v. Durham (1976), 49 Ohio App.2d 231, the court thus concluded, at 235: "*** 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." (Additional emphasis added.) Therefore, the Durham court expressed that in an aggravated burglary prosecution which involves a "separately secured or separately occupied portion" of an "occupied structure", in other words an apartment, the state needed to show that a person was present or likely to be present in the apartment which is burglarized or in which there is an attempted burglary. To allow any other evidentiary standard to exist results in the following extraordinary example. There exists an apartment building consisting of twenty floors, each floor containing twenty-five units for a total of five hundred units. An individual trespasses in Apt. No. 1 on the northwest side of the building to commit a theft offense on a Monday morning. The evidence reveals that Apt. No. 1's occupant is never present in the apartment from 9:00 a.m. to 4:00 p.m., Monday through Friday. The evidence further reveals that the entire building is empty from 9:00 a.m. to 4:00 p.m., Monday through Friday except for one person on the twentieth floor in Apt. No. 500 on the southeast side of the building. She works the evening shift from 6:00 p.m. to 2:00 a.m., and is, therefore, - 12 - in her apartment nearly every Monday morning. The individual who trespassed in Apt. No. 1 is later arrested for aggravated burglary. Since one of the purposes of R.C. 2911.11 is to punish a defendant for the potential harm of a dwelling's occupant[s], the prosecution of this individual in this example for the possibility of causing harm to someone twenty floors above and over ten apartments down the hall, would clash with the intent of 2/ the statute. Concerning jury instructions on lesser included offenses, it has been consistently held that: "*** a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. [Citations omitted.]" State v. Thomas (1988), 40 Ohio St.3d 213, paragraph two of the syllabus. Moreover, as noted in State v. Wilkins (1980), 64 Ohio St.2d 382, 388: 2/ See Committee Comment to H511, which provides in relevant part: "*** "Under former law, distinctions among types of breaking and entering offenses were generally predicated on one or more of three factors: whether the offense was committed in daylight or nighttime; the type of property entered; and the offender's specific reason for entering. The prime distinguishing factor among such offenses in the new code, however, is the relative potential for harm to persons. "Since aggravated burglary carries the highest degree of risk that someone may be harmed, it is the most serious of the three breaking and entering offenses in the new code. "***" (Emphasis added.) - 13 - "The persuasiveness of the evidence regarding the lesser included offense is irrelevant. If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to defendant." Here, since the state failed to show that anyone was present or likely to be present in the lower apartment at the time when appellant entered the premises, the state failed to prove an essential element of aggravated burglary. It follows, therefore, that the trial court was required to instruct the jury on the lesser included offense of burglary. Appellant's second assignment of error is thus sustained. We find that the elements necessary for a conviction of aggravated burglary are not present. Pursuant to App.R. 12 (B), we modify the conviction to burglary, R.C. 2911.12, and remand for resentencing. IV. Appellant, in his fourth assignment of error, contends that: "THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT INSTRUCT AS TO THE ISSUE OF THE CASE BUT INSTRUCTED THE JURY IN ABSTRACT TERMS." Appellant asserts that the trial court erred in its instructions to the jury by omitting the name of the victim. R.C. 2945.11 requires a trial court to charge the jury with all the law required to return a verdict. State v. Mitchell (1989), 60 Ohio App.3d 106. Beyond the error in the trial court's charge to the jury as discussed in appellant's second assignment of - 14 - error, its instruction on the offense of aggravated burglary was proper as it encompassed the necessary elements. Appellant's fourth assignment of error is overruled. Judgment is modified and as modified is affirmed. Cause is remanded for resentencing. - 15 - This cause is affirmed as modified and remanded for further proceedings consistent with this opinion. It is, therefore, considered that the parties shall share the costs equally. 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. DYKE, P.J., and BLACKMON, J., CONCUR. SARA J. HARPER 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. .