COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68978 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION AARON D. KING : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 30, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-319,233 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN J. GALLAGHER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ARTHUR A. ELKINS, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Aaron D. King was found guilty after a jury trial of one count of aggravated burglary in violation of R.C. 2911.11 and one count of theft in violation of R.C. 2913.02. He now appeals, raising one assignment of error for this court's review: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF AGGRAVATED BURGLARY IN VIOLATION OF R.C. 2911.11(A)(3). For the reasons set forth below, we find no error in the judgment below and affirm. I. The events leading up to the arrest are substantially as follows: On December 9, 1994, at approximately 3:00 p.m., Monique Martin, a tenant in a first-floor apartment in the Garfield Garden Apartments complex located in Garfield Heights, Ohio, heard rat- tling from inside her children's bedroom. She went into the children's room, opened the curtain and saw a "tall, dark skinned, black male, young, around 20 years old, wearing a blue sweatshirt," fleeing from the room. Martin reported the prowler to the Garfield Heights Police Department and the apartment complex's leasing manager, Cassandra - 3 - Harris. The police responded to the call but shortly left the complex because they could not find any suspect. Harris told Kenneth Hicks, a maintenance supervisor, that Martin had reported seeing a prowler outside her apartment window. Hicks went to investigate, and, as he was approaching the reported site of the prowler, he noticed a white plastic garbage bag emerg- ing from a first-floor window of a nearby unit. The plastic garbage bag was followed by a man's head. The man noticed Hicks, at which time Hicks warned him that, "You better get out of there. I've called the police." After this warning, the man went back into the apartment. Hicks said he recognized the man as the appellant, a tenant of the complex. Hicks then used his master key to enter the rear of the building. Upon entering the building, Hicks saw the appellant exit from the front door, and he followed him. As he approached the appellant, the appellant stated, "Hey man, don't tell on me. I'll fade you. Don't tell on me. I'll fade you." Hicks understood this statement to be an offer of money in return for his not disclosing the appellant's identity to the police. Hicks then left the area, returned to the leasing office and told Harris that the prowler was the appellant and that he was in the apartment of Cachet Denton. The police were summoned back to the complex. After the police arrived, Hicks told them what had occurred and gave them the appellant's address. The police returned to the - 4 - office soon after with the appellant. Hicks identified him as the intruder. Later that same day, Hicks greeted Denton at her apartment when she arrived home from work and informed her that the appel- lant was found inside her apartment earlier. He accompanied her inside the apartment, where they found the lights left on, a cabinet door open, the television face down on the floor and the VCR in a plastic bag in the bedroom. The bedroom window showed indications that it had been tampered with. Denton lived in the apartment with her two children, ages two and four. At the time her apartment was broken into, Denton was at work at Koenig's Warehouse in Solon, Ohio, and her children were at school. Denton worked Monday through Friday, 8:00 a.m. to 5:00 p.m. She would leave the apartment at 7:00 a.m. and would not return until 5:30 p.m. II. Appellant contends that the evidence adduced at trial was insufficient to sustain a conviction for aggravated burglary in violation of R.C. 2911.11(A)(3). R.C. 2911.11(A)(3) provides as follows: (A) No person, by force, stealth, or decep- tion, 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: - 5 - * * * (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 pre- sent. (Emphasis added.) Specifically, appellant maintains that proof of a burglary of a permanent or temporary habitation or dwelling, without proof that a person is present or likely to be present, is insufficient to prove the elements of aggravated burglary. See State v. Wilson (1979), 58 Ohio St.2d 52, 59. He argues that the only evidence presented by the state to prove this element was Denton's testimony regarding her weekday work schedule, which appellant insists was insufficient to show that Denton was "like-ly to be present" at the time of the burglary. The Ohio Supreme Court, in State v. Jenks (1991), 61 Ohio St.3d 259, set forth the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence and held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would 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. (Cite omitted.) Jenks, paragraph two of the syllabus. - 6 - In State v. Kilby (1977), 50 Ohio St.2d 21, 25, the Ohio Supreme Court set forth that which constitutes sufficient evidence in an aggravated burglary case: Where the state proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and out on the day in question, and that such house was burglarized when the family was temporarily absent, the state has presented sufficient evidence to support a charge of aggravated burglary under R.C. 2911.11. (Emphasis added.) Id. at paragraph one of the syllabus. However, the fact that a permanent or temporary habitation has been burglarized does not give rise to a presumption that a person was present or likely to be present. State v. Fowler (1983), 4 Ohio St.3d 16, 17. In the case sub judice, although the occupants were not at home when the offense occurred, the record establishes that the apartment was regularly inhabited, that the occupants were in and out on the day in question and that the occupants were temporarily absent when the apartment was burglarized. Therefore, a convic- tion for aggravated burglary must stand as the state has proven all of the necessary elements as set forth in Kilby, supra; see, also, State v. Fowler, supra; State v. Blackmon (Jan. 2, 1992), Summit App. No. 15099, unreported (six counts of aggravated burglary upheld where two of the victims were at work, one was out of the house and two others were out of town at time of burglaries); State v. Sanders (May 24, 1989), Hamilton App. Nos. C-870596, C-870598, C-870639, unreported (conviction for aggravated burglary upheld - 7 - although victim was at work and her child at a babysitter's house at time of burglary); State v. Stevens (Mar. 22, 1994), Muskingham App. No. 93-30, unreported (evidence that occupiers were away on camping trip ten miles from their home was sufficient to support a finding that someone was likely to be present when the crime occurred). But see, State v. Johnson (Oct. 10, 1991), Cuyahoga App. No. 59096, unreported, in which the court held that where the record conclusively showed that the work habits of the occupiers kept them away from the dwelling at the time of the trespass, a conviction for aggravated burglary could not lie. The case sub judice is distinguishable from the Johnson case because Ms. Denton testified that she would be home if she or one of her children were sick. From this testimony, a permissive inference could have been drawn by the jury regarding the likelihood of Denton or her children being present in the residence at the time of the burglary and thereby confronting the very danger that the statute was designed to minimize. Kilby, supra, at 25; Fowler, supra, at 19. Moreover, there is nothing in the record indicating that appellant had any knowledge of Denton's schedule or the "likeli- hood" of her or her children's presence in their apartment. While defendant's knowledge concerning habitation is not controlling, it is a factor which may be considered by the factfinder. In this case, for all the appellant knew, Denton could have been sitting in her living room. The fact that she was not doing so at the precise - 8 - moment of entry was clearly fortuitous and should not reduce the gravity of his crime. State v. Kilby, supra, at 25. For the foregoing reasons, the appellant's sole assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, J. CONCURS SARA J. HARPER, P.J. DISSENTS (See attached opinion) JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 64632 STATE OF OHIO : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION AARON D. KING : : : Defendant-Appellant : DATE: MAY 30, 1996 SARA J. HARPER, J., DISSENTING: I vehemently disagree with the majority's conclusion that the state proved the "present or likely to be present" element of the offense of aggravated burglary. Finding that appellant's convic- tion should be modified to burglary for this reason, I dissent from the affirmance of his conviction for aggravated burglary. It is fundamental that the state must have proved every necessary element of the crime charged, aggravated burglary, beyond a reasonable doubt. See In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368. After reviewing the evidence in a light most favorable to the prosecution, this court must ask whether any reasonable trier of fact could have found the essential - 2 - elements of the crime beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. The majority answers this question in the affirmative, a conclusion that totally annihilates the distinction between the offenses of burglary and aggravated burglary. In appellant's sole assignment of error, he submits that the state's evidence was insufficient to sustain a conviction for aggravated burglary, in violation of R.C. 2911.11(A)(3). Appel- lant asserts that proof of a burglary of a permanent or temporary habitation or dwelling, without proof that a person is present or is likely to be present, is insufficient to prove the elements of the offense. Specifically, he argues that Denton's testimony regarding her weekday routine fails to support the "person is present or is likely to be present" element of aggravated bur- glary. The majority finds that appellant's knowledge as to whether anyone would be present in Denton's apartment when he entered it, while not controlling, is a factor to be considered when determin- ing the sufficiency of the state's evidence. Contrary to the majority's belief, appellant's actual knowledge as to the Dentons' habitation is insignificant to this assignment of error. See State v. Durham (1976), 49 Ohio App.2d 231; State v. Johnson (Oct. 10, 1991), Cuyahoga App. No. 59096, unreported. Unlike in State v. Kirby (1977), 50 Ohio St.2d 21, there was no evidence presented with regard to appellant's knowledge, a point recognized by the - 3 - present majority. Compare, State v. Broden (Dec. 26, 1991), Summit App. No. 15119, unreported (fortuitous hindsight does not reduce gravity of crime where defendant walked up and down victims' street and, after victims left their home, knocked on door, broke window, reached in, unlocked door, and then entered home). A person is likely to be present when a consideration of all of the circumstances would seem to justify a logical expectation that a person could be present. State v. Green (1984), 18 Ohio App.3d 69, 72. A court must focus on the probability or improbability of a person actually being present during the time of the offense. See Durham, supra; State v. Boals (Mar. 24, 1993), Summit App. No. 15814, unreported; Johnson, supra; State v. Tucker (Aug. 1, 1990), Lorain App. No. 89CA004533, unreported; and State v. Najeway (Oct. 26, 1988), Summit App. No. 13489, unreported. The Supreme Court of Ohio, e.g., stated: Where the state proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and out on the day in question, and such house was burglarized when the family was temporarily absent, the state has pre- sented sufficient evidence to support a charge of aggravated burglary under R.C. 2911.11. State v. Kilby (1977), 50 Ohio St.2d 21, 361 N.E.2d 1336, paragraph one of the syllabus. State v. Fowler (1983), 4 Ohio St.3d 16, 19. See State v. Wilson (1979), 58 Ohio St.2d 52. This court dealt directly with the issue presented by appel- lant in State v. Colon (Dec. 17, 1992), Cuyahoga App. No. 61253, unreported, and Johnson, supra. We examined at great length in - 4 - Johnson the nature of the offense of aggravated burglary and what the state needed to present as evidence in order to prove its case. We stated: [I]n order for a conviction for aggravated burglary to lie, the state must present suf- ficient facts from which the jury can draw a permissible inference that at the time of the trespass there is a person present or a like- lihood 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 habits of the occupier(s) keep 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. (Emphasis added.) In the present case, the majority first asserts that the record demonstrates the following activity at Denton's apartment on the date of the offense: "*** although the occupants were not at home when the offense occurred, the record establishes that the apartment was regularly inhabited, that the occupants were in and out on the day in question and that the occupants were temporarily absent when the apartment was burglarized." I wish reasonableness would permit the reproduction of Denton's testimony in toto to demonstrate that the testimony fails to support the "in and out on the day in question" observation. - 5 - The majority then cites to cases which demonstrate, in gener- al, the necessary elements for an aggravated burglary conviction: Fowler and Kilby, supra, in addition to the unreported cases of State v. Stevens (Mar. 22, 1994), Muskingham App. No. 93-30, unreported; State v. Blackmon (Jan. 2, 1992), Summit App. No. 15099, unreported; State v. Sanders (May 24, 1989), Hamilton App. Nos. C-870596, C-870598, unreported. The cited cases, though not thoroughly controlling the majority's affirmance of appellant's conviction, nonetheless are easily distinguished from the present case. In Fowler, the defendant was convicted of aggravated burglary following a late night entry into a residence. Testimony was offered by a victim that she and her husband were home during the day but left at 3:30 p.m. to go to work. They remained at work until approximately 4:30 a.m., after which they went to a friend's house to play cards. A break-in was discovered when they returned home at about 6:30 a.m. Id., 16. Further testimony was offered that the husband and wife worked at different locations and were not at home together at all times. Id., 19. However, the speci- ficity of this evidence does not compare to Denton's testimony in the present case, which was totally imprecise. In Kilby, there was direct evidence that the inhabitants of the burglarized residence were in and out of the residence on the date of the burglary. They were, in fact, visiting their neigh- bor's house at the time. Id., 23-25. The probability that the - 6 - inhabitants would likely be present in their residence was "very likely" and "with practical certainty" under the circumstances. No such circumstances existed in the present case. In Stevens, the family who lived in the burglarized residence was camping on the date of the burglary at a campground that was ten miles from their home. Their regular routine was to stay at the campground for the entire weekend, but testimony revealed early returns on prior occasions due to inclement weather. Since the burglary occurred in December and there was absolute evidence that early returns occurred in the past upon specified conditions -- snow and inclement weather--the "likely to be present" element of aggravated burglary was proven by the state. Considering the non- specificity of Denton's testimony in the present case concerning her children's illnesses, Stevens does not support an affirmance of appellant's conviction for aggravated burglary. In Blackmon, the defendant was adjudged responsible for a string of aggravated burglaries. Each of the victims testified to their whereabouts or the likelihood of their presence in their respective dwellings on the dates of the incidents. Specifically, the testimony included: one victim arrived home while the defen- dant was still inside; a second victim was at work, but her hus- band or children were home on certain days, albeit not on the day in question; another victim was "just out with her husband and son"; a neighbor and a daughter were taking care of two other - 7 - victims' homes. Once again, the totally variable testimony of Denton does not equate with the testimony in Blackmon. In Sanders, the residents were not at home at the time of the incident. However, evidence established that the family was merely absent from the apartment and was in and out on the day of the burglary. For the same reason, Blackmon does not support appellant's aggravated burglary conviction, nor does Sanders. In each of these cases, testimony was offered to demonstrate, with some probability, no matter how minimal, that either the owner or someone with permission was likely to be present in the burglarized dwelling. Herein, Denton's testimony was that she is sometimes home with her children when either one or both are ill. Therefore, on every work day of the year, 24 hours a day, she and her children are likely to be present in her dwelling. Anyone can be in his or her dwelling for any reason at any time or day of the year. However, this does not establish the individual's likeli- hood of being present in the dwelling for purposes of R.C. 2911.11. The majority attempts to rationalize its conclusion further by distinguishing the present case from Johnson, supra. Since I authored Johnson, I am intimately familiar with the reasoning behind the conclusion that Johnson was wrongly convicted of aggra- vated burglary. I can, therefore, state with ultimate confidence that for purposes of analyzing the present case under R.C. 2911.11 and Jenks, the two cases are not distinguishable with regard to the - 8 - paucity of evidence relating to the "present or likely to be present" element of aggravated burglary. The state had to prove that at the time of appellant's pres- ence in Building 4621, Apt. No. 107, a person was present or likely to be present in the residence. The record shows that Cachet Denton worked during the week from 8:00 a.m. to 5:00 p.m. Her two children attended school during the weekday. The state did not present any evidence that Denton routinely returned to the residence during the weekday, e.g., that she ate her lunch at home. The remote possibility that Denton would be home because she or her children were ill amounts to a minimal likelihood that she and her children would be present during the day. The majority's unjustified reliance on Denton's testimony that she was sometimes home with her children when they were ill will inevitably lead to unfortunate results. Take the following illustration for example: a burglary victim testifies at an aggravated burglary trial that she is forgetful; she, therefore, turns around on occasion while en route to work and heads back home, e.g., for a forgotten file. This evidence, which is as nebulous as that offered by Denton, would allow a conviction for aggravated burglary under the majority's analysis if the burglar happens to be in the individual's dwelling during the regular workday even though the individual was not forgetful on that particular day. - 9 - The state failed to show that anyone was present or likely to be present in the apartment at the time when appellant entered it. The state, therefore, failed to prove an essential element of the offense of aggravated burglary. Compare, Kilby, supra (evidence sufficient where family occupying residence was in and out of home on day in question); State v. Adams (1991), 74 Ohio App.3d 140 (evidence sufficient where victims lived away from home for sever- al weeks but husband returned periodically to survey and monitor repair work); Green, supra (evidence sufficient where occupant lived elsewhere but returned regularly to make repairs, clean, and remove remaining items of personal property); Durham, supra (evi- dence insufficient when individual lived alone and work habits regularly kept him away from permanent residence during certain hours of the day); State v. Tippie (May 3, 1993), Athens App. No. 91-CA-1511, unreported (evidence sufficient where burglarized residence was victim's and his family's secondary residence and there was no established daily pattern of use); State v. Lowers (Mar. 26, 1992), Washington App. No. 91-CA-3, unreported (evidence sufficient where occupant was usually at home or shopping on off day from work); State v. Hanifon (Jan. 24, 1992), Lake App. No. 90- L-15, 173, unreported (evidence sufficient where victim was not subject to daily routine which took her away from home but was "in and out of the house" on the day of the burglary); Broden, supra (evidence sufficient where, in part, victims were out for a drive at time of burglary); State v. Sisco (July 2, 1991), Jefferson App. - 10 - No. 90-J-9, unreported (evidence sufficient where burglarized mobile trailer was periodically inhabited by owner and visited daily by owner's son when owner not present and two or three times a week when owner present). The General Assembly saw fit to distinguish burglary from aggravated burglary by requiring the additional element as dis- cussed supra. The legislature's obvious intent in penning the distinction was to require the state to prove the additional element beyond a reasonable doubt in order for an aggravated burglary conviction to be supported by the evidence. The judicia- ry's function is to give meaning to the additional element. The repercussions from the meaning given to it by the present majority greatly distress me because the majority stretches the parameters of the element to the point of obliteration, and in total disre- gard of the structure seen fit by the legislative body of this state. Notwithstanding my conclusion that appellant's conviction for aggravated burglary is not supported by sufficient evidence, the record contains sufficient evidence to support a conviction for burglary in violation of R.C. 2911.12. The judgment finding appellant guilty of aggravated burglary should have been modified pursuant to R.C. 2945.79(D), without the granting of a new trial. This cause should then have been 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 - 11 - authorized by R.C. 2911.12 and 2929.11, for a conviction of burglary. See Durham, Colon, and Johnson, supra. .