COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69206 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JERRY BEYNUM : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-319933 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee:: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor PAUL J. DALEY, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ANTHONY J. VEGH J. PETER PARRISH 720 Leader Building Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Jerry Beynum appeals from a Common Pleas Court judgment, entered pursuant to a jury verdict, finding him guilty of aggravated burglary and theft. On December 19, 1995, Kim Wade and her two children returned to their home on Coit Road in Cleveland around 11:00 p.m. and noticed light coming from the dining room and the front door ajar. Because she heard a loud crash while approaching the house, Wade sent her son Darryl next door to call the police. Upon entering her house Wade discovered her VCR missing, a broken side window-screen, and a broken basement window. Vincent Wright, Wade's neighbor, also heard the crash and saw Beynum jumping from Wade's side window. Wright then chased Beynum through several backyards and at one point Wright got a good look at him because a motion sensor activated lights in one of the yards. Wright did not see him carrying anything at that time. Wright gave up his chase when Beynum climbed over a fence and returned to the Wade home where he described Beynum to Officer Walter Mruk who had arrived in response to the 9-1-1 call. About this time, Beynum stopped at a nearby home and asked the residents to call the police and report that he had been attacked. He explained to police who arrived in response to that call that after taking the bus home from work, he stopped at a - 3 - barbecue restaurant to buy a take-out dinner, and while walking home with his food, three young men attacked him and took his food and his wallet. At this time, Officer Mruk, who was taking Vincent Wright's description of the fleeing suspect, heard the description of Beynum broadcast over his radio. Noting the similarities between Wright's description of the suspect and the radio description of Beynum, Officer Mruk took Wright to Beynum's location where Wright identified Beynum as the man he chased from the Wade house and heard Beynum tell police he had been robbed of a VCR. The police, therefore, arrested Beynum and charged him with aggravated burglary and theft for the incident at Wade's home. After a two-day trial, a jury found Beynum guilty of both aggravated burglary and theft. Beynum now appeals and assigns the following as error for our review: THE TRIAL COURT ERRED IN OVERRULING DEFENDANT- APPELLANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE BECAUSE THE STATE FAILED, AS A MATTER OF LAW, TO ESTABLISH ALL THE ELEMENTS OF THE OFFENSES CHARGED IN THE INDICTMENT. Beynum argues the trial court erred in overruling his motion for acquittal pursuant to Crim. R. 29 because the state failed to establish that he intended to commit a theft offense while in the Wade house or that he knowingly obtained or exerted control over the VCR, and that the state based its case on the impermissible stacking of an inference on an inference. - 4 - The state, on the other hand, contends the court did not err in overruling the motion for acquittal because the evidence would convince the average mind of Beynum's guilt beyond a reasonable doubt. The issue, then, for our resolution is whether the trial court erred in denying Beynum's motion for acquittal. Crim. R. 29 governing acquittal states in part: The court * * * after the evidence on either side is closed, shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses. * * * And, as stated in the syllabus of State v. Bridgeman (1978), 55 Ohio St.2d 261: Pursuant to Crim. R. 29(A), 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. The test for sufficiency of the evidence raises a question of law to be decided by the trial court before the case goes to the jury. In reviewing the sufficiency of the evidence on appeal, we apply the standard announced in State v. Jenks (1991), 61 Ohio St.3d 259, where at paragraph two of the syllabus, the court held: 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 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 - 5 - prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Thus, the test for sufficiency involves viewing the probative evidence and inferences therefrom in a light most favorable to the prosecution. With these standards in mind, we next consider the state's burden to prove aggravated burglary and theft. R.C. 2911.11 defines aggravated burglary as trespassing by force, stealth or deception in an occupied structure with the purpose to commit theft when that structure is the personal habitation of a person who is likely to be present. R.C. 2913.02 defines theft as knowingly obtaining the property of another without consent and for the purpose of depriving the owner of that property. The evidence required to prove these elements may be direct, circumstantial, or both. Circumstantial evidence is the proof of facts or circumstances by direct evidence from which a jury may reasonably infer other related or connected facts which naturally and logically follow, according to the common experience of man. Ohio Jury Instructions 5.10. In this case, the state presented direct evidence of a broken basement window giving rise to an inference of unlawful entry; of a missing VCR, Beynum inside her home, and an opened front door giving rise to an inference that he removed it and - 6 - returned to her unoccupied home. In State v. Flowers (1984), 16 Ohio App.3d 313, the court stated at 315, "[T]here is a reasonable inference that one who forcibly enters a dwelling, or a business place, does so with the intent to commit a theft offense in the absence of circumstances giving rise to a different inference." This evidence, if believed, establishes beyond a reasonable doubt the elements of aggravated burglary in that Beynum knowingly trespassed by force or stealth in Wade's home at a time when someone was likely to be present with the intent to commit a theft offense. Further, the inference that Beynum removed the VCR does not constitute stacking an inference on an inference, but rather constitutes a parallel inference as recognized by the Ohio Supreme Court in Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St.329, where the court stated at paragraph two of its syllabus: An inference which is based in part upon another inference and in part upon facts is a parallel inference and, if reasonable, may be indulged in by a jury. This inference establishes beyond a reasonable doubt the elements of theft in that Beynum knowingly obtained Wade's VCR without her consent for the purpose of depriving her of it. Finally, as Ohio Supreme Court explained in Jenks, supra, this evidence need not be irreconcilable with any reasonable - 7 - theory of innocence in order to support a conviction as stated in paragraph one of its syllabus: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When 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. * * * After viewing all the evidence in a light most favorable to the prosecution, as we are required to do when considering a question of sufficiency, we conclude a rational trier of fact could have found the essential elements of aggravated burglary and theft proven beyond a reasonable doubt. Accordingly, the trial court properly denied Beynum's motion for acquittal, this assignment of error is overruled, and the judgment of the court is affirmed. Judgment affirmed. - 8 - 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 Common Pleas Court 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. KARPINSKI, J., and PATTON, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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, .