COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69852 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JERRY KEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MARCH 27, 1997 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-318076 JUDGMENT : MODIFIED AND, AS MODIFIED, AFFIRMED IN PART AND REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public MICHAEL P. DONNELLY, ESQ. Defender Assistant County Prosecutor JEAN M. GALLAGHER, ESQ. 8th Floor Justice Center Assistant Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, OH 44113 100 Lakeside Place Cleveland, OH 44113-1569 - 2 - PATTON, J. Defendant-appellant, Jerry Key, appeals the jury verdict finding him guilty of aggravated burglary and theft. He claims his Crim.R. 29 motion for acquittal was improperly denied because there was insufficient evidence to support the aggravated burglary charge. On November 21, 1994, at 9:30 p.m., Thomas Laux parked his pickup truck in his driveway. Five hours later, at 2:30 a.m., he looked out his window and discovered the truck was missing. Laux reported the missing truck to the police. The next day, November 22, 1994 Robert Plascak returned to his home to find that it had been burglarized. Someone had stolen three of his rings, his watch, his father's retirement watch, a healing stick, a video recorder, and three-hundred dollars in change. Plascak's brother, John, testified at trial that he lived with his wife and children next door and was aware of the break-in. Two days later on November 24, 1994 at about 12:30 p.m. John and his children were leaving their home when John's daughter recognized the pick-up truck. John noted the license plate number and watched the truck pull in and out of several driveways. John dropped his children off and picked up his two brothers- in-law along with his nephew, Mike Kelly. The four of them proceeded back to the area where the truck was last seen. John spotted a police car and told the officer about the truck. They - 3 - eventually saw the truck parked behind a house and told this to the police officer who then called for back-up. After another police officer arrived on the scene, a man ran out of the house. The man tried to run but he was subdued by an officer and Mike Kelly. The man was identified as the defendant. The second home defendant broke into was owned by Robert and Cynthia Rowe. They testified they left their home at about 10:30 a.m. and when they returned later that evening they found their door open, a broken window in the garage, their T.V. and VCR on the kitchen floor, and a note from the police telling them about the break-in. The next day the Rowes went to the police department and identified as stolen several rings, a necklace, and two Canadian dollars. In addition, the police recovered Thomas Laux's truck and all of Robert Plascak's property which had been stolen two days earlier. Defendant was charged on seven counts: two counts of aggravated burglary, two counts of theft, two counts of aggravated burglary, and one count of receiving stolen property. At trial, defendant testified he remembered nothing regarding the burglaries and at the time they took place he was experiencing a great deal of stress in his life, compounded by drugs and alcohol. Defendant also admitted he had been previously convicted of receiving stolen property, drug abuse, attempted aggravated burglary, and fleeing and eluding. - 4 - The jury found defendant guilty of two counts of aggravated burglary and two counts of theft. He was then sentenced to two concurrent terms of twelve to twenty-five years, two concurrent terms of three to ten years, and a consecutive term of one to fifteen years for probation violation. This appeal timely followed. Defendant's first assignment of error states as follows: APPELLANT'S RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL ON AGGRAVATED BURGLARY WHEN THERE IS INSUFFICIENT EVIDENCE THAT ANY PERSON WAS PRESENT OR LIKELY TO BE PRESENT. Defendant argues he should not have been charged with aggravated burglary. He states the additional element that makes a burglary an aggravated burglary is that 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. 2911.11(A)(3). Defendant claims there was no evidence that anyone was likely to present at the time the houses were broken into and the thefts occurred. Therefore, he should not have been charged with aggravated burglary. The state argues there was sufficient evidence to convict defendant of two counts of aggravated burglary. Regarding the Plascak aggravated burglary, the state maintains Plascak was in and out of his home on the day in question plus his brother lived next door making it is easy to infer that a member of his brother's - 5 - household could have been in Plascak's house. Regarding the Rowe aggravated burglary, the state asserts this burglary occurred on Thanksgiving day and, on a holiday such as this, a family is likely to be in and out of the house all day. Under Crim.R. 29, a trial 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 proven beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 19, 23. Thus the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the court set forth the test a reviewing court should use when reviewing the sufficiency of the evidence: The relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, 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. State v. Eley (1978), 56 Ohio St.2d 169. - 6 - The offense of aggravated burglary under R.C. 2911.11 is defined 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: *** (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." The issue before us is whether the state presented sufficient evidence that Plascak and the Rowes were likely to be present in their homes at the time the burglaries occurred. In State v. Durham (1976), 49 Ohio App.2d 231, syllabus, the court stated, "[w]here a person individually occupies an apartment and his usual and ordinary work habits take him away from it regularly during certain hours of the day, at the time there is a minimal likelihood that a person will be present therein, and the finding of aggravated burglary, under R.C. 2911.11, on these facts alone is based on insufficient evidence." In State v. Kilby (1977), 50 Ohio St.2d 21, paragraph one of the syllabus, the Ohio Supreme Court stated, "[w]here 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 - 7 - temporarily absent, the state has presented sufficient evidence to support a charge of aggravated burglary under R.C. 2911.11." In a more recent case, State v. Fowler (1983), 4 Ohio St.3d 16, 19, the court stated that when evidence was presented that the occupants of the burglarized dwelling were home on the day of the crime, that both husband and wife occasionally worked at different locations, and that they were likely to come home at varying times, a permissive inference could be drawn by the jury regarding the likelihood of the occupants being present in the residence at the time of the burglary. This court recently considered the present issue in State v. King (May 30, 1996), Cuyahoga App. No. 68978, unreported. In King, the victim lived in an apartment with her two children and worked from 8:00 a.m to 5:00 p.m. Monday through Friday. She would leave the apartment at 7:00 a.m. each morning and return home at 5:30 p.m. Also, the victim stated she would have been home if one of her children were sick thereby creating a permissive inference that there was a likelihood the victim or her children may have been present in the residence at the time of the burglary. We sustained the conviction and held: "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 conviction for aggravated burglary must stand as the state has proven all of the necessary elements as set forth in Kilby, supra." - 8 - In King the record established, through the victim's testimony, all the necessary elements of aggravated burglary. In contrast, there was no testimony elicited from Plascak in the instant case which would establish whether Plascak was normally in and out of the house during the day, whether he or a member of his brother's household might be in the house at the time the burglary occurred, or whether Plascak was temporarily absent from the home at certain times. The only testimony elicited was that Plascak left early in the morning for work and did not return until about 10:30 p.m. because of classes he was taking. Simply put, the state never established Plascak's regular practice of being present at home at particular times during the day thereby failing to establish a likelihood that he may have been present in the house at the time the burglary occurred. Based on these facts we believe there was insufficient evidence which would convince the average mind of defendant's guilt of aggravated burglary beyond a reasonable doubt. Regarding the Rowes, their burglary satisfied the elements of aggravated burglary. The time of burglary was established as occurring at approximately 12:30 p.m., Thanksgiving day. Because of the holiday the Rowes work habits did not preclude them from being home and it is very likely that on a holiday a family, such as the Rowes, would not have a strict schedule and would be in and out of the house all day. In addition, there is no evidence in the record which reveals defendant had any knowledge of the Rowes' - 9 - schedule which is a factor the jury may consider. Id. at 7. These facts would permit the jury to infer the likelihood that the Rowes might have been present in their home at the time of the burglary. Thus, defendant's first assignment of error is sustained regarding the Plascak aggravated burglary conviction and overruled regarding the Rowe aggravated burglary conviction. Defendant's second assignment of error states as follows: THE JUDGMENT INACCURATELY STATES THAT THE TWO THEFT CONVICTIONS WHICH ARE FELONIES OF THE THIRD DEGREE ARE AGGRAVATED FELONIES. Defendant argues the journal entry indicating the jury's verdict improperly states that he was convicted of two counts of theft which are aggravated felonies of the third degree. Defendant claims R.C. 2913.02, which governs theft offenses, does not elevate theft offenses to aggravated felonies. In its brief, the state argues there is no error in the journal entry because "Revised Code 2913.01 which permits such an elevation is entitled `Theft; Aggravated Theft.'" The journal entry indicating the jury's verdict states: "We, the jury being duly impaneled and sworn, find the defendant, Jerry Key *** guilty of theft (PC) with AF specs and with violence specs, R.C. 2913.02 AF-3 as charged in counts 3 and 4" R.C. 2913.02, entitled "Theft," does not provide for aggravated felonies of the third degree. It provides for grand - 10 - theft and aggravated theft, a felony of the second degree, but not for aggravated felonies of the third degree. The state says Revised Code 2913.01 is entitled "theft; aggravated theft." This is not correct. R.C. 2913.01 is the definition section and does not mention aggravated theft at all. The state also contends that defendant's two prior convictions are the reason why his conviction was elevated from a third degree felony to an aggravated felony of the third degree. There is nothing in R.C. 2913.01 or 2913.02 which allows for the elevation of a theft offense to an aggravated felony of the third degree. Therefore, the journal entry of October 17, 1995 indicating defendant was guilty of theft an aggravated felony of the third degree should be corrected to say "guilty of theft a felony of the third degree." Defendant's second assignment of error is sustained. Judgment modified and, as modified, affirmed in part and reversed in part and remanded for the trial court to reduce the conviction for aggravated burglary of the Plascak residence to burglary. - 11 - 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 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. PORTER, J., CONCURS. BLACKMON, P.J. CONCURS IN JUDGMENT ONLY. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .