COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71853 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CHARLES A. DAVIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-339406 JUDGMENT: CONVICTION MODIFIED AND CAUSE REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ARTHUR A. ELKINS, Assistant The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CAROLYN KAYE RANKE 1350 Illuminating Building 55 Public Square Cleveland, Ohio 44113 -2- 'DONNELL, J.: Charles A. Davis appeals from a judgment of the Cuyahoga County ommon Pleas Court, entered pursuant to a bench trial, in which the ourt found him guilty of one count of attempted aggravated burglary n violation of R.C. 2911.11 and R.C. 2923.02. For the reasons tated below we modify Davis' conviction and remand the case for esentencing. At nine o'clock in the morning, on April 22, 1996, as Sharon ordan departed for work through the back door of her home located t 904 Nela View in Cleveland Heights, Ohio, she saw a man, later dentifie d as Davis, standing on the back porch of her neighbor, vette Cole's home, inside the screen door attempting to get in. he had seen him in the neighborhood, but knew he neither lived in he home nor socialized with its occupants. When Davis saw Jordan atchin g him, he began to knock on the door and then left the esidence. Jordan then called the police. The Cleveland Heights Police Department dispatched officers to he scene, and when Davis saw them, he ran through several backyards orthof Nela View. As Officer John Crawford, responded to assist he other officers, and drove down Caledonia, a few blocks north of ela View, a resident alerted him that Davis had run into her arage. Crawford then went into the garage, spotted Davis lying on he ground underneath a car's front bumper, and ultimately arrested im. The Cuyahoga County Grand Jury indicted Davis for attempted ggravated burglary, and possession of criminal tools; he waived his -3- ight to a jury trial, and the court conducted a bench trial, onvicted him of attempted aggravated burglary, and on ecommendation of the prosecutor, nolled the remaining count. The rial court then sentenced him to a term of five to twenty-five earsat the Lorain Correctional Institution for his participation n this case. Subsequently, on December 13, 1996, the trial court issued a unc pro tunc journal entry correcting its November 27, 1996 entencing error by changing the maximum sentence to fifteen years n accordance with R.C. 2929.11(B)(2). Davis now appeals his November 27, 1996 conviction and assigns hree errors for our review. They are: I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. II. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AND IN ENTERING A FINDING OF GUILTY TO ATTEMPTED AGGRAVATED BURGLARY. III. THE TRIAL COURT ERRONEOUSLY SENTENCED DEFENDANT- APPELLA NT TO AN INDEFINITE SENTENCE OF 5 TO 25 YEARS WHERE THE PENALTIES FOR AN AGGRAVATED FELONY TO THE SECOND DEGREE CANNOT EXCEED A TERM OF 15 YEARS. Davis asserts that the evidence presented at trial demonstrated is mere presence at the residence, but did not prove that his ctions constituted a trespass by force, stealth or deception, or n intention to commit a theft offense or a felony, and is therefore nsufficient to sustain a conviction for attempted aggravated urglary. -4- The state argues, however, that it presented sufficient vidence to sustain a conviction for attempted aggravated burglary gainst Davis in this case. The issue then for our determination is whether the state roved that Davis committed the crime of attempted aggravated urglary beyond a reasonable doubt. The Ohio Supreme Court recently set forth the standard of eview for cases involving the sufficiency of evidence in State v. aylor (1997), 78 Ohio St.3d 15, at 18: In reviewing a record for sufficiency, [t]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trierof fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus (in part). R.C. 2911.11 defines aggravated burglary and states, in part: (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. R.C. 2923.02 defines attempt and states, in part: (A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense. Here, the evidence presented at trial established that Davis pened the screen door to the home and placed his hand near the oorkno b in an effort to gain access to the home; he also peered -5- nto basement windows of the home, but when he noticed the neighbor bservi ng him, he left the premises. Further, the evidence emonstrated that when Davis saw the police he fled into a garage nd hid beneath a car. Regardi ng Davis' claim that the state failed to prove his ntent in attempting to gain access to the Cole residence, we note hat in State v. Flowers (1984), 16 Ohio App.3d 313, the court noted t 315, *** it is difficult to ascertain the intent of a person in forcibly entering an occupied structure if he is apprehended before he commits any overt act inside the premises. Nevertheless, there 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. We agree. Clearly, the court's conclusion that the state roved this element of the crime is based upon a reasonable nference made from the evidence presented in this case. The evidence, however, fails to show at the time Davis stood n the back porch of Yvette Cole's home, that any person was present r likely to be present in the home, which is an essential element f the offense of aggravated burglary pursuant to R.C. 911.11(A)(3). Further, Jordan, testified that when she called the olice, she assumed no one was at home. (Tr. 15) In State v. Fowler (1983), 4 Ohio St.3d 16, the court stated, t p. 18: ***that proof that a permanent or temporary habitation or dwelling has been burglarized is alone insufficient to establish the fourth element necessary to support a conviction for aggravated burglary, i.e., that the -6- occupie d structure is one at the time of trespass in which any person is present or likely to be present. Therefore, since the state failed to present any evidence that ny person was present or likely to be present at the time Davis tood on the back porch, it failed to establish all of the essential lements of aggravated burglary and consequently, we conclude that he evidence is insufficient to sustain Davis' conviction for that rime. We are mindful, however, of R.C. 2945.79(D) which states, in art: ***if the evidence shows that the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime include d therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and pass sentence on such verdict or finding as modified, provided that this power extends to any court to which the cause may be taken on appeal. Accordi ngly, we have viewed the evidence contained in this ecord presented by the state and concluded it is sufficient to rove the essential elements of the lesser included offense of urglary as defined in R.C. 2911.12(A)(1), an aggravated felony of he second degree. Burglary, as defined there, states: (A) No person, by force, stealth, or deception, shall do any of the following: (1) Trespass in an occupied structure or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense or any felony. After reviewing the facts, we believe that Davis engaged in onduct which if successful would have resulted in the commission -7- f this crime. In accordance with our resolution of this assignment of error, he remaining assignments of error are moot. Accordingly, Davis' conviction for attempted aggravated urglary is modified to attempted burglary and the matter is emanded to the trial court, under the provisions of R.C. 2953.07, ith instructions to carry this order of modification into effect nd to impose the appropriate sentence for the crime of attempted urglary, an aggravated felony of the third degree in accordance ith the provisions of R.C. 2929.11(B)(3)(b). Judgment accordingly. -8- It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecting the Common Pleas Court to carry this judgment into xecution. The defendant's conviction having been affirmed, any ail pending appeal is terminated. Case remanded to the trial court or execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. AHRA, J., CONCURS; WEENEY, C.J., DISSENTS See Dissenting Opinion, weeney, C.J., attached) JUDGE TERRENCE O'DONNELL .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will e journalized and will become the judgment and order of the court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the ournalization of this court's announcement of decision by the clerk er App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71853 TATE OF OHIO : : PLAINTIFF-APPELLEE : D I S S E N T I N G : vs. : O P I N I O N : HARLES A. DAVIS : : DEFENDANT-APPELLANT : : ATE: DECEMBER 18, 1997 AMES D. SWEENEY, C.J., DISSENTING: I respectfully dissent from the majority's modification of the onviction and remand for re-sentencing on the offense of Attempted urglary. The majority bases its determination on an express finding that he original conviction of Attempted Aggravated Burglary was not upported by the sufficiency of the evidence. The parties at trial id not seek a review of any lesser included offenses. Given this ourt's majority analysis contained in State v. Waszily (Cuyahoga, 995), 105 Ohio App.3d 510, at 515, fn. 4, and the fact that the riginal conviction was not supported by the sufficiency of the .