[Cite as State v. Brooks, 2016-Ohio-489.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102551




                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 MICHAEL J. BROOKS

                                                             DEFENDANT-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-584941-A

        BEFORE:          Jones, A.J., Kilbane, J., and Stewart, J.

        RELEASED AND JOURNALIZED: February 11, 2016
ATTORNEY FOR APPELLANT

J. Charles Ruiz-Bueno
36130 Ridge Road
Eastlake, Ohio 44097


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: John E. Jackson
        Gregory J. Ochocki
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:

       {¶1} Defendant-appellant Michael Brooks appeals from the trial court’s January 7,

2015 judgment, challenging his conviction and sentence.       We affirm in part, reverse in

part, and remand for resentencing.

I. Procedural History

       {¶2} In May 2014, Brooks, along with codefendant Sylvester Cotton, was indicted

in a multicount indictment. Counts 1 and 2 charged attempted murder; Counts 3 and 4

charged felonious assault; Counts 5 and 6 charged kidnapping; Counts 7 and 8 charged

aggravated robbery; and Count 9 charged aggravated burglary.         Counts 1 through 9 all

contained one- and three-year firearm, forfeiture of a weapon, and repeat violent offender

specifications, as well as notices of prior conviction.

       {¶3} Count 10 charged grand theft; Count 11 charged theft; Count 12 charged

petty theft; Count 13 charged improperly handling firearms in a motor vehicle; Count 14

charged having weapons while under disability; and Count 17 charged tampering with

evidence.   Counts 13 and 14 contained forfeiture of a weapon specifications.        Counts

15, 16, and 18 related solely to codefendant Cotton.

       {¶4} After discovery, the case proceeded to a joint trial.   Relative to Brooks, with

the exception of the having weapons while under disability, the notices of prior

conviction and repeat violent offender specifications, the case was tried to a jury. The

jury found Brooks guilty of all counts and firearm specifications as charged, and the court

found him guilty of having weapons while under disability and all of the notices of prior
conviction and repeat violent offender specifications.    The case immediately proceeded

to sentencing; the trial court sentenced Brooks to an aggregate 75-year prison sentence,

which included consecutive terms.

II. Facts

       {¶5} The victim, Michael Ewart, testified about the April 25, 2014 incident which

gave rise to the charges.   On that evening, sometime approximately between 8:30 and

8:40, Ewart returned home and parked his Orange Chevrolet Tahoe SUV on the street

near his apartment building.

       {¶6} Ewart testified that he normally entered and exited the apartment building

through the back door because the front door was generally locked.              As Ewart

approached the back door, he saw Brooks come “out of the back.”          Two other males

were with Brooks, one of whom was Cotton, and each had a gun.         Cotton “came around

the back” as Brooks was “coming in the hallway.”         At that same time, Brooks and the

other male “ran out the basement.”   Ewart testified that he did not know any of the males

prior to this incident.

       {¶7} Ewart testified that the trio took all the money he had in his pockets, which

totaled approximately $140, and then told him to get into his vehicle because they were

going to the ATM. All three men had their guns drawn as they walked to Ewart’s

vehicle.

       {¶8} When they got to the vehicle, Ewart initially got in the driver’s seat, Brooks

got in the front passenger seat, and Cotton and the other male were in the back seats.
However, the three perpetrators decided that they did not want Ewart to drive, so they

made him get in the back of the vehicle and Cotton drove.       The male in the back with

Ewart had his gun drawn on Ewart’s chest and told him not to move or “try anything.”

Brooks told him he was going to die. Ewart testified that Brooks was wearing a red

shirt, and that during the drive the other two perpetrators referred to Brooks as “Mike.”

       {¶9} Cotton drove to a nearby KeyBank. Cotton had Ewart’s KeyBank ATM

card, which he had taken from his wallet. Cotton went to the drive-through ATM

machine, and made Ewart tell him his password to use the card, and then, in three

separate transactions, Cotton withdrew funds totaling $560.       Surveillance video from

the bank captured Cotton withdrawing the money; he was wearing gloves and apparently

attempting to hide his face with his “hoodie,” which was up over his head.

       {¶10} After Cotton withdrew the money, he drove to an alleyway on East 31st

Street and Cedar Road in Cleveland. The drive took approximately 20 to 30 minutes

and included highway time.      Upon arriving at the alleyway, Brooks ordered Ewart to

take off all his clothes and leave them in the vehicle, then to get out of the vehicle, walk

down the alleyway away from the vehicle, and lay down on the ground.                  Ewart

complied.

       {¶11} As Ewart was laying on the ground completely naked, he heard about eight

or nine gunshots and realized he had been hit.    He heard three car doors closing and the

vehicle drive away.     He did not know who shot him, but testified that the three

perpetrators were the only people in the area at the time.             The police arrived
momentarily thereafter.

       {¶12} One of the responding officers testified that the police had been in the area

when they heard “several” gunshots.       They immediately responded to the area where

they had heard the gunshots and found Ewart.      One officer testified that Ewart was badly

bleeding; he said that he had not seen bleeding like that since he had served a tour of duty

in Iraq. He thought Ewart was going to die, and did what he could to save his life until

emergency medical assistance arrived.       Ewart told the police that he had just been

robbed and shot, and that the suspects fled in his orange Chevrolet Tahoe. Ewart was

transported by ambulance to the hospital. He suffered at least two gunshot wounds and

had to undergo lifesaving surgery.

       {¶13} Meanwhile, two of the police officers had left the scene in pursuit of

Ewart’s orange Tahoe.     The officers saw the vehicle and, after attempting to pull it over,

a high speed chase ensued.    The Tahoe eventually crashed into a building located on the

campus of Case Western Reserve University. The driver, Cotton, fled on foot, but was

caught by an officer in pursuit. Brooks, the front seat passenger, also attempted to flee,

but was immediately apprehended.      The officer testified that moments prior to the crash,

he saw a gun being thrown from the front passenger window.        The police did not see or

apprehend the third suspect. The booking photo of Brooks shows him wearing a tan,

rather than red, shirt, as Ewart testified he had been wearing.

       {¶14} The police investigated the scene of the shooting and recovered four bullet

casings in the area where Ewart had been found.          The gun thrown from the Tahoe
moments before the crash was also recovered.       After analysis, it was determined that the

four bullet casings from the shooting scene had not been fired from the gun found at the

crash scene.    It was further determined that a bullet recovered from Ewart’s body had

not been fired from that gun.1 No other weapons were recovered.               Gunshot residue

tests were performed on both Brooks and Cotton; Cotton tested positive for particles

indicative of gunshot residue; Brooks testified negative. None of either defendants’

clothing were tested for gunshot residue.

       {¶15} After his arrest, a pair of gloves was recovered from Brooks’s outer garment

pocket. Cash was recovered from Cotton — a total of $560, $440 of which was “pushed

into” a sleeve of his sweatshirt.

       {¶16} Ewart identified both Brooks and Cotton in photo lineups and at trial as two

of the three perpetrators who committed the crimes.

       {¶17} Brooks presented the testimony of his girlfriend, Antoinette Tatum

(“Tatum”).     Tatum testified that Brooks had been at her house in Garfield Heights on the

day before the incident, April 24, 2014, and spent the night there.             The following

afternoon, sometime approximately between 4:30 and 5:00, Tatum drove Brooks to his

mother’s house, which was also in Garfield Heights, so that he could shower. Later,

Brooks called Tatum to come pick him up, which she did; they then returned to her house.

 Tatum testified that at approximately 8:00 p.m., she drove Brooks back to his mother’s


       1
        The other bullet and/or fragments were not removed from Ewart’s body because the medical
professionals deemed it too risky.
house and did not have contact with him for the rest of the evening after that.

       {¶18} On the advice of counsel, Brooks did not testify at trial. But at sentencing,

he told the court that he was not involved in the crimes. According to Brooks, during

the time that the crimes were being committed, he was walking from Garfield Heights to

Cleveland — a walk he admitted would take approximately two hours — to visit a friend

whom he had not seen in years and was not even sure if she still lived at the house where

he was going. Brooks told the court that upon arriving at the house, his friend was not

home, so he called another friend for a ride.   The friend Brooks called was not available,

but told Brooks he would send someone else to pick him up. Cotton picked him up, and

shortly thereafter the police chased ensued.     Brooks denied even knowing Cotton and

also denied throwing a gun out of the vehicle’s window.

III. Law and Analysis

       {¶19} Brooks raises the following two assignments of error for our review:

       I. The evidence adduced at trial was insufficient to sustain a verdict
       against defendant-appellant.

       II. The trial court committed prejudicial error by failing to merge the
       charge of kidnapping into other crimes of similar import.

Sufficiency of the Evidence

       {¶20} In his first assignment of error, Brooks contends that the evidence was

insufficient to sustain the attempted murder and burglary convictions. He also contends

that the identification of him as being involved in the crimes was insufficient.

       {¶21} When assessing a challenge of sufficiency of the evidence, a reviewing
court examines the evidence admitted at trial and determines whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.      State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

         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.

Id. A reviewing court is not to assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.”

State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

A. Identification

         {¶22} Brooks contends that because he was booked wearing a tan shirt, and that

contradicted Ewart’s testimony that he had been wearing a red shirt while committing the

crimes, the evidence was insufficient to establish his identity.      We disagree.       Ewart

identified Brooks in both a photo lineup and in court. Ewart testified that he was able to

“clearly” see Brooks during the commission of the crimes and that the other perpetrators

referred to him as “Mike.”       There was sufficient evidence to identify him as being

connected to these crimes.

         {¶23} Further, we cannot consider Brooks’s contention that he had an alibi in our

sufficiency review.     The alibi contention was not presented during trial; rather, Brooks

stated it to the court at sentencing. The only testimony provided by the defense at trial

as to Brooks’s whereabouts on the evening in question was through his girlfriend, Tatum.
 Tatum’s account of his whereabouts ended at approximately 8:00 p.m. — which was

before the crimes commenced — when she dropped him off at his mother’s house.

       {¶24} On this record, there was sufficient evidence to support Brooks’s identity as

a perpetrator in these crimes.

B. Attempted Murder

       {¶25} Brooks contends that the evidence was insufficient to sustain the attempted

murder convictions because he was (1) “scientifically excluded from firing a gun that

night” and (2) the casings found at the shooting scene were determined to have not been

from the gun recovered from the crash scene, which the state argued Brooks had thrown

out the window.

       {¶26} Counts 1 and 2 of the indictment charged Brooks with attempted murder.

Count 1 alleged that he “did attempt to purposely cause the death of [Ewart].” Count 2

charged attempted felony murder and alleged that he

       did attempt to cause the death of [Ewart] as a proximate result of * * *
       committing or attempting to commit an offense of violence that is a felony
       of the first or second degree, to wit: Aggravated Robbery and/or Felonious
       Assault, in violation of Section 2903.02 of the Revised Code.

       {¶27} Upon review, for a reason not advanced by Brooks, we vacate the

conviction on Count 2 for attempted felony murder on the authority of State v. Nolan, 141

Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016. In Nolan, the Ohio Supreme Court

considered the following question: “Can a person be guilty of attempting to cause an

unintended death?” Id. at 456.    The court answered “no.”

       {¶28} In reaching its determination, the court considered the language of the
attempt- and felony-murder statutes.    The attempt statute reads as follows:

       (A) No person, purposely or knowingly, and when purpose or knowledge is
       sufficient culpability for the commission of an offense, shall engage in
       conduct that, if successful, would constitute or result in the offense.

R.C. 2923.02(A).

       {¶29} The felony-murder statute provides in pertinent part that

       (B) No person shall cause the death of another as a proximate result of the
       offender’s committing or attempting to commit an offense of violence that
       is a felony of the first or second degree * * *.

R.C. 2903.02(B).

       {¶30} Based on the language of the statutes, the court found that the attempt

statute requires that a person cannot commit an attempt offense unless he or she has acted

purposely or knowingly.       Nolan at 455.    Under the language of the felony-murder

statute, the court found that it “imposes in essence strict liability.” Id. at 456. Thus,

under the felony-murder statute, although “intent to commit the predicate felony is

required, intent to kill is not.” Id.

       {¶31} In light of the above, the court reasoned:

       an attempt crime must be committed purposely or knowingly and intent to
       kill need not be proven for the state to obtain a conviction for felony
       murder, so that a person can be convicted of that offense even though the
       death was unintended. * * * [But] it is impossible to purposely or
       knowingly cause an unintended death. Accordingly, we hold that
       attempted felony murder is not a cognizable crime in Ohio.

Id.

       {¶32} In light of the above, Count 2 is ordered vacated.   However, the vacation of

Count 2 does not affect the sentence as to that count because the trial court merged Count
2 with Count 1 and sentenced on Count 1.

      {¶33} We next consider Count 1, attempted murder.      In Nolan, the Ohio Supreme

Court made it clear that its finding in regard to a charge of attempted felony murder did

not apply to attempted murder.       Id. at 455.   Therefore, we consider whether the

evidence presented here was sufficient to support an attempted murder conviction.

      {¶34} In order to commit the offense of attempted murder as defined in R.C.

2903.02(A), one must engage in conduct that, if successful, would result in purposely

causing the death of another.    State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147,

922 N.E.2d 937, ¶ 25.     A defendant can be convicted of attempted murder under the

theory of accomplice liability. State v. Widner, 69 Ohio St.2d 267, 268-270, 431 N.E.2d

1025 (1982).    Under the theory of accomplice liability, anyone who is an accomplice to a

crime shall be prosecuted and punished as if he were a principal offender.           R.C.

2923.03(F).    An accomplice is a person “acting with the kind of culpability required for

the commission of the offense,” and can act by “aid[ing] or abet[ting] another in

committing the offense.” R.C. 2923.03(A)(2).

      {¶35} Brooks, conceding his presence for the sake of argument, contends that “in a

worst case scenario, the intent and steps taken by [him] were robbery and not murder.”

We disagree. Although the physical evidence did not demonstrate that Brooks was the

shooter, there was sufficient evidence that he aided and abetted the shooter.       Ewart

testified that all three assailants had guns on them throughout the ordeal, and during the

car ride Brooks told the victim that he was going to die. This record provided sufficient
evidence to support the Count 1 attempted murder conviction against Brooks.

C. Aggravated Burglary

          {¶36} Count 9 of the indictment charged aggravated burglary, stating, in part, that

Brooks “did, by force, stealth, or deception, trespass * * * in an occupied structure or in a

separately secured or separately occupied portion of an occupied structure, when Michael

S. Ewart, Jr., * * * was present * * *.”   See also R.C. 2911.11(A)(2).

          {¶37} Upon review, we find that the evidence was insufficient to support a

conviction for aggravated burglary against Brooks.      Ewart testified that generally no one

could enter his apartment building complex through the front door because it was locked.

 Therefore, Ewart customarily entered through the back door, which, presumably, was

unlocked.      Ewart testified that on the evening of the crimes, “I got to the back door, he

came out the back; and I saw a guy, and around the back.             And he came out the

basement with another guy. I saw him around the back.” As he was testifying, Ewart

was pointing to Brooks and Cotton.           Therefore, the assistant prosecuting attorney

followed up with questions as to who “he” referred to. Ewart testified that Brooks was

the first “he” Ewart referred to, meaning that Brooks was the one who “came out the

back.”

          {¶38} In reference to Cotton, Ewart testified that “[h]e came around the back.

When I was coming in the hallway, but when them two ran out the basement, he came

running back, coming out the door. When I turned to the right, I saw him standing

there.”
       {¶39} This testimony on exactly where the perpetrators were when Ewart

approached the back door is minimal and somewhat confusing, but construing the

evidence in a light most favorable to the state, as we are required to do, we find that there

was sufficient evidence that Brooks was, at some point, inside the apartment building, in

the basement.   But we do not find that there was sufficient evidence for an aggravated

burglary conviction.

       {¶40} Specifically, there was no testimony that the theft occurred inside the

apartment building.     The testimony was that the perpetrators were coming out of the

building as Ewart approached.     Ewart only testified that he was “coming in the hallway”;

he never testified that he actually made it into the building, or that the theft occurred

inside the building. We are not persuaded by the state’s contention that Ewart testified

that he was in the hallway during the encounter. The testimony that the state points to

was Ewart’s response to the state’s questioning of him as to the layout, in general, of the

hallway.   Ewart never specifically stated, however, that he was in the hallway when he

encountered Brooks or that that was where the theft occurred.       Thus, the evidence was

insufficient to support the aggravated burglary charge.

       {¶41} In light of the above, the first assignment of error is overruled in part and

sustained in part.     It is overruled as it relates to the conviction against Brooks for

attempted murder under Count 1; it is sustained as it relates to the conviction against

Brooks for attempted murder under Count 2 and aggravated burglary under Count 9.

Brooks’s sentence will not be affected by our decision as it relates to Count 2, attempted
murder, but it will be affected relative to Count 9, aggravated burglary.     On remand,

therefore, the trial court shall issue an amended judgment entry of conviction with the

deletion of convictions on Counts 2 and 9, and shall resentence Brooks with the deletion

of Count 9.

Merger

       {¶42} In his second assignment of error, Brooks contends that the trial court erred

by failing to merge the kidnaping charges in Counts 5 and 62 with the attempted murder,

felonious assault, or aggravated robbery.

       {¶43} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio

Constitution, prohibiting multiple punishments for the same offense. The statute states:

       (A) Where the same conduct by defendant can be construed to constitute

       two or more allied offenses of similar import, the indictment or information

       may contain counts for all such offenses, but the defendant may be

       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶44} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court created a two-part test to determine whether offenses are allied

       2
           The trial court merged the two kidnaping counts.
offenses of similar import under R.C. 2941.25.      Id. at ¶ 48.   The Johnson test required

the trial court to determine:   (1) whether it is possible to commit one offense and commit

the other with the same conduct, and (2) whether the offenses were committed by the

same conduct, or “a single act, committed with a single state of mind.” Id. at ¶ 48-49,

quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. If

both questions are answered in the affirmative, the offenses are allied offenses of similar

import and must be merged. Johnson at ¶ 50.

       {¶45} However, the Ohio Supreme Court recently recognized that the Johnson

two-part test does not offer the complete analysis necessary to determine whether

offenses are subject to merger rather than multiple convictions and cumulative

punishment.    State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16.

In Ruff, the Ohio Supreme Court identified the proper analysis in determining whether the

offenses merge or whether the defendant may be convicted of separate offenses under

R.C. 2941.25(B) as follows:

       A trial court and the reviewing court on appeal when considering whether
       there are allied offenses that merge into a single conviction under R.C.
       2941.25(A) must first take into account the conduct of the defendant. In
       other words, how were the offenses committed? If any of the following is
       true, the offenses cannot merge and the defendant may be convicted and
       sentenced for multiple offenses: (1) the offenses are dissimilar in import or
       significance — in other words, each offense caused separate, identifiable
       harm, (2) the offenses were committed separately, and (3) the offenses were
       committed with separate animus or motivation.

       At its heart, the allied-offense analysis is dependent upon the facts of a case
       because R.C. 2941.25 focuses on the defendant’s conduct. The evidence
       at trial or during a plea or sentencing hearing will reveal whether the
       offenses have similar import. When a defendant’s conduct victimizes
       more than one person, the harm for each person is separate and distinct, and
       therefore, the defendant can be convicted of multiple counts. Also, a
       defendant’s conduct that constitutes two or more offenses against a single
       victim can support multiple convictions if the harm that results from each
       offense is separate and identifiable from the harm of the other offense.
       We therefore hold that two or more offenses of dissimilar import exist
       within the meaning of R.C. 2941.25(B) when the defendant’s conduct
       constitutes offenses involving separate victims or if the harm that results
       from each offense is separate and identifiable.

Id. at ¶ 25-26.

       {¶46}      Brooks contends that there should have been a merger because Ewart

was “held at gunpoint and robbed of his belongings, then in the same flow of conduct

with a continued animus to commit aggravated robbery, he was taken in his vehicle to an

ATM for the purpose of continuing the robbery.”

       {¶47} The record does not support Brooks’s contention. Ewart testified that he

was initially confronted by Brooks and the others at gunpoint, and was robbed of his

wallet. Brooks and the others then forced Ewart to his car and drove him to the bank so

that they could withdraw money from his account.    At that point, the aggravated robbery

was over.

       {¶48} But Brooks and the others continued to forcibly detain Ewart, driving him at

gunpoint for at least 30 minutes.   They then went to an alley, where they ordered Ewart

to strip naked, and where he was shot.   The record indicates that the entire ordeal lasted

approximately two hours.    On this record, we find that a separate animus existed for the

crimes Brooks now contends should have merged. His second assignment of error is,

therefore, overruled.
Conclusion

       {¶49} Having found merit to the first assignment of error as it relates to the

attempted murder under Count 2, we reverse and remand for vacation of that conviction.

Further, having found merit to the first assignment of error as it relates to the aggravated

burglary conviction under Count 9, we reverse and remand for vacation of that conviction

and resentencing.   The judgment is affirmed in all other respects.

       {¶50} Affirmed in part; reversed in part; remanded for correction of judgment

entry of conviction and resentencing.

       It is ordered that appellant and appellee share the 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.



       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART
AND DISSENTS IN PART WITH SEPARATE
OPINION


MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:
       {¶51} I concur with the decision reached by the majority except for its disposition

of the aggravated burglary count.    I dissent from the decision to reverse that conviction.

The majority finds that the evidence presented was insufficient to sustain the conviction

for aggravated burglary, namely that the state failed to prove that the theft occurred inside

the apartment building. Construing the evidence in the light most favorable to the state

as we must, I find the evidence sufficient.

       {¶52} As the majority notes, the victim’s testimony regarding the burglary is

unclear.   However, the record is such that one could reasonably conclude that the theft

occurred as the victim entered his apartment building.      The following are excerpts from

the transcript that support this conclusion:

       [The court]: When you get out of your vehicle how do you enter your

       apartment complex?

       [The victim]: Like that. [Referencing an exhibit].

Tr. 170

                                               ***

       [The prosecutor]: Before we get to the truck, when [the three perpetrators]
       are standing in the apartment, are there any weapons?

       [The victim]: Yeah. There’s three guns drawn.

Tr. 173

                                               ***

       [The prosecutor]: Where was the [codefendant] in the apartment complex
       when this —
      [The victim]: He came around the back. When I was coming in the hallway,
      but when them two ran out the basement, he came running back, coming out
      the door. When I turned to the right, I saw him standing there.

      [The prosecutor]: So when you walk in your apartment, where is the
      basement?

      [The victim]: It’s to the right. To the right-hand side.

      [The prosecutor]: And what’s to the left?

      [The victim]: There’s nothing to the left. It’s a wall and a window and the
      stairs in front of me that goes up to the apartment, to my apartment.

      [The prosecutor]: These gentlemen have guns on you. What do they say at
      that point?

      [The victim]: “Give it up. Give us everything you got.” I said, “Take it. You
      can have it.” They took the money out of my pocket, and that’s when they
      made me go to the truck.

Tr. 175.

      {¶53} Although only the victim’s responses to the questions — not the questions

themselves — constitute evidence, at no time does the victim correct anything referenced

in a question that suggests the burglary took place anywhere but inside of his apartment

building (or at least in the doorway of his building).       Furthermore, the state did not

have to prove that the theft occurred inside of the apartment building.        The statute

provides that no person shall trespass “in an occupied structure or in a separately secured

or separately occupied portion of an occupied structure” when the victim was present.

      {¶54} R.C. 2909.01(C) defines “occupied structure” as any house, building,

outbuilding, * * * or other structure, * * * or any portion thereof, to which any of the
following applies: * * * (4) At any time, any person is present or likely to be present in

it.”   (Emphasis added.) See R.C. 2911.11(C)(1). Again, construing the evidence in a

light most favorable to the state, even if I were to agree that the evidence was insufficient

to prove that the offense took place when the victim was completely inside of the

apartment building, at a minimum the evidence demonstrates that the armed theft

occurred in an occupied structure.    Based on the foregoing, I find that the state’s case

was sufficient to prove aggravated burglary.
