[Cite as State v. Richardson, 2014-Ohio-2055.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100115



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                             DESMOND RICHARDSON
                                                       DEFENDANT-APPELLANT




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


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CR-12-563826

        BEFORE: Boyle, A.J., Keough, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                        May 15, 2014
ATTORNEY FOR APPELLANT

Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, Ohio 44123


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.

       {¶2} Defendant-appellant, Desmond Richardson, appeals his conviction and

sentence, challenging     (1) the sufficiency and the weight of the evidence, (2) the trial

court’s failure to merge the two offenses at sentencing, and (3) the imposition of

consecutive sentences.     We find that the state failed to prove the essential elements to

support a conviction for second-degree burglary under R.C. 2911.12(A)(2), but find that

the evidence supported a conviction on a lesser included offense of burglary, as a

third-degree felony, under R.C. 2911.12(A)(3).     We affirm in part, reverse in part, and

remand with instructions for the court to modify Richardson’s conviction and impose a

new sentence.

                                Procedural History and Facts

       {¶3} Richardson was indicted on one count of burglary, in violation of R.C.

2911.12(A)(2), which carried a notice of prior conviction and repeat violent offender

specification, and one count of petty theft, in violation of R.C. 2913.02(A)(1).

Richardson pleaded not guilty to the charges and proceeded to a jury trial on all charges

but the specifications, which were tried to the bench.         The following evidence was

presented at the jury trial.

       {¶4} Olivia Jones testified that on June 14, 2012, she returned to her ground-level

apartment located in Richmond Heights shortly after 3:00 p.m. and discovered that her
front door was unlocked. Upon entering her apartment, Jones noticed that all her closets

had been opened and that her television was gone.          Jones further testified that her

window was unlocked despite normally locking it.         Jones telephoned the police and

reported the break-in.

       {¶5} Detective Sergeant Darren Porter testified that he investigated the reported

incident and obtained a video surveillance tape from the apartment’s management

company, which consisted of one disk with three different camera angles, including the

building’s lobby and outside the victim’s window. The video surveillance captured the

perpetrator going through Jones’s apartment window. Prior to the perpetrator entering

the apartment, the camera captures a clear picture of a man entering and exiting the lobby

three times. At one point, the man is seen looking into the victim’s apartment. Shortly

thereafter, the perpetrator, whose face is not visible but matches the same build and height

of the same man seen earlier entering and exiting the lobby three times and looking into

the victim’s window, is then seen entering the victim’s outside window and going inside

the apartment.

       {¶6} Upon further investigation, Sgt. Porter learned from maintenance employees

at the apartment complex that they believed the man seen in the video resided in another

apartment in the complex.     Sgt. Porter requested the lease to that apartment, which

identified Dondreya Crump as the sole leasee.      After not reaching anyone at Crump’s

apartment, Sgt. Porter later visited Crump at her employment but did not learn the identity

of the person who resided with her. At trial, Sgt. Porter identified Crump as someone
sitting in the courtroom.

       {¶7} According to Sgt. Porter, he eventually learned the man’s identity in the video

through an anonymous source in the rental office, who identified Desmond Richardson.

Sgt. Porter testified that he ran Richardson’s name, pulled up his driver’s license

photograph, and then compared the photograph to the video surveillance, determining that

they were a match.

       {¶8} The state also offered the testimony of Kelly Markosky, the property manager

of the apartment complex. Markosky testified that Richardson is the boyfriend of Crump,

a resident who lived on the fourth floor of building H — the same building of the apartment

complex where the victim’s apartment is located.        Markosky explained that she observed

Richardson and Crump together on several occasions.

       {¶9} Markosky further testified that she obtained the security video footage after

Jones reported a burglary and gave the video to the Richmond Heights Police Department.

 The state played the video surveillance tape for the jury and offered still-photographs

taken from the video surveillance.          Markosky identified Richardson in the video

surveillance, noting that, although Richardson changed his shirt and put on a baseball hat

later in the video surveillance, he was the same person easily identified earlier based on

the same (1) stature, (2) height, (3) legs, (4) arms, (5) shoes, and (6) shorts.

       {¶10} The jury ultimately found Richardson guilty on the two counts. The state

also produced evidence of Richardson’s prior conviction for burglary on November 17,

2003, in Case No. CR-03-444353. Relying on this evidence, the trial judge separately
found Richardson guilty of the notice of prior conviction and repeat violent offender

specifications.     Prior to sentencing, the trial court referred Richardson for a presentence

investigation report.     Richardson, however, refused to participate.        At sentencing, the

trial court imposed eight years and a $250 fine on the burglary count; 180 days and a $250

fine on the petty theft charge, which the trial court ordered suspended; and six years on the

repeat violent offender specification, for a total prison term of 14 years.

       {¶11} Richardson appeals, raising the following four assignments of error:

             I. The trial court erred to the prejudice of the appellant in denying
       the motion for dismissal pursuant to Rule 29 of the Ohio Rules of Criminal
       Procedure, in that the evidence presented was insufficient as a matter of law.

              II.    The verdict of guilty was against the weight of the evidence.

              III. The trial court erred to the prejudice of the appellant by not
       finding that burglary and theft are allied offenses of similar import, and by
       sentencing him concurrently but separately for each one.

              IV. The trial court abused its discretion and erred to the prejudice of
       appellant by sentencing him to a total of fifteen years imprisonment
       amounting to consecutive terms of eight and six years respectively, in that
       the consecutive terms are excessive for the purposes set forth in Ohio
       Revised Code Section 2929.11(A) and (B) and are not necessary to protect
       the public.

                            Sufficiency and Weight of the Evidence

       {¶12} In his first assignment of error, Richardson argues that the state failed to

present sufficient evidence to convict him of second-degree burglary.            Relying on the

same arguments he raises in his sufficiency challenge, he further argues in his second

assignment of error that his burglary conviction is against the manifest weight of the

evidence.   We will address these assignments of error together.
       {¶13} When an appellate court reviews a record upon a sufficiency challenge, “‘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.’”            State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶14} While the test for sufficiency requires a determination of whether the state

has met its burden of production at trial, a manifest weight challenge questions whether

the state has met its burden of persuasion.   State v. Thompkins, 78 Ohio St.3d 380, 390,

678 N.E.2d 541 (1997).       When a defendant asserts that a conviction is against the

manifest weight of the evidence, an appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and

determine whether, in resolving conflicts in the evidence, the factfinder clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered. Id. at 387.

       {¶15} Richardson was convicted of a single count of burglary, a violation of R.C.

2911.12(A)(2), which provides as follows:

              No person, by force, stealth, or deception, shall * * * [t]respass in an
       occupied structure or in a separately secured or separately occupied portion
       of an occupied structure that is a permanent or temporary habitation of any
       person when any person * * * is present or likely to be present, with purpose
       to commit in the habitation any criminal offense.

       A. Identity of the Perpetrator
       {¶16} Richardson argues that the state failed to present sufficient evidence to

establish that he was the perpetrator.     He contends that the identification evidence was

lacking.   We disagree.

       {¶17} The state presented the testimony of Markosky, who identified Richardson in

the video surveillance as the perpetrator entering the victim’s apartment.       Apart from

Markosky’s testimony, the state presented the video surveillance as well as

still-photographs, allowing the jury to view firsthand Richardson entering and exiting the

apartment building three times within a short period of time and even looking into the

victim’s apartment window at one point. And although the video surveillance did not

capture a clear picture of Richardson’s face upon his entering the victim’s window, it

reveals that the person has the exact same build as Richardson and appears to be wearing

the exact same shorts and shoes. Construing this evidence in a light most favorable to the

state, we find that the state met its burden proof to establish Richardson was the

perpetrator of the burglary.

       {¶18} We further find no merit to Richardson’s argument that the identification of

him is against the manifest weight of the evidence. His claim that the jury may have been

confused by the in-court identification of his alleged girlfriend does not render the verdict

against the weight of the evidence.      To the contrary, this evidence further bolstered the

state’s case and the evidence that Richardson’s girlfriend resided in the apartment

building. As for the state’s failure to obtain any positive identification through the partial

fingerprint recovered from the windowsill, Det. Porter testified that there “wasn’t enough
points of positive analysis on the print” so he never submitted for identification. The lack

of fingerprint evidence does not negate the other evidence offered by the state.        And

based on the video surveillance presented as well as the testimony of Markosky positively

identifying Richardson, we cannot say that the jury lost its way in finding that Richardson

was the perpetrator.

       B.     “Likely To Be Present” Element

       {¶19} Richardson also argues that the state failed to present sufficient evidence of

the “present or likely to be present” element of the burglary under R.C. 2911.12(A)(2).

We agree.

       {¶20} In State v. Palmer, 8th Dist. Cuyahoga No. 89957, 2008-Ohio-2937, ¶ 13,

this court discussed the “likely to be present” element of the crime of second-degree

burglary as follows:

               “A person is likely to be present when a consideration of all the
       circumstances would seem to justify a logical expectation that a person could
       be present.” State v. Green, 18 Ohio App.3d 69, 72, 480 N.E.2d 1128
       (1984). In determining whether persons were present or likely to be present
       under R.C. 2911.12(A)(2), “the defendant’s knowledge concerning
       habitation is not material. The issue is not whether the burglar subjectively
       believed that persons were likely to be there, but whether it was objectively
       likely.” State v. Brown, 1st Dist. Hamilton No. C-980907, 2000 Ohio App.
       LEXIS 1820 (Apr. 28, 2000). Merely showing that people dwelled in the
       residence is insufficient; the state must adduce specific evidence that the
       people were present or likely to be present at the time of the burglary. State
       v. Fowler, 4 Ohio St.3d 16, 18, 445 N.E.2d 1119 (1983).

       {¶21} The Ohio Supreme Court has recognized that the state can establish the

“likely to be present” element of burglary under R.C. 2911.12(A)(2) by showing that the

occupants of the dwelling were “in and out on the day in question” and were temporarily
absent when the burglary occurred.       State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336

(1977), paragraph one of the syllabus.

       {¶22}    Conversely, Ohio courts have recognized that “where the occupants of a

house are absent as part of their regular workday, they are not likely to be present during

the day.” State v. McCoy, 10th Dist. Franklin No. 07AP-769, 2008-Ohio-3293, ¶ 23,

citing State v. Frock, 2d Dist. Clark No. 2004CA76, 2006-Ohio-1254; State v. Brown, 1st

Dist. Hamilton No. C-980907, 2000 Ohio App. LEXIS 1820 (Apr. 28, 2000) (“likely to be

present” element not satisfied where burglary occurred during the occupant’s workday,

and no evidence was offered that the occupant ever came home during his workday); State

v. Lockhart, 115 Ohio App.3d 370, 685 N.E.2d 564 (8th Dist.1996) (“likely to be present”

element not satisfied where home’s occupant testified that burglary occurred while she

was at work, and that she did not return to her house at varying times). See also State v.

Meisenhelder, 8th Dist. Cuyahoga No. 76764, 2000 Ohio App. LEXIS 4745 (Oct. 12,

2000) (regular habitation does not give rise to a presumption that a person is “likely to be

present”; state must produce evidence to prove element).

       {¶23} Here, although the state presented evidence that the victim’s place of

employment was only approximately 15 minutes away from her apartment, it failed to

elicit any other testimony as to the victim’s habits to establish the “likely to be present”

element.   For example, the state failed to offer any evidence that the victim sometimes

returned home during the workday. Instead, the record reveals that the victim left for

work that day shortly before 7:00 a.m., and returned home “a little after 3:00 p.m.”    The
victim testified that she worked from 8:00 a.m. to 3:00 p.m. or 8:00 a.m. to 2:00 p.m.

during the week.     The burglary occurred shortly before noon on a workday. Based on

this evidence, the victim was not likely to be present.

       {¶24} The state counters that “there was no evidence introduced that [the victim]

would not have been able to make the short trip home or that she would not have been

permitted to return home early from her place of employment.”       It further contends that

“there was no evidence introduced that another person might not be present at her

apartment.”    But the state’s argument confuses the burden of proof at trial; the state

solely carries the burden of proof and the defense has no duty to disprove the state’s case.

And as explained above, there is no presumption that an occupant is likely to be present

merely because the burglary occurred at a residential dwelling; instead, the state must

adduce specific evidence that the occupant was present or likely to be present.     And in

this case, the state failed to meet this burden.

       C.     Lesser Included Offense

       {¶25} Although the state failed to present sufficient evidence to sustain a

conviction of burglary under R.C. 2911.12(A)(2), this court has the power under Crim.R.

33(A)(4) to modify a judgment “[i]f the evidence shows the defendant is not guilty of the

degree of crime for which he was convicted, but guilty of a lesser degree thereof[.]”

State v. Reed, 65 Ohio St.2d 117, 123, 418 N.E.2d 1359 (1981).

       {¶26} “Burglary under R.C. 2911.12(A)(3) is a lesser included offense of burglary

under R.C. 2911.12(A)(2) because it contains all but the R.C. 2911.12(A)(2) element of
the presence or likely presence of someone other than an accomplice of the offender.”

State v. Butler, 8th Dist. Cuyahoga No. 97649, 2012-Ohio-4152, ¶ 18, citing State v.

Broyles, 5th Dist. Richland No. 2009Ca0072, 2010-Ohio-1837, ¶ 40. And here, given

that the state produced sufficient evidence on all of the elements except for the “likely to

be present,” we find that the evidence supports a finding of guilt under R.C.

2911.12(A)(3), a third-degree felony.    We therefore sustain the first assignment of error

in part and remand with instructions for the court to modify the judgment of conviction to

find Richardson guilty of burglary under R.C. 2911.12(A)(3). See Butler at ¶ 18, citing

State v. Rothrock, 8th Dist. Cuyahoga No. 93602, 2010-Ohio-4102, ¶ 20.

       D. Repeat Violent Offender Specification

       {¶27} We further note that, having found insufficient evidence to support

Richardson’s second-degree burglary conviction under R.C. 2911.12(A)(2), the finding of

guilt on the repeat violent offender specification cannot stand.        The repeat violent

offender specification, as contained in R.C. 2941.149, provides that “repeat violent

offender” has the same meaning as in Section 2929.01 of the Revised Code, which defines

a “repeat violent offender” as a person about whom both of the following apply:

       (1) The person is being sentenced for committing or for complicity in
       committing any of the following:

       (a) Aggravated murder, murder, any felony of the first or second degree that
       is an offense of violence, or an attempt to commit any of these offenses if the
       attempt is a felony of the first or second degree;

       (b) An offense under an existing or former law of this state, another state, or
       the United States that is or was substantially equivalent to an offense
       described in division (CC)(1)(a) of this section.
       (2) The person previously was convicted of or pleaded guilty to an offense
       described in division (CC)(1)(a) or (b) of this section.

R.C. 2929.01(CC).

       {¶28} Here, Richardson is being sentenced on a third-degree felony, and therefore

the underlying offense does not satisfy the definition under R.C. 2929.01(CC).

Accordingly, we vacate his conviction and sentence on the repeat violent offender

specification.

       {¶29} The first assignment of error is sustained in part and overruled in part.   The

second assignment of error regarding manifest weight of the evidence is rendered moot in

part and overruled in part. Further, Richardson’s final assignment of error challenging

his sentence is rendered moot by our resolution of these assignments of error.

                                       Allied Offenses

       {¶30} In his third assignment of error, Richardson argues that his convictions for

burglary and theft should have merged as allied offenses.

       {¶31} When a defendant’s conduct results in the commission of two or more

“allied” offenses of similar import,     that conduct can be charged separately, but the

defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A). In

determining whether offenses merge, we consider the defendant’s conduct.            State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 44. “If the multiple

offenses can be committed by the same conduct, then the court must determine whether

the offenses were committed by the same conduct, i.e., ‘a single act, committed with a
single state of mind.’”     Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, 895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). If we answer both

questions affirmatively, then the offenses are allied offenses of similar import and will be

merged. Johnson at ¶ 50.

       {¶32} Richardson contends that the trial court committed plain error in imposing

separate sentences on the burglary and theft convictions when they both arose from the

same conduct.    We disagree.    As this court has previously recognized, “once defendant

entered the apartment with an intent to commit a felony inside, the crime of burglary was

complete.”    State v. Smith, 8th Dist. Cuyahoga No. 95243, 2011-Ohio-3051, ¶ 80.

Indeed, the record reveals that, after Richardson entered the apartment, he further searched

the victim’s closets.   Then, when Richardson proceeded to take the television from the

apartment, he engaged in a separate offense of theft.   Based on this record, we cannot say

that the trial court erred by imposing separate sentences for the two offenses.

       {¶33} The third assignment of error is overruled.

                                        Conclusion

       {¶34} Having found that the evidence does not support a conviction of burglary

under R.C. 2911.12(A)(2), but does support a conviction on the lesser-degree of burglary

under R.C. 2911.12(A)(3), we remand this case with instructions for the trial court to

modify the judgment of conviction to find Richardson guilty of third-degree burglary

under R.C. 2911.12(A)(3). Our holding further necessitates that the finding of the repeat

violent offender specification be vacated and that the trial court resentence Richardson on
the conviction of burglary under R.C. 2911.12(A)(3).          The conviction and sentence for

petty theft is affirmed.

       {¶35} Judgment affirmed in part, reversed in part, and case remanded to the lower

court for further proceedings consistent with this opinion.

       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. The defendant’s conviction having

been affirmed in part, 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.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and
PATRICIA ANN BLACKMON, J., CONCUR
