[Cite as In re R.T., 2014-Ohio-5686.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101093



                                         IN RE: R.T., JR.
                                          A Minor Child




                                        JUDGMENT:
                                    AFFIRMED IN PART;
                              REVERSED IN PART AND REMANDED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                          Juvenile Division
                                       Case No. DL 13114437

        BEFORE: Kilbane, J., E.A. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                December 24, 2014
ATTORNEYS FOR APPELLANT

Tim Young, Director
Ohio Public Defender’s Office
Brooke M. Burns
Assistant Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
John E. Jackson
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

         {¶1}   Appellant, R.T., Jr. (“R.T.”), appeals from the judgment of the Cuyahoga County

Common Pleas Court, Juvenile Division, that adjudicated him delinquent in connection with

charges of burglary and theft. For the reasons set forth below, we affirm the delinquency

adjudication for theft and reverse the delinquency adjudication for burglary.

         {¶2}   On October 3, 2013, R.T. was charged with burglary, in violation of R.C.

2911.12(A)(2), and theft, in violation of R.C. 2913.02(A)(1), in Case No. DL 13114437. R.T.

denied the charges, and the matter proceeded to trial on January 16, 2014.

         {¶3}   The evidence demonstrated that at approximately 6:30 a.m. on September 24,

2013, Shirley Scott (“Scott”) locked the doors to her home on Linnett Avenue (“Linnett”) in

Cleveland before leaving for work. Scott’s nephew, J.S., had just left for school, and her son

and daughter were not at home. No one had permission to be inside the home during her

absence. At approximately 5:30 p.m., Scott returned from work and discovered that the house

had been ransacked. Scott called the police and looked about her property as she waited for

them to arrive. As she walked through her house, she determined that many items were missing,

including her televisions, computer, a cell phone, stereo speaker, and jewelry. According to

Scott, the doors that she had locked before leaving that morning were no longer locked. A

dowel that she had placed to keep the patio door from being opened was removed, and the patio

door was wide open. Scott looked outside to see if the intruder was still on her property.

Neither she nor her daughter observed anyone on the property, but they did discover some of the

items taken from her home stuffed into a tote bag behind their garage. Scott told her daughter to

leave the items there while they waited for police. The Cleveland police arrived a short time

later.
       {¶4} Scott spoke with the police as they sat in their car in front of her home. When she

returned to the area behind her garage, the items were gone. Scott later informed Cleveland

Police Detective Todd Staimpel (“Detective Staimpel”) that she suspected her nephew, J. S., may

have been involved in the burglary, and that he spends time with R.T.

       {¶5}       Robin Greene (“Greene”), Scott’s neighbor who lives on Dale Avenue, directly

behind Scott, testified that at approximately 5:45 p.m., she heard a car pull into her driveway.

She opened her side door and observed two people. Greene testified that she saw R.T. standing

next to the trunk of the vehicle as items were loaded into it. Greene shouted for R.T. to get out

of her yard. He said that he was getting his things and then he would leave. Greene noted that

the vehicle was a Jetta, and she also noted the license plate number of the vehicle.

       {¶6}       Marsha Wolschleger (“Wolschleger”), who also lives on Dale Avenue, directly

behind Linnett and across the street from Greene, observed R.T. walking up and down the street.

He walked into Greene’s driveway and then left. Approximately ten minutes later, Wolschleger

saw R.T. in a silver Jetta as it pulled into her neighbor’s driveway. At this time, she did not

observe anything in the back of the vehicle. A few minutes later, the vehicle sped away. When

the vehicle drove away, she observed three people in the car and electronic items inside the back

of the vehicle.

       {¶7}       Detective Staimpel interviewed and provided photo arrays to Scott’s neighbors.

During separate photo arrays, both Greene and Wolschleger identified R.T. as the person they

observed in Greene’s driveway. Detective Staimpel traced the silver Jetta to Elida Caraballo

(“Caraballo”). Within one week of the burglary at Scott’s home, Detective Staimpel spotted it

parked at the home of R.T.’s mother. He had the car towed and told Caraballo that it had been

used as a criminal tool.
       {¶8}     Caraballo testified that she loaned the car to R.T.’s brother to use for a short time

in late September.

       {¶9}     The trial court announced its decision the following day and stated:

       On yesterday’s case, the Court finds that there’s no doubt that [R.T.] was involved

       and is delinquent of charges as charged here, burglary, F2, and theft, F5. So at

       the minimum he was at least complicit [and] definitely took part in this whole

       thing.

       {¶10} R.T. now appeals, assigning the following error for our review:

       The Cuyahoga County juvenile court violated R.T., Jr.’s right to due process of

       law when it adjudicated him delinquent of burglary without sufficient, credible,

       and competent evidence that he trespassed into an occupied structure when

       someone other than his accomplice was present or likely to be present, in violation

       of the fourteenth amendment to the U.S. Constitution, Article I, Section 16, Ohio

       Constitution, and Juvenile Rule 29(e)(4).

       {¶11} In support of this assignment of error, R.T. argues that there is insufficient

evidence to support the delinquency adjudication for burglary and theft because there was no

evidence placing him inside an occupied structure or evidence showing that he took the items

from the home.

       {¶12} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, the Ohio

Supreme Court explained the standard for sufficiency of the evidence as follows:

       Raising the question of whether the evidence is legally sufficient to support the
       jury verdict as a matter of law invokes a due process concern. State v. Thompkins
       (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing
       such a challenge, “[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
        syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61
        L.Ed.2d 560.

Id. at ¶ 113.

        {¶13} R.T. was adjudicated delinquent for theft as set forth in R.C. 2913.02(A)(1), which

provides:

        No person, with purpose to deprive the owner of property or services, shall

        knowingly obtain or exert control over either the property or services * * *

        [w]ithout the consent of the owner or person authorized to give consent[.]

        {¶14} In addition, as stated in In re A.F., 8th Dist. Cuyahoga No. 91251,

2008-Ohio-5479:

        “It has long been established in Ohio that the unexplained possession by a

        defendant of recently stolen property may give rise to a permissive inference from

        which a jury may conclude, beyond a reasonable doubt, that the accused is guilty

        of the theft.” State v. McAllister (1977), 53 Ohio App.2d 176, 372 N.E.2d 1341,

        citing Methard v. State (1869), 19 Ohio St. 363; State v. Brennan (1949), 85 Ohio

        App.175, 88 N.E.2d 281; Cofield v. State (1933), 14 Ohio Law Abs. 29. “Such

        an inference is particularly significant when, as here, the defendant offers no

        explanation for his possession of the stolen goods.” State v. Brown, Franklin

        App. No. 05AP-601, 2006-Ohio-2307, ¶ 11, citing McAllister.

Id. at ¶ 10.

        {¶15} R.T. was also adjudicated delinquent for burglary as set forth in R.C.

2911.12(A)(2), which provides in relevant part 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 other than an accomplice of the offender is present or likely to be present,
          with purpose to commit in the habitation any criminal offense[.]

          {¶16} To prove complicity by aiding and abetting pursuant to R.C. 2923.03(A)(2), the

state must show that “the defendant supported, assisted, encouraged, cooperated with, advised, or

incited the principal in the commission of the crime, and that the defendant shared the criminal

intent of the principal.” State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 796,

syllabus. However, aiding and abetting requires the accused to have taken some role in causing

the offense. State v. Sims, 10 Ohio App.3d 56, 59, 460 N.E.2d 672 (8th Dist.1983). The “mere

presence of an accused at the scene of a crime is not sufficient to prove, in and of itself, that the

accused was an aider and abettor.” State v. Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025

(1982).

          {¶17} Applying all of the foregoing, with regard to the delinquency adjudication for theft,

we note that the evidence demonstrates that when Scott returned from work, she noticed her

house had been ransacked. A few minutes later, she found her possessions stuffed into a tote

bag behind her garage. Two eyewitnesses observed R.T. on the street behind Scott’s house and

observed him in the Jetta with items inside the back of the vehicle. Viewing this evidence in a

light most favorable to the prosecution, a rational trier of fact could have found that R.T.

obtained or exerted control over Scott’s property with purpose to deprive her of that property and

without her consent. Therefore, we conclude that there is sufficient evidence to support R.T.’s

delinquency adjudication for theft.

          {¶18} Turning to the offense of burglary, we note that a burglary conviction is lacking in

sufficient evidence where the state proves only that a defendant was walking nearby at the time
of the offense. State v. Taylor, 7th Dist. Jefferson No. 98 JE 31, 2001-Ohio-3162. The Taylor

court stated:

       Mrs. Miller further testified that she did not see anyone opening or trying to open

       the window. (Tr. 91). The window was not examined for fingerprints or any

       other type of evidence linking Appellant to the fact that the window was loosened.

       (Tr. 135). From Mrs. Miller’s testimony it is possible to infer that Appellant

       loosened the window. Any further inferences must be supported by additional

       facts.

       The record does not provide any additional facts to support a finding that
       Appellant intended to commit a crime within Mrs. Miller’s home. No criminal
       tools were found in Appellant’s possession or in his vehicle. No fingerprint was
       taken or fingerprint analysis done to further link Appellant to the loosened
       window by Toronto police. The state never specified or alluded to any crime
       which Appellant supposedly intended to commit in Mrs. Miller’s home.

       {¶19} Likewise in this matter, we conclude that there is no evidence to show that R.T.

was on Linnett or inside Scott’s home on the day of the incident. There is also no evidence

identifying R.T. as one of the individuals inside the home. There was no fingerprint evidence,

physical evidence, or surveillance linking him to the burglary. In addition, there is no evidence,

apart from R.T.’s mere presence on the street behind Linnett, that R.T. aided or abetted the

individuals or individual who committed the burglary. Therefore, we conclude that there is

insufficient evidence to prove the essential elements of burglary.

       {¶20} R.T.’s sole assignment of error is affirmed as to the delinquency adjudication for

theft and reversed as to the delinquency adjudication for burglary. This case is remanded to the

lower court for further proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee 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 - Juvenile Division, 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.




MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
