[Cite as State v. Artis, 2013-Ohio-3198.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                 CASE NO. 8-13-01

        v.

TYRELL E. ARTIS,                                            OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Logan County Common Pleas Court
                             Trial Court No. 12-07-0167

                                       Judgment Affirmed

                               Date of Decision:   July 22, 2013




APPEARANCES:

        Darrell L. Heckman for Appellant

        William T. Goslee for Appellee
Case No. 8-13-01


WILLAMOWSKI, J.

      {¶1} Defendant-appellant Tyrell E. Artis (“Artis”) brings this appeal from

the judgment of the Court of Common Pleas of Logan County finding him guilty

of burglary. For the reasons set forth below, the judgment is affirmed.

      {¶2} On July 5, 2012, Steffan Whetsel (“Whetsel”) went to an apartment

complex in Bellefontaine to sell an ounce of marijuana for $110.00. When he

arrived at the apartment complex, Zach Coleman who was called “Crazy”

(“Crazy”) and a second man known only as “Tito” awaited Whetsel.             Crazy

snatched the marijuana from Whetsel, threw it to Tito, and flashed a gun at

Whetsel. The two men then left with the marijuana without paying for it. Since

the item stolen was illegal, Whetsel decided against calling the police, and instead

called his friend Justin Rogan (“Rogan”). Rogan was at a nearby party with Artis,

who is Whetsel’s cousin. Rogan told Artis about the robbery and they went to

help Whetsel recover the stolen marijuana.

      {¶3} When Artis arrived at the complex, Whetsel told Artis which

apartment “the dude with the weed” entered. Tr. 147. The apartment belonged to

Shelly Neeld (“Neeld”), who was living there with her husband, her daughter,

Katrina, and her grandchildren.      Katrina has a child with Dustin Lattimer

(“Lattimer”) who is friends with Tito and Crazy. Lattimer knew that Crazy and

Tito were planning on stealing the marijuana from Whetsel. Tito and Crazy ran


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into Neeld’s apartment after the robbery. Whetsel knew which apartment they

entered and gave that information to Artis. Whetsel was armed with a baseball bat

and Artis was armed with a taser when they approached the apartment with the

intent to retrieve the stolen marijuana. Whetsel then broke down the door to the

apartment and he and Artis entered. There was a fight among Tito, Whetsel, Artis,

and Lattimer. No one suffered serious injuries, but Whetsel and Artis left without

retrieving the lost marijuana.

       {¶4} On July 15, 2012, the Logan County Grand Jury indicted Artis on one

count of Aggravated Burglary in violation of R.C. 2911.11(A)(1), a felony of the

first degree, and one count of Assault in violation of R.C. 2903.13(A), a

misdemeanor. Artis entered pleas of not guilty to both counts. A jury trial was

held on November 15-16, 2012. At the conclusion of the trial, the jury found Artis

not guilty of the Aggravated Burglary and Assault, but found Artis guilty of the

lesser included offense of Burglary, a felony of the second degree. On December

17, 2012, the trial court held a sentencing hearing. Artis was sentenced to serve

four years in prison. Artis appeals from this judgment and raises the following

assignments of error.

                            First Assignment of Error

       The trial court erred in failing to instruct the jury on the lesser
       included offense of burglary as a fourth degree felony.



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                           Second Assignment of Error

      The trial court erred in permitting prejudicial evidence of prior
      bad acts of [Artis].

      {¶5} In the first assignment of error, Artis claims that the trial court erred

by not instructing the jury on the lesser included offense of burglary as a fourth

degree felony.

      The question of whether a particular offense should be
      submitted to the finder of fact as a lesser included offense
      involves a two-tiered analysis. State v. Evans, 122 Ohio St.3d
      381, 2009-Ohio-2974, ¶13. The first tier, also called the
      “statutory-elements step,” is a purely legal question, wherein we
      determine whether one offense is generally a lesser included
      offense of the charged offense. State v. Kidder, 32 Ohio St.3d
      279, 281 (1987). The second tier looks to the evidence in a
      particular case and determines whether “a jury could
      reasonably find the defendant not guilty of the charged offense,
      but could convict the defendant of the lesser included offense.”
      Evans at ¶13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329,
      2007-Ohio-2072, ¶11. Only in the second tier of the analysis do
      the facts of a particular case become relevant.

State v. Deanda, ___ Ohio St.3d ___, 2013-Ohio-1722, ¶6. Thus, the first step is

to determine whether the fourth degree burglary is a lesser included offense of

aggravated burglary. The Supreme Court has set forth a three part subset of the

statutory-elements step.

      An offense may be a lesser included offense of another only if (i)
      the offense is a crime of lesser degree than the other, (ii) the
      greater offense cannot, as statutorily defined, ever be committed
      without the offense of the lesser degree also being committed and
      (iii) some element of the greater offense is not required to prove
      the commission of the lesser offense.

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Id. at ¶10 (quoting State v. Deem, 40 Ohio St.3d 205 (1988)). However, the

Supreme Court has modified the test set forth in Deem by removing the word

“ever” from the test. Id. at ¶13 (citing State v. Evans, 122 Ohio St.3d 381, 2009-

Ohio-2974). “While the [statutory-elements test] may produce severe results in

some cases, we have learned * * * that it is essential to divorce the facts of a

particular case from the statutory-elements analysis in order to preserve the

defendant’s right to notice of the charges against him.” Id. at ¶15.

       {¶6} Here, Artis was charged with aggravated burglary in violation of R.C.

2911.11(A)(1).

       (A) No person, by force, stealth, or deception, shall trespass in
       an occupied structure * * * when another person other than an
       accomplice of the offender is present, with purpose to commit in
       the structure * * * any criminal offense, if any of the following
       apply:

       (1) The offender inflicts, or attempts or threatens to inflict
       physical harm on another[.]

R.C. 2911.11. Artis requested an instruction on burglary in violation of R.C.

2911.12(B).

       (B) No person, by force, stealth, or deception, shall trespass in 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.

R.C. 2911.12(B).      The commission of aggravated burglary in violation of

R.C.2911.11(A)(1) is a felony of the first degree, while the commission of

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burglary in violation of R.C. 2911.12(B) is a felony of the fourth degree. Thus the

first element of the statutory-elements test is met.    The third element of the

statutory elements test is also met because one need not prove that the offender

intended to commit a criminal offense or inflicted, attempted, or threatened

physical harm, which are necessary to prove an aggravated burglary are not

necessary to prove burglary. This leaves the second element which requires that

one cannot complete the greater offense without having completed the lesser

included offense. A review of the statutory factors without regard to the facts of

the case, as required by the Ohio Supreme Court, would indicate that one can

complete an aggravated burglary in violation of R.C. 2911.11(A)(1) without

completion of a burglary in violation of R.C. 2911.12(B). R.C. 2911.11(A)(1)

requires that the defendant trespass in an occupied structure, which is statutorily

defined as follows.

      “Occupied Structure” means any house, building, outbuilding,
      watercraft, aircraft, railroad car, truck, trailer, tent, or other
      structure, vehicle, or shelter, or any portion thereof, to which
      any of the following applies:

      (1) It is maintained as a permanent or temporary dwelling,
      even though it is temporarily unoccupied and whether or not
      any person is actually present.

      (2) At the time, it is occupied as the permanent or temporary
      habitation of any person, whether or not any person is actually
      present.



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        (3) At the time, it is specially adapted for the overnight
        accommodation of any person, whether or not any person is
        actually present.

        (4) At the time, any person is present or likely to be present in
        it.

R.C. 2909.01(C).          Thus, pursuant to the statutory definition, an aggravated

burglary can occur in any structure in which a person is present or likely to be

present. It is not restricted to a home. In contrast, R.C. 2911.12(B) requires that

the offender trespass into a habitation, either temporary or permanent. Since the

Supreme Court is still stating that the facts cannot be considered when reviewing

the statutory elements test, a violation of R.C. 2911.12(B) is not a lesser included

offense of R.C. 2911.11(A)(1), but is rather an offense of a lesser degree based

upon different facts.1 Therefore, the trial court did not err in denying Artis’

motion for an instruction on a violation of R.C. 2911.12(B).

        {¶7} Even if we consider the facts and determine that R.C. 2911.12(B) is a

lesser included offense in this case because the trespass was of an inhabited

apartment, and determine that Artis would have notice of this possibility2, Artis

would not automatically be entitled to a jury instruction. An instruction on a

lesser included offense is only warranted if the evidence at the trial would support

it. State v. Thomas, 40 Ohio St.3d 213 (1988).


1
  We recognize that under the facts of this case, the occupied structure in question was a home. However,
the statutory factors are different and we are required to review the factors objectively.
2
  Artis would definitely have notice of this offense as he is the one who requested the instruction.

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       As to this consideration, we stated in [State v. Kidder, 32 Ohio
       St.3d 279 (1987)], that: “Even though so defined, a charge on the
       lesser included offense is not required, unless the trier of fact
       could reasonably reject an affirmative defense and could
       reasonably find against the state and for the accused upon one
       or more of the elements of the crime charged, and for the state
       and against the accused on the remaining elements, which by
       themselves would sustain a conviction upon a lesser included
       offense.” Id. at 282-283.

       The meaning of this language is that even though an offense may
       be statutorily defined as a lesser included offense of another, a
       charge on the lesser included offense is required only where the
       evidence presented at trial would reasonably support both an
       acquittal on the crime charged and a conviction upon the lesser
       included offense.

State v. Thomas, 40 Ohio St.3d 213, 216 (1988). To find that this instruction was

warranted, this court would need to find that the jury could reasonably find that (1)

Artis did not use, threaten, or attempt to cause physical harm and (2) that Artis did

not intend to commit a criminal act when he entered the premises. However, all of

the evidence was that Artis and Whetsel forced their way into the apartment by

kicking down the door. At that time, Whetsel was holding a baseball bat and Artis

had a taser gun. Artis himself testified that the purpose for entering the apartment

was to retrieve the marijuana. Whetsel admitted that they had no intention of

politely asking Tito for the marijuana, but instead intended to take it by force. No

reasonable jury could find that Artis merely trespassed into an apartment without

the intent to commit a criminal act when Artis and Whetsel broke down a door to a

stranger’s residence while carrying weapons. Thus, the trial court did not abuse its

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discretion in denying Artis’s requested jury instruction. The first assignment of

error is overruled.

       {¶8} In the second assignment of error, Artis claims that the trial court

erred by allowing evidence of his prior bad acts to be used in violation of Evid.R.

404(B).

      Evidence of other crimes, wrongs, or acts is not admissible to
      prove the character of a person in order to show action in
      conformity therewith. It may, however, be admissible for other
      purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity, or absence of mistake or
      accident. * * *

Evid.R. 404(B). Artis argues that there were three instances when prior bad acts

were used by the State. The first is when Lattimer testified that Crazy had texted

him that the people who had “jumped” him a few weeks earlier were in the

parking lot. Tr. 87. Artis’ counsel objected to the statement and the objection was

sustained. Tr. 88. The jury was instructed to disregard the answer. Tr. 88. The

jury is presumed to follow the trial court’s instructions, including curative

instructions.   State v. Fears, 86 Ohio St.3d 329, 1999-Ohio-111.       Without a

showing to the contrary, we must presume the jury did not consider the statement

made by Lattimer.

       {¶9} Next, Artis claims the State used prior bad acts when Officer Doug

Walters (“Walters”) testified that Artis and Whetsel were suspects in the

aggravated burglary so he began to “check areas where they might be or known to

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be or we’ve dealt with them before.” Tr. 98. Counsel for Artis objected to this

statement, but it was overruled.      In addition, Walters testified that he had

previously spoken with Artis during a traffic stop. Tr. 99. During that stop, he

found a taser on Artis, which was identical to the one used in this case. Tr. 99.

No objection was made to these statements.

       Simply because the deputy stated during trial that he had prior
       contact with the defendant in an official capacity does not
       indicate that the defendant had a prior record or had committed
       prior similar acts. At trial, the deputy merely testified that,
       based on his prior acquaintance with the defendant, the
       defendant was now more calm and more cooperative with
       authorities than he had been previously. There is no indication
       of prejudice resulting from this testimony. * * *

State v. Cooper, 52 Ohio St.2d 163, 170 (1977) (reversed on other grounds).

Testimony regarding mere prior contact does not in and of itself violate Evid.R.

404(B). State v. Harris, 10th Dist. No. 04AP612, 2005-Ohio4676, ¶25.

       {¶10} Finally, Artis claims that Officer Jason Boy (“Boy”) brought up prior

bad acts of Artis when he testified that based upon the description of the victim, he

thought the offenders could be Artis and Whetsel. Tr. 103. His opinion was based

upon prior contact with them.       Tr. 103.     Artis’ counsel objected to these

statements, but it was overruled. As discussed above, the mere statement that

there was prior contact does not violate Evid.R. 404(B). There was no testimony

that Artis had ever committed a similar crime or even had a criminal record. The

testimony was used to explain how the officers progressed with their investigation

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and why they investigated Artis. The State did not offer the statements to show

that Artis has bad character and acted in conformity with that character. Thus,

there was no violation of Evid.R. 404(B). The second assignment of error is

overruled.

       {¶11} The judgment of the Court of Common Pleas of Logan County is

affirmed.

                                                           Judgment Affirmed

PRESTON, P.J., concurs.

SHAW, J., concurs in Judgment Only.

/jlr




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