      [Cite as State v. Grier, 2012-Ohio-330.]




                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :   APPEAL NO. C-110240
                                                     TRIAL NO. B-1006975
     Plaintiff-Appellee,                         :
                                                       O P I N I O N.
     vs.                                         :

LARRY GRIER,                                     :

     Defendant-Appellant.                        :

                                                 :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 1, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.



Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




LEE H. HILDEBRANDT, JR., Presiding Judge.

       {¶1}    Following a bench trial, defendant-appellant Larry Grier was found

guilty of burglary, a second degree felony, in violation of R.C. 2911.12(A)(2). In one

assignment of error, Grier now claims that his conviction was not supported by

sufficient evidence and was against the manifest weight of the evidence. For the

following reasons, we reverse Grier’s conviction and hold that he is guilty of the

lesser-included offense of third-degree burglary, in violation of R.C. 2911.12(A)(3).

              I. McMillian goes on Vacation and is Burglarized

       {¶2}   Maureen McMillian, a University of Cincinnati college student, lived in

an apartment near campus. She had three roommates. On the morning of August 1,

2010, McMillian left for vacation. She testified that all three of her roommates were

also on vacation at this time. That afternoon, McMillian received a telephone call

informing her that the alarm installed in her apartment had been activated. Since

McMillian was out of town, her landlord, John Glenski, met police at the apartment.

At trial, Glenski testified that it appeared that someone had entered the apartment by

breaking a window and climbing through it. Glenski also stated that, inside, a

refrigerator had been moved and a trash can had been knocked over. The police

officers who responded to the scene corroborated much of Glenski’s testimony. And

Detective Dennis Ficker testified that blood found on the broken window had been

DNA-tested and that the DNA matched Grier’s. When McMillian returned a week

later, she found that nothing had been taken from the apartment.

                          II. Sufficiency of the Evidence




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶3}     Although Grier asserts that his conviction was against the manifest

weight of the evidence and unsupported by sufficient evidence, the substance of his

argument attacks the sufficiency of the evidence, only. A conviction is supported by

sufficient evidence when, after viewing all evidence in the light most favorable to the

prosecution, a rational trier of fact could have found all of the elements of the offense

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1977), paragraph two of the syllabus; State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

       {¶4}    In pertinent part, R.C. 2911.12(A)(2) provides that no person, by force,

shall “ [t]respass in 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.”   Grier first contends that the state failed to prove that a person other than

an accomplice had been “present or likely to be present” at the time of the offense.

Grier is correct.

       No Proof of “Likely to be Present”

       {¶5}    It is undisputed that no one was at the apartment at the time of the

break-in. Therefore, to sustain a conviction under R.C. 2911.12(A)(2), the state had

to prove that someone was “likely to be present.” To this end, the state is required to

adduce evidence concerning the habits of the residents or others who have access to

the premises to demonstrate the probability of actual occupancy at the time of the

offense. In re Meatchem, 1st Dist. No. C-050291, 2006-Ohio-4128, ¶ 16; State v.

Brown, 1st Dist No. C-980907 (Apr. 28, 2000); State v. Cravens, 1st Dist. No. C-

980526 (June 25, 1999). “A person is likely to be present when a consideration of all




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                      OHIO FIRST DISTRICT COURT OF APPEALS



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 (10th Dist.1984).

It is not enough for the state to simply prove that people dwelled in the residence.

State v. Fowler, 4 Ohio St.3d 16, 18-19, 445 N.E.2d 1119 (1983); Meatchem; Brown;

Cravens; see also State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1335 (1977).

       {¶6}   In this case, the state produced no evidence concerning whether

McMillian and her roommates were “likely to be present” at the time of the burglary.

The record reveals only that the four roommates were on vacation at the time of the

break-in, and that McMillian did not return until a week later. No evidence was

offered concerning whether it was likely that anyone could have been present at the

time of the break-in. Based on this record, there is insufficient evidence, as a matter

of law, to sustain a conviction for R.C. 2911.12(A)(2).

       The State Proved Intent

       {¶7}   Grier next contends that the state failed to prove that he had intended

to commit a criminal offense when he broke into McMillian’s apartment. The intent

of an accused person “dwells in his mind” and must be gathered from “surrounding

facts and circumstance.” State v. Johnson, 56 Ohio St.2d 35, 38, 381 N.E.2d 637

(1978), quoting State v. Huffman 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph

four of the syllabus. Here, there was testimony supporting a reasonable conclusion

that Grier had moved the refrigerator and had knocked over a trash can. At a

minimum this demonstrated that Grier had intended to commit─and in fact had

committed─“criminal mischief” as defined in R.C. 2909.07(A)(1). The circumstances

in this case also give rise to an inference that Grier may have intended to steal

something, but was scared off by the apartment’s security system before doing so.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Compare State v. Flowers, 16 Ohio App.3d 313, 315, 475 N.E.2d 790 (10th

Dist.1984), overruled on other grounds by State v. Fontes, 87 Ohio St.3d 527, 2000-

Ohio-472, 721 N.E.2d 1037 (where defendant was caught in the act of breaking and

entering before committing any overt act, a jury reasonably inferred an intent to

commit a theft offense). Grier’s argument therefore fails.

                   III. Grier is Guilty of Third-Degree Burglary

       {¶8}   Although Grier was wrongly convicted of second-degree burglary in

violation of R.C. 2911.12(A)(2), we hold that there was sufficient evidence to convict

him of third-degree burglary in violation of R.C. 2911.12(A)(3). In relevant part, that

code section defines burglary as trespassing in an occupied structure by force with

the purpose to commit any criminal offense in the structure. R.C. 2911.12(A)(3) is a

lesser-included offense of R.C. 2911.12(A)(2). Meatchem, supra, at ¶ 23. The one

element that R.C. 2911.12(A)(3) omits─that someone was present or likely to be

present─is the only element that the state failed to prove in this case.

       {¶9}   “When the evidence shows that a defendant is not guilty of the degree

of the crime for which he was convicted, but is guilty of a lesser-included offense, a

court may, instead of granting a new trial, modify the conviction.” Meatchem, supra,

at ¶ 24. See also App.R. 12(B); Crim.R. 33(A)(4); State v. Cobb, 153 Ohio App.3d

541, 2003-Ohio-3821, 795 N.E.2d 73 (1st Dist.); State v. Harris, 109 Ohio App.3d

873, 673 N.E.2d 237 (1st Dist.1996). Accordingly, we reverse Grier’s conviction for

violating R.C. 2911.12(A)(2) and remand this case to the trial court with instructions

to enter a judgment finding Grier guilty of violating R.C. 2911.12(A)(3) and to

sentence Grier for that offense.

       {¶10} Grier’s assignment of error is sustained.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                       Judgment reversed and cause remanded.

HENDON and DINKELACKER, JJ., concur.


Please note:

The court has recorded its own entry on the date of the release of this opinion.




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