[Cite as State v. Dewitt, 2009-Ohio-5903.]




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



STATE OF OHIO,
                                                           CASE NO. 1-09-25
   PLAINTIFF-APPELLEE,

  v.

WILLIAM D. DEWITT, JR.,                                      OPINION

   DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2008 0261

                                       Judgment Affirmed

                            Date of Decision: November 9, 2009




APPEARANCES:

        Destiny R. Hudson for Appellant

        Jana E. Emerick for Appellee
Case No. 1-09-25




PRESTON, P.J.

          {¶1} Defendant-Appellant, William D. Dewitt, Jr. (hereinafter “Dewitt”),

appeals the Allen County Court of Common Pleas’ judgment of conviction and

imposition of sentence following a jury verdict of guilty on one count of burglary

and one count of possession of criminal tools. For the reasons that follow, we

affirm.

          {¶2} These charges stem from an event that took place on June 12, 2008.

At approximately 11:35 p.m., officers were dispatched to a residence at 4747 Old

Delphos Road, Elida, Ohio, in regards to a possible burglary in progress. Officer

Dungan of the American Township Police Department, Officer Bowersock of the

Elida Police Department, and Deputy Music of the Allen County Sheriff’s

Department all arrived at approximately the same time. Officer Dungan and

Officer Bowersock investigated the back of the residence, while Deputy Music

investigated the front of the residence. Officer Dungan noticed a vehicle parked in

the back and then observed a subject run out of the residence. All three officers

pursued the subject to a nearby field where the officers then apprehended the

subject, later identified as Dewitt, and placed him under arrest.

          {¶3} On July 17, 2008, the Allen County Grand Jury returned an

indictment against Dewitt charging him with one count of burglary in violation of

R.C. 2911.12(A)(2), a felony of the second degree; and one count of possession of


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criminal tools in violation of R.C. 2923.24(A), (C), a felony of the fifth degree.

On August 27, 2008, Dewitt entered pleas of not guilty to both charges in the

indictment.   On September 16, 2008, Dewitt filed a motion to suppress.         A

suppression hearing was held on October 6, 2008, and the trial court ultimately

denied Dewitt’s motion on October 7, 2008.

      {¶4} A jury trial was conducted on April 21 & 22, 2009, and at the

conclusion of the trial, the jury returned a guilty verdict on both offenses.

Immediately following the trial, the trial court held a sentencing hearing and

sentenced Dewitt to seven years imprisonment for the burglary conviction, and

one year imprisonment for the possession of criminal tools conviction, sentences

to be served concurrently.

      {¶5} Dewitt now appeals and raises one assignment of error.

                   ASSIGNMENT OF ERROR
      THE APPELLANT’S CONVICTION IS NOT SUPPORT [SIC]
      BY SUFFICIENT EVIDENCE AS THE APPELLEE FAILED
      TO PROVE AN ESSENTIAL ELEMENT OF THE
      BURGLARY OFFENSE.

      {¶6} In his assignment of error, Dewitt claims that his conviction on the

burglary offense was not supported by sufficient evidence because the State failed

to prove all of the essential elements of the offense. Specifically, Dewitt argues

that there was insufficient evidence to prove that “any person other than an

accomplice of the offender is present or likely to be present,” and thus, his

burglary conviction should be reversed.


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       {¶7} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks (1981),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, superseded by

state constitutional amendment on other grounds in State v. Smith (1997), 80 Ohio

St.3d 89, 684 N.E.2d 668. Accordingly, “[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.” Id.

       {¶8} Dewitt was found guilty of burglary in violation of R.C.

2911.12(A)(2), which states:

       (A) No person, by force, stealth, or deception, shall do any of the
       following:

       ***

       (2) Trespass 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 the purpose to commit in the habitation
       any criminal offense.

In particular, Dewitt claims that the State failed to prove that any person “[was]

present or likely to be present.”




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       {¶9} In determining whether persons are likely to be present under R.C.

2911.12(A)(2), what the defendant knows at the time is irrelevant; rather, the issue

is whether it was objectively likely that persons were likely to be there. In re

Meatchem, 1st Dist. No. C-050291, 2006-Ohio-4128, ¶16. See, also, State v.

Durham (1979), 49 Ohio App.2d 231, 239, 360 N.E.2d 743. The State must

present specific evidence that people were present or likely to be present. In re

Meatchem, 2006-Ohio-4128, at ¶16; State v. Kilby (1977), 50 Ohio St.2d 21, 361

N.E.2d 1336. A person is likely to be present when a consideration of all of the

circumstances would seem to justify a logical expectation that a person could be

present. State v. Pennington, 12th Dist. No. CA2006-11-136, 2007-Ohio-6572,

¶29, citing State v. Green (1984), 18 Ohio App.3d 69, 72, 480 N.E.2d 1128.

       {¶10} Typically, where a burglary occurs and the occupying family is

temporarily absent, a showing that the occupied structure is a permanent dwelling,

which is regularly inhabited and the occupants were in and out on the day in

question, will be sufficient evidence to support a conviction for burglary. Kilby,

50 Ohio St.2d at 25. Despite this fact, just showing that a permanent or temporary

habitation has been burglarized does not give rise to the presumption that a person

was present or likely to be present. State v. Wilson (1979), 58 Ohio St.2d 52, 59-

60, 388 N.E.2d 745; State v. Fowler (1983), 4 Ohio St.3d 16, 18-19, 445 N.E.2d

1119. However, if the occupants of the dwelling are away for an extended period

of time, such as on vacation, if there is evidence that the occupants have given a


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neighbor or other caretaker permission or access to the home regularly, then there

will be sufficient evidence that a person is likely to be present for purposes of a

second-degree felony burglary offense.        State v. Hibbard, 12th Dist. Nos.

CA2001-12-276, CA2001-12-286, 2003-Ohio-707, ¶12.             See, also, State v.

Blackmon (Jan. 2, 1992), 9th Dist. No. 15099, at *5 (finding strong likelihood of

someone being present where occupants were on vacation, but returned soon

afterwards and had asked neighbor or relative to take care of house while away).

      {¶11} At trial, the State called the owner of the residence, Steven

Ostendorf (hereinafter “Ostendorf”), to testify about the events leading up to the

night of the burglary. Ostendorf testified that for one week in June 2008, he and

his family went down to the outer banks for a vacation. (Apr. 21, 2009 Tr. at 36-

37). While he was not sure what week in June 2008 he and his family were on

vacation, he did testify that they had left on Saturday and came back the following

Saturday. (Id. at 37). Before they left for vacation, Ostendorf said that he had

asked his neighbor, Randall Calvelage (hereinafter “Calvelage”), the following:

      to stop over to my house when I was leaving. I had some trash
      that needed to be set out on Thursday night because they pick up
      trash on Friday morning. He said that he would go ahead and
      do that for me. So, I just left the trash out behind my home and
      he was going to come over and put it out on Thursday evening.

(Id. at 38). Ostendorf said that while he was on vacation, he called Calvelage

around two o’clock that Thursday, to remind him about taking the trash out. (Id.).

Around one o’clock in the morning on that Thursday, Ostendorf said that he


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received a call from the sheriff’s department informing him that someone had

broken into his house.      (Id. at 39).       While Ostendorf admitted on cross-

examination that all he had asked Calvelage to do was to go to his house and

empty the garbage, he did state that he had also “kind of left him [Calvelage] in

charge of looking after things,” while he was on vacation. (Id. at 38, 61).

       {¶12} Calvelage was the only other person who provided testimony

regarding the element of “presence” at the Ostendorf’s residence. Calvelage stated

that he lives right next door to Ostendorf and has known him and his family for a

little longer than eight years.    (Id. at 65-66).     On the Tuesday before the

Ostendorf’s left for vacation, Ostendorf called Calvelage and asked him if he

could take out his garbage for the Friday morning pick-up. (Id. at 67). Calvelage

agreed, although he asked Ostendorf to call him back on that Thursday night to

remind him to take out the garbage. (Id. at 67). Ostendorf called Calvelage that

Thursday and reminded him about the trash, and around 11:30 p.m., Calvelage

took out his trash to the road first, then walked down Ostendorf’s driveway to his

house to get Ostendorf’s trash can. (Id. at 68). However, Calvelage said that he

never got around to taking Ostendorf’s trash to the road, because when he got to

the back of the Ostendorf’s house, he “noticed a light inside of [Ostendorf’s]

house that was moving around.” (Id. at 68). As a result, Calvelage said that he

ran back to his house and called 911. (Id. at 69).




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       {¶13} After viewing the evidence in a light most favorable to the

prosecution, we believe that reasonable minds could find that Dewitt was guilty of

burglary beyond a reasonable doubt, because in this particular case, not only was

there sufficient evidence to show that a person was likely to be present the night of

the break-in, but there was sufficient evidence to indicate that a person was present

at the time the break-in was occurring. Even though the Ostendorfs were out of

town on vacation on the night of the break-in, Ostendorf testified that he had asked

Calvelage to look over things while he was gone, and specifically asked him to

take out his trash on the Thursday night before Friday morning pick-up, which

happened to be the night of the break-in. Calvelage did what was asked of him

when he went over to Ostendorf’s house at 11:30 p.m. that Thursday night.

However, his task was never completed because when he reached the back of the

Ostendorf house, he saw a light moving around inside the house and he ran back to

his house to call the police.

       {¶14} Dewitt cites to two cases in support of his position that there was

insufficient evidence to establish that it would have been likely that someone

would have been present at the time of the break-in: State v. Bateman (June 26,

1997), 10th Dist. No. 96APA09-1159; and, State v. Beasley (Aug. 12, 1982), 4th

Dist. No. 893. We acknowledge that there are Ohio courts (including the above

two cases) that have found that evidence supporting a conviction for second-

degree burglary was insufficient where there was no evidence presented to


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demonstrate that someone was regularly checking on the house. See State v.

Grimes (May 19, 1982), 12th Dist. No. 1070 (conviction modified to lesser

included offense of burglary where occupant was away from home for four

months and evidence demonstrated no one else had a key to residence); State v.

Cantin (1999), 132 Ohio App.3d 808, 726 N.E.2d 565 (finding insufficient

evidence where occupant was on vacation for four days prior to burglary and no

evidence demonstrated he had instructed anyone to check on premises while he

was away or that anyone else had a key); State v. Brown, 10th Dist. No. 05AP-

601, 2006-Ohio-2307 (finding insufficient evidence where occupying family was

out of town more than a week and no one else was regularly checking on the

residence); State v. Bateman (June 26, 1997), 10th Dist. No. 96APA09-1159, at

*4-5 (finding insufficient evidence where occupant was out of town for a week

and there was no evidence that he had given anyone a key to his apartment or

permission to enter while he was gone); State v. Beasley (Aug. 12, 1982), 4th Dist.

No. 893, at *3-4 (finding insufficient evidence where occupants had been on

vacation and even though occupants had given a key to a family member and

permission to enter the residence, but the family member failed to check on the

place, evidence will not support a finding that anyone was present or likely to be

present at the time of the trespass).         Nevertheless, we find those cases

distinguishable from this case and that our case is more analogous to the facts




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presented in State v. Pennington, 12th Dist. No. CA2006-11-136, 2007-Ohio-

6572.

        {¶15} In Pennington, the Brennens were out of town for the holiday

weekend, and although their daughter lived with them at the house, she did not

have a key or access to the home while the Brennens were out of town. Id. at ¶37.

Instead, Mr. Brennen had asked his next-door neighbor to keep an eye on the

house while the family was away.         Id.   Although the State had failed to

demonstrate any certainty that Mr. Brennen’s neighbor would be at the home at

the time of the burglary, the Twelfth District Court of Appeals found that Mr.

Brennen’s affirmative instruction to his neighbor to watch the family’s house was

sufficient evidence to demonstrate a likelihood that he could have been present at

the home at the time of the burglary. Id. at ¶39. The court relied in part on the

intent of the General Assembly in creating the elevating offense of second-degree

felony burglary, which is “the protection of occupying residents from burglaries

and the resulting potential harm by attempting to deter criminals.” Id. at ¶40. The

court found that those persons who have been instructed to watch over a residence

should be included as those persons “likely to be present,” given the overall

purpose of the elevated offense (to protect persons from burglaries and from being

harmed by attempting to deter criminals). Id. at ¶40, citing Kilby, 50 Ohio St.2d at

25.




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      {¶16} Here, just like the Pennington case, it was likely that someone would

be present at the Ostendorf’s residence at the time of the burglary given the fact

that Ostendorf had asked Calvelage to watch over things and to come over to the

house and take out the trash on Thursday night for Friday morning pick-up.

Pennington, 2007-Ohio-6572, at ¶40.           More importantly, and unlike the

Pennington case, here Calvelage was actually present while the break-in was

occurring since he had gone to the back of the house to pick up the trash and

noticed a light moving around inside. See id. at ¶¶37-40. But, see, State v.

Hibbard, 12th Dist. Nos. CA2001-12-276, CA2001-12-286, 2003-Ohio-707, at

¶17 (finding sufficient evidence where family was out of town on day of break-in,

but resident’s father was checking on house and discovered break-in). Given the

intent of the General Assembly to protect those persons present during burglaries

from being harmed, we believe that those persons who are instructed to watch over

another’s residence should be included as persons likely to be present for purposes

of the elevated second-degree felony of burglary. In addition, we certainly believe

that Calvelage’s presence at the Ostendorf’s property qualifies him as “any person

present” under R.C. 2911.12(A)(2).

      {¶17} Therefore, because we find that there was sufficient evidence that

someone was “present or likely to be present” for purposes of the second-degree

felony burglary offense under R.C. 2911.12(A)(2), we cannot find that the jury




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lost its way in finding Dewitt guilty of the offense or that the evidence was

otherwise insufficient.

       {¶18} Dewitt’s assignment of error is, therefore, overruled.

       {¶19} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, J., concurs.

ROGERS, J., concurs in Judgment Only.

/jnc




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