[Cite as State v. James, 2012-Ohio-966.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. W. Scott Gwin, P.J.
                       Plaintiff-Appellee      :      Hon. John W. Wise, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :      Case No. 11 CAA 05 0045
KENNETH E. JAMES                               :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Delaware County Court of
                                                   Common Pleas Case No. 10 CR I 06 0313


JUDGMENT:                                          AFFIRMED, IN PART; REVERSED &
                                                   REMANDED, IN PART

DATE OF JUDGMENT ENTRY:                            March 7, 2012


APPEARANCES:

For Plaintiff-Appellee:                               For Defendant-Appellant:

BRIAN J. WALTER                                       DAVID H. BIRCH
Assistant Prosecuting Attorney                        2 West Winter Street
140 North Sandusky Street                             Delaware, Ohio 43015
Delaware, Ohio 43015
[Cite as State v. James, 2012-Ohio-966.]


Delaney, J.

        {¶1}     Defendant-appellant Kenneth E. James appeals his conviction and

sentence in the Delaware County Court of Common Pleas.

        {¶2}     By jury verdict rendered April 15, 2011, appellant was found guilty of one

count of theft ($5,000 or more but less than $100,000), in violation of R.C.

2913.02(A)(1), a felony of the fourth degree; and one count of burglary, in violation of

R.C. 2911.12(A)(2), a felony of the second degree.          By entry filed April 21, 2011,

appellant was sentenced to six years in prison on the burglary charge, consecutive to

twelve months on the theft charge. The trial court determined that the charges did not

merge for purposes of sentencing.

        {¶3}     Appellant timely appealed and raises three assignments of error:

        {¶4}      “I.    THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S

MOTION FOR ACQUITTAL MADE AT THE CLOSE OF ALL EVIDENCE.

        {¶5}     “II. THE CONVICTION WAS AGAINST THE MANIFEST WEIGH (SIC)

OF THE EVIDENCE.

        {¶6}     “III.   THE TRIAL COURT ERRED BY FINDING THAT COUNT ONE,

BURGLARY, AND COUNT TWO, THEFT, DO NOT MERGE FOR PURPOSES OF

SENTENCING.

                                             I., II.

        {¶7}     In the first and second assignments of error, appellant challenges the

sufficiency and weight of the evidence upon which the jury verdict rested.

        {¶8}     The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
Delaware County, Case No. 11 CAA 05 0045                                                  3


St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held:        “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. 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.”

       {¶9}   In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as a “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” State v. Thompkins, supra, at 387

(citation omitted). Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶10} The state presented four witnesses at trial. The first witness was Brian

Hourt, the victim, who testified he returned to his residence on Home Road, Delaware,

Ohio, in the evening of July 16, 2008, to find that his Honda ATV and five fishing poles

had been removed from his garage and other belongings had been moved. The home
Delaware County, Case No. 11 CAA 05 0045                                               4


is set several hundred feet back from the road and is secluded by trees. The side

access door to the garage was partially open. He also noticed a discarded cigarette

butt in the driveway near the front of the garage. Mr. Hourt thought this was unusual

because neither he nor anyone who frequents his home smokes cigarettes. Mr. Hourt

testified he typically works 8:30 a.m to 5 p.m., and returns home in the evening and

sleeps there; however, after he returned home from work on July 15th, he left and did

not return home because he had stayed overnight in Columbus.

       {¶11} The police were contacted and Sheriff’s Deputy Stayer responded to the

scene. Deputy Stayer took photographs, which were admitted at trial, and collected the

cigarette butt as evidence. Sheriff’s Detective Bessinger testified he sent the cigarette

butt to the Bureau of Criminal Identification and Investigation (“BCI”) for DNA analysis

and a preliminary match was made to appellant. Detective Bessinger attempted to

locate appellant to obtain an oral DNA standard for a one-on-one comparison. He was

able to locate appellant in April, 2010 and obtained an oral swab. During the police

interview, appellant denied involvement in the burglary, but later he made a statement

indicating he may have taken something from outside the residence.

       {¶12} The state’s last witness was Kristen Slaper, a forensic scientist from BCI.

She testified she compared the DNA profile obtained from the cigarette butt to

appellant’s oral swab standard.     Her results indicated that appellant could not be

excluded as the source of DNA from the cigarette butt and the expected frequency of

the same DNA profile occurrence was 1 in 127,600,000,000,000,000,000 unrelated

individuals.
Delaware County, Case No. 11 CAA 05 0045                                                5


       {¶13} Appellant argues the State did not present sufficient evidence to convict

him of burglary because the evidence was uncontroverted that neither Mr. Hourt nor

anyone else was present during the burglary and theft.

       {¶14} Appellant was convicted of burglary, a violation of R.C. 2911.12(A)(2),

which provides:

       {¶15} “(A) No person, by force, stealth, or deception, shall do any of the

following:

       {¶16} “ * * *

       {¶17} “(2) Trespass in an occupied structure * * * 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.”

       {¶18} Therefore, in order to be convicted of second degree burglary of a

residence, the state must prove that it was objectively likely that a person was likely to

be present at the time of the break-in. State v. Haas, 11th Dist. No. 2009-P-0068, 2010-

Ohio-6249, ¶ 38. Several Ohio appellate courts, including this court, have reversed

burglary convictions    that involved    temporarily absent occupants        (usually for

employment) and the prosecutor failed to meet its burden of proving that a person was

present or was likely to be present when the defendant broke into the residence. See,

State v. Rothrock, 8th Dist. No. 93602, 2010-Ohio-4102, State v. Jackson, 188 Ohio

App.3d 803; 2010-Ohio-1846, 937 N.E.2d 120 ( 4th Dist.); State v. Broyles, 5th Dist. No.

2009 CA 0072, 2010-Ohio-1837; State v. Mitchell, 183 Ohio App.3d 254, 2009-Ohio-

3393, 916 N.E.2d 876 (6th Dist.); State v. McCoy, 10th Dist. No. 07AP-769, 2008-Ohio-

3293; State v. Miller, 2nd Dist. No. 2006 CA 98, 2007-Ohio-2391.
Delaware County, Case No. 11 CAA 05 0045                                                  6


       {¶19} Conversely, the Ohio Supreme Court and other appellate courts have

upheld burglary convictions if the state presented evidence from which a trier of fact

could permissively infer that someone was likely to be present at the time of the

trespass. See, State v. Fowler, 4 Ohio St.3d 16, 445 N.E.2d 1119 (1983); State v.

Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977); In the Matter of D.P., 6th Dist. No. L-

10-1054, 2011-Ohio-285; State v. Haas, supra.

       {¶20} Viewing the evidence in the light most favorable to the prosecution, as we

are required to do, we conclude the state presented sufficient evidence that would allow

a rational trier of fact to find it was likely that a person would be present. In this case,

the burglary happened during a 24-hour window, from Mr. Hourt’s departure from his

home on the evening of July 15th until his return in the evening of July 16th. Mr. Hourt

testified he normally was only absent from the residence during his work day. It was

very unusual that he did not return home to sleep on the night of July 15th. Therefore, a

reasonable juror could conclude that it was more likely than not that someone would be

in the home during the 24-hour time frame.

       {¶21} Appellant further argues his conviction was against the manifest weight of

the evidence because the only evidence linking him to the crimes was his DNA found on

the discarded cigarette butt.

       {¶22} The elements of an offense may be established by direct evidence,

circumstantial evidence or both.     State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674

(1991).   Circumstantial evidence is defined as, “ ‘[t]estimony not based on actual

personal knowledge or observation of the facts in controversy, but of other facts from

which deductions are drawn, showing indirectly the facts, sought proved. * * *’ ”. State v.
Delaware County, Case No. 11 CAA 05 0045                                               7

Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black’s Law Dictionary

(5th Ed.1979) 221. Circumstantial and direct evidence are of equal evidentiary value.

State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991).

      {¶23} The DNA found on the discarded cigarette butt physically linked appellant

to the crime scene. The condition of the cigarette butt indicated it had been left there

recently. Mr. Hourt indicated he did not smoke, no one was present at the residence

recently, and he would have noticed the butt there and cleaned it up.    In addition, the

jury heard appellant’s statement to Detective Bessinger indicating his concern with the

accusation of being inside the residence, and could possibly admit to the crime if the

items were taken from outside the home.

      {¶24} When considering the evidence as a whole, and all reasonable inferences,

we find the verdict did not create such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.

      {¶25} The first and second assignments of error are overruled.

                                              III.

      {¶26} In the third assignment of error, appellant contends that his convictions for

burglary and theft should have merged.

      {¶27} R.C. 2941.25 provides:

      {¶28} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

      {¶29} “(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or
Delaware County, Case No. 11 CAA 05 0045                                            8


similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the defendant may be

convicted of all of them.”

       {¶30} The Ohio Supreme Court held in State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 122, that upon guilty verdicts on allied offenses, the state

must elect which of the offenses it chooses to seek sentencing for, and the court must

accept the state’s choice and merge the crimes into a single offense for purposes of

sentencing. Id. at ¶ 24.

       {¶31} The Ohio Supreme Court’s most recent pronouncement on allied offenses

is found in State v. Johnson, 128 Ohio St.3d, 2010-Ohio-6314, 942 N.E.2d 1061,

wherein the Court held: “When determining whether two offenses are allied offenses of

similar import subject to merger under R.C. 2941.25, the conduct of the accused must

be considered.” Id. at syllabus. The court redefined the test for determining whether

multiple offenses should be merged as allied offenses of similar import under R.C.

2941.25, and overruled its prior decision in State v. Rance, 85 Ohio St.3d 632, 710

N.E.2d 699 (1999) “to the extent that it calls for a comparison of statutory elements

solely in the abstract under R.C. 2941.25.” Id. at ¶ 14.

       {¶32} As noted previously, appellant was convicted of burglary, a violation of

R.C. 2911.12(A)(2), which provides:

       {¶33} “(A) No person, by force, stealth, or deception, shall do any of the

following:

       {¶34} “ * * *
Delaware County, Case No. 11 CAA 05 0045                                                  9


       {¶35} “(2) Trespass in an occupied structure * * * 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.”

       {¶36} Appellant also was found guilty of theft under R.C. 2913.02(A)(1), which

provides that “[n]o 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 [.]”

       {¶37} We note that prior to Johnson, the Ohio Supreme Court ruled in State v.

Mitchell, 6 Ohio St.3d 416, 453 N.E.2d 593 (1983), that aggravated burglary (previously

codified under R.C. 2911.11) and theft do not constitute allied offenses of similar import

under R.C. 2941.25(A).

       {¶38} In Johnson, the Court found that the felony offenses of felony murder and

child endangering were allied because the same conduct constituted the commission of

two offenses of similar import. “In determining whether offenses are allied offenses of

similar import under R.C. 2941.25(A), the question is whether it is possible to commit

one offense and commit the other with the same conduct, not whether it is possible to

commit one without committing the other. * * * 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.” (Citation omitted). If the answer to both questions is yes, then the offenses are

allied offenses of similar import and will be merged. Conversely, if the court determines

that the commission of one offense will never result in the commission of the other, or if

the offenses are committed separately, or if the defendant has separate animus for
Delaware County, Case No. 11 CAA 05 0045                                               10

each offense, then according to R.C. 2941.25(B), the offenses will not merge.” Johnson,

supra, at ¶48-51.

         {¶39} Since appellant’s sentencing herein, three Ohio appellate districts have

addressed merger of sentences for burglary and theft convictions in the post-Johnson

era.     State v. Ruby, 6th Dist. No. S-10-028, 2011-Ohio-4864, ¶ 59 (holding that

aggravated burglary and grand theft counts should have been merged as allied offenses

for sentencing where theft of firearms and money was the purpose and grand incidence

of the burglary into residence); State v. Blackburn, 4th Dist. No. 10CA46, 2011-Ohio-

4624, ¶ 15-16 (finding it is possible to commit the offenses of burglary, theft, and

receiving stolen property with the same conduct and were actually committed by the

same conduct when the defendant trespassed inside a home to steal a television, stole

the television and retained it); State v. Bridgeman, 2nd Dist. No. 2010 CA 16, 2011-

Ohio-2680, ¶ 54 (holding that the offenses of aggravated burglary and grand theft were

committed with a single state of mind where the defendant forcibly entered a bank to

commit grand theft, threatened the employees with a firearm, and left with money from

bank).

         {¶40} Applying Johnson to the facts of this case, we find the burglary and theft

charges stem from appellant’s conduct of entering the garage to steal the items therein.

Appellant committed both offenses through a single course of conduct and with single

state of mind. Therefore, the charges are allied offenses and should have been merged.

The state retains the right to elect which allied offense to pursue on resentencing.

         {¶41} The third assignment of error is sustained.
Delaware County, Case No. 11 CAA 05 0045                                        11


      {¶42} We therefore affirm, in part, and reverse, in part, the judgment of the

Delaware County Court of Common Pleas and remand this matter to the trial court for

proceeding consistent with this decision.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. JOHN W. WISE
[Cite as State v. James, 2012-Ohio-966.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                       Plaintiff-Appellee      :
                                               :
                                               :
-vs-                                           :    JUDGMENT ENTRY
                                               :
KENNETH E. JAMES                               :
                                               :
                       Defendant-Appellant     :    Case No. 11 CAA 05 0045
                                               :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed, in part, and

reversed, in part. The cause is remanded to the trial court for proceedings consistent

with the Opinion. Costs assessed equally to the parties.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. JOHN W. WISE
