 [Cite as State v. Bennington, 2019-Ohio-4386.]
                                   IN THE COURT OF APPEALS OF OHIO
                                      FOURTH APPELLATE DISTRICT
                                           ADAMS COUNTY


STATE OF OHIO,                                             :

       Plaintiff-Appellee,                                 : Case No. 18CA1078

       vs.                                                 :

TERRY L. BENNINGTON,                                       : DECISION AND JUDGMENT ENTRY


       Defendant-Appellant.                                :

_________________________________________________________________

                                                 APPEARANCES:

Timothy Young, Ohio Public Defender, and Jonathan Tewart, Assistant State Public Defender,
Columbus, Ohio, for appellant.1

C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant
Prosecuting Attorney, West Union, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 10-22-19
ABELE, J.

         {¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction

 and sentence. Terry L. Bennington, defendant below and appellant herein, was convicted of burglary

 in violation of R.C. 2911.12(A)(2), burglary in violation of R.C. 2911.12(A)(1), and two counts of

 felonious assault in violation of R.C. 2903.11(A)(2). Appellant assigns one error for review:

                  ASSIGNMENT OF ERROR:

                  “THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE THAT
                  ANY PERSON WAS PRESENT OR LIKELY TO BE PRESENT AT 477

         1
             Different counsel represented appellant during the trial court proceedings.
ADAMS, 18CA1078                                                                                   2

              SHOEMAKER ROAD, AT THE TIME OF THE BURGLARY. R.C.
              2911.12(A)(2). (OCTOBER 1, 2018 TRIAL TRANSCRIPT, P. 158-184,
              193-203, 206-224, 229-239).” 1

                                                   I.

         {¶ 2} In August 2018, an Adams County Grand Jury returned an indictment that charged

appellant with (1) one count of burglary in violation of R.C. 2911.12(A)(2), a second-degree felony,

(2) one count of burglary in violation of R.C. 2911.12(A)(1), a second-degree felony, (3) one count of

felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, and (4) one count of

felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony. The charges stemmed

from two incidents that involved the burglary of the homes of William Moore and Jerry Toller.

         {¶ 3} At the October 1, 2018 jury trial, one victim, homeowner William Moore, testified that

he, along with his wife, lived at 475 Shoemaker Road for 45 years, but moved in May 2018 to be

closer to their daughter who helped him care for his ailing wife. Moore testified that he still has

furniture and other items at the property, that the utilities are functional, and he visits the property

every day to retrieve mail. Moore’s son-in-law, Paul Wheeler, has cattle at the farm and he checks

them every Sunday. Moore testified that during July 16 and 17, he “was in the house every day” and

“[e]verything was like it was when we left.” Moore also explained that, when he and his wife lived

in the farm house, they lived in three rooms and “had a lot of other stuff in the other rooms that we

didn’t use.” Moore stated that, when he visited the property on July 16, the house had been broken

into, things were missing, and the house looked “like a tornado went through.”

         {¶ 4} Moore’s grandson, James Dunseith, testified that the property is a farm with several

barns, some outbuildings, a garage, shop, and a farmhouse where his grandfather lived for 40 to 45

years.    Dunseith explained that his grandfather visited the property “pretty well every day” to get
ADAMS, 18CA1078                                                                                   3

his mail, and there he kept tax papers, bills, and personal belongings, and that his grandfather had

moved out “more or less” temporarily. Dunseith stated that he visited the property on a regular

basis, and that, although some cobwebs were around the home, it looked “pretty well like we lived

there.” Dunseith acknowledged, however, that the family had not mowed the yard for most of the

summer, although “a path on the other side of the house more towards the door that led to the living

room there was a path that cut back where you could pull a truck or pull equipment in there but for

the most part, yes, it was grown up.”

       {¶ 5} On Saturday morning on the weekend of the burglary, Dunseith testified that his

grandfather visited the property to retrieve the mail and the house was untouched. However, when

he returned Monday morning on July 16, 2018, the door was open, items missing, and the house

ransacked. Dunseith called the sheriff’s office who came to investigate and noted that “a lot of

things that were kind of staged close to the door” that “looked like they would be coming back.”

       {¶ 6} Later that night, Dunseith and his cousin returned to the farm and hid in a barn across

the road to observe the home. At approximately 1:00 a.m., appellant and three others arrived at the

property. After calling law enforcement, Dunseith observed two suspects exit the house, set a TV

on the porch and start to cross the road toward appellant’s vehicle. However, Dunseith’s warning

shot apparently stopped the two men. After appellant exited the house, Dunseith informed him that

the sheriff was on the way and he should get on the ground. Appellant did not heed the warning and

instead returned to his vehicle and drove away. At that point, Dunseith fired shots at the car.

       {¶ 7} West Union Police Officer Dakota Brown testified that he responded to the call and he

secured the suspects and the home. Brown testified that the house was “tossed. There were items

and just like clothes everywhere. There was just, it was basically what you would expect a storage
ADAMS, 18CA1078                                                                                    4

shed to look like.”     Brown stated, “the house seemed abandoned. Seemed like it was being used

as an excess storage unit.”

       {¶ 8} The other burglary victim (count two), Terry Toller, testified that he owns the property

at a different location and, on July 17, he was preparing the vacant farm house for his daughter.

Toller returned to the property at 6:00 a.m. and noticed the broken door jamb. After Toller pushed

the door open, he “looked through the living room and through the kitchen I seen feet in the bed in

the back bedroom. I walked straight to the feet and took a picture [of appellant] in there asleep on

my bed.” Toller called his neighbor, Denver Williams, who came to the house and, while the two

men talked, appellant awakened and attempted to exit the bedroom. When Toller and Williams

tried to detain appellant, appellant retrieved a pipe and struck both Toller and Williams. Toller then

wrestled appellant into a headlock and held him until police arrived.

       {¶ 9} After a two-day trial, the jury found appellant guilty on all four counts. The trial court

sentenced appellant to serve five years in prison on count one, three years on count two, two years on

count three, and three years on count four, all to be served consecutively, for an aggregate thirteen

year sentence. The court also ordered appellant to pay $1,667 in restitution to Jerry Toller. This

appeal followed.

                                                   II.

       {¶ 10} In his sole assignment of error, appellant asserts that the prosecution failed to provide

sufficient evidence that any person was present, or likely to be present, at 477 Shoemaker Road at the

time of the burglary.

       {¶ 11} “When a court reviews the record for sufficiency, ‘[t]he relevant inquiry is whether,

after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could
ADAMS, 18CA1078                                                                                  5

have found the essential elements of the crime proven beyond a reasonable doubt.’” State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; following Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The court must defer to the trier of fact on

questions of credibility and the weight assigned to the evidence.” State v. Dillard, 4th Dist. Meigs

No. 13CA9, 2014-Ohio-4974, ¶ 22, citing State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15

N.E.3d 818, ¶ 132; State v. Lodwick, 2018-Ohio-3710, 118 N.E.3d 948, ¶ 9 (4th Dist.).

       {¶ 12} In the case sub judice, appellant was convicted, inter alia, of two counts of burglary.

The count at issue in this case is the Shoemaker Road incident (count one), a second-degree felony in

violation of R.C. 2911.12(A)(2) and (D). R.C. 2911.12 provides in relevant part:

       (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 purpose to commit in the habitation any criminal offense;

       ***

       (D) Whoever violates division (A) of this section is guilty of burglary. A violation of
       division (A)(1) or (2) of this section is a felony of the second degree. A violation of
       (A)(3) of this section is a felony of the third degree. (Emphasis added).


       {¶ 13} The Supreme Court of Ohio has determined that the state meets its burden if it

presents evidence “that an occupied structure is a permanent dwelling house which is regularly

inhabited, that the occupying family was in and out on the day in question, and that such house was

burglarized when the family was temporarily absent.” State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d
ADAMS, 18CA1078                                                                                 6

1336 (1977), paragraph one of the syllabus (construing former R.C. 2911.11(A)(3)). The court held

that the “likely to be present” requirement is intended to target the “type and use of the occupied

structure and not literally whether individuals will be home from work or play at a particular time.”

Kilby at 25-27, 361 N.E.2d 1336.

       {¶ 14} In State v. Jackson, 188 Ohio App.3d 803, 2010-Ohio-1846, 937 N.E.2d 120 (4th

Dist.), this court pointed out that numerous Ohio appellate courts have reversed burglary convictions

that involved temporarily absent occupants (usually for employment) when the prosecution provided

no evidence to show that work schedules made it likely that the occupants could be at the residence

when the break-in occurred. In Jackson, the occupant rented a mobile home from his parents, spent

most of the month in which the break-in occurred at his parents’ home rather than the rental

premises, and conceded at trial that he probably would have been at his parents the night the break-in

occurred. Jackson at ¶ 7. This court concluded that the prosecution “introduced no evidence to

show that the occupant was at the residence, would be at the residence, or planned to be at the

residence during the time of the burglary.” Id. at ¶ 12.

       {¶ 15} More recently, we addressed similar arguments related to the “likely to be present”

element in State v. Griffith, 4th Dist. Pickaway No. 17CA14, 2017-Ohio-8855. In Griffith, the

occupant and his family left their home at separate times on the day of the burglary with plans to

camp in an adjacent county for the weekend. On the evening of the first day of the camping trip, the

occupant returned home to take a shower. When he arrived home, however, he found his next door

neighbor inside his home. Griffith at ¶ 8-9. The state presented evidence that the family regularly

inhabited their personal dwelling house, the occupants were in and out of the house on the day in

question and temporarily absent during the burglary. Id. at ¶ 37. We upheld Griffith’s conviction
ADAMS, 18CA1078                                                                                    7

for second-degree felony burglary and concluded that the state sufficiently proved someone was

likely to be present in the house at the time of the burglary. Id. at ¶ 38.

       {¶ 16} In State v. Lodwick, 2018-Ohio-3710, 118 N.E.3d 948 (4th Dist.), we again considered

the “likely to be present” element. R.C. 2911.12(A)(2). The state presented evidence that the

occupants used the home as their primary residence, and one occupant typically worked from 7:30

a.m. to 3:00 p.m. at a school ten minutes from his home, was free to leave school at lunch, which he

sometimes did between 10:30 and 11:00 a.m., and was free to leave work and come home any day

during his work day if he needed to run an errand or had forgotten something at home. The other

occupant did not work, was usually home during the day, and the only reason she was not present on

the day of the burglary was because of a doctor’s appointment a short distance from their home. In

that case, this court concluded that the state sufficiently proved that the couple “used the residence at

issue as their primary dwelling and regularly inhabited it.” Lodwick at ¶ 21. Further, the evidence

presented by the state demonstrated that one occupant was usually home at the time of the burglary,

but she was in and out on the day in question and temporarily absent at the time of the burglary.

More important, this court noted that “[t]here is no evidence indicating Harris was gone from the

home for an extended period of time or was routinely absent from the home at the time the burglary

occurred.” Thus, this court concluded that sufficient evidence supported the jury’s determination

that someone was likely to be present in the residence at the time of the burglary. Id.

       {¶ 17} As we noted in Lodwick, the issue is not whether a burglar subjectively believed that

persons were, or were not, likely to be at the occupied structure, but whether it was objectively

likely. Lodwick at ¶ 18, citing State v. Braden, 2018-Ohio-563, 106 N.E.3d 827, ¶ 8 (1st Dist.),

citing State v. Cravens, 1st Dist. Hamilton No. C-980526, 1999 WL 567098, *1 (June 25, 1999).
ADAMS, 18CA1078                                                                                      8

The First District Court of Appeals held that “objectively likely to be present” means the “probability

or improbability of actual occupancy which in fact exists at the time of the offense, determined by all

the facts surrounding the occupancy.”        In re Meatchem, 1st Dist. Hamilton No. C-050291,

2006-Ohio-4128, ¶ 16. “‘Likely’ means more likely than not. That is, there must be a greater than

50% likelihood that someone will be in the dwelling at the time of the burglary.” Meatchem at ¶ 17.

       {¶ 18} The First District’s Braden decision also included a detailed list of cases that provide

examples of fact patterns that led to either affirmances or reversals of findings that someone was, or

was not, “likely to be present”:

       Ohio courts have decided a number of cases describing the type of evidence that the
       state can offer to establish the ‘likely to be present’ element. See, e.g., State v. Kilby,
       50 Ohio St.2d 21, 361 N.E.2d 1336 (1977) (likely to be present element satisfied
       where home's occupants were across the street at a neighbor's house); State v. Weber,
       10th Dist. Franklin No. 97APA03–322, 1997 WL 798299 (Dec. 23, 1997) (likely to
       be present element satisfied where home owners were away on vacation, but others
       had permission to be in the house and neighbor was watching property while owners
       were absent); State v. Beverly, 2d Dist. Clark No. 2005 CA 85, 2007-Ohio-1028, 2007
       WL 706806 (likely to be present element satisfied where occupants were away from
       the house for about one and a half hours during the evening); State v. Young, 8th Dist.
       Cuyahoga No. 87613, 2006-Ohio-5723, 2006 WL 3095685 (likely to be present
       element satisfied where evidence showed that occupants did not work on weekends,
       and burglary occurred on a Sunday); State v. Baker, 12th Dist. Butler No.
       CA2003-01-016, 2003-Ohio-5986, 2003 WL 22532913 (likely to be present element
       satisfied where occupant was a retiree with no fixed schedule); State v. Palmer, 8th
       Dist. Cuyahoga No. 89957, 2008-Ohio-2937, 2008 WL 2424455 (likely to be present
       element satisfied where evidence established burglary occurred close to the time
       occupants would have left for work). Critically, where the occupants of a house are
       almost always absent as part of their fixed work schedule, they are not likely to be
       present during their regular working hours. See, e.g., State v. Frock, 2d Dist. Clark
       No. 2004 CA 76, 2006-Ohio-1254, 2006 WL 677715 (likely to be present element not
       satisfied where occupant regularly came home from work to walk her dog around 2
       p.m., and burglary occurred between 1:00 p.m. and 1:30 p.m.); State v. Brown, 1st
       Dist. Hamilton No. C–980907, 2000 WL 492054 (Apr. 28, 2000) (likely to be present
       element not satisfied where burglary occurred during the occupant's workday, and no
       evidence was offered that the occupant ever came home during his workday); State v.
       Lockhart, 115 Ohio App.3d 370, 685 N.E.2d 564 (8th Dist.1996) (likely to be present
ADAMS, 18CA1078                                                                                       9

       element not satisfied where home's occupant testified that burglary occurred while she
       was at work, and that she did not return to her house at varying times). Braden at
       ¶ 11-12.


       {¶ 19} In the case sub judice, after our review of the relevant case law and the trial transcript,

we agree with appellant that the prosecution failed to adduce sufficient evidence to establish that any

person was “likely to be present” at the time of the burglary. Construing this evidence most strongly

in favor of the prosecution, Moore lived elsewhere with his wife in July 2018 and visited the house

only a few minutes each day Monday-Saturday to retrieve the mail.               Other relatives visited

occasionally to check cattle.   Although other family members may have checked the property from

time to time, as the Braden court noted, “likely” does not mean “could.” Braden, supra, at ¶ 8.

       {¶ 20} Further, although the state contends that Moore’s grandsons’ stakeout of the farm the

night of the burglary supports the “likely to be present” element, the grandsons positioned

themselves in the barn across the road from the house during the burglary, not in the occupied

structure, and, but for the initial break-in, the stakeout of the property would not have occurred.

       {¶ 21} Courts have also concluded that if occupants of a home are gone for the entire work

day, they are not “likely to be present” during the day. See State v. Miller, 2d Dist. Clark No. 2006

CA 98, 2007-Ohio-2361, ¶ 16; see also State v. Meisenhelder, 8th Dist. Cuyahoga No. 76764, 2000

WL 1513695 (Oct.12, 2000), State v. Lockhart, 115 Ohio App.3d 370, 373, 685 N.E.2d 564 (8th

Dist.1996). Thus, when a homeowner is only at the property for a few minutes each day, and when

other family members only sporadically check the property, an occupant is not “likely to be present”

at the time of the burglary for purposes of a R.C. 2911.12(A)(2).

       {¶ 22} Therefore, based on the foregoing reasons, we believe that insufficient evidence
ADAMS, 18CA1078                                                                                10

exists, as a matter of law, of the element of anyone likely to be present to support appellant’s

burglary conviction under R.C. 2911.12(A)(2).       Consequently, we (1) sustain appellant’s sole

assignment of error, and (2) reverse appellant’s conviction for second-degree burglary under R.C.

2911.12(A)(2), and (3) remand this cause to the trial court to enter judgment finding appellant guilty

of felony third-degree burglary under R.C. 2911.12(A)(3) and to impose sentence him for that

offense.

                                                    JUDGMENT REVERSED IN PART AND
                                                    CAUSE REMANDED FOR FURTHER
                                                    PROCEEDINGS CONSISTENT WITH THIS
                                                    OPINION.
ADAMS, 18CA1078                                                                                     11

                                         JUDGMENT ENTRY

         It is ordered that the judgment be reversed in part and the cause remanded for further
proceedings consistent with this opinion to enter judgment finding appellant guilty of felony
third-degree burglary under R.C. 2911.12(A)(3) and impose sentence for that offense. Appellant
shall recover of appellee the 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 Adams County
Common Pleas Court to carry this judgment into execution.
         If a stay of execution of sentence and release upon bail has been previously granted by the
trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail
previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period,
or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of
sixty days, the stay will terminate as of the date of such dismissal.
         A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.

       Hess, J.: Concurs in Judgment & Opinion
       Smith, P.J.: Dissents

                                                       For the Court




                                                       BY:
                                                          Peter B. Abele, Judge
ADAMS, 18CA1078                                                                              12


                                     NOTICE TO COUNSEL
        Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.
