[Cite as State v. Jones, 2017-Ohio-288.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104233




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   MICHAEL D. JONES
                                                    DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED IN PART; MODIFIED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-598760-A

        BEFORE: Keough, A.J., Kilbane, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: January 26, 2017
ATTORNEY FOR APPELLANT

Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Mary M. Dyczek
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

        {¶1} Defendant-appellant, Michael Jones (“Jones”), appeals the trial court’s

judgment, rendered after a bench trial, finding him guilty of burglary and grand theft, and

sentencing him to consecutive sentences totaling eight and a-half years. We affirm in

part, modify in part, and remand for proceedings consistent with this opinion.

                             I. Factual and Procedural Background

        {¶2} A Cuyahoga County Grand Jury indicted Jones on one count of burglary in

violation of R.C. 2911.12(A)(2), with notice of prior conviction and repeat violent

offender specifications; and grand theft in violation of R.C. 2913.02(A)(1). Jones was

on community control in Cuyahoga C.P. No. CR-15-592895, in which he had pleaded

guilty to aggravated theft, when he was indicted. Jones pleaded not guilty and waived

his right to a jury trial.

        {¶3} Sandra Harris testified at trial that at approximately 3:00 p.m. on August 24,

2015, as she was working in a home on West 35th Street in Cleveland, she saw a man and

a woman running through the next door neighbor’s backyard. About ten minutes later,

Harris saw the same man and woman running through the neighbor’s backyard; this time,

the man was carrying a TV. Harris called the police to report the suspicious activity.

        {¶4} Cleveland police officer David Santiago and his partner responded and

spoke with Harris, who told them the incident had occurred next door at 4229 West 35th

Street. The resident, Fabrice Dongo, was not home, so the police went to Dongo’s other

next-door neighbor to see if that neighbor, Enrique Carmona, had seen anything.
      {¶5} Carmona told the officers that while he was taking out the garbage at

approximately 3 o’clock that afternoon, he had seen a white, bald-headed male and a

white female in his backyard trying to go over the fence. The male was holding a TV

and the woman was holding a laptop computer bag. Carmona said that when he yelled,

“what the hell are you doing?” — the male and female ran away. Carmona described the

male as in his late 20’s to early 30’s, and the female as in her early 20’s, and told the

police that he had seen the male and female “hanging out” at a house on Muriel Street

that was located around the corner from his house only a few minutes’ walk away.

      {¶6} The officers went to the house on Muriel Street and spoke with Betty Jo

Cupach, who told the officers that she lived in the downstairs unit of the home with her

granddaughter and Jones, her granddaughter’s boyfriend. The officers then obtained a

photo of Jones from a law enforcement database and showed the picture to Cupach, who

identified the male in the picture as Jones. Cupach told the officers that she would let

them know when Jones returned home.

      {¶7} The officers then went to Dongo’s house to investigate the suspicious

activity report. The officers found the backdoor of the home open and upon entering saw

that the house had been ransacked. They also found a broken window that had been used

to gain entry to the home. Near the back door, the officers found a black purse that

contained an opened package of men’s white tee shirts and two cell phones. The photo

that appeared on the lockscreen of one of the phones was of Jones.
      {¶8} After they found the cell phone, the police went back to Carmona’s house

and showed him the picture of Jones on the phone. Although Carmona was reluctant to

testify at trial and stated that he could not remember what he told the officers, after

watching a video of his conversation with the officers taken from the officers’ body

cameras, he acknowledged that the video demonstrated that he told the officers he was

“100 percent certain” that the male in the photo on the phone was the same man he had

seen in his backyard.

      {¶9} Dongo testified that he lived alone, and worked during the week as a senior

auditor for an accounting firm and on weekends as a disc jockey. He said that he

sometimes works from home. Dongo testified that he was working in Youngstown, an

hour and a half away from his home, when the burglary occurred.

      {¶10} Dongo said that the police called him at work around 4:00 p.m. on August

24 and told him of the burglary. He arrived home at approximately 5:30 p.m. to find his

house cordoned off and police officers on the scene. He testified that his house was

“messy” and not “the same way I left it when I left the house in the morning.” He

identified for the police numerous items that were missing from his home, including two

laptop computers, two flat screen TV’s, an amplifier, a CD player, several turntables, a

Blu-ray player, several pairs of shoes, shirts, sunglasses, colognes, and a watch. Dongo

placed the total value of the stolen property at $23,662, and said he had not given anyone

permission to take anything from his house on August 24, 2015.
       {¶11} Dongo testified that although he had never spoken to Jones and his

girlfriend, he had seen them sitting on the porch of Cupach’s home on Muriel Street

“always watching, looking at me,” when he came home from work. Dongo identified

Jones in court as the male who lived in the house on Muriel Street and whom he had seen

watching him.

       {¶12} As the police were leaving Dongo’s house, Cupach flagged them down and

told them Jones had returned home. Officer Santiago testified that as he approached

Cupach’s house, he saw Jones standing in the front doorway of the house.             When

Santiago identified himself as a police officer and told Jones that he wanted to speak with

him, Jones turned and fled toward the back of the house. Santiago ran to the rear of the

house, where he saw Jones exit a second story window on top of the roof. When

Santiago ordered Jones to stop, Jones climbed back in the window. Santiago and his

partner swept the house but were unable to find Jones. After searching for several hours,

a SWAT team eventually found him hiding in a crawl space between the walls of

Cupach’s home.

       {¶13} Dongo testified that later that evening, Cupach came to his house and gave

him a package of unopened tee shirts that belonged to him. Cleveland police officer

John Farnsworth testified that he and another officer found Dongo’s laptop, laptop bag,

and his CPA study materials, as well as a blue bag containing Dongo’s RayBan

sunglasses, camera, headphones, perfume, and a plaque with his name on it in a wooded

area behind Cupach’s garage. Cleveland police detective Gerald Hoval confirmed that
the police did not find any of Dongo’s property in Cupach’s house, and that no

fingerprints were obtained from any of the recovered stolen items. He also confirmed

that no fingerprints were taken of the broken window in Dongo’s home, and no DNA

evidence was obtained from inside his home.

       {¶14} Upon the conclusion of the state’s case, the trial court denied Jones’s

Crim.R. 29(A) motion for acquittal.      No witnesses testified in Jones’s defense, and

thereafter, the trial court found him guilty of all counts and in violation of the community

control sanctions in Case No. CR-15-592895. At sentencing, the trial court merged the

burglary and grand theft convictions, and sentenced Jones to seven years incarceration for

the burglary conviction and 18 months for the community control violation, to be served

consecutively. This appeal followed.

                                  II. Law and Analysis

A.     Sufficiency and Manifest Weight of the Evidence

       {¶15} In his first assignment of error, Jones contends that the trial court erred in

denying his Crim.R. 29(A) motion for acquittal because there was insufficient evidence

that he committed burglary and grand theft. In his second assignment of error, Jones

asserts that his convictions are against the manifest weight of the evidence.

       {¶16} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test

for sufficiency requires a determination of whether the prosecution met its burden of

production at trial. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13.

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. State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶17} Jones was convicted of burglary in violation of R.C. 2911.12(A)(2), which

provides the following:

       No person, by force, stealth, or deception, shall * * * [t]respass 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 * * * is present or likely to be present, with
       purpose to commit in the habitation any criminal offense.

       {¶18} He was also convicted of grand theft in violation of R.C. 2913.02(A)(1),

which provides that “[n]o person, with purpose to deprive the owner of property * * *

shall knowingly obtain or exert control over * * * the property * * *[w]ithout the consent

of the owner or person authorized to give consent.”

       {¶19} We find that the state failed to present evidence of the “present or likely to

be present” element of burglary under R.C. 2911.12(A)(2).

       {¶20} This court has discussed the “likely to be present” element of the crime of

second-degree burglary as follows:

       A person is likely to be present when a consideration of all the
       circumstances would seem to justify a logical expectation that a person
       could be present. * * * In determining whether persons were present or
       likely to be present under R.C. 2911.12(A)(2), “the defendant’s knowledge
       concerning habitation is not material. The issue is not whether the burglar
       subjectively believed that persons were likely to be there, but whether it was
       objectively likely.” * * * Merely showing that people dwelled in the
       residence is insufficient; the state must adduce specific evidence that the
       people were present or likely to be present at the time of the burglary. * * *

State v. Cole, 8th Dist. Cuyahoga Nos. 103187, 103188, 103189, and 103190,

2016-Ohio-2936, ¶ 40, quoting State v. Palmer, 8th Dist. Cuyahoga No. 89957,

2008-Ohio-2937, ¶ 13.

       {¶21} The Ohio Supreme Court has recognized that the state can establish the

“likely to be present” element under R.C. 2911.12(A)(2) by showing that the occupants of

the dwelling were “in and out on the day in question” and were temporarily absent when

the burglary occurred.    State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977),

paragraph one of the syllabus. Conversely, Ohio courts have found that “if the occupants

of a house are gone for the entire workday, they are not ‘likely to be present’ during the

day.” 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 Ohio App. LEXIS 4745 (Oct.

12, 2000) (where a person individually occupies an apartment and his usual and ordinary

work habits take him away from that apartment regularly during certain hours of the day,

there is minimal likelihood that a person will be present in the structure) Id. at 14, citing

State v. Lockhart, 115 Ohio App.3d 370, 373, 685 N.E.2d 564 (8th Dist.1996).

       {¶22} In order to prove that someone was “likely to be present,” the state must

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

to the premises to demonstrate the likelihood of a person’s presence at the time of the
offense. State v. Kottner, 1st Dist. Hamilton No. C-120350, 2013-Ohio-2159, ¶ 46.

Here, the state failed to elicit specific evidence that Dongo was likely to be present at the

time of the burglary.

       {¶23} Dongo testified that he lived alone, and that he was employed as an auditor

during the workweek and a disc jockey on the weekends. Although Dongo testified that

he “sometimes” worked at home, there was no testimony regarding when or how often he

worked at home such that the jury could have inferred that he was likely to be present on

the day of the burglary. Did Dongo work at home during the week or only on weekends?

 Was it once a month? Every week? In the morning? In the afternoon?

       {¶24} Likewise, there was no evidence that Dongo ever returned home during the

workday. See State v. Richardson, 8th Dist. Cuyahoga No. 100115, 2014-Ohio-2055, ¶

23 (victim not likely to be present where the burglary occurred shortly before noon on a

workday, and there was no evidence that the victim sometimes returned home during the

workday); State v. Brown, 1st Dist. Hamilton No. C-980907, 2000 Ohio App. LEXIS

1820 (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).

       {¶25} The only testimony whatsoever regarding the likelihood of Dongo being

present in the home was that he “sometimes” worked at home. At most, Dongo’s

testimony that he “sometimes” works at home established a possibility that he could have

been home at the time of the burglary.        But a “mere possibility” is insufficient to
establish the “likely to be present” element. See State v. Smith, 8th Dist. Cuyahoga No.

91715, 2010-Ohio-1655, ¶ 20 (the term “likely” connotes more than a mere possibility but

less than a probability or reasonable certainty.) Although we view the evidence in a light

most favorable to the prosecution upon a sufficiency review, we conclude that in this

case, a reasonable trier of fact could not find, beyond a reasonable doubt, that someone

was likely to be present when the burglary occurred. Accordingly, the state failed to

prove an essential element of burglary under R.C. 2911.12(A)(2).

      {¶26} Nevertheless, Jones may be convicted of the lesser included offense of

burglary under R.C. 2911.12(A)(3) if the evidence is sufficient to establish the offense.

Burglary under R.C. 2911.12(A)(3) is a lesser included offense of burglary under R.C.

2911.12(A)(2) because it contains all the elements of R.C. 2911.12(A)(2) except the

“present or likely to be present” element. Cole, 8th Dist. Cuyahoga Nos. 103187,

103188, 103189, and 103190, 2016-Ohio-2936, at ¶ 45, citing State v. Butler, 8th Dist.

Cuyahoga No. 97649, 2012-Ohio-4152, ¶ 18.

      {¶27} Jones argues that the evidence is insufficient to support his convictions

because no one saw him burglarize the house, and there were no fingerprints or DNA

evidence tying him to the burglary. He also contends that he could not have been the

individual who burglarized Dongo’s home because so many items were stolen but only a

few items were recovered. Finally, he asserts that no one identified him as the male

Harris and Carmona saw running while carrying a TV.
       {¶28} Jones conveniently ignores the substantial circumstantial evidence presented

by the state that, if believed, identifies him as the person who broke into Dongo’s house.

“Like any fact, the state can prove the identity of the accused by ‘circumstantial or direct’

evidence.” State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.2d 888, ¶ 15.

“A witness need not physically point out the defendant in the courtroom as long as there

is sufficient direct or circumstantial evidence proving that the defendant was the

perpetrator.” Id. at ¶ 19.

       {¶29} Carmona testified that on August 24, 2015, he saw a male carrying a TV and

a woman carrying a laptop computer bag in his backyard. He directed the police to the

house on Muriel Street where he had seen the man and woman “hanging out.” Although

Carmona was reluctant to testify at trial and asserted that he could not identify Jones as

the perpetrator, he acknowledged that when the police showed him a picture of Jones on

the lockscreen of a cell phone they had found at the back entrance of the victim’s house

after the burglary, he told the police that he was “100 percent certain” that the individual

on the phone was the male he had seen in his backyard with the TV.

       {¶30} The state presented evidence that the window of Dongo’s house was broken

to gain entry into the home. The state also presented evidence that Jones lived with

Cupach, and that although not all of the stolen items were recovered (presumably because

they were hidden elsewhere), a number of stolen items were found hidden in the bushes

behind Cupach’s garage. On the evening of August 25, 2015, after Jones had been

arrested, Cupach returned to Dongo an unopened package of tee shirts that belonged to
him. Thus, although the police did not find any of the stolen items in Cupach’s house,

Cupach apparently did.

       {¶31} The state also presented evidence that Jones fled from the police when they

approached to question him, and then hid for several hours in a crawl space in Cupach’s

house, forcing the police to break through the drywall to find him. Jones’s flight is

evidence of his consciousness of guilt.       Indeed, “an accused’s flight from custody,

resistance to arrest, concealment, * * * and related conduct are admissible as evidence of

consciousness of guilt, and thus of guilt itself.” State v. Hand, 107 Ohio St.3d 378,

2006-Ohio-18, 840 N.E.2d 151, ¶ 167.

       {¶32} Viewing this evidence in a light most favorable to the prosecution, it is

apparent that any rational trier of fact could have found the essential elements of burglary

under R.C. 2911.12(A)(3) and grand theft in violation of R.C. 2913.02(1) proven beyond

a reasonable doubt. Thus, the evidence was sufficient to support Jones’s convictions, as

modified.

       {¶33} Likewise, Jones’s convictions, as modified, are not against the manifest

weight of the evidence.      In contrast to a sufficiency argument, a manifest weight

challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th

Dist. Cuyahoga No. 92226, 2009-Ohio-3598, ¶ 12. A reviewing court “weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d. at 388, 678 N.E.2d 541.

A conviction should be reversed as against the manifest weight of the evidence only in

the most “exceptional cases in which the evidence weighs heavily against the conviction.”

 Id.

       {¶34} This is not that exceptional case. The circumstantial evidence against Jones

is overwhelming. The victim, Dongo, testified that Jones was “always watching” him

from the porch of the house on Muriel Street when he returned home from work. After

the burglary, the police found a cellphone near the backdoor of Dongo’s house with a

picture of Jones on the lockscreen. When the police showed the picture to Carmona, he

pointed out the house on Muriel Street where the male hung out, and told the police that

he had seen the male that afternoon in his backyard carrying a TV. Cupach, who lived at

the house on Muriel Street, told the police that Jones also lived there.   The police found

a number of stolen items in the bushes behind Cupach’s garage. And Jones fled from the

police and hid for hours in Cupach’s house after the police approached him and told him

they wanted to talk to him.

       {¶35} The only possible inference from this evidence is that Jones burglarized

Dongo’s house when he knew Dongo would not be home.                   Accordingly, Jones’s

convictions for burglary under R.C. 2911.12(A)(3), as modified, and grand theft under

R.C. 2913.02(A)(1) are not against the manifest weight of the evidence.

       {¶36} Under App.R. 12(A)(1)(a), this court has the authority to modify the trial

court’s judgment. Therefore, we remand with instructions for the trial court to modify
the judgment of conviction to find Jones guilty of burglary under R.C. 2911.12(A)(3) and

to resentence him accordingly. The first assignment of error is sustained in part, and the

second assignment of error is overruled.

B.     Consecutive Sentences

      {¶37} In his third assignment of error, Jones contends that the trial court erred in

imposing consecutive sentences.

      {¶38} Consecutive sentences may be imposed only if the trial court makes the

required findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive sentences may

be imposed if the trial court finds that (1) consecutive sentences are necessary to protect

the public from future crime or to punish the offender, and (2) consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public.     In addition, the court must find that any one of the

following applies:

      (1) the offender committed one or more of the multiple offenses while
      awaiting trial or sentencing, while under a sanction, or while under
      postrelease control for a prior offense;

      (2) at least two of the multiple offenses were committed as part of one or
      more courses of the conduct, and the harm caused by two or more of the
      offenses was so great or unusual that no single prison term for any of the
      offenses committed as part of any of the courses of conduct adequately
      reflects the seriousness of the offender’s conduct; or

      (3) the offender’s history of criminal conduct demonstrates that consecutive
      sentences are necessary to protect the public from future crime by the
      offender.
       {¶39} In order to impose consecutive terms of imprisonment, a trial court must

both make the statutory findings mandated for consecutive sentences under R.C.

2929.14(C)(4) at the sentencing hearing and incorporate those findings into its sentencing

entry. Bonnell at the syllabus.

       {¶40} Jones concedes that the trial court made the appropriate findings at the

sentencing hearing, and the journal entry of sentencing reflects those findings.

Accordingly, this assignment of error is without merit and overruled.

       {¶41} Judgment affirmed in part, modified in part, and remanded.

       It is ordered that the costs herein taxed be shared equally.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.         The defendant’s convictions, as

modified, having been affirmed, any bail pending appeal is terminated. Case remanded

to the trial court for proceedings consistent with this opinion.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
