[Cite as State v. Bowshier, 2016-Ohio-8184.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :   Appellate Case No. 2016-CA-17
         Plaintiff-Appellee                          :
                                                     :   Trial Court Case No. 2015-CR-383
 v.                                                  :
                                                     :   (Criminal Appeal from
 HEATHER BOWSHIER                                    :    Common Pleas Court)
                                                     :
         Defendant-Appellant                         :
                                                     :

                                                ...........
                                               OPINION
                          Rendered on the 16th day of December, 2016.
                                                ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

CHARLES W. SLICER, III, Slicer Law Office, 111 West First Street, Suite 518, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                               .............

FAIN, J.

        {¶ 1} Defendant-appellant Heather Bowshier appeals from her conviction for

Burglary and Aggravated Burglary.               She contends that her conviction is against the

manifest weight of the evidence, and that the State failed to present evidence sufficient
                                                                                         -2-


to sustain the conviction. She further claims that she was denied the effective assistance

of counsel.   Finally, Bowshier contends that the trial court abused its discretion in

imposing sentence.

       {¶ 2} We conclude that Bowshier has not demonstrated ineffective assistance of

counsel. However, we conclude that her convictions for Aggravated Burglary, and for

Burglary under R.C. 2911.12(A)(1), are not supported by sufficient evidence, because

there is no evidence in the record that someone other than Bowshier or her accomplice

was present in the premises at the time of the offense. Finally, we conclude that any

alleged error in Bowshier’s sentence is moot.

       {¶ 3} Accordingly, that part of the judgment of the trial court convicting Bowshier

of Aggravated Burglary and of Burglary in violation of R.C. 2911.12 (A)(1) is Reversed,

that part of the judgment of the trial court convicting Bowshier of Burglary in violation of

R.C. 2911.12(A)(2) is Affirmed, and this cause is Remanded for re-sentencing in

accordance with this opinion.



                      I. Trespass leads to Burglary Conviction

       {¶ 4} On July 1, 2015, Bowshier and her friend, Cheri Farmer, entered the

apartment of Saira House. Upon returning from shopping, House immediately noticed

that the front door was open, but the security chain was fastened inside the apartment,

preventing her from entering. House left the door ajar, and went down a flight of stairs

to the second floor of the building, where she used her cellular telephone to call her

neighbor, Jeremy Denny.

       {¶ 5} Denny went down to the second floor hallway to check on House, and told
                                                                                        -3-


her to remain there. He then went back up to the third floor where he observed that

House’s apartment door was open about two inches. He observed the door shut, and

heard what he believed to be the dead bolt being operated. About two minutes later,

Denny observed two women exiting the apartment. He grabbed a black bookbag being

carried by one woman, later identified as Bowshier, in an attempt to stop her from leaving.

Denny told Bowshier that he knew she did not live there, and that the police were on their

way. At that point, Bowshier punched Denny in the face, at which time he “knee’d her

out of instinct.” Tr. p. 195. According to Denny, Bowshier then told him she had a gun,

so he backed away.

       {¶ 6} In the meantime, House had called 911, and was speaking with the

dispatcher. She returned to the stairwell off the third floor, where she observed the back

of a woman running down the hall.        She also observed Denny confront Bowshier.

House recognized Bowshier, who was dating House’s ex-boyfriend.               Denny then

returned to the stairwell where House was standing. House remained on the phone with

a dispatcher while she and Denny went to Denny’s apartment where they were able to

observe Bowshier running out of the building. They then observed a vehicle leave the

complex parking lot.

       {¶ 7} Following an investigation, Bowshier and Farmer were identified as the

perpetrators.



                             II. The Course of Proceedings

       {¶ 8} Bowshier was indicted on one count of Aggravated Burglary (Physical Harm)

in violation of R.C. 2911.11(A)(1); one count of Aggravated Burglary (Deadly Weapon) in
                                                                                        -4-


violation of R.C. 2911.11(A)(2); one count of Burglary in violation of R.C. 2911.12(A)(1);

and one count of Burglary in violation of R.C. 2911.12(A)(2). Following a jury trial, she

was convicted on all counts except Aggravated Burglary (Deadly Weapon).

       {¶ 9} The trial court merged the three convictions, and the State elected to have

Bowshier sentenced for the conviction of Aggravated Burglary. After considering a pre-

sentence investigation report and conducting a sentencing hearing, the trial court

sentenced Bowshier to a five-year term of imprisonment.

       {¶ 10} From the judgment of the trial court, Bowshier appeals.



        III. Bowshier Was Not Denied the Effective Assistance of Counsel

       {¶ 11} Bowshier’s Second Assignment of Error states:

              COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE AS SHE

       DID NOT ADVISE HER CLIENT OF HER RIGHT TO TESTIFY IN HER

       OWN DEFENSE AND FURTHER, COUNSEL FOR DEFENDANT DID NOT

       ADEQUATELY OBJECT TO THE IN-COURT IDENTIFICATION.

       {¶ 12} Bowshier contends that her counsel was ineffective by failing to advise her

of the right to testify in her own defense, and by failing to make proper objections to her

in-court identification by the victim, House.

       {¶ 13} “Ineffective assistance of counsel allegations are reviewed de novo to

determine if the counsel's deficient performance prejudiced the outcome. To reverse a

decision based on ineffective assistance, the record must support a finding that defense

counsel's performance was deficient, and that a reasonable probability exists that, but for

counsel's omissions, the resulting outcome would have been different.” State v. Williams,
                                                                                           -5-


2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 20.

       {¶ 14} We have recognized that “the right to testify is an inherently personal right

and is exercised or waived by the client, not the attorney.” State v. Copeland, 2d Dist.

Montgomery No. 18711, 2002 WL 63161, *2 (Jan. 18, 2002). We recently addressed

such a claim of ineffective assistance of counsel by stating that “[a]lthough the ultimate

decision whether to testify rests with the defendant, when a tactical decision is made not

to have the defendant testify, the defendant's assent is presumed.” State v. Matzdorff, 2d

Dist. Montgomery No. 26370, 2015-Ohio-901, ¶ 23.

       {¶ 15} We have also stated that “a claim of ineffective assistance of counsel does

not lie in a direct appeal from a criminal conviction ‘where the allegations of

ineffectiveness are based on facts not appearing of record.’ ” State v. Kumpfel, 2d Dist.

Clark No. 11-CA-45, 2012-Ohio-1980, ¶16 (Grady P.J., concurring), citing State v.

Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983). “Absent evidence to the

contrary, the appellate court must presume that a defendant-appellant's failure to testify

was the result of his knowing and intelligent decision.” Copeland, supra at *3, citing State

v. Carter, 115 Ohio App.3d 770, 776, 686 N.E.2d 329 (7th Dist.1996).

       {¶ 16} Since Bowshier has presented no evidence to counter the presumption that

her failure to testify was the result of her own knowing and intelligent decision, we

presume that Bowshier was appropriately counseled by her attorney, that she made the

decision not to testify, and that her trial counsel was not ineffective for complying with her

client's election not to testify.

       {¶ 17} With regard to the in-court identification, both House and Denny identified

Bowshier as the person they saw outside of House’s apartment. Bowshier complains
                                                                                      -6-


that the State asked House leading questions regarding the identification of Bowshier.

However, identification of Bowshier was also supported by the testimony of the

investigating officers who prepared and administered an identification process through

the use of a standard six-person photo array shown to House and Denny. Both positively

identified Bowshier on the photo arrays as the person seen in their apartment building.

No objection was made to the photo-array identification process, and no error regarding

that process has been asserted on appeal.

       {¶ 18} “The law is clear, however, that where the in-court identification is based

upon independent recollection and observation rather than the suggestive procedure, it

is proper for the court to allow the in-court identification.” State v. Jones, 8th Dist.

Cuyahoga No. 38333, 1979 WL 209948, *3 (Feb. 8, 1979), citing State v. Jackson, 26

Ohio St.2d 74, 269 N.E.2d 118 (1971); Simmons v. United States, 390 U.S. 377, 88 S.Ct.

967, 19 L.Ed.2d 1247 (1968). “The test to be used in determining the ‘independent

recollection’ of the observer is to consider the total circumstances surrounding the

observation.” Id.

       {¶ 19} In the case before us, the totality of the circumstances demonstrates that

House already knew Bowshier because of Bowshier’s relationship with House’s former

boyfriend. House recognized Bowshier when she saw her outside of the apartment, and

she identified Bowshier during the investigation from a photo array. Based upon these

facts, we conclude that Bowshier has not shown that she was prejudiced by her counsel’s

failure to object to House’s in-court identification.

       {¶ 20} We conclude that the record does not establish that Bowshier received

ineffective assistance of counsel. Her Second Assignment of Error is overruled.
                                                                                         -7-




        IV. Bowshier’s Aggravated Burglary Conviction Is Not Supported

                                 by Sufficient Evidence

       {¶ 21} Bowshier’s Third Assignment of Error states:

              THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT

       GUILTY OF AGGRAVATED BURGLARY AS SUCH A FINDING IS

       AGAINST THE MANIFEST AND/OR SUFFICIENT WEIGHT OF THE

       EVIDENCE AND THE EVIDENCE PRESENTED WAS INSUFFICIENT TO

       SUPPORT THE CONVICTION.

       {¶ 22} Bowshier contends that the conviction for Aggravated Burglary must be

vacated because it is not supported by sufficient evidence.

       {¶ 23} To determine whether a conviction is against the manifest weight of the

evidence, an appellate court reviews the evidence to “determine whether 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, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). In contrast, when determining whether a conviction is supported by

the sufficiency of the evidence, “the relevant inquiry is whether any rational factfinder

viewing the evidence in a light most favorable to the state could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Dennis, 79 Ohio St.3d

421, 430, 683 N.E. 2d 1096 (1997), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

       {¶ 24} In her brief, Bowshier makes a general assertion, without argument, that

her conviction for Aggravated Burglary, in violation of R.C. 2911.11(A)(1), is not supported
                                                                                          -8-


by the evidence. That statute provides that “[n]o person, by force, stealth, or deception,

shall trespass in an occupied structure or in a separately secured or separately occupied

portion of an occupied structure, when another person other than an accomplice of the

offender is present, with purpose to commit in the structure or in the separately secured

or separately occupied portion of the structure any criminal offense, if * * * the offender

inflicts, or attempts or threatens to inflict physical harm on another.”      Similarly, the

offense of Burglary under R.C. 2911.12(A)(1), also requires proof of a trespass in an

occupied structure, “when another person other than an accomplice of the offender is

present.” By contrast, the offense of Burglary under R.C. 2911.12(A)(2), requires merely

proof of a trespass in an occupied structure, “when any person other than an accomplice

of the offender is present or likely to be present.” (Emphasis added). The difference

between proving that someone is present or likely to be present is significant, and requires

different evidence.

       {¶ 25} An “occupied structure” is defined as any house or building that is

maintained as a permanent or temporary dwelling or habitation whether or not any person

is actually present. R.C. 2909.01(C).

       {¶ 26} As noted by the Eighth District Court of Appeals, in State v. Butler, 8th Dist.

Cuyahoga No. 97649, 2012-Ohio-4152, ¶ 8:

              The unlawful-entry-in-a-dwelling offenses – aggravated burglary,

       burglary, and breaking and entering – prohibit the same conduct

       (trespassing in a structure with the intent to commit a criminal offense) and

       differ only on the risk of harm the actions pose. The most serious of the

       offenses – aggravated burglary – requires the offender to be armed or
                                                                                        -9-


      requires that he inflicts, attempts to inflict, or threatens to inflict harm on

      another. See R.C. 2911.11. The intermediate offense – burglary – presents

      a less serious scenario than aggravated burglary because it does not entail

      the use of a weapon or threat or infliction of harm, yet can still pose a risk

      of harm when a person is present or likely to be present. See Committee

      Comment to R.C. 2911.12 (burglary “is viewed as serious, because of the

      higher risk of personal harm involved in maliciously breaking and entering

      an occupied, as opposed to an unoccupied, structure.”           Breaking and

      entering is the least serious in the hierarchy because a trespass in an

      unoccupied structure carries a “comparatively low risk of personal harm[.]”

      See Committee Comment to R.C. 2911.13.

      {¶ 27} No one was in the apartment when Bowshier and Farmer entered it using

the key that House testified she had given to her ex-boyfriend. When House arrived at

her apartment and realized it was occupied, she retreated to another floor, and remained

away from the apartment until it was empty. At no time was anyone other than Bowshier

and Farmer present in the apartment while the trespass was occurring, thereby reducing

the risk of harm.1 Thus, the record contains facts sufficient to establish the trespass of

an occupied structure, but the facts do not support the element of a person’s presence in

the occupied structure during the trespass, required by R.C. 2911.11(A).

      {¶ 28} The State argues that House was present at the time of the incident. Thus,


1
  Denny’s decision to await the perpertrators in the hallway does not cause the offense
to escalate to the level of Aggravated Burglarly. It was his decision to place himself in
possible danger by confronting the defendants, rather than merely retreating and calling
the police. We do not suggest that House could not have been charged with a different
offense, such as Assault, against Denny.
                                                                                         -10-


the question arises whether House’s presence in the hallway or stairwell inside the

apartment building during the trespass is sufficient to meet the elements of the two

offenses that require a person’s presence. One court in Ohio has held that, for purposes

of Burglary under R.C. 2911.12(A)(2) [present or likely to be present], the common area

between apartments, including a hallway, is a portion of the occupied structure or part of

a habitation, when the hallway is not open to the public, and only accessible by use of a

key. State v. Grant, 8th Dist. Cuyahoga No. 94220, 2010-Ohio-5483, ¶ 20. However, the

theft in that case involved items stored in the hallway. Id., ¶ 2. Furthermore, the case

suggests that the hallway was shared by only two apartments. Id. Grant was limited to

a violation of R.C. 2911.12(A)(2), which only requires the likelihood of another’s presence,

and was not extended to Aggravated Burglary. Therefore, we find Grant distinguishable

from the facts herein because, although House testified that the hallway of the apartment

complex could not be entered without the use of a key, the evidence also demonstrates

that the halls are accessible from each apartment located on every floor of the building.

       {¶ 29} We agree with the Eighth District, which stated in State v. Butler, 8th Dist.

Cuyahoga No. 97649, 2012-Ohio-4152, a case issued two years after Grant:

              The state argues that the victim lived in a duplex that had a common

       hallway with stairs going up to the door to the witness's apartment and that

       Butler's entry into the victim's apartment would allow him access to the

       common hallway and stairway leading to the witness's apartment. This

       evidence, the state maintains, was sufficient to show that the witness was

       present at the time of burglary and could have been the object of harm as

       a result of the break-in.
                                                                                         -11-




              We have rejected this same argument as being too broad. To

       highlight its fragility, in State v. Colon, 8th Dist. No. 61253, 1992 WL 389074

       (Dec. 17, 1992), we gave as an example a high-rise apartment complex that

       has shared common halls with doors to any number of individual

       apartments. Taking the state's argument to its logical conclusion would

       suggest that, as long as any person in the entire high-rise building was

       present in his or her own apartment, a trespass in an apartment where a

       person was not present or likely to be present would be sufficient to

       establish the elements of burglary under R.C. 2911.12(A)(2).

Id., ¶ 13 – 14.

       {¶ 30} Without sufficient evidence to prove all elements of the offenses of

Aggravated Burglary and Burglary under R.C. 2911.12(A)(1), we conclude that

Bowshier’s convictions for these two offenses must be reversed.

       {¶ 31} The reversal of the convictions for the offenses of Aggravated Burglary, and

for Burglary under R.C. 2911.12(A)(1), does not affect the conviction for Burglary under

R.C. 2911.12(A)(2). The record does contain sufficient evidence to support all the

elements of Burglary under R.C. 2911.12(A)(2), including the element that the trespass

occurred when House was present or likely to be present. We have recognized that “the

‘likely to be present’ element is satisfied where the structure is a permanent dwelling

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

in question, and the occupants were temporarily absent when the burglary occurred.”

State v. Miller, 2d Dist. Clark No. 2006 CA 98, 2007-Ohio-2361, ¶ 16, citing State v. Kilby,
                                                                                       -12-

50 Ohio St.2d 21, 23, 361 N.E.2d 1336 (1977); State v. Fowler, 4 Ohio St.3d 16, 19, 445

N.E.2d 1119 (1983). In the case before us, the evidence supported a finding that the

apartment was occupied as a principal dwelling, and that House was out shopping at the

time the trespass was initiated, and was not gone for any extended length of time.

      {¶ 32} Based on the insufficiency of evidence, Bowshier’s Third Assignment of

Error is sustained, and the convictions for Aggravated Burglary and for Burglary under

R.C. 2911.12(A)(1) are reversed, resulting in a remand for the purpose of resentencing

on the remaining Burglary conviction.



       V. Bowshier’s Assignment of Error Challenging her Sentence Is Moot

      {¶ 33} Bowshier’s First Assignment of Error provides as follows:

             THE TRIAL COURT COMMITTED ABUSE OF DISCRETION WHEN

      IT    IMPOSED       A   FIVE      (5)   YEAR    SENTENCE,        DID    NOT

      REVIEW/CONSIDER THE FACTORS CONTAINED IN O.R.C. 2929.11 OR

      2929.12 AND DID NOT CONSIDER THE CO-DEFENDANT’S SENTENCE

      OR COMMUNITY CONTROL.

      {¶ 34} Bowshier contends that the trial court committed error when it imposed a

five-year sentence for Bowshier, while Farmer, who was tried jointly, only received a one-

year sentence.

      {¶ 35} As explained above, Bowshier’s convictions for Aggravated Burglary, and

for Burglary under R.C. 2911.12(A)(1), are being reversed based on the insufficiency of

the evidence. Until Bowshier is resentenced based on her conviction for Burglary in

violation of R.C. 2911.12(A)(2), a second-degree felony, it is premature to address any
                                                                                    -13-


error in sentencing. Should Bowshier choose to appeal after her resentencing, we can

then review the trial court’s application of all statutory sentencing guidelines.

       {¶ 36} Bowshier’s First Assignment of Error is overruled as moot.



                                      VI. Conclusion

       {¶ 37} Bowshier’s Third Assignment of Error having been sustained, her Second

Assignment of Error having been overruled, and her First Assignment of Error having

been overruled, that part of the judgment of the trial court convicting Bowshier of

Aggravated Burglary and Burglary under R.C. 2911.12(A)(1), and sentencing Bowshier

for Aggravated Burglary is Reversed, Bowshier’s conviction for Burglary under R.C.

2911.12(A)(2) is Affirmed, and this cause is Remanded for resentencing in accordance

with this opinion.

                                      .............



DONOVAN, P.J., and FROELICH, J., concur.



Copies mailed to:

Megan M. Farley
Charles W. Slicer, III
Hon. Douglas M. Rastatter
