[Cite as State v. Lehman, 2018-Ohio-1145.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                         C.A. No.       28724

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOHN LEHMAN                                           COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2017-01-0200

                                DECISION AND JOURNAL ENTRY

Dated: March 28, 2018



        CALLAHAN, Judge.

        {¶1}    Defendant-Appellant, John Lehman, appeals from his conviction in the Summit

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}    The victims in this case are a married couple who reside in a single-family home

in Richfield. On the morning of September 14, 2016, someone burglarized their home while

they were at work. The wife homeowner discovered the break-in when she came home at

lunchtime to care for their dogs. Video surveillance taken from the home, in conjunction with

further investigation, led to the police identifying Mr. Lehman as the perpetrator.

        {¶3}    A grand jury indicted Mr. Lehman on a single count of burglary, in violation of

R.C. 2911.12(A)(2). Mr. Lehman waived his right to a jury, and the matter proceeded to a bench

trial. On the day of trial, Mr. Lehman stipulated to all of the essential elements of his charge,

save for the one requiring the State to prove that someone was likely to be present in the home
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when he burglarized it. After hearing the evidence, the court found him guilty as charged and

sentenced him to six years in prison.

       {¶4}    Mr. Lehman now appeals from his conviction and raises one assignment of error

for this Court’s review.

                                                 II.

                                   ASSIGNMENT OF ERROR

       [MR.] LEHMAN’S CONVICTION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE, MERITING REVERSAL.

       {¶5}    In his sole assignment of error, Mr. Lehman argues that his burglary conviction is

against the manifest weight of the evidence. Specifically, he argues that the court lost its way

when it found that someone was likely to be present at the time he burglarized the homeowners’

residence. This Court disagrees.

       {¶6}    When a defendant argues that his conviction is against the weight of the evidence,

this court must review all of the evidence before the trial court.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.

Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a

judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
                                               3


       {¶7}   A person commits burglary when he (1) uses force, (2) to trespass, (3) in an

occupied structure, (4) where someone other than his accomplice temporarily or permanently

resides, (5) for the purpose of committing a criminal offense, (6) “when [someone] other than an

accomplice * * * is present or likely to be present * * *.” R.C. 2911.12(A)(2). The law does

not presume that someone is “likely to be present” simply because a structure is “occupied.” See

State v. Fowler, 4 Ohio St.3d 16, 18-19 (1983), quoting State v. Wilson, 58 Ohio St.2d 52, 59

(1979). Instead, the State must separately prove each element. See Fowler at 18-19, quoting

Wilson at 59. The “likely to be present” element concerns “the probability or improbability of

actual occupancy occurring during the time of the offense, determined by all the facts

surrounding that occupancy.” State v. Najeway, 9th Dist. Summit No. 13489, 1988 Ohio App.

LEXIS 4269, *5-6 (Oct. 26, 1988).

       Where the [S]tate proves 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, the [S]tate has presented sufficient evidence to support a charge of []
       burglary * * *.

State v. Treichel, 9th Dist. Lorain No. 95CA006296, 1996 Ohio App. LEXIS 4389, *8 (Oct. 2,

1996), quoting Fowler at 19, quoting State v. Kilby, 50 Ohio St.2d 21 (1977), paragraph one of

the syllabus. The trier of fact may infer “from the evidence presented [that] someone was likely

to be present on the day in question.” State v. Walters, 9th Dist. Medina No. 2775-M, 1998 Ohio

App. LEXIS 4615, *8 (Sept. 30, 1998).

       {¶8}   The wife homeowner testified that she habitually left her home for work between

6:30 and 7:00 a.m. and worked until 4:00 p.m. In between those times, however, she regularly

returned home for a lunch hour to care for several dogs. Two of those dogs belonged to her and

her husband, and the third belonged to their daughter and her fiancé. The wife homeowner
                                                 4


testified that she did not always take her lunch hour at the same time and that she regularly

returned home for forgotten items, to care for the dogs, or for various appointments because her

office was located less than three miles away. On the day of the burglary, she left her office at

approximately 11:45 a.m. to return home for lunch.

       {¶9}     The husband homeowner testified that he left for work around 6:30 a.m. the

morning of the burglary and was scheduled to work until 4:00 p.m. He admitted that he seldom

left work once he arrived there, but stated that his schedule could vary from day-to-day and

week-to-week.     Because he worked on weekends, he had two weekdays off instead and

sometimes had to change shifts to cover for his co-workers. Further, he testified that it was

common for him to take vacation days in September because summer was a busy time and he

risked losing his accrued vacation time each year if he did not use it.

       {¶10} There was testimony that the homeowners’ daughter and her fiancé came to the

homeowners’ residence twice each weekday because, while they were working, their dog stayed

with the homeowners’ dogs. The fiancé testified that, around the time of the burglary, he

dropped off their dog between 8:30 a.m. and 9:30 a.m. on Mondays, Tuesdays, and Thursdays,

and his fiancée dropped off the dog before 8:00 a.m. on Wednesdays and Fridays. He also

testified, however, that his schedule varied depending on his clients.

       {¶11} A second homeowner testified that he was home at approximately 8:15 a.m. on

the day of the burglary. While walking to his laundry room, he was startled to see a man

standing outside his front door. He testified that a large portion of his front door was made of

glass, so he could clearly see the man through the door. Noting that his presence also appeared

to have startled the man, he approached the front door and spoke to the man without opening it.

According to the second homeowner, when he asked the man what he was doing there, the man
                                               5


said “something about a lawn mower on Craigslist.” The second homeowner then expressed that

he had no knowledge of that item and watched as the man left, climbed into an SUV, and drove

away.   The defense stipulated that Mr. Lehman was the man at the second homeowner’s

residence that morning.

        {¶12} Mr. Lehman testified in his own defense.       He testified that he went to the

homeowners’ and the second homeowner’s residences on the day of the burglary because he was

trying to locate jewelry that had been stolen from his uncle. Believing that individuals who

resided in the two households had purchased the jewelry on the internet, he went there intending

to buy it back. Mr. Lehman claimed that he went to the homeowners’ residence around 9:30

a.m. the day before the burglary and tried knocking on their door for 5-10 minutes. When no one

answered, he decided to return the following day. Mr. Lehman testified that, on the day of the

burglary, he went to the second homeowner’s residence before driving to the homeowners’

residence. He testified that he was “[p]ositive no one was home” at the homeowners’ residence

because he knocked for several minutes to no avail and a jogger he stopped told him the

residents were at work. On cross-examination, he conceded that he lied to the police when they

interviewed him about this matter.

        {¶13} Mr. Lehman argues that the trier of fact lost its way by convicting him because

the evidence weighs in favor of the conclusion that no one was likely to be present when he

broke into the homeowners’ residence. He notes that, at the time of the burglary, both of the

homeowners were at work and there was evidence that their daughter had already left her dog at

their house. According to Mr. Lehman, the homeowners and their daughter’s fiancé purposely

made it appear that there were frequent variations in their schedules when, in fact, there were

not. He argues that they were well aware that the “likely to be present” element was the only
                                                 6


contested issue in the case because they were present when the parties discussed that issue at the

start of trial and, on cross-examination, admitted discussing that issue in advance of trial. Mr.

Lehman claims that those discussions caused them to exaggerate their schedule variations. As

such, he asserts that their testimony was not credible.

         {¶14} Having reviewed the record, this Court cannot conclude that the trier of fact lost

its way when it found that someone was “likely to be present” at the homeowners’ residence at

the time of the burglary. “‘People come home for many reasons – personal, sickness, lunch,

etc.’” Treichel, 1996 Ohio App. LEXIS 4389, at *9, quoting State v. Tucker, 9th Dist. Lorain

No. 89CA004533, 1990 Ohio App. LEXIS 3191, *6 (Aug. 1, 1990). The wife homeowner

testified that she worked less than three miles from home, came home on a regular basis for

lunch, and otherwise regularly returned home during the week for forgotten items or

appointments. See State v. Wesemann, 9th Dist. Summit No. 25908, 2012-Ohio-247, ¶ 20.

Compare State v. Durham, 49 Ohio App.2d 231 (1st Dist.1976) (evidence on the “likely to be

present” element lacking where the victim lived alone, usually worked during the time of the

break in, and only testified to an occasional variance in his routine). Moreover, her husband and

her daughter’s fiancé both testified to a range of variation in their work schedules. There was

evidence that either the homeowners’ daughter or her fiancé came to the home each morning to

drop off their dog and, when the fiancé brought the dog, he generally arrived during the

timeframe in which the burglary occurred. Based on all of the foregoing testimony, the trier of

fact reasonably could have inferred that someone was likely to be present at the time of the break

in. See Wesemann at ¶ 20; Tucker at *6; Walters, 1998 Ohio App. LEXIS 4615, at *9; Treichal

at *9; State v. Cope, 9th Dist. Lorain No. 3690, 1984 Ohio App. LEXIS 11456, *5-6 (Sept. 12,

1984).
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       {¶15} To the extent Mr. Lehman asserts that the State’s witnesses exaggerated their

testimony, “the trier of fact [was] in the best position to determine [their] credibility * * * and

evaluate their testimony accordingly.” State v. Johnson, 9th Dist. Summit No. 25161, 2010-

Ohio-3296, ¶ 15. “A verdict is not against the manifest weight of the evidence because the

finder of fact chooses to believe the State’s witnesses rather than the defendant’s version of the

events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. Mr.

Lehman has not shown that this is the exceptional case where the evidence weighs heavily

against his conviction. See Otten, 33 Ohio App.3d at 340. Consequently, this Court overrules

his sole assignment of error.

                                                III.

       {¶16} Mr. Lehman’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    LYNNE S. CALLAHAN
                                                    FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

KRISTEN KOWALSKI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
