[Cite as State v. Henry, 2012-Ohio-371.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      GALLIA COUNTY


State of Ohio,                                  :
                                                :
             Plaintiff-Appellee,                :         Case No: 10CA20
                                                :
             v.                                 :
                                                :         DECISION AND
Ryan C. Henry,                                  :         JUDGMENT ENTRY
                                                :
             Defendant-Appellant.               :         Filed: January 25, 2012



                                           APPEARANCES:

Timothy Young, Ohio Public Defender, and Kristopher A. Haines, Ohio Assistant Public
Defender, Columbus, Ohio, for Appellant.

C. Jeffrey Adkins, Gallia County Prosecutor, Eric R. Mulford, Gallia County Assistant
Prosecutor, and Pat Story, Gallia County Assistant Prosecutor, Gallipolis, Ohio, for
Appellee.


Kline, J.:

        {¶1}      Ryan C. Henry (hereinafter “Henry”) appeals the judgment of the Gallia

County Court of Common Pleas. After a jury trial, Henry was convicted of six crimes

related to a series of break-ins and thefts. And initially, Henry claims that insufficient

evidence supports his two burglary convictions. We agree. As the state concedes, the

prosecution failed to introduce sufficient evidence that a person other than an

accomplice was present or likely to be present during the burglaries. Accordingly, we

order the trial court to modify its judgment and enter convictions for two lesser-included

offenses. Next, Henry argues that insufficient evidence supports his theft-of-a-firearm

conviction. Again, we agree. The state failed to introduce sufficient evidence that the
Gallia App. No. 10CA20                                                               2


stolen muzzle-loader was either operable or readily rendered operable. Accordingly, we

order the trial court to modify its judgment and enter a conviction for misdemeanor petty

theft. Next, Henry argues that the trial court erred when it instructed the jury on theft of

a motor vehicle. We disagree. Because failing to instruct the jury on the definition of

“motor vehicle” did not affect the outcome of Henry’s trial, there can be no plain error.

Finally, we decline to address Henry’s remaining arguments because they are either

moot or not ripe for review.

       {¶2}   Accordingly, we affirm, in part, and reverse, in part, the judgment of the

trial court, and we remand this cause to the trial court for further proceedings consistent

with this opinion.

                                              I.

       {¶3}   Henry participated in a series of break-ins and thefts in Gallia County.

After he was arrested, Henry admitted his involvement in the crimes and cooperated

with the police. Later, a Gallia County Grand Jury returned a seven-count indictment

against Henry. In count one, Henry was charged with stealing an All Terrain Vehicle

(“ATV”) from Eddie Coleman. In counts two and five, Henry was charged with

knowingly trespassing with purpose to commit a felony. In counts three and seven,

Henry was charged with second-degree-felony burglary under R.C. 2911.12(A)(2). In

count four, Henry was charged with theft of a firearm for stealing Kevin Ross’s “muzzle

loader with scope.” And in count six, Henry was charged with stealing an ATV from

Joan Edwards. At one point, Henry had apparently reached a plea agreement with the

state. But at the change-of-plea hearing, Henry decided to go to trial.
Gallia App. No. 10CA20                                                                 3


       {¶4}   During the trial, the state did not introduce specific evidence that a person

other than Henry’s accomplice was present or likely to be present during the two

burglaries. Furthermore, the owner of the stolen muzzle-loader did not testify, and no

witnesses testified as to the muzzle-loader’s operability. Nevertheless, following the

trial, the jury convicted Henry of counts one, two, three, four, six, and seven. The trial

court then sentenced Henry accordingly.

       {¶5}   Henry appeals and asserts the following four assignments of error: I. “The

trial court violated Mr. Henry’s rights to due process and a fair trial when, in the absence

of sufficient evidence, the trial court convicted Mr. Henry of two counts of burglary under

R.C. 2911.12(A)(2), and one count of theft of a firearm, in violation of his Fifth, Sixth,

and Fourteenth Amendment rights under the United States Constitution, and Sections

10 and 16, Article I of the Ohio Constitution.” II. “The trial court committed reversible

error when it failed to properly instruct the jury regarding its deliberations, in violation of

Mr. Henry’s Fifth, Sixth, and Fourteenth Amendment rights under the United States

Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.” III. “The trial

court abused its discretion when it imposed excessive individual prison sentences

against Mr. Henry regarding each conviction, and imposed an excessive aggregate

prison sentence, in violation of Mr. Henry’s Sixth, Eighth, and Fourteenth Amendment

rights under the United States Constitution, and Sections 9, 10 and 16, Article I of the

Ohio Constitution.” And, IV. “Trial counsel rendered ineffective assistance of counsel in

violation of Mr. Henry’s rights under the Fifth, Sixth, and Fourteenth Amendments to the

United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”

                                               II.
Gallia App. No. 10CA20                                                                    4


       {¶6}    In his first assignment of error, Henry raises sufficiency-of-the-evidence

arguments related to his two burglary convictions (counts three and seven) and his

conviction for theft of a firearm (count four).

       {¶7}    When reviewing a case to determine if the record contains sufficient

evidence to support a conviction, we must “‘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. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶33, quoting

State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph two of the syllabus. See, also,

Jackson v. Virginia (1979), 443 U.S. 307, 319.

       {¶8}    The sufficiency-of-the-evidence test “raises a question of law and does not

allow us to weigh the evidence.” Smith, 2007-Ohio-502, at ¶34, citing State v. Martin

(1983), 20 Ohio App.3d 172, 175. Instead, the sufficiency-of-the-evidence test “‘gives

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.’” Smith, 2007-Ohio-502, at ¶34, quoting Jackson at 319. This court will “reserve

the issues of the weight given to the evidence and the credibility of witnesses for the

trier of fact.” Smith, 2007-Ohio-502, at ¶34, citing State v. Thomas (1982), 70 Ohio

St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio St.2d 230, at paragraph one of the

syllabus.

                                                A.
Gallia App. No. 10CA20                                                                5


       {¶9}   Initially, Henry contends that insufficient evidence supports his two

burglary convictions. Henry advances the same argument for both of these convictions

-- that is, the state failed to prove that a person other than an accomplice was present or

likely to be present during the burglaries.

       {¶10} Henry was convicted of two counts of burglary under 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 other than an accomplice of the offender is present or likely to

be present, with purpose to commit in the habitation any criminal offense[.]” Here, the

state has conceded that it “did not satisfactorily prove, by sufficient evidence, the

‘present or likely to be present’ element for [the two burglary counts].” Brief of Appellee

at 4. For the following reasons, we agree with Henry and the state.

       {¶11} As the state admits, “there was scant testimony on” the present-or-likely-

to-be-present issue. Brief of Appellee at 3-4. Furthermore, we note the following: “The

fact that a permanent or temporary habitation has been burglarized does not give rise to

the presumption that a person was present or likely to be present.” In re D.P., Lucas

App. No. L-10-1054, 2011-Ohio-285, at ¶11, citing State v. Wilson (1979), 58 Ohio St.2d

52, 59-60; State v. Fowler (1983), 4 Ohio St.3d 16. “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.” In re D.P. at

¶11, citing Fowler at 18 (other citation omitted). In prosecuting the two burglary counts,

the state failed to adduce specific evidence on the present-or-likely-to-be-present issue.
Gallia App. No. 10CA20                                                              6


And based on the state’s evidence, there was no reasonable presumption that a person

other than an accomplice was present or likely to be present. Accordingly, we find that

insufficient evidence supports Henry’s two burglary convictions under R.C.

2911.12(A)(2).

       {¶12} For both burglary counts, however, Henry may be convicted of a lesser-

included offense. “Where the evidence is insufficient to show that defendant is not

guilty of the degree of crime for which he was convicted, but the evidence is sufficient to

support a verdict of guilty of a lesser degree thereof or of a lesser crime included in the

greater crime, the trial court may modify the verdict accordingly and pass sentence on

the verdict as modified. See R.C. 2945.79(D) and Crim.R. 33[(A)(4)]. Both R.C.

2945.79(D) and Crim.R. 33[(A)(4)] provide a reviewing court with the power to modify a

judgment. [See] State v. Reed (1981), 65 Ohio St.2d 117, [] 123. The Ohio Rules of

Appellate Procedure also authorize a court of appeals to modify a judgment. See

App.R. 12(B) and State v. Hagwood, Franklin App. No. 04AP-879, 2005-Ohio-2131, at

¶20.” State v. Frazier, Franklin App. No. 05AP-1323, 2007-Ohio-11, at ¶28.

       {¶13} Here, Henry may be convicted of the lesser-included offense of burglary

under R.C. 2911.12(A)(3). “R.C. 2911.12(A)(3) defines burglary as trespassing in an

occupied structure by force, stealth, or deception with the purpose to commit in the

structure any criminal offense. Thus, R.C. 2911.12(A)(3) omits the one element on

which the state had failed to present sufficient evidence in this case -- the presence or

likely presence of someone other than an accomplice of the offender. Because burglary

as defined in R.C. 2911.12(A)(2) cannot be committed without also having committed

the lesser offense set forth in R.C. 2911.12(A)(3), there was sufficient evidence to
Gallia App. No. 10CA20                                                              7


[convict Henry of burglary under R.C. 2911.12(A)(3)].” In re Meatchem, Hamilton App.

No. C-050291, 2006-Ohio-4128, at ¶23.

       {¶14}    Accordingly, we reverse Henry’s two burglary convictions and remand

this cause to the trial court. On remand, we instruct the trial court to modify its judgment

and enter two third-degree-felony burglary convictions under R.C. 2911.12(A)(3). After

that, the trial court should resentence Henry accordingly.

                                             B.

       {¶15} Henry also contends that insufficient evidence supports his conviction for

theft of a firearm. Essentially, Henry argues that the state failed to adduce sufficient

evidence regarding the stolen muzzle-loader’s operability. We agree.

       {¶16} Henry was convicted of theft of a firearm under R.C. 2913.02(A)(1) &

(B)(4). “‘Firearm’ means any deadly weapon capable of expelling or propelling one or

more projectiles by the action of an explosive or combustible propellant. ‘Firearm’

includes an unloaded firearm, and any firearm that is inoperable but that can readily be

rendered operable.” R.C. 2923.11(B)(1); see, also, R.C. 2913.01(EE). Significantly,

“the state must present evidence beyond a reasonable doubt that the firearm was

operable, or could readily have been rendered operable, at the time of the offense.”

State v. Murphy (1990), 49 Ohio St.3d 206, 208-09. Here, we find that the state failed

to present sufficient evidence regarding the muzzle-loader’s operability.

       {¶17} Although the state produced evidence that Henry stole the muzzle-loader,

none of that evidence related to the muzzle-loader’s operability. For example, two

property receipts list a “Stainless/Blk Muzzle Loader w/Scope,” and several witnesses

mentioned that a “muzzle loader with a scope” was returned to Kevin Ross. But as
Gallia App. No. 10CA20                                                              8


Henry notes, the muzzle-loader “was not otherwise discussed at trial, and its

characteristics were not discussed during the taped interviews of Mr. Henry and his

codefendant brother. * * * Mr. Ross, the muzzleloader’s owner, did not testify at trial.

The state brought forth no testimony regarding the muzzleloaders’ operability or

whether it was ‘capable of expelling or propelling one or more projectiles by the action

of an explosive or combustible propellant.’ * * * The item itself was not presented at trial

for the jury’s consideration. Moreover, the State submitted no evidence regarding test-

firing.” Reply Brief of Ryan Henry at 3. Here, we agree with Henry’s assessment of the

evidence. “It would have been a simple matter to either test fire the [muzzle-loader], or

at least to ask [Kevin Ross] about its operability. However, the state did neither.”

Matter of Arledge (Sept. 4, 1996), Ross App. No. 95 CA 2164.

       {¶18} The state claims that it produced sufficient evidence because the term

“‘muzzleloader with scope’ is common parlance for a firearm within the meaning of R.C.

2923.11(B).” Brief of Appellee at 7. Essentially, the state argues that the jurors could

have “use[d] their own common sense and daily vernacular” to find that the muzzle-

loader was operable. Brief of Appellee at 7. But Ohio courts have rejected the notion

that, without additional evidence, operability may be inferred from the name used to

describe an alleged firearm. For example, the victim of a theft used common names for

firearms while testifying in State v. Boyd (Dec. 4, 1998), Lucas App. No. L-97-1366.

The victim testified that a “gauge pump shotgun,” a “12-gauge shotgun,” a “.50 caliber

black powder rifle,” and several other guns were stolen from his home. Id. And despite

“shotgun” and “rifle” being common names for firearms, the Sixth Appellate District

found an “utter lack of evidence concerning the operability of the guns appellant
Gallia App. No. 10CA20                                                              9


allegedly stole[.]” Id. See, also, Matter of Arledge (finding no proof of operability

despite using the name “gun”); State v. Webb (1991), 72 Ohio App.3d 749, 754 (finding

no proof of operability despite using the names “uzi,” “.45 Colt,” and “Smith & Wesson

Model 19”). Accordingly, we reject the state’s argument that the jury could have

reasonably inferred operability merely from the term “muzzle loader with scope.”

       {¶19} Finally, we recognize that proof of operability can be established by

“circumstantial evidence, including, but not limited to, the representations and actions of

the individual exercising control over the firearm.” R.C. 2923.11(B)(2). But here, aside

from the term “muzzle loader with scope,” there was no circumstantial evidence related

to the muzzle-loader’s operability.

       {¶20} For the foregoing reasons, we find that there is insufficient evidence of the

muzzle-loader’s operability. As a result, insufficient evidence supports Henry’s theft-of-

a-firearm conviction. “However, this error does not mandate the reversal of the

conviction. It warrants only a reduction in the degree of the offense[.]” State v. Reese,

165 Ohio App.3d 21, 2005-Ohio-7075, at ¶36. The evidence demonstrates that Henry

stole the muzzle-loader. Henry does not dispute this fact. But the state did not prove

that Henry stole a firearm as defined by the statute, and the state did not charge Henry

with theft based on the value of the stolen muzzle-loader. Therefore, for count four,

Henry may be convicted only of petty theft. See, generally, id. (stating that “value is not

an actual element of the crime of theft”). Accordingly, on remand, we instruct the trial

court to modify its judgment and enter a conviction for misdemeanor petty theft under

R.C. 2913.02(A)(1). After that, the trial court should resentence Henry accordingly.

                                             III.
Gallia App. No. 10CA20                                                                 10


       {¶21} In his second assignment of error, Henry raises various issues based on

the trial court’s jury instructions. Initially, we can dispose of two of these issues. Henry

claims that the trial court erred in both (1) its burglary instructions and (2) its theft-of-a-

firearm instructions. Based on our resolution of Henry’s first assignment of error,

however, we find that these arguments are moot. Therefore, we decline to address

them. See App.R. 12(A)(1)(c).

       {¶22} In his sole remaining argument, Henry contends that the trial court erred in

its theft-of-a-motor-vehicle instructions. Henry was convicted of stealing two ATVs.

And on appeal, he argues that “the trial court failed to define for the jury the definition of

‘motor vehicle’ under Ohio law and instruct the jury that before it could return guilty

verdicts, it was required to find beyond a reasonable doubt that the ATVs were, in fact,

motor vehicles under Ohio law.” Merit Brief of Ryan Henry at 20.

       {¶23} “Generally, a trial court has broad discretion in deciding how to fashion

jury instructions. A trial court must not, however, fail to ‘fully and completely give the

jury all instructions which are relevant and necessary for the jury to weigh the evidence

and discharge its duty as the fact finder.’ State v. Comen (1990), 50 Ohio St.3d 206,

[at] paragraph two of the syllabus. Additionally, a trial court may not omit a requested

instruction, if such instruction is ‘a correct, pertinent statement of the law and [is]

appropriate to the facts * * *.’ State v. Lessin[,] 67 Ohio St.3d 487, 493, [1993-Ohio-52]

(quoting State v. Nelson (1973), 36 Ohio St.2d 79, [at] paragraph one of the syllabus).”

Smith v. Redecker, Athens App. No. 08CA33, 2010-Ohio-505, at ¶51.

       {¶24} In the proceedings below, Henry neither (1) requested any motor-vehicle-

related instructions nor (2) objected to the instructions given. As a result, he bears the
Gallia App. No. 10CA20                                                              11


heavy burden of demonstrating that the trial court committed plain error. See State v.

Judy, Ross App. No. 08CA3013, 2008-Ohio-5551, at ¶30, citing State v. Wamsley, 117

Ohio St.3d 388, 2008-Ohio-1195, at ¶1. Under Crim.R. 52(B), we may notice plain

errors or defects affecting substantial rights. “Inherent in the rule are three limits placed

on reviewing courts for correcting plain error.” State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, at ¶15. “‘First, there must be an error, i.e., a deviation from the legal

rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R.

52(B), an error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error

must have affected ‘substantial rights.’ We have interpreted this aspect of the rule to

mean that the trial court’s error must have affected the outcome of the trial.’” Id. at ¶16,

quoting State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68 (omissions in original).

We will notice plain error “only to prevent a manifest miscarriage of justice.” State v.

Long (1978), 53 Ohio St.2d 91, at paragraph three of syllabus. And “[r]eversal is

warranted only if the outcome of the trial clearly would have been different absent the

error.” State v. Hill, 92 Ohio St.3d 191, 203, 2001-Ohio-141, citing Long at paragraph

two of the syllabus.

       {¶25} Here, we cannot find plain error. According to the relevant statutes,

“‘Motor vehicle’ means any vehicle, including mobile homes and recreational vehicles,

that is propelled or drawn by power other than muscular power or power collected from

overhead electric trolley wires. ‘Motor vehicle’ does not include [a wide variety of

vehicles unrelated to the present case].” R.C. 4501.01(B); see, also, R.C. 2913.01(FF).

Under the plain language of R.C. 4501.01(B), ATVs qualify as motor vehicles. See,

e.g., State v. Lightner, Hardin App. No. 6-08-11, 2009-Ohio-544, at ¶28; State v. Gray
Gallia App. No. 10CA20                                                                12


(Feb. 27, 1998), Montgomery App. No. 16474. Therefore, failing to instruct the jury on

the definition of motor vehicle did not affect the outcome of Henry’s trial, and there can

be no plain error.

       {¶26} Accordingly, we overrule the theft-of-a-motor-vehicle portion of Henry’s

second assignment of error.

                                              IV.

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

imposing its sentence.

       {¶28} Here, we find that Henry’s third assignment of error is not ripe for review.

We have vacated three of Henry’s individual sentences. And on remand, the trial court

must resentence him. Therefore, we will not address Henry’s sentencing arguments at

this time.

                                              V.

       {¶29} In his fourth assignment of error, Henry contends that he received

ineffective assistance of counsel. Essentially, Henry argues that his trial counsel erred

in relation to the burglary and theft-of-a-firearm convictions. However, based on our

resolution of Henry’s first assignment of error, we find that these arguments are moot.

Therefore, we decline to address them. See App.R. 12(A)(1)(c).

                                              VI.

       {¶30} In conclusion, we sustain Henry’s first assignment of error, remand this

cause to the trial court, and instruct the trial court to modify its judgment in relation to

counts three, four, and seven. As to counts three and seven, the trial court should enter

convictions for burglary under R.C. 2911.12(A)(3). And as to count four, the trial court
Gallia App. No. 10CA20                                                             13


should enter a conviction for misdemeanor petty theft under R.C. 2913.02(A)(1). Then,

the trial court should resentence Henry accordingly. Additionally, we (1) overrule the

theft-of-a-motor-vehicle portion of Henry’s second assignment of error and (2) find

Henry’s remaining arguments to be either moot or not ripe for review.

       {¶31} As a result, we affirm, in part, and reverse, in part the judgment of the trial

court, and we remand this cause to the trial court for further proceedings consistent with

this opinion.

                             JUDGMENT AFFIRMED, IN PART, REVERSED, IN PART,
                                                     AND CAUSE REMANDED.
Gallia App. No. 10CA20                                                              14


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED, IN PART, REVERSED, IN
PART, and this CAUSE BE REMANDED to the trial court for further proceedings
consistent with this opinion. Appellant and Appellee shall pay equally 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
Gallia County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.


Abele, P.J. and Harsha, J.: Concur in Judgment and Opinion.

                                   For the Court


                                   BY:_____________________________
                                      Roger L. Kline, Judge




                                 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.
