[Cite as State v. Miller, 2016-Ohio-7868.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :

v.                                                 :                    No. 16AP-8
                                                                    (C.P.C. No. 15CR-1696)
Sean R. Miller,                                    :
                                                               (REGULAR CALENDAR)
                 Defendant-Appellant.              :


                                             D E C I S I O N

                                    Rendered on November 22, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Sydow Leis LLC, and Anastasia L. Sydow, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} Sean R. Miller is appealing from his conviction on a charge of burglary as a
second degree felony following a jury trial. He assigns five errors for our consideration:
                 [I.] THE TRIAL COURT ERRED WHEN IT DENIED
                 DEFENDANT'S MOTION TO SUPPRESS EYEWITNESS
                 IDENTIFICATION,   THEREBY    PERMITTING     A
                 FUNDAMENTALLY     UNRELIABLE   IDENTIFICATION
                 INTO EVIDENCE AND RESULTING IN A VIOLATION OF
                 DEFENDANT'S DUE PROCESS.

                 [II.] THE TRIAL COURT ERRED WHEN IT DENIED
                 DEFENDANT-APPELLANT'S   CRIMINAL   RULE 29
                 MOTION FOR ACQUITTAL ON THE CHARGE OF
                 BURGLARY BECAUSE THE EVIDENCE PRESENTED BY
                 THE STATE WAS INSUFFICIENT TO SUPPORT A
                 CONVICTION BEYOND A REASONABLE DOUBT.
No. 16AP-8                                                                                 2


              [III.] THE VERDICT IS AGAINST THE SUFFICIENCY AND
              MANIFEST WEIGHT OF THE EVIDENCE.

              [IV.] DEFENDANT WAS EFFECTIVELY DENIED HIS
              CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL
              WHERE COUNSEL'S FAILURE TO REQUEST JURY
              INSTRUCTION ON THE LESSER INCLUDED OFFENSE
              CONSTITUTES PLAIN ERROR.

              [V.]  THE    COURT   PLAINLY  ERRED   BY
              MISREPRESENTING THE LENGTH OF DEFENDANT'S
              MANDATORY SENTENCE.

       {¶ 2} On March 27, 2015, someone kicked in the door of 4943 Kilconnel Avenue
in Columbus, Ohio. Amadou Fall who lived at the residence with his mother and siblings
was home at the time. The noise from the door being kicked in woke Amadou from his
dozing on the couch and he saw the person trying to enter the residence. Amadou
thought that the person was Sean Miller who had been staying in the duplex which
adjoined 4943 Kilconnel Avenue.
       {¶ 3} Amadou, who was only 16 at the time, called his mother to ask what to do.
She told him to call the police, which he did. Amadou told the police dispatcher that the
person who kicked in the door was a Caucasian male wearing a light baby blue sweatshirt.
       {¶ 4} Columbus police responded and interviewed Amadou who identified Miller
as the intruder. Then the police approached the next-door residence and brought the two
male occupants outside, one of which was Sean Miller. Amadou again identified Miller as
the culprit, but later acknowledged he was nervous and not 100 percent sure.
       {¶ 5} After Miller was indicted on a charge of burglary, his defense counsel filed a
motion to suppress Amadou's identification of Miller as the culprit.
       {¶ 6} At the evidentiary hearing on the motion, Columbus Police Officer Kerry
Harris testified about what happened when Columbus police responded to the police
dispatch. Harris related that after talking to Amadou, they approached the other half of
the duplex. A woman answered the door and told police a friend had just recently run
into her residence.    Police then asked both men in the residence to come outside.
Amadou then identified Sean Miller as the man who broke in. A light blue sweatshirt was
later found on a love seat in the living room of the residence where Miller was staying.
No. 16AP-8                                                                               3


       {¶ 7} Amadou testified at the hearing on the motion to suppress and indicated
that he was 90 percent sure that Miller was the person who started to break in Amadou's
residence. Amadou attributed the 10 percent uncertainty to the fact Miller was not
wearing a light blue sweatshirt when police asked for an identification shortly after the
break-in.
       {¶ 8} The evidence submitted at the hearing on the motion to suppress
identification was sufficient to permit the state of Ohio to use Amadou's testimony during
their case-in-chief.
       {¶ 9} Amadou had told police that he believed the intruder was in the adjoining
duplex because immediately after the intruder left Amadou's residence, Amadou heard
the door of the adjoining duplex open and then slam closed. Police then extracted the
only two adult males from the residence and asked Amadou if either one of them was
involved. Amadou identified Miller as the intruder.
       {¶ 10} Further, Amadou was familiar with Miller as a result of Miller staying at the
adjoining duplex for five days.       Nothing the police officer did in pursuing their
investigation was inappropriate or illegal.
       {¶ 11} The first assignment of error is overruled.
       {¶ 12} Turning to the second and third assignments of error, the testimony of
Amadou at trial was sufficient to establish that Miller was the person who kicked in the
door of 4943 Kilconnel Avenue and partially entered the residence before seeing Amadou
was home. The weight of the evidence also supported Miller as being the culprit.
       {¶ 13} The immediate flight from the residence could only be construed as
knowledge of guilt under the circumstances.
       {¶ 14} R.C. 2911.12(A) defines burglary as follows:
              No person, by force, stealth, or deception, shall do any of the
              following:

              (1) 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;
No. 16AP-8                                                                                  4


               (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;

               (3) Trespass in an occupied structure or in a separately
               secured or separately occupied portion of an occupied
               structure, with purpose to commit in the structure or
               separately secured or separately occupied portion of the
               structure any criminal offense.

       {¶ 15} Miller's kicking in the door and damaging it was a criminal offense. His
actions entering the residence was a trespass. All the elements of the offense of burglary
were proven.
       {¶ 16} The second and third assignments of error are overruled.
       {¶ 17} Turning to the fourth assignment of error, Miller and his counsel chose not
to have the jury charged on the lesser charge of trespass in a habitation in violation of R.C.
2911.12(B) despite the ruling of the Supreme Court of Ohio in State v. Wine, 140 Ohio
St.3d 409, 2014-Ohio-3948, which indicated that a charge on that lesser offense is usually
appropriate.
       {¶ 18} R.C. 2911.12(B) reads:
               No person, by force, stealth, or deception, shall trespass in 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.

       {¶ 19} Miller could have had the jury charged as to R.C. 2911.12(B) but apparently
preferred the chance to have the jury acquit him entirely rather than allow the jury to
compromise on a lesser offense. His gamble did not pay off.
       {¶ 20} Defense counsel has an obligation to consult with the defendant and respect
the defendant's wishes, even if the wishes seem unwise. Defense counsel does not become
ineffective simply because counsel respects the defendant's wishes and desires.
       {¶ 21} The fourth assignment of error is overruled.
       {¶ 22} Turning to the fifth assignment of error, the trial court judge journalized a
sentencing entry which is partially inaccurate. For instance, the entry suggests that Miller
No. 16AP-8                                                                                 5


entered a guilty plea and at the same time acknowledges that the case went to trial. The
judge apparently also thought he could grant judicial release part way through a
mandatory sentence. However, this would be contrary to the ruling of the Supreme Court
of Ohio in State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201.
       {¶ 23} The state of Ohio has acknowledged that the fifth assignment of error
should be sustained because the trial court judge's misunderstanding of the law could
have caused the judge to give a stiffer sentence than planned and intended. The judge
thought he could give a four-year sentence initially and grant early release after two years.
The judge could not.
       {¶ 24} The fifth assignment of error is sustained. The sentence is vacated and the
case is remanded for a new sentencing hearing.
       {¶ 25} In review, the first four assignments of error are overruled.
       {¶ 26} The fifth assignment of error is sustained. The sentence of the trial court is
vacated and the case is remanded for a new sentencing hearing.
                                                             Judgment vacated and case
                                                  remanded for a new sentencing hearing.

                         DORRIAN, P.J., and BROWN, J., concur.
