State v. Bennington, 148 N.E.3d 1

Defendant Terry Bennington was convicted after a jury trial of two counts of burglary and two counts of felonious assault arising from two separate farmhouse break-ins; this appeal challenges the Shoemaker Road burglary (count one).
Victim William Moore had moved out in May 2018 but kept furniture and personal papers at 475–477 Shoemaker Road and visited daily for mail; family members also checked the property sporadically.
Grandson James Dunseith discovered the house ransacked on July 16, 2018, later hid nearby, saw Bennington and others arrive, and fired at Bennington’s departing vehicle after a confrontation.
At a separate location, Bennington was found in Terry Toller’s vacant farmhouse and assaulted Toller and a neighbor; he was detained by Toller until police arrived.
The jury found Bennington guilty on all counts; the trial court imposed consecutive terms totaling 13 years and ordered restitution. Bennington appealed solely on sufficiency of evidence that someone was “present or likely to be present” at the Shoemaker Road dwelling.
The Fourth District held the State failed to prove the “likely to be present” element for R.C. 2911.12(A)(2), reversed the second-degree burglary conviction, and remanded to enter judgment for third-degree burglary under R.C. 2911.12(A)(3) and resentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State presented sufficient evidence that a person was “present or likely to be present” at 477 Shoemaker Road when the burglary occurred (R.C. 2911.12(A)(2))	Moore’s property was an occupied/regularly inhabited dwelling used to store personal items; occupants/relatives were in and out that day; grandsons’ stakeout shows ongoing occupancy and expectation of people returning.	Moore had moved out and visited only briefly each day for mail; family checks were sporadic; the house functioned largely as storage and occupants were not likely to be home when the burglary occurred.	Reversed for insufficient evidence on the “likely to be present” element; conviction downgraded to third-degree burglary (A)(3) and remanded for resentencing.

State v. Maxwell, 139 Ohio St.3d 12 (2014) (standard for sufficiency review adopting Jackson v. Virginia test)
State v. Jenks, 61 Ohio St.3d 259 (1991) (Jackson v. Virginia sufficiency framework applied in Ohio)
Jackson v. Virginia, 443 U.S. 307 (1979) (conviction must be supported by evidence that any rational trier of fact could find guilt beyond a reasonable doubt)
State v. Kilby, 50 Ohio St.2d 21 (1977) (evidence that a dwelling is regularly inhabited and temporarily absent can satisfy “likely to be present”)
State v. Jackson, 188 Ohio App.3d 803 (2010) (reversing burglary where occupant routinely was absent and prosecution presented no evidence of likelihood of occupancy)
State v. Braden, 106 N.E.3d 827 (Ohio App. 2018) (defining “likely” as more likely than not and surveying fact patterns that satisfy or fail the element)
State v. Lodwick, 118 N.E.3d 948 (2018) (upholding burglary where residence was primary dwelling, occupants regularly inhabited it, and temporary absence did not negate likelihood of presence)