State v. Bowshier
2016 Ohio 8184
Ohio Ct. App.2016Background
- On July 1, 2015, Heather Bowshier and an accomplice (Cheri Farmer) used a key to enter Saira House’s apartment; no one else was inside when they entered.
- House returned from shopping, found her door ajar with the chain fastened, retreated to the stairwell/hallway and called a neighbor, Jeremy Denny.
- Denny went to the third-floor hallway, observed the apartment door partly open, saw the door shut and the deadbolt moved, and then saw two women exit; he confronted Bowshier and tried to grab her bag.
- A physical altercation occurred; Bowshier punched Denny and claimed she had a gun; House and Denny later observed Bowshier flee and a vehicle leave.
- Bowshier was indicted for aggravated burglary (physical harm), aggravated burglary (deadly weapon), burglary under R.C. 2911.12(A)(1), and burglary under R.C. 2911.12(A)(2); convicted on all but the deadly-weapon count; the court merged convictions and sentenced Bowshier to five years.
- On appeal, the court affirmed one burglary conviction (A)(2), reversed aggravated burglary and burglary (A)(1) for insufficient evidence that a non-accomplice was "present" inside the premises during the trespass, rejected ineffective-assistance claims, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated burglary (R.C. 2911.11(A)(1)) — was a non-accomplice "present" during the trespass? | State: Hallway/stairwell presence (House) during incident supports presence element. | Bowshier: No evidence someone other than defendant/accomplice was inside the apartment during the trespass. | Reversed — insufficient evidence that a non-accomplice was present inside the occupied structure for aggravated burglary. |
| Sufficiency of evidence for burglary (R.C. 2911.12(A)(1)) — was a non-accomplice "present"? | State: same as above — building common areas evidence shows presence. | Bowshier: No one other than defendants was present in the apartment during entry. | Reversed — insufficient evidence for (A)(1) offense. |
| Sufficiency of evidence for burglary (R.C. 2911.12(A)(2)) — was another person "present or likely to be present"? | State: dwelling was regularly inhabited; occupant was out briefly but was present or likely to be present. | Bowshier: challenges weight but not enough to negate likely-presence element. | Affirmed — evidence supports (A)(2) conviction (dwelling regularly inhabited; occupant briefly absent). |
| Ineffective assistance of counsel — failure to advise re: testifying and failure to object to in-court ID | State: counsel’s tactical decisions presumed reasonable; photo-array IDs corroborate in-court IDs. | Bowshier: counsel did not advise right to testify and failed to object to suggestive in-court ID. | Overruled — no record evidence to rebut presumption that defendant knowingly waived testimony; independent photo-array ID and prior familiarity support in-court IDs. |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standard for manifest-weight review)
- State v. Dennis, 79 Ohio St.3d 421 (Ohio 1997) (Jackson sufficiency standard described)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency review: whether any rational trier of fact could convict)
- Simmons v. United States, 390 U.S. 377 (U.S. 1968) (in-court identification admissible if based on independent observation)
- State v. Kilby, 50 Ohio St.2d 21 (Ohio 1977) ("likely to be present" element discussion for dwellings)
- State v. Fowler, 4 Ohio St.3d 16 (Ohio 1983) (case addressing burglary and occupant presence)
- State v. Cooperrider, 4 Ohio St.3d 226 (Ohio 1983) (ineffective-assistance claims generally not resolved on direct appeal when record lacks facts)