State v. Butler, 2012 Ohio 4152

Butler was convicted in the Cuyahoga County Common Pleas Court of second-degree burglary with a repeat violent offender specification under R.C. 2911.12(A)(2).
The central issue on appeal was whether the evidence proved trespass in an occupied structure where someone was present or likely to be present.
The apartment at issue was in a duplex; the lower unit housed the victim and the upper unit housed a witness; the victim had been hospitalized the night of the burglary.
A witness upstairs observed noises from the victim’s apartment and identified Butler as the intruder when he exited the window used for entry.
The victim’s cash and prescription pills were missing, and there was no testimony suggesting others had access to the apartment.
The trial court ultimately held Butler not guilty of the charged offense as proven, but the court of appeals reversed and remanded to modify the conviction to a lesser offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidence shows trespass in an occupied structure	Butler; presence or likely presence established by occupancy in the duplex.	State; occupant presence or likelihood proven by hospital absence or presence and access.	Insufficient presence evidence under 2911.12(A)(2); vacate to seek lesser offense
Whether the evidence supports a lesser included offense of burglary under R.C. 2911.12(A)(3)	Butler; burglary under A(2) was proven.	State; any presence element not proven supports A(3).	Guilty under 2911.12(A)(3) permissible; remand to modify conviction

State v. Yarbrough, 95 Ohio St.3d 227 (2002-Ohio-2126) (sufficiency standard for appellate review)
Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency of evidence standard)
Cavazos v. Smith, 565 U.S. 1 (2011) (per curiam evidentiary standard guidance)
State v. Kilby, 50 Ohio St.2d 21 (1977) (presence or likelihood of presence as element of burglary)
State v. Hibbard, 2003-Ohio-707 (Ohio Ct. App.) (presence or likelihood of presence in burglary analysis)
State v. Reed, 65 Ohio St.2d 117 (1981) (authority on modifying judgments where lesser offense proven)
State v. Brown, 2006-Ohio-2307 (Ohio Ct. App.) (remand for modification when lesser offense shown)
State v. Rothrock, 2010-Ohio-4102 (Ohio Ct. App.) (remand to modify judgment for correct offense)
In re Meatchem, 2006-Ohio-4128 (Ohio Ct. App.) (lesser included offenses defined in burglary context)
In re R.J.D., 2010-Ohio-1277 (Ohio Ct. App.) (application to burglary/occupancy considerations)