State v. Lehman, 2018 Ohio 1145

John Lehman was indicted for one count of burglary under R.C. 2911.12(A)(2) after a September 14, 2016 break-in at a married couple’s Richfield home; he waived a jury and proceeded to a bench trial.
Lehman stipulated to all elements of burglary except whether someone was "present or likely to be present" during the offense.
Homeowner testimony: wife worked nearby, routinely came home for lunch and other short errands; husband’s schedule varied; daughter/fiancé regularly dropped off a dog in the morning, often during the relevant timeframe.
A neighbor saw Lehman at the homeowners’ front door that morning; defense stipulated that was Lehman.
Lehman testified he was searching for stolen jewelry, had visited the house previously, believed no one was home, and admitted lying to police.
The trial court found Lehman guilty and sentenced him to six years; Lehman appealed claiming the conviction was against the manifest weight of the evidence because no one was likely to be present.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence supported the R.C. 2911.12(A)(2) element that someone was "present or likely to be present" at the time of the burglary	State: testimony showed the dwelling was regularly inhabited and occupants frequently returned during the workday (wife’s lunch trips; variable schedules; daughter/fiancé dropped off dog), permitting an inference someone was likely to be present	Lehman: homeowners’ schedules did not make presence likely; testimony exaggerated after pretrial discussion; evidence favors no one being likely to be present	Court affirmed: weight of evidence supports inference someone was likely to be present; credibility determinations for trial court were not overcome on appeal

State v. Otten, 33 Ohio App.3d 339 (9th Dist. 1986) (standard for reviewing manifest weight of the evidence)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (appellate court as "thirteenth juror" when reviewing manifest weight)
Tibbs v. Florida, 457 U.S. 31 (1982) (federal discussion of appellate weight-of-the-evidence review)
State v. Fowler, 4 Ohio St.3d 16 (1983) (occupied-structure burglary does not alone satisfy the "likely to be present" element)
State v. Wilson, 58 Ohio St.2d 52 (1979) (separate proof required for occupancy and likelihood of presence)
State v. Kilby, 50 Ohio St.2d 21 (1977) (occupation and habitual inhabitation relevant to proving likelihood of presence)
State v. Durham, 49 Ohio App.2d 231 (1st Dist. 1976) (example where evidence was insufficient to prove likelihood of presence)