State v. Petit, 2017 Ohio 633

Background

In Jan 2013 Brandon Petit, his brother Bryce, and Cortney Freeman planned and executed the burglary of Michael Allen’s home to steal firearms; Ashley Fisher was present during planning but did not participate.
Cortney lured the victim away by requesting a ride; while the victim and Cortney drove around (~1 hour), the burglary occurred and four firearms were stolen.
The stolen firearms were transported in Brandon’s vehicle and later sold at a Columbus pawn shop by Brandon, Bryce, and Cortney for $200; proceeds used to buy heroin.
Brandon was indicted for second-degree burglary (R.C. 2911.12(A)(2)) and receiving stolen property, each with firearm specifications; the receiving counts were merged pretrial.
A jury convicted Brandon of burglary, receiving stolen property, and firearm specifications; he received an aggregate four-year sentence.
On appeal the court found insufficient evidence to prove the ‘‘present or likely to be present’’ element of R.C. 2911.12(A)(2) but concluded the evidence supported the lesser included offense, third-degree burglary (R.C. 2911.12(A)(3)). The case was remanded to vacate the A(2) conviction, enter conviction under A(3), and resentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for burglary under R.C. 2911.12(A)(2) ("present or likely to be present")	State: victim could have intended to return home; objective circumstances made presence "likely"	Petit: no evidence victim was home or likely to be home during burglary; Cortney intentionally kept him away	Court: conviction under A(2) unsupported — no specific evidence someone was likely to be present; reversed for A(2) but remanded to enter A(3) conviction
Trespass element (entry/remain)	State: circumstantial evidence (planning, admission, possession/sale of stolen guns) proves entry/trespass	Petit: no direct eyewitness or physical evidence showing he entered the house	Court: circumstantial evidence sufficient to prove trespass/entry
Ineffective assistance — voir dire (failure to challenge jurors with law-enforcement ties)	Petit: counsel should have struck and challenged three jurors for bias	State: counsel’s voir dire and follow-up questions were reasonable trial strategy	Court: no ineffective assistance; insufficient proof jurors actually biased or that unnamed jurors sat on the jury
Ineffective assistance — cross-examination of Ashley Fisher	Petit: counsel failed to probe Fisher’s criminal status, possible deals, and inconsistencies with Cortney	State: cross-examination strategy is tactical; inconsistencies were minor and witnesses were consistent on key facts	Court: no ineffective assistance; no showing additional questioning would have changed verdict

Key Cases Cited

State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency review)
State v. Lyons, 18 Ohio St.3d 204 (Ohio 1985) (distinguishing privilege from trespass)
State v. Kilby, 50 Ohio St.2d 21 (Ohio 1977) (‘‘likely to be present’’ satisfied where dwelling regularly inhabited and occupants temporarily absent)
State v. Fowler, 4 Ohio St.3d 16 (Ohio 1983) (no presumption that residential burglary implies occupant likely present)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
State v. Otte, 74 Ohio St.3d 555 (Ohio 1996) (cross-examination tactics are strategic and can be limited)
State v. Adams, 103 Ohio St.3d 508 (Ohio 2004) (voir dire need not follow a particular form; trial strategy governs juror challenges)
State v. Mundt, 115 Ohio St.3d 22 (Ohio 2007) (actual juror bias must be shown to prevail on claim counsel allowed biased juror)
State v. Leonard, 104 Ohio St.3d 54 (Ohio 2004) (debateable trial tactics do not by themselves establish ineffective assistance)