State v. Richardson, 2014 Ohio 2055

Richardson was charged with burglary under R.C. 2911.12(A)(2) and petty theft; specifications for prior conviction and repeat violent offender were also charged.
Video surveillance shows a man matching Richardson entering the victim’s apartment through the window and assessing the interior.
The State identified Crump as Richardson’s girlfriend and Markosky testified Richardson was her boyfriend and observed them together at the building.
The jury found Richardson guilty of burglary and petty theft; prior burglary conviction from 2003 was introduced; a repeat violent offender specification was separately found by the trial court.
At sentencing, Richardson received a total term of 14 years plus fines; Richardson refused to participate in a PSI.
On appeal, Richardson challenges sufficiency/weight, failure to merge allied offenses, and the imposition of consecutive sentences.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of burglary A2 elements	Richardson asserts no sufficient proof of A2 elements.	Richardson contends the state failed to prove presence or likely presence.	Insufficient for A2; conviction modified to A3.
Weight of the evidence	Richardson argues the verdict is against the weight of the evidence.	Richardson asserts the state’s proof should have yielded a different result.	Weight challenge is moot/overruled in part after modification to A3.
Allied offenses, merger, and consecutive sentences	Richardson claims burglary and theft are allied offenses requiring merger and concurrent sentencing.	Richardson contends the sentences should have merged and not been consecutive.	Convictions for burglary and theft did not merge; consecutive sentences affirmed for these offenses.
Repeat Violent Offender specification	Richardson challenges the viability of the repeat violent offender specification.	Richardson asserts the specification remains valid with the burglary conviction.	Specification vacated; must be removed from judgment and resentencing adjusted.

State v. Leonard, 104 Ohio St.3d 54 (2004-Ohio-6235) (defining sufficiency review under Jenks standard)
State v. Jenks, 61 Ohio St.3d 259 (1991) (guides sufficiency review; w/ paragraph two syllabus)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (weight of the evidence standard)
State v. Palmer, 8th Dist. Cuyahoga No. 89957 (2008-Ohio-2937) ("likely to be present" element discussed)
State v. Kilby, 50 Ohio St.2d 21 (1977) (definition of 'likely to be present' in burglary)