STATE OF OHIO, PLAINTIFF-APPELLEE, v. TYRELL E. ARTIS, DEFENDANT-APPELLANT.
CASE NO. 8-13-01
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
July 22, 2013
[Cite as State v. Artis, 2013-Ohio-3198.]
Appeal from Logan County Common Pleas Court, Trial Court No. 12-07-0167, Judgment Affirmed
Darrell L. Heckman for Appellant
William T. Goslee for Appellee
{¶1} Defendant-appellant Tyrell E. Artis (“Artis“) brings this appeal from the judgment of the Court of Common Pleas of Logan County finding him guilty of burglary. For the reasons set forth below, the judgment is affirmed.
{¶2} On July 5, 2012, Steffan Whetsel (“Whetsel“) went to an apartment complex in Bellefontaine to sell an ounce of marijuana for $110.00. When he arrived at the apartment complex, Zach Coleman who was called “Crazy” (“Crazy“) and a second man known only as “Tito” awaited Whetsel. Crazy snatched the marijuana from Whetsel, threw it to Tito, and flashed a gun at Whetsel. The two men then left with the marijuana without paying for it. Since the item stolen was illegal, Whetsel decided against calling the police, and instead called his friend Justin Rogan (“Rogan“). Rogan was at a nearby party with Artis, who is Whetsel‘s cousin. Rogan told Artis about the robbery and they went to help Whetsel recover the stolen marijuana.
{¶3} When Artis arrived at the complex, Whetsel told Artis which apartment “the dude with the weed” entered. Tr. 147. The apartment belonged to Shelly Neeld (“Neeld“), who was living there with her husband, her daughter, Katrina, and her grandchildren. Katrina has a child with Dustin Lattimer (“Lattimer“) who is friends with Tito and Crazy. Lattimer knew that Crazy and Tito were planning on stealing the marijuana from Whetsel. Tito and Crazy ran
{¶4} On July 15, 2012, the Logan County Grand Jury indicted Artis on one count of Aggravated Burglary in violation of
First Assignment of Error
The trial court erred in failing to instruct the jury on the lesser included offense of burglary as a fourth degree felony.
The trial court erred in permitting prejudicial evidence of prior bad acts of [Artis].
{¶5} In the first assignment of error, Artis claims that the trial court erred by not instructing the jury on the lesser included offense of burglary as a fourth degree felony.
The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶13. The first tier, also called the “statutory-elements step,” is a purely legal question, wherein we determine whether one offense is generally a lesser included offense of the charged offense. State v. Kidder, 32 Ohio St.3d 279, 281 (1987). The second tier looks to the evidence in a particular case and determines whether “a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.” Evans at ¶13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, ¶11. Only in the second tier of the analysis do the facts of a particular case become relevant.
State v. Deanda, ___ Ohio St.3d ___, 2013-Ohio-1722, ¶6. Thus, the first step is to determine whether the fourth degree burglary is a lesser included offense of aggravated burglary. The Supreme Court has set forth a three part subset of the statutory-elements step.
An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the greater offense cannot, as statutorily defined, ever be committed without the offense of the lesser degree also being committed and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.
{¶6} Here, Artis was charged with aggravated burglary in violation of
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another[.]
(B) No person, by force, stealth, or deception, shall trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.
“Occupied Structure” means any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:
(1) It is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.
(2) At the time, it is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.
(3) At the time, it is specially adapted for the overnight accommodation of any person, whether or not any person is actually present.
(4) At the time, any person is present or likely to be present in it.
{¶7} Even if we consider the facts and determine that
As to this consideration, we stated in [State v. Kidder, 32 Ohio St.3d 279 (1987)], that: “Even though so defined, a charge on the lesser included offense is not required, unless the trier of fact could reasonably reject an affirmative defense and could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense.” Id. at 282-283.
The meaning of this language is that even though an offense may be statutorily defined as a lesser included offense of another, a charge on the lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.
State v. Thomas, 40 Ohio St.3d 213, 216 (1988). To find that this instruction was warranted, this court would need to find that the jury could reasonably find that (1) Artis did not use, threaten, or attempt to cause physical harm and (2) that Artis did not intend to commit a criminal act when he entered the premises. However, all of the evidence was that Artis and Whetsel forced their way into the apartment by kicking down the door. At that time, Whetsel was holding a baseball bat and Artis had a taser gun. Artis himself testified that the purpose for entering the apartment was to retrieve the marijuana. Whetsel admitted that they had no intention of politely asking Tito for the marijuana, but instead intended to take it by force. No reasonable jury could find that Artis merely trespassed into an apartment without the intent to commit a criminal act when Artis and Whetsel broke down a door to a stranger‘s residence while carrying weapons. Thus, the trial court did not abuse its
{¶8} In the second assignment of error, Artis claims that the trial court erred by allowing evidence of his prior bad acts to be used in violation of
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. * * *
{¶9} Next, Artis claims the State used prior bad acts when Officer Doug Walters (“Walters“) testified that Artis and Whetsel were suspects in the aggravated burglary so he began to “check areas where they might be or known to
Simply because the deputy stated during trial that he had prior contact with the defendant in an official capacity does not indicate that the defendant had a prior record or had committed prior similar acts. At trial, the deputy merely testified that, based on his prior acquaintance with the defendant, the defendant was now more calm and more cooperative with authorities than he had been previously. There is no indication of prejudice resulting from this testimony. * * *
State v. Cooper, 52 Ohio St.2d 163, 170 (1977) (reversed on other grounds). Testimony regarding mere prior contact does not in and of itself violate
{¶10} Finally, Artis claims that Officer Jason Boy (“Boy“) brought up prior bad acts of Artis when he testified that based upon the description of the victim, he thought the offenders could be Artis and Whetsel. Tr. 103. His opinion was based upon prior contact with them. Tr. 103. Artis’ counsel objected to these statements, but it was overruled. As discussed above, the mere statement that there was prior contact does not violate
{¶11} The judgment of the Court of Common Pleas of Logan County is affirmed.
Judgment Affirmed
PRESTON, P.J., concurs.
SHAW, J., concurs in Judgment Only.
/jlr