STATE OF OHIO v. ANTOINE C. BUTLER
No. 97649
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 13, 2012
[Cite as State v. Butler, 2012-Ohio-4152.]
Stewart, P.J., Keough, J., and Kilbane, J.
JOURNAL ENTRY AND OPINION. Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-554685. JUDGMENT: REVERSED AND REMANDED.
Rick L. Ferrara
2077 East 4th Street, Second Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Vincent I. Pacetti
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
{¶1} Defendant-appellant Antoine Butler was found guilty of second degree burglary under
{¶2} In his first assignment of error, Butler complains that the state failed to present proof that he trespassed in an occupied structure. He points to evidence showing that the victim-tenant of the apartment he broke intо was hospitalized at the time of the offense, a fact that testimony showed had been known to the “whole neighborhood.”
{¶3} We determine whether the evidence is sufficient to sustain a verdict by examining the evidence in the light most favorable to the prosecution and determining whether any rational trier of fact could have found that the prosecution proved the essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 78, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[I]t is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury‘s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, ___, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) (per curiam).
{¶4} The state charged Butler with burglary under
Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is 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, with purpose to commit in the habitation any criminal offense[.]
{¶5}
{¶6} The evidence showed that the victim owned an “up-and-down” duplex and lived in the lower unit. A witness to the burglary lived in the upper unit. The victim had health issues that periodically required his hospitalization and he was hospitalized on the night of the burglary. The witness and a friend were in her аpartment upstairs at the
{¶7} The witness called the police. A recording of that telephone call has the witness narrating events to the emergency operator as they unfolded. She saw a male exit the same window and immediately recognized him as “Shorty.” The witness could be heard in the recording telling Butler that she just called the рolice because he broke into the house. She is also heard saying, “it wasn‘t open” in reply to something that Butler said to her. In trial testimony, the witness said that Butler also told her that he saw
{¶8} The unlawful-entry-in-a-dwelling offenses — aggravated burglary, burglary, and breaking and entering — prohibit the same conduct (trespassing in a structure with the intent to commit a criminal offense) and differ only on the risk of harm the actions pose. The most serious of the offenses — aggravated burglary — requires the offender to be armed or requires that he inflicts, attempts to inflict, or threatens to inflict harm on another. See
{¶10} The witness testified that the victim had been in the hospital at the time of the burglary and that she was surprised to hear noises coming from his apartment because she did not know that he had returned. The victim, too, testifiеd that he had been in the hospital. His testimony gave no indication that he was likely to be present at his house at the time of the burglary.
{¶11} The state argues that “any casual observer” would have expected the victim to be home because it is “common knowledge that hospitals are open 24 hours a day, and people can be released at any time.” Appellee‘s brief at 8. However, the state must show more than a mere possibility that a person is likely to bе present during the trespass of an occupied structure. State v. Jackson, 188 Ohio App.3d 803, 2010-Ohio-1846, 937 N.E.2d 120 (4th Dist.2010), at ¶ 9. Precedent has rejected the likelihood of a person being home during normal work hours, absent evidence to the contrary. See, e.g., State v. Durham, 49 Ohio App.2d 231, 239-240, 360 N.E.2d 743 (1st Dist.1976).
{¶12} We see no reаson to distinguish this case, where the victim was in the hospital, from cases where a work schedule made it unlikely that a person would have been present at the time of the break-in. Hospitals typically do not release patients at 4 а.m., a fact verified by the witness who thought it odd that the victim would have returned to his apartment at that hour. It may have been possible that the victim could be released from care at that time, but his release at that hour was so unlikely that no ratiоnal trier of fact could have found the victim going “in and out” of the apartment in a way that made him likely to be present at the time of the burglary.
{¶13} The state argues that the victim lived in a duplex that had a common hallway with stairs going up to the doоr to the witness‘s apartment and that Butler‘s entry into the victim‘s apartment would allow him access to the common hallway and stairway leading to the witness‘s apartment. This evidence, the state maintains, was sufficient to show that the witness was present at the time of burglary and could have been the object of harm as a result of the break-in.
{¶14} We have rejected this same argument as being too broad. To highlight its fragility, in State v. Colon, 8th Dist. No. 61253, 1992 WL 389074 (Dec. 17, 1992), we gave as an example a high-rise apartment complex that hаs shared common halls with
{¶15} This is not a case where the break-in occurred in a common area of an apartment building. See, e.g., State v. Williams, 1st Dist. No. C-920869, 1993 WL 547184 (Dec. 1, 1993) (break-in оccurred in common laundry room of an apartment building where any tenant of the building was likely to be present). Neither is this a case where tenants had access to an unoccupied apartment. See, e.g., In re R.J.D., 11th Dist. No. 2009-L-071, 2010-Ohio-1277 (finding that person likely to be present in an unoccupied apartment because tenants of the building where an apartment was located had regular access to the apartment and apartment could be occupied at any time by them or thеir guests).
{¶16} We therefore find that the state failed to prove that anyone was present or likely to be present in the apartment at the time of the break-in. As a consequence, the state failed to establish each element оf the offense of burglary under
{¶17} Nevertheless, Crim.R. 33(A)(4) provides a reviewing court with the power to modify a judgment “[i]f the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lesser degree thereof[.]” State v. Reed, 65 Ohio St.2d 117, 123, 418 N.E.2d 1359 (1981); State v. Brown, 10th Dist. No. 05AP-601, 2006-Ohio-2307, ¶ 18. See also App.R. 12(B) (“When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered[.]“)
{¶18} Burglary under
{¶19} Our holding necessarily requires that Butler be resentenced, so his claims relating to the length of his sentence are moot.
{¶20} This causе is reversed and remanded for proceedings consistent with this opinion.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR