2006 Ohio 4627 | Ohio Ct. App. | 2006
{¶ 2} According to the state, on or about September 19, 2004, defendant used a firearm to purposely cause the death of Luke Morbitzer. By indictment, defendant was charged with one count of murder with two firearm specifications, one count of carrying a concealed weapon, and one count of having a weapon while under disability. Defendant pled not guilty to the charges contained in the indictment.
{¶ 3} Before the jury was sworn, defendant sought to waive a jury trial as to the charge of having a weapon under disability, and the state did not oppose this request. After the trial court granted defendant's request, the count of having a weapon while under disability was tried by the court. The remaining counts of the indictment were tried by a jury. During the trial, after having become dissatisfied with trial counsel, defendant dismissed his attorney and later proceeded pro se.
{¶ 4} By jury verdict, defendant was found not guilty of murder and not guilty of carrying a concealed weapon. The trial court, however, did find defendant guilty of having a weapon while under disability. The court imposed a five-year prison sentence and ordered defendant to pay court costs.
{¶ 5} From the trial court's judgment, defendant appeals. Defendant assigns seven errors for our consideration:
I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN IMPOSING THE MAXIMUM FIVE-YEAR SENTENCE FOR THE OFFENSE OF HAVING A WEAPON UNDER DISABILITY.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN ITS SENTENCING DETERMINATION RELIED ON FACTUAL FINDINGS NEITHER FOUND BY A JURY NOR ADMITTED BY THE APPELLANT .
III. THE TRIAL COURT ERRED BY IMPOSING A NONMINIMUM SENTENCE WITHOUT SPECIFICALLY FINDING THE FACTORS SET FORTH IN O.R.C.
IV. THE TRIAL COURT ERRED IN IMPOSING A FIVE-YEAR TERM OF INCARCERATION WITHOUT PROPERLY CONSIDERING THE PURPOSES OF FELONY SENTENCING PURSUANT TO O.R.C.
V. THE TRIAL COURT ERRED AND THEREBY DEPRIVED THE APPELLANT, TIMOTHY DANIEL, APPEARING PRO SE, OF DUE PROCESS OF LAW AS GUARANTEED BY THE
VI. THE TRIAL COURT ERRED AND THEREBY DEPRIVED THE APPELLANT, TIMOTHY DANIEL, OF DUE PROCESS OF LAW AS GUARANTEED BY THE
VII. THE TRIAL COURT LACKED JURISDICTION TO TRY THE DEFENDANT WITHOUT A JURY ON THE WEAPON UNDER DISABILITY CHARGE.
{¶ 6} Defendant's seventh assignment of error asserts that the trial court lacked jurisdiction when it found defendant guilty of having a weapon while under disability. Because this assignment of error challenges the authority of the trial court to adjudicate the merits of this charge against defendant, we shall begin by addressing this claim of error.
{¶ 7} "Jurisdiction has been described as `a word of many, too many, meanings.'" Pratts v. Hurley,
{¶ 8} "`Jurisdiction' means `the courts' statutory or constitutional power to adjudicate the case.'" Pratts, at ¶ 11, quoting Steel Co. v. Citizens for a Better Environment (1998),
{¶ 9} "Because subject-matter jurisdiction goes to the power of the court to adjudicate the merits of a case, it can never be waived and may be challenged at any time." Pratts, at ¶ 11, citing United States v. Cotton (2002),
{¶ 10} However, the term "jurisdiction" may also be used to refer to a court's exercise of its jurisdiction over a particular case. Pratts, at ¶ 12. In Pratts, the court explained:
* * * "`The third category of jurisdiction [i.e., jurisdiction over the particular case] encompasses the trial court's authority to determine a specific case within that class of cases that is within its subject matter jurisdiction. It is only when the trial court lacks subject matter jurisdiction that its judgment is void; lack of jurisdiction over the particular case merely renders the judgment voidable.'" [State v.] Parker,
[
Id.
{¶ 11} R.C.
{¶ 12} Here, defendant does not assert that this case was improperly filed in the common pleas court. Thus, defendant does not appear to challenge the common pleas court's statutory or constitutional power to adjudicate the case against defendant.
{¶ 13} Rather, defendant challenges the common pleas court's exercise of subject-matter jurisdiction. Specifically, defendant asserts: (1) the common pleas court failed to adequately determine whether defendant knowingly, intelligently, and voluntarily waived his right to a jury trial as to the charge of having a weapon while under disability; and (2) the record contains insufficient evidence to show that defendant knowingly, intelligently, and voluntarily waived his right to trial by jury as to the charge of having a weapon while under disability.
{¶ 14} "A jury waiver must be voluntary, knowing, and intelligent." State v. Bays (1999),
{¶ 15} In State v. Jells (1990),
{¶ 16} Here, absent objection by the state, defense counsel informed the trial court that defendant wanted to waive a jury trial as to the charge of having a weapon under disability. Thereafter, the court and defendant had this exchange:
THE COURT: Mr. Daniel, I also have to advise you with respect to your right to a trial by jury.
You do have a right to have a trial by jury on all counts and that right is guaranteed to you by the United States Constitution, the Constitution of the State of Ohio. Do you wish at this point in time then to waive your right to a trial by jury with respect to Count Three, the weapons under disability?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right.
(Tr. Vol. I, 4.)2
{¶ 17} Although it may have been better practice for the trial court to enumerate all the possible implications of a waiver of a jury, there is no error in failing to do so. Jells,
at 26. Because Jells and Thomas hold that no inquiry is required, the trial court's failure to make specific inquiries of defendant cannot be error. See, e.g., State v. Filiaggi (1999),
{¶ 18} R.C.
In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made by part of the record thereof. * * *
Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of trial.
{¶ 19} In State v. Pless (1996),
In a criminal case where the defendant elects to waive the right to trial by jury, R.C.
Id. at paragraph one of the syllabus. "The requirement that a jury waiver form be `"filed in said cause and made a part of the record thereof" means that the form must be time-stamped and included in the record.'" Thomas, supra, at ¶ 29, quotingState v. Gipson (1998),
{¶ 20} "[A] written waiver is presumptively voluntary, knowing, and intelligent." Bays, supra, at 19, citing UnitedStates v. Sammons (C.A.6, 1990),
{¶ 21} Based upon our review, we cannot conclude that defendant has demonstrated a plain showing that his waiver of a jury trial with respect to the charge of having a weapon under disability was not voluntarily, knowingly, and intelligently made. Accordingly, we overrule defendant's seventh assignment of error.
{¶ 22} Having determined that the trial court properly exercised subject-matter jurisdiction, we shall now consider defendant's remaining assignments of error.
{¶ 23} Defendant's first assignment of error asserts the trial court's imposition of the maximum five-year sentence for the conviction of having a weapon while under disability constitutes prejudicial error.
{¶ 24} Defendant asserts that the trial court erred when it stated:
THE COURT: Mr. Daniel, as you are well aware and as I'm well aware, I have looked at your prior record for purpose of sentencing and you have been convicted on a prior occasion of the offense of burglary. You've also been convicted in other states of other offenses. I'm also going to make the comment, because I must, I'm going to find based upon our statutory criteria you're the worse [sic] form offender posing the greatest likelihood of committing future crime.
The worse [sic] form offender are those offenders that have a weapon under disability. I am making my own personal finding on the date and time in question you did commit murder, that's why I'm making you and finding you the worse [sic] form offender that poses the greatest likelihood of committing future crime.
You're going to be sentenced to the maximum of five years in the state penitentiary.
(Tr. Vol. II, 451.)3
{¶ 25} Defendant contends that by injecting its own belief that defendant committed murder, the trial court improperly invaded the province of the jury, which found defendant not guilty of murder. Defendant further contends that the trial court failed to adequately explain how defendant posed the greatest likelihood of committing future crimes.
{¶ 26} The state argues that the trial court, as the independent trier of fact as to whether defendant had a weapon while under disability, was not required to ignore evidence concerning whether defendant committed murder. Furthermore, the state argues that because of the trial court's function as the entity charged with sentencing, the court had an independent prerogative to reach its own conclusions concerning defendant's use of a firearm.
{¶ 27} Although defendant challenges the adequacy of the trial court's sentencing explanation, we find that the court did in part support its finding that defendant posed the greatest likelihood of committing future crimes and that defendant was the worst form of an offender by referencing defendant's history of prior convictions. Furthermore, after defendant was sentenced in this case, R.C.
{¶ 28} Furthermore, we do not agree with defendant's claim that the trial court's statements about defendant's culpability as to the murder charge improperly invaded the province of the jury.
{¶ 29} Under R.C.
{¶ 30} Thus, even though the jury found that the state failed to prove beyond a reasonable doubt that defendant committed murder and that defendant carried a concealed weapon as alleged in the indictment, because a different burden of proof is required for sentencing purposes, the trial court was still free to reach a contrary conclusion for purpose of sentencing.Zweibel, supra.
{¶ 31} Additionally, notwithstanding this court's divergent judicial antecedents, recent case authority supports our conclusion that the trial court's statements about defendant's culpability as to the murder charge do not constitute reversible error.
{¶ 32} In Columbus v. Jones (1987),
{¶ 33} In State v. Patterson (1996),
{¶ 34} Subsequent to Jones and Patterson, this court rendered State v. Epley (Aug. 25, 1998), Franklin App. No. 97APA11-1467 in which the law announced in that case diverged from Jones and Patterson. See, e.g., Lockhart (wherein this court "recognize[d] that our decision in Epley diverges from our decision in Patterson and Jones").
{¶ 35} In Epley, the appellant, Leon W. Epley, was charged with crimes against two victims, Valeriy Iskhakov, and Jeffrey Sabota. Both victims were robbed while working as delivery drivers. By jury verdict, Epley was found guilty of theft as to Sabota; however, the jury found that Epley was not guilty of aggravated robbery and kidnapping. The jury further found that Epley did not have a firearm on or about his person or under his control during the offense against Sabota. The jury did, however, find that Epley either displayed, brandished, used, or indicated that he possessed a weapon. Regarding the charges involving the robbery of Iskhakov, the jury deadlocked and a mistrial was later declared. Later, however, Epley pled guilty to a lesser offense of theft involving Iskhakov. Filing separate judgments, the trial court imposed the maximum sentence of 18 months for each conviction, and the court ordered the sentences to be served consecutively.
{¶ 36} Citing Jones, supra, Epley asserted that the trial court erred by considering evidence that a firearm was used during the commission of the crimes because he was found not guilty of aggravated robbery. Relying on United States v. Watts
(1997),
{¶ 37} Epley is consistent with the decision reached by the Supreme Court of Ohio in State v. Wiles (1991),
{¶ 38} In Wiles, the appellant, Mark W. Wiles, was charged with one count of aggravated murder with two specifications and two counts of aggravated burglary. A three-judge panel found Wiles guilty of aggravated murder and guilty of one count of aggravated burglary and the specifications relative thereto. On appeal, Wiles contended, among other things, that, while a 1983 burglary charge was dismissed by the three-judge panel, evidence relevant thereto was improperly considered by the court in its sentencing determination.
{¶ 39} Finding that the objectionable reference arguably encompassed the 1983 burglary, the Wiles court stated that consideration of evidence as to the 1983 burglary charge at the sentencing stage did not constitute reversible error. Id. at 78. Overruling Wiles's proposition of law, the Wiles court stated: "`It is well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even one of which the defendant has been acquitted.'" Id. at 78, quoting Donelson, supra, at 590.
{¶ 40} Accordingly, following Epley, a more recent judicial pronouncement of this court than either Jones or Patterson, and finding that Epley is consistent with the Supreme Court of Ohio's decision in Wiles, we conclude that given the trial court's role as fact finder at the trial, the trial court's statements at sentencing regarding its belief that defendant committed murder, does not constitute reversible error.
{¶ 41} For the foregoing reasons, we therefore overrule defendant's first assignment of error.
{¶ 42} In his second assignment of error, relying in part upon Blakely v. Washington (2004),
{¶ 43} Recently, in State v. Draughon, Franklin App. No. 05AP-860, 2006-Ohio-2445, this court "[held] that a Blakely challenge is waived by a defendant sentenced after Blakely if it was not raised in the trial court." Id. at ¶ 8. Here, defendant was sentenced after Blakely was rendered and, thus, he could have objected to his sentencing based upon Blakely and the constitutionality of Ohio's sentencing scheme. However, defendant failed to assert a Blakely challenge in the trial court, and, thus, we find that defendant waived his Blakely challenge and this court will not sua sponte address it.Draughon, at ¶ 8. We therefore overrule defendant's second assignment of error.
{¶ 44} By his third assignment of error, defendant asserts that the trial court erred by imposing a non-minimum sentence without specifically finding the factors set forth in R.C.
{¶ 45} In Foster, supra, the Supreme Court of Ohio held that "[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id., at paragraph seven of the syllabus; see, also, Mathis, supra, at paragraph three of the syllabus.
{¶ 46} Recently, in State v. Knopf, Franklin App. No. 05AP-1201, 2006-Ohio-3806, this court stated:
After Foster, trial courts now have full discretion to impose a prior sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.Foster, at ¶ 100; Draughon, at ¶ 9. If we remanded this matter for resentencing, we would instruct the trial court to do what it already did: sentence appellant within the statutory range without making factual findings or providing any reasons for its sentence. We decline to remand this case for such a futile act.
Id. at ¶ 11.
{¶ 47} Here, even assuming arguendo that the trial court failed to make findings under R.C.
{¶ 48} Accordingly, applying Knopf, we overrule defendant's third assignment of error.
{¶ 49} By his fourth assignment of error, defendant asserts that the trial court erred by imposing a five-year sentence without properly considering the purposes of felony sentencing required by R.C.
{¶ 50} In its judgment entry of June 1, 2005, the court stated, in part: "The Court has considered the purposes and principles of sentencing set forth in R.C.
{¶ 51} Accordingly, defendant's fourth assignment of error is overruled.
{¶ 52} By his fifth and sixth assignments of error, defendant asserts his conviction for having a weapon while under disability is supported by insufficient evidence and is against the manifest weight of the evidence. Because these assignments of error are interrelated, we shall address them jointly.
{¶ 53} When an appellant challenges his or her conviction as not supported by sufficient evidence, an appellate court construes the evidence in favor of the prosecution and determines whether such evidence permits any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt.State v. Jenks (1991),
{¶ 54} Comparatively, when presented with a manifest-weight argument, an appellate court engages in a limited weighing of the evidence to determine whether the fact finder's verdict is supported by sufficient competent, credible evidence to permit reasonable minds to find guilt beyond a reasonable doubt.Thompkins, at 387; Conley, supra; State v. Group,
{¶ 55} R.C.
(A) Unless relieved from disability as provided in section
* * *
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
* * *
(B) Whoever violates this section is guilty of having weapons while under disability, a felony of the third degree.
See, also, R.C.
{¶ 56} R.C.
{¶ 57} Here, in 1998, defendant was convicted of burglary, a violation of R.C.
{¶ 58} Because according to R.C.
{¶ 59} Under R.C.
{¶ 60} Although we have concluded that the crime underlying defendant's 1998 felony conviction constitutes an "offense of violence" as defined in R.C.
{¶ 61} R.C.
{¶ 62} Our review of the record reveals that there is no evidence that defendant was relieved from disability pursuant to R.C.
{¶ 63} Furthermore, based upon our review of the evidence, we find that there is evidence to support a finding that defendant knowingly acquired, had, carried, or used a firearm or dangerous ordnance while under disability.
{¶ 64} At trial, Ryan F. Barr, a friend of defendant and a witness of the state, testified that on the evening of September 18, 2004, he spent part of the early evening with defendant, defendant's girlfriend, and defendant's baby at defendant's apartment. (Tr. Vol. I, 74.) Barr testified that on that evening, while he was at defendant's apartment, defendant "show[ed]" a gun to Barr. (Id.) According to Barr, the gun was a .9 mm Taurus. (Id.) Barr also testified that on a different occasion he had seen defendant with the same gun (id.), and on a different occasion he had seen defendant with a different firearm, a Smith Wesson .22 caliber gun with a scope. (Id. 75-76, 105.)
{¶ 65} At some point during the evening, at defendant's request, Barr took defendant to defendant's mother's house because defendant purportedly was on the verge of being evicted and he wanted to ask his mother if he could move in with her. (Id. 74-75.) After visiting defendant's mother, defendant and Barr later returned to defendant's apartment. (Id. 77.)
{¶ 66} According to Barr, at approximately 10 p.m., defendant and Barr left defendant's apartment to go to some bars. (Id.) Defendant and Barr first drove by an establishment which Barr noticed "was either rundown, or closed or whatever." (Id. 78.) According to Barr, at some point defendant suggested that they go to a bar called "Outland." (Id. 79.)
{¶ 67} After arriving at Outland, Barr went to get some drinks while defendant wandered around the establishment. (Id. 80.) Later Barr and defendant made preparations to play pool. (Id. 82.) According to Barr, at some point defendant and another person, who was later identified as Luke Morbitzer, argued and exchanged words. (Id. 84.) Barr testified:
I could hear talking and maybe just jawing back and forth from each other. And the guy, Luke, he was like, oh, it's okay, slapped Tim on the butt, you know. And that's when — I don't know if they was [sic] Luke's friends or anything. They all started laughing and Luke was laughing also.
(Id.)
{¶ 68} According to Barr, after Morbitzer slapped defendant's butt, defendant stared at Morbitzer without saying anything further and defendant looked "kind of mean-faced." (Id. 84, 113.) Morbitzer later offered to buy drinks for Barr and defendant, but defendant and Barr declined Morbitzer's offer. (Id. 85.)
{¶ 69} Barr and defendant remained at the bar until approximately 3 a.m. (Id.) According to Barr, after he and defendant separately exited the bar (Id. 85-86), Barr later located defendant, who was standing in an alley and staring into a crowd. (Id. 86-87.)
{¶ 70} After locating defendant, Barr observed some women and he quickly walked toward them so that he could catch up with them. (Id. 88.) As Barr was walking, he recognized Luke Morbitzer, who appeared drunk and who was attempting to get into a car with another person. (Id.) At some point, Barr quickly looked behind him to search for defendant. (Id. 89.) Barr testified:
A. * * * I looked back and [defendant] was standing with hand halfway cocked up pointing at this guy.
Q. Did you notice anything in his hand?
A. Yeah. Black object.
Q. Okay. Did you recognize what the object was?
A. It looked like a gun to me.
Q. And was [sic] there any gunshots?
A. Yes.
Q. And was there one gunshot?
A. There was [sic] multiple gunshots.
* * *
Q. At that point did you know the direction that [defendant] was shooting?
A. Well, when I looked the first time, it looked like he was pointing toward the car, the passenger area.
Q. This person, the passenger, the person getting into the car, was he in the line of fire?
A. He looked like — he looked like he was in the line of fire, yes.
(Id. 89-90.)
{¶ 71} Barr also testified that, although he did not recall seeing defendant with a gun at the bar prior to the shooting (id. 95-96), the gun that defendant fired during the early morning of September 19, 2004, "looked small and black like the one he showed me that evening." (Id. 98.)
{¶ 72} After the shooting began, Barr ran to his car, left defendant behind, and fled. (Id. 119.) Barr stayed the night with a friend and he did not immediately contact police about the shooting. (Id. 119-120.)
{¶ 73} Defendant's girlfriend, Gina Renee Gillfillan, also testified on behalf of the state. Gillfillan testified that, at the time of the shooting, she and defendant's infant son lived with defendant. (Id. 146, 147.) Gillfillan testified that Barr came to the couple's apartment on the evening of September 18, 2004, and later left with defendant. (Id. 148-149.) According to Gillfillan, when defendant left the apartment with Barr, defendant had a gun with him. (Id. 149.) Gillfillan also testified that, before that night, defendant also had guns. (Id.)
{¶ 74} Gillfillan testified that in the early morning of September 19, 2004, she received a telephone call from defendant, in which defendant asked Gillfillan to pick him up from "somewhere off of High Street." (Id. 150.) Gillfillan then drove to High Street, but she did not find defendant and returned home. (Id. 151.) According to Gillfillan, defendant arrived home at approximately 4 or 4:30 a.m. (Id.) According to Gillfillan, after defendant arrived home, defendant told Gillfillan that "he had shot a man." (Id.) Gillfillan testified: "[Defendant] told me that the man was a white supremacist; and it happened at The Outland Bar, outside of Outland Bar." (Id.) When asked whether defendant told her how many times he shot Morbitzer, Gillfillan testified: "I think he told me six to seven times. He told me he unloaded the gun." (Id. 152.) When queried whether defendant informed her if Ryan Barr was with him, Gillfillan testified: "Yeah. He told me Ryan was with him when he shot the guy and Ryan left in his car and Tim left — or ran on foot." (Id.) Gillfillan testified that defendant confided to her that he disposed of the weapon after the shooting. (Id. 154.) According to Gillfillan, the following morning defendant retrieved the gun and later defendant attempted to sell the gun that he used to shoot Morbitzer to a neighbor who was named "Bill." (Id. 153-154.)
{¶ 75} According to William McWhorter, Jr., another state's witness, in late September or early October, 2004, defendant asked him if he wanted to purchase a black .9 mm gun from defendant. (Id. 171.) According to McWhorter, at the time of defendant's offer, defendant's girlfriend, Gina Gillfillan, was also present in the room. (Id.) McWhorter declined defendant's solicitation. (Id. 172.)
{¶ 76} Notwithstanding this evidence, defendant asserts that other evidence adduced at trial renders unreliable Gillfillan's testimony, Barr's testimony, and McWhorter's testimony. Defendant therefore reasons his conviction is supported by insufficient evidence and is against the manifest weight of the evidence. Defendant's argument is unconvincing.
{¶ 77} In a criminal or civil case, a determination of the weight of the evidence and credibility of witnesses is primarily for the trier of facts. State v. DeHass (1967),
* * * [T]he jury is free to believe all, part, or none of the testimony of each witness who appears before it. State v. Long
(1998),
Id. at ¶ 18. See, also, Maxton Motors, Inc. v. Schindler (Dec. 26, 1984), Defiance App. No. 4-83-23 (discussing role of the trier of fact).
{¶ 78} Here, despite defendant's assertions to the contrary, we find the testimony of Barr, Gillfillan, and McWhorter, if believed by the trial court as the finder of fact, constitutes sufficient evidence to support a finding that defendant knowingly acquired, had, carried, or used a firearm or dangerous ordnance while under disability. Furthermore, after reviewing the evidence, we cannot conclude that the trial court, as the trier of fact, clearly lost its way and created a manifest miscarriage of justice by finding defendant guilty of having a weapon while under disability.
{¶ 79} Accordingly, for the foregoing reasons, construing the evidence in favor of the prosecution, we hold that defendant's conviction is supported by sufficient evidence such that the evidence permits a rational trier of fact to find that defendant committed the offense of having a weapon while under disability beyond a reasonable doubt. We further hold that the trial court, as the trier of fact, did not clearly lose its way and create such a manifest miscarriage of justice such that defendant's conviction is against the manifest weight of the evidence. Therefore, we overrule defendant's fifth and sixth assignments of error.
{¶ 80} Accordingly, having overruled all seven of defendant's assignments of error, we therefore affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
Bryant and McGrath, JJ., concur.
Insofar as the State seeks correction/modification regarding the jury waiver, this Court specifically recalls that, after this Court said it would allow the waiver, the Court's bailiff retrieved a waiver form and defendant at that time signed the form at counsel table, at which point defendant's then trial counsel provided the signed waiver to this Court, which is when this Court discussed the waiver with defendant. Accordingly, the State's motion is GRANTED in that respect.
Insofar as the State seeks correction/modification regarding lines 14, 17, and 21 on page 451 of the transcript, the court reporter has reviewed her notes from the hearing, and the notes are consistent with both" worse" and "worst." This Court confirms that this Court's habit is to say "worst," not "worse," in making the finding to support a maximum sentence. Accordingly, the State's motion is GRANTED in that respect.
"Reasonable doubt" is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proof beyond a reasonable doubt" is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs.
"The most acceptable meaning to be given the express, proof bya preponderance, seems to be proof which leads the jury to find that the existence of the contested fact is more probable thanits nonexistence. * * * [A] preponderance of the evidence means the greater weight of the evidence. * * * The greater weight may be infinitesimal, and it is only necessary that it be sufficient to destroy the equilibrium." Id. at 102.
(Citations omitted; emphasis sic.)
A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.
Whoever violates this section is guilty of burglary. A violation of division (A)(1) of this section is an aggravated felony of the second degree. A violation of division (A)(2) of this section is a felony of the third degree. A violation of division (A)(3) of this section is a felony of the fourth degree.
