State v. Miller, 2006 Ca 98 (5-11-2007)State v. Miller, 2006 Ca 98 (5-11-2007)
{¶ 1} Erich Miller was convicted of burglary after a jury trial in the Clark County Court of Common Pleas. The court sentenced him to six years of incarceration. Miller appeals from his conviction, arguing that his conviction was based on insufficient evidence.
{¶ 2} “`[Sufficiency’ is a term of art meaning that legal standard which is
{¶ 3} The state‘s evidence at trial established the following facts.
{¶ 4} Sandra West had resided at 1599 Karr Street in Springfield, Ohio, for approximately thirty years. West kept cash in her home, and she hid it in a key-locked upstairs bedroom in a concealed сompartment in a closet. West testified that her oldest grandaughter, Tasha Jones, was the only person who knew where her money was hidden. Jones is the girlfriеnd of Miller and the neighbor of Joseph Wilmeth, Jr.
{¶ 5} West worked the 11:00 p.m. to 7:00 a.m. shift at Mercy Medical Center, which is located about five minutes from her home. When аsked whether she ever returned home during work hours, West responded that she had done so on two occasions: once when she had forgotten her medication for chronic liver disease and once when she had forgotten to unplug the curling iron.
{¶ 6} On August 23, 2005, West returned home after work and discovered that the back door to her home was open. Upon searching her house, she discovered that
{¶ 7} Wilmeth confessed to committing the burglary and asserted that Miller had been his accomplice. Wilmeth testified that, at approximately 4:00 a.m. to 4:30 on August 23, 2005, he and Miller walked from his house to West‘s house, broke the back window on the left side of the back door, unlocked the back door, and went upstairs to the locked bedroom. Wilmeth stated that he and Miller first located and took the money and then went to a back bedroom where the video games and XBox were located. Wilmeth indicated that Jones had told them West‘s work schedule and which room containеd the hidden money.
{¶ 8} Jones also pled guilty to the burglary. She testified on Miller‘s behalf that he had not received money from the burglary, that “it was all [Wilmeth],” and that she wanted to withdraw her plea. West testified as a rebuttal witness that Jones had stated that “they didn‘t come up until 3 o‘clock in the morning, and they were back home by 3:30.” West also testified that Jones had refused to pay back any money because “she [Jones] didn‘t get anything out of it.”
{¶ 9} Miller was convicted of burglary, in violation of
{¶ 10} “(A) No person, by force, stealth, or dеception, shall do any of the following:
{¶ 11} “* * *
{¶ 12} “(2) Trespass in an occupied structure or in a separately secured or separately ocсupied portion of an occupied structure that is a permanent or temporary
{¶ 13} In his sоle assignment of error, Miller claims that his conviction was based on insufficient evidence, because the state presented no evidence that anyone was “present or likely to be present” during the alleged burglary. Miller asserts that the evidence demonstrated merely a “remote” chanсe that West would be present. The state responds that “[t]he question is whether, after consideration of all the circumstances, the jury could have arrived at a conclusion that there was a logical expectation that a person could be present. * * * A quantitative measure is just not the way things should work in the law.” Emphasis sic.
{¶ 14} In State v. Frock, Clark App. No. 2004 CA 76, 2006-Ohio-1254, we discussed whether a person is “likely” to be present in the context of
{¶ 15} “`Although the term `likely’ connotes something more than a merе possibility, it also connotes something less than a probability or reasonable certainty. A person is likely to be present when a consideratiоn of all the circumstances would seem to justify a logical expectation that a person could be present.’ State v. Green (1984), 18 Ohio App.3d 69, 72, 480 N.E.2d 1128. In determining whether persons wеre present or likely to be present under
{¶ 16} “The supreme court hаs held that the `likely to be present’ element is satisfied where the structure is a permanent dwelling house which is regularly inhabited, the occupants were in аnd out of the house on the day in question, and the occupants were temporarily absent when the burglary occurred. State v. Kilby (1977), 50 Ohio St.2d 21, 23, 361 N.E.2d 1336. See, also, Fowler, 4 Ohio St.3d at 19, 445 N.E.2d 1119; State v. Baker, Butler App. No. CA2003-01-16, 2003-Ohio-5986. On the other hand, courts have found insufficient evidence that the occupants were likely to be present when they were absent for an extended period, such as a vacation, and no one else was regularly checking on the house. See, e.g., State v. Cantin (1999), 132 Ohio App.3d 808, 726 N.E.2d 565; State v. Brightman, Montgomery App. No. 20344, 2005-Ohio-3173; State v. Hibbard, Butler App. Nos. CA2001-12-276 and CA2001-12-286, 2003-Ohio-707, ]}13; State v. Weber (Dec. 23, 1997), Franklin App. No. 97APA03-322; State v. Cochran (Jan. 30, 1996), Cuyahoga App. No. 50057. Similarly, if the occupants of a house are gone for the entire work day, they are not `likely to be present’ during the day. See Brown, supra.” Frock at ?20-21.
{¶ 17} In the present case, the burglary occurred at approximately 4:00 а.m. West testified that she worked the 11:00 p.m. to 7:00 a.m. shift at the hospital. The burglary thus occurred near the middle of her shift, not when she would typically be at home. Although Wеst testified that the hospital was five minutes from her home, West identified only two specific occasions when she had returned home during her shift-
{¶ 18} The assignment of error is sustained.
{¶ 19} Although the state did not satisfy its burden under
{¶ 20} “When the evidencе shows that a defendant is not guilty of the degree of crime for which he was convicted (e.g., the conviction was not supported by sufficient evidence), but is guilty of a lesser crime included therein, we may modify the verdict accordingly.
{¶ 21} Because the state failed to present sufficient evidence to support a conviction under
{¶ 22} The case is remanded to the trial court for resentencing.