In re D.O. , 2020 Ohio 6862 ( 2020 )

[Cite as In re D.O., 2020-Ohio-6862.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: D.O. : APPEAL NO. C-190691
TRIAL NO. 15-9394X
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 23, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Appellee the State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, Andrew Hakala-Finch and
Julie Kahrs Nessler, Assistant Public Defenders, for Appellant D.O.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Appellant D.O. appeals from the trial court’s judgment adjudicating
him delinquent of burglary. In two assignments of error, D.O. argues that his
adjudication was not supported by sufficient evidence and was against the manifest
weight of the evidence.
{¶2} For the reasons that follow, we agree with D.O.’s argument that his
adjudication for burglary in violation of R.C. 2911.12(A)(2) was not supported by
sufficient evidence. But we further find, and D.O. concedes, that the record supports
an adjudication for trespass in a habitation when a person is present or likely to be
present in violation of R.C. 2911.12(B). We therefore reverse the trial court’s
judgment adjudicating D.O. delinquent of burglary and remand for the trial court to
enter judgment adjudicating D.O. delinquent of trespass.
Factual Background
{¶3} On September 27, 2015, Donald and Irina Borgman returned home
after a shopping trip and discovered D.O. hiding underneath a box in their spare
bedroom. The state filed a complaint alleging that D.O. was a delinquent child for
committing an act that, if committed by an adult, would have constituted the offense
of burglary in violation of R.C. 2911.12(A)(2).
{¶4} At a trial before a juvenile court magistrate, Donald and Irina Borgman
testified that on the day of the offense, after they returned home their dog continued
to bark for approximately 45 minutes. While checking around the house to see what
could be causing the dog to bark, Irina found D.O. hiding underneath a large box in a
spare bedroom. D.O. told Irina that he was her friend, but Irina did not recognize
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OHIO FIRST DISTRICT COURT OF APPEALS
him. D.O. further told Irina and Donald that he entered the house through the
unlocked front door and tried to turn on the television in the living room while he
waited for them to return home. While Donald was familiar with D.O.’s family and
had previously hired D.O. and his siblings to help him with various chores around his
home, neither Irina nor Donald had given D.O. permission to be in their home on the
day of the offense.
{¶5} Nothing was taken from the Borgmans’ home. While the Borgmans
normally kept the curtains in the spare bedroom closed, Irina noticed that the
curtains were open when she found D.O. She also noticed what she described as a
“mess” on the bed in the spare bedroom, and that a chair was pushed against the
outside of the house underneath the window to that room.
{¶6} Colerain Township Police Officer Brandon Ellis testified that he
investigated the burglary at the Borgmans’ home and spoke with D.O. at the scene.
D.O. told the officer that the Borgmans’ unlocked door had opened when he knocked
on it, and that he had entered the home to look for Donald. D.O. waited in the living
room for the Borgmans to return home, but when he heard someone enter the home,
he remained hidden because he was unsure who it was.
{¶7} D.O.’s brother Tony Cook testified that he and his siblings, including
D.O., had helped Donald with chores around his yard and inside his house, had
watched movies at Donald’s home, and had gone to restaurants with Donald. He
explained that they had been given permission to be inside the home when Donald
was not there to take care of Donald’s animals and clean. Cook testified that this
occurred from early 2013 until April of 2015.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} The magistrate adjudicated D.O. delinquent of burglary. D.O. filed
objections to the magistrate’s decision, arguing, as relevant to this appeal, that his
adjudication was not supported by sufficient evidence and that the magistrate erred
in adjudicating him delinquent of burglary where there was no finding of what
criminal offense D.O. intended to commit inside the habitation.
{¶9} Following a hearing, the trial court issued an entry that overruled
D.O.’s objections, adopted the magistrate’s decision, and adjudicated D.O.
delinquent. With respect to D.O.’s intent to commit a criminal offense inside the
habitation, the trial court stated that:
The Court is unpersuaded that [D.O.] entered the Borgman home to
watch television or otherwise socialize. Nothing about [D.O.’s] actions
support the assertion that he was waiting inside the home for Mr.
Borgman to return home. [D.O.] forcefully entered what he knew to be
an occupied dwelling and hid in a box upon the homeowner’s return.
In the bedroom where [D.O.] was found, the bed and the curtains were
not as Mrs. Borgman left them, and a chair had been moved below the
bedroom window on the exterior of the home. [D.O.] remained in
hiding for approximately 45 minutes after the Borgmans returned
home and did not respond when the Borgmans called out inquiring if
anyone else was present in the home. If [D.O.] believed he was
welcome to be in the home at that time, or was merely there to visit, it
is unlikely he would have hidden in a box when they arrived home, and
remain hidden for 45 minutes. Rather, it could clearly be inferred
from the facts and circumstances that [D.O.] forcefully entered the
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OHIO FIRST DISTRICT COURT OF APPEALS
home with the intent to commit a crime, was interrupted by the
Borgmans returning home, and hid.
Based upon an independent review of the record, the Court finds that
the circumstances in this case give rise to an inference that [D.O.]
intended to commit a criminal offense inside the habitation.
D.O. now appeals.
Sufficiency and Weight of the Evidence
{¶10} In two assignments of error, D.O. argues that his adjudication for
burglary was not supported by sufficient evidence and was against the manifest
weight of the evidence.
{¶11} In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the crime
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. In contrast, when considering a challenge to
the weight of the evidence, the court must examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the court clearly lost its
way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997).
{¶12} D.O. was adjudicated delinquent of burglary pursuant to R.C.
2911.12(A)(2), which provides that “[n]o person, by force, stealth, or deception, shall
* * * Trespass in an occupied structure or in a separately secured or separately
occupied portion of an occupied structure that is a permanent or temporary
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OHIO FIRST DISTRICT COURT OF APPEALS
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.” (Emphasis added.)
{¶13} D.O. asserts that the state failed to argue what criminal offense he
intended to commit in the habitation and that the evidence was insufficient to
establish this element of the offense. He concedes that the evidence presented at
trial was sufficient to establish the offense of trespass.
{¶14} In response, the state argues that the evidence was sufficient to
establish that D.O. had the intent to commit a criminal offense in the habitation, and
it contends that D.O.’s argument is undermined by both State v. Grier, 1st Dist.
Hamilton No. C-110240, 2012-Ohio-330, and State v. Gardner, 118 Ohio St.3d 420,
2008-Ohio-2787, 889 N.E.2d 995. In Grier, the defendant was convicted of burglary
in violation of R.C. 2911.12(A)(2) following a bench trial. Grier argued on appeal that
the state failed to prove that he intended to commit a criminal offense when he
trespassed in the victim’s apartment. Grier at ¶ 7. This court rejected Grier’s
argument. We stated that a defendant’s intent must be determined from the facts
and circumstances of the case, and held that:
[T]here was testimony supporting a reasonable conclusion that Grier
had moved the refrigerator and had knocked over a trash can. At a
minimum this demonstrated that Grier had intended to commit—and
in fact had committed—“criminal mischief” as defined in R.C.
2909.07(A)(1). The circumstances in this case also give rise to an
inference that Grier may have intended to steal something, but was
scared off by the apartment’s security system before doing so.
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OHIO FIRST DISTRICT COURT OF APPEALS
Id.{¶15} In Gardner, the Supreme Court of Ohio considered whether it was
necessary for a jury to unanimously agree as to which criminal offense a defendant
charged with aggravated burglary intended to commit during the course of the
burglary. Gardner at ¶ 1. The defendant in Gardner was charged with aggravated
burglary in violation of R.C. 2911.11(A)(2), requiring the state to prove that the
defendant trespassed with purpose to commit in the structure “any criminal offense.”
See R.C. 2911.11(A). The trial court in Gardner did not instruct the jury that it
needed to agree as to which offense the defendant intended to commit in the home.
Gardner at ¶ 27. And, while it did instruct the jury as to the separate crime of
felonious assault, it did not separately instruct the jury on any specific crime that the
defendant had committed to satisfy this element of the offense. Id. Gardner argued
that the jury instructions deprived him of his due-process right to a unanimous
verdict.
{¶16} The Gardner court rejected this argument. It held that “a defendant
charged with burglary is not deprived of a unanimous verdict simply because the jury
was not required to agree unanimously as to the nature of the crime the defendant
intended to commit at the time he entered unlawfully into the victim’s building.”
(Internal quotations omitted.) Gardner at ¶ 68. The court further noted that the jury
need not in all cases be instructed on the elements of the particular crime the
defendant intended to commit, and that “the specific crime or crimes intended to be
committed inside burglarized premises is not an element of burglary that must be
included in the * * * jury instructions * * *.” (Emphasis sic.) Id. at ¶ 71, quoting State
v. Bergeron, 105 Wash.2d 1, 16, 711 P.2d 1000 (1985).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} But the Gardner court further indicated that the state must prove
beyond a reasonable doubt that the defendant intended to commit “any criminal
offense,” stating that:
We do agree, however, that the state must prove the defendant’s intent
to commit a crime—“any criminal offense”—beyond a reasonable
doubt. The breadth of the phrase “any criminal offense” is such that in
some cases, it may invite a fatally “patchwork” verdict based on
conceptually distinct groupings of crimes or on multiple acts. We
believe that in such cases, due process requires that the jurors must be
instructed as to the specific criminal act(s) that the defendant intended
to commit inside the premises.
Id. at ¶ 72. The court ultimately recognized that “it is preferable for the trial judge to
instruct the jury in all aggravated-burglary cases as to which criminal offense the
defendant is alleged to have intended to commit once inside the premises and the
elements of that offense,” but it did not go so far as to require such an instruction in
every case. Id. at ¶ 73-74.
{¶18} Both before and after Gardner, the state must prove beyond a
reasonable doubt that the defendant intended to commit a criminal offense in the
habitation. Id. at ¶ 72. And, ultimately, at a minimum, the record must support the
intent to commit an identifiable crime. After reviewing the record, we find that the
state failed to meet its burden in the case at bar.
{¶19} The evidence presented at trial established that D.O. remained hidden
underneath a box in the Borgmans’ spare bedroom for approximately 45 minutes
after they returned home. The curtains and the bedspread in that room were askew,
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OHIO FIRST DISTRICT COURT OF APPEALS
but none of the Borgmans’ belongings were damaged or moved, and nothing was
taken from the home. And, as noted by D.O., the state failed to identify at any point
during these proceedings any specific criminal offense that D.O. allegedly had the
purpose to commit inside the habitation.
{¶20} The state argued in response to D.O.’s Crim.R. 29 motion for an
acquittal that:
The purpose to commit a criminal offense, I think that can be certainly
drawn from the circumstances, Your Honor. You have the ability to
look at the circumstances as a whole, including the fact that he was
hiding in a bedroom for 45 minutes tucked away in a hidden position
to not be found by the residents in the home. There were things
shuffled about, specifically what Ms. Borgman testified to was the
comforter had been tampered with in the residence that day.
Fortunately, they were able to intervene when this happened, so
ultimately they don’t have any reason to believe that property was
ultimately taken from the residence, but the surrounding
circumstances certainly show the element of the intent to commit any
criminal offense.
{¶21} While the state outlined the circumstances in which D.O. was
discovered, it failed to identify any specific criminal offense that he intended to
commit. Nor did it identify any such offense at the objections hearing. And despite
the fact that D.O. raised a specific objection to the state’s failure to establish which
crime D.O. had the purpose to commit and to the magistrate’s failure to identify a
particular crime, the trial court failed to identify what offense or offenses D.O. had
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OHIO FIRST DISTRICT COURT OF APPEALS
the purpose to commit. It instead generally found that the circumstances of the case
supported an inference that D.O. intended to commit a criminal offense. Finally, the
state has not argued to us in this appeal what crime it claims D.O. had the intent to
commit.
{¶22} In State v. Hudson, 2018-Ohio-423, 106 N.E.3d 205 (2d Dist.), the
appellant challenged his burglary conviction under R.C. 2911.12(A)(2) on the ground
that there was insufficient evidence to establish that he entered the habitation with
the purpose to commit a criminal offense. The state argued that Hudson had
trespassed with the purpose to commit possession of illegal drugs, possession of
criminal tools, and/or unauthorized use of property. Id. at ¶ 21. The court
considered each of the identified offenses in light of the evidence presented, and
found insufficient evidence that Hudson intended to commit any of the offenses. The
court therefore determined that Hudson’s conviction for burglary was not supported
by sufficient evidence. Id. at ¶ 33.
{¶23} Unlike Hudson, the state has failed to identify for this court’s
consideration any specific criminal offense that D.O. had the purpose to commit.
And the evidence cited by the state—D.O.’s act of hiding underneath the box and the
askew bedspread and curtains—does not establish beyond a reasonable doubt that
D.O. intended to commit a criminal offense inside the Borgmans’ home. R.C.
2911.12(A)(2) does not allow this court to speculate as to what criminal offense a
defendant intended to commit inside the habitation. Rather, that the defendant
intended to commit a criminal offense must be proven beyond a reasonable doubt.
Here, the facts and circumstances of the case are insufficient to establish that D.O.
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OHIO FIRST DISTRICT COURT OF APPEALS
had the intent to commit a criminal offense inside the Borgmans’ home. See Grier,
1st Dist. Hamilton No. C-110240, 2012-Ohio-330, at ¶ 7.
{¶24} We accordingly find that D.O.’s adjudication for burglary was not
supported by sufficient evidence.
{¶25} But the evidence adduced at trial was sufficient to support an
adjudication for trespass in a habitation when a person is present or likely to be
present in violation of R.C. 2911.12(B). D.O. concedes this on appeal. “When the
evidence shows that a defendant is not guilty of the crime for which he was
convicted, but is guilty of a lesser-included offense, this court may modify the
conviction.” State v. Davis, 1st Dist. Hamilton No. C-040411, 2006-Ohio-4599, ¶ 13;
App.R. 12(B); See Hudson, 2018-Ohio-423, 106 N.E.3d 205, at ¶ 35.
{¶26} The first assignment of error is sustained. Our resolution of D.O.’s
first assignment of error renders his second assignment of error challenging the
manifest weight of the evidence moot. See State v. Petit, 12th Dist. Madison No.
CA2016-01-005, 2017-Ohio-633, ¶ 31.
Conclusion
{¶27} We reverse the trial court’s judgment adjudicating D.O. delinquent of
burglary in violation of R.C. 2911.12(A)(2), and remand this cause for the trial court
to modify its judgment to reflect that D.O. is delinquent for committing trespass in a
habitation when a person is present or likely to be present in violation of R.C.
2911.12(B), and for sentencing on that offense.
Judgment accordingly.
ZAYAS, P.J., and WINKLER, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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