State v. Davis , 2020 Ohio 3199 ( 2020 )

[Cite as State v. Davis, 2020-Ohio-3199.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-67
:
v. : Trial Court Case No. 2017-CR-542
:
BRANDON DAVIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 5th day of June, 2020.
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JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard,
Springboro, Ohio 45066
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Brandon Davis, appeals from his conviction in the Clark
County Court of Common Pleas after a jury found him guilty of one count of aggravated
burglary with a firearm specification and one count of burglary with a firearm specification.
In support of his appeal, Davis contends that the jury’s verdict on those counts and
specifications was not supported by sufficient evidence and was against the manifest
weight of the evidence. Davis also contends that the trial court erred in overruling his
pretrial motion to dismiss the aggravated burglary charge on grounds that the indictment
contained incorrect statutory language for that charge.
{¶ 2} As discussed more fully below, Davis’s conviction for aggravated burglary
and the attendant firearm specification was not supported by sufficient evidence and was
against the manifest weight of the evidence. There was, however, sufficient evidence
for the jury to find Davis guilty of burglary with an attendant firearm specification, and that
verdict was also not against the manifest weight of the evidence. Because there was
insufficient evidence to support Davis’s conviction for aggravated burglary, the issue
regarding incorrect statutory language in the indictment for aggravated burglary is moot.
In light of these findings, the judgment of the trial court will be vacated as to Davis’s
conviction for aggravated burglary and the attendant firearm specification. The matter
will be remanded so that the trial court can impose a conviction and sentence for burglary
with the attendant firearm specification.
Facts and Course of Proceedings
{¶ 3} On September 11, 2017, a Clark County grand jury indicted Davis on one
count of aggravated burglary in violation of R.C. 2911.11(A)(2), a first-degree felony; one
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count of burglary in violation of R.C. 2911.12(A)(2), a second-degree felony; and one
count of receiving stolen property in violation of R.C. 2913.51(A), a fifth-degree felony.
The counts for aggravated burglary and burglary each included a one-year firearm
specification under R.C. 2941.141(A). The aggravated burglary and burglary charges
arose from the September 4, 2017 burglary of Kimberly and Rill Thompson’s residence
in Springfield, Ohio. The receiving stolen property charge arose from a separate
burglary of another Clark County residence that occurred on August 29, 2017.
{¶ 4} Pursuant to a written plea agreement, Davis pled guilty to the burglary and
receiving stolen property charges. In exchange for Davis’s guilty plea, the State agreed
to dismiss the aggravated burglary charge and both firearm specifications. After
accepting Davis’s guilty plea, the trial court sentenced Davis to one year in prison for
receiving stolen property, eight years in prison for burglary, and one year in prison for
violating post-release control in another case. The trial court ordered these sentences
to be served consecutively for a total prison term of ten years. Davis then appealed from
his conviction.
{¶ 5} On appeal, this court affirmed Davis’s conviction for receiving stolen property,
but reversed Davis’s burglary conviction on grounds that his guilty plea to that charge was
not knowingly, intelligently, and voluntarily entered. See State v. Davis, 2d Dist. Clark
No. 2018-CA-49, 2019-Ohio-1904. After the matter was remanded to the trial court,
Davis was re-indicted for aggravated burglary, burglary, and the two attendant firearm
specifications. Despite being offered a plea agreement, Davis chose to proceed with a
jury trial on those charges and specifications.
{¶ 6} Prior to trial, Davis moved the trial court to dismiss the aggravated burglary
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charge on grounds that the indictment did not correctly track the language of the
aggravated burglary statute, R.C. 2911.11(A)(2). Specifically, Davis argued that the
indictment incorrectly charged him with trespassing in an occupied structure when
another person, other than his accomplice, was “present or likely to be present.” The
State conceded that the “or likely to be present” language used in the indictment was
incorrect given that R.C. 2911.11(A)(2) simply requires another person other than the
offender’s accomplice to be “present” during the trespass of an occupied structure.
Nevertheless, the State argued that the incorrect language in the indictment did not
invalidate the aggravated burglary charge. The trial court agreed with the State and
overruled Davis’s motion to dismiss.
{¶ 7} At trial, the State presented testimony from Kimberly and Rill Thompson, the
homeowners of the Springfield residence that was burglarized on September 4, 2017.
Kimberly Thompson testified that on the evening in question, she and her husband Rill
left their residence on Springfield Jamestown Road in order to return their grandchildren
to their mother’s home in Fairborn. Kimberly testified that when they returned home and
pulled into their driveway, Kimberly observed a man and a woman, later identified as
Davis and his girlfriend, Winter Ann Eggers, standing in the driveway with items of
property set around them. Kimberly testified that she recognized one of the items as a
light blue pillowcase from her grandson’s bed. Upon seeing this, Kimberly knew that
Davis and Eggers had been inside their home.
{¶ 8} Kimberly testified that Davis and Eggers ran away and left the items of
property halfway between the house and Springfield Jamestown Road. Kimberly
testified that, upon seeing this, she and Rill backed out of their driveway and followed
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Davis and Eggers down the road. Kimberly testified that they pulled their vehicle
alongside Davis and asked him what he had been doing in their house. Kimberly
claimed that Davis, who was on his phone, kept running and would not answer them.
Kimberly called 911 as Davis and Eggers were getting into a silver getaway vehicle.
Kimberly testified that she gave the 911 dispatcher the getaway vehicle’s license plate
number. The 911 call was played for the jury and admitted into evidence as State Exhibit
No. 1.
{¶ 9} Rill Thompson similarly testified that as he and his wife Kimberly were pulling
into their driveway, he observed Davis and Eggers standing in some bushes on the left-
hand side of the driveway near Springfield Jamestown Road. Rill confirmed that Davis
and Eggers were both on his property when he and Kimberly first saw them. Rill testified
that his home was approximately 150 to 160 feet from Springfield Jamestown Road and
that Davis and Eggers were located less than 30 feet from the road. Like Kimberly, Rill
also testified that he saw items of property on the ground at Davis’s and Eggers’s feet.
Rill specifically testified to observing a pillowcase, trash can, and some other unidentified
item.
{¶ 10} Rill testified that as he and Kimberly were following Davis and Eggers down
Springfield Jamestown Road, he observed a silver Chevy HHR coming toward them in
the opposite direction. Rill testified that Eggers unsuccessfully tried to stop the silver
HHR, and then ran and hid in a neighbor’s garden with Davis. Rill testified that Davis
and Eggers then once again took off running south down Springfield Jamestown Road.
Rill testified that he continued to follow Davis and Eggers, who eventually got into the
silver HHR. Rill testified that after Kimberly called 911, he and Kimberly stopped and
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made contact with a sheriff on the road and advised the sheriff that Davis and Eggers
were in the silver HHR. After the HHR was stopped by law enforcement, Rill and
Kimberly went home.
{¶ 11} Rill testified that when he and Kimberly returned home, he noticed a chair
from their deck had been moved below their kitchen window. Rill testified that the screen
had been knocked out of the kitchen window and that their back door had been unlocked
by the perpetrators. Rill testified that when he went inside his home, he observed that
his gun cabinet was open and that all the firearms and ammunition he kept in the cabinet
were missing. Rill also testified that all of his wife’s jewelry was missing from their
bedroom dresser. Rill further testified that their television had been removed from its
cabinet and was sitting on the living room floor as though it was ready to be transported.
{¶ 12} Continuing, Rill testified that all the missing items of property were
discovered outside on the ground. Kimberly’s jewelry was located inside the light blue
pillowcase that she had observed next to Davis and Eggers. Rill’s firearms were in a
pack n’ play bag,1 and the missing ammunition was located at the bottom of the trash
can that Rill had observed at Davis’s and Eggers’s feet. Rill testified that six of his
firearms were in the pack n’ play bag and that they were all operable with the ammunition
found in the trash can. Photographs of the stolen property and the Thompsons’ home
were admitted into evidence as State Exhibit Nos. 2 through 14.
{¶ 13} Both Kimberly and Rill testified that they did not know Davis or Eggers and
that neither Davis nor Eggers had permission to enter their home. Rill further testified
1
A pack n’ play bag is a bag used to transport a certain type of play pen for young
children.
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that no one was home during the break-in and that he and Kimberly were only gone for
about an hour to an hour and a half when the break-in occurred.
{¶ 14} For its last witness, the State called Detective Brian Melchi of the Clark
County Sheriff’s Office. Melchi testified that on the evening in question, he was called
to the Thompsons’ residence in reference to a burglary. Melchi testified that when he
arrived at the residence, the Thompsons advised him that they saw Davis and Eggers
standing between their house and the roadway as they were pulling into their driveway.
Melchi also testified that no one was inside the Thompsons’ residence at the time of the
break-in.
{¶ 15} In addition, Melchi testified that uniformed patrol deputies stopped the silver
HHR containing Davis and Eggers and took them and the driver, Stephen Mitchum, into
custody. Melchi testified that the silver HHR was then impounded and searched after a
search warrant was obtained. According to Melchi, the search of the silver HHR yielded
a crowbar, screwdriver, gloves, and a red shirt lying on the front passenger seat. Based
on his training and experience, Melchi testified that these items are commonly used in
burglaries. Photographs of the silver HHR and the evidence discovered therein were
admitted as State Exhibit Nos. 15 and 16.
{¶ 16} Following the admission of the foregoing testimony and evidence, the State
rested its case. Davis then moved for an acquittal under Crim.R. 29 on grounds that the
State failed to present evidence establishing all elements of the charged offenses and
firearm specifications. The trial court disagreed with Davis and overruled his Crim.R. 29
motion. After overruling Davis’s motion, the defense also rested its case. The jury then
deliberated and found Davis guilty of aggravated burglary, burglary, and both of the
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firearm specifications.
{¶ 17} At sentencing, the trial court merged the aggravated burglary and burglary
offenses and the two firearm specifications. Following the merger, the State elected to
have Davis sentenced for aggravated burglary. The trial court then sentenced Davis to
11 years in prison for aggravated burglary plus one year for the associated firearm
specification, thus making Davis’s total prison term 12 years. The trial court also ordered
the 12-year prison sentence to run consecutively to the two one-year prison terms that
Davis had previously received for receiving stolen property and violating his post-release
control.
{¶ 18} Davis now appeals from his conviction, raising three assignments of error
for review. For purposes of clarity, we will address Davis’s assignments of error out of
order.
Second Assignment of Error
{¶ 19} Under his second assignment of error, Davis contends that his conviction
for aggravated burglary with an attendant firearm specification was not supported by
sufficient evidence. Davis also contends that there was insufficient evidence for the jury
to find him guilty of burglary with an attendant firearm specification.
Standard of Review
{¶ 20} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
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No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant
inquiry is whether any rational factfinder viewing the evidence in a light most favorable to
the state could have found the essential elements of the crime proven beyond a
reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683
N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds
that reasonable minds could not reach the conclusion reached by the trier-of-fact.”
(Citations omitted.) Id.Aggravated Burglary
{¶ 21} R.C. 2911.11(A)(2) defines the offense of aggravated burglary at issue and
provides that:
(A) No 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, when another person other than an accomplice of the
offender is present, with purpose to commit in the structure or in the
separately secured or separately occupied portion of the structure any
criminal offense, if any of the following apply: * * * (2) The offender has a
deadly weapon or dangerous ordnance on or about the offender’s person
or under the offender’s control.
{¶ 22} An “occupied structure” includes “any house, building, outbuilding,
watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter,
or any portion thereof, * * * [that] * * * [a]t the time * * * is occupied as the permanent or
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temporary habitation of any person, whether or not any person is actually present.” R.C.
2909.01(C)(2). There is no dispute that the Thompsons’ home qualifies as an “occupied
structure.”
{¶ 23} Davis contends that his conviction for aggravated burglary was not
supported by sufficient evidence because the State failed to present any evidence
establishing that another person other than his accomplice was present when he
trespassed in the Thompsons’ home. We agree.
{¶ 24} Pursuant to R.C. 2911.11(A)(2), the State was required to present evidence
establishing that someone other than Davis and his accomplice was present at the time
Davis trespassed in the Thompsons’ home. The Supreme Court of Ohio has held that
“[t]he crime of aggravated burglary continues so long as the defendant remains in the
structure being burglarized.” State v. Powell, 59 Ohio St.3d 62, 571 N.E.2d 125 (1991),
paragraph one of the syllabus. Relying on Powell, this court held that a defendant
completed his crime of burglary when he exited the house. At that time,
his trespass in the occupied structure terminated. Although he remained
a trespasser on the property, his conduct no longer conformed to the
requirements for aggravated burglary.
State v. Clark, 107 Ohio App.3d 141, 147, 667 N.E.2d 1262 (2d Dist.1995). Therefore,
once the offender leaves the occupied structure, the necessary trespass is no longer
taking place and the crime of aggravated burglary has been completed. Id.{¶ 25} Decisions from other appellate courts in Ohio indicate that another person
can be deemed present during an offender’s trespass of an occupied structure under
various circumstances. For example, the Twelfth District Court of Appeals found that
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another person was present during the trespass of an occupied structure under
circumstances where a resident immediately fled from inside his home after the defendant
broke a window to facilitate the trespass therein. State v. Ramirez, 12th Dist. Clermont
No. CA2004-06-046, 2005-Ohio-2662, ¶ 4, 26-27. In a different case, the Twelfth District
Court of Appeals found that another person was present during the trespass of an
occupied structure under circumstances where the defendant trespassed inside a home
while the homeowners were in their front yard, with one of the homeowners then following
the defendant into the home. State v. K.W., 12th Dist. Warren No. CA2016-01-004,
2016-Ohio-7365, ¶ 20-21.
{¶ 26} The Third District Court of Appeals found that another person was present
during the trespass of an occupied structure under circumstances where a neighbor, who
agreed to take out the trash for a vacationing resident, saw the defendant trespassing
inside the resident’s home. The defendant was spotted by the neighbor while the
neighbor was standing immediately outside the back of the resident’s home getting ready
to take out the trash. State Dewitt, 3d Dist. Allen No. 1-09-25, 2009-Ohio-5903, ¶ 11-
13, 16.
{¶ 27} The Eighth District Court of Appeals found that another person was present
during the trespass of an occupied structure under circumstances where a resident
returned home to find a burglary in progress. The resident approached and entered the
home as the defendant contemporaneously fled from inside the home. State v.
Coleman, 8th Dist. Cuyahoga No. 102966, 2016-Ohio-297.
{¶ 28} With the foregoing case law and statutory language in mind, we find that
there was insufficient evidence to convict Davis of aggravated burglary. Unlike the
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aforementioned cases, it is clear from the evidence that no other person was inside,
immediately outside, or contemporaneously entering the Thompsons’ home at the time
Davis and Eggers were trespassing therein. The evidence established that when the
Thompsons returned home, Davis and his accomplice were already standing outside
approximately 120 to130 feet away from the home on or near the Thompsons’ driveway.
A driveway does not constitute an “occupied structure.” See R.C. 2909.01; State v.
Bogovich, 5th Dist. Fairfield No. 97CA78, 1998 WL 751781, *4 (Oct. 22, 1998).
Therefore, because Davis and Eggers were no longer trespassing in an occupied
structure when the Thompsons returned home, and because no one else was present at
the time they were trespassing in the occupied structure, the element of aggravated
burglary requiring another person to be present during the trespass of an occupied
structure was not satisfied.
{¶ 29} We note that a reasonable fact finder could have concluded from the
evidence that Davis and Eggers were not finished burglarizing the home since the
Thompsons’ television was removed from its cabinet and sitting on the living room floor.
However, despite the possible ongoing nature of the burglary, Davis’s initial trespass of
the home was completed once he and Eggers exited the home. See Powell, 59 Ohio
St.3d 62, 571 N.E.2d 125; Clark, 107 Ohio App.3d 141, 667 N.E.2d 1262. Accordingly,
because none of the evidence suggests that either of the Thompsons or any other person
was present during that trespass, the State did not satisfy the necessary elements of
aggravated burglary under R.C. 2911.11(A)(2).
Burglary
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{¶ 30} R.C. 2911.12(A)(2) defines the offense of burglary at issue and provides
that:
(A) No person, by force, stealth, or deception, shall * * * (2) 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[.]
{¶ 31} Davis does not provide any specific argument supporting his claim that
there was insufficient evidence for the jury to find him guilty of burglary. Although we
found insufficient evidence to support Davis’s aggravated burglary conviction, the record
indicates that there was sufficient evidence to find Davis guilty of burglary under R.C.
2911.12(A)(2).
{¶ 32} Unlike aggravated burglary, the burglary offense at issue requires another
person other than the offender’s accomplice to be “present or likely to be present” during
the trespass of an occupied structure. (Emphasis added.) R.C. 2911.12(A)(2). “The
[Supreme Court of Ohio] has 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 and out of the house on the day in question, and the occupants were temporarily
absent when the burglary occurred.” State v. Frock, 2d Dist. Clark No. 2004 CA 76,
2006-Ohio-1254, ¶ 21, citing State v. Kilby, 50 Ohio St.2d 21, 23, 361 N.E.2d 1336 (1977)
and State v. Fowler, 4 Ohio St.3d 16, 19, 445 N.E.2d 1119 (1983). (Other citation
omitted.)
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{¶ 33} In this case, the likely-to-be-present element was satisfied because the
burglary occurred at the Thompsons’ home (a regularly inhabited permanent dwelling
house) on a day that the Thompsons were in and out of the house and temporarily absent
when the burglary occurred. Specifically, the evidence established that on the day of
the burglary, the Thompsons were home for the Labor Day holiday, but had left their
residence for about an hour and a half to drop off their grandchildren in Fairborn. Under
these circumstances, the Thompsons were likely to be present at the time Davis
trespassed in their home.
{¶ 34} All the other elements of burglary were also satisfied. When viewed in a
light most favorable to the State, the evidence established that Davis was on the
Thompsons’ property on the night of the burglary, and he was exerting control over items
taken from inside the Thompsons’ home, which had been broken into. He immediately
fled after being observed by the Thompsons, and he was stopped in a vehicle containing
tools that are commonly used for burglaries. These facts would permit a rational fact
finder to conclude that Davis trespassed in the Thompsons’ home by force with the
purpose to commit the crime of theft therein. Therefore, the evidence presented by the
State satisfied all elements of burglary under R.C. 2911.12(A)(2).
Firearm Specifications
{¶ 35} Although the firearm specification attached to Davis’s aggravated burglary
offense cannot stand due to there being insufficient evidence to support his conviction for
that offense, we still must address the firearm specification attached to Davis’s burglary
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offense. The one-year firearm specification attached to Davis’s burglary offense is
governed by R.C. 2941.141(A). According to that statute, the one-year firearm
specification applies when “the offender had a firearm on or about the offender’s person
or under the offender’s control while committing the offense.” R.C. 2941.141(A).
{¶ 36} A “firearm” is “any deadly weapon capable of expelling or propelling one or
more projectiles by the action of an explosive or combustible propellant” and it “includes
an unloaded firearm, and any firearm that is inoperable but that can readily be rendered
operable.” R.C. 2923.11(B)(1). Thus, in support of a firearm specification, the State
“ ‘ “must prove beyond a reasonable doubt that the firearm was operable or could readily
have been rendered operable at the time of the offense.” ’ ” State v. Staten, 10th Dist.
Franklin No. 18AP-48, 2018-Ohio-4681, ¶ 11, quoting State v. Murphy, 49 Ohio St.3d
206, 208, 551 N.E.2d 932 (1990), quoting State v. Gaines, 46 Ohio St.3d 65, 545 N.E.2d
68 (1989), syllabus.
{¶ 37} Davis contends that he should not have been found guilty of the firearm
specification at issue because the State failed to present evidence establishing that he
was in possession of any firearms at the time he entered the Thompsons’ home. Davis
claims that the only firearms in his possession were the ones he stole from the
Thompsons’ home and that those firearms could not be used to find him guilty of the
firearm specification. We disagree.
{¶ 38} In Powell, 59 Ohio St.3d 62, 571 N.E.2d 125, the Supreme Court of Ohio
analyzed whether a defendant convicted of aggravated burglary could also be found guilty
of a three-year firearm specification even though the defendant had acquired the firearm
by theft during the course of the burglary and did not actively use the firearm in the
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commission of the offense. Id. at 63. The firearm specification statute at issue in
Powell, former R.C. 2929.71, did “not require that the firearm be used in the commission
of the felony, or that the defendant acquire the firearm before beginning the crime; all that
[was] necessary [was] that the defendant have the firearm on his person or under his
control at some point during the commission of the crime.” (Emphasis omitted.) Id. In
light of the language in R.C. 2929.71, and because “a gun stolen during a burglary can
be as dangerous as one which the burglar has at the start of the crime[,]” the Supreme
Court held that the three-year firearm specification could be imposed “if the defendant
ha[d] a firearm in his or her possession at any time during the commission of a felony,
even if * * * the firearm [was] acquired by theft during the course of the felony.” Id.
{¶ 39} Similar to the statute in Powell, R.C. 2941.141(A) provides that a one-year
firearm specification can be imposed if the offender “had a firearm on or about the
offender’s person or under the offender’s control while committing the offense.” Several
appellate courts in Ohio have applied the holding in Powell to cases involving firearm
specifications imposed under R.C. 2941.141 and, in doing so, found sufficient evidence
to find the defendant guilty of the firearm specification. See e.g., State v. Wilson, 8th
Dist. Cuyahoga No. 97465, 2012-Ohio-3567, ¶ 31-35; State v. English, 1st Dist. Hamilton
No. C-080872, 2010-Ohio-1759, ¶ 28-29; State v. Harry, 12th Dist. Butler No. CA2008-
01-0013, 2008-Ohio-6380, ¶ 53-54.
{¶ 40} Based on the foregoing case law and the relevant statutory language, we
find that the firearm specification attached to Davis’s burglary offense was supported by
sufficient evidence. The evidence established that Davis stole six firearms and matching
ammunition from the Thompsons’ residence while he was burglarizing the home. The
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evidence also established that the firearms were operable with the stolen ammunition.
Therefore, because Davis had possession over the firearms and ammunition while he
was committing the offense of burglary, there was sufficient evidence for the jury to find
him guilty of the firearm specification attached to that offense.
{¶ 41} For the foregoing reasons, Davis’s second assignment of error is overruled
with regard to the jury’s verdict finding Davis guilty of burglary with an attendant firearm
specification. However, because there was insufficient evidence to find him guilty of
aggravated burglary, Davis’s second assignment of error is sustained with regard to his
conviction for aggravated burglary and the firearm specification associated with that
offense.
Third Assignment of Error
{¶ 42} Under his third assignment of error, Davis contends that the jury’s verdict
finding him guilty of aggravated burglary, burglary, and the two firearm specifications was
against the manifest weight of the evidence. Because we have already determined that
there was insufficient evidence to convict Davis of aggravated burglary and the
associated firearm specification, it necessarily follows that said conviction was also
against the manifest weight of the evidence. State v. Short, 2d Dist. Montgomery No.
27192, 2017-Ohio-7200, ¶ 22 (“[w]here there is insufficient evidence to support a
conviction, it will also necessarily be against the manifest weight of the evidence”). We
do not, however, find that the jury’s verdict finding Davis guilty of burglary with an
attendant firearm specification was against the manifest weight of the evidence.
{¶ 43} “[A] weight of the evidence argument challenges the believability of the
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evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” (Citations omitted). State v. Jones, 2d Dist. Montgomery
No. 25724, 2014-Ohio-2309, ¶ 8. When evaluating whether a conviction was against
the manifest weight of the evidence, the appellate court must review the entire record,
weigh the evidence and all reasonable inferences, consider witness credibility, and
determine whether, in resolving conflicts in the evidence, the trier of fact “ ‘clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “A
judgment should be reversed as being against the manifest weight of the evidence only
in the exceptional case in which the evidence weighs heavily against the conviction.’ ”
State v. Christon, 2d Dist. Greene No. 2019-CA-43, 2020-Ohio-1524, ¶17, quoting Martin
at 175.
{¶ 44} After reviewing the record and weighing the evidence and all reasonable
inferences, we do not find that the jury clearly lost its way and created a manifest
miscarriage of justice when it found Davis guilty of burglary and the associated firearm
specification. As previously noted, the evidence established that Davis trespassed by
force into the Thompsons’ home when the Thompsons were likely to be present with the
purpose to commit the crime of theft therein. The evidence also established that Davis
took various items of property from the Thompsons’ home, including six operable firearms
and matching ammunition, which were in Davis’s possession during the burglary.
Therefore, based on this evidence, we cannot say that the jury’s verdict finding Davis
guilty of burglary and the one-year firearm specification was against the manifest weight
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of the evidence.
{¶ 45} For the foregoing reasons, Davis’s third assignment of error is overruled
with regard to the jury’s verdict finding Davis guilty of burglary with an attendant firearm
specification. However, because his conviction for aggravated burglary was against the
manifest weight of the evidence, Davis’s third assignment of error is sustained with regard
to his conviction for aggravated burglary and the firearm specification associated with that
offense.
First Assignment of Error
{¶ 46} Under his first assignment of error, Davis contends that the trial court erred
in overruling his pretrial motion to dismiss the aggravated burglary charge on grounds
that the language in the indictment did not track the language of R.C. 2911.11(A)(2).
Specifically, Davis contends that the language in the indictment incorrectly charged him
with trespassing in an occupied structure while another person was “present or likely to
be present” as opposed to just “present.” While the State concedes that the “likely to be
present” language used in the indictment was incorrect, it claims that the error does not
invalidate the aggravated burglary charge. In light of our holding under Davis’s second
and third assignments of error, we need not address this issue, because regardless of
the incorrect language in the indictment, the aggravated burglary conviction will be
vacated due to it being supported by insufficient evidence.
{¶ 47} Davis’s first assignment of error is overruled as moot.
Conclusion
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{¶ 48} Having sustained in part and overruled in part Davis’s second and third
assignments of error, and having overruled Davis’s first assignment of error as moot,
Davis’s conviction for aggravated burglary with the attendant firearm specification is
vacated. The matter shall be remanded to the trial court for it to impose a conviction and
sentence for burglary with an attendant firearm specification.
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FROELICH, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
Marshall G. Lachman
Hon. Douglas M. Rastatter