State v. Braden , 2018 Ohio 563 ( 2018 )

[Cite as State v. Braden, 2018-Ohio-563.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170097
TRIAL NO. B-1603887
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ROBERT BRADEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: February 14, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
M ILLER , Judge.
{¶1} Following a bench trial, defendant-appellant Robert Braden was found
guilty of burglary, a second-degree felony, in violation of R.C. 2911.12(A)(2), and
sentenced to a six-year prison term. In his first assignment of error, Braden claims that
his conviction was not supported by sufficient evidence and was against the manifest
weight of the evidence. For the following reasons, we reverse Braden’s conviction and
hold that he is guilty of the lesser-included offense of third-degree burglary, in violation
of R.C. 2911.12(A)(3), to which he stipulated.
I. The Burglary
{¶2} Bruce Hust lived alone in a house in the West Price Hill neighborhood of
Cincinnati. He was an employee of the Hamilton County Juvenile Court. His work
hours were approximately 8:00 a.m. to 4:00 p.m., Monday through Friday. On the
morning of August 27, 2015, Hust left for work and returned home at 5:00 p.m. Hust
found his house ransacked, and his late mother’s wedding rings missing. Hust called
the police. Meanwhile, a nearby pawn shop where Robert Braden, the grandson of
Hust’s neighbor, pawned the wedding rings that same day, alerted police.
{¶3} Braden was initially charged with, and pled guilty to, receiving stolen
property in violation of R.C. 2913.51. He was sentenced to six months in jail. That
conviction is not the subject of this appeal.
{¶4} Sometime later, a piece of discarded candy found in Hust’s home was
DNA-tested, and the DNA matched Braden’s. Braden was then charged with, and
convicted of, burglary, and sentenced to six years in prison. He now appeals his
burglary conviction and brings the following four assignments of error for our review:
1. The Trial Court Erred in Finding Defendant-Appellant Guilty, as the
Finding Was Based on Insufficient Evidence and Was Contrary to Law.
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OHIO FIRST DISTRICT COURT OF APPEALS
2. The Trial Court Erred in Overruling the Defendant-Appellant's
Motion to Dismiss.
3. The [Defendant-]Appellant was Deprived of His Right to the
Effective Assistance of Counsel at Trial.
4. The Trial Court Erred in Failing to Credit [Defendant-Appellant’s]
Burglary Sentence with His Incarceration for Receiving Stolen
Property.
II. Sufficiency of the Evidence
{¶5} In his first assignment of error, Braden argues that his burglary
conviction was not supported by sufficient evidence and was against the manifest
weight of the evidence; however, the substance of his argument attacks only the
sufficiency of the evidence. A conviction is supported by sufficient evidence when, after
viewing all evidence in the light most favorable to the prosecution, a rational trier of
fact could have found all of the elements of the offense proven beyond a reasonable
doubt. State v. Grice, 180 Ohio App.3d 700, 2009-Ohio-372, 906 N.E.2d 1203 (1st
Dist.).
{¶6} Braden was convicted of burglary under R.C. 2911.12(A)(2), which
provides that no person, by force, shall “[t]respass in 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.”
{¶7} At trial, Braden stipulated on the record to trespassing in Hust’s home
with the intent to steal jewelry that belonged to Hust, which he also stipulated is third-
degree burglary in violation of R.C. 2911.12(A)(3). The only issue Braden contested at
trial was whether another person was likely to be present—the element which converts
the crime to second-degree burglary, in violation of R.C. 2911.12(A)(2).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} “Likely to be Present” does not Mean “Could Be Present.”
It is undisputed that no one other than Braden was in Hust’s home at the time of the
break-in. Therefore, to sustain a conviction under R.C. 2911.12(A)(2), the state had to
prove that someone was “likely to be present.” “The issue is not whether the burglar
subjectively believed that persons were likely to be there, but whether it was objectively
likely.” State v. Cravens, 1st Dist. Hamilton No. C-980526, 1999 WL 567098, *1 (June
25, 1999). This court has held that “objectively likely to be present” means the
“probability or improbability of actual occupancy which in fact exists at the time of the
offense, determined by all the facts surrounding the occupancy.” In re Meatchem, 1st
Dist. Hamilton No. C-050291, 2006-Ohio-4128, ¶ 16. “That is, there must be a greater
than 50% likelihood that someone will be in the dwelling at the time of the burglary.”
Id. at ¶ 17.
{¶9} Unfortunately, the case law has become convoluted by an implication
that “likely” might mean “could” in the oft-cited case of State v. Green, 18 Ohio App.3d
69, 480 N.E.2d 1128 (10th Dist.1984), in which the Tenth District upheld a burglary
conviction where a person moving out of a house was found likely to be present. See,
e.g., State v. Kottner, 1st Dist. Hamilton No. C-120350, 2013-Ohio-2159. The Tenth
District said that “[a] person is likely to be present when a consideration of all the
circumstances would seem to justify a logical expectation that a person could be
present.” (Emphasis added.) Green at 72.
{¶10} In Green, the homeowner was in and out on a daily basis repairing,
cleaning, and moving personal property, and therefore the inference could be drawn
regarding the likelihood of the victim being present at the time of the burglary. But
Green doesn’t hold that “likely” for purposes of R.C. 2911.12(A)(2) means “could,”
“might,” “may,” “possibly,” or anything less than a 50 percent chance. “[T]he term
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OHIO FIRST DISTRICT COURT OF APPEALS
‘likely’ connotes something more than a mere possibility, it also connotes something
less than a probability or reasonable certainty.” Green at 72.
{¶11} Ohio courts have decided a number of cases describing the type of
evidence that the state can offer to establish the “likely to be present” element. See, e.g.,
State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977) (likely to be present element
satisfied where home’s occupants were across the street at a neighbor’s house); State v.
Weber, 10th Dist. Franklin No. 97APA03-322, 1997 WL 798299 (Dec. 23, 1997) (likely
to be present element satisfied where home owners were away on vacation, but others
had permission to be in the house and neighbor was watching property while owners
were absent); State v. Beverly, 2d Dist. Clark No. 2005 CA 85, 2007-Ohio-1028 (likely
to be present element satisfied where occupants were away from the house for about
one and a half hours during the evening); State v. Young, 8th Dist. Cuyahoga No.
87613, 2006-Ohio-5723 (likely to be present element satisfied where evidence showed
that occupants did not work on weekends, and burglary occurred on a Sunday); State v.
Baker, 12th Dist. Butler No. CA2003-01-016, 2003-Ohio-5986 (likely to be present
element satisfied where occupant was a retiree with no fixed schedule); State v. Palmer,
8th Dist. Cuyahoga No. 89957, 2008-Ohio-2937 (likely to be present element satisfied
where evidence established burglary occurred close to the time occupants would have
left for work).
{¶12} Critically, where the occupants of a house are almost always absent as
part of their fixed work schedule, they are not likely to be present during their regular
working hours. See, e.g., State v. Frock, 2d Dist. Clark No. 2004 CA 76, 2006-Ohio-
1254 (likely to be present element not satisfied where occupant regularly came home
from work to walk her dog around 2 p.m., and burglary occurred between 1:00 p.m.
and 1:30 p.m.); State v. Brown, 1st Dist. Hamilton No. C-980907, 2000 WL 4920545
OHIO FIRST DISTRICT COURT OF APPEALS
(Apr. 28, 2000) (likely to be present element not satisfied where burglary occurred
during the occupant’s workday, and no evidence was offered that the occupant ever
came home during his workday); State v. Lockhart, 115 Ohio App.3d 370, 685 N.E.2d
564 (8th Dist.1996) (likely to be present element not satisfied where home’s occupant
testified that burglary occurred while she was at work, and that she did not return to
her house at varying times).
{¶13} No Proof that Anyone was “Likely to be Present.” In this
case, the only testimony on the issue of whether anyone was likely to be present at the
Hust home came from Bruce Hust. He testified that he went to work on the day of the
break-in, consistent with his normal routine. He stated that he usually arrived home
between 4:15 and 4:30 p.m, consistent with his 15-to-20 minute commute to and from
work. He testified that on July 22, 2015, about a month prior to the break-in, he had
used a sick day to stay home to recover from a cold. He testified that there were times
he left work early or went home if he had another commitment, but there was no
testimony that these occasions were regular occurrences, or that he had a commitment
to be home on the day of the burglary. Hust also testified that he had an occasional
housekeeper prior to the incident, with no set schedule of when to come, but she would
come when he arranged it. There was no testimony that he had arranged for his
housekeeper to come on any day near the burglary. No one else was regularly inside the
home while Hust was at work. Based on this record, there is insufficient evidence, as a
matter of law, of anyone being likely to be present at the time to sustain Braden’s
conviction for burglary under R.C. 2911.12(A)(2). Therefore, Braden’s first assignment
of error is sustained.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Braden is Guilty of Third-Degree Burglary
{¶14} As noted above, Braden stipulated on the record to trespassing into
Hust’s home with the intent to steal Hust’s belongings, which he also stipulated was a
violation of R.C. 2911.12(A)(3). Based on this stipulation, we reverse Braden’s
conviction for violating R.C. 2911.12(A)(2) and remand this case to the trial court with
instructions to enter a judgment finding Braden guilty of violating R.C. 2911.12(A)(3)
and to sentence Braden for that offense. See App.R. 12(B).
IV. Burglary and Receiving Stolen Property are Separate Crimes
{¶15} Braden’s second, third, and fourth assignments of error will be
addressed together because they all center on a contention that his receiving-stolen-
property conviction limits the prosecution and punishment for the burglary offense.
We disagree.
{¶16} In his second assignment of error, Braden argues that the trial court
erred in overruling his motion to dismiss the burglary charge as barred by collateral
estoppel, a doctrine incorporated by the Double Jeopardy Clause. The Double
Jeopardy Clause bars successive prosecutions for the same event or act if the two
offenses that arise from the event or act are ultimately considered the same offense on
the basis of the comparison of the elements. Blockburger v. United States, 284 U.S.
299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “[T]he test to be applied to determine
whether there are two offenses or only one is whether each provision requires proof of a
fact which the other does not.” Id.; see State v. Thomas, 61 Ohio St.2d 254, 259, 400
N.E.2d 897 (1980), overruled on other grounds, State v. Crago, 53 Ohio St.3d 243, 559
N.E.2d 1353 (1990). “A single act may be an offense against two statutes, and if each
statute requires proof of an additional fact * * *, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment under the
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OHIO FIRST DISTRICT COURT OF APPEALS
other.” (Citations omitted.) State v. Nelson, 51 Ohio App.2d 31, 39, 365 N.E.2d 1268(8th Dist.1977).
{¶17} Applying the foregoing test, it is apparent that the charge for burglary
was not barred by Braden’s conviction for receiving stolen property. The offenses,
while involving the same property, do not constitute the same offense for purposes of
double jeopardy since each offense requires proof of an additional fact which the other
does not. Braden pawned Hust’s rings, disposing of property that he stole earlier the
same day. Disposal is an element of receiving stolen property that is not addressed by
burglary. And, Braden trespassed into Hust’s house to take the rings. Trespass is an
element of burglary that is not addressed by receiving stolen property. A number of
Ohio courts have held likewise when comparing the elements of burglary1 to the
elements of receiving stolen property,2 finding that the offenses do not correspond to
such a degree that the commission of one crime will necessarily result in the
commission of the other. See, e.g., State v. Thompson, 1st Dist. Hamilton No. C-
130053, 2013-Ohio-2647 (burglary and receiving stolen property); State v. Searles, 1st
Dist. Hamilton No. C-870523, 1988 WL 83498 (Aug. 10, 1988) (aggravated burglary
and receiving stolen property); State v. Clelland, 83 Ohio App.3d 474, 484, 615 N.E.2d
276 (4th Dist.1992) (burglary and receiving stolen property); State v. Nolan, 2d Dist.
Montgomery No. 12094, 1991 WL 19367 (Feb. 13, 1991) (burglary and receiving stolen
property). See also State v. Mitchell, 6 Ohio St.3d 416, 453 N.E.2d 593 (1983) (burglary
and theft).
1 R.C. 2911.12(A)(3) states that “[n]o person, by force, stealth, or deception, shall * * * [t]respass
in an occupied structure or in a separately secured or separately occupied portion of an occupied
structure, with purpose to commit in the structure or separately secured or separately occupied
portion of the structure any criminal offense.”
2 R.C. 2913.51(A) states that “[n]o person shall receive, retain, or dispose of property of another
knowing or having reasonable cause to believe that the property has been obtained through
commission of a theft offense.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Braden unconvincingly argues that implicit in the conviction for
receiving stolen property is the finding that Braden did not steal the property. While
we agree that “[t]he state cannot be permitted, on the one hand, to establish an ultimate
fact in order to convict an accused in one case and then deny that fact in order to
achieve a conviction against the accused in another case on charges arising out of the
same set of facts,” Hinton v. State, 36 Md.App. 52, 58, 373 A.2d 39 (1977), that is not
what happened here. The receiving-stolen-property conviction did not require a
finding that Braden did not commit the theft. The statute requires proof that the
accused “received, retained, or disposed of property of another” obtained through a
theft. As explained above, Braden disposed of Hust’s property by pawning it. This was
true regardless of how he obtained it. Therefore, we overrule Braden’s second
assignment of error.
{¶19} In his third assignment of error, Braden argues that he was deprived of
the effective assistance of counsel at trial because the denial of his motion to dismiss
was not immediately appealed. The defendant bears the burden to show ineffective
assistance of counsel. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476(1988); State v. Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 36. “To
sustain a claim for ineffective assistance of counsel, the defendant must demonstrate
that counsel’s performance was deficient, and that the deficient performance
prejudiced the defense.” State v. Wright, 1st Dist. Hamilton No. C-150715, 2017-Ohio-
1568, ¶ 55, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Given our disposition of Braden’s second assignment of error, he
cannot demonstrate prejudice in his defense. Therefore, we overrule Braden’s third
assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} In his fourth assignment of error, Braden argues that the trial court erred
in not crediting him for the sentence he received for receiving stolen property, as the
confinement was “arising out of” his burglary offense. Whether the trial court correctly
determined that the receiving-stolen-property offense did not arise from the burglary
offense is a question of law that is reviewed de novo. See, e.g., State v. Tolliver, 4th
Dist. Athens No. 12CA36, 2013-Ohio-3861, ¶ 12. While “[p]risoners must be given
credit for the time they have been confined for reasons arising out of the offense for
which they are convicted and sentenced,” they are not entitled to credit for
incarceration “that arises from facts separate from those upon which their current
sentence is based.” State v. Klein, 1st Dist. Hamilton Nos. C-040176 and C-040224,
2005-Ohio-1761, ¶ 26, citing State v. Logan, 71 Ohio App.3d 292, 300, 593 N.E.2d 395(1991). Again, as discussed previously, we find that the offenses are separate and
distinct. Thus, Braden is not entitled to credit on his burglary sentence for time he
served on his sentence for receiving stolen property. We overrule Braden’s fourth
assignment of error.
Conclusion
{¶21} In sum, we sustain Braden’s first assignment of error, overrule his
second, third and fourth assignments of error, reverse his conviction for second-degree
burglary under R.C. 2911.12(A)(2) and remand this cause with instructions to the trial
court to enter a judgment finding Braden guilty of third-degree burglary under R.C.
2911.12(A)(3) and to sentence him for that offense.
Judgment reversed and cause remanded.
C UNNINGHAM , P.J., and D ETERS , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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