State v. Goins ( 2021 )

[Cite as State v. Goins, 2021-Ohio-1299.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109497
v. :
JUSTIN GOINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: April 15, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-642616-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Callista Plemel, Assistant Prosecuting Attorney, for
appellee.
Susan J. Moran, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Justin Goins broke into his sister’s residence
while she and her family were away on vacation. He was indicted for burglary, in
violation of R.C. 2911.12(A)(2), a felony of the second degree, and a related theft
offense. After a bench trial, Goins was convicted of the second-degree felony
burglary offense as charged and the related theft offense. He received an indefinite
prison term of six to nine years for his offenses. On appeal, Goins raises the
following two assignments of error for our review:
I. The trial court erred by denying appellant’s motion for acquittal
pursuant to Crim.R. 29 when the state failed to submit
sufficient evidence for the essential elements of the crime
charged denying the appellant of due process.
II. Appellant’s convictions are against the manifest weight of the
evidence.
After a review of the record and applicable law, we conclude the state
failed to present evidence to prove all the essential elements of a second-degree
felony burglary offense as defined in R.C. 2911.12(A)(2), but find the evidence
presented supported a conviction of a lesser-included third-degree felony burglary
offense as defined in R.C. 2911.12(A)(3).
Trial Testimony
Goins and Octavia Goins-Caldwell (“victim”) are siblings. On July 2,
2019, while the victim was on a trip to Alabama to visit family with her husband and
children, as well as the victim and Goins’s parents, her residence was burglarized.
While still in Alabama, she received a phone call from Catherine Houze, Goins’s
former fiancé and mother of his child, informing her Goins had broken into her
home. The victim and her family returned home to find it burglarized. At trial, she
described her home to have been “destroyed.” The kitchen window lock was broken,
the windows were pried open, clothes were thrown all over, and there was a hole in
the bathroom door.
The victim testified that the night before she left for Alabama, she saw
Goins at their mother’s house and he wished her a safe trip. She did not ask Goins
to take care of her residence while she was away, nor did she give him permission to
be in her residence.
Among the items stolen were two televisions, jewelry, including a
family ring, money, the victim’s son’s Nintendo game system, and a Bluetooth
speaker. Houze subsequently returned the game system and the speaker to the
victim. With Houze’s help, the victim was also able to retrieve her televisions from
two gas stations where Goins had sold the televisions. The victim also testified that
Goins wrote her a letter, stating “he had lost his money [on] drugs.” The day the
victim called the police to report the burglary, Goins told her he was on his way to
bring her money.
Houze has a daughter with Goins but their relationship was strained
by her allegation of his infidelity. She testified that Goins came to her house one
night in July 2019 and tried to give a game system to her ten-year-old sister. He also
had a Bluetooth speaker with him at the time. On that day, he put two televisions in
her vehicle and asked her to drive him to gas stations to sell them. It is unclear from
Houze’s testimony how that came about — she testified that she was driving around
looking for him after he left her house and came upon him walking in the street while
carrying two televisions.
Houze drove Goins to two gas stations in East Cleveland, and he sold
the televisions there; at one point, Goins told Houze he had broken into his sister’s
house and took her televisions. Her testimony, however, was inconsistent as to the
sequence of these two events
Houze then called the victim about all the suspicious items and the
victim confirmed they were hers. When the victim returned, Houze gave the game
system and the Bluetooth speaker back to her and also took her to the gas stations
to retrieve her televisions.
Houze testified that Goins punched her in the face when he learned she
had told the victim he had broken into her home while she was away. She also
testified that Goins sent her a letter from the prison asking her not to testify against
him in this case and threatening to incriminate her for receiving stolen property.
The letter was admitted as an exhibit.
The defense did not present any witnesses, but claimed that the
state’s evidence only showed Goins sold some stolen items but did not show Goins
burglarized the victim’s home. The defense claimed the state’s evidence was
consistent with Houze being the offender in the burglary incident.
The trial court found Goins guilty of a second-degree felony of
burglary offense and a first-degree misdemeanor of theft offense. At sentencing, the
victim and Goins’s mother addressed the court, stating that Goins had broken into
family members’ home for years and she wanted her son to be punished for his
conduct. Before sentencing Goins, the trial court reviewed his PSI, which indicated
that he had several prior convictions and had been in violation of his community
control sanctions. The court sentenced Goins to a minimum of six years and a
maximum of nine years for the burglary offense and a concurrent six-month jail
term for the theft offense.
On appeal, Goins claims the state failed to present sufficient evidence
to prove all the essential elements of the second-degree burglary and his convictions
of the burglary and theft offenses were against the manifest weight of the evidence.
Standard for Reviewing Claims of Sufficiency and Manifest Weight of
the Evidence
When reviewing a challenge to the sufficiency of the evidence, we
review the evidence admitted at trial and “determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.”
Id. A reviewing court is not to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
While the test for sufficiency requires a determination of whether the
state has met its burden of production at trial, a manifest weight challenge questions
whether the state has met its burden of persuasion. Thompkins at 390. Unlike
challenges on sufficiency of the evidence, which raise a question of law, manifest
weight challenges raise factual issues. When a defendant asserts that his conviction
is against the manifest weight of the evidence, the court,
“reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be exercised only in
the exceptional case in which the evidence weighs heavily against the
conviction.”
Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
Sufficiency of Evidence: The Element of Likely Presence
Under the first assignment of error, Goins argues there is insufficient
evidence presented by the state to prove his guilt of a second-degree felony burglary
offense as defined in R.C. 2911.12(2). Specifically, he argues the state did not present
evidence to prove that a person is “likely to be present” in the occupied structure
when the burglary occurs.
R.C. 2911.12 defines burglary and distinguishes a second-degree
felony burglary from a third-degree felony burglary. The statute states, in pertinent
part:
(A) No person, by force, stealth, or deception, shall do any of the
following:
***
(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;
(3) Trespass in an occupied structure or in a separately secured
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.
(Emphasis added.)
A violation of section (A)(2) is a felony of the second degree, and a
violation of section (A)(3) is a felony of the third degree. R.C. 2911.12(D).
The issue in this case is whether the evidence presented by the state
is sufficient to prove Goins’s guilt of a second-degree burglary as defined in
R.C. 2911.12(A)(2); more specifically, whether the evidence is sufficient to prove the
element of “likely to be present” when the occupant was away for an extended period
of time, such as on vacation. A review of the case law indicates this issue has been
well settled.
“[I]n determining whether persons are likely to be present under
R.C. 2911.12(A)(2), what the defendant knows at the time is irrelevant; rather, the
issue is whether it was objectively likely that persons were likely to be there.” State
v. Watkins, 8th Dist. Cuyahoga No. 97783, 2012-Ohio-4279, ¶ 14, citing State v.
Dewitt, 3d Dist. Allen No. 1-09-25, 2009-Ohio-5903, and State v. Pennington, 12th
Dist. Warren No. CA2006-11-136, 2007-Ohio-6572. “‘[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.’” Id. at ¶ 14, quoting State v. Cantin, 132
Ohio App.3d 808, 813, 726 N.E.2d 565 (8th Dist.1999).
“Courts have determined that the evidence is insufficient for the
‘likely to be present’ element when the occupant of the home was absent for an
extended period, such as on vacation and no one else was regularly checking on the
house.” State v. Smith, 8th Dist. Cuyahoga No. 91715, 2010-Ohio-1655, ¶ 20. “When
a resident is on vacation when the burglary occurs, courts have looked at the
schedule and intention of the resident, specifically circumstances demonstrating
whether it was likely that the resident could abruptly return, or another person could
have been present.” State v. Smith, 1st Dist. Hamilton No. C-180151, 2019-Ohio-
5264, ¶ 37.
For example, when the occupants are away on vacation but have given
others such as a neighbor permission to access the home regularly, this is sufficient
evidence to show that a person is “likely to be present” for purposes of
R.C. 2911.12(A)(2) and supports a second-degree felony burglary offense. Watkins
at ¶ 15, citing State v. Cochran, 8th Dist. Cuyahoga No. 50057, 1986 Ohio App.
LEXIS 5481 (Jan. 30, 1986), and State v. Robinson, 8th Dist. Cuyahoga Nos. 49501,
49518, and 49577, 1985 Ohio App. LEXIS 9055 (Oct. 24, 1985) (the element of
“likely to be present” was satisfied when the homeowner was away on vacation but
had given keys to a neighbor to check on the house periodically). See also Cantin at
813-814 (there was no objective likelihood that someone would be present in the
home at the time of burglary because the homeowner had abruptly left town four
days before the incident and had not asked anyone to look after the house), and State
v. Blackmon, 9th Dist. Summit No. 15099, 1992 Ohio App. LEXIS 56 (Jan. 2, 1992)
(finding strong likelihood of someone being present where occupants were on
vacation, but returned soon afterwards and had neighbor or relative taking care of
house while away).
Here, the victim and her family left for a trip to Alabama and did not
return until after she learned her house had been burglarized. It is irrelevant that
Goins knew the victim and her family were away on vacation. Watkins, 8th Dist.
Cuyahoga No. 97783, 2012-Ohio-4279, at ¶ 14. Goins could still be convicted of a
second-degree felony if there was evidence showing that, for example, the victim left
the key to her residence with anyone or asked anyone to check on her residence
while she and her family were gone. No such evidence to prove the element of “likely
to be present,” however, was presented by the state. Accordingly, there was
insufficient evidence to support Goins’s second-degree felony burglary as defined in
R.C. 2911.12(A)(2). Indeed, the state concedes the error.
While there was insufficient evidence to support Goins’s guilt of a
second-degree burglary, R.C. 2911.12(A)(3), which defines a third-degree felony
burglary offense, does not include the element of presence, or likely presence. State
v. Brown, 10th Dist. Franklin No. 05AP-601, 2006-Ohio-2307, ¶ 18. “Burglary
under R.C. 2911.12(A)(3) is a lesser included offense of burglary under
R.C. 2911.12(A)(2) because it contains all the elements of R.C. 2911.12(A)(2) except
the presence or likely presence of another.” State v. Cole, 8th Dist. Cuyahoga Nos.
103187, 103188, 103189, and 103190, 2016-Ohio-2936, ¶ 45, citing State v. Butler,
8th Dist. Cuyahoga No. 97649, 2012-Ohio-4152, ¶ 18. See also State v. Ficklin, 8th
Dist. Cuyahoga No. 92228, 2009-Ohio-6103, ¶ 6 (burglary under R.C. 2911.12(A)(3)
is a lesser included offense of burglary under R.C. 2911.12(A)(2)).
Here, while the state failed to present evidence to support Goins’s
conviction of a second-degree felony burglary, the evidence it presented was
sufficient to find him guilty of a third-degree felony burglary as defined in R.C.
2911.12(A)(3). The first assignment of error is sustained to the extent there was
insufficient evidence to find Goins guilty of a second-degree felony of burglary
offense.
Manifest-Weight Claim
Under the second assignment of error, Goins argues his convictions
of burglary and theft were against the manifest weight of the evidence, claiming the
state relies heavily on Houze’s testimony to link him to the burglary incident yet
Houze was not believable as her account of the events was not consistent and she
implicated Goins because she, as his former girlfriend, had an “axe to grind.”
While the state failed to present any physical evidence linking Goins
to the burglary incident, such as a surveillance video or fingerprints, and Houze’s
testimony was admittedly fuzzy and incongruous at times, her testimony that Goins
burglarized the victim’s residence was collaborated by the victim, who testified that
she recovered some of the stolen items with Houze’s help, and also by a letter written
by Goins in which he threatened Houze concerning the burglary incident.
Weighing the evidence and all reasonable inferences and considering
the credibility of witnesses, we do not find the trier of fact, in resolving any perceived
conflicts in the evidence, clearly lost its way and created such a manifest miscarriage
of justice in convicting Goins. The second assignment of error lacks merit.
Modification of Judgment of Conviction
The trial court erred in entering a judgment of conviction for a
second-degree felony burglary offense as defined in R.C. 2911.12(A)(2). “When the
evidence shows that a defendant is not guilty of the degree of crime for which he was
convicted, but is guilty of a lesser crime included therein, we may modify the verdict
accordingly.” Brown, 10th Dist. Franklin No. 05AP-601, 2006-Ohio-2307, at ¶ 18-
19 (modifying a second-degree felony burglary to third-degree felony burglary),
citing State v. Frock, 2d Dist. Clark No. 2004 CA 76, 2006-Ohio-1254, and State v.
Scott, 4th Dist. Scioto No. 02CA2841, 2002-Ohio-7083. See also State v. Grier, 1st
Dist. Hamilton No. C-110240, 2012-Ohio-330, ¶ 9. This court has also consistently
held that we have the authority to modify a second-degree felony burglary offense to
a third-degree felony burglary offense where the state presented evidence to prove
all the elements of burglary under R.C. 2911.12(A)(2) except for the likely presence
of another. Cole, supra, at ¶ 46; State v. Richardson, 8th Dist. Cuyahoga No. 100115,
2014-Ohio-2055, ¶ 25-26 (citing Crim.R. 33(A)(4)); State v. Butler, 8th Dist.
Cuyahoga No. 97649, 2012-Ohio-4152, ¶ 18; and State v. Rothrock, 8th Dist.
Cuyahoga No. 93602, 2010-Ohio-4102, ¶ 20.
Consistent with the case-law authority, therefore, we remand the
matter with instructions for the trial court to modify the judgment of conviction for
a third-degree felony burglary offense and to resentence Goins accordingly.
Judgment affirmed in part, reversed in part, and case remanded to
the trial court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________
MICHELLE J. SHEEHAN, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EMANUELLA D. GROVES, J., CONCUR