Opinion
No. 82-215
Decided March 9, 1983.
Criminal law — Aggravated burglary — R.C. 2911.11 — "Present or likely to be present," construed — R.C. 2909.01(D).
CERTIFIED by the Court of Appeals for Clark County.
Richard A. Fowler, Jr., appellant, was indicted on a charge of aggravated burglary in violation of R.C. 2911.11(A)(3). Specifically, the indictment alleged that on or about October 13, 1980, appellant and Dave Wilson trespassed in an occupied structure with the purpose to commit a theft offense, and that the occupied structure was the habitation of Lori L. Lanier in Clark County in which at the time of the trespass Lanier was present or likely to be present. Prior to appellant's trial, Dave Wilson pleaded guilty to a charge of burglary in violation of R.C. 2911.12.
Both Lanier and Wilson testified at appellant's trial. Lanier testified that she and her husband left for work at a Springfield pizza establishment at 3:30 p.m. on October 12, 1980, and did not leave work until 4:30 a.m. on October 13. When they left work, they did not go straight home but went to a friend's house to play cards. They returned home at 6:30 a.m., and upon their return, discovered an entry into their home, the bedroom and den ransacked, and various items of property missing including stereo equipment and a microwave oven.
Wilson testified that he and appellant met at about 9:15 p.m. on the night of the burglary and arrived together at the Lanier home within the hour. According to Wilson's testimony, prior to their arrival at the Lanier home, Wilson and appellant stopped at a pay telephone, dialed the Lanier home number and left the phone off the cradle. When they reached the Lanier home and entered the garage, the telephone was still ringing. Appellant, according to Wilson's testimony, entered the home with a .38 caliber firearm, an automatic "clip-fed" weapon fully loaded with hollow point ammunition designed to "splatter on impact." Appellant told Wilson "if any body comes through the garage door he [appellant] was going to blow them away."
Upon trial to a jury, appellant was found guilty of aggravated burglary in violation of R.C. 2911.11(A)(3) and sentenced to a term of five to twenty-five years imprisonment. The judgment of conviction was affirmed by the Court of Appeals for Clark County, and the court, finding its judgment to be in conflict with the decision of the Court of Appeals for Hamilton County in State v. Durham (1976), 49 Ohio App.2d 231 [3 O.O.3d 367], certified the record of the case to this court for review and final determination.
The syllabus of the court of appeals in State v. Durham (1976), 49 Ohio App.2d 231 [3 O.O.3d 367], reads:
"Where a person individually occupies an apartment and his usual and ordinary work habits take him away from it regularly during certain hours of the day, at that time there is a minimal likelihood that a person will be present therein, and a finding of aggravated burglary, under R.C. 2911.11, on these facts alone is based on insufficient evidence."
Mr. James A. Berry, prosecuting attorney, and Ms. Sally L. Dilgart, for appellee.
Mr. James N. Griffin, for appellant.
This cause presents two issues for this court's resolution: first, whether appellee presented sufficient evidence that Lori Lanier was likely to be present in her residence at the time of the trespass in order to support the verdict; and, second, whether the sentencing judge considered uncounseled prior convictions of appellant in setting sentence.
Appellant asserts that no evidence was presented by appellee that would tend to show that Lori Lanier was present or likely to be present at the time of the trespass, other than that the Lanier home was a regularly inhabited residence. This, appellant argues, would be insufficient under the rule of State v. Wilson (1979), 58 Ohio St.2d 52 [12 O.O.3d 51], to support a conviction for aggravated burglary.
The aggravated burglary statute, R.C. 2911.11, provides:
"(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply:
"(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
"(2) The offender has a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code on or about his person or under his control;
"(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.
"(B) Whoever violates this section is guilty of aggravated burglary, a felony of the first degree."
"Occupied structure" is defined in R.C. 2909.01:
"As used in sections 2909.01 to 2909.07 of the Revised Code, an `occupied structure' is any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:
"(A) Which is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied, and whether or not any person is actually present;
"(B) Which at the time is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present;
"(C) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present;
"(D) In which at the time any person is present or likely to be present."
This court in State v. Wilson, supra, at page 56, held that the definitions of "occupied structure" contained in R.C. 2909.01 are to be read disjunctively. Accordingly, we concluded in Wilson, at page 57, that the elements of aggravated burglary that the state must prove are: (1) that the person trespassed by force, stealth, or deception; (2) in an occupied structure as defined in R.C. 2909.01 or in a separately occupied portion thereof; (3) with the purpose to commit therein a theft offense as defined in R.C. 2913.01 or any felony; and (4) the presence of one of the three aggravating circumstances. In proving the second element of the offense, that the trespass was upon an "occupied structure," the state must prove the structure comes within one of the four definitions set out in R.C. 2909.01(A) through (D).
Appellant asserts that proof that a permanent or temporary habitation or dwelling has been burglarized is alone insufficient to establish the fourth element necessary to support a conviction for aggravated burglary, i.e., that the occupied structure is one at the time of the trespass in which any person is present or likely to be present. We agree that such proof will not compel a presumption that a person is likely to be present:
"If we were to agree with the appellant that [ State v.] Kilby, supra [(1977), 50 Ohio St.2d 21 (4 O.O.3d 80)], stands for the proposition that, once the state proves that a permanent or temporary habitation has been burglarized, it is presumed that a person is likely to be present, R.C. 2911.11(A)(3), as construed, would indeed violate the Due Process Clause in that it would unconstitutionally presume the existence of an element of the offense. [Citations omitted.]" State v. Wilson (1979), 58 Ohio St.2d 52, 59 [12 O.O.3d 51]. (Emphasis added.)
The jury in this case, however, was free to infer from the evidence presented that Lori Lanier was likely to be present at her residence at the time of the trespass. "Where the state proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and out on the day in question, and that such house was burglarized when the family was temporarily absent, the state has presented sufficient evidence to support a charge of aggravated burglary under R.C. 2911.11." State v. Kilby (1977), 50 Ohio St.2d 21 [4 O.O.3d 80], paragraph one of the syllabus. Evidence was presented below that the Lanier family was home on the day of the crime, that Mr. and Mrs. Lanier occasionally worked at different locations, and that they were not always home at the same time. From these facts a permissive inference could have been drawn by the jury regarding the likelihood of Mr. or Mrs. Lanier being present in the residence at the time of the burglary. Accordingly, we affirm the judgment of the court of appeals with regard to this issue.
Appellant asserts in his second proposition of law that the sentencing judge considered as part of the probation department presentence report, two convictions of appellant when he was unrepresented by counsel. Although appellant states in his brief that "[t]he trial court in the instant case did not indicate whether or not the prior convictions of the defendant were considered," he argues that a "strong inference" can be drawn from the following exchange between the sentencing judge and appellant's counsel:
The presentence investigation, requested at trial by appellant and added to the record by appellant below, reveals two adult convictions. The first is a 1975 conviction for misdemeanor theft, a violation of R.C. 2913.02, to which appellant entered a guilty plea. The second is a 1977 conviction entered upon appellant's guilty plea for obstruction of mail, a federal offense classified as a "petty offense" in Section 1(3), Title 18, U.S. Code.
"[Mr. Griffin:] * * * Finally, we would point out to the Court, and it recently came to my attention, that in his probation presentence report there are two adult offenses listed where at the time it did not come to the Court's attention. Mr. Fowler I do not believe was represented by counsel at guilty pleas of those offenses.
"The Court: Does that mean he didn't do it? I don't understand what that means.
"Mr. Griffin: We wanted to point out to the Court that presentence report. He was not represented by counsel at the time of the pleas, those two adult offenses."
We agree with the court of appeals that "[t]here is nothing in the record to indicate that the defendant received more than the minimum sentence only because of a prior conviction where he did not have counsel." (Emphasis sic.) We conclude that the quoted statement of the sentencing judge does not support the contention of appellant that the judge gave explicit consideration to previous convictions. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
J.P. CELEBREZZE, J., not participating.