The opinion
[Cite as State v. Bennington, 2019-Ohio-4386.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 18CA1078
vs. :
TERRY L. BENNINGTON, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Jonathan Tewart, Assistant State Public Defender,
Columbus, Ohio, for appellant.1
C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant
Prosecuting Attorney, West Union, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 10-22-19
ABELE, J.
{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction
and sentence. Terry L. Bennington, defendant below and appellant herein, was convicted of burglary
in violation of R.C. 2911.12(A)(2), burglary in violation of R.C. 2911.12(A)(1), and two counts of
felonious assault in violation of R.C. 2903.11(A)(2). Appellant assigns one error for review:
ASSIGNMENT OF ERROR:
“THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE THAT
ANY PERSON WAS PRESENT OR LIKELY TO BE PRESENT AT 477
1
Different counsel represented appellant during the trial court proceedings.
ADAMS, 18CA1078 2
SHOEMAKER ROAD, AT THE TIME OF THE BURGLARY. R.C.
2911.12(A)(2). (OCTOBER 1, 2018 TRIAL TRANSCRIPT, P. 158-184,
193-203, 206-224, 229-239).” 1
I.
{¶ 2} In August 2018, an Adams County Grand Jury returned an indictment that charged
appellant with (1) one count of burglary in violation of R.C. 2911.12(A)(2), a second-degree felony,
(2) one count of burglary in violation of R.C. 2911.12(A)(1), a second-degree felony, (3) one count of
felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, and (4) one count of
felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony. The charges stemmed
from two incidents that involved the burglary of the homes of William Moore and Jerry Toller.
{¶ 3} At the October 1, 2018 jury trial, one victim, homeowner William Moore, testified that
he, along with his wife, lived at 475 Shoemaker Road for 45 years, but moved in May 2018 to be
closer to their daughter who helped him care for his ailing wife. Moore testified that he still has
furniture and other items at the property, that the utilities are functional, and he visits the property
every day to retrieve mail. Moore’s son-in-law, Paul Wheeler, has cattle at the farm and he checks
them every Sunday. Moore testified that during July 16 and 17, he “was in the house every day” and
“[e]verything was like it was when we left.” Moore also explained that, when he and his wife lived
in the farm house, they lived in three rooms and “had a lot of other stuff in the other rooms that we
didn’t use.” Moore stated that, when he visited the property on July 16, the house had been broken
into, things were missing, and the house looked “like a tornado went through.”
{¶ 4} Moore’s grandson, James Dunseith, testified that the property is a farm with several
barns, some outbuildings, a garage, shop, and a farmhouse where his grandfather lived for 40 to 45
years. Dunseith explained that his grandfather visited the property “pretty well every day” to get
ADAMS, 18CA1078 3
his mail, and there he kept tax papers, bills, and personal belongings, and that his grandfather had
moved out “more or less” temporarily. Dunseith stated that he visited the property on a regular
basis, and that, although some cobwebs were around the home, it looked “pretty well like we lived
there.” Dunseith acknowledged, however, that the family had not mowed the yard for most of the
summer, although “a path on the other side of the house more towards the door that led to the living
room there was a path that cut back where you could pull a truck or pull equipment in there but for
the most part, yes, it was grown up.”
{¶ 5} On Saturday morning on the weekend of the burglary, Dunseith testified that his
grandfather visited the property to retrieve the mail and the house was untouched. However, when
he returned Monday morning on July 16, 2018, the door was open, items missing, and the house
ransacked. Dunseith called the sheriff’s office who came to investigate and noted that “a lot of
things that were kind of staged close to the door” that “looked like they would be coming back.”
{¶ 6} Later that night, Dunseith and his cousin returned to the farm and hid in a barn across
the road to observe the home. At approximately 1:00 a.m., appellant and three others arrived at the
property. After calling law enforcement, Dunseith observed two suspects exit the house, set a TV
on the porch and start to cross the road toward appellant’s vehicle. However, Dunseith’s warning
shot apparently stopped the two men. After appellant exited the house, Dunseith informed him that
the sheriff was on the way and he should get on the ground. Appellant did not heed the warning and
instead returned to his vehicle and drove away. At that point, Dunseith fired shots at the car.
{¶ 7} West Union Police Officer Dakota Brown testified that he responded to the call and he
secured the suspects and the home. Brown testified that the house was “tossed. There were items
and just like clothes everywhere. There was just, it was basically what you would expect a storage
ADAMS, 18CA1078 4
shed to look like.” Brown stated, “the house seemed abandoned. Seemed like it was being used
as an excess storage unit.”
{¶ 8} The other burglary victim (count two), Terry Toller, testified that he owns the property
at a different location and, on July 17, he was preparing the vacant farm house for his daughter.
Toller returned to the property at 6:00 a.m. and noticed the broken door jamb. After Toller pushed
the door open, he “looked through the living room and through the kitchen I seen feet in the bed in
the back bedroom. I walked straight to the feet and took a picture [of appellant] in there asleep on
my bed.” Toller called his neighbor, Denver Williams, who came to the house and, while the two
men talked, appellant awakened and attempted to exit the bedroom. When Toller and Williams
tried to detain appellant, appellant retrieved a pipe and struck both Toller and Williams. Toller then
wrestled appellant into a headlock and held him until police arrived.
{¶ 9} After a two-day trial, the jury found appellant guilty on all four counts. The trial court
sentenced appellant to serve five years in prison on count one, three years on count two, two years on
count three, and three years on count four, all to be served consecutively, for an aggregate thirteen
year sentence. The court also ordered appellant to pay $1,667 in restitution to Jerry Toller. This
appeal followed.
II.
{¶ 10} In his sole assignment of error, appellant asserts that the prosecution failed to provide
sufficient evidence that any person was present, or likely to be present, at 477 Shoemaker Road at the
time of the burglary.
{¶ 11} “When a court reviews the record for sufficiency, ‘[t]he relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could
ADAMS, 18CA1078 5
have found the essential elements of the crime proven beyond a reasonable doubt.’” State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; following Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The court must defer to the trier of fact on
questions of credibility and the weight assigned to the evidence.” State v. Dillard, 4th Dist. Meigs
No. 13CA9, 2014-Ohio-4974, ¶ 22, citing State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15
N.E.3d 818, ¶ 132; State v. Lodwick, 2018-Ohio-3710, 118 N.E.3d 948, ¶ 9 (4th Dist.).
{¶ 12} In the case sub judice, appellant was convicted, inter alia, of two counts of burglary.
The count at issue in this case is the Shoemaker Road incident (count one), a second-degree felony in
violation of R.C. 2911.12(A)(2) and (D). R.C. 2911.12 provides in relevant 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;
***
(D) Whoever violates division (A) of this section is guilty of burglary. A violation of
division (A)(1) or (2) of this section is a felony of the second degree. A violation of
(A)(3) of this section is a felony of the third degree. (Emphasis added).
{¶ 13} The Supreme Court of Ohio has determined that the state meets its burden if it
presents evidence “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.” State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d
ADAMS, 18CA1078 6
1336 (1977), paragraph one of the syllabus (construing former R.C. 2911.11(A)(3)). The court held
that the “likely to be present” requirement is intended to target the “type and use of the occupied
structure and not literally whether individuals will be home from work or play at a particular time.”
Kilby at 25-27, 361 N.E.2d 1336.
{¶ 14} In State v. Jackson, 188 Ohio App.3d 803, 2010-Ohio-1846, 937 N.E.2d 120 (4th
Dist.), this court pointed out that numerous Ohio appellate courts have reversed burglary convictions
that involved temporarily absent occupants (usually for employment) when the prosecution provided
no evidence to show that work schedules made it likely that the occupants could be at the residence
when the break-in occurred. In Jackson, the occupant rented a mobile home from his parents, spent
most of the month in which the break-in occurred at his parents’ home rather than the rental
premises, and conceded at trial that he probably would have been at his parents the night the break-in
occurred. Jackson at ¶ 7. This court concluded that the prosecution “introduced no evidence to
show that the occupant was at the residence, would be at the residence, or planned to be at the
residence during the time of the burglary.” Id. at ¶ 12.
{¶ 15} More recently, we addressed similar arguments related to the “likely to be present”
element in State v. Griffith, 4th Dist. Pickaway No. 17CA14, 2017-Ohio-8855. In Griffith, the
occupant and his family left their home at separate times on the day of the burglary with plans to
camp in an adjacent county for the weekend. On the evening of the first day of the camping trip, the
occupant returned home to take a shower. When he arrived home, however, he found his next door
neighbor inside his home. Griffith at ¶ 8-9. The state presented evidence that the family regularly
inhabited their personal dwelling house, the occupants were in and out of the house on the day in
question and temporarily absent during the burglary. Id. at ¶ 37. We upheld Griffith’s conviction
ADAMS, 18CA1078 7
for second-degree felony burglary and concluded that the state sufficiently proved someone was
likely to be present in the house at the time of the burglary. Id. at ¶ 38.
{¶ 16} In State v. Lodwick, 2018-Ohio-3710, 118 N.E.3d 948 (4th Dist.), we again considered
the “likely to be present” element. R.C. 2911.12(A)(2). The state presented evidence that the
occupants used the home as their primary residence, and one occupant typically worked from 7:30
a.m. to 3:00 p.m. at a school ten minutes from his home, was free to leave school at lunch, which he
sometimes did between 10:30 and 11:00 a.m., and was free to leave work and come home any day
during his work day if he needed to run an errand or had forgotten something at home. The other
occupant did not work, was usually home during the day, and the only reason she was not present on
the day of the burglary was because of a doctor’s appointment a short distance from their home. In
that case, this court concluded that the state sufficiently proved that the couple “used the residence at
issue as their primary dwelling and regularly inhabited it.” Lodwick at ¶ 21. Further, the evidence
presented by the state demonstrated that one occupant was usually home at the time of the burglary,
but she was in and out on the day in question and temporarily absent at the time of the burglary.
More important, this court noted that “[t]here is no evidence indicating Harris was gone from the
home for an extended period of time or was routinely absent from the home at the time the burglary
occurred.” Thus, this court concluded that sufficient evidence supported the jury’s determination
that someone was likely to be present in the residence at the time of the burglary. Id.
{¶ 17} As we noted in Lodwick, the issue is not whether a burglar subjectively believed that
persons were, or were not, likely to be at the occupied structure, but whether it was objectively
likely. Lodwick at ¶ 18, citing State v. Braden, 2018-Ohio-563, 106 N.E.3d 827, ¶ 8 (1st Dist.),
citing State v. Cravens, 1st Dist. Hamilton No. C-980526, 1999 WL 567098, *1 (June 25, 1999).
ADAMS, 18CA1078 8
The First District Court of Appeals 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. “‘Likely’ means more likely than not. That is, there must be a greater than
50% likelihood that someone will be in the dwelling at the time of the burglary.” Meatchem at ¶ 17.
{¶ 18} The First District’s Braden decision also included a detailed list of cases that provide
examples of fact patterns that led to either affirmances or reversals of findings that someone was, or
was not, “likely to be present”:
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, 2007
WL 706806 (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, 2006 WL 3095685 (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, 2003 WL 22532913 (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, 2008 WL 2424455 (likely to be present
element satisfied where evidence established burglary occurred close to the time
occupants would have left for work). 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, 2006 WL 677715 (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 492054 (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
ADAMS, 18CA1078 9
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). Braden at
¶ 11-12.
{¶ 19} In the case sub judice, after our review of the relevant case law and the trial transcript,
we agree with appellant that the prosecution failed to adduce sufficient evidence to establish that any
person was “likely to be present” at the time of the burglary. Construing this evidence most strongly
in favor of the prosecution, Moore lived elsewhere with his wife in July 2018 and visited the house
only a few minutes each day Monday-Saturday to retrieve the mail. Other relatives visited
occasionally to check cattle. Although other family members may have checked the property from
time to time, as the Braden court noted, “likely” does not mean “could.” Braden, supra, at ¶ 8.
{¶ 20} Further, although the state contends that Moore’s grandsons’ stakeout of the farm the
night of the burglary supports the “likely to be present” element, the grandsons positioned
themselves in the barn across the road from the house during the burglary, not in the occupied
structure, and, but for the initial break-in, the stakeout of the property would not have occurred.
{¶ 21} Courts have also concluded that if occupants of a home are gone for the entire work
day, they are not “likely to be present” during the day. See State v. Miller, 2d Dist. Clark No. 2006
CA 98, 2007-Ohio-2361, ¶ 16; see also State v. Meisenhelder, 8th Dist. Cuyahoga No. 76764, 2000
WL 1513695 (Oct.12, 2000), State v. Lockhart, 115 Ohio App.3d 370, 373, 685 N.E.2d 564 (8th
Dist.1996). Thus, when a homeowner is only at the property for a few minutes each day, and when
other family members only sporadically check the property, an occupant is not “likely to be present”
at the time of the burglary for purposes of a R.C. 2911.12(A)(2).
{¶ 22} Therefore, based on the foregoing reasons, we believe that insufficient evidence
ADAMS, 18CA1078 10
exists, as a matter of law, of the element of anyone likely to be present to support appellant’s
burglary conviction under R.C. 2911.12(A)(2). Consequently, we (1) sustain appellant’s sole
assignment of error, and (2) reverse appellant’s conviction for second-degree burglary under R.C.
2911.12(A)(2), and (3) remand this cause to the trial court to enter judgment finding appellant guilty
of felony third-degree burglary under R.C. 2911.12(A)(3) and to impose sentence him for that
offense.
JUDGMENT REVERSED IN PART AND
CAUSE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS
OPINION.
ADAMS, 18CA1078 11
JUDGMENT ENTRY
It is ordered that the judgment be reversed in part and the cause remanded for further
proceedings consistent with this opinion to enter judgment finding appellant guilty of felony
third-degree burglary under R.C. 2911.12(A)(3) and impose sentence for that offense. Appellant
shall recover of appellee 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 Adams County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the
trial court or this court, it is temporarily continued for a period not to exceed sixty days upon the bail
previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period,
or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of
sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
Hess, J.: Concurs in Judgment & Opinion
Smith, P.J.: Dissents
For the Court
BY:
Peter B. Abele, Judge
ADAMS, 18CA1078 12
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time
period for further appeal commences from the date of filing with the clerk.