State v. Harris

• Decision Date: 05 June 1979
• Citation: 417 N.E.2d 573,65 Ohio App.2d 182,19 O.O.3d 1331
• Parties: , 19 O.O.3d 133 The STATE of Ohio, Appellee, v. HARRIS, Appellant.
• Court: Ohio Court of Appeals

Page 182

65 Ohio App.2d 182

417 N.E.2d 573, 19 O.O.3d 133

The STATE of Ohio, Appellee, v. HARRIS, Appellant.

Court of Appeals of Ohio, Second District, Greene County.

June 5, 1979.

Syllabus by the Court

1. The incorporation of a purpose to commit a theft offense as an element under burglary in R.C. 2911.12 does not require the court to give an instruction on the lesser offense of grand theft, where the defendant was not indicted for the commission of grand theft.

2. Grand theft is not a lesser included offense of burglary under R.C. 2911.12.

Michael DeWine, Pros. Atty., and Stephan Haller, Xenia, for appellee.

Rudd, Silverberg & Zaharieff Co., L.P.A., and David A. Orlins, Xenia, for appellant.

McBRIDE, Presiding Justice.

Defendant-appellant, Randy Eugene Harris, was charged, tried by a jury and found guilty of burglary under R.C. 2911.12. For appeal he assigns two grounds for error: (1) the trial court erred in not charging the jury on the lesser offense of grand theft, and (2) the verdict is contrary to law and against the manifest weight of the evidence.

The second assignment requires a review of the testimony and will be considered first. It is undisputed that there was a burglary at 861 E. Main Street, Xenia, Ohio, and that it was reported to the police while in progress. The defendant was found in bed inside the residence when the police entered. No one else was found inside, but defendant's brother was hovering near the house, first seen in the bushes behind it and later in front whistling and apparently hollering that the heat was on to alert his brother. Force had been used on the back door to gain entrance. When the police first arrived, they heard the sound of items being shuffled inside the home. The owner saw a person in a red shirt move past the upstairs window. A neighbor, who first reported the incident, saw a person carrying items out the back of the house into the bushes and returning to the house. The description of this person matched that of the defendant as he appeared and was dressed when found inside in bed.

Items inside the house were in a confused mess. In the pocket of the subject was found, among other items, Canadian paper money. The owner was from Canada and his sister lives there. As a result of frequent visits, the owner had this cash, along with United States currency, in a glass jar, which had been emptied. The evidence is overwhelming, and is not refuted, that a forced entrance had been made without permission, that a theft offense had taken place and that the defendant was found inside with a portion of the stolen property in his pocket.

The defense did not contradict this. Instead, the defendant said that he was sick from drugs, that he did not know what happened and that he was, therefore, incapable of committing any offense. His story is that in a drunken stupor he met a "guy," unidentified, who offered to sell him heroin. They met inside the home that was burglarized; how entrance was obtained is avoided. Defendant stated that, while there, this "guy" sold him heroin and heated it for administration by using a candle; after which, it was injected and the defendant passed out. No instrument or candle was found. Defendant denied knowledge of anything thereafter until the police arrived and he awoke to face their guns.

It should be added that stereo equipment, a violin, a portable calculator and other items that were removed were located and recovered in the house to the rear, occupied by Douglas Taylor, a brother-in-law of the defendant.

Four months after the offense the defendant was interviewed by a psychiatrist. The psychiatrist, based upon what the defendant had told him and records, expressed an opinion, based upon the facts supplied, that after taking the heroin, the defendant was not aware of what he was doing.

The defense rests on incapability of criminal culpability. However, from the testimony, it appears that many of the facts that the expert accepted were either inaccurate or depended entirely upon the defendant's story, all of which the expert accepted. The expert's credibility and the value of his opinion depended upon a resolution of the conflicts in the testimony, which was solely in the province of the jury. One detective testified that defendant "acted like he was sick" and wanted someone to carry him. There was no evidence of hallucinations, relied upon heavily by the expert, except by way of the defendant. The psychiatrist was not aware of any of the facts of the offense or what took place at the scene.

Defendant's arguments on the second assignment of error are based upon the weight of the evidence on the mental element. Since the evidence is conflicting and since the expert's opinion rests upon disputed facts, as well as some unverified facts, the weight to be given to the opinion of the expert was exclusively within the province of the jury and may not be reversed on review. The circumstantial evidence of culpability is substantial and competent. The jury did not accept the defendant's story, and the jury did not accept the psychiatrist's opinion.

There is no merit to the second assignment of error.

As to the first assignment of error, there are times, when the evidence is appropriate and there is a question of a possible failure of proof as to the greater offense, that an instruction on the lesser offense may properly be submitted to the jury.

Here, the proffered defense was a total and complete one that would defeat, if believed by the jury, a conviction for any offense requiring any degree of culpability. While not affirmative in nature, because it denied an essential element, the defense was absolute to both burglary and theft. The latter requires a purpose or intent to commit the offense. Under these circumstances, the evidence of total incapacity did not justify submission to the jury of any other offense requiring similar mental culpability. If the defendant possessed a capability of forming a purpose to commit a theft offense, he was equally capable of possessing knowledge and purpose to commit burglary.

In the absence of testimony as to how the defendant obtained entrance into the house, the only reasonable inference possible under the circumstances, discounting the claimed mental incapability of the defendant, is that the defendant committed the acts of force incidental to his unauthorized entrance into, and presence in, the house. In the face of the undisputed evidence of physical damage to the back door of...