[Cite as State v. Steen , 2020-Ohio-4598.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

STATE OF OHIO Plaintiff-Appellee

v. DAVID E. STEEN Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-16

Trial Court Case No. 2019-CR-63 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 25th day of September, 2020.

. . . . . . . . . . . DEBORAH S. QUIGLEY, Atty. Reg. No. 0055455, Assistant Prosecuti ng Attorney, Darke County Prosecutor’s Office, 504 South Broadway Street, Greenvil le, Ohio 45331 Attorney for Plaintiff-Appellee ALEXANDER S. PENDL, Atty. Reg. No. 0093792, 121 West Third Stre et, Greenville, Ohio 45331 Attorney for Defendant-Appellant

. . . . . . . . . . . . . WELBAUM, J.-2- {¶ 1} Defendant-appellant, David E. Steen, appeals from his convictio n in the Darke County Court of Common Pleas after a jury found him guilt y of one count of burglary. In support of his appeal, Steen contends that the ju ry’s verdict was not supported by sufficient evidence and was against the manifest w eight of the evidence. For the reasons outlined below, Steen’s conviction will be affi rmed.

Facts and Course of Proceedings {¶ 2} On March 29, 2019, a Darke County grand jury returned an indict ment charging Steen with one count of burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree, and one count of theft in violation of R.C. 2 913.02(A)(1), a felony of the fifth degree. The charges stemmed from allegations that someti me between October 5, 2018, and October 11, 2018, Steen entered a residence on Ohio I ndiana State Line Road in Union City, Darke County, Ohio, and took property from the r esidence without the owner’s permission. {¶ 3} On October 2 and 3, 2019, the matter proceeded to a jury trial. Following trial, the jury returned a verdict finding Steen guilty of burg lary, but not guilty of theft. Thereafter, the trial court sentenced Steen to 24 months in pri son and ordered Steen to pay court costs. Steen then filed a timely notice appeal from his conviction. {¶ 4} Due to a malfunctioning of the trial court’s recording equipmen t, a transcript of Steen’s trial could not be produced for his appeal. In lieu of a transcript, the parties agreed to file a joint statement of the evidence/proceedings as permitted by App.R. 9(C). The parties filed the joint statement on January 16, 2020, and it was approved by the trial court on January 23, 2020. The joint statement indicated that the following testimony-3- and evidence was presented at Steen’s trial. {¶ 5} Michael Pearcy, the owner of the burglarized residence, testifi ed that on April 9, 2018, he vacated the residence and moved to Florida for his job. Pearcy also testified that he left many of his belongings at the residence and return ed to the residence intermittently. According to Pearcy, over $10,000 worth of his belongings were stolen from the residence while he was in Florida. Pearcy testified t hat a washer, dryer, and a

coffee table were some of the items taken from his residence. Pearcy authenticated several photographs of the stolen property at trial. See State’s Exhibit Nos. 49-53, and 59. Pearcy testified that no one had permission to enter his r esidence and take his property. This included Steen, whom Pearcy testified worked fo r a company that Pearcy

did business with before he moved to Florida. {¶ 6} Pearcy’s son, Noah Pearcy, also testified at trial. Noah testi fied that he had lived at the burglarized residence up until he left for college in August 2017. Noah testified that after his father moved to Florida, he would retu rn to the residence on the weekends to check on the property. Noah also testified that hi s father’s friend, Norah Wiley, looked after the property. According to Noah, no one wa s living at the residence

in October 2018. {¶ 7} With regard to the burglary, Noah testified that he was at the residence on October 5, 2018, and that nothing was out of order at that time . Noah testified that when he returned to the residence on October 11, 2018, he discovered that the residence had been burglarized; Noah contacted Wiley and the Darke County She riff’s Office. Noah testified that he gave surveillance video footage taken from ou tside the residence to Sheriff’s Deputy Colton Magel. According to Noah, the video fo otage was only visible-4- during the daylight hours and Steen was not shown on the visibl e portion of the footage. Noah further testified that he did not give anyone permission t o be at the residence in

October 2018. {¶ 8} Pearcy’s friend, Wiley, also testified at trial. Wiley testifi ed that she began looking after Pearcy’s residence when Pearcy moved to Florida f or his job. Wiley

confirmed that she did not live at the residence and that Pearc y intermittently returned to the residence when his job permitted. Wiley testified that aft er she became responsible for watching the residence, she videoed the interior of the res idence on September 5, 2018, for a ghost hunters visit. The video taken by Wiley was played for the jury and

admitted at trial. See State’s Exhibit No. 58. During the video, Pearcy’s coffee tab le was pointed out in one of the bedrooms. {¶ 9} Wiley testified that on October 11, 2018, she received a call f rom Noah who advised her that someone had burglarized Pearcy’s residence. W iley testified that she

instructed Noah to contact law enforcement and then went to the residence where she met up with Noah and Dep. Magel. Wiley testified that she and Noah went through the residence to assess the damage and to determine what property h ad been taken. During that time, Wiley took another video recording of the res idence, which was shown to the jury and admitted into evidence. See State’s Exhibit 58. Wiley also authenticated several photographs of the residence after it was burglarized. See State’s Exhibits 1-48. Wiley testified that she did not give anyone pe rmission to be at the residence or to take any of Pearcy’s belongings. {¶ 10} Dep. Magel also testified at trial. Dep. Magel testified that on October 11, 2018, he was dispatched to the residence in question where he m et Noah Pearcy and-5- Norah Wiley. Dep. Magel testified that during his investigatio n, he located a broken window at the rear, south-end of the residence. Dep. Magel tes tified that he believed the broken window was the initial point of entry for the burgla ry. Dep. Magel also testified that he took photographs of the scene, which were admitted into evidence at trial. See

State’s Exhibit 1-48. {¶ 11} Dep. Magel further testified that Noah had provided him with so me surveillance video footage taken outside the residence. Dep. M agel testified that the video footage showed some individuals at the residence during t he daylight hours. Dep. Magel also testified that the video footage showed many shadows of people and vehicles at the residence during the night-time hours on different night s prior to October 11, 2018. Dep. Magel testified that Steen w as not visible in any of the v ideo footage. {¶ 12} Steen’s neighbor, Mykala Purdin, also testified at trial. Myka la testified that her husband, Anthony Purdin, had been identified on the su rveillance video and was charged with burglarizing Pearcy’s residence. Mykala testified that sometime between October 12, 2018, and October 22, 2018, she secretly audio-reco rded a conversation between herself, Steen, Casey Fancil, and Dino Purdin. Mykala testified that her husband was also present during the conversation, but that he w as hiding from Steen and the others. Mykala testified that she made the recording s o that her husband could try and figure out who had videoed him at Pearcy’s residence. {¶ 13} Mykala’s audio recording was played for the jury and admitted i nto

evidence. See State’s Exhibit 55. A written transcription of the audio reco rding was

also admitted into evidence. See State’s Exhibit No. 56. At trial, Mykala identified the voices on the audio recording, including Steen’s voice. During the recorded-6- conversation, Steen can be heard making statements implicating himself in the burglary of Pearcy’s residence. Specifically, Steen can be heard saying that he had been at the residence, “four hours earlier” than Anthony and that he was no t shown on the video. Steen also stated that he got rid of the property and that he h ad nothing in his house. Steen also stated: “Hey I went through every inch of that mothe r f*****g house[.] * * * Barn, I, I spent two nights out there straight.” {¶ 14} Detective Rodney Baker of the Darke County Sheriff’s Office als o testified at trial. Det. Baker testified that he was assigned to investi gate the burglary of Pearcy’s

residence. After Det. Baker reviewed the surveillance video fo otage of the residence, he was able to identify Anthony Purdin as a suspect. Det. Bake r testified that on October 12, 2018, he executed a search warrant at Anthony’s residence. While executing the search warrant, Det. Baker observed a washer and dryer sitting outside in a neighboring driveway that belonged to Steen. Det. Baker testified that he believed the washer and dryer he observed were the ones stolen from Pearcy’s residence. Det. Baker attempted to make contact with Steen that day, but Steen was not at home. Det. Baker testified that he took a photograph of the washer and dryer sitting in St een’s driveway. That photograph was admitted into evidence at trial. See State’s Exhibit 59. {¶ 15} Det. Baker testified that he returned to Steen’s residence on O ctober 15, 2018, and saw that the washer and dryer had been removed from S teen’s driveway. Det. Baker testified that he then spoke to Steen about the wash er and dryer and that Steen would not give him a definite answer about their location . Det. Baker testified that Steen permitted him to look inside his garage to confirm that t he washer and dryer were not there. Upon doing so, Det. Baker observed the coffee table that had been stolen-7- from Pearcy’s residence. Det. Baker testified that Steen repea tedly claimed that the coffee table was his, but later indicated that the coffee table belonged to someone else. Det. Baker testified that Steen eventually permitted him to sei ze the coffee table without

a warrant. Det. Baker testified that his conversation with Ste en was audio-recorded; and the recording was played for the jury and admitted into evidenc e at trial. See State’s Exhibit No. 54. Det. Baker further testified that Union City p olice officers discovered Pearcy’s stolen washer in an abandoned garage next to Steen’s r esidence on October 22, 2018. {¶ 16} Following Det. Baker’s testimony, the State rested its case. T hereafter, the defense presented one witness, Casey Fancil. Fancil testif ied that she was friends with Steen and Mykala Purdin. Fancil testified that she was pr esent during the conversation that was recorded by Mykala. Fancil testified tha t the context of the conversation on the audio recording was about the burglary at P earcy’s residence. Fancil testified that during the conversation, they were specul ating who told the police about Anthony’s involvement in the burglary and who might have videoed Anthony at Pearcy’s residence. Fancil also testified that the entire conv ersation was approximately one to two hours long. Following Fancil’s testimony, the defen se rested its case and moved the trial court for a Crim.R. 29 acquittal, which the tri al court denied. {¶ 17} On June 15, 2020, the parties filed a supplemental joint statem ent of the evidence/proceedings that was approved by the trial court the f ollowing day. The supplemental joint statement provided additional testimony give n by Pearcy, Noah, and Wiley. According to the supplemental joint statement, Noah tes tified that he regularly stayed at the residence over the weekends to work on vehicles. Noah also testified that-8- the residence had a broken window and a forced-open door that w as not in that condition when he was last at the residence on October 5, 2018. Wiley al so testified that there was no broken window or forced-open door the last time she was at the residence. Both Pearcy and Wiley testified that Pearcy’s residence was kept loc ked and secured and that only Noah and Wiley had permission to be at the residence. {¶ 18} As previously noted, the jury found Steen guilty of burglary in violation of R.C. 2911.12(A)(3). Steen now appeals from his burglary convic tion, raising two assignments of error for review. For purposes of clarity, we w ill address Steen’s assignments of error together.

First and Second As signments of Error {¶ 19} Under his first and second assignments of error, Steen contends that his conviction for burglary under R.C. 2911.12(A)(3) was not suppor ted by sufficient evidence and was against the manifest weight of the evidence. We disagr ee.

Sufficiency of the Evidence {¶ 20} “A sufficiency of the evidence argument disputes whether the St ate has presented adequate evidence on each element of the offense to a llow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When reviewing a claim as to sufficiency o f evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a-9- reasonable doubt.” (Citations omitted.) State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact.” (Citations omitted.) Id

. {¶ 21} As previously noted, Steen was convicted of burglary under R.C. 2911.12(A)(3), which provides that: No person, by force, stealth, or deception, shall * * * [t]resp ass in an occupied structure or in a separately secured or separately occ upied portion of an occupied structure, with purpose to commit in the structu re or separately secured or separately occupied portion of the struct ure any criminal offense. {¶ 22} Steen contends that his conviction under R.C. 2911.12(A)(3) was not supported by sufficient evidence because the State failed to pr esent evidence establishing that: (1) he trespassed in Pearcy home by “force, stealth, or deception”; and (2) that Pearcy’s home was an “occupied structure.” We find no merit to either of Steen’s

claims.

(1) Trespass by Force, Stealth, or Deception: {¶ 23} For Steen’s burglary conviction to stand, there must have been sufficient evidence to establish that Steen trespassed in Pearcy’s residen ce by force, stealth, or deception. We will first address the element of trespass. “Tr espass means knowingly entering or remaining on the land or premises of another, witho ut a privilege or permission

to be there.” State v. Baker , 2016-Ohio-315, 58 N.E.3d 498, ¶ 21 (2d Dist.), citing R.C.-10- 2911.21. {¶ 24} The trial testimony of Pearcy, Noah, and Wiley clearly establis hes that Steen did not have permission to enter Pearcy’s residence. Des pite this, Steen argues that there was no direct, eyewitness testimony indicating that he ever entered Pearcy’s residence. There was, however, audio-recorded evidence in whic h Steen can be heard saying that he was at Pearcy’s residence and that he went throu gh “every inch” of Pearcy’s house. See State’s Exhibit 55 and 56. There was also quite a bit of circumstantial evidence indicating that Steen trespassed in Pea rcy’s residence. For example, Det. Baker testified that the day after the burglary w as reported, he observed what he believed to be the washer and dryer stolen from Pearcy’ s home sitting in Steen’s driveway. Three days later, Det. Baker also found Pearcy’s sto len coffee table inside Steen’s garage. The evidence also established that a week afte r the coffee table was found, law enforcement officers discovered Pearcy’s stolen wash er in an abandoned garage next to Steen’s house. When viewed in a light most favo rable to the State, we

find that the aforementioned circumstantial and audio-recorded evidence would permit any rational fact finder to conclude that Steen trespassed in P earcy’s residence. {¶ 25} Having found sufficient evidence of Steen’s trespass, we must n ow determine whether there was sufficient evidence establishing th at the trespass was committed by “force, stealth, or deception.” R.C. 2911.12(A). “ ‘Force’ as used in R.C. 2911.12(A) ‘means any violence, compulsion, or constraint physi cally exerted by any means upon or against a person or thing.’ ” State v. Brock, 2d Dist. Clark No. 2018-CA112, 2019-Ohio-3195, ¶ 24, quoting R.C. 2901.01(A)(1). “[T]he requirement of ‘force’ is satisfied by ‘any effort physically exerted.’ ” Id. , quoting State v. Hudson , 2018-Ohio--11- 423, 106 N.E.3d 205, ¶ 16 (2d Dist.) and State v. Johnson , 2d Dist. Montgomery No. 26961, 2017-Ohio-5498, ¶ 21. For example, evidence of a broken window at a residence can establish the use-of-force element of burglary. See, e.g., State v.

McClurkin , 10th Dist. Franklin No. 11AP-944, 2013-Ohio-1140, ¶ 49; State v. Brown , 9th Dist. Medina No. 14CA0004-M, 2015-Ohio-640, ¶ 21, 24. Opening an unlocked door is also sufficient to establish entry by force. See, e.g., State v. Cantrell , 2d Dist. Montgomery No. 26975, 2016-Ohio-7623, ¶ 12 (witness’s testimony that defendant opened a screen door to walk through an open inner door of vict im’s apartment was sufficient to prove “force”); State v. McWilliams , 2d Dist. Greene No. 2000-CA-89, 2001 WL 1203395, *3 (Oct. 12, 2001) (“In Ohio, opening a closed but unlocked door amounts to sufficient force to prove the element of force in the offens e of Burglary”); State v. Ford , 2d Dist. Montgomery No. 15374, 1996 WL 257442, *2 (May 17, 1996 ) (“[t]he effort necessary to open a door, locked or unlocked, is sufficient to satisfy the element of ‘force’ necessary to prove burglary”). {¶ 26} In this case, the testimony and photographic evidence presented at trial established that a window to Pearcy’s residence had been broken and that a door was forced open. The testimony of Dep. Magel indicated that the br oken window was the assailant’s likely point of entry into the residence. Despite this evidence, Steen argues

that the use-of-force element was not satisfied because the Sta te failed to present evidence establishing when the window was broken and whether th e door to the residence was closed and locked prior to Pearcy’s son, Noah, re porting the burglary on October 11, 2018. Steen’s argument, however, is not supported by the record. {¶ 27} According to the joint statement of evidence/proceedings, Noah testified-12- that he was at the residence on October 5, 2018, and that durin g that time, nothing was out of order. The supplemental joint statement of the evidence /proceedings additionally provided that Noah testified that the residence’s window was no t broken and that the door was not forced open on October 5, 2018. Wiley also testified t hat the window had not been broken and that the door had not been forced open when she was last at the residence. Therefore, despite Steen’s claim otherwise, the evi dence established that the window was broken sometime between October 5, 2018, and Oct ober 11, 2018. We also note that both Pearcy and Wiley testified that the residen ce was kept locked and

secured. {¶ 28} That being said, the evidence indicates that Anthony Purdin and other individuals were at the residence prior to Steen. Therefore, a reasonable fact finder

could have determined that one of those individuals broke the w indow to Pearcy’s residence and also left the door open before Steen ever trespas sed in the property. Under those circumstances, Steen’s trespass would not have been by force. However, even if that were the case, we find that there was sufficient e vidence establishing that Steen trespassed by stealth. {¶ 29} “ ‘Stealth’ has been defined as ‘any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within a resid ence of another without permission.’ ” State v. Patton , 2d Dist. Clark No. 2011-CA-94, 2013-Ohio-961, ¶ 14, quoting State v. Ward , 85 Ohio App.3d 537, 540, 620 N.E.2d 168 (3d Dist.1993). Several appellate courts in Ohio have held that entering an ope n door at night under the

cover of darkness is sufficient to establish the element of ste alth. See, e.g., State v.

Biddlecom , 8th Dist. Cuyahoga No. 76087, 2000 WL 354754, *5 (Apr. 6, 200 0) (entry-13- through an open garage door at night was sufficient to establis h entry by stealth); In re Carter, 4th Dist. Jackson Nos. 04CA15 and 04CA16, 2004-Ohio-7285, ¶ 26 (unannounced entry under the cover of darkness was sufficient t o establish the element of stealth); State v. Montgomery , 12th Dist. Warren No. CA94-09-082, 1995 WL 264885, *2 (May 8, 1995) (entry into a garage during the middle of the night under the cover of darkness while remaining as quiet as possible was sufficient to establish the element of stealth); State v. Mitchell , 4th Dist. Washington No. 07CA50, 2008-Ohio-2419, ¶ 24 (entry into a closed business establishment without permission in the middle of the night in the company of others who had forced entry was sufficient to establ ish the element of stealth). This court has also held that a defendant’s uninvited entry int o an unlocked house in the middle of the night while the occupants were sleeping was suffi cient to establish the element of stealth to support a burglary conviction. State v. Buelow , 2d Dist. Clark No. 2004-CA-18, 2004-Ohio-6052, ¶ 64. {¶ 30} In this case, the evidence establishes that Steen trespassed in Pearcy’s residence at night, under the cover of darkness. Specifically, the evidence establishes that the surveillance video footage of the residence was only v isible during the daylight hours. According to Dep. Magel, only shadows of people could b e seen on the video during the night-time hours, and Steen was not visible in any o f the video footage. Nevertheless, during the audio-recorded conversation with Mykal a Purdin, Steen admitted to being at the residence and going through “every inc h” of the house. Steen also can be heard saying that he was not shown on the video foo tage and that he had spent two nights at the property. Therefore, the evidence esta blished that Steen’s decision to trespass at night ultimately aided him in concealin g his identity on the video-14- footage. Taking all of this into consideration, we find that e vidence of Steen entering a house with a broken window and an open door on two different ni ghts to steal property

under the cover of darkness was sufficient to establish that St een trespassed by stealth. {¶ 31} When viewing all the aforementioned evidence in a light most fa vorable to the State, we conclude that any rational factfinder could have found that Steen trespassed in Pearcy’s residence by force and/or by stealth.

(2) Occupied Structure: {¶ 32} Pursuant to R.C. 2909.01(C)(1), an “occupied structure” include s “any house, building, outbuilding, watercraft, aircraft, railroad ca r, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof” that “i s maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.” Therefore, “ ‘[a] structure which is dedicated and intended for residential use, and which is not presently occupied as a p erson’s habitation, but, which has neither been permanently abandoned nor vacant for a p rolonged period of time, can be regarded as a stru cture “maintained” as a dwelling within the meaning of R.C. 2909.01[(C)].’ ” State v. Johnson , 188 Ohio App.3d 438, 2010-Ohio-3345, 935 N.E.2d 895, ¶ 18 (2d Dist.), quoting State v. Green , 18 Ohio App.3d 69, 480 N.E.2d 1128, paragraph one of the syllabus (10th Dist.1984). Accord State v. Ropp , 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 42. {¶ 33} “The mere fact that a residence has no actual tenant or owner l iving in it does not establish that the structure is unoccupied within the meaning of the Revised

Code.” Ropp at ¶ 44, citing Johnson at ¶ 20. Rather, an “occupied structure” still-15- exists under R.C. 2909.01(C)(1) where a dwelling is temporarily not being occupied as a place of habitation and where persons are likely to be present from time to time to look after the property to help maintain its character as a dwelling

. State v. Beddow , 2d Dist. Montgomery No. 18957, 2002 WL 252478, *2 (Feb. 22, 2002), citin g Green at 72. {¶ 34} In this case, the evidence established that the owner of the re sidence, Pearcy, moved to Florida in April 2018 for his job, but left ma ny of his belongings at the residence and returned to the residence intermittently. The ph otographs admitted into evidence showed that several items of furniture, clothing, kitc henware, and other personal belongings were inside the residence at the time of the burglar y. Despite moving away for college, Pearcy’s son, Noah, testified that he regularly st ayed at the residence over the weekends. Wiley additionally testified that she began look ing after the residence for Pearcy once he moved to Florida. Therefore, although Pearcy ha d been absent from the residence for a prolonged period of time, the evidence esta blished that the residence was looked after by Noah and Wiley and was maintained as a temp orary dwelling for Pearcy and Noah at the time of the burglary. {¶ 35} When viewing the aforementioned evidenc e in a light most favora ble to the State, we conclude that sufficient evidence was adduced to esta blish that Pearcy’s residence was an occupied structure.

Manifest Weight of the Evidence {¶ 36} Steen also contends that his conviction for burglary was agains t the manifest weight of the evidence. “A weight of the evidence arg ument challenges the believability of the evidence and asks which of the competing i nferences suggested by-16- the evidence is more believable or persuasive.” (Citation omit ted.) Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, at ¶ 12. When evaluating whether a conviction is against the manifest weight of the evidence, the appellate c ourt must review the entire record, weigh the evidence and all reasonable inferences, consi der witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’ ” Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the evidence is subject to different interpretat ions does not render the conviction against the manifest weight of the evidence.” State v. Adams , 2d Dist. Greene Nos. 2013-CA-61, 2013-CA-62, 2014-Ohio-3432, ¶ 24, citin g Wilson at ¶ 14. “A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances.” Id. , citing Martin at 175. {¶ 37} After reviewing the entire record and weighing all the evidence and reasonable inferences, we do not find that the jury lost its wa y and created a manifest miscarriage of justice when it found Steen guilty of burglary. The weight of the evidence established that Steen trespassed inside Pearcy’s residence by force and/or by stealth and stole various items of property from the residence. Despit e Pearcy’s moving to Florida for his job, the weight of the evidence also establishe d that Pearcy’s residence was an occupied structure, as Pearcy’s son, Noah, and Pearcy’s friend, Wiley, regularly

looked after the residence and the residence was maintained as a temporary dwelling for Pearcy and Noah at the time of the burglary. {¶ 38} For the foregoing reasons, Steen’s first and second assignments of error-17- are overruled.

Conclusion {¶ 39} Having overruled all assignments of error raised by Steen, his judgment of

conviction is affirmed.

. . . . . . . . . . . . .

TUCKER, P.J. and FROELICH, J., concur.

Copies sent to: Deborah S. Quigley Alexander S. Pendl Hon. Jonathan P. Hein