[Cite as State v. Miller, 2016-Ohio-7868.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

v. : No. 16AP-8 

 (C.P.C. No. 15CR-1696) 

Sean R. Miller, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on November 22, 2016 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Steven L. 

Taylor, for appellee. 

On brief: Sydow Leis LLC, and Anastasia L. Sydow, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} Sean R. Miller is appealing from his conviction on a charge of burglary as a 

second degree felony following a jury trial. He assigns five errors for our consideration: 

[I.] THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT'S MOTION TO SUPPRESS EYEWITNESS 

IDENTIFICATION, THEREBY PERMITTING A 

FUNDAMENTALLY UNRELIABLE IDENTIFICATION 

INTO EVIDENCE AND RESULTING IN A VIOLATION OF 

DEFENDANT'S DUE PROCESS. 

[II.] THE TRIAL COURT ERRED WHEN IT DENIED 

DEFENDANT-APPELLANT'S CRIMINAL RULE 29 

MOTION FOR ACQUITTAL ON THE CHARGE OF 

BURGLARY BECAUSE THE EVIDENCE PRESENTED BY 

THE STATE WAS INSUFFICIENT TO SUPPORT A 

CONVICTION BEYOND A REASONABLE DOUBT. 
No. 16AP-8 2 

[III.] THE VERDICT IS AGAINST THE SUFFICIENCY AND 

MANIFEST WEIGHT OF THE EVIDENCE. 

[IV.] DEFENDANT WAS EFFECTIVELY DENIED HIS 

CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL 

WHERE COUNSEL'S FAILURE TO REQUEST JURY 

INSTRUCTION ON THE LESSER INCLUDED OFFENSE 

CONSTITUTES PLAIN ERROR. 

[V.] THE COURT PLAINLY ERRED BY 

MISREPRESENTING THE LENGTH OF DEFENDANT'S 

MANDATORY SENTENCE. 

{¶ 2} On March 27, 2015, someone kicked in the door of 4943 Kilconnel Avenue 

in Columbus, Ohio. Amadou Fall who lived at the residence with his mother and siblings 

was home at the time. The noise from the door being kicked in woke Amadou from his 

dozing on the couch and he saw the person trying to enter the residence. Amadou 

thought that the person was Sean Miller who had been staying in the duplex which 

adjoined 4943 Kilconnel Avenue. 

{¶ 3} Amadou, who was only 16 at the time, called his mother to ask what to do. 

She told him to call the police, which he did. Amadou told the police dispatcher that the 

person who kicked in the door was a Caucasian male wearing a light baby blue sweatshirt. 

{¶ 4} Columbus police responded and interviewed Amadou who identified Miller 

as the intruder. Then the police approached the next-door residence and brought the two 

male occupants outside, one of which was Sean Miller. Amadou again identified Miller as 

the culprit, but later acknowledged he was nervous and not 100 percent sure. 

{¶ 5} After Miller was indicted on a charge of burglary, his defense counsel filed a 

motion to suppress Amadou's identification of Miller as the culprit. 

{¶ 6} At the evidentiary hearing on the motion, Columbus Police Officer Kerry 

Harris testified about what happened when Columbus police responded to the police 

dispatch. Harris related that after talking to Amadou, they approached the other half of 

the duplex. A woman answered the door and told police a friend had just recently run 

into her residence. Police then asked both men in the residence to come outside. 

Amadou then identified Sean Miller as the man who broke in. A light blue sweatshirt was 

later found on a love seat in the living room of the residence where Miller was staying. 
No. 16AP-8 3 

{¶ 7} Amadou testified at the hearing on the motion to suppress and indicated 

that he was 90 percent sure that Miller was the person who started to break in Amadou's 

residence. Amadou attributed the 10 percent uncertainty to the fact Miller was not 

wearing a light blue sweatshirt when police asked for an identification shortly after the 

break-in. 

{¶ 8} The evidence submitted at the hearing on the motion to suppress 

identification was sufficient to permit the state of Ohio to use Amadou's testimony during 

their case-in-chief. 

{¶ 9} Amadou had told police that he believed the intruder was in the adjoining 

duplex because immediately after the intruder left Amadou's residence, Amadou heard 

the door of the adjoining duplex open and then slam closed. Police then extracted the 

only two adult males from the residence and asked Amadou if either one of them was 

involved. Amadou identified Miller as the intruder. 

{¶ 10} Further, Amadou was familiar with Miller as a result of Miller staying at the 

adjoining duplex for five days. Nothing the police officer did in pursuing their 

investigation was inappropriate or illegal. 

{¶ 11} The first assignment of error is overruled. 

{¶ 12} Turning to the second and third assignments of error, the testimony of 

Amadou at trial was sufficient to establish that Miller was the person who kicked in the 

door of 4943 Kilconnel Avenue and partially entered the residence before seeing Amadou 

was home. The weight of the evidence also supported Miller as being the culprit. 

{¶ 13} The immediate flight from the residence could only be construed as 

knowledge of guilt under the circumstances. 

{¶ 14} R.C. 2911.12(A) defines burglary as follows: 

No person, by force, stealth, or deception, shall do any of the 

following: 

(1) Trespass in an occupied structure or in a separately 

secured or separately occupied portion of an occupied 

structure, when another person other than an accomplice of 

the offender is present, with purpose to commit in the 

structure or in the separately secured or separately occupied 

portion of the structure any criminal offense; 
No. 16AP-8 4 

(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 or 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. 

{¶ 15} Miller's kicking in the door and damaging it was a criminal offense. His 

actions entering the residence was a trespass. All the elements of the offense of burglary 

were proven. 

{¶ 16} The second and third assignments of error are overruled. 

{¶ 17} Turning to the fourth assignment of error, Miller and his counsel chose not 

to have the jury charged on the lesser charge of trespass in a habitation in violation of R.C. 

2911.12(B) despite the ruling of the Supreme Court of Ohio in State v. Wine, 140 Ohio 

St.3d 409, 2014-Ohio-3948, which indicated that a charge on that lesser offense is usually 

appropriate. 

{¶ 18} R.C. 2911.12(B) reads: 

No person, by force, stealth, or deception, shall trespass in 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. 

{¶ 19} Miller could have had the jury charged as to R.C. 2911.12(B) but apparently 

preferred the chance to have the jury acquit him entirely rather than allow the jury to 

compromise on a lesser offense. His gamble did not pay off. 

{¶ 20} Defense counsel has an obligation to consult with the defendant and respect 

the defendant's wishes, even if the wishes seem unwise. Defense counsel does not become 

ineffective simply because counsel respects the defendant's wishes and desires. 

{¶ 21} The fourth assignment of error is overruled. 

{¶ 22} Turning to the fifth assignment of error, the trial court judge journalized a 

sentencing entry which is partially inaccurate. For instance, the entry suggests that Miller 
No. 16AP-8 5 

entered a guilty plea and at the same time acknowledges that the case went to trial. The 

judge apparently also thought he could grant judicial release part way through a 

mandatory sentence. However, this would be contrary to the ruling of the Supreme Court 

of Ohio in State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201. 

{¶ 23} The state of Ohio has acknowledged that the fifth assignment of error 

should be sustained because the trial court judge's misunderstanding of the law could 

have caused the judge to give a stiffer sentence than planned and intended. The judge 

thought he could give a four-year sentence initially and grant early release after two years. 

The judge could not. 

{¶ 24} The fifth assignment of error is sustained. The sentence is vacated and the 

case is remanded for a new sentencing hearing. 

{¶ 25} In review, the first four assignments of error are overruled. 

{¶ 26} The fifth assignment of error is sustained. The sentence of the trial court is 

vacated and the case is remanded for a new sentencing hearing. 

Judgment vacated and case 

remanded for a new sentencing hearing. 

DORRIAN, P.J., and BROWN, J., concur.