[Cite as State v. Chafin , 2020-Ohio-3983.]

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

STATE OF OHIO Plaintiff-Appellee

v. DANIEL K. CHAFIN Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-69

Trial Court Case No. 2018-CR-867 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 7th day of August, 2020.

. . . . . . . . . . . MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecut ing Attorney, Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee ADAM J. ARNOLD, Atty. Reg. No. 0088797, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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

WELBAUM, J.-2- {¶ 1} Defendant-Appellant, Daniel K. Chafin, appeals from his convict ion of burglary, attempted safecracking, and theft. Following a jury verdict finding Daniel 1 guilty of all three offenses, the court sentenced him to concur rent terms on each charge, for a total of five years in prison. {¶ 2} According to Daniel, his burglary conviction should be reversed because the record lacks sufficient evidence that he had the purpose to com mit an offense once he entered the home where the alleged burglary occurred. In addit ion, Daniel argues that trial counsel provided ineffective assistance by failing to ask for a lesser included instruction involving R.C. 2911. 12(B). A conviction on the les ser included offense would have reduced the burglary charge to a fourth-degree felony rath er than a second-degree felony. {¶ 3} After considering the record and applicable law, we conclude th at the record does contain sufficient evidence to support the burglary convic tion, because the jury could have reasonably concluded that Daniel entered his brother’s hom e with intent to commit theft. Furthermore, Daniel’s counsel did request an instructio n on the lesser included offense, but the trial court rejected his request. Although th e court erred in its reasons for rejecting the instructions, trial counsel was not responsib le for the court’s error. Morevoer, the instructions were not warranted under the facts p resented, and the error, therefore, did not impact the judgment. Accordingly, the judgm ent of the trial court will

be affirmed.

1 Because Daniel and the victims are siblings, we will use first names when referring to Daniel and his family members

.-3- I. Facts and Course of Proceedings {¶ 4} The victims in the case before us are Daniel’s siblings. Danie l’s brother, Joseph, is about ten years younger than Daniel, and owns a hous e in Fairborn that he purchased in 2016. For about a year after the purchase, Daniel stayed at the house. However, Joseph kicked Daniel out in 2017 when he suspected Dan iel of stealing some power tools. 2 Subsequently, Joseph’s younger brother, Donte, came to live w ith Joseph. Joseph also gained legal custody of his two younger sisters, ag es 13 and 15, in February 2018. Thus, when the alleged crimes occurred on September 6, 2 018, Joseph and his three younger siblings lived together in the house. {¶ 5} When Joseph kicked Daniel out, he told Daniel that he was not a llowed in the house. Joseph also changed all the locks. The only person oth er than Joseph who had a key was one of the sisters, who arrived home from school whil e Joseph was at work. Daniel was never given a key to the house. {¶ 6} After Daniel was kicked out, he came to the house a few times w ith their mother to get jugs of water, as her water was bad and she did n ot have a filter. When she brought Daniel, Joseph told her that he did not want Daniel there. However, she claimed she needed Daniel to help carry the jugs. {¶ 7} Daniel also came over four or five times to try to sell Joseph things. Almost every time, Joseph told him that he was not welcome. The last time Daniel came over prior to the alleged burglary, Joseph swung a shovel at Daniel and hit him. He told Daniel not to come back and to leave Joseph and his family alone. {¶ 8} During the week, Joseph worked at a data processing job from 7: 30 a.m. to

2 According to the record, Daniel had drug problems

.-4- 4:30 p.m. In contrast, Donte, who was 20 years old, worked thi rd shift at a print shop. On September 6, 2018 (which was a weekday), Joseph was at work, the girls were at school, and Donte was home, sleeping. Around 10:00 a.m., Donte woke up and went to the restroom. Donte saw something from the corner of his eye, but thought it was just his imagination because he was tired. Donte then walked toward the kitchen and saw Daniel standing in the kitchen, looking surprised. Donte asked Daniel what he was doing there because Joseph did not want him there. Daniel did not hav e a response to that question and tried to avoid it. Daniel dodged Donte’s questions , trying to make small talk. {¶ 9} Daniel stayed for about an hour and a half. During that time, Daniel walked

around the house and Donte followed him to make sure he did not take anything. Several times, Daniel stopped by a safe located on a counter ne xt to the kitchen window and forcefully tried to open the safe with a screwdriver. The safe contained a gun and money. Daniel did not directly say what he was doing, but he s aid, “You know why I'm here,” and “You know I was about to do something bad; right?” Transcript of Trial Proceedings (“Tr.”), Vol. I, p. 130. Donte took this to mean t hat Daniel was about to steal something, like what he was trying to do with the safe. Id

. {¶ 10} The framing on the kitchen window had been pushed in. The wind ow was shut, but the frame had been pushed in and there was enough roo m that a person could

enter the house. Id . at p. 160. There was no such damage to the window before tha t day. {¶ 11} From time to time, Daniel had asked Donte for money. Donte had given Daniel money once before ($40), but he did not give him money o n September 6, 2018. Donte did not call the police that day because his phone was no t charged. At some-5- point, Donte followed Daniel into the living room. Daniel sat down, and Donte turned on a computer and began playing a game. Donte continued to play t he game until Daniel got back up again and then Donte followed Daniel as he had befo re. After a while, Donte got frustrated because Daniel would not listen. At that point, he told Daniel that if he did not leave, he would call the police. Daniel then left, going t hrough the garage and jumping over the privacy fence in the backyard. {¶ 12} After Daniel left, Donte looked over everything to make sure th ings were there and noticed that his debit card was missing. He knew tha t Daniel had taken it because Daniel was the only one who had been there. When he re alized the card was missing, he found a charger for his phone and called Daniel’s m other’s phone, which Daniel had been using. Daniel responded and said, “Don’t call the cops. I’m bringing it right back.” Tr., Vol. I at p. 138. {¶ 13} A screenshot was taken of Daniel’s text, which said, “Yes, I’m coming back. Don’t call the f**king police. Can’t believe you would threaten that anyway.” Id . at 143. The text was received at 12:21 p.m. Id . Daniel then brought the card back within an hour. Donte did not call the police because he was kind of sca red to call the police on

his brother. {¶ 14} When Joseph arrived home from work that day, he saw that the wi ndow frame in the kitchen had been pushed in. It had not previously been pushed in that way. Joseph helped Donte take screenshots of Donte’s phone, includin g the text and call history, and the police were called. {¶ 15} Fairborn Police Officer Christopher Sopher came to the house th at night on a report of a past-occurred burglary. Sopher spoke in detail w ith Donte, who had called-6- in the report, and obtained a witness statement. He was not ab le to get inside the house because of the dog. Sopher asked Donte if he could put the dog away so he could go in and investigate. However, Donte was concerned that the dog wou ld be able to get out and cause harm, so Sopher did not enter the house. {¶ 16} Sopher’s report was referred to the detective section, and Dete ctive McGuire went to the house several times, but was not able to ge t in due to the dog. McGuire spoke to Donte, Joseph, and Daniel. According to McGui re, Daniel claimed

that he had not been kicked out of the house and was allowed to be there. When McGuire asked Daniel if there was a dispute over some missing p roperty, Daniel said that Donte was alleging that he took $40, that they were in a disput e over $40 that Daniel had received from Donte, and that Donte was just trying to get him in trouble regarding the $40. {¶ 17} Joseph had three surveillance cameras outside his house. One c amera was above the garage door; one was at the front door, and one w as on the side of the house. There was no camera in the back of the house, because o f the privacy fence. Daniel knew where the cameras were. After the incident, Joseph reviewed the video footage; the videos revealed nothing other than Daniel’s approa ching the house around 1:01 p.m. (which was within an hour after the phone call and te xt). Tr., Vol. I at p. 228. {¶ 18} Detective McGuire sent the case to the prosecutor for review, a nd an indictment was filed on November 2, 2018, for burglary, a secon d-degree felony, safecracking, a fifth-degree felony, and theft, a fifth-degree felony. After Daniel pled not guilty, the case was tried to a jury, which found Daniel guiltyof burglary, attempted safecracking, and theft. The court then sentenced Daniel to a tota l of five years in prison on-7- the charges, and this appeal followed.

II. Sufficiency of the Evidence {¶ 19} Daniel’s First Assignment of Error states that: The Defendant-Appellant Was Convicted Without Sufficient

Evidence as to an Essential Element of the Crime Convicted. {¶ 20} Under this assignment of error, Daniel contends that the record lacked sufficient evidence to support the burglary conviction, because there was no evidence that he had the purpose to commit an offense when he entered Jo seph’s home. Daniel admits that he wrongfully entered the house, but argues that hi s purpose in entering was not to take Donte’s credit card or break into the safe; instead , his purpose was simply to be in the home. As evidence, he points to the fact that he was there for an hour and a half, that he and Donte spoke frequently, that he and Donte sat down to play video games, that Donte did not feel threatened, and that Donte did not call the police. {¶ 21} “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, 678 N.E.2d 541 (1997). In this situation, we apply the following t est: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believ ed, would convince the average mind of the defendant's guilt beyond a rea sonable-8- doubt. The relevant inquiry is whether, after viewing the evid ence in a light most favorable to the prosecution, any rational trier of fact c ould have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259, 259-60, 574 N.E.2d 492 (1991), paragraph t wo of the syllabus, superseded by constitutional amendment on other grounds as stated in State v.

Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). {¶ 22} Daniel was charged with having violated R.C. 2911.12(A)(1), whi ch provides that: (A) No person, by force, stealth, or deception, shall do any of the following: (1) Trespass in an occupied structure or in a separately secure d or separately occupied portion of an occupied structure, when anot her person other than an accomplice of the offender is present, with purpo se to commit in the structure or in the separately secured or separately occ upied portion of the structure any criminal offense[.] {¶ 23} The culpable mental state for this violation is “purpose to com mit * * * any criminal offense.” In terms of culpability, “[a] person acts p urposely when it is the person's specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender's specific intention to engage in conduct of that nature.” R.C. 2901.22(A). To decide if an individual had the required mental state, courts look to the totality of the circumstances surrounding an incident. State v. Johnson , 56 Ohio St.2d 35, 38, 381 N.E.2d 637 (1978).-9- {¶ 24} Furthermore, intent may be proven by circumstantial evidence. “ The intent of an accused person dwells in his mind. Not being ascertainab le by the exercise of any or all of the senses, it can never be proved by the direct test imony of a third person, and it need not be. It must be gathered from the surrounding facts and circumstances under proper instructions from the court.” State v. Huffman , 131 Ohio St. 27, 28, 1 N.E.2d 313 (1936), paragraph four of the syllabus. Accord State v. Trammell , 2013-Ohio-4615, 3 N.E.3d 260, ¶ 93 (2d Dist.). {¶ 25} The predicate offense for the burglary charge was theft. There can be little doubt that Daniel’s intent in entering the house was to steal s omething. The record lacks any evidence that Daniel knocked on the front door and asked to come in, as any normal visitor (relative or not) would. Instead, the evidence indicat ed that Daniel had been previously barred from the premises based on the owner’s suspic ion that he had stolen property. Instead of asking for permission, Daniel came throug h the back yard (where he knew there were no cameras) and entered through a kitchen wi ndow, which he damaged in the process. {¶ 26} Moreover, unlike many situations, we have Daniel’s own words ex pressing his intent. As noted, Daniel told his brother, Donte, that “Yo u know why I'm here,” and that, “You know I was about to do something bad; right?” Tr., Vol. I at p. 130. {¶ 27} As support for his position that he was just at the house to be there, Daniel

has cited State v. Hudson , 2018-Ohio-423, 106 N.E.3d 205 (2d Dist.). In that case, the defendant was arrested after he was found asleep on the victim’ s couch. He was charged with a violation of R.C. 2911.12(A)(2), based on his al leged “intent to possess and use illegal drugs while inside.” Id . at ¶ 23. We disagreed, finding a lack of evidence-10- that the defendant was doing anything other than sleeping, even though he possessed crack pipes. Id . at ¶ 25. {¶ 28} Hudson is not on point here. Unlike the defendant in Hudson , Daniel, himself, highlighted his intent to steal something when he ente red the premises. {¶ 29} Furthermore, Daniel’s argument that the evidence was insufficie nt because

he did not form an intent to steal his brother Donte’s debit ca rd until sometime after he

entered the residence is not a defense. The evidence was overw helming that Daniel

stole Donte’s debit card. Daniel later returned the card and h is own text messages

confirmed that he had taken it. Whether he intended to steal t he card when he entered the residence does not matter. “[A] defendant may form the pur pose to commit a criminal offense at any point during the course of the trespass.” State v. Font es, 87 Ohio St.3d 527, 721 N.E.2d 1037 (2000), syllabus. In fact, in light of Fontes , we have held that an argument that a trespasser did not have the “purpose to commit * * * any criminal offense”

because he did not form the intent to commit the criminal offen se until after having entered a residence lacks arguable merit. State v. Cook , 2d Dist. Montgomery No. 26809, 2016- Ohio-4574, ¶ 7. 3 Therefore, arguing that Daniel did not have the purpose to co mmit a criminal offense when he trespassed into his brother’s home, bu t formed the intent after entering the home, even if true, was simply not a viable defens e. {¶ 30} Daniel’s second point is based on the fact that the trial court and parties agreed that the three offenses i n this case were not allied off enses of similar import.

3 State v. Cook is an aggravated burglary case under R.C. 2911.11(A)(1), as co mpared to burglary, R.C. 2911.12(A)(1). Cook at ¶ 4. Aggravated burglary requires additional elements of either (1) infliction of physical harm or 2) posses sion of a deadly weapon. But regarding a discussion about “purpose to commit * * * any crimi nal offense” or whether a person were actually present, these statutory offenses contain the same elements.-11- Therefore, Daniel argues that since he had a separate motivatio n for each charge, he should have been charged under R.C. 2911.12(B) rather than R.C. 2911.12(A)(1). The State has not responded to this argument. {¶ 31} In 2015, the Supreme Court of Ohio clarified the law pertaining to allied offenses of similar import. The court held that “[w]hen the de fendant's conduct constitutes a single offense, the defendant may be convicted an d punished only for that offense. When the conduct supports more than one offense, howe ver, a court must conduct an analysis of allied offenses of similar import to det ermine whether the offenses merge or whether the defendant may be convicted of separate off enses.” State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 24, citing R.C. 2941.25(B). {¶ 32} The court went on to note that: A trial court and the reviewing court on appeal when considerin g whether there are allied offenses that merge into a single conv iction under R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the defendant may be con victed and sentenced for multiple offenses: (1) the offenses are dissimila r in import or significance – in other words, each offense caused separate, id entifiable harm, (2) the offenses were committed separately, or (3) the of fenses were committed with separate animus or motivation.

Id . at ¶ 26. {¶ 33} After Ruff was decided, courts considering the interrelationship of burgl ary with other offenses have held that the crime of burglary is com plete upon intrusion into a-12- prohibited place with the intent to commit an offense like thef t. See State v. Back , 12th Dist. Butler No. CA2015-03-037, 2015-Ohio-4447, ¶ 12. In Back , the defendant was convicted of both burglary and grand theft, and he claimed on a ppeal that the offenses should have been merged because they “were committed with a ‘si ngle animus and a single course of conduct.’ ” Id . at ¶ 7. {¶ 34} The court of appeals disagreed, commenting that: In order to commit burglary, appellant had to, by force, stealt h, or deception, trespass in a separately secured or separately occup ied portion of an occupied structure with the purpose to commit any crimina l offense. Therefore, once inside the garage on Sauterne Drive, with the r equisite intent, the burglary was complete. The theft offense did not o ccur until later, when appellant physically removed the .32 caliber revolv er from the garage. At this time, grand theft of the firearm was complete. “Consequently, ‘because one offense was completed before the ot her offense occurred, the two offenses were committed separately fo r purposes of R.C. 2941.25(B) notwithstanding their proximity in time and that one was

committed in order to commit the other.’ ”

Back at ¶ 12, quoting State v. Lane , 12th Dist. Butler No. CA2013-05-074, 2014-Ohio562, ¶ 16, which in turn quotes State v. DeWitt , 2d Dist. Montgomery No. 24437, 2012- Ohio-635, ¶ 33. See also State v. Champada , 6th Dist. Fulton No. F-14-006, 2016-Ohio7291, ¶ 24 (burglary attempt was complete upon breaking into do or on the premises and subsequent thefts of items were not allied offenses); State v. Sutton , 8th Dist. Cuyahoga No. 102300, 2015-Ohio-4074, ¶ 64 (no allied offense of theft an d burglary; “burglary was-13- accomplished when [defendant] used deception to obtain [owner’s ] consent to remain in the home throughout the night with the intention to commit a th eft offense,” and theft occurred later in the night, “after the trespass with deception had been accomplished”);

State v. Evett , 9th Dist. Medina No. 14CA0008-M, 2015-Ohio-2722, ¶ 39 (burgla ry was accomplished by defendant’s entrance into home with intent to s teal when she knew she was not welcome; theft occurred later). {¶ 35} The basis for these holdings is that “ ‘ “[i]t is the intent to commit any criminal offense while trespassing that constitutes commission of the bu rglary crime. No criminal offense actually needs to be committed to support the burglary charge.” ’ ” State v.

Justice , 8th Dist. Cuyahoga No. 106895, 2018-Ohio-4119, ¶ 11, quoting State v. Yancey , 8th Dist. Cuyahoga No. 104587, 2017-Ohio-1040, ¶ 9. (Other cit ation omitted.) {¶ 36} In State v. Gillman , 2015-Ohio-4421, 46 N.E.3d 130 (4th Dist.), the court also held that burglary and the ft were not allied offenses beca use the harm resulting from each crime differed. The burglary caused harm to the occupants ’ sense of safety and privacy, while the theft caused economic harm. Id . at ¶ 23. {¶ 37} After reviewing the above cases, we agree with the holdings of the other courts and conclude that the burglary was accomplished when Dan iel forced his way into the house with intent to steal something. Furthermore, to the extent that Daniel’s argument could be interpreted as an assertion of plain error in the court’s failure to merge the offenses, it is also not well taken. The matter was not ra ised in the trial court and, for the reasons stated, there has been no error or plain error. Champada at ¶ 25. {¶ 38} Based on the preceding discussion, the First Assignment of Erro r is

overruled.-14-

III. Ineffective Assistance of Counsel {¶ 39} Daniel’s Second Assignment of Error states that: The Trial Counsel for Defendant Was Ineffective in Requesting t he

Incorrect Lesser Includ ed Jury Instruction. {¶ 40} Under this assignment of error, Daniel contends that trial coun sel rendered ineffective assistance by focusing his argument for a lesser in cluded offense on R.C. 2911.12(A)(2), rather than making an argument under R.C. 2911.1 2(B). Specifically, Daniel argues that his intent in entering the house was to spen d time with his brother, Donte, and that trial counsel precluded this defense by focusin g on whether a person was “likely to be present” in the house. {¶ 41} “The right to counsel plays a crucial role in the adversarial s ystem embodied in the Sixth Amendment, since access to counsel's skill and kno wledge is necessary to accord defendants the ‘ample opportunity to meet the case of th e prosecution’ to which they are entitled.” Strickland v. Washington , 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), quoting Adams v. United States ex rel. McCann , 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942). {¶ 42} “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has tw o components. First, the defendant must show that counsel's performance was deficient. This requires showing

that counsel made errors so serious that counsel was not functi oning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the d efendant must show that the deficient performance prejudiced the defense. This re quires showing that-15- counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id . at 687. “An error by counsel, even if professionally unreaso nable, does not warrant setting aside the judgment of a criminal proce eding if the error had no effect on the judgment.” Id . at 691. {¶ 43} In Strickland , the court also stressed that “[j]udicial scrutiny of counsel' s performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence , and it is all too easy for a court, examining counsel's defense after it has proved unsucc essful, to conclude that a particular act or omission of counsel was unreasonable. * * * A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challe nged conduct, and to evaluate the conduct from counsel's perspective at the time. B ecause of the difficulties inherent in making the evaluation, a court must indulge a stron g presumption that counsel's conduct falls within the wide range of reasonable pro fessional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id . at 689, quoting Michel

v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). With th ese standards in mind, we will consider the ci rcumstances surrounding the jur y charge. {¶ 44} Before trial, Daniel’s counsel submitted proposed jury instruct ions. See Proposed Partial Jury Instructions (Apr. 24, 2019). At that ti me, counsel proposed instructions on two lesser included offenses: R.C. 2911.12(A)(3 ), a third-degree felony, and R.C. 2911.12(B), a fourth-degree felony. 4 Part of the proposed instructions stated

4 In his brief, Daniel contends that the third-degree lesser inc luded offense was R.C.-16- that “The essential elements of the offense [of] second degree burglary are the same as third degree burglary with the exception that a person is not p resent and the difference between third degree burglary and fourth degree burglary is tha t the defendant trespassed in an occupied structure without purpose to commit a n offense therein.” Id

. at p. 2. {¶ 45} The reason R.C. 2911.12(B) imposes a lesser degree of fault is that trespassers do not need to have intent to commit a crime, nor d o they have to actually commit a crime other than trespassing by force, stealth, or dec eption. Specifically, R.C. 2911.12(B) states that “[n]o person, by force, stealth, or dece ption, 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.” {¶ 46} Similarly, R.C. 2911.12(A)(3) imposes a lesser degree of fault, by prohibiting “Trespass in an occupied structure or in a separate ly secured or separately occupied portion of an occupied structure, with purpose to comm it in the structure or separately secured or separately occupied portion of the struct ure any criminal offense.”

2911.12(A)(2). See Appellant’s Brief, p. 12. The instructions submitted to the t rial court are unclear, as they refer to the fourth-degree and third-degre e felonies without specifying the Revised Code Section or subsection, and refer in another pa rt of the instructions to R.C. 2911.12(A)(2) in the context of whether the defendant was likely to be present. See Proposed Partial Jury Instructions, p. 2 and 3. Whether this w as a typographical error or not is unclear, and the court’s discussion of the instructions at trial does not specify which Revised Code section or subsections the court referenced. Howe ver, it is clear that trial counsel was referring to R.C. 2911.12(A)(3) and R.C. 2911.12(B) in the instructions, because they are the only potential third- and fourth-degree fe lonies that could be involved. Specifically, under R.C. 2911.12(D), a violation of either R.C. 2911.12(A)(1) or R.C. 2911.12(A)(2) is a second-degree felony. The third-degree felony under that statute is contained in R.C. 2911.12(A)(3), and R.C. 2911.12(A) (2) would not have been a lesser included offense to R.C. 2911.12(A)(1). As a result, we need not consider the potential application of R.C. 2911.12(A)(2) or its language.-17- In this situation, lesser fault is justified because no one is present other than the wrongdoer, which decreases the potential harm to others. {¶ 47} At the end of the State’s case, Daniel’s counsel made a Crim.R. 29 motion. During discussion of the motion, Daniel’s counsel reminded the court that he had submitted proposed instructions on the lesser included offenses , but understood that the court did not intend to give those instructions to the jury. See Tr., Vol. III, p. 309. The

court did not comment at that time. {¶ 48} Subsequently, the court briefly mentioned the request for instr uctions. The court first noted that the indictment “does not utilize the phr aseology of the code section that deals with likely to be present and there is evidence that a witness was present, indeed that’s the only witness that even places the Defendant i nside the house, therefore, it will be very unlikely for the jury to find that no one was p resent at the time of these

events.” Id . at 312. The court went on to stress that, “Therefore, there is no way that element cannot be found by a jury, which is a requirement for a lesser included offense, therefore, the request for a lesser included offense will be de nied as to the Burglary

counts.” Id . at p. 312-313. {¶ 49} Daniel has not raised the applicability of R.C. 2911.12(A)(3), which as noted is a third-degree felony and a lesser included offense. As the trial court correctly observed, a person was admittedly present in the house, and the re would have been no basis for giving an instruction on this lesser-included offense , which allows conviction where no one is present in the occupied structure. {¶ 50} The trial court was mistaken, however, with respect to the less er included offense in R.C. 2911.12(B), because it does not pertain only to situations where a person-18- other than the defendant or an accomplice is likely to be prese nt. Instead, this subsection uses the disjunctive form, i.e., it refers to the fa ct that a person is trespassing “when any person other than an accomplice of the offender is pr esent or likely to be present * * *." (Emphasis added). {¶ 51} “When construing the language of a statute, we begin by determi ning the intent of the General Assembly. The intent of the General Assem bly ‘is primarily determined from the language of the statute itself.’ When the statute is unambiguous, the court must apply it as written.” (Citations omitted.) State ex rel. Stevens v. Fairfield Cty. Bd. of Elections ., 152 Ohio St.3d 584, 2018-Ohio-1151, 99 N.E.3d 376, ¶ 17. {¶ 52} R.C. 2911.12(B) is unambiguous concerning the language at issue here. Under the clear meaning of this subsection, a jury can conclude that the statutory elements are satisfied either if a person other than the defend ant or an accomplice is present in a structure or if a such other person is likely to be present in the structur e. As a result, the fact that a person is actually present does not p reclude giving a lesser included offense instruction under R.C. 2911.12(B). Because th e instruction can be given whether a person is present or is likely to be present, t he trial court erred in concluding otherwise. This error, however, was by the court, n ot by Daniel’s counsel, who did ask for the jury to be instructed on the lesser include d offense in R.C. 2911.12(B). {¶ 53} Nonetheless, any error is irrelevant because Daniel’s argument is based on an unfounded premise. Contrary to Daniel’s assertion, there wa s no evidence that he went to the house that day to spend time with his younger broth er and not to commit a crime. In the first place, when Donte entered the kitchen, Dan iel was surprised to see him. No testimony contradicted Donte’s account. If Daniel cam e to the house that day-19- to visit with Donte, Daniel would not have been surprised to se e Donte; he would have expected to see him. {¶ 54} Furthermore, for the reasons previously discussed, it is abunda ntly clear that Daniel did not come to the house that day to spend time wi th Donte. Instead, Daniel did not have permission to be in the house, forcibly entered by pushing in a window, and had intent to steal something. Daniel’s own statements confirm ed this, and there was simply no evidence to the contrary. {¶ 55} Likewise, because the criminal offense of theft of the debit ca rd, a misdeed which is undisputed, constitutes a “purpose to commit * * * any criminal offense,” there is no reasonable argument whether trial counsel was ineffective fo r failing to focus on a

defense that Daniel did not form the intent to steal the card u ntil after he entered the residence. Daniel argues that “[Trial counsel] did not put any emphasis on the issue that Mr. [Daniel] Chafin did not enter the home with the purpose to commit any criminal infractions.” (Appellant’s Brief at 12.) However, what Daniel argues is not a defense.

Fontes , 87 Ohio St.3d 527, 721 N.E.2d 1037, at syllabus. Trial couns el cannot be faulted for failing to focus on something that as a matter of law is no t a defense. {¶ 56} As a result, Daniel’s trial counsel did not provide ineffective assistance.

Counsel asked for instructions on the lesser included offense i n R.C. 2911.11(B) and was not responsible for any error in the court’s reasoning for reje cting the instructions (an error that has not been raised on appeal). Any error in reasoning on this particular point, however, was irrelevant, because an instruction on R.C. 2911.12 (B) was not warranted based on the facts presented. {¶ 57} Moreover, as noted, refusing to give a lesser and included inst ruction on-20- trespass into a habitation under R.C 2911.12(B) would also have been legally correct. This subsection allows conviction when any person “is present o r likely to be present,” as opposed to R.C. 2911.12(A)(1), which is limited to trespass whe n another person is actually present. As noted, that distinction is irrelevant her e. There is no question that Donte was actually present, as Daniel’s own argument acknowledg es this fact. See Appellant’s Brief at p. 12 (“Mr. [Daniel] Chafin went into the home to spend some time with his little brother, Donte.”) Therefore, the distinction b etween “is present” or “likely to be present” is of no consequence here and would not be a reason to give either lesser

included instruction. {¶ 58} There is no question that Daniel stole the debit card, and we h ave also concluded that an unequivocal purpose to steal was not required to have been formed

before he entered the house. Fontes , 87 Ohio St.3d 527, 721 N.E.2d 1037, at syllabus. Consequently, Daniel’s contention that he formed the intent to steal the card after entering was not a legitimate defense, and neither of the distinctive el ements of R.C. 2911.12(B) applied. {¶ 59} Again, on this record, no reasonable juror could have found tha t Daniel’s purpose in stealing the debit card was not a purpose to commit a criminal offense, and no reasonable juror could have found that a person was only lik ely to be present rather than actually present. As a result, an instruction on R.C. 291 1.12(B) was not only unnecessary, it would have been wrong, although not for the rea sons the trial court stated. {¶ 60} Accordingly, the Second Assignment of Error is overruled.

IV. Conclusion-21- {¶ 61} All of Daniel’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

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

HALL, J., concurs. DONOVAN, J., concurs in judgment only.

Copies sent to: Marcy A. Vonderwell Adam J. Arnold Hon. Stephen Wolaver