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State v. Artis

Court of Appeals of Ohio, Third District

July 22, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
TYRELL E. ARTIS, DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. 12-07-0167

Darrell L. Heckman for Appellant.

William T. Goslee for Appellee.

OPINION

WILLAMOWSKI, J.

{¶1} Defendant-appellant Tyrell E. Artis ("Artis") brings this appeal from the judgment of the Court of Common Pleas of Logan County finding him guilty of burglary. For the reasons set forth below, the judgment is affirmed.

{¶2} On July 5, 2012, Steffan Whetsel ("Whetsel") went to an apartment complex in Bellefontaine to sell an ounce of marijuana for $110.00. When he arrived at the apartment complex, Zach Coleman who was called "Crazy" ("Crazy") and a second man known only as "Tito" awaited Whetsel. Crazy snatched the marijuana from Whetsel, threw it to Tito, and flashed a gun at Whetsel. The two men then left with the marijuana without paying for it. Since the item stolen was illegal, Whetsel decided against calling the police, and instead called his friend Justin Rogan ("Rogan"). Rogan was at a nearby party with Artis, who is Whetsel's cousin. Rogan told Artis about the robbery and they went to help Whetsel recover the stolen marijuana.

{¶3} When Artis arrived at the complex, Whetsel told Artis which apartment "the dude with the weed" entered. Tr. 147. The apartment belonged to Shelly Neeld ("Neeld"), who was living there with her husband, her daughter, Katrina, and her grandchildren. Katrina has a child with Dustin Lattimer ("Lattimer") who is friends with Tito and Crazy. Lattimer knew that Crazy and Tito were planning on stealing the marijuana from Whetsel. Tito and Crazy ran into Neeld's apartment after the robbery. Whetsel knew which apartment they entered and gave that information to Artis. Whetsel was armed with a baseball bat and Artis was armed with a taser when they approached the apartment with the intent to retrieve the stolen marijuana. Whetsel then broke down the door to the apartment and he and Artis entered. There was a fight among Tito, Whetsel, Artis, and Lattimer. No one suffered serious injuries, but Whetsel and Artis left without retrieving the lost marijuana.

{¶4} On July 15, 2012, the Logan County Grand Jury indicted Artis on one count of Aggravated Burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree, and one count of Assault in violation of R.C. 2903.13(A), a misdemeanor. Artis entered pleas of not guilty to both counts. A jury trial was held on November 15-16, 2012. At the conclusion of the trial, the jury found Artis not guilty of the Aggravated Burglary and Assault, but found Artis guilty of the lesser included offense of Burglary, a felony of the second degree. On December 17, 2012, the trial court held a sentencing hearing. Artis was sentenced to serve four years in prison. Artis appeals from this judgment and raises the following assignments of error.

First Assignment of Error
The trial court erred in failing to instruct the jury on the lesser included offense of burglary as a fourth degree felony.
Second Assignment of Error
The trial court erred in permitting prejudicial evidence of prior bad acts of [Artis].

{¶5} In the first assignment of error, Artis claims that the trial court erred by not instructing the jury on the lesser included offense of burglary as a fourth degree felony.

The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶13. The first tier, also called the "statutory-elements step, " is a purely legal question, wherein we determine whether one offense is generally a lesser included offense of the charged offense. State v. Kidder, 32 Ohio St.3d 279, 281 (1987). The second tier looks to the evidence in a particular case and determines whether "a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense." Evans at ¶13, quoting Sha ...

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