Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-562444
ATTORNEY FOR APPELLANT Michaele Tyner Rockside Plaza,
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, Mary Weston Assistant County Prosecutor
BEFORE: Jones, P.J., Rocco, J., and Kilbane, J.
JOURNAL ENTRY AND OPINION
LARRY A. JONES, SR., P.J.
(¶1} On reconsideration, the original announcement of State v. McCoy, 8th Dist. Cuyahoga No. 99198, 2013-Ohio-3806, released on September 5, 2013, is hereby vacated.
(¶2} Defendant-appellant Lonnie McCoy appeals his burglary conviction. We reverse and vacate his conviction, and remand.
I. Procedural History and Facts
(¶ 3} In 2012, McCoy was charged with one count of burglary with a repeat violent offender specification and a notice of prior conviction. The matter proceeded to a trial by jury; McCoy elected to have the repeat violent offender specification and notice of prior conviction tried to the bench.
(¶ 4} The following pertinent evidence was produced at trial.
(¶5} Helen Panek testified she was 88 years old, hard of hearing, and was mowing the lawn at her house in Maple Heights on May 5, 2012. Her house has both a front door and a side door and when she leaves the house or when she is cutting her grass she locks the door to her house "most of the time." Panek testified that she had a motion sensor in her basement that would activate when someone passed by and "after so many minutes, it goes off."
(¶ 6} According to Panek, she was pushing her mower into the front yard when a man on a bike and wearing "something gray" rode up her driveway but quickly turned and rode away. She did not recognize the man or remember him saying anything more than "uh" to her. In court, she was not able to identify the man she had seen on the bike as McCoy.
(¶ 7} Anthony Gatto testified that his office was in a building located directly behind Panek's house. From his office, he has a good view of Panek's back yard. On May 5, 2012, he was finishing up paperwork when he saw a man on a bike behind Panek's house. Gatto left his office and drove down the street; as he was driving, he saw the man again. The man was then off his bike, walking towards the side door of Panek's house, and was wearing gloves.
(¶ 8} Gatto drove to the front of Panek's house and pulled into her driveway. He yelled to her that she was being robbed and to call police. But Panek testified that she did not remember Gatto ...