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State v. McCort

Court of Appeals of Ohio, Fifth District, Muskingum

March 24, 2017

STATE OF OHIO Plaintiff-Appellee
v.
DEANO MCCORT Defendant-Appellant

         Appeal from the Muskingum County Court of Common Pleas, Case No. CR2015-0365.

          For Plaintiff-Appellee D. MICHAEL HADDOX Prosecuting Attorney By: GERALD V. ANDERSON II Assistant Prosecuting Attorney.

          For Defendant-Appellant DAVID A. SAMS.

          Hon. Patricia A. Delaney Hon. John W. Wise Hon. Craig R. Baldwin, Judge.

          OPINION

          Baldwin, J.

         {¶1} Defendant-appellant Deano McCort appeals his conviction from the Muskingum County Court of Common Pleas on one count of burglary. Plaintiff-appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On December 3, 2015, the Muskingum County Grand Jury indicted appellant on one count of burglary in violation of R.C. 2911.12(A)(3), a felony of the third degree, one count of theft (less than $1, 000.00) of an elderly victim in violation of R.C. 2913.02(A)(1), a felony of the fifth degree, and one count of possession of criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree. The burglary charge related to a burglary at the home of Wilma Good, who was at all relevant times living in a nursing home. At his arraignment on December 9, 2015, appellant entered a plea of not guilty to all of the charges.

         {¶3} Subsequently, a jury trial commenced on February 23, 2016. The jury, on the same date, found appellant guilty of all of the charges. As memorialized in an Entry filed on April 5, 2016, appellant was sentenced to thirty-six (36) months in prison.

         {¶4} Appellant now raises the following assignment of error on appeal:

         {¶5} I. THE CONVICTION FOR BURGLARY WAS NOT SUSTAINED BY SUFFICIENT PROOF OF AN 'OCCUPIED STRUCTURE'.

         I

         {¶6} Appellant, in his sole assignment of error, argues that his conviction for burglary is against the sufficiency of the evidence because there was not sufficient proof of an "occupied structure" as required by R.C. 2911.12(A)(3). We disagree.

         {¶7} The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held as follows: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a ...


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