GALLIPOLIS — A Gallia County man sentenced to serve 21 years and nine months in the Ohio Department of Rehabilitation and Correction recently had a portion of his sentence overturned in the Fourth Appellate District of Ohio.
Ryan C. Henry, 23, Gallipolis, was initially charged with three counts of felony theft, two second-degree-felony burglary counts, and two counts of felony breaking and entering in the Gallia County Court of Common Pleas for offenses that occurred late in 2009 and early in 2010.
Henry was arraigned in the common pleas court and pleaded not guilty to these charges in February 2010, and was later scheduled to appear for a plea change hearing on April 5, 2010; however, during the hearing, the defendant advised the court that he did not wish to proceed with the plea agreement and instead wished to proceed to a jury trial in this case.
Following a one-day jury trial on June 21, 2010, the jury received the case at approximately 6:55 p.m. on June 21 and returned with a verdict at approximately 9:11 p.m.
Henry was found not guilty on one fifth-degree-felony breaking and entering charge stemming from an incident on December 30, 2009, and was found guilty on all other counts.
During a sentencing hearing on June 30, 2010, Henry was sentenced to a total of 17 months of incarceration for the theft of two all-terrain vehicles (1996 and 2008 Honda four-wheelers) on December 30, 2009, and on January 1, 2010; four years for the theft of a firearm (a muzzle loader with scope taken from a residence on Georges Creek on January 1, 2010); 11 months for one count of breaking and entering; and seven years for each count of burglary — offenses which occurred on December 28, 2009, and January 1, 2010, at residences located on Georges Creek and Addison Pike.
The sentences imposed under each count were ordered to be served consecutively for a total of 21 years and nine months of incarceration.
This case was later brought before the Fourth District Court of Appeals, and an opinion filed on January 25, 2012, and signed by Judge Roger L. Kline of the appellate court, states that a portion of the original judgement should be reversed and further ordered that this case be remanded to the Gallia County Court of Common Pleas Court for a modification of the judgement of conviction.
In Henry’s appeal, counsel for the defendant argued, among other points, that, during trial, the prosecution did not introduce specific evidence that a person other than Henry’s accomplice was present or likely to be present during the two burglaries — a fact that modifies the degree of severity of the said charges. Additionally, the defendant argued that, at trial, no evidence was presented to stipulate the operability or inoperability of the muzzle-loader in relation to the theft-of-a-firearm charge — a fact that also greatly impacts the severity of the theft charge in this case.
After reviewing the case, the appeals court agreed with the argument that evidence relating to whether or not a person other than Henry or his accomplice was present or likely to be present during the two burglaries was not sufficient during trial and stated that, in this instance, Henry may be convicted of a lesser, third-degree offense of burglary.
The entry states, “In prosecuting the two burglary counts, the state failed to adduce specific evidence on the present-or-likely-to-be-present issue. And based on the state’s evidence, there was no reasonable presumption that a person other than an accomplice was present or likely to be present. Accordingly, we find that insufficient evidence supports Henry’s two burglary convictions under R.C. 2911.12 (A)(2).”
The appeals court further agrees with Henry’s argument that insufficient evidence was present during trial to convict him of a theft of a firearm charge — a third degree felony in this case.
Accordingly, the state must present evidence in regard to the operability of the firearm at the time of the offense as a “firearm,” in regard to this charge, means any “deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant.”
The appeals court, in its entry, maintains that while the state produced evidence that Henry stole the muzzle-loader, none of the evidence related to the operability of the firearm.
“The evidence demonstrates that Henry stole the muzzle-loader. Henry does not dispute this fact. But the state did not prove that Henry stole a firearm as defined by the statute, and the state did not charge Henry with theft based on the value of the stolen muzzle-loader. Therefore, for count four, Henry may be convicted only of petty theft,” the entry reads.
On June 12, 2012, the matter was again before the Common Pleas Court of Gallia County and a portion of the judgement was reversed in this case.
As to Henry’s second-degree burglary charges, they were modified to third-degree burglary charges and he was re-sentenced to serve 30 months in a state penal facility for each burglary count, sentences to be serve consecutively with each other and consecutively with his previous sentences. The previous sentence ordered that Henry serve seven years of imprisonment for each burglary charge.
The court further modified the defendant’s “theft of a firearm” charge and entered a conviction for misdemeanor petty theft, a misdemeanor in the first degree. Henry was re-sentenced to six months on this count, a sentenced to be serve concurrently with his other sentences. His previous sentence was four years four this charge.
As a result of the modification to the convictions, Henry will now spend a total of eight years and nine months in the state prison system.
According to the opinion signed by Judge Roger L. Kline of the Fourth District Court of Appeals, Judges Peter B. Abele and William J. Harsha concur in their judgement and opinion in this matter.