The Sixth District Court of Appeals reversed a second degree felony burglary conviction because the State failed to prove that "any person other than an accomplice of the offender is present or likely to be present" as required by Ohio Revised Code Section 2911.12(A)(2). If no person is present or likely to be present, burglary under (A)(3) is a felony of the third degree which carries a potential prison term which is a full three years shorter than its second degree felony alternative.
In this case, as you can read by clicking here, the State indicted the defendant for the F2 version under section (A)(2) but then it failed to present sufficient evidence to the jury that anyone was present or likely to be present at the time of the burglary (that did not stop the jury from convicting, however). The Sixth District Court of Appeals determined that the victim, who went back to work after lunch at noon and did not return until six in the evening was not "likely to be present" because the State never presented evidence of when the burglary took place. If the burglary had taken place between 3:30 PM and 5:30 PM, the conviction may have been upheld since the homeowner testified that those two hours are the window in which he usually gets home from work.
This case cited a case I got reversed on appeal for a similar reason as you can read here.
