
    The State of Ohio, Appellee, v. Caldwell, Appellant.
    (No. 82AP-589 —
    Decided February 17, 1983.)
    
      Mr. Michael Miller, prosecuting attorney, and Ms. JoyceS. Anderson, for ap-pellee.
    
      Ms. Andrea R. Yagoda, for appellant.
   Whiteside, P.J.

Defendant Daniel J. Caldwell appeals from his conviction of aggravated burglary in the Franklin County Court of Common Pleas and raises a single assignment of error as follows:

“The verdict of the trial court finding appellant guilty of aggravated burglary in violation of R.C. 2911.11 was against the manifest weight of the evidence and contrary to law.”

Defendant was interrupted by a neighbor of the home defendant was convicted of robbing, while defendant had his hand through the glass pane of the front door. Defendant first told the neighbor he had friends who lived there. Later, after being forced to the neighbor’s home, defendant tried to convince the neighbor to release him because he had done nothing to the neighbor. Defendant, when apprehended, told the neighbor he had friends in a car waiting on the street who would help him and “all he had to do was yell.” When he did yell, the car sped away with its lights off. Defendant at first tried to get away but was restrained by the neighbor until the police arrived.

Defendant testified that he was not attempting to commit a theft offense but was merely knocking on the glass door panel of what he thought was the home of friends of Laura Himes, one of the persons waiting in the car for him, that he knocked hard, and the glass pane broke causing his hand to go inside. Laura Himes testified that she was confused as to where her friends actually resided since the homes looked a lot alike, and they actually lived around the corner from the home defendant was accused of burglarizing. Laura Himes verified defendant’s story and stated that, when defendant yelled, the driver of the waiting car panicked and drove off.

This case presents a troublesome issue because defendant’s explanation of his conduct, if believed, would require application of the rule of State v. Kulig (1974), 37 Ohio St. 2d 157 [66 O.O.2d 351], since the circumstantial evidence then would permit a reasonable theory of innocence. However, if defendant’s explanation of his conduct is not believed, the circumstantial evidence presents no reasonable theory of innocence.

Only two witnesses testified on behalf of the state: the owner of the premises and the neighbor who apprehended defendant. The owner did not directly testify as to whether the door in question was locked or even closed tightly when he left.

While the neighbor at first testified that defendant either tried to or did unlock and open the door in question, he later admitted this was conjecture on his part predicated solely upon the fact defendant broke the glass door panel and had his hand inside the door. The neighbor admitted that he could not see defendant’s hand inside the door, that he did not know the location of the dead-bolt lock on the door, and that “the door was opened after the police arrived,” but he did not know whether it was open at the time he grabbed defendant.

The owner testified that he found broken glass inside the door and some glass near the refrigerator thirteen feet from the door. However, no police officer testified, and there is no evidence whether the police entered the house after they arrived at the scene.

The trial court was equivocal as to whether it believed defendant and his witnesses as to defendant’s purpose in going to the house, stating:

“Well, as I told you, I felt Mr. Caldwell got to that position by knocking on the window of the door, and he knocked too hard and broke the window, maybe, but the next door neighbor heard the glass breaking * * * it doesn’t make any difference as to how long the intention was in his mind. If the intention was there, that is it.”

Although the latter portion of the above comment states a correct proposition of law, it has no application here because the circumstantial evidence permits a reasonable inference of innocence as well as one of guilt if the trier of the facts finds that defendant did not have the requisite criminal intent prior to breaking the glass window in the door. The trial court implies that the breaking of the window was accidental, and the criminal intent was formed thereafter. Under such factual finding, the rule of Kulig would prevent a conviction because the remaining circumstances are insufficient to permit only an inference of criminal intent.

On the other hand, if the breaking of the door’s glass window is found to be intentional, there can only be a reasonable inference of criminal intent since it is unreasonable to infer that one would intentionally break the window to obtain the attention of the occupant of the home.

Accordingly, the assignment of error is well-taken, and this cause must be remanded for a new trial.

For the foregoing reasons, the assignment of error is sustained, and the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this opinion.

Judgment reversed and cause remanded.

Reilly and NORRIS, JJ., concur.  