¶1 Dissenting.
¶2 R.C. 2911.31 provides that "no person, with purpose to commit an offense, shall knowingly enter … any … safe … The majority acknowledges that the element "safe" is not defined in the statute, and that the object the defendant entered possessed the physical properties of a safe. However, the majority concludes, a fortiori, that because the safe was used as a display case, as a matter of law, it is not a "safe" for purposes of R.C. 2911.31.
¶3 Lacking a statutory definition of "safe," it was the jury's prerogative to determine, within the common usage and understanding of the term, whether the state proved this element beyond a reasonable doubt. The majority incorrectly concludes that the evidence as a matter of law was insufficient. The test for a court in reviewing sufficiency is simply to determine whether the state's evidence, "if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169, 172, 383 N.E.2d 132, 134. It is the mind of the trier of fact and not of the reviewing court that must be convinced. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356.
¶4 Furthermore, because the trial court submitted the issue to the jury for its determination upon an instruction which the majority has not found to be erroneous, the verdict was not against the manifest weight of the evidence. Assuming that the jury followed the trial court's instruction, the record does not demonstrate that the jury lost its way or created a miscarriage of justice. See State v. Abi-Sarkis (1988), 41 Ohio App. 3d 333, 535 N.E.2d 745. I would affirm the verdict and judgment of the trial court.