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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

BURGLARY AND RELATED OFFENSES (013)

Also see Criminal Trespass.

 

Basic elements

Aggravating factors

Relationship to the premises

Intent

Merger; Lesser included offenses

 

R.C. 2911.11 -- Aggravated burglary.

R.C. 2911.12 -- Burglary.

R.C. 2911.13 -- Breaking and entering.

R.C. 2909.01 -- "Occupied structure" defined.

Basic elements

State v. Lynn, 185 Ohio App. 3d 390, 2009-Ohio-6812 – Aggravated burglary statute only requires proof that the defendant trespassed with the intent to commit any criminal offense, but the indictment here alleged an intent to commit a theft offense. Actual intent appeared to be an assault. The trial court overruled the state’s motion to amend the indictment accordingly, but provided the jury with interrogatories pertaining to both theft and assault. Defendant maintained this was a denial of due process. The grand jury did not have to specify an individual offense, but by choosing theft that became a part of their finding of probable cause, and placed the defendant on notice as to what he would have to defend against. Reversed.

State v. Calderwood, 194 Ohio App. 3d 438, 2011-Ohio-2913 – Neighbor took appliances and copper pipe from the vacant house next door. House blew up, leading to 67 counts of arson and one count of burglary. On appeal he unsuccessfully maintained the state failed to prove the building was an occupied structure, noting it had been vacant for two years. Focus is on the purpose of the structure, not whether it is occupied. Here a property company had acquired the building, hired people to check on it pending renovation.

State v. Johnson, 188 Ohio App. 3d 438, 2010-Ohio-3345 – Defendant was charged with breaking into an unoccupied structure with the purpose of committing a theft offense. House in question was undergoing extensive renovations and was “unoccupied” within in the common sense understanding of that term. But for purposes of the burglary statutes the house remained an unoccupied structure. Conviction reversed.

State v. Jackson, 188 Ohio App. 3d 803, 2010-Ohio-1846 – State failed to prove renter of trailer was likely to be at home at the time of break in. Trailer was rented from his parents. At the time of the break in he was at their home in bed, with no intention of going to the trailer. He could not state the lat time he had been at the trailer and did not state when he intended to return.

State v. Butler, 19 Ohio App. 3d 623, 2011-Ohio-1233, ¶28-31 – Entry through an open door can constitute “stealth” if it constitutes a secret or sly effort to gain entrance.

State v. Morton, 147 Ohio App. 3d 43, 2002-Ohio-813, ¶35-54 -- Though defendant was initially an invitee, trespass began when he refused to leave, and force occurred when he assaulted the victim. That assault also constituted the underlying felony element. Aggravated burglary conviction affirmed.

State v. Cooper, 168 Ohio App. 3d 378, 2006-Ohio-4004 -- Factual proffer supporting a no contest plea did not negate the trespass element of the burglary charge. Defendant was not a trespasser when he entered a convenience store during business hours, but he became one when he entered a separately secured office to steal cigarettes.

State v. Cantin (1999), 132 Ohio App. 3d 808 -- There is no presumption that someone is present or likely to be present in an occupied structure. To determine presence or likely presence a court may look at the usual schedule and intention of the residents. Where the resident had been gone for several days, and no arrangements had been made for someone to look after the house, likely presence was not proved.

State v. Dowell, 166 Ohio App. 3d 773, 2006-Ohio-2296 -- (1) An attached garage is a part of a permanent or temporary habitation. (2) Homeowner was in his car in the garage on his cell phone when the defendant walked in. Ducking and not leaving when the horn was sounded is somehow construed as stealth.

State v. Lane (1976), 50 Ohio App. 2d 41, 45-46 -- Force element may be satisfied by simply opening an unlocked door.

State v. Ward (1993), 85 Ohio App. 3d 537 -- Stealth means "any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within a residence of another without permission." This includes entering one house without making an effort to talk to person mowing the lawn, and a second house after first ringing the doorbell.

State v. Raines (1997), 124 Ohio App. 3d 430 -- Officer suspected defendant of drug activity and told him to stop. Instead he fled, continued to do so after being told he was under arrest, then forced his way into an apartment. Because there was no lawful arrest, burglary conviction premised on forced entry to commit resisting arrest reversed.

State v. Magnuson (1981), 2 Ohio App. 3d 20, 23. -- Defendant broke into two apartments while fleeing from the police. Because he had never been in actual custody, his conduct amounted to the misdemeanor offense of resisting arrest and not the felony of escape. Consequently the state failed to prove an intention to commit a felony or theft offense, an element of aggravated burglary.

State v. Giffin (1991), 62 Ohio App. 3d 396, 403 -- Non permissive entry may be proved through testimony of a codefendant without the testimony of the homeowner.

State v. Green (1984), 18 Ohio App. 3d 69 -- Headnote 1: "A structure which is dedicated and intended for residential use, and which is not presently occupied as a person's habitation, but which has neither been permanently abandoned nor vacant for a prolonged period of time, can be regarded as a structure 'maintained' as a dwelling within the meaning of R.C. 2909.01(A). That definition includes a dwelling house whose usual occupant is absent on a prolonged basis or is receiving long-term care in a nursing home, a summer cottage, or a residential rental unit which is temporarily vacant."

State v. Carroll (1980), 62 Ohio St. 2d 313 -- A Volkswagen bus does not qualify as an unoccupied structure.

State v. Ferguson (1991), 71 Ohio App. 3d 343, 348 -- Fenced-in area attached to a K-Mart construed as falling within "other structure...or any portion thereof."

State v. Collier (1984), 22 Ohio App. 3d 25 -- Headnote (3): "A defendant may not be convicted for burglary of a hotel room which, at the time of the alleged offense, was blocked off for repair and unavailable for lodgers, and therefore not an occupied structure under R.C. 2909.01(C)."

State v. Shears (1975), 47 Ohio Misc. 27 -- B&E proven when shown that the defendant entered a separately secured store in the Dayton Arcade from the main portion of the Arcade, though the store did not have a separate roof and was separated only by partition walls.

In re Johnson (1982), 8 Ohio App. 3d 289, 290 -- "There is no distinction between trespassing from the outside of a structure and trespassing from within the structure from a permitted area into a locked prohibited area. A person who gains lawful entry into part of a structure can trespass in another part of the structure..."

State v. Lyons (1985), 18 Ohio St. 3d 204, 205 -- "(W)e hold that for purposes of R.C. 2911.13(B), an otherwise unauthorized entry onto property restricted to those who pay a fee constitutes trespass where the person entering the property manifests no intention to pay the fee. Where that person enters the property with the purpose of committing a felony, such entry constitutes breaking and entering under the above statute."

State v. Powell (1991), 59 Ohio St. 3d 62 -- The crime of aggravated burglary continues so long as the burglar remains in the structure being burglarized. Consequently, if a gun is taken during the burglary, it may be the basis for a firearm specification.

State v. Huntley (1986), 30 Ohio App. 3d 29 -- When codefendants are jointly tried for aggravated burglary, and the jury returns verdicts finding one guilty of burglary and the other guilty of breaking and entering, the burglary verdict cannot stand because of the inconsistent findings as to whether or not the premises were an occupied structure.

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Aggravating factors

State v. Mitchell, 183 Ohio App. 3d 254, 2009-Ohio-3393 – State failed to prove apartment resident was likely to be present at the time of the burglary. He worked regularly, though the hours varied somewhat, but no evidence was presented that he might have been present during the afternoon hours when the break-in occurred.

State v. Hous, Greene App. No. 02CA116, 2004-Ohio-666 -- Omission of reference to deadly weapons in a purported aggravated burglary indictment rendered the indictment defective, notwithstanding mention in bill of particulars and jury instructions. The indictment was sufficient to charge burglary. ¶11: "It is fundamental that a bill of particulars cannot cure a defective indictment." [Citing State v. Grinnell (1996), 112 Ohio App. 3d 124.] Outright dismissal is not the remedy as despite defect, the court had jurisdiction to try the defendant for burglary and the jury's verdict serves as a finding all the elements were proven. Theft of guns sufficient for conviction on firearm spec.

State v. Clark (1995), 107 Ohio App. 3d 141 - Aggravated burglary conviction not supported by the evidence where the aggravating factor of inflicting physical harm occurred after the defendant had left the house. Though aggravating factors might otherwise be present, court follows the theory of culpability presented in the indictment and jury instructions.

State v. Lockhart (1996), 115 Ohio App. 3d 370 -- Evidence supported conviction for burglary, but not aggravated burglary, where sole occupant had regular work hours and there was no testimony that she on occasion returned home during those hours.

Glenn v. Dallman (6th Cir. 1982), 686 F. 2d 414 -- When the basis for an aggravated burglary charge is the presence or likely presence of any person, it is error to not instruct the jury as to that element.

State v. Kilby (1977), 50 Ohio St. 2d 21 -- Paragraph one of the syllabus: "Where the state proves that an occupied structure is a permanent dwelling house which is regularly inhabited, that the occupying family was in and out on the day in question, and that such house was burglarized when the family was temporarily absent, the state has presented sufficient evidence to support a charge of aggravated burglary under R.C. 2911.11." Also see State v. Fowler (1983), 4 Ohio St. 3d 16; State v. Veal (1975), 48 Ohio App. 2d 46.

State v. Wilson (1979), 58 Ohio St. 2d 52, 59-60 -- Proof that a building meets the statutory definition of an "occupied structure" does not create a presumption that the occupant was present or likely to be present.

State v. Durham (1976), 49 Ohio St. 2d 231 -- In an aggravated burglary prosecution where the presence or likely presence of the victim is an element, the state has not met its burden when the evidence establishes that the sole occupant of an apartment was regularly at work during certain hours of the day, and that there was only a minimal possibility that anyone might have been present at the time the burglary was committed.

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Relationship to premises

State v. Conner, 192 Ohio App. 3d 166, 2011-Ohio-146 -- ¶16-29: An ex parte temporary civil order in a divorce case cannot be the basis for the trespass element in a burglary or aggravated burglary conviction. The order in question was not a protective order. It merely gave the wife possession of the family home on a temporary basis while the divorce was pending.

State v. Allen, Cuyahoga App. No. 82618, 2003-Ohio-6908, -- Because the offense of burglary is not defined in terms of conduct towards another person, multiple counts merge where they differ only as to the name of the resident. Nor did the expressed fears of the victims, absent actual harm, support the conclusion this was the worst form of the offense, justifying imposition of the maximum sentence.

State v. Barksdale (1983), 2 Ohio St. 3d 126 -- Syllabus: "For purposes of R.C. 2911.13(B), a business invitee or licensee, who commits a felony while present on another's land or premises, does not thereby become a trespasser." (Evidently the defendant stole something from a locked car on a dealer's lot open to the public.) Compare State v. Steffen (1987), 31 Ohio St.3d 111, 114 -- Though initial entry may have been lawful, privilege to remain was revoked when assault on occupant began.

State v. Mowery (1982), 1 Ohio St. 3d 192, 200 -- "There is no requirement in R.C. 2911.11 that a victim of an aggravated burglary must own or reside in the burglarized structure."

State v. Lily (1999), 87 Ohio St. 3d 97 -- Syllabus: "(1) A spouse may be criminally liable for trespass and/or burglary in the dwelling of the other spouse who is exercising custody or control over the dwelling. (2) R.C. 3103.04 is inapplicable in criminal cases." Also see State v. Winbush (1975), 44 Ohio App. 2d 256, 258; State v. Herrin (1982), 6 Ohio App. 3d 68. Compare State v. Middleton (1993), 85 Ohio App. 3d 403 (importance of a court order excluding husband from premises); State v. Brooks (1995), 101 Ohio App. 3d 260 (boyfriend had moved from apartment he and girlfriend formerly shared with lessee who had expressly refused him admission); State v. Phillips (1912), 85 Ohio St. 317; State v. Herder (1979), 65 Ohio App. 2d 70.

State v. O'Neal (1995), 103 Ohio App. 3d 151 -- Whether or not husband was a trespasser in the marital home was a factual issue to be determined at trial and not through a pretrial motion to dismiss. Trespass was an element of burglary, and in turn the predicate for an aggravated murder charge. On an advisory basis at p. 155: "We hold that in the absence of a restraining order or an order granting one party exclusive possession of the marital residence, the question of whether one spouse has the sole possessory interest in the house depends on whether the evidence shows that both parties had made the decision to live in separate places. Both parties must have understood the possessory interest of one was being relinquished, even though it was relinquished begrudgingly or reluctantly. In the absence of such a showing, there can be no finding of trespass and, hence, no aggravated burglary." Also see State v. O'Neal (2000), 87 Ohio St. 3d 402.

State v. Goines (1996), 111 Ohio App. 3d 840 -- Tenant was convicted of breaking and entering for having broken through the door of an apartment he had been evicted from. Plain error for the prosecutor to have questioned the defendant concerning two burglary convictions, which were remote in time and were not sufficiently similar for admission under R.C. 2945.59 and Evid. R. 404(B).

State v. Green (1984), 18 Ohio App. 3d 68 -- Where the waiting room of a doctor's office was left open to accommodate patients, even though no one was actually present in the building, the office qualifies as an "occupied structure" for purposes of the burglary statute, since there remained the likelihood that someone would be present.

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Intent

State v. Gardner, 118 Ohio St. 3d 420, 2008-Ohio-2787 – As to the mens rea element that the offender trespass with the intent to commit any criminal offense, the jury need not be instructed that they must be unanimous as to what that offense is, though it would be the better practice to instruct on the elements of the predicate offense. Schad v. Arizona (1991), 501 U.S. 813, followed. Though due process considerations apply, there is no right under the federal constitution to a unanimous jury verdict in a criminal case. That right exists by rule in Ohio. The majority draws a distinction between alternate means, and multiple acts statutes. See dissent.

State v. Fontes (2000), 87 Ohio St. 3d 527 -- Syllabus: "For purposes of defining the offense of aggravated burglary pursuant to R.C. 2911.11, a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass." Court rejects State v. Lewis (1992), 78 Ohio App. 3d 518, 521-522 and State v. Waszilly (1995), 105 Ohio App. 3d 510, focusing on the intent at the time of forced entry.

State v. Williams (1997), 123 Ohio App. 3d 178 -- Defendant and others forced entry, then threatened victim through an upstairs door they attempted to force open. Facts permitted inference of intent to commit felonious assault, thus supporting aggravated burglary conviction.

State v. Jones (1981), 2 Ohio App. 3d 20 -- The intention to commit a felony or theft offense may be formed after the trespass has already commenced. Also see State v. Houseman (1990), 70 Ohio App. 3d 499, 513.

In re L.D. (1993), 63 Ohio Misc. 2d 303 -- There being no indication that an intent to steal had been formed before a 13 year old girl went through the unlocked door of a friend's house and stole a pack of cigarettes, and in the interest of justice, court amends aggravated burglary complaint to charge criminal trespass and petty theft.

State v. Levingston (1995), 106 Ohio App. 3d 433, 436 -- "Where a defendant is apprehended within a structure that he has forcibly entered, there is a reasonable inference that he did so with the intent to commit a theft offense in the absence of circumstances giving rise to a different inference." Jury was not required to accept defendant's conflicting alternate explanations. Also see State v. Flowers (1984), 16 Ohio App. 3d 313, 315; State v. Perkins (1974), 40 Ohio App. 2d 406 (defendant halfway through window).

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Merger; Lesser included offenses

State v. Marriott, 189 Ohio App. 3d 98, 2010-Ohio-3115 – Defendant was convicted of identically phrased counts of aggravated burglary, and given concurrent sentences. Two people were in the house and multiple items were taken. Majority holds the offenses merged. With respect to burglary, trespass is the basis for the charge, not harm or potential harm to persons. Additional factors only determine the potential penalty.

State v. Crump, 190 Ohio App. 3d 286, 2010-Ohio-5263 – Since burglary requires proof the offender trespassed with the intent to commit “any criminal offense” theft is not a lesser included offense since it is only one of multiple possible predicate offenses.

State v. Adams (1991), 74 Ohio App. 3d 140 -- Since breaking and entering is a lesser included offense of aggravated burglary, attempted breaking and entering is a lesser included offense of attempted aggravated burglary. Compare State v. Collier (1984), 22 Ohio App. 3d 25 -- Since the offense of breaking and entering requires proof that the structure is unoccupied, it is not a lesser included offense of burglary. (Better analysis would be that the failure to prove that a structure is occupied means that it is unoccupied.)

State v. Scruggs (1980), 18 Ohio Ops. 3d 154 -- Criminal trespass is a lesser included offense to aggravated burglary.

State v. Murphy (1983), 9 Ohio App. 3d 248 -- Criminal trespass is a lesser included offense to breaking and entering.

State v. Harris (1979), 65 Ohio App. 2d 182 -- Grand theft is not a lesser included offense of burglary.

State v. Moss (1982), 69 Ohio St. 2d 515 -- Aggravated murder and aggravated burglary do not merge for purposes of sentencing.

State v. Jackson (1985), 21 Ohio App. 3d 157 -- Felonious assault and aggravated burglary are not allied offenses of similar import.

State v. Mitchell (1983), 6 Ohio St. 3d 416 -- Theft and aggravated burglary are not allied offenses of similar import, therefore, separate sentences may be imposed. Also see State v. Brown (1981), 3 Ohio App. 3d 131; State v. Dunihue (1984), 20 Ohio App. 3d 210 (theft and B&E not allied offenses of similar import); State v. Parson (1983), 6 Ohio St. 3d 442, 446 (theft and aggravated burglary are not allied offenses of similar import but theft and aggravated robbery are).

State v. Talley (1985), 18 Ohio St. 3d 152 -- Syllabus: "Pursuant to R.C. 2941.25, the offenses of breaking and entering, grand theft, and possessing criminal tools are not allied offenses of similar import inasmuch as these offenses have elements which do not correspond to such a degree that the commission of one will result in the commission of the other. Accordingly, inquiry into whether the crimes were committed with a separate animus as to each is unnecessary. (State v. Mitchell [1983], 6 Ohio St. 3d 415, followed.)"

State v. Frazier (1979), 58 Ohio St. 2d 253 -- Since aggravated burglary was a completed offense once the defendant had gained entry, the ensuing robbery was committed separately. Multiple sentences allowed.

State v. Carroll (1984), 14 Ohio App. 3d 51 -- Breaking and entering of bank and safecracking charges found not to merge.

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