Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
RELATED OFFENSES (013)
to the premises
Merger; Lesser included offenses
R.C. 2911.11 -- Aggravated burglary.
R.C. 2911.12 --
R.C. 2911.13 -- Breaking and entering.
R.C. 2909.01 -- "Occupied structure" defined.
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.
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
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
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
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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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
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
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
2911.11." Also see State v. Fowler (1983), 4 Ohio St. 3d 16;
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
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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.
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);
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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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
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
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
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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
State v. Jackson (1985), 21 Ohio App. 3d
157 -- Felonious assault and aggravated burglary are not allied offenses of
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 , 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
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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