Wednesday, May 3, 2023
The Ohio Supreme Court vacated a burglary conviction and remanded the case to enter a conviction for criminal trespass on these facts
Timothy Huff testified that on the afternoon of September 18, 2020, he was landscaping at his home when he heard a car with a “loud muffler.” This “alerted” him, and he briefly went inside his house to retrieve his cellphone. When he came back outside, he made eye contact with Bertram, the driver of the car. Huff watched as Bertram drove past his house to a monastery up the road. When Bertram reached the monastery, he turned his car around, drove back down the road, and then parked the car on the road, near the end of Huff’s driveway.
Huff testified that Bertram then exited his car and started walking toward Huff’s garage, which was open. Huff told the jury that as Bertram approached the garage, Bertram was acting “very cavalier” and had “no sense of urgency at all.” Huff watched as Bertram strolled into the garage with a “smile on his * * * face.” Based on Bertram’s smile and cavalier attitude during the encounter, Huff did not initially believe that Bertram was intending to steal from him.
Huff testified that once Bertram entered the garage, he picked up a leaf blower worth around $500 and then walked back toward his car. As Bertram walked back toward his car, Huff “told him to stop, put it down.” Instead, Bertram placed the leaf blower into the passenger side of his car and then entered the car. Because Bertram’s car did not start immediately, Huff was able to take several close-up photos of Bertram. Once Bertram got the car started, he drove away.
Here, the evidence utterly failed to establish that during his trespass, Bertram engaged in any secret, sly, or clandestine conduct. Bertram did not act to avoid his discovery or to reduce the chance of his being noticed. Nor did Bertram deceive, mislead, lie to, or trick Huff into granting him entry into the garage.
We hold that to prove that a defendant trespassed by stealth or deception in a burglary case, the state must prove that the defendant actively avoided discovery or used deceptive conduct to gain entry to the structure. Because the evidence did not show that Bertram made any attempt to actively avoid his discovery or use deceptive conduct to gain entry into the open garage, the evidence was insufficient to convict him of burglary. However, when Bertram walked into the open garage without privilege to do so, he committed the lesser included offense of criminal trespass.
We reverse the judgment of the court of appeals, vacate Bertram’s burglary conviction and judicial sanction, and remand the case to the trial court for it to enter a judgment of conviction against Bertram for criminal trespass under R.C. 2911.21(A)(1) and sentence him accordingly.