State v. Lane
| Citation | 361 N.E.2d 535,4 O.O.3d 24,50 Ohio App.2d 41 |
| Parties | , 4 O.O.3d 24 The STATE of Ohio, Appellee, v. LANE, Appellant. |
| Decision Date | 14 October 1976 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
The language used in R.C. 2901.01(A) applies to both persons and things, and a jury instruction defining force, under a charge of aggravated burglary, as 'effort' exerted, rather than 'violence,' to gain entrance into a residence is valid.
George C. Smith, Pros. Atty., and Alan C. Travis, Columbus, for appellee.
Robert Suhr, Columbus, for appellant.
Defendant appeals from his conviction of aggravated burglary in the Franklin County Court of Common Pleas and raises the following seven assignments of error in support of his appeal:
1. 'The trial court committed reversible error in refusing to charge on the lesser included offenses of breaking and entering and criminal trespass after being specifically requested to do so by the defendant.'
2. 'The trial court committed reversible error in failing to apply the correct test as to the quantum of evidence required in ruling upon a motion made by defendant's counsel pursuant to Rule 29 of the Ohio Rules of Criminal Procedure at the conclusion of the prosecution's case.'
3. 'The trial court committed reversible error by failing to properly charge the jury as to the correct statutory definition of the term force as an element of the offense of aggravated burglary.'
4.
5. 'Where a warrant for the defendant's arrest is filed during June of a particular year and no reasonable diligence is exercised by the prosecution in executing such warrant until some five months later, and where the defendant was readily available to the prosecution, had the prosecution exercised such reasonable diligence and further where such failure to exercise such reasonable diligence results in a length of delay which causes prejudice to the defendant's case, the defendant has been denied his right to a speedy trial as is guaranteed by Article I, Section 10 of the Constitution of the State of Ohio, and the Sixth and Fourteenth Amendments of the Constitution of the United States.'
6. 'Error is committed to the prejudice of the defendant where the prosecution, during voir dire examination of the jurors, specifically represents to the said jurors that the prosecution is not bound to prove its case beyond a reasonable doubt in the criminal case, as such burden is impossible to meet, and extracts commitments from said jurors that said jurors will not hold the prosecution to prove its case beyond a reasonable doubt and further when the prosecution represents to the jurors that it is not held to a higher burden of proof than that of beyond a reasonable doubt when clearly there is no higher burden of proof recognized anywhere in our system of jurisprudence, the defendant's case is irreparably prejudiced and a new trial is required.'
7. 'Where the evidence relating to an essential element of the crime charged in an indictment is based upon circumstantial evidence is contradicted by direct evidence and where such circumstantial evidence is consistent with a reasonable theory of the defendant's innocence, a conviction for such crime is against the manifest weight of the evidence and constitutes reversible error.'
The victim of the alleged crime testified that at about 9:30 a. m., December 30, 1974, he awakened to discover a man taking some money out of his wallet which he had left in his pants pocket hanging on a valet around the bed in which he was lying. The man put the wallet back in the victim's pants pocket and said, 'just visiting,' and turned around and walked out. The victim found the door to his apartment open and several items from the apartment stacked by the door.
The victim had locked the door the previous night; however, a lady friend had spent the night with him and had left earlier that morning. The victim testified that the lady friend had left the door to his apartment shut but unlocked because she had her arms full. The lady friend did not testify.
After reporting the incident to the police, the victim was shown a book of approximately 240 photographs but was unable to make an identification. Several months later, the victim observed the man he had seen in his apartment leaving an adjacent building. After reporting this to the police, on June 25, 1975, the victim was shown a book containing some 280 photographs and identified a photograph of defendant as being that of the man that had been in his apartment the previous December.
By the first assignment of error, defendant contends that the trial court erred in refusing to charge the jury as to the claimed lesser included offenses of breaking and entering and criminal trespass.
Defendant was convicted of aggravated burglary, which R.C. 2911.11(A) defines with reference to this case, as follows.
'(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: * * *
'(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.'
Criminal trespass as could be pertinent to this case is defined by R.C. 2911.21(A)(1), as follows:
'(A) No person, without privilege to do so, shall do any of the following:
'(1) Knowingly enter or remain on the land or premises of another * * *.'
R.C. 2911.13 defines breaking and entering, in part, as follows:
'(A) No person by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony.
'(B) No person shall trespass on the land or premises of another, with purpose to commit a felony.'
Clearly, it would not have been proper to have charged the jury upon criminal trespass. The evidence is clear that defendant, if the perpetrator of the crime, intended to commit a theft offense. The evidence would not have permitted the jury properly to have found that defendant merely entered the apartment without permission.
As to breaking and entering, as defined by R.C. 2911.13(A), a charge upon a lesser included offense would not have been proper since the evidence clearly indicates that the apartment was an occupied, not an unoccupied structure which is one distinguishing feature between R.C. 2911.13(A) and R.C. 2911.11(A). Defendant contended at trial that the court should have charged upon R.C. 2911.13(B), contending that the distinguishing feature was whether or not force, stealth, or deception was used by defendant in entering the apartment. Even assuming that this be correct, a charge would not have been proper in this case since breaking and entering as defined by R.C. 2911.13(B) could not have been a lesser included offense under the evidence adduced.
A necessary element of R.C. 2911.13(B) is that the trespass be 'with purpose to commit a felony.' Although the intent to commit a felony may be an element of aggravated burglary under R.C. 2911.11(A), intent or purpose to commit a theft offense may be substituted for intent to commit a felony. Clearly, a theft offense may be either a felony or a misdemeanor, depending upon the value of the property involved. However, in order for there to be an intent to commit a theft offense, it is not necessary to prove the value of the property intended to be stolen. If, however, the theft offense is to constitute a felony, it is necessary to prove the value of the property intended to be stolen to be at least $150. There was no evidence in this case indicating...
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... ... sly or clandestine act to avoid discovery and to gain ... entrance into or to remain within a residence of another ... without permission.'" State v. Ward, 85 ... Ohio App.3d 537, 540, 620 N.E.2d 168 (3d Dist.1993), quoting ... State v. Lane, 50 Ohio App.2d 41, 47, 4 O.O.3d 24, ... 361 N.E.2d 535 (10th Dist.1976) ... {¶27} ... In the case before us, appellant contends that entering an ... open garage during daylight while the homeowner watches does ... not constitute trespass by force, stealth, or deception ... ...
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...2008-Ohio-6168, at ¶93, quoting State v. Ward (1993), 85 Ohio App.3d 537, 540, 620 N.E.2d 168, in turn, quoting State v. Lane (1976), 50 Ohio App.2d 41, 47, 361 N.E.2d 535. {¶70} Mrs. Burns testified that on the night of the murder, she and Mr. Burns were in their upstairs bathroom. She was......
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State v. Nolan, 2007 Ohio 1299 (Ohio App. 3/22/2007)
...or thing." {¶ 20} "Force may properly be defined as 'effort' rather than 'violence' in a charge to the jury." State v. Lane (1976), 50 Ohio App.2d 41, 45, 361 N.E.2d 535. {¶ 21} In State v. Muniz, 162 Ohio App.3d 198, 2005-Ohio-3580, 832 N.E.2d 1279, the court found sufficient evidence of f......
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