State v. Middleton

• Decision Date: 26 March 1993
• Docket Number: No. 479,479
• Parties: The STATE of Ohio, Appellee, v. MIDDLETON, Appellant.
• Court: Ohio Court of Appeals

Page 403

85 Ohio App.3d 403

619 N.E.2d 1113

The STATE of Ohio, Appellee, v. MIDDLETON, Appellant.

No. 479.

Court of Appeals of Ohio, Fourth District, Vinton County.

Decided March 26, 1993.

John G. Gosling, Vinton County, Pros. Atty., for appellee.

Leonard F. Holzapfel, Wellston, for appellant.

PETER B. ABELE, Judge.

This is an appeal from a judgment of conviction and sentence entered by the Vinton County Common Pleas Court. The jury found Jeffrey L. Middleton, defendant below and appellant herein, guilty of burglary in violation of R.C. 2911.12, an aggravated third degree felony, and guilty of domestic violence in violation of R.C. 2919.25, a first degree misdemeanor.

Appellant assigns the following error:

"The trial court erred in ruling that a spouse can be guilty of burglary at the spouse's marital residence."

On December 19, 1991, the grand jury indicted appellant on one count of burglary with a physical harm specification, and one count of domestic violence. The burglary count alleged appellant trespassed in the residence of Judy Middleton on or about December 11, 1991. The domestic violence count alleged appellant committed domestic violence against Judy Middleton on the same date. The indictment did not specify any relationship between appellant and Judy Middleton.

On April 22, 1992, appellant filed a motion to dismiss the burglary count. Appellant, noting the victim is his wife, argued that R.C. 3103.04 prevents a finding that he trespassed in her home, an essential element of the crime of burglary. Appellant cited State v. Herder (1979), 65 Ohio App.2d 70, 19 O.O.3d 47, 415 N.E.2d 1000, for the proposition that a spouse cannot be found guilty of trespassing in the dwelling of the other spouse. In Herder, 65 Ohio App.2d at 75-76, 19 O.O.3d at 51, 415 N.E.2d at 1004, the court held in pertinent part:

"In light of the clear policy expression set forth in R.C. 3103.04, one spouse cannot be criminally liable for trespass in the dwelling of the other."

We note appellee did not file a written response to appellant's motion to dismiss.

On April 29, 1992, the court held a hearing on the motion. The parties presented no evidence at the hearing. The prosecutor, however, stated that: (1) the parties were married at the time of the crime; and (2) no court order prevented appellant from entering his wife's home at the time of the alleged crimes. The prosecutor stated in pertinent part as follows:

" * * * In any event, Your Honor, factually stated it would appear that the parties were in fact married and continue to be. There is a divorce with a restraining order applied for after the operative facts of the 11th of December, 1991."

Appellant's attorney agreed with the prosecutor's statement of the facts. Later during the hearing, the prosecutor referred to Judy Middleton as appellant's wife.

The trial court appeared to accept the prosecutor's statement of facts, but did not dismiss the action. The trial court ruled that the R.C. 3103.04 provision that neither spouse can be excluded from the dwelling of the other spouse does not apply to bar a prosecution of one spouse for burglary committed in the residence of the other spouse. The court reasoned that trespass is only one element of burglary. The court also reasoned that R.C. 3103.04 appears not among the criminal statutes, but rather appears among the domestic relations statutes. The court stated in pertinent part:

" * * * As I look at the Statute and read them in the context, [R.C.] 3103.04 appears, of course, in the Domestic Relations section and appears in juxtaposition of several Statutes that relate to property rights of husbands and wives, especially since the first paragraph deals with other matters related to dower and so forth, or not in the first paragraph, first sentence. I think that has to be also read in pari materia with the Criminal Statute itself. Now in this particular case, we're talking about burglary, and that's the one that causes so much trouble. I don't think burglary has as it's [sic ] essence the trespass. I think burglary has as it's [sic ] essence the trespass coupled with an attempt to commit an offense. The burglary Statute takes various forms. You can trespass by force, stealth, deception, etcetera, with intent to commit a felony, with intent to commit a misdemeanor, with intent to commit a theft offense. But the real key to burglary is the trespass coupled with the intent, and for that reason I think it's distinguishable from the Civil Statute. Looking at it in a different light however I think there's another ground for distinguishing the Criminal Statute from the Civil Statute, and that is the fact that while it's true husband and wife have privileges with respect to the property of the other I think those Statutes were meant to be enforced civilly, and I say that based upon the place where they are located. I don't think they were meant to affect criminal liabilities."

After the court announced its decision denying appellant's motion to dismiss, the court recessed the hearing. After the recess, the parties announced they had reached a plea agreement whereby appellant would plead no contest to burglary and plead guilty to domestic violence in exchange for the prosecutor's offer to dismiss the physical harm specification. The prosecutor explained the plea agreement in pertinent part as follows:

"The State has a full understanding with a plea of No Contest would be made with a--I believe a stipulation of the facts, withholding the Defendant's intent to file an appeal relative to the privileged issue, which was subject to the defense filing of a Motion to Dismiss the immediate--in the immediate past, and the Court's subsequent ruling, overruling the Motion to Dismiss having the expectations there would be an appeal taken on those issues."

The court informed appellant that his no contest plea on the burglary count would be an admission of the truth of the facts alleged in the indictment. The prosecutor specifically mentioned that appellant was admitting the facts in the indictment "to the point where" appellant claims the law states a spouse cannot be found guilty of trespassing into the other spouse's dwelling.

The court accepted the plea agreement and found appellant guilty on both counts. The court sentenced appellant to one year on the burglary count and six months on the domestic violence count.

Appellant filed a timely notice of appeal.

We note Crim.R. 12(H) permitted appellant to plead no contest on the burglary count and, at the same time, preserve his right to appeal the trial court's decision on his motion to dismiss the burglary count. Crim.R. 12(H) provides:

"The plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence." Appellant's no contest plea admitted the facts stated in the indictment. ¹ Appellant's motion to dismiss, however, did not contest the truth of those facts, but rather stated that R.C. 3103.04 gave him a privilege to enter the home of his wife.

I

In his sole assignment of error, appellant asserts the trial court erred by ruling that a spouse can be found guilty of burglary committed at the other spouse's residence. In particular, appellant argues the crime of burglary includes the element of trespass, ² and argues R.C. 3103.04 states one spouse cannot be excluded from the other spouse's dwelling. We agree with appellant.

R.C. 3103.04 provides in pertinent part:

"Neither husband nor wife has any interest in the property of the other * * *. Neither can be excluded from the other's dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction." (Emphasis added.)

In State v. Herder (1979), 65 Ohio App.2d 70, 19 O.O.3d 47, 415 N.E.2d 1000, the court held that the R.C. 3103.04 ban against exclusion of one spouse from the dwelling of the other spouse prevents a finding of criminal trespass against the first spouse. The court wrote:

"Under the law of Ohio, neither a husband nor a wife may be excluded from the other's dwelling, even when the parties are living separate and apart, unless a court order is obtained. R.C. 3103.04 expressly provides as follows:

" * * *

"In light of the clear policy expression set forth in R.C. 3103.04, one spouse cannot be criminally liable for trespass in the dwelling of the other. * * * " Emphasis added.) Id., 65 Ohio App.2d at 75-76, 19 O.O.3d at 50-51, 415 N.E.2d at 1003-1004. In State v. Herrin (1982), 6 Ohio App.3d 68, 6 OBR 535, 453 N.E.2d 1104, the court followed Herder, but found it and R.C. 3103.04 inapplicable. The Herrin court noted that a court order restricted Herrin from entering his wife's dwelling. The R.C. 3103.04 privilege does not apply where a court order restricts the access of one spouse to the dwelling...