In re State v. K.L.P.W., 2017 Ohio 5671

Background

In Oct. 2015, 12‑year‑old appellant K.L.P.W. was charged in juvenile court with burglary (R.C. 2911.12(B)) for forcing entry into Scott and Marybeth Gray’s garage with two other girls. Neighbor Beverly Luncan witnessed the entry and called police; the girls were arrested on the property five minutes later.
Magistrate adjudicated K.L.P.W. a delinquent child; juvenile court denied her objections and adopted the adjudication; disposition included 5 days (suspended) and 20 hours community service.
On appeal, K.L.P.W. argued insufficient evidence: (1) court applied wrong statutory term (occupied structure vs. habitation); (2) the Grays’ house was not a habitation/domicile; and (3) no evidence anyone other than accomplices was present or likely to be present.
The court applied the standard for sufficiency of evidence used in adult criminal cases (Jenks) and deferred to the factfinder on credibility.
Majority concluded the house was a habitation/domicile based on the Grays’ testimony (they lived there as primary home, visited multiple times weekly, kept belongings there, last went two days earlier, family had keys and checked property) and that a person was likely to be present; therefore sufficiency supported the burglary adjudication.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether juvenile adjudication for burglary was supported by sufficient evidence	State: eyewitness and police testimony, plus homeowners’ testimony, show forcible entry of an occupied habitation where someone was likely to be present	K.L.P.W.: evidence insufficient — wrong statutory term used; house not a habitation/domicile; no proof anyone other than accomplices was present or likely to be present	Affirmed: sufficiency met; "occupied structure" includes "permanent or temporary habitation;" Grays’ house was their domicile; circumstances supported that someone was likely to be present
Whether "occupied structure" vs "habitation" distinction requires reversal	K.L.P.W.: court applied "occupied structure" rather than narrower "habitation"	State: occupied structure definition expressly includes permanent/temporary habitation	Rejected: occupied structure definition includes habitation; argument without merit
Whether the Grays’ property was a "habitation/domicile"	K.L.P.W.: evidence showed abandonment, forwarded mail, spent most time elsewhere, intended to move	State: homeowners testified it was primary home for 13 years; they visited several times weekly, kept belongings, sometimes spent nights, family maintained/checked property	Rejected: testimony supported domicile (residence in fact + intent to make home)
Whether a person was "present or likely to be present" when trespass occurred	K.L.P.W.: only establishes possibility; visits were sporadic and not tied to the day/time of trespass	State: regular visits, recent presence (two days earlier), family members had keys and checked property — supports likelihood	Rejected: court found circumstances justified a logical expectation that someone could be present; sufficiency satisfied

Key Cases Cited

State v. Jenks, 61 Ohio St.3d 259 (standard for sufficiency review in criminal cases)
State v. Kilby, 50 Ohio St.2d 21 ("likely to be present" satisfied when dwelling regularly inhabited and occupants in and out on day in question)
State v. Fowler, 4 Ohio St.3d 16 (no presumption a dwelling’s burglary shows someone likely to be present)
State v. Jackson, 188 Ohio App.3d 803 (use of residence alone insufficient to prove someone likely to be present)
State v. Myers, 193 Ohio App.3d 632 (definition of domicile: residence in fact plus intent to make it home)