2014 Ohio 759
Ohio Ct. App.2014Background
- Dirmeyer, former boyfriend and mother’s daughter’s father, went to Smith’s home uninvited after a visitation dispute.
- They argued on the porch; Smith closed the door, and Dirmeyer punched the door.
- Smith opened the door, accused him of damage, and Dirmeyer forced entry and assaulted her.
- Dirmeyer immediately went to police and admitted the assault.
- A grand jury indicted Dirmeyer on aggravated burglary (Count 1) and domestic violence (Count 2).
- Dirmeyer was convicted by jury on both counts and received consecutive sentences totaling seven years and three months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury instruction mis-stated ownership vs. possession in burglary law | Dirmeyer contends Lilly controls; cotenant rights negate trespass. | Dirmeyer argues cotenant rights kept him from trespass; instruction erroneous. | No reversible error; instruction upheld under Lilly and related authority. |
| Whether Crim.R. 29(A) was properly denied given lack of trespass proof | State met elements via custody/control despite cotenancy. | No trespass since cotenant with equal possession rights. | Crim.R. 29(A) denied properly; sufficient evidence supported burglary conviction. |
Key Cases Cited
- State v. Lilly, 87 Ohio St.3d 97 (1999) (custody/control focus; dwelling protection; not limited to spouses)
- State v. Nelson, 2003-Ohio-5699 (11th Dist.) (applied Lilly to non-spousal cotenants)
- State v. Hinojosa, 2004-Ohio-1192 (12th Dist.) (former boyfriend; not required to be resident to convict)
- State v. Pickens, 2008-Ohio-1140 (3d Dist.) (former live-in boyfriend; access via exception)
- State v. O’Neal, 103 Ohio App.3d 151 (1st Dist.) (custody/possession analysis in burglary)
- State v. Conner, 2011-Ohio-146 (6th Dist.) (residual rights; due process exclusion considerations)
- State v. Bridgeman, 55 Ohio St.2d 261 (1978) (standard for Crim.R. 29 sufficiency)