2019 Ohio 3972
Ohio Ct. App.2019Background
- On May 31, 2017 D.B. and R.B. discovered their 34.5-foot hard-body travel trailer at a Storage Zone lot had been entered and electronics stolen; the interior was in disarray and a cigarette butt was found inside.
- For ~two years the trailer had been winterized, covered, and stored in an open storage area behind storage lockers; owners had accessed it only sporadically and had to prepare it for use before camping.
- BCI testing matched DNA from the cigarette butt to Andrew Fazenbaker; Fazenbaker had a prior theft conviction from Storage Zone.
- A Summit County grand jury indicted Fazenbaker for one count of breaking and entering (R.C. 2911.13(A)); he pleaded not guilty, was tried, convicted by a jury, and sentenced to 12 months consecutive to another sentence.
- On appeal Fazenbaker argued (inter alia) insufficiency of evidence that the trailer qualified as an "unoccupied structure" and that the trial court erred by denying a Crim.R. 29 motion; the Ninth District reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was sufficient to prove the trailer was an "unoccupied structure" under R.C. 2911.13(A) | State: Trailer was stored and unoccupied at the time; jury could infer unoccupied structure from storage and lack of habitation | Fazenbaker: Trailer was a structure potentially adapted to habitation and its storage/winterization showed it was not an "unoccupied structure" as required | Court: Evidence insufficient — trailer was winterized, covered, in storage, not maintained or adapted for overnight use; cannot be found an "unoccupied structure" for R.C. 2911.13(A) |
| Whether trial court erred in denying Crim.R. 29 motion (judgment of acquittal) | State: Circumstantial evidence (entry, disarray, DNA) permitted denial | Fazenbaker: Same as above — insufficiency of proof on statutory element | Court: Error to deny Crim.R. 29; first and third assignments sustained and conviction reversed |
| Whether verdict was against manifest weight of the evidence | State: (argued at trial/appeal) evidence supported conviction | Fazenbaker: Verdict against manifest weight given lack of proof of element | Court: Not reached — rendered moot by reversal on sufficiency/Crim.R.29 issues |
| Claims of jury-instruction/due-process error and sentencing (consecutive) | State: (responded below) instructional and sentencing rulings proper | Fazenbaker: Jury mischarged on "unoccupied structure," prosecutor asked prejudicial question, and sentence improper/consecutive as punishment for exercising trial right | Court: Not reached — rendered moot by reversal on primary sufficiency issue |
Key Cases Cited
- State v. Carroll, 62 Ohio St.2d 313 (1980) (examining whether a motor vehicle qualified as an "unoccupied structure" and directing courts to R.C. 2909.01's definition of "occupied structure" for guidance)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (standard for reviewing sufficiency of the evidence: view evidence in light most favorable to the prosecution)
- State v. Bridgeman, 55 Ohio St.2d 261 (1978) (Crim.R. 29 and appellate standard that reasonable minds must differ to overturn denial of acquittal)
- State v. Greene, 18 Ohio App.3d 69 (10th Dist. 1984) (structure maintained for residential use may be "occupied" even when temporarily unoccupied)