2021 Ohio 3447
Ohio Ct. App.2021Background
- In May 2017 owners found their hard-body travel trailer (bedroom, living area, bath, kitchenette) at a storage facility had been broken into and electronics stolen; the trailer was winterized, covered, stored, and unused since late 2015.
- Summit County indicted Andrew Fazenbaker for one count of breaking and entering; a cigarette butt found inside was later DNA-tested and matched Fazenbaker.
- A jury convicted Fazenbaker; the trial court sentenced him to 12 months’ imprisonment and ordered that sentence to run consecutively to an unrelated 18‑month sentence he was already serving.
- On initial appeal this Court reversed on sufficiency grounds, but the Ohio Supreme Court reversed that decision and held that a stored, winterized travel trailer may qualify as an “unoccupied structure” under R.C. 2911.13(A), and remanded for consideration of remaining issues.
- On remand this Court addressed (1) sufficiency/Crim.R. 29, (2) manifest weight, (3) jury instructions and prosecutorial questioning, and (4) imposition of consecutive sentences.
- The appellate court affirmed as to sufficiency/manifest weight and evidentiary/jury-instruction challenges, but reversed in part and remanded solely for the trial court to make the statutorily required findings supporting consecutive sentences.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Fazenbaker) | Held |
|---|---|---|---|
| Whether evidence was sufficient/Crim.R. 29 denial regarding "unoccupied structure" | State: Trailer was specifically designed for overnight accommodation, physically capable of being occupied, but winterized/covered/stored and uninhabited — thus an unoccupied structure | Fazenbaker: A fully covered, winterized trailer unused for >1 year is not an unoccupied structure (analogizing to Carroll) | Affirmed: Ohio Supreme Court already held such a trailer can be an unoccupied structure; Crim.R. 29 denial proper |
| Whether conviction was against the manifest weight of the evidence | State: DNA on cigarette butt found inside the trailer and other scene evidence support conviction | Fazenbaker: Jury ignored obvious facts that trailer was stored/winterized and thus not within R.C. 2911.13(A) | Overruled: Not an exceptional case; weight supports conviction given Supreme Court’s holding and DNA evidence |
| Whether jury instructions and prosecutor’s question violated due process (presuming structure/guilt) | State: Trial court appropriately sent factual question to jury; questioning on how entry occurred was permissible given scene and DNA evidence | Fazenbaker: Court assumed trailer was a "structure" and failed to define "unoccupied structure"; prosecutor’s question presumed guilt | Overruled: No timely Crim.R. 30 objection (no plain-error argument raised); admission of officer’s opinion not an abuse of discretion and harmless given DNA evidence |
| Whether consecutive sentence was lawful without trial court findings | State: (conceded) sentencing entry lacked the required R.C. 2929.14(C)(4) findings | Fazenbaker: Trial court erred by imposing consecutive sentences after he exercised his right to trial and without making required findings | Sustained in part: Remand required for the trial court to make and journalize the statutory findings supporting consecutive sentences |
Key Cases Cited
- State v. Fazenbaker, 163 Ohio St.3d 405 (Ohio 2020) (Ohio Supreme Court held a stored, winterized, uninhabited trailer may be an "unoccupied structure" under R.C. 2911.13(A))
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (articulates manifest-weight standard and appellate "thirteenth juror" role)
- State v. Otten, 33 Ohio App.3d 339 (Ohio Ct. App. 1986) (framework for manifest-weight review)
- State v. Bonnell, 140 Ohio St.3d 209 (Ohio 2014) (trial court must make required consecutive-sentence findings at hearing and in entry)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard for appellate modification/vacatur of felony sentence)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse-of-discretion standard)
- State v. Carroll, 62 Ohio St.2d 313 (Ohio 1980) (vehicle/unoccupied-structure precedent discussed by parties)
- State v. Williams, 6 Ohio St.3d 281 (Ohio 1983) (harmless-error principles)