2017 Ohio 871
Ohio Ct. App.2017Background
- Jason and Jerry Fleming were jointly tried in Lorain County Court of Common Pleas on one count each of breaking and entering (R.C. 2911.13(A)) and possessing criminal tools (R.C. 2923.24(A)); both waived jury trial and were convicted by the judge.
- The brothers were found inside a vacant house at 907 West 17th Street after dark, having entered through a window with construction tools and a sledgehammer; flashlights were used and some items from the house were later found in their truck.
- One brother orally admitted at the scene they were taking scrap metal; Jason admitted after Miranda warning they didn’t know the owner and were taking things of value.
- Owner Jason Davis testified he still owned the property in October 2013, periodically checked it, intended to rehabilitate it, never gave permission to the Flemings, and continued to receive tax bills even after demolition.
- The Flemings admitted they knew they were trespassing, did not seek permission, believed the city might demolish the house but never confirmed ownership, and entered at night via a window to avoid detection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether convictions are against the manifest weight of the evidence (stealth element of breaking and entering) | State: facts (night entry, window entry, hidden parking, flashlights, tools) show stealth to avoid detection and intent to steal | Flemings: state failed to prove stealth; they argue property/contents were abandoned or they reasonably believed so | Court: Affirmed — judge reasonably found stealth and purpose to steal; not an exceptional case to overturn on manifest weight |
| Whether property was abandoned such that theft element failed | State: owner retained title, checked property, intended rehabilitation — so not abandoned | Flemings: argued house/contents abandoned or reasonably believed abandoned | Court: Affirmed — owner’s acts and continued ownership show no abandonment; defendants’ belief unreasonable |
| Possession of criminal tools convictions | State: tools possessed with purpose to use criminally (supported by circumstances and admissions) | Flemings: did not specifically contest in briefs | Court: Upheld convictions (court notes appellants did not brief this issue) |
Key Cases Cited
- State v. Otten, 33 Ohio App.3d 339 (9th Dist.) (standard for manifest-weight review)
- State v. Thompkins, 78 Ohio St.3d 380 (allocation of roles between sufficiency and manifest-weight review)
- State v. Lane, 50 Ohio App.2d 41 (definition of "stealth")
- Doughman v. Long, 42 Ohio App.3d 17 (definition and proof required for abandonment)
- Long v. Noah’s Lost Ark, Inc., 158 Ohio App.3d 206 (abandonment requires affirmative acts showing intent to relinquish property)