STATE OF OHIO, PLAINTIFF-APPELLEE, v. WESLEY A. DIRMEYER, DEFENDANT-APPELLANT.
CASE NO. 13-13-24
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
March 3, 2014
2014-Ohio-759
PRESTON, J.
Appeal from Seneca County Common Pleas Court, Trial Court No. 13CR0013. Judgment Affirmed.
Jonathan G. Stotzer for Appellant
Derek W. DeVine for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Wesley A. Dirmeyer, appeals the Seneca County Court of Common Pleas’ judgment entry of conviction. We affirm.
{¶2} On January 14, 2013, Dirmeyer went uninvited to the residence of Callie Smith—his former girlfriend, roommate, and mother of his minor daughter—immediately following a telephone argument he had with Smith concerning visitation. (Mar. 28, 2013 Tr. at 117, 149, 160). Dirmeyer and Smith continued their argument on the front porch of the residence while Smith remained behind the screen door. (Id. at 150-151, 161). After Smith told Dirmeyer to leave and closed the front door, allegedly hitting Dirmeyer in the face, Dirmeyer punched the door causing damage to it. (Id. at 118-120, 150-151, 162). Smith then opened the front door to inspect the damage and told Dirmeyer that she was reporting it to the police. (Id. at 152, 165). Dirmeyer then forced his way into the residence and physically assaulted Smith. (Id. at 152, 162). Immediately after the incident, Dirmeyer went to the local police department and admitted that he physically assaulted Smith. (Id. at 121, 128-129, 141, 211); (State’s Ex. 7).
{¶3} On February 6, 2013, the Seneca County Grand Jury indicted Dirmeyer on Count One of aggravated burglary in violation of
{¶5} On May 14, 2013, the trial court sentenced Dirmeyer to six years imprisonment on Count One and 15 months imprisonment on Count Two. (May 14, 2013 Tr. at 26-27). The trial court ordered that Dirmeyer serve the terms consecutively for an aggregate sentence of seven years and three months. (Id.). On May 20, 2013, the trial court filed its judgment entry of sentence. (Doc. No. 32).
{¶6} On June 18, 2013, Dirmeyer filed a notice of appeal. (Doc. No. 37). Dirmeyer appeals raising two assignments of error. Because Dirmeyer’s assignments of error raise related issues, we combine them for analysis.
Assignment of Error No. I
The trial court erred in including in the jury instructions “one can commit a trespass and a burglary against property of which one is the legal owner if another has control or custody of that property.”
Assignment of Error No. II
The trial court erred in denying the defenses [sic] Criminal Rule 29 motion for directed verdict of acquittal on the grounds that the required element of trespass was not established prima facie according to law and the aggravated burglary charge must be dismissed.
{¶8} In his second assignment of error, Dirmeyer argues that the trial court erred by denying his Crim.R. 29(A) motion, because the State failed to prove he committed a criminal trespass as defined in
{¶9} Whether jury instructions correctly stated the applicable law is reviewed on appeal de novo. State v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 34; Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio App.3d 89, 2010-Ohio-4173, ¶ 30 (3d Dist.).
{¶10} “Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been
{¶11} When reviewing the sufficiency of the evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus.
{¶12} The evidence in this case established that Dirmeyer was Smith’s former live-in boyfriend and the father of one of Smith’s minor daughters. (Mar. 28, 2013 Tr. at 111, 115, 132, 143-144, 183-184, 202). Dirmeyer lived with Smith at the residence in question about a year and a half but moved out on June 28, 2012. (Id. at 144, 156, 186). Dirmeyer and Smith both signed a lease for the residence. (Id. at 205). When they lived together, Dirmeyer and Smith paid bills from a joint checking account; however, Smith terminated the account a few months after Dirmeyer vacated the residence. (Id. at 204, 214).
{¶13} When Dirmeyer moved out, he loaded his belongings into a Budget truck, leaving behind only two televisions and a mirror, which he picked up off the front porch at a later date, according to Smith. (Id. at 145, 196-197). Dirmeyer
{¶14} Dirmeyer testified that he asked Smith to remove his name from the lease after he vacated. (Id. at 206, 215). Smith asked the landlord to remove Dirmeyer’s name from the lease, but the landlord refused, because the landlord could not inspect the property for damages. (Id. at 147, 158). According to Smith, Dirmeyer did not have any clothing in the residence after he vacated. (Id. at 158). Dirmeyer, on the other hand, testified that he left a crib, a beanbag chair, a couple gas cans, a mirror, two televisions, and his older daughter’s (not Smith and Dirmeyer’s daughter) clothes and toys at the residence. (Id. at 207, 215). Dirmeyer lived with his mother until November 2012 when he moved into an apartment on Walker Street. (Id. at 165, 171, 188, 192, 196, 202). Dirmeyer admitted that he had not lived with Smith for the past six to eight months, and that he had received his mirror a couple days prior to the incident. (Id. at 213, 216).
[T]he purpose of burglary law is to protect the dweller, we hold that custody and control, rather than legal title, is dispositive. See
R.C. 2911.21(E) , providing that “‘land or premises’ includes any land, building, structure, or place belonging to, controlled by, or in custody of another, and any separate enclosure or room, or portion thereof.” (Emphasis added.) Thus, in Ohio, one can commit a trespass and burglary against property of which one is the legal owner if another has control or custody of that property.
87 Ohio St.3d 97, 102 (1999); (Mar. 28, 2013 Tr. at 230).
{¶16} Despite the fact that the trial court’s jury instruction was taken verbatim from State v. Lilly, Dirmeyer argues that this case is distinguishable, because Lilly involved spousal rights and Smith and he were never married, and, more importantly, the husband in Lilly was not a cotenant under the lease agreement like him. While these observations are true, we are not persuaded that the trial court erred by instructing the jury based upon the rule in Lilly.
{¶20} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., concurs.
ROGERS, J., DISSENTS.
{¶21} I must respectfully dissent from the opinion of the majority.
{¶22} With respect to the first assignment of error, I would agree that the instruction given by the trial court could be correct in certain circumstances, such as where the title owner of property is a lessor but a tenant has a contractual right to possession and/or control of the property. However, I would find the instruction to have been improper under the circumstances of this case because Dirmeyer and Smith had equal legal rights to possession and control of the subject property by virtue of a valid written lease.
{¶23} As to the second assignment of error, the majority relies on the dicta of State v. Lilly, 87 Ohio St.3d 97 (1999). Dirmeyer is correct that the circumstances in Lilly are distinguishable from this case. In Lilly, the defendant had no interest whatsoever in any rental or lease agreement that would allow him
[N]othing in the record indicates that appellant had actual notice that his presence in the marital home could constitute a criminal offense. No civil protection order or temporary restraining order existed that would have unequivocally provided notice to appellant of the possible consequences of entering the property or potential criminal penalties.
Id. at ¶ 28. As a result, the court found that the defendant could not have been a trespasser in the home. Id.; see also O’Neal v. Bagley, --- F.3d --- (6th Cir. 2013) (stating that being a tenant is “suggestive of an unqualified privilege to enter”).
{¶25}
{¶26} Further:
It is well accepted that the cornerstone of statutory construction and interpretation is legislative intention. In order to determine legislative intent it is a cardinal rule of statutory construction that a court must first look to the language of the statute itself. ‘If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.’ Moreover, it is well settled that to determine the intent of the General Assembly ‘it is the duty of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used.’
{¶27} Therefore, I would sustain both assignments of error and reverse Appellant’s conviction for the offense of aggravated burglary.
/jlr