State v. KleinhansState v. Kleinhans
- Reporters:
- , ,
- Before:
- Donofrio, Cheryl L. Waite, Carol Ann Robb
DONOFRIO, P.J.
{¶1} Defendant-appellant Christopher Kleinhans appeals the decision of the Noble County Court of Common Pleas denying his motion to dismiss a firearm specification.
{¶2} Accompanied by co-defendant John Buckey and wearing a holstered .45 caliber handgun on his hip, Kleinhans took his 7-year-old son along with them to burglarize a homе located in Caldwell, Ohio on June 24, 2014. The homeowners, who were in their late sixties, were not present in the house at the time. Kleinhans‘s son entered the home through an open window at the back of the homе and unlocked a door to allow Kleinhans and Buckey inside. They then took a fire pit from the house.
{¶3} Meanwhile, while they were in the house, a neighbor noticed them, approached the house, and ordered them out. Kleinhans‘s son exited first, followed by Kleinhans and Buckey. Kleinhans then threatened to shoot the neighbor.
{¶4} A Noble County grand jury indicted Kleinhans on five counts on July 16, 2014. Count one was for second-degree-felоny burglary with a firearm specification.
{¶5} Kleinhans retained counsel and pleaded not guilty to all counts. The case proceeded to discovery and other pretrial matters.
{¶6} On September 16, 2014, Kleinhans filed a motion to dismiss the gun specifications in the indictment. Referring to the plain language of the three-year firearm specification statute found at
{¶7} That same day, the trial court conducted a change-of-plea hearing. Kleinhans entered pleas of no contest to counts one (burglary with a firearm specification), two (theft from an elderly person), and four (endangering children). The State acknowledged that the sentences for the firearms specifiсations would be served concurrently and, in exchange, agreed to move to dismiss counts three (aggravated robbery with a firearm specification) and five (contributing to the delinquency of a minor).
{¶8} Following thе pleas, the court heard arguments from counsel for Kleinhans and the State concerning Kleinhans‘s motion to dismiss the gun specifications. Kleinhans‘s counsel again argued that the trespass had terminated after Kleinhans came out of the home and posited that the more appropriate firearm specification was the one-year firearm speciation found in
{¶9} The trial court conducted a sentencing hearing on October 15, 2014. However, before getting to sentencing, counsel for Kleinhans raised the issue of what he perceived to be as the pending motion to dismiss the gun specifications at which time the court fоrmally denied the motion. The State presented an agreed and recommended sentence of two years for the burglary conviction, a consecutive three years for the attendant firearm sрecification, a concurrent term of eleven months for the theft count, and court costs for the endangering children count. The court
{¶10} Initially, it should be noted that the State has failed to file an appellate brief in this matter. Therefore, in determining the appeal, this court may аccept Kleinhans‘s statement of the facts and issues as correct and reverse the judgment if his appellate brief reasonably appears to sustain such action.
{¶11} Kleinhans asserts one assignment of error:
The trial court erred in denying Appellant‘s motion to dismiss the Gun Specification in the indictment.
{¶12} Kleinhans presents the same argument as he did below, contending that a one-year specification is the appropriate sanction because the display of a firearm occurred after the burglary. Kleinhans insists that the threat towards the neighbor occurred after he had exited the residence onto the front yard. In other words, he argues that there was insufficient evidence to prove the firearm specification because the firearm had been displayed, brandished, used, or possessed by him after the trespass to the residencе had terminated.
{¶13} This case concerns the applicability between two types of firearm specifications found in the Ohio Revised Code – one requiring a one-year term of imprisonment and the other requiring a three-year term of imprisonment.
{¶15} The burglary offense Kleinhans was convicted of states as follows:
(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an oсcupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with рurpose to commit in the habitation any criminal offense[.]
{¶16} Concerning the timing of when a burglary has ended, the Ohio Supreme Court‘s decision in State v. Powell, 59 Ohio St.3d 62, 571 N.E.2d 125 (1991), is instructive. In that decision, the Court held that “[t]he crime of aggravated burglary сontinues so long as the defendant remains in the structure being burglarized.” Id. at paragraph one of the syllabus. Thus, by implication, courts have found that the burglary offense has terminated once the offender has еxited the structure. For example, the Second District has found that the infliction of physical harm, an element which makes a burglary an aggravated burglary, committed in the back yard of the burglarized, occupied structure does not support an aggravated burglary conviction because the trespass had terminated. State v. Clark, 107 Ohio App.3d 141, 147, 667 N.E.2d 1262 (2d Dist.1995).
{¶18} In sum, the record supports application of the one-year firearm specification statute as the рarties stipulated to the fact that Kleinhans wore a holstered .45 caliber handgun on his hip during the commission of the burglary. However, there is nothing in the record to support the trial court‘s application of the three-year firearm specification statute. Since the burglary offense had terminated before Kleinhans threatened to shoot the neighbor, there is no indication that he displayed the firearm, brаndished the firearm, indicated that they possessed the firearm, or used it to facilitate the burglary offense during the commission of that offense.
{¶19} Accordingly, Kleinhans‘s sole assignment of error has merit.
{¶20} The judgment of the trial court overruling Kleinhans‘s motion to dismiss the three-year firearm specification is reversed and this matter is remanded for application of the one-year firearm specification and concomitant resentencing.
Waite, J., concurs.
Robb, J., concurs.