THE STATE OF OHIO, APPELLANT, v. LILLY, APPELLEE.
No. 98-1111
SUPREME COURT OF OHIO
Submitted March 31, 1999—Decided October 20, 1999.
87 Ohio St.3d 97 | 1999-Ohio-251
APPEAL from the Court of Appeals for Montgomery County, No. 16684.
- A spouse may be criminally liable for trespass and/or burglary in the dwelling of the other spouse who is exercising custody or control over that dwelling.
R.C. 3103.04 is inapplicable in criminal cases.
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, John J. Amarante and Cheryl A. Ross, Assistant Prosecuting Attorneys, for appellant.
Altick & Corwin Co., L.P.A., and Dennis J. Adkins, for appellee.
{¶ 1} On February 5, 1997, Harold Dean Lilly, Jr., defendant-appellee, was indicted on nineteen criminal counts: twelve counts of rape, two counts of attempt to commit rape, three counts of possessing criminal tools, one count of kidnapping, and one count of burglary. All offenses were alleged to have been against his estranged wife, Jacqueline K. Lilly. Count nineteen of the indictment stated that on or about January 26, 1997, defendant had trespassed in Jacqueline Lilly’s residence when she was present or likely to have been present, with the purpose of committing a criminal offense therein. Defendant pled not guilty on February 11, 1997 to all of the charges.
{¶ 2} Defendant and Jacqueline K. Lilly (“Mrs. Lilly”) married in August 1988. They separated in early 1996 and got back together in September of that year. In November 1996, they separated again and Mrs. Lilly moved in with defendant’s sister. Mrs. Lilly lived with defendant’s sister until January 1997, when
{¶ 3} Mrs. Lilly testified that on January 26, 1997, she and the defendant spent the morning and afternoon together doing various errands. The defendant repeatedly asked Mrs. Lilly if they could watch the Super Bowl that evening together, but she declined. Mrs. Lilly testified that over the course of the evening, defendant asked her to have sex with him and she asked him to leave. She told the jury that defendant became angry, slapped her repeatedly, and burned her with a cigarette. She further explained that, to avoid further harm, she engaged in various sexual acts with defendant, which Mrs. Lilly testified were against her will.
{¶ 4} Mrs. Lilly testified that later in the evening, the defendant drove her to two bars. At the 1470 Club, in Kettering, Ohio, Mrs. Lilly quietly asked one of the bar employees to call the police. After defendant followed her into the women’s restroom at the bar, one of the bar’s security guards went into the restroom to check on Mrs. Lilly. The security guard told defendant that he wanted to speak to Mrs. Lilly alone and defendant refused. The security guard pushed defendant out of the way while Mrs. Lilly and a female bar employee ran into the back office and locked the door. After the defendant’s attempts to kick the door in were unsuccessful, he fled.
{¶ 5} Mrs. Lilly was taken to the hospital to be examined and then to the police station to be interviewed in the early morning hours of January 27. Police officers then took her to her apartment to get some clothing and personal items in order for her to stay in a shelter. At her apartment, Mrs. Lilly discovered that her purse was missing and about six pairs of her jeans had been ripped up. Officers noticed that the attic cover was open. When officers walked into the attached garage, they smelled fresh cigarette smoke.
{¶ 6} After Mrs. Lilly had collected her belongings and was ready to get in
{¶ 7} Detective Mark Allison testified that on the afternoon of January 27, he informed defendant that a warrant had been issued for his arrest. The next day, Detective Allison interviewed defendant in the presence of two other detectives regarding the charges. Defendant admitted to the officers that he drove back to Mrs. Lilly’s apartment in the early morning of January 27 after leaving the 1470 Club. Mrs. Lilly later testified that she had locked the door when she left the evening of January 26, but that it was unlocked when she arrived with police the next morning. Defendant stated that he had left the door unlocked prior to leaving with Mrs. Lilly earlier in the evening so he could get back in. Defendant told the detectives that he ripped up several pairs of Mrs. Lilly’s jeans, yanked the spark plug wires on her car, and took her purse. Defendant stated that he arrived at the apartment around 12:30 a.m. on January 27, after leaving the bar and was there until 12:00 p.m. that day. Defendant admitted that he was hiding at the apartment when police searched it.
{¶ 8} At trial, Mrs. Lilly testified that the lease for her apartment was in her name and the defendant did not have a key. Mrs. Lilly testified that defendant did not contribute money for her apartment. She further testified that defendant knew that it was her place.
{¶ 9} During the trial, the state withdrew one count of rape and one count of attempted rape. The jury returned a verdict of guilty on the burglary charge (in violation of
{¶ 10} This cause is now before this court upon the allowance of a discretionary appeal.
{¶ 11} This case presents the court with the question of whether
{¶ 12} In this case, the evidence showed that defendant entered by deception the separately leased property of his estranged spouse with intent to commit a crime. However, the court of appeals concluded that in the absence of a court order,
{¶ 13} At common law, husband and wife were regarded as one. The legal
{¶ 14} Ohio’s Married Women’s Act was enacted in 1861. 58 Ohio Laws 54. “By the act concerning the rights of married women, passed April 3, 1861 (S. & S. 389), as amended March 23, 1866 (S. & S. 391), the general estate, as well as the separate estate, of a married woman, belonging to her at her marriage, and all her estate, legal and equitable, which may come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, together with the rents and issues thereof, becomes her separate property and under her control, free from the marital rights of the husband at common law over the same.” Levi v. Earl (1876), 30 Ohio St. 147, paragraph one of the syllabus.
{¶ 15} In that same vein, in 1887, the General Assembly enacted what is now
“Section 3111. Neither husband nor wife has any interest in the property of the other, except as mentioned in sections 3110 [husband must support himself and wife] and 4188 [dower] but neither can be excluded from the other’s dwelling.” 84 Ohio Laws 132.
{¶ 16} The statute today is reflected in
“[Interest in the property of the other]
“Neither husband nor wife has any interest in the property of the other,
except as mentioned in section 3103.03 of the Revised Code, the right to dower, and the right to remain in the mansion house after the death of either. Neither can be excluded from the other’s dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction.”
{¶ 17} In 1973, the Court of Appeals for Cuyahoga County considered the history of
{¶ 18} The Slansky court concluded that the purpose of
{¶ 19} This court, in 1893, considered the purpose of the Married Women’s Act and held that “[t]he legal effect of the statutes as to the property rights of married women is to place husband and wife upon an exact equality as to the property of each; that is, ‘neither husband nor wife has any interest in the property of the other,’ except as to dower, distribution, and support.” Heckman v. Adams (1893), 50 Ohio St. 305, 312, 34 N.E. 155, 156.
{¶ 21} A review of other jurisdictions reveals seven other jurisdictions with a statute similar to
{¶ 22} Thus, we conclude that
{¶ 23} The crime of burglary, with which defendant was charged, provides:
“(A) No person, by force, stealth, or deception, shall do any of the following:
“ * * *
“(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied 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 purpose to commit in the
habitation any criminal offense * * *.” R.C. 2911.12(A)(2) .
“Criminal trespass” is defined as:
“(A) No person, without privilege to do so, shall do any of the following:
“(1) Knowingly enter or remain on the land or premises of another.”
R.C. 2911.21 .
{¶ 24} The law of burglary evolved out of a desire to protect the habitation. Because intrusions into the habitation are dangerous to occupants, “the offense is viewed as serious, because of the higher risk of personal harm involved in maliciously breaking and entering an occupied, as opposed to an unoccupied, structure.” 1974 Legislative Service Commission Comment to
{¶ 25} Because the purpose of burglary law is to protect the dweller, we hold that custody and control, rather than legal title, is dispositive. See
{¶ 26} A majority of other jurisdictions that have addressed this issue have found that the entry of an estranged spouse upon the property of the other spouse constitutes an unauthorized entry to support charges of trespass and burglary. See People v. Johnson (Colo.1995), 906 P.2d 122; People v. Hollenbeck (Colo.App.1996), 944 P.2d 537; Davis v. State (Tex.Crim.App.1990), 799 S.W.2d 398; White v. State (Ala.Crim.App.1990), 587 So.2d 1218; Parham v. State (1989), 79 Md.App. 152, 161-162, 556 A.2d 280, 284-285; Matthews v. Commonwealth (Ky.1985), 709 S.W.2d 414; State v. Cox (1985), 73 N.C.App. 432, 326 S.E.2d 100; Knox v. Commonwealth (1983), 225 Va. 504, 304 S.E.2d 4; State v. Schneider (1983), 36 Wash.App. 237, 673 P.2d 200; Cladd v. State (Fla.1981), 398 So.2d 442.
{¶ 27} Civil, peaceful avenues of redress exist to enforce the rights of a
{¶ 28} In this case, there is no evidence that defendant had any right to custody or control of the leased property. The apartment was leased solely in Mrs. Lilly’s name. Defendant did not pay any part of the rent on Mrs. Lilly’s apartment. While defendant claims that he may have stayed at the apartment occasionally and performed maintenance tasks there for Mrs. Lilly, defendant never lived at the apartment, did not have a key to the apartment, and did not keep any of his belongings in the apartment. Accordingly, it was reasonable for the jury to find that when, without permission, defendant entered Mrs. Lilly’s apartment through a door he had previously by deception left unlocked, he trespassed. When he trespassed in Mrs. Lilly’s apartment for the purpose of committing a crime, i.e., theft of her purse and damage to her property, it was reasonable for the jury to conclude that defendant committed a burglary.
{¶ 29} Thus, there was ample evidence at trial for the jury to have determined that the defendant trespassed in Mrs. Lilly’s dwelling and that he did so with the purpose or intent of committing a crime. Sufficiency of the evidence is considered in a light most favorable to the prosecution. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. As such, we find that there was sufficient evidence of burglary to sustain his conviction. Therefore, we reverse the judgment of the court of appeals and reinstate defendant’s conviction for burglary under
Judgment reversed and cause remanded.
RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in judgment.
COOK, J., concurs in judgment only.
MOYER, C.J., concurs in part and dissents in part.
{¶ 30} I disagree with the majority’s decision to address the applicability of
{¶ 31} Appellate courts may only invoke the plain error doctrine “with the utmost caution, under exceptional circumstances.” State v. Long (1978), 53 Ohio St.2d 91, 97, 7 O.O.3d 178, 181, 372 N.E.2d 804, 808. Plain error is “obvious error prejudicial to a defendant, neither objected to nor affirmatively waived by him, which involves a matter of great public interest having substantial adverse impact on the integrity of and the public’s confidence in judicial proceedings. The error must be obvious on the records, palpable, and fundamental, and in addition it must occur in exceptional circumstances where the appellate court acts in the public interest because the error affects ‘the fairness, integrity or public reputation of judicial proceedings.’ ” State v. Craft (1977), 52 Ohio App.2d 1, 7, 6 O.O.3d 1, 4, 367 N.E.2d 1221, 1225-1226, quoting United States v. Atkinson (1936), 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, 557. I would find that this was not plain error. Even if
{¶ 32} I concur in the first paragraph of the syllabus and the judgment. I do not concur in the discussion of