[Cite as State v. Hunt, 2009-Ohio-5435.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-09-06
v.
STANLEY E. HUNT, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 08-CR-0047
Judgment Affirmed
Date of Decision: October 13, 2009
APPEARANCES:
Shane M. Leuthold for Appellant
Clifford J. Murphy for Appellee
Case No. 3-09-06
WILLAMOWSKI, J.
{¶1} Defendant-appellant Stanley E. Hunt (“Hunt”) brings this appeal
from the judgment of the Court of Common Pleas of Crawford County finding
him guilty of burglary and sentencing him to a prison term of three years. For the
reasons set forth below, the judgment is affirmed.
{¶2} On February 11, 2008, Hunt, Willis Clary (“Clary”), and Joshua
Smith (“Smith”) were dropped off near the victim’s residence with the intent to
commit a burglary. The victim was not staying at the home at the time. The three
then proceeded to break into the residence and steal numerous items. Although
the victim was not staying at the residence at the time, he had left numerous
personal effects and maintained the home as a residence with the intent of
returning.
{¶3} On March 10, 2008, the grand jury indicted Hunt on one count of
burglary in violation of R.C. 2911.12(A)(3), a third degree felony. Hunt entered a
plea of not guilty on April 30, 2008. A jury trial was held on December 18, 2008.
The jury returned a verdict of guilty. On February 18, 2009, Hunt was sentenced
to three years in prison. Hunt appeals from the judgment of conviction and raises
the following assignment of error.
The conviction of burglary is against the manifest weight of the
evidence.
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{¶4} Hunt’s sole assignment of error alleges that the conviction is against
the manifest weight of the evidence because the structure was not occupied and
because Hunt did not trespass on the property.
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the
jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they
shall find the greater amount of credible evidence sustains the
issue which is to be established before them. Weight is not a
question of mathematics, but depends on its effect in inducing
belief.”
State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 514 (citing
Black’s Law Dictionary (6 Ed. 1990) 1594). A new trial should be granted only
in the exceptional case in which the evidence weighs heavily against conviction.
Id. Although the appellate court may act as a thirteenth juror, it should still give
due deference to the findings made by the jury.
The fact-finder, being the jury, occupies a superior position in
determining credibility. The fact-finder can hear and see as
well as observe the body language, evaluate voice inflections,
observe hand gestures, perceive the interplay between the
witness and the examiner, and watch the witness’s reaction to
exhibits and the like. Determining credibility from a sterile
transcript is a Herculean endeavor. A reviewing court must,
therefore, accord due deference to the credibility determinations
made by the fact-finder.
State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456.
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Case No. 3-09-06
{¶5} Here, Hunt was convicted of burglary in violation of R.C.
2911.12(A)(3).
(A) No person, by force, stealth, or deception, shall do any of
the following:
***
(3) Trespass in an occupied structure or in a separately
secured or separately occupied portion of an occupied structure,
with purpose to commit in the structure or separately secured
or separately occupied portion of the structure any criminal
offense[.]
Hunt claims he is not guilty of burglary because 1) he did not trespass in the
property and 2) the structure was unoccupied. Hunt alleges that since the victim
was not living at the home, it was not an occupied structure. Hunt’s first
argument is that he did not trespass because he testified that he did not enter the
structure, but stood outside the window while Clary and Smith passed items to
him. The testimony at trial by Clary was that all three of them entered the home.
Tr. 90. Smith also testified that Hunt entered the residence. Tr. 186.
Additionally, Hunt does not deny that Clary and Smith entered the home or that
he helped plan and execute the burglary. During the trial, the State put forth the
theory that Hunt was complicit in the trespass because the burglary was planned
by all three parties. The jury was given an instruction on complicity without
objection by Hunt. By Hunt’s own admission, he was complicit to the trespass by
his accomplices. Thus, the determination that Hunt had either trespassed on the
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residence himself or was complicit in Clary and Smith doing so is not against the
manifest weight of the evidence.
{¶6} Hunt’s second argument is that the building was not an occupied
structure.
“Occupied structure” means any house, building, outbuilding,
watercraft, aircraft, railroad car, truck, trailer, tent, or other
structure, vehicle, or shelter, or any portion thereof, to which
any of the following applies:
(1) It is maintained as a permanent or temporary dwelling,
even though it is temporarily unoccupied and whether or not
any person is actually present.
(2) At the time, it is occupied as the permanent or temporary
habitation of any person, whether or not any person is actually
present.
(3) At the time, it is specially adapted for the overnight
accommodation of any person, whether or not any person is
actually present.
(4) At the time, any person is present or likely to be present in
it.
R.C. 2909.01(C). When determining whether a structure is “occupied” the
question is if the dwelling has a residential purpose, not whether the occupant is
present. State v. Burgos, 9th Dist. No. 05CA008808, 2006-Ohio-4305. See also
State v. Green (1984), 18 Ohio App.3d 69, 480 N.E.2d 1128 (holding that a home
vacated when the residents moved to a new home was still an “occupied
structure” because it was maintained as a dwelling).
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Case No. 3-09-06
We find the legislative intent of “occupied” structure evident
from the Committee Comment to R.C. 2909.01. Said
Committee comment states in pertinent part that under R.C.
2909.01(C)(1) “all dwellings are classed as occupied structures,
regardless of the actual presence of any person. Whether or not
the dwelling is used as a permanent or temporary home is
immaterial, so long as it is maintained for that purpose.”
Burgos, supra at ¶22.
{¶7} The victim in this case testified that he had left the home in October
2007, after his wife died and he was injured in an accident. Tr. 20. He testified
that he could not afford to heat the home on one income, so he moved in with his
father. Tr. 20-21. However, he left several personal items in the residence
including furnishings, bedding, firearms and ammunition, clothing, his crutches1,
a television, dvd players, appliances, etc. Tr. 21-32. The victim further testified
that the electricity was left on in the house and that he intended to return to the
home as his residence. Tr. 22-23, 32. Thus, this house was maintained as a
residence and was “occupied” under the statutory definition. Since the evidence
supports a finding that Hunt trespassed in an occupied structure for the purpose of
committing a criminal offense, i.e. theft, the judgment finding him guilty of
burglary is not against the manifest weight of the evidence. The assignment of
error is overruled.
1
The victim had his legs amputated after an accident, and needed the crutches or a wheelchair to get
around.
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{¶8} The judgment of the Court of Common Pleas of Crawford County is
affirmed.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr
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