[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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Case No. 3-09-06


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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         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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