[Cite as State v. Kleinhans, 2015-Ohio-5007.]



                              STATE OF OHIO, NOBLE COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )                 CASE NO. 14 NO 425
V.                                               )
                                                 )                      OPINION
CHRISTOPHER A. KLEINHANS,                        )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Noble County, Ohio
                                                 Case No. 214-2046

JUDGMENT:                                        Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellee                           No brief filed.

For Defendant-Appellant                          Attorney Jacob T. Will
                                                 116 Cleveland Ave. NW, Suite 808
                                                 Canton, Ohio 44702




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                 Dated: November 23, 2015
[Cite as State v. Kleinhans, 2015-Ohio-5007.]
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 home 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 home 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-felony burglary with a firearm specification.
R.C. 2911.12(A)(2)(D); R.C. 2941.145. Count two was for fifth-degree felony theft
from an elderly person (as the homeowners were over 65 years of age) with a firearm
specification. R.C. 2913.02(A)(2)(B)(3); R.C. 2941.145. Count three was for first-
degree felony robbery with a firearm specification. R.C. 2911.02(A)(1)(C); R.C.
2941.145. Count four was for first-degree misdemeanor endangering children. R.C.
2919.22(A)(E)(2)(a). Count five was for first-degree misdemeanor contributing to the
delinquency of a minor. R.C. 2919.24(A)(2)(B).
        {¶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 R.C. 2941.145, he stated that, in order to be
found guilty under that provision, a defendant must have had a firearm while
committing the offense and displayed, brandished, indicated they had a firearm, or
                                                                              -2-


used the firearm to facilitate the offense. Kleinhans pointed out that he had already
exited the residence of the alleged burglary when he purportedly threatened to shoot
the neighbor. Thus, he argued 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 residence had terminated.
       {¶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 specifications 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 the 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 R.C. 2941.141. Although
the trial court did not seem to expressly make a ruling on the motion at that time, the
court nevertheless proceeded to find Kleinhans guilty of the counts to which he
pleaded no contest.     In the change-of-plea journal entry filed by the court on
September 19, 2014, the court specifically noted that Kleinhans was reserving his
right to appeal the three-year gun specifications.
       {¶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 formally 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 specification, a concurrent term of eleven months for
the theft count, and court costs for the endangering children count.        The court
                                                                                -3-


sentenced Kleinhans accordingly for an aggregate sentence of five years in prison.
This appeal followed.
       {¶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 accept
Kleinhans’s statement of the facts and issues as correct and reverse the judgment if
his appellate brief reasonably appears to sustain such action. App.R. 18(C).
       {¶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 residence 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.             R.C.
2941.141(A) sets forth a one-year term of imprisonment for an offender who had a
firearm on or about their person or under their control while committing the offense.
R.C. 2941.145(A) delineates a three-year prison term for an offender who both (1)
had a firearm on or about their person or under their control while committing the
offense and (2) displayed the firearm, brandished the firearm, indicated that they
possessed the firearm, or used it to facilitate the offense. Thus, the applicability of
the three-year specification over the one-year specification hinges on the additional
factor of whether the offender displayed the firearm, brandished the firearm, indicated
that they possessed the firearm, or used it to facilitate the offense.
                                                                                -4-


       {¶14} In this case, the parties stipulated to the fact that Kleinhans wore a
holstered .45 caliber handgun on his hip during the commission of the burglary.
Thus, there is no dispute that the one-year firearm specification applies since
Kleinhans had a firearm on or about his person or under his control while committing
the offense. Whether the three-year firearm specification applies in this instance
requires us to examine whether Kleinhans displayed the firearm, brandished the
firearm, indicated that they possessed the firearm, or used it to facilitate the offense.
Under the facts and circumstances of this case, that determination hinges on a
question of timing.
       {¶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 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).
       {¶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 continues 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 exited 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).
                                                                              -5-


      {¶17} Here, the stipulated facts clearly reflect that Kleinhans had exited the
structure (i.e., the victim’s house) before he threatened the neighbor that he would
shoot her. (September 16, 2014 Change of Plea Hearing Tr. 11-12.) The stipulated
facts also reflect that the defendants had already taken a fire pit from the house
before Kleinhans made this threat. Nothing in the remainder of the record contradicts
the notion that the burglary offense had terminated before Kleinhans threatened to
shoot the neighbor.    In other words, there is nothing in the record to suggest
Kleinhans re-entered the home following the threat.
      {¶18} In sum, the record supports application of the one-year firearm
specification statute as the parties 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, brandished 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.
