[Cite as State v. Anderson, 2012-Ohio-3663.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      26006

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PERNELL V. ANDERSON                                   COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 11 03 0604

                                 DECISION AND JOURNAL ENTRY

Dated: August 15, 2012



        BELFANCE, Judge.

        {¶1}     Defendant-Appellant Pernell Anderson appeals from the judgment of the Summit

County Court of Common Pleas. For the reasons set forth below, we reverse.

                                                 I.

        {¶2}     On March 8, 2011, an indictment was filed charging Mr. Anderson with one count

of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree and one count of

possessing criminal tools in violation of R.C. 2923.24, a felony of the fifth degree.            A

supplemental indictment was later filed charging Mr. Anderson with one count of breaking and

entering in violation of R.C. 2911.13(A), a felony of the fifth degree. The charges at issue relate

to a break-in at a condemned house on March 4, 2011.

        {¶3}     The matter proceeded to a bench trial. The trial court found Mr. Anderson guilty

of the lesser included offence of burglary, a third-degree felony and of breaking and entering.

The trial court specifically found that “the State did not prove beyond a reasonable doubt that
                                                2


any person other than the accomplice or the defendant were present or likely to be present[.]”

The trial court found Mr. Anderson not guilty of possession of criminal tools.

       {¶4}    The trial court found the burglary and breaking and entering charges merged for

purposes of sentencing and sentenced Mr. Anderson to a total of four years in prison. Mr.

Anderson has appealed, raising two assignments of error for our review.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S DECISION TO FIND THE ACCUSED GUILTY OF
       BURGLARY, IN VIOLATION OF R.C. 2911.12(A)(3), IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶5}    Mr. Anderson asserts in his first assignment of error that his conviction for

burglary is against the manifest weight of the evidence. He solely asserts that the determination

that the condemned house at issue was an occupied structure was against the manifest weight of

the evidence. Nonetheless, a review of the weight of the evidence necessarily involves an

evaluation of the sufficiency of the evidence in that, in order for this Court to weigh the

evidence, there must be evidence to weigh. See State v. Recklaw, 9th Dist. No. 24078, 2008-

Ohio-5444, ¶ 14. In reviewing the record in this case, we conclude that there was insufficient

evidence to establish that the house at issue was an occupied structure. Accordingly, Mr.

Anderson’s conviction for burglary is based upon insufficient evidence.

       {¶6}    In determining whether the evidence presented was sufficient to sustain a

conviction, this Court reviews the evidence in a light most favorable to the prosecution. State v.

Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
                                                 3


       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

       {¶7}    Officer William Meier of the Akron Police Department testified that, on March 4,

2011, he responded to a call of a burglary in progress at 797 Crestview. When he arrived at the

location, Officer Meier observed a chair propped against an open window on the east side of the

house. The officers proceeded through the house. Officer Meier noted that the house was

furnished but cluttered and there were several cats running around. He stated that “[i]t appeared

lived in * * * .” In the last room to be checked, Officer Meier testified that there was a pile of

clothes on the bed, under which Mr. Anderson was hiding. Mr. Anderson had a screwdriver in

his pocket. Additionally, cell phones and jewelry were found on Mr. Anderson’s person. After

being Mirandized, Mr. Anderson told police that he had a habit, had gone out drinking, and that

he broke into the house “to take some items.” Further, Mr. Anderson told police that he had put

some frozen meat from the freezer by the front door to take with him when he left. A jewelry

box was found in the yard.

       {¶8}    The owner of the house also testified. She testified that she bought the house in

1979 and that as of the date of trial she still received mail at that address. However, the last time

the victim spent the night and/or resided in the house was during the prior year in November

2010. She indicated that she had to move out because the house had no heat as of May 2010.

She maintained that she keeps personal items in the bedroom in that house and that she returns to

the house every other day or once a week to feed the cats. However, the victim sleeps, eats all

her meals, does laundry, and bathes at her daughter’s house. The victim testified that she had

had ongoing issues with the Health Department concerning the house for several years. She
                                                 4


asserts that the house does not have all the problems that the city claims and that her house is

nice. The victim claimed that she intended to move back in after the house was repaired;

however, she did not have the funds necessary to have people clean out the basement which was

necessary to do before any of the agencies were willing to come in to help her. The victim

indicated that a “levy broke in [her] yard[,]” causing four feet of water to pool in her basement,

which in turn led to mold problems. Because of the mold problems, she cannot clean out

basement herself but instead needs to enlist the help of professionals, which she cannot afford to

do. And, while the house had electricity, it had no heat and no running water. The victim was

aware that the city condemned her house in February 2011, in a notice which found the house to

be “unfit for human habitation.”       In addition, the city was trying to have the structure

demolished. Despite this fact, the victim testified she was allowed into the home during the day.

       {¶9}    Finally, Kathy Graves who conducts residential housing inspections for the City

of Akron testified. She testified that she has inspected the outside of the victim’s house but not

the inside as she has never been given access to the inside.1 She testified that an initial complaint

was filed against the property in 2006. She described the victim as uncooperative and stated that

repairs were not being made. She averred that the house is uninhabitable and that she posted the

house as condemned in February 2011 because there was no water. Ms. Graves’ report from

February 2011 listed 32 line items. Inter alia, the report states: “Do not enter dwelling unit

except between the hours of 7:00 a.m. and 7:00 p.m. for the specific purpose of repairing the




       1
          From the record, it is evident that someone other than Ms. Graves did inspect the
interior of the house at some point in time prior to her involvement.
                                                  5


dwelling[.]” Ms. Graves testified that she conducted the February 2011 inspection after her

office received a letter from an agency. The letter stated that the agency “won’t assist [the

victim] because of interior conditions. No heat, no hot water. Owner has abandoned the house

and is now living with her mother. The water has been shut off as of 1/11/11.” The city has

taken steps to try to have the house demolished, although no demolition order was in place at the

time of trial; Ms. Graves plans to recommend to the Housing Appeals Board that the house be

demolished. Because the victim has failed to comply with fixing the items listed in Ms. Graves’

report, there was a bench warrant out for the victim’s arrest at the time of trial.

       {¶10} R.C. 2911.12(A)(3) provides that “[n]o person, by force, stealth, or deception,

shall * * * [t]respass 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.”

       “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); see also R.C. 2911.12(C).

       {¶11} We note that the trial court specifically found that the State failed to prove that

anyone was present or likely to be present. See R.C. 2909.01(C)(4).              The parties do not

challenge this finding.
                                                6


       {¶12} The only other provision of the statute that arguably applies to the facts of the

instant matter is R.C. 2909.01(C)(1). Thus, we turn our analysis to examining that provision.

       {¶13} In the often-cited case of State v. Green, 18 Ohio App.3d 69 (10th Dist.1984), the

Tenth District discussed the definitions of occupied structure under a former, substantively

similar version of the statute, and, in so doing, paid particular attention to the Committee

Comments regarding the statute. The Green court reasoned that:

       [i]t is obvious that the General Assembly, in adopting the definition of “occupied
       structure” found in R.C. 2909.01, intended to broaden the concept of the offense
       of burglary from one of an offense against the security of habitation, to one
       concerned with the serious risk of harm created by the actual or likely presence of
       a person in a structure of any nature. In that context, it is noteworthy that the
       General Assembly utilized the word “maintained” in division (A), as opposed to
       “occupied,” although it did use that latter word in division (B), which deals with
       structures other than dwellings. We believe that the distinction between
       “maintained” and “occupied” is significant, in the sense that the former alludes
       more to the character or type of use for which the dwelling is intended to be
       subjected, whereas the latter is more closely related to the actual use to which the
       structure is presently being subjected.

       Thus, a structure which is dedicated and intended for residential use, and which is
       not presently occupied as a person’s habitation, but, which has neither been
       permanently abandoned nor vacant for a prolonged period of time, can be
       regarded as a structure “maintained” as a dwelling within the meaning of division
       (A). In this context, then, division (A) includes a dwelling whose usual occupant
       is absent on prolonged vacation, a dwelling whose usual occupant is receiving
       long-term care in a nursing home, a summer cottage, or a residential rental unit
       which is temporarily vacant. In all these examples, even though the dwelling is
       not being presently occupied as a place of habitation, that situation is temporary,
       and persons are likely to be present from time to time to look after the property-to
       help “maintain” its character as a dwelling.

Id. at 71-72. In cases subsequent to Green, courts have relied on it, and/or the Committee

Comments, to conclude that various structures at issue were occupied structures within the

meaning of the statute despite the fact the residence was undergoing restorations and/or was

temporarily vacant for various reasons. See, e.g., State v. Davis, 8th Dist. No. 90050, 2008-

Ohio-3453, ¶ 44; State v. Burgos, 9th Dist. No. 05CA008808, 2006-Ohio-4305, ¶ 11, 22-24;
                                                 7


State v. Jackson, 12th Dist. Nos. CA2005-02-033, CA2005-03-051, 2006-Ohio-1147, ¶ 29-33;

State v. Charley, 8th Dist. No. 82944, 2004-Ohio-3463, ¶ 68-72; State v. Tornstrom, 8th Dist.

No. 72898, 1998 WL 811314, *10-11 (Nov. 19, 1998); State v. McLemore, 9th Dist. No.

95CA006037, 1995 WL 515477, *2-*3; State v. Bock, 16 Ohio App.3d 146,149-150 (12th

Dist.1984).

       {¶14} Nonetheless, we conclude that this case is distinguishable from the above cases.

We note that we have been unable to locate a case matching these precise facts. The problem

with concluding that this house was “maintained as a permanent or temporary dwelling,” is that

the house was clearly not being “maintained” in any sense of the common meaning of the word.

R.C. 2909.01(C)(1). The house was posted as condemned, and the city actively sought to have it

demolished. It was listed in the city’s report as uninhabitable and described in a letter to the city

as abandoned. Repairs were not being done and, given the financial resources of the victim and

the extent of the damage, which required professional assistance to remedy, there was no

evidence to conclude that repairs would ever be made. The evidence does not support the

conclusion that the house was only temporarily vacant or temporarily uninhabitable. The dissent

concludes that the house is an occupied structure under R.C. 2909.01(C)(1) because the

continuing purpose of the house is residential. While that certainly was the house’s purpose, it

can no longer be said that that such is the house’s purpose when no one can lawfully reside in the

house and the evidence does not support the conclusion that it is temporarily unoccupied due to

ongoing restoration or repairs. There was no evidence that the victim was maintaining the home

as a permanent or temporary dwelling given that she left the home to reside with her daughter,

that she could not be there from 7 p.m. to 7 a.m., that she could only be in the home to make

repairs, and that she was unable to maintain it as her dwelling through making the necessary
                                                8


repairs to render it habitable. Although the victim may have continued to store her personal

items at the residence, she was not maintaining the home as a permanent or temporary dwelling.

Given the evidence presented, it is unreasonable to conclude that a structure that was

uninhabitable at the time of trial and which was not under repair to make it habitable can be said

to be maintained as a dwelling notwithstanding its former purpose. Even when the evidence is

viewed in a light most favorable to the prosecution, the evidence does not support the conclusion

that the house was an occupied structure as the term is defined in R.C. 2909.01(C)(1)/former R.C

2909.01(A).

       {¶15} In light of the foregoing, we conclude there was insufficient evidence to conclude

that the house at issue was an occupied structure as defined by R.C. 2909.01(C). Thus, Mr.

Anderson’s conviction for burglary is based upon insufficient evidence. As our determination

bars Mr. Anderson’s retrial on this charge, see State v. Thompkins, 78 Ohio St.3d 380, 387

(1997), Mr. Anderson’s assignment of error has been rendered moot. See App.R. 12(A)(1)(c).

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF
       BOTH BURGLARY AND BREAKING AND ENTERING.

       {¶16} Mr. Anderson asserts in his second assignment of error that the trial court erred in

finding him guilty of both burglary and breaking and entering, as the crimes are mutually

exclusive. However, in light of our resolution of Mr. Anderson’s first assignment of error, we

conclude this assignment of error is moot. See App.R. 12(A)(1)(c).

                                               III.

       {¶17} In light of the foregoing, we conclude that Mr. Anderson’s conviction for burglary

is based on insufficient evidence. Thus, the judgment of the Summit County Court of Common

Pleas is reversed.
                                                  9



                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                      EVE V. BELFANCE
                                                      FOR THE COURT



DICKINSON, J.
CONCURS.

MOORE, P. J.
DISSENTING.

       {¶18} As I believe that the evidence, when viewed in the light most favorable to the

State, is sufficient to support Anderson’s conviction of burglary, I respectfully dissent.
                                                 10


       {¶19} In Green, referenced by the majority, the Tenth District determined that a

structure “maintained as a permanent or temporary dwelling” is one which is “dedicated and

intended for residential use, * * * which has neither been permanently abandoned nor vacant for

a prolonged period of time[.]” Id. at 71, 72. Thus, the Green Court focused upon the continuing

purpose of the structure in determining whether it was one “maintained as a dwelling.”

Likewise, this Court in the past has also focused upon the continuing purpose of a structure in

making a determination as to whether it is “maintained as a dwelling” within the meaning of

R.C. 2909.01(C)(1).     See State v. Craig, 9th Dist. No. 18350, 1998 WL 161285, * 3 (Apr. 8,

1998) (quoting Committee Comment to former R.C. 2909.01 for the proposition that “[w]hether

or not the dwelling is used as a permanent or temporary home is immaterial, so long as it is

maintained for that purpose. Thus the definition includes not only the mansion on Main Street,

but also the summer cottage, and the tin shack in the hobo jungle.” (Emphasis added.)), State v.

Burgos, 9th Dist. No. 05CA008808, 2006-Ohio-4305, ¶ 21 (“The relevant question in

determining if a structure is ‘occupied’ concerns the residential purpose of the dwelling[.]”),

State v. Merriweather, 9th Dist. No. 97CA006693, 1998 WL 239773, *5 (May 6, 1998)

(apartment used by police as a surveillance post was “maintained as a * * * dwelling”), and State

v. McLemore, 9th Dist. No. 95CA006037, 1995 WL 515477, *3 (Aug. 30, 1995) (duplex unit

was “maintained as a * * * dwelling” although tenant had not resided there for three weeks prior

to date at issue and the unit had been sealed by police).

       {¶20} I do not believe that the condemnation notice was determinative of whether Ms.

Miller’s house was “maintained as a dwelling.” Further, while I would agree that the evidence

was insufficient to demonstrate that, at the time of the offense, Ms. Miller was occupying the

home as her habitation, I believe there was sufficient evidence to demonstrate that she was
                                                11


maintaining the home as a dwelling. The testimony adduced at trial demonstrated that Ms.

Miller returned to her house on at least a weekly basis, she cared for her pets at the house, she

kept belongings at the house, she had food at the house, her clothing was hung in the house, she

maintained electricity service to the house, she received her mail at the house, she actively

sought assistance to repair the home, and she intended to return to her house on a full-time basis.

These actions constitute Ms. Miller’s continuing maintenance of the structure as that of a

dwelling.

       {¶21} I believe that the majority’s approach combines the alternate bases upon which an

“occupied structure” may be proven into the single inquiry of whether the property was used as a

habitation at the time of the offense. See R.C. 2909.01(C)(1) and (C)(2). Although I would

agree that Ms. Miller did not live at the house at the time of the offense, it is clear that her

actions pertaining to the house demonstrate that she maintained it as a dwelling. Viewed in this

light, the City’s, this Court’s, and even Ms. Miller’s determinations as to the present habitability

of the house are of limited value in the determination of whether the home was maintained as a

dwelling. See Green, 18 Ohio App.3d at 71-72 (“We believe that the distinction between

‘maintained’ and ‘occupied’ is significant, in the sense that the former alludes more to the

character or type of use for which the dwelling is intended to be subjected, whereas the latter is

more closely related to the actual use to which the structure is presently being subjected.”)

       {¶22} Therefore, viewed in the light most favorable to the State, a reasonable trier of

fact could determine that the continuing purpose of the house was that of a dwelling, and it was

neither vacated nor abandoned for a prolonged period of time, notwithstanding the status of

condemnation. Accordingly, I disagree with the majority’s determination that the evidence was

insufficient to support Anderson’s conviction. Further, having reviewed the record, I would
                                          12


conclude that his conviction was not against the weight of the evidence and overrule his

assignment of error.


APPEARANCES:

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
