The state’s case was circumstantial but there was evidence to reasonably connect Stolzenburg to the rifle.

State v. Stolzenburg

2021 – Ohio – 3647

Twelfth District Appellate Court

Fayette County, Ohio

October 12, 2021

At the outset of the trial, Mr. Michael Stolzenburg stipulated to having previously been convicted of a felony offense of violence … because he had been convicted of a violent felony.

Deputy U.S. Marshal Mark Stroh testified that on Wednesday January 29, 2020, he was working with “SOFAST,” the Southern Ohio Fugitive Apprehension Strike Team, which is a multi-agency team of law enforcement officers who search for and arrest individuals with outstanding warrants. That day, SOFAST was looking for Mr. Stolzenburg, who had an outstanding arrest warrant. They went to his residence at 3075 Ford Road, Washington Courthouse, Ohio.  Mr. Stolzenburg had listed this home as his residence with the Adult Parole Authority. When they arrived, the officers met a female at the door. Deputy Marshal Stroh identified her as Mr. Stolzenburg’s girlfriend or wife. Mr. Stolzenburg then came to the door and submitted to arrest without incident.

Mr. Stolzenburg had a warrant for his arrest and SOFAST arrested here at 3075 Ford Road, Washington Courthouse, Ohio, he had .40 caliber bullets in his pocket.

Deputy Marshal Stroh took Mr. Stolzenburg into his custody and patted him down. During the search, Deputy Marshal Stroh recovered .40 caliber rifle bullets in Mr. Stolzenburg’s pants pocket. Deputy Marshal Stroh recalled Mr. Stolzenburg then commenting, “[I]t’s not a big deal I just found those while I was cleaning up around the house.”.  Spoiler Alert – These bullets are a REALLY big deal.

Deputy Marshal Stroh further recalled that Mr. Stolzenburg was not wearing a shirt and asked officers to get him a shirt to wear. Eventually, someone brought him a shirt.  A search of the home discovered a .40 caliber rifle laying on a bed.

Sergeant John Fausnaugh testified that he was a detective with the Fayette County Sheriff’s Office. He was also the manager of the Sheriff’s property room.

Sergeant Fausnaugh testified the rounds were .40-caliber Smith and Wesson “Blazer Brass.” He also determined that the rounds recovered near the rifle and the rounds found in Mr. Stolzenburg’s pocket matched the rifle’s bore caliber.

Mr. Stolzenburg filed a Motion to Suppress the bullets in his pocket and the rifle.  The trial denied the motion.  Mr. Stolzenburg appealed to Twelfth District Appellate Court which upheld the Motion to Suppress “The state’s case was circumstantial but there was evidence to reasonably connect Stolzenburg to the rifle.”.

Information for this article was obtained from State v. Stolzenburg, 2021 – Ohio – 3647.

This case was issued by the Twelfth District Appellate Court and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.


Lessons Learned:

  1. The Twelfth District Appellate Court evaluated Mr. Stolzenburg’s argument that he had no idea the rifle was within his 1,000 square foot home laying on the bed. The court dismissed Mr. Stolzenburg’s argument as it opined “Upon review, we find that the evidence demonstrated multiple connections between Stolzenburg, the rifle, and the residence, which, taken together, circumstantially demonstrate Stolzenburg’s constructive possession of the rifle. Stolzenburg listed 3075 Ford Road as his residence with the parole authorities. He was found there with a female companion. This was a small, 1000 square foot home in which a rifle was located on a bed, in plain sight. This indicates that Stolzenburg would have been aware of the existence of the rifle and would have had the ability to exercise dominion and control over it. It was winter and Stolzenburg was shirtless when first contacted by SOFAST agents. This indicates a level of comfort and permanence with the residence, thus further indicating that he did in fact live at the premises. Officers were also able to retrieve a shirt for him to wear following his arrest.  Stolzenburg was found with rounds in his pocket that matched the caliber and brand of rounds found near the rifle and matched the rifle’s bore caliber. His claim that the rounds were “no big deal” evidenced a guilty mind and his understanding that he was under disability. And his explanation that he found the bullets while “cleaning up” further connected him to the residence. One would not expect Stolzenburg to claim to be “cleaning up” a home where he did not reside.”.  Here the court applied the doctrine of circumstantial evidence to establish that Mr. Stolzenburg did knowingly possess the .40 caliber rifle on his bed.  One definition, as there are many, of Circumstantial Evidence: “Evidence of facts or circumstances from which the existence or nonexistence of fact in issue may be inferred.” Blacks Law Dictionary, 243 (6th Ed.)
  2. Law enforcement must always articulate all the information known at the time of detention, search, or arrest. In this case Deputy Marshal Stroh’s documentation that Mr. Stolzenburg’s statement ““[I]t’s not a big deal I just found those while I was cleaning up around the house.”, would be instrumental in establishing circumstantial evidence that Mr. Stolzenburg possessed the rifle.  Deputy Marshal Stroh also articulated that Mr. Stolzenburg was shirtless.  This too was important to the court as it recognized he was comfy inside the home in the middle of winter.  Consequently, the Twelfth District Appellate Court found the pocket full of bullets to be a very big deal!
  3. The Twelfth District Appellate Court specifically held ““The state’s case was circumstantial but there was evidence to reasonably connect Stolzenburg to the rifle.”. What is instructive is that anytime a court expands or limits law enforcement’s actions it is done under the Fourth Amendment Reasonableness Clause.  Here the court specifically underscores the reasonable doctrine in the holding.
  4. Courts often hold felons under a strict analysis when evaluating firearms in a home in which they live. Earlier this year, April 22, 2021, the Fifth District also used the Circumstantial Evidence Doctrine to uphold a conviction for Weapons Under Disability for Mr. Howell who claimed his son brought home a firearm and secreted it in a laundry basket full of clothes.  For more information on State v. Howell see Can a Firearm Left in a Laundry Basket Nestled Under Dirty Clothes by a Teenager be Constructively Possessed by the Dad?.

Does your agency train on Circumstantial Evidence?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.