We hold that to prove that a defendant trespassed by stealth or deception in a burglary case, the state must prove that the defendant actively avoided discovery or used deceptive conduct to gain entry to the structure.
State v. Bertram
2023 – Ohio – 1456
Supreme Court of Ohio
May 3, 2023
Mr. Timothy Huff [victim] testified that on the afternoon of Friday September 18, 2020, he was landscaping at his home when he heard a car with a “loud muffler.” This “alerted” him, and he briefly went inside his house to retrieve his cellphone. When he came back outside, he made eye contact with Mr. Donald Bertram, the driver of the car. Mr. Huff watched as Mr. Bertram drove past his house to a monastery up the road. When Mr. Bertram reached the monastery, he turned his car around, drove back down the road, and then parked the car on the road, near the end of Mr. Huff’s driveway.
Mr. Huff testified that Mr. Bertram then exited his car and started walking toward Mr. Huff’s garage, which was open. Mr. Huff told the jury that as Mr. Bertram approached the garage, Mr. Bertram was acting “very cavalier” and had “no sense of urgency at all.” Mr. Huff watched as Mr. Bertram strolled into the garage with a “smile on his … face.”
Based on Mr. Bertram’s smile and cavalier attitude during the encounter, Mr. Huff did not initially believe that Mr. Bertram was intending to steal from him. Mr. Huff testified that once Mr. Bertram entered the garage, he picked up a Husqvarna leaf blower leaf blower worth around $500 and then walked back toward his car. Mr. Huff stated “His … behavior was just very off of a normal person. His eyes were completely glassed over.” Appellant also “had open lesions all over his body.” As Mr. Bertram walked back toward his car, Mr. Huff “told him to stop, put it down.” Instead, Mr. Bertram placed the leaf blower into the passenger side of his car and then entered the car.
Because Mr. Bertram’s car did not start immediately, Mr. Huff was able to take several close-up photos of Mr. Bertram. Once Mr. Bertram got the car started, he drove away.
At trial, Mr. Bertram moved for acquittal under Crim.R. 29(A), but the trial court denied the motion. The jury convicted Mr. Bertram of burglary in violation of O.R.C. §2911.12(A)(2), a second-degree felony. At sentencing, the court terminated Mr. Bertram’s previously imposed post release control and imposed a 491-day judicial- sanction prison sentence for the post release-control violation. The court sentenced him to an indefinite prison term of eight to twelve years for the burglary offense, and it ordered the prison sentences to be served consecutively.
On direct appeal to the Fourth District, Mr. Bertram argued that there was insufficient evidence to support his burglary conviction because the state had failed to prove that he used force, stealth, or deception—as required by O.R.C. §2911.12(A) Burglary – to enter Mr. Huff’s open garage. The court of appeals rejected Mr. Bertram’s argument, reasoning that Mr. Huff’s testimony showed that Mr. Bertram’s “attitude and demeanor” had deceived Mr. Huff into believing that Mr. Bertram was not intending to trespass into the garage and steal the leaf blower. Additionally, the court opined that Mr. Bertram’s “conduct could be construed as sly behavior in an attempt to avoid the impression that he intended to steal the leaf blower.” Thus, the court of appeals held that the state had presented sufficient evidence to establish that Mr. Bertram “trespassed by stealth or deception.”
We accepted Mr. Bertram’s discretionary appeal to consider the following proposition of law.
Appeal
The state charged Mr. Bertram with burglary in violation of O.R.C. §2911.12(A)(2). That statute provides: “No 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 that is a permanent … habitation of any person when any person … is present or likely to be present, with purpose to commit in the habitation any criminal offense.”Thus, the elements that the state was required to prove to convict Mr. Bertram of burglary were (1) a trespass by force, stealth, or deception (2) into an occupied structure (3) when another was present or likely to be present (4) with the purpose to commit a criminal offense in the structure.
The “force, stealth, or deception” element refers to how a trespasser gained entry into the structure. Neither the state nor the court of appeals has suggested that Mr. Bertram trespassed by force, and we find no evidence that he did so. Mr. Bertram contends that “[a]lthough the record shows that [he] trespassed on … Mr. Huff’s property with the purpose to commit a criminal offense, there is no evidence that he accomplished the trespass “ ‘by stealth … or deception.’ O.R.C. §2911.12(A).” We agree that the state presented insufficient evidence to prove that Mr. Bertram trespassed by stealth or deception.
Deception
The court of appeals used the definition of “deception” provided in O.R.C. §2913.01(A) 2022-Ohio-2488 at ¶ 25. That definition states:
“Deception” means knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.
Stealth
“Stealth” is not defined in the Revised Code, so we consider its plain and ordinary meaning. In determining the plain and ordinary meaning of a word, courts may look to dictionary definitions of the word as well as the “meaning that the word[] ha[s] acquired when … used in case law.” Rancho Cincinnati Rivers, L.L.C. v. Warren Cty. Bd. of Revision, 2021-Ohio-2798.
Merriam-Webster defines “stealth” as “intended not to attract attention.” Merriam-Webster’s Collegiate Dictionary 1221 (11th Ed.2003). And “stealth” has been defined in caselaw as “ ‘any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within a residence of another without permission.’ ” State v. Ward, 85 Ohio App.3d 537, 540, (3d Dist.1993).
Cavalier Attitude
The state asserts that Mr. Bertram’s “cavalier attitude” and “sly behavior” were deceptive conduct intended to mask his intention to steal the leaf blower from Mr. Huff’s garage and that the evidence satisfied the element of “stealth” or “deception.” But the state’s interpretation of these words is contrary to the statutory definition and the plain meanings of the words.
A Smile may be Cavalier … But it is Certainly Not Stealthy
Here, the evidence utterly failed to establish that during his trespass, Mr. Bertram engaged in any secret, sly, or clandestine conduct. Mr. Bertram did not act to avoid his discovery or to reduce the chance of his being noticed. Nor did Mr. Bertram deceive, mislead, lie to, or trick Mr. Huff into granting him entry into the garage.
The evidence presented at trial reveals that the loud muffler on Mr. Bertram’s car alerted Mr. Huff to the car as Mr. Bertram drove past Mr. Huff’s house. In fact, the two made eye contact, and Mr. Huff watched as Mr. Bertram drove up the road. Mr. Huff became suspicious and went inside his house to get his cellphone. Mr. Bertram did not try to conceal his car or wait until Mr. Huff went away before entering the garage. Instead, Mr. Bertram parked the car close to Mr. Huff’s driveway and in Mr. Huff’s plain view. According to Mr. Huff, Mr. Bertram acted “cavalier” and had “no sense of urgency” as he moved toward the garage with a “smile” on his face. In the full view of Mr. Huff and without saying a word, Mr. Bertram walked toward the open garage in broad daylight, entered it, and then grabbed Mr. Huff’s property and left with it. After examining this evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the burglary offense beyond a reasonable doubt.
Mr. Bertram did not commit burglary under Ohio law, because he did not gain access to Mr. Huff’s garage by force, stealth, or deception. The state did not present sufficient evidence to prove all the elements necessary to convict Mr. Bertram of burglary. We therefore vacate his burglary conviction and judicial sanction imposed under O.R.C. §2929.141, the latter of which cannot be imposed unless the offender is convicted of a felony while on post release control. Here, we are vacating Mr. Bertram’s felony conviction, so the judicial sanction associated with it cannot stand.
Donald is a Thief of a Different Statute
But this does not mean that Mr. Bertram is not guilty of a crime in this case. At oral argument, Mr. Bertram conceded that the evidence of his conduct sufficiently proved the offenses of criminal trespass and misdemeanor theft.
“Criminal trespass” is defined as knowingly entering or remaining on the land or premises of another without privilege to do so. O.R.C. §2911.21(A)(1). We order the trial court on remand to enter a judgment of conviction against Mr. Bertram for misdemeanor criminal trespass under O.R.C. §2911.21(A)(1).
Holding
We hold that to prove that a defendant trespassed by stealth or deception in a burglary case, the state must prove that the defendant actively avoided discovery or used deceptive conduct to gain entry to the structure.
Because the evidence did not show that Mr. Bertram made any attempt to actively avoid his discovery or use deceptive conduct to gain entry into the open garage, the evidence was insufficient to convict him of burglary. However, when Mr. Bertram walked into the open garage without privilege to do so, he committed the lesser included offense of criminal trespass.
We reverse the judgment of the court of appeals, vacate Mr. Bertram’s burglary conviction and judicial sanction, and remand the case to the trial court for it to enter a judgment of conviction against Mr. Bertram for criminal trespass under O.R.C. §2911.21(A)(1) and sentence him accordingly.
Lessons Learned:
- This case pits logic versus law. Logically if a someone boldy walks into a garage and steals property that should be considered ‘stealth’ as required by O.R.C. §2911.12(A) Burglary – however, when the word stealth is painfully word-smithed by the court, cavalier is NOT stealth. Perhaps this means more thieves will be carry a smile instead of a crowbar to get their charges reduced from a felony to a misdemeanor.
- When law enforcement investigates a burglary, the officer must demonstrate how the suspect utilized stealth or deception to steal. If the suspect boldly smiles at the victim that could reduce the felony to a misdemeanor.
- Law enforcement is THE hardest job in America and this case is demonstrative as to why. The Supreme Court of Ohio decided this case seven to zero! All seven justices held that a smile is not stealthy.
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