Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

August 21, 2006

Interesting question popped up today in the office:  a client's charged with burglary for breaking into a home during the daytime.  One of the elements is that the someone "was present or likely to be present."  Does the fact that the homeowner was at work get the charge reduced from a second to a third degree felony?

It may, according to In re Meatchema case out of the 1st District a couple weeks ago.

The evolution of this issue is interesting.  There's a 1977 Supreme Court case, State v. Kirby, 50 OSt2d 41, which essentially held that, since the house was a permanent habitation, it was "not reasonable" for the jury to conclude that no person was likely to be present.  This was a bad decision:  as the Court later noted six years later in State v. Fowler, 4 OSt3d 16, if you read Kirby as saying that anytime the state proves the burglarized premises were a temporary or permanent habitation, it's presumed that a person is likely to be present, you essentially have created a conclusive -- and unconstitutional -- presumption as to the existence of an element of the crime.

In Fowler, the Court held that evidence that the homeowners were "in and out" of the house on the day in question was sufficient to prove they were "likely to be present."  Meatchem's at the other end of the scale:  the family didn't live in the home during the summer, but only checked on it a couple of times a week.

The cases on this from our district are fairly decent, from a defense standpoint.  A good one to start with is a case from 1999, State v. Cantin, 132 OApp3d 808.  The facts aren't great -- the home was in disrepair, and no one was living in it -- but it contains an excellent summary of the case law on the issue.  A better one is a decision from three years earlier, State v. Lockhart, 115 OApp3d 370, where the court found the "likely to be present" element hadn't been proved where the only evidence was that the homeowner was at work from 8:30 to 5:00 on the day in question.

Although they cases are fairly fact-dependent, there are some general points to keep in mind.  First, as Meatchem indicates, "likely" means "probable."  Second, the more rigid the homeowner's schedule, the better the chance that they'll be held not "likely to be present."

Search

Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case