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I'm not a detail guy.  My buddy Paul is; he's the one who figured out that you couldn't use a 5th degree felony to impeach a witness.  (Check it out; under EvidR 609, you can impeach someone with a crime that was "punishable by death or imprisonment in excess of one year"; a felony five is punishable by a maximum of one year.)  He'll pick things out of indictments or police reports that I'd never catch.

And that kind of attention to detail can pay off, as a couple of 2nd District decisions last week showed.

First up is State v. Chessman, which posed a simple situation:  Chessman had been convicted of rape in 2003, and upon his release from prison was required to verify his address and registration requirements every 90 days.  His sister bought him a cell phone, he didn't tell anybody about it, and long story short, found himself convicted for violation of RC 2950.05(D), which requires a person who's required to register to provide "notice of any change in vehicle information, email addresses, internet identifiers, or telephone numbers registered to or used by the offender."

That was an expensive cell phone:  since Chessman's underlying crime was  a first degree felony, so was the failure to notify, and it carried a three-year minimum prison sentence.  When reviewing the case, though, the 2nd District panel noticed a problem:  when it drafted RC 2950.99, the penalty section for all the sex offender registration offenses, the legislature forgot to provide a penalty for failing to provide notification of a change in telephone numbers.  "Under Ohio law," the court noted, "where there is no penalty, there is no crime," and that's the end of that. 

While the court picked up the problem in Chessman, the appellant's attorney was the bright guy in State v. Johnson.  Again, a simple set of fact:  Johnson had entered a house and relieved it of certain items that weren't his.  The house was undergoing extensive renovations at the time, and nobody was living in it.  Johnson was charged with breaking and entering, a 5th degree felony, under RC 2911.13(A), trespassing "in an unoccupied structure, with purpose to commit any theft offense, or any felony."  The owner of the house came in to testify that the house was unoccupied, and that was the end of that, too.

Until Johnson's attorney argued on appeal that the evidence was insufficient to convict him, because "the State failed to present sufficient evidence to demonstrate that the structure broken into was 'unoccupied.'"  And this is where things get funky.

The Revised Code does have a definition of an "occupied structure"; in this context, it's a house that's "maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present."  And, of course, trespassing in an occupied structure for purposes of committing a theft offense or felony is burglary, a 3rd degree felony.  So what's the definition of an unoccupied structure?  There isn't one.

And that's the problem.  While the owner testified the property was unoccupied, as the panel noted, his testimony was "rooted in the ordinary understanding of the term unoccupied."  But the legal definition of unoccupied, at least in this context, is the opposite of occupied, and the Code's definition of occupied is far broader than common usage; basically, a house is regarded as "occupied" unless it's been permanently abandoned or "vacant for a prolonged period of time."  And I mean prolonged:  there are cases holding that the definition of occupied "includes a dwelling house whose usual occupant is absent on a prolonged basis or is receiving long-term care in a nursing home, a summer cottage, or a residential rental unit which is temporarily vacant."  From this, the panel concludes,

The mere fact that a residence has no actual tenant or owner living in it does not establish that the structure is unoccupied within the meaning of the Revised Code. There is nothing in the record that tends to show that the house is being renovated for some use of a different character or type other than as a residence. Therefore, we find that there is insufficient evidence to conclude that the house was unoccupied.

In short, the house is "occupied" under the law pertaining to burglary, which means it isn't "unoccupied" for purposes of the breaking and entering statute.  Talk about bizarre results:  had the state prosecuted Johnson for burglary, it would have had the evidence necessary for conviction, but because it charged him with the lesser offense of breaking and entering, he walks. 

And then the concurring opinion decides to screw with our heads a bit further:

Obviously, a structure is either occupied or it is unoccupied. But because the offenses of Burglary and Breaking and Entering are separately defined, the fact that the structure involved is unoccupied becomes an essential element of Breaking and Entering that the State is required to prove beyond a reasonable doubt.  The unfortunate consequence is that the ambiguous nature of the structure involved may leave the State in a position where it is unable to prove, beyond reasonable doubt, that the structure is occupied, but it is also unable to prove, beyond reasonable doubt, that the structure is unoccupied. This, despite the indisputable fact that the structure must be one or the other.

This, the concurrence tells us, could be solved with a simple legislative fix:  "eliminating the word 'unoccupied' from the phrase 'unoccupied structure'" in the B&E statute.  I could explain, as does the concurring judge, how that would then create the problem that B&E would no longer be a lesser offense of burglary, but that would just make your head hurt.  More.

Anyway, kudos to the appellate lawyer who thought this through.  I have a feeling he and my buddy Paul should get together.


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