Summary
observing that Ohio courts are "inexplicably split in their resolution" of the timing-of-intent issue
Summary of this case from United States v. Bernel-AvejaOpinion
No. 9307806.
Decided November 9, 1993.
Ronni Ducoff, Assistant Prosecuting Attorney, for plaintiff state of Ohio.
Paul Smith, Assistant Public Defender, for defendant.
I. FACTS
On May 3, 1993, Lola D., age thirteen, was invited to spend the night at her friend Maria's house. As Lola accompanied her home, Maria decided to stop at the home of Angela France. Lola had no knowledge of the visit until the girls neared the France house. When nobody responded to their repeated knocking on the door of the France house, Lola opened the front door, which was unlocked, and called out. When no one answered, Lola went into the kitchen and stole a pack of cigarettes from the top of the refrigerator. Upon stealing the cigarettes, she left the Frances' house. The state has charged Lola with aggravated burglary, pursuant to R.C. 2911.11(A)(3), which makes it a felony of the first degree to trespass in a building occupied as a home, with the purpose of committing a theft offense therein. Maria was not charged with any offense in connection with the occurrence.
II. DISCUSSION
The issue in this case is whether the offense of aggravated burglary, pursuant to R.C. 2911.11(A)(3), requires that the intent to commit a theft offense exist at the time of the trespass. The child claims that she did not have the requisite intent at the time of her trespass to support the charge of aggravated burglary. The state argues that it is irrelevant whether Lola's intent to commit a theft offense was formed after she had already committed the trespass, because the act of trespassing is a continuing offense which at some point became simultaneous with her intention to steal the pack of cigarettes.
Although the language of R.C. 2911.11 appears to clearly require an intent to commit a theft offense or felony which is contemporaneous with the trespass, Ohio courts are inexplicably split in their resolution of this issue. See State v. Clelland (1992), 83 Ohio App.3d 474, 487-488, 615 N.E.2d 276, 285-286, at fn. 3. Several Ohio appellate courts have determined that the purpose to commit a felony or theft offense must be formed either before or at the time of the initial trespass or entry. Id. Other Ohio appellate courts have held that the necessary felonious purpose may evolve during the course of the trespass. Id.
The state relies primarily on State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, in making its assertion that the intent to commit a theft offense may be formed after the initial trespass. However, this reliance is unfounded because the facts of Steffen are clearly distinguishable from the facts of this matter. The issue in Steffen was whether the defendant had in fact trespassed, because he had originally been invited into the victim's home as a salesman. The Supreme Court of Ohio affirmed the defendant's conviction for aggravated burglary, finding that the original invitation into the victim's home was vitiated when the defendant commenced his assault upon her. This rationale cannot be applied to the facts of this case. The issue here is not whether Lola committed a trespass, but whether she had the requisite intent at the time of the trespass to raise her offense to the level of aggravated burglary, a felony of the first degree.
The case most factually analogous to this one is State v. Lewis (1992), 78 Ohio App.3d 518, 605 N.E.2d 451 (defendant entered house to purchase eggs, but when nobody was home he stole a checkbook). In Lewis, the Fourth District Court of Appeals declined to follow the line of cases holding that the requisite intent could be formed after the trespass had occurred, and instead held that the intent to commit a theft offense must be contemporaneous with the trespass. The Lewis court based its decision on the express meaning of the language employed by the legislature in R.C. 2911.11. As the Lewis court stated:
"There is no question that the legislature could have included those situations where the intent is formed after the trespass. However, where the legislature says aggravated burglary shall be trespass with intent, a court may not, under the guise of construction, eliminate a distinction the legislature has created in the language of the statute." Lewis, 78 Ohio App.3d at 522, 605 N.E.2d at 454.
The distinction referred to by the Lewis court is critical, and will not be ignored by this court. It is based on the appellate court's thorough understanding of the five-hundred-year tradition of common law, which is the genesis of Ohio's current criminal statutes. This understanding is augmented by the Committee Comment to H.B. No. 511, which notes that the 1972 omnibus revisions, in large measure, reiterated Ohio's earlier analogous criminal statutes, which were themselves a reiteration of the common law. The 1972 revisions of the criminal statutes therefore reflect the common-law tradition that came before, and many structural differences are more apparent than real.
Even if there were not a common-law tradition and earlier analogous statutes on which to rely, logic and the legislative rationale for the differentiated penalties for aggravated burglary, lesser burglary offenses, and trespass would require this court to reach the conclusion that the state has inappropriately charged Lola.
The legislature clearly based its classification of the breaking and entering offenses on an assessment of the behavior's dangerousness. This measure of dangerousness is reflected in the elements of the offenses and the relative severity of the penalties, as well as in the Committee Comments to the statute. Of the historically related offenses, the charge of aggravated burglary carries with it the most severe penalty. According to the Committee Comment to H.B. No. 511, aggravated burglary is the most serious of the breaking and entering offenses because the "relative potential for harm to persons" is at a maximum. It would follow, then, that the lesser burglary offenses should apply to those instances of breaking and entering when the "relative potential for harm to persons" is moderate. Finally, trespass should apply to those types of related behaviors when there is minimal potential for harm to persons. The legislative intent that the charge of aggravated burglary be reserved for the most dangerous behaviors is very clear from the structure of the statute and the accompanying Comment.
As a society, we blur such distinctions in our criminal statutes at our own peril. The justice system does not operate in a vacuum, and the charges against an offender must reflect the reality of the offender's conduct. Presumably, the state has charged Lola with aggravated burglary, rather than with a lesser burglary offense or with trespass, because there was great "relative potential for harm to persons" inherent in her conduct. A juvenile who is adjudicated delinquent as an aggravated burglar is, by definition, a dangerous offender who is liable to be confined for a lengthy term in a secure juvenile correctional facility. Does the evidence in this matter indicate that Lola is a dangerous offender? According to the evidence presented, Lola does not appear to be a dangerous offender. To treat her as a dangerous offender for stealing a pack of cigarettes would, most certainly, provide grist for the literary mill of a Twenty-First-Century Victor Hugo. Of more immediate concern, if Lola were to be confined in a secure facility as a dangerous offender, who might be released on early parole to make room for her?
The severe overcrowding of Ohio's prisons and juvenile facilities is a fact of life with which we will contend during this decade and the next. It is common knowledge that there are many dangerous offenders in adult prisons and juvenile correctional facilities who, in the interest of public safety, ought to be securely confined for the maximum period allowed by law, if not longer. Likewise, it is common knowledge that if a nonviolent first offender, such as Lola, is committed to a secure facility, the pressures attendant to facility overcrowding would likely prompt the release of an offender who has served the minimum term allowed by law. As severe facility overcrowding tends to prompt the release of offenders such as Lola at the earliest opportunity allowed by law, those not released at the earliest opportunity are likely to be administratively classified as dangerous offenders. Hence, it is likely that a dangerous offender would be paroled early to make room for an offender such as Lola.
If any semblance of success in confronting crime is to be realized, the component parts of the justice system — police agencies, prosecuting agencies, the courts, and corrections — must formulate a strategic plan that sets goals and objectives and devises strategies to achieve those goals, including the rational allocations of justice resources. As there are precious few juvenile correctional cells because of institutional overcrowding, it would be folly to waste them on nonviolent first offenders. When a nonviolent first offender enters the front door of the institution, a dangerous offender is likely to exit the back door.
At the very minimum, a logical and rational justice policy would require that correctional cells, which are in short supply because of severe facility overcrowding, be allocated based on a dangerousness measure, such as the one implemented in by the legislature in its assessment of the "relative potential for harm to persons," at least until overcrowding is alleviated. Likewise, other justice resources in short supply, such as short-term detention cells, investigators, prosecutors, intensive behavior modification programming and courtrooms, ought to be allocated in accordance with a dangerousness measure. Such a policy would require that the "relative potential for harm" which distinguishes aggravated burglary, lesser burglary offenses and related trespass behaviors be scrupulously observed during investigation, at charging, during prosecution, at adjudication and disposition, and during corrections.
If a dangerous offender is paroled to make room for Lola, then we do blur the distinctions in our criminal statutes at our own peril. Such a haphazard approach to criminal justice is both mindless and dangerous to public safety. This court chooses not to blur the distinctions. The state's evidence is that Lola committed a trespass and a subsequent theft. There is no evidence that Lola harbored an intent to steal at the time she entered the home. If anything, the evidence indicates that when she opened the door and entered the home, it was her intention to call out to Angela.
III. CONCLUSION
It is this court's view that the relative potential for harm to persons was minimal as a result of Lola's conduct. The court finds that it is in the interest of justice, pursuant to Juv.R. 22, to amend the complaint to allege criminal trespass, pursuant to R.C. 2911.21, and petty theft, pursuant to R.C. 2913.02, both misdemeanors, which amended complaint conforms to the evidence at the trial.
The court further finds that the allegations of the amended complaint, alleging misdemeanor trespass and petty theft, have been proven by evidence beyond a reasonable doubt.
IV. ORDER
1. The complaint is amended pursuant to Juv.R. 22 to allege criminal trespass, pursuant to R.C. 2911.21, and petty theft, pursuant to R.C. 2913.02.
2. The child is adjudged delinquent on the amended complaint.
3. The matter is continued for disposition.
So ordered.