"A man who walked into a homeowner’s open garage and stole his leaf blower didn’t commit burglary because he didn’t use “force, stealth or deception” to gain entrance, the Ohio Supreme Court has ruled.
The Ohio Supreme Court vacated the burglary conviction of Donald Bertram and ordered a lower court to change the conviction to the lesser-included offense of criminal trespass, report Court News Ohio and the Associated Press.
The Legal Profession Blog and How Appealing noted the May 3 decision.
The homeowner, Timothy Huff of Portsmouth, Ohio, had testified that he was working in his yard in September 2020 when Bertram parked his car near Huff’s driveway. Bertram had a smile on his face as he strolled past Huff and into his garage, which led Huff to think that Bertram didn’t intend to steal anything.
Bertram took a leaf blower worth around $500 and placed it in his car while ignoring Huff’s demands to stop. Bertram was unable to drive off immediately because he had trouble starting his car, which gave Huff time to take several close-up photos of Bertram.
An intermediate Ohio appeals court had upheld the burglary conviction on the ground that the evidence showed that Bertram’s sly behavior amounted to trespass by “stealth or deception.”
The state supreme court disagreed.
“Here, the evidence utterly failed to establish that during his trespass, Bertram engaged in any secret, sly or clandestine conduct,” the Ohio Supreme Court said. “Bertram did not act to avoid his discovery or to reduce the chance of his being noticed. Nor did Bertram deceive, mislead, lie to, or trick Huff into granting him entry into the garage.”
This article was originally posted in the The ABA Journal
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