State v. Fontes , 85 Ohio St. 3d 1408 ( 1999 )

Union App. No. 14-97-45. On review of order certifying a conflict. The court determines that a conflict exists; the parties are to brief the issue stated in the court of appeals’ Journal Entry filed December 7,1998:

“Upon consideration of appellant’s motion to certify a conflict under Article IV, Section 3(B)(4) of the Ohio Constitution, the judges of this court find that the judgment in this case is in conflict with the judgments pronounced upon the same question by the Fourth District Court of Appeals in State v. Waszily (1995), 105 Ohio App.3d 510 [664 N.E.2d 600]; the Eighth District Court of Appeals in State v. Lewis (1992), 78 Ohio App.3d 518 [605 N.E.2d 451]; and the Tenth District Court of Appeals in State v. Flowers (1984), 16 Ohio App.3d 313 [16 OBR 344, 475 N.E.2d 790].

“The issue upon which the conflict exists: Pursuant to R.C. 2911.11(A), must the purpose to commit a criminal offense be formed at or before the time of trespass in an occupied structure or may it evolve during the course of the trespass?”

Resnick and F.E. Sweeney, JJ., dissent.