State v. Bertram

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bertram, Slip Opinion No. 2023-Ohio-1456.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2023-OHIO-1456THE STATE OF OHIO, APPELLEE, v. BERTRAM, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Bertram, Slip Opinion No. 2023-Ohio-1456.]
Criminal law—Sufficiency of the evidence—Burglary—R.C. 2911.12(A)—To prove
that a defendant trespassed by stealth or deception in a burglary case, the
state must prove that the defendant actively avoided discovery or used
deceptive conduct to gain entry into the structure—Court of appeals’
judgment reversed, burglary conviction and judicial sanction associated
with it vacated, and cause remanded to trial court to enter judgment of
conviction for lesser included offense of criminal trespass and sentencing.
(No. 2022-1047—Submitted April 19, 2023—Decided May 3, 2023.)
APPEAL from the Court of Appeals for Scioto County,
No. 21CA3950, 2022-Ohio-2488.
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SUPREME COURT OF OHIO
DONNELLY, J.
{¶ 1} In this appeal, we are asked to determine whether appellee, the state
of Ohio, presented sufficient evidence at trial to convict appellant, Donald Bertram,
of burglary under R.C. 2911.12(A)(2), which required the state to prove that
Bertram trespassed by “force, stealth, or deception.” Because the evidence was
insufficient to prove the element of trespass by “force, stealth, or deception” as
those terms are defined under Ohio law or according to their plain meanings, we
reverse the judgment of the Fourth District Court of Appeals and vacate Bertram’s
burglary conviction and judicial-sanction sentence imposed under R.C. 2929.141.
We remand the case to the trial court for it to enter a judgment of conviction against
Bertram for criminal trespass under R.C. 2911.21(A)(1) and to sentence him, in
accordance with this opinion.
Background
{¶ 2} Timothy Huff testified that on the afternoon of September 18, 2020,
he was landscaping at his home when he heard a car with a “loud muffler.” This
“alerted” him, and he briefly went inside his house to retrieve his cellphone. When
he came back outside, he made eye contact with Bertram, the driver of the car. Huff
watched as Bertram drove past his house to a monastery up the road. When Bertram
reached the monastery, he turned his car around, drove back down the road, and
then parked the car on the road, near the end of Huff’s driveway.
{¶ 3} Huff testified that Bertram then exited his car and started walking
toward Huff’s garage, which was open. Huff told the jury that as Bertram
approached the garage, Bertram was acting “very cavalier” and had “no sense of
urgency at all.” Huff watched as Bertram strolled into the garage with a “smile on
his * * * face.” Based on Bertram’s smile and cavalier attitude during the
encounter, Huff did not initially believe that Bertram was intending to steal from
him.
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January Term, 2023
{¶ 4} Huff testified that once Bertram entered the garage, he picked up a
leaf blower worth around $500 and then walked back toward his car. As Bertram
walked back toward his car, Huff “told him to stop, put it down.” Instead, Bertram
placed the leaf blower into the passenger side of his car and then entered the car.
Because Bertram’s car did not start immediately, Huff was able to take several
close-up photos of Bertram. Once Bertram got the car started, he drove away.
{¶ 5} At trial, Bertram moved for acquittal under Crim.R. 29(A), but the
trial court denied the motion. The jury convicted Bertram of burglary in violation
of R.C. 2911.12(A)(2), a second-degree felony. At sentencing, the court terminated
Bertram’s previously imposed postrelease control and imposed a 491-day judicial-
sanction prison sentence for the postrelease-control violation. The court sentenced
him to an indefinite prison term of 8 to 12 years for the burglary offense, and it
ordered the prison sentences to be served consecutively.
{¶ 6} On direct appeal to the Fourth District, Bertram argued that there was
insufficient evidence to support his burglary conviction because the state had failed
to prove that he used force, stealth, or deception—as required by
R.C. 2911.12(A)—to enter Huff’s open garage. 2022-Ohio-2488, ¶ 19. The court
of appeals rejected Bertram’s argument, reasoning that Huff’s testimony showed
that Bertram’s “attitude and demeanor” had deceived Huff into believing that
Bertram was not intending to trespass into the garage and steal the leaf blower. Id.
at ¶ 38. Additionally, the court opined that Bertram’s “conduct could be construed
as sly behavior in an attempt to avoid the impression that he intended to steal the
leaf blower.” Id. Thus, the court of appeals held that the state had presented
sufficient evidence to establish that Bertram “trespassed by stealth or deception.”
Id. at ¶ 26, 38.
{¶ 7} We accepted Bertram’s discretionary appeal to consider the following
proposition of law:
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SUPREME COURT OF OHIO
To prove trespass by stealth or deception in a burglary case,
the state must show that the trespasser actively avoided discovery or
used deceptive conduct to gain entrance to the structure.
See 168 Ohio St.3d 1452, 2022-Ohio-3903, 198 N.E.3d 105.
Law and Analysis
{¶ 8} Under a sufficiency-of-the-evidence analysis, the key inquiry is
“whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4. A challenge to the sufficiency of the
evidence is reviewed de novo. See State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-
6670, 170 N.E.3d 816, ¶ 15.
{¶ 9} The state charged Bertram with burglary in violation of
R.C. 2911.12(A)(2). That statute provides: “No person, by force, stealth, or
deception, shall * * * [t]respass in an occupied structure or in a separately secured
or separately occupied portion of an occupied structure that is a permanent * * *
habitation of any person when any person * * * is present or likely to be present,
with purpose to commit in the habitation any criminal offense.” Thus, the elements
that the state was required to prove to convict Bertram of burglary were (1) a
trespass by force, stealth, or deception (2) into an occupied structure (3) when
another was present or likely to be present (4) with the purpose to commit a criminal
offense in the structure. See id.{¶ 10} The “force, stealth, or deception” element refers to how a trespasser
gained entry into the structure. Neither the state nor the court of appeals has
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January Term, 2023
suggested that Bertram trespassed by force, and we find no evidence that he did so.
Bertram contends that “[a]lthough the record shows that [he] trespassed on * * *
Huff’s property with the purpose to commit a criminal offense, there is no evidence
that he accomplished the trespass “ ‘by stealth *** or
deception.’ R.C. 2911.12(A).” We agree that the state presented insufficient
evidence to prove that Bertram trespassed by stealth or deception.
{¶ 11} The interpretation of a statute is a matter of law, which we review de
novo. State v. Jeffries, 160 Ohio St.3d 300, 2020-Ohio-1539, 156 N.E.3d 859, ¶ 15.
When interpreting a statute, we begin by reviewing its plain language. State v.
Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 3, 16. When
the meaning of a statute is clear and definite, it must be applied as written. Id. at
¶ 16. “To determine the plain meaning of a statute, a court relies on the definitions
provided by the legislative body.” Lingle v. State, 164 Ohio St.3d 340, 2020-Ohio-
6788, 172 N.E.3d 977, ¶ 15. “When a term is not defined in the statute, we give
the term its plain and ordinary meaning.” Id.{¶ 12} The court of appeals used the definition of “deception” provided in
R.C. 2913.01(A).1 2022-Ohio-2488 at ¶ 25. That definition states:
“Deception” means knowingly deceiving another or causing
another to be deceived by any false or misleading representation, by
withholding information, by preventing another from acquiring
information, or by any other conduct, act or omission that creates,
1. The opening clause of R.C. 2913.01 states that the listed definitions that follow it apply “[a]s used
in this chapter.” But the offense of burglary falls under R.C. Chapter 2911, not R.C. Chapter 2913.
The parties have not disputed the applicability of the statutory definition, and this was also the
definition supplied to the jury in this case, so we rely on it here. Regardless, the result in this case
would be the same applying either the statutory definition or the plain meaning of the term.
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SUPREME COURT OF OHIO
confirms, or perpetuates a false impression in another, including a
false impression as to law, value, state of mind, or other objective or
subjective fact.
{¶ 13} “Stealth” is not defined in the Revised Code, so we consider its plain
and ordinary meaning. In determining the plain and ordinary meaning of a word,
courts may look to dictionary definitions of the word as well as the “meaning that
the word[] ha[s] acquired when * * * used in case law.” Rancho Cincinnati Rivers,
L.L.C. v. Warren Cty. Bd. of Revision, 165 Ohio St.3d 227, 2021-Ohio-2798, 177
N.E.3d 256, ¶ 21.
{¶ 14} Merriam-Webster defines “stealth” as “intended not to attract
attention.” Merriam-Webster’s Collegiate Dictionary 1221 (11th Ed.2003). And
“stealth” has been defined in caselaw as “ ‘any secret, sly or clandestine act to avoid
discovery and to gain entrance into or to remain within a residence of another
without permission.’ ” State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168(3d Dist.1993), quoting State v. Lane, 50 Ohio App.2d 41, 47, 361 N.E.2d 535, 540
(10th Dist.1976). The court of appeals used this caselaw definition, 2022-Ohio-
2488 at ¶ 26, and that definition has not been disputed here.
{¶ 15} The state asserts that Bertram’s “cavalier attitude” and “sly
behavior” were deceptive conduct intended to mask his intention to steal the leaf
blower from Huff’s garage and that the evidence satisfied the element of “stealth”
or “deception.” But the state’s interpretation of these words is contrary to the
statutory definition and the plain meanings of the words.
{¶ 16} Here, the evidence utterly failed to establish that during his trespass,
Bertram engaged in any secret, sly, or clandestine conduct. 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.
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January Term, 2023
{¶ 17} The evidence presented at trial reveals that the loud muffler on
Bertram’s car alerted Huff to the car as Bertram drove past Huff’s house. In fact,
the two made eye contact, and Huff watched as Bertram drove up the road. Huff
became suspicious and went inside his house to get his cellphone. Bertram did not
try to conceal his car or wait until Huff went away before entering the garage.
Instead, Bertram parked the car close to Huff’s driveway and in Huff’s plain view.
According to Huff, Bertram acted “cavalier” and had “no sense of urgency” as he
moved toward the garage with a “smile” on his face. In the full view of Huff and
without saying a word, Bertram walked toward the open garage in broad daylight,
entered it, and then grabbed Huff’s property and left with it. After examining this
evidence in the light most favorable to the prosecution, no rational trier of fact could
have found the essential elements of the burglary offense beyond a reasonable
doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 18} Bertram did not commit burglary under Ohio law, because he did not
gain access to Huff’s garage by force, stealth, or deception. See R.C. 2911.12(A).
The state did not present sufficient evidence to prove all the elements necessary to
convict Bertram of burglary. We therefore vacate his burglary conviction and
judicial sanction imposed under R.C. 2929.141, the latter of which cannot be
imposed unless the offender is convicted of a felony while on postrelease control.
Here, we are vacating Bertram’s felony conviction, so the judicial sanction
associated with it cannot stand.
{¶ 19} But this does not mean that Bertram is not guilty of a crime in this
case. At oral argument, Bertram conceded that the evidence of his conduct
sufficiently proved the offenses of criminal trespass and misdemeanor theft. We
have held that “[w]hen there is insufficient evidence to sustain a conviction for one
crime, but sufficient evidence to sustain a lesser included offense of that crime,” it
is appropriate to modify the verdict accordingly, without ordering a new trial. State
v. Smith, 167 Ohio St.3d 220, 2022-Ohio-269, 191 N.E.3d 418, ¶ 12.
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SUPREME COURT OF OHIO
{¶ 20} “Criminal trespass” is defined as knowingly entering or remaining
on the land or premises of another without privilege to do so. R.C. 2911.21(A)(1).
Lower courts have determined that criminal trespass is a lesser included offense of
burglary. See, e.g., State v. Morris, 9th Dist. Medina No. 07CA0044-M, 2008-
Ohio-3209, ¶ 7, 11; State v. Miller, 11th Dist. Lake No. 2002-L-162, 2004-Ohio-
6342, ¶ 61.2 We order the trial court on remand to enter a judgment of conviction
against Bertram for misdemeanor criminal trespass under R.C. 2911.21(A)(1).
Conclusion
{¶ 21} We hold that to prove that a defendant trespassed by stealth or
deception in a burglary case, the state must prove that the defendant actively
avoided discovery or used deceptive conduct to gain entry to the structure. Because
the evidence did not show that Bertram made any attempt to actively avoid his
discovery or use deceptive conduct to gain entry into the open garage, the evidence
was insufficient to convict him of burglary. However, when Bertram walked into
the open garage without privilege to do so, he committed the lesser included offense
of criminal trespass.
{¶ 22} We reverse the judgment of the court of appeals, vacate Bertram’s
burglary conviction and judicial sanction, and remand the case to the trial court for
it to enter a judgment of conviction against Bertram for criminal trespass under
R.C. 2911.21(A)(1) and sentence him accordingly.
Judgment reversed
and cause remanded.
KENNEDY, C.J., and FISCHER, DEWINE, STEWART, BRUNNER, and DETERS,
JJ., concur.
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2. Theft is not a lesser included offense of burglary. See State v. Crump, 190 Ohio App.3d 286,
2010-Ohio-5263, 941 N.E.2d 859, ¶ 20 (10th Dist.).
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January Term, 2023
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis,
Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Max Hersch, Assistant Public
Defender, for appellant.
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