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9th District splits, preoccupied with burglary case
BENJAMIN WHITE
Associate Editor
Published: September 7, 2012
On March 4, 2011, Akron police found Pernell Anderson hiding under blankets in the bedroom of a Crestview Avenue house after responding to reports of a burglary. He quickly confessed, admitting he “had a habit, had gone out drinking, and that he broke into the house.” Anderson was found with some of the owner’s property on his person and admitted to stashing some frozen meat and a jewelry box to take with him.
The Summit County Court of Common Pleas convicted Anderson of third-degree burglary and of breaking and entering, which it merged for sentencing purposes. He received sentence of four years in prison.
Following his conviction, Anderson appealed, claiming that the trial court’s decision went against the manifest weight of the evidence. More specifically, Anderson’s attorney, Gregory Price, solely contested the determination that the house an “occupied structure” as required for a burglary conviction.
At the time of the undisputed break-in, the Crestview Avenue house, to which Anderson gained access through a window, had remained uninhabited for at least three months. The owner, however, testified that she lived at her mother’s house because the house had no heat and visited the property a few times a week to feed her cats and pick up her mail. The responding police officer testified that the house “appeared to be lived in,” with possessions, food and pets throughout the premises.
Because of the basement’s mold problem, which resulted from an earlier flood, repair agencies refused to fix the heating system. In February 2011, the city of Akron declared the house “unfit for human habitation,” labeled it condemned and began trying to have the structure demolished, though no demolition order had yet been signed.
Because the victim failed to comply with fixing the items listed in the state’s report, a bench warrant called for her arrest.
Anderson unknowingly picked the perfectly ambiguous time to break into the house, which the owner had bought in 1979.
O.R.C. 2909.01(C) defines an occupied structure as any shelter that is:
• “maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.”
• “occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.”
• “specially adapted for the overnight accommodation of any person, whether or not any person is actually present.”
• a place where “any person is present or likely to be present.”
All parties agreed that the fourth stipulation would not apply, leaving any of three qualifiers to uphold Anderson’s burglary conviction.
The majority of the 9th District Court of Appeals, in an opinion authored by Judge Eve Belfance, diverged from the often-cited State v. Green (10th Dist. 1984), which determined that an occupied structure could include a temporarily unoccupied dwelling that at which person is “likely to be present from time to time … to help ‘maintain’ its character as a dwelling.” Judge Belfance held that the house in question was “clearly not being ‘maintained’ in any sense of the common meaning of the word.” The majority’s opinion hinged on the notion that the uninhabitable state of the dwelling did not seem to be temporary, largely due to the owner’s inability to pay for an agency to clean the basement’s mold. Accordingly, the 9th District reversed Anderson’s conviction for burglary for insufficient evidence.
In a brief dissent, Judge Carla Moore argued for a different interpretation of Green. She held that the Green court focused on the continuing purpose of the dwelling in determining if it was “maintained as a dwelling.” Notably, she cited State v. McLemore (9th Dist. 1995), which held that a duplex unit was occupied, although the tenant had not resided there for three weeks and police had it sealed. Further, Judge Moore wrote that the owner’s caring for her pets, maintaining electricity, receiving mail, storing food and actively seeking assistance to repair the house constituted as maintenance of the structure as a dwelling.
“Viewed in this light,” she wrote, “the City’s, this Court’s, and even [the owner’s] determinations as to the present habitability of the house are of limited value in the determination of whether the home was maintained as a dwelling.”
The case is cited as State v. Anderson, 2012-Ohio-3663.