Court vacated burglary conviction for man who stole leaf blower from open garage.

Court vacated burglary conviction for man who stole leaf blower from open garage.

The Supreme Court of Ohio today vacated the burglary conviction of a man who walked past a homeowner into his open garage and stole a $500 leaf blower, finding the offender did not use “force, stealth, or deception” to commit the crime.

Instead, the Supreme Court directed the Scioto County Common Pleas Court to convict Donald Bertram of misdemeanor criminal trespassing for the September 2020 crime. Bertram had been sentenced to 8 to 12 years in prison for the burglary offense. Sentences for misdemeanor offenses in Ohio are less than a year in jail.

Writing for the unanimous Court, Justice Michael P. Donnelly explained that the lower courts determined Bertram engaged in stealth and deception because he calmly, silently walked past homeowner Timothy Huff, giving no indication that he intended to steal anything. Justice Donnelly wrote that evidence “utterly failed to establish” that Bertram engaged in any “secret, sly, or clandestine conduct,” which must be proven to convict someone of felony burglary.

The Court’s opinion noted that Bertram conceded that he trespassed onto Huff’s property. Because trespass is a lesser included offense of burglary, Justice Donnelly wrote the high court is empowered to modify the verdict from burglary to trespassing without ordering a new trial.

Leaf Blower Theft Surprises Homeowner
Huff was landscaping his Portsmouth home when he heard the “loud muffler” of a passing car. He went inside to retrieve his cellphone. He came back outside and made eye contact with Bertram, the driver of the car. Huff watched Bertram drive past, turn around, and park on the road near the end of Huff’s driveway.

Huff said Bertram exited the car and started walking up the driveway to Huff’s open garage. Huff told a jury that Bertram was acting “very cavalier” and had “no sense of urgency at all.” Huff said Bertram had a smile on his face as he walked into the garage, took Huff’s leaf blower, and walked back to his car. Based on the smile and attitude, Huff said he did not initially believe Bertram was intending to steal anything.

Huff said he told Betram to stop and put down the blower, but Bertram put the leaf blower on the passenger seat of his car and attempted to start the car. Because the car did not start immediately, Huff was able to take several close-up photos of Bertram before he drove away.

Police soon arrested Bertram, and he was charged with burglary under R.C. 2911.12(A)(2). At his trial, Bertram asked the trial judge to acquit him of the crime because that particular charge of burglary requires that the offender use “force, stealth, or deception” to commit the crime. The judge denied the request, and the jury convicted Bertram of burglary.

Bertram appealed to the Fourth District Court of Appeals, which affirmed the trial court’s decision.
Bertram appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Burglary Law
Justice Donnelly explained that to prove Bertram committed burglary under R.C. 2911.12(A)(2), the Scioto County Prosecutor’s Office had to show there was “a trespass by force, stealth, or deception; into an occupied structure; when another was present or likely present; with the purpose of committing a criminal offense in the structure.“ He wrote that the Supreme Court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

“Force, stealth, or deception” refers to how a trespasser gained entry into the structure, the Court explained. None of the parties suggested that Bertram used force. Betram argued that the record showed he trespassed onto Huff’s property, but the prosecutor provided no evidence that he used stealth or deception.

The Court noted that the definition of “deception” in state law includes “knowingly deceiving another or causing another to be deceived by any false or misleading representation” or by withholding information or by preventing another from acquiring information. Because “stealth” is not defined in state law, the Court used the ordinary meaning of the word and how it has been used in prior cases. The Court adopted the Fourth District’s definition of “stealth” in case law 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.”

The prosecutor argued that Bertram’s behavior was deceptive and sly, but the Court found the state’s interpretation of the words to be “contrary” to the definitions in law and the plain meaning of the words. Bertram did not try to avoid his discovery or reduce his chance of being noticed, the Court wrote.

“Nor did Bertram deceive, mislead, lie to, or trick Huff into granting him entry into the garage,” the opinion stated. “Bertram did not commit burglary under Ohio law, because he did not gain access to Huff’s garage by force, stealth, or deception.”

At that time of his conviction, Bertram was on postrelease control for a prior offense. For violating the terms of his release, Bertram was sentenced to 491 days in prison. For the burglary, the trial court ordered indefinite a prison sentence of 8 to 12 years to be served consecutively to the 491-day term.

The Court vacated the burglary conviction. Because the prison sentence for violating his postrelease control could only be imposed for committing a felony, the Court also vacated his prison sentence for violating postrelease control.

The evidence did indicate Bertram committed criminal trespass and misdemeanor theft, the opinion noted. Where there is insufficient evidence to sustain a conviction for one crime, but sufficient evidence to sustain a lesser included offense of that crime, the Court can impose a lesser included offense instead of ordering a new trial, the opinion stated.

Because misdemeanor theft is not a lesser included offense of burglary, the Court did not impose a sentence for the offense. However, criminal trespass, which is defined under R.C. 2911.21(A)(1),  as “knowingly entering or remaining on the land or premises of another without privilege to do so,” is a lesser included offense of burglary. The case was returned to the trial court to enter a judgment against Bertram for criminal trespass.

2022-1047. State v. Bertram, Slip Opinion No. 2023-Ohio-1456.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.