Wednesday, July 22, 2020
State of Ohio v. Andrew S. Fazenbaker, Case No 2019-1567
Ninth District Court of Appeals (Summit County)
Disciplinary Counsel v. Joan Jacobs Thomas, Case No. 2020-0467
Lorain County
Does Broken-into Camper Housed at Storage Facility Qualify as ‘Unoccupied Structure’?
State of Ohio v. Andrew S. Fazenbaker, Case No 2019-1567
Ninth District Court of Appeals (Summit County)
ISSUE: If none of the factors listed in R.C. 2909.01(C)(1) through (4) apply, is the structure an “unoccupied structure”?
BACKGROUND:
D.B. and her husband, R.B., went to an Akron storage facility in late May 2017 to take their camping trailer out of storage for an upcoming trip. The 34.5-foot camper had a living room, kitchen, bedroom, and bathroom.
When the couple removed the cover on the camper, they noticed an open window with a missing screen. Inside, they found that the electronics, including a television, DVD player, CD player, and built-in stereo system, were gone. A cigarette butt was found on the floor near the entertainment center. The couple called the police.
The state crime lab conducted DNA testing of the cigarette butt, and the DNA was consistent with that of Andrew Fazenbaker. In June 2018, a jury found Fazenbaker guilty of breaking and entering. The trial court sentenced him to 12 months in prison.
Fazenbaker appealed to the Ninth District Court of Appeals, which reversed the conviction. The Ninth District concluded that, given the camper’s state when it was broken into, it wasn’t an “unoccupied structure” as required by R.C. 2911.13, the breaking-and-entering statute.
The county prosecutor appealed to the Ohio Supreme Court, which agreed to consider the case. Because of the COVID-19 pandemic, the Court will hear the appeal by videoconference.
Camper Not Currently Occupied Falls within Meaning of ‘Unoccupied Structure,’ State Argues
R.C. 2911.13 states, “No person by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony.”
The Summit County Prosecutor’s Office, noting that the Ohio Revised Code doesn’t define “unoccupied structure,” argues that courts find guidance regarding the phrase’s meaning by reviewing the definition of “occupied structure” in R.C. 2909.01. Under that law, the camper could be an occupied structure when it “is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present,” the prosecutor states. If that provision doesn’t apply, then the camper is an unoccupied structure as required for a breaking-and-entering offense, the prosecutor maintains.
While the Ninth District cited State v. Carroll, a 1980 Ohio Supreme Court decision, the prosecutor contends the case doesn’t apply. The Supreme Court ruled that a 1974 Volkswagen Bus wasn’t an “unoccupied structure” under the breaking-and-entering statute. It was argued that the vehicle was an unoccupied structure at the time because it could be an occupied structure if at least one person was in it. The Court rejected that assertion as too broad an interpretation. An interpretation that the Volkswagen Bus was an unoccupied structure under the breaking-and-entering law also would undermine the purpose of another state law prohibiting the unauthorized use of a motor vehicle, the Court stated. The prosecutor maintains, though, that the Court made clear the ruling was limited to the facts in that case.
As the couple’s “summer home on wheels,” D.B. and R.B.’s camper was a trailer and a shelter – a type of structure listed in R.C. 2909.01 that was unoccupied at the time of the break in, the prosecutor’s brief argues. Concluding that Fazenbaker’s conviction should be upheld, the brief also asks the Court to clarify the meaning of the breaking-and-entering statute for future cases.
‘Occupied Structure’ Definition Irrelevant to Breaking and Entering, Man Asserts
Fazenbaker responds that R.C. 2909.01 begins, “As used in sections 2909.01 to 2909.07 of the Revised Code.” That qualification means the definition of “occupied structure” applies to the offenses in the laws in those sections, such as aggravated arson (R.C. 2909.02) and vandalism (R.C. 2909.05).
In addition, the aggravated burglary (R.C. 2911.11) and burglary (R.C. 2911.12) statutes explicitly refer to the definition of “occupied structure” in R.C. 2909.01. However, Fazenbaker stresses, R.C. 2911.13, the breaking-and-entering law, doesn’t reference the “occupied structure” definition at all. He notes that the state legislature enacted these statutes, including R.C. 2911.13, and several others in one bill that became effective on the same day in 1974. Of all the statutes enacted in that bill, R.C. 2911.13 is the only one not referenced in the R.C. 2909.01 definitions section and without any reference back to the definition of “unoccupied structure,” Fazenbaker states.
He maintains that state lawmakers are presumed to have done this intentionally. Given that understanding, the plain meaning of “unoccupied structure” must be used when interpreting the breaking-and-entering law, he argues. His brief states that “unoccupied” implies a structure that “in its present state and in the normal course of events, is reasonably susceptible to being occupied, though in fact it is not.” An uneaten pizza is one that could be eaten but hasn’t yet been eaten, Fazenbaker notes. However, an uneaten book is an improper use of the “un-” forms of adjectives. While technically accurate to describe a book as uneaten, a book isn’t susceptible to being eaten, so the use is nonsensical, he contends.
He maintains this logic also applies when comparing a specific item with its general class. For example, while the funds in a checking account are generally susceptible to being used, referring to the funds in an empty checking account as unused is absurd, he states. Similarly, Fazenbaker argues, camper trailers as a group generally are structures susceptible to being occupied, but that wasn’t the case with this specific camper. It had been unused for nearly two years, covered, and stashed in a storage facility, he notes. At the time of the theft, the camper wasn’t susceptible to being occupied in its state, so it couldn’t be an “unoccupied structure,” he maintains.
Fazenbaker also points out that the legislature has made no clarifications to R.C. 2911.13 in the 40 years since the Court’s decision in Carroll. However, if there is any ambiguity about the meaning of “unoccupied structure,” the language must be liberally construed in his favor, he concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Summit County Prosecutor’s Office: Jacquenette Corgan, 330.643.8340
Representing Andrew S. Fazenbaker: James Armstrong, 330.923.2122
Lorain Attorney Defends Expressing Concerns to Court about Special Needs Child Adoption
Disciplinary Counsel v. Joan Jacobs Thomas, Case No. 2020-0467
Lorain County
A Lorain County attorney specializing in domestic relations law objects to a proposed public reprimand from the Board of Professional Conduct for sending a letter to a court staff attorney expressing concern about a court proceeding in which she had no direct involvement.
A three-member hearing panel of the board issued a split decision, recommending that the charges of rule violations by Joan Jacobs Thomas be dismissed . However, the full board agreed with the dissenting panel member’s assessment that Thomas violated the rule against making ex parte communications to a court. The board suggests that the Ohio Supreme Court publicly reprimand the lawyer.
Because of the COVID 19 pandemic, the Court will hear oral argument about the dispute by videoconference.
Attorney Learns about, Questions Custody Proceedings
Thomas represented Jessica Vealey in her divorce from Robert Vealey. The Vealeys had two minor children. While the divorce was pending, Robert married Donna Sterrick. The divorce decree named Jessica the residential parent and granted Robert visitation rights with his children. The decree prohibited Donna from being present in Robert’s home when his children were visiting, and she was barred from being involved in the children’s school, extracurricular, or medical matters.
After the divorce was final, Robert was found in contempt of court for failing to pay fees associated with the divorce. During a sentencing hearing for contempt, Robert testified that Donna was in the process of adopting a minor child.
Thomas, and her client, Jessica, were surprised by the announcement. Thomas was concerned because Donna was prohibited from having contact with her own stepchildren, and had been admonished by the court for her rude treatment of the guardian ad litem in the Vealey’s divorce who is an attorney in private practice. Donna posted negative comments about the attorney on the attorney’s firm’s Facebook page and filed a grievance against her with the local bar association.
Thomas searched clerk of court records and discovered that attorney David Bartos represented Donna in a private custody matter in which Donna would gain custody of a 6-year-old special needs child in the custody of Charles and Julia Duensing. The child was one of three siblings placed in foster care with the Duensings, who then adopted the three children.
Attorney Seeks Advice
Thomas describes herself as an advocate for children, and had concerns that a single attorney was involved in the matter, and there was no Family Court Services investigation or appointment of a guardian ad litem to ensure Donna’s adoption was in the best interest of the child. Thomas called the Office of Disciplinary Counsel for advice, and was told that she could not contact the court directly.
Thomas attended a monthly “brown bag” luncheon hosted by Lorain County Domestic Relations Judge Sherry Glass that was intended for informal discussions. Amy Barnes, Judge Glass’ staff attorney, was at the lunch. Thomas posed a hypothetical question to the judge that was essentially Donna’s proposed adoption, which was pending before Judge Glass.
Judge Glass explained her concerns about ex parte communications, and noted that her procedure was to use Barnes to filter those communications and take the appropriate actions.
Thomas then faxed a four-page letter to Judge Glass’ courtroom, sent to the attention of Barnes, and explained her concerns.
Bartos learned of the letter and contacted Thomas. Thomas refused to give Bartos a copy because she didn’t want Donna to have it and said she feared retaliation from Donna. Thomas told Bartos he could look at the letter at her office.
Barnes recommended to Judge Glass that a guardian ad litem be appointed and a Family Court Services inquiry opened. The judge imposed the recommendations, and ultimately the court found it was in the child’s best interest to allow Donna to obtain custody. Bartos complained that Thomas’ actions delayed the process by five months and increased Donna’s costs.
Board Finds Rule Violation
The board found Thomas violated the rule against ex parte communication, citing the dissenting panelist’s position that allowing the attorney to slip a message to a judge via her staff attorney without the parties in the case knowing about it suggests “a recognized channel of communications that exists.”
The board notes that allowing this process would lead to an “anything goes” system where parties in cases, attorneys, and anyone else could “lobby and influence the judge handling the case by sending communications” to the judge’s staff.
Rule Was Followed, Attorney Argues
In her objections to the proposed sanction, Thomas urges the Court to adopt the position of the panel majority and find that the board failed to demonstrate by clear and convincing evidence that she violated the rule prohibiting ex parte communications. Thomas claims she followed the suggestions of Judge Glass on how an attorney can raise an important issue with the court about a case when that attorney isn’t part the case.
Thomas also maintains the rule doesn’t exclude communicating to a judicial staff member.
Letter Violated Rule, Disciplinary Counsel Maintains
|The Office of Disciplinary Counsel counters that attorneys aren’t allowed to send ex parte communications to courts, and Thomas stated in her opening sentence in the letter to Barnes that the letter was an ex parte communication. Thomas’ failure to allow Bartos or the Duensings to know about the recommended additional investigations is at the heart of the rule preventing undisclosed messages to the court, the disciplinary counsel maintains. Without knowing, the parties had no way to prepare a response to the information, the office asserts. The disciplinary counsel urges the Court to issue a public reprimand and send a strong message that such letters are inappropriate.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Joan Jacobs Thomas: Richard Alkire, 216.676.4011
Representing Office of the Disciplinary Counsel: Karen Osmond, 614.461.0256