Summary
defining "unoccupied structure" in Ohio Revised Code § 2911.13
Summary of this case from U.S. v. ScovilleOpinion
No. 79-1274
Decided June 11, 1980.
Criminal law — Breaking and entering — R.C. 2911.13, construed — Motor vehicle not an "unoccupied structure," when.
APPEAL from the Court of Appeals for Van Wert County.
On October 20, 1978, Kerry L. Carroll (hereinafter appellant) was arraigned on an indictment for aiding and abetting in the breaking and entering of an unoccupied structure in violation of R.C. 2911.13. Appellant entered a plea of not guilty. The court ordered the prosecuting attorney to produce a bill of particulars for appellant's counsel. The bill of particulars declared that appellant did aid and abet in the breaking and entering of a 1974 Volkswagen bus, an unoccupied structure.
Appellant filed a motion to dismiss the indictment on the ground that a motor vehicle is not an unoccupied structure as set forth in R.C. 2911.13. The Court of Common Pleas agreed and, therefore, dismissed the indictment and discharged the appellant.
Upon appeal by the state, the Court of Appeals determined that the Volkswagen bus was an unoccupied structure, as set forth in R.C. 2911.13, and, accordingly, it reversed and remanded the cause to the trial court for further proceedings.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Donald J. Johnson, prosecuting attorney, and Mr. Kevin H. Taylor, for appellee.
Mr. Stephen P. Gehres, for appellant.
The single, limited issue on appeal herein is whether a Volkswagen bus is an "unoccupied structure," within the purview of R.C. 2911.13, pertaining to "breaking and entering."
We hold that the Volkswagen bus in the instant cause is not an "unoccupied structure" within the ambit of R.C. 2911.13.
Burglary at common law was the breaking and entering in the nighttime of the dwelling or mansion house of another with intent to commit a felony therein. Burglary has been statutorily defined in R.C. 2911.11 through 2911.13.
R.C. 2911.13, which is the section in focus in the instant cause, refers to the breaking and entering of an "unoccupied structure." The problem herein arises in that there is no definition of an "unoccupied structure" in the Revised Code.
The Committee Comment to R.C. 2911.13 states, in part, that:
"This section defines an offense identical to burglary, except that the structure involved in a violation of this section is unoccupied rather than occupied.***" (Emphasis added.)
R.C. 2911.11 and 2911.12, concerning the burglary of an "occupied structure," specifically refer to the definition of an "occupied structure," as set forth in R.C. 2909.01.
Initially, it is noted that R.C. 2909.01 makes no specific reference to motor vehicles. Furthermore, the gist of the statute limits the definition of "occupied structures" to those instances where there is a more serious risk of harm due to a person's actual or likely presence.
If the General Assembly had intended to automatically include motor vehicles within the ambit of its burglary sections, it should have expressly done so, as have other states.
For example, 21 Okla. Stat. Anno., Section 1435, which specifically includes both automobiles and trucks, reads as follows:
"Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection, in which any property is kept, or breaks into or forcibly opens, any coin operated or vending machine or device with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree."
"Occupied structures" could possibly include motor vehicles "rigged for an overnight stay," but, as the Committee Comment to R.C. 2909.01 further explains, in parts relevant to the instant cause:
"***The tent camper rigged for an overnight stay is an occupied structure, but would not come under the definition [of an occupied structure] when collapsed for travel."
Therefore, the Volkswagen bus in the instant cause would not come within the meaning of an "occupied structure" under R.C. 2909.01, and it, consequently, should not be considered an "unoccupied structure" as contained in R.C. 2911.13.
R.C. 1.42 reads as follows:
"Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."
R.C. 2901.04 reads as follows:
"(A) Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.
"(B) Rules of criminal procedure and sections of the Revised Code providing for criminal procedure shall be construed so as to effect the fair, impartial, speedy, and sure administration of justice."
These two sections, when read in pari materia, indicate to this court that the Volkswagen bus in the instant cause, when given its common usage, is not an "unoccupied structure," as it pertains to R.C. 2911.13. The Court of Appeals concluded that an unoccupied structure would be "a[ny] product of construction capable of being occupied by at least one person." Such a broad interpretation of an "unoccupied structure" is misdirected and would go far beyond the scope intended by the General Assembly.
Furthermore, the inclusion of the Volkswagen bus as an "unoccupied structure" would, in most instances, completely undermine the purpose of R.C. 2913.03(A), the unauthorized use of a motor vehicle.
For the foregoing reasons, we hold that the Volkswagen bus in the instant cause is not within the ambit of R.C. 2911.13, and, therefore, the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.