| This was my final research paper for my Legal Research coarse. I actually really enjoyed it! Criminal Justice is actually pretty sweet. I had to defend "Joe" as a police officer was trying to charge him with burglary. Here's the research memorandum for whoever cares to read it. Research Memorandum From Greg Stanley To Dean Grase RE Joe/Burglary Statement of Assignment You asked me to prepare a memo analyzing whether Joe should be charged with burglary for entering the old house and taking some bottles he found there. FACTS Joe, being a collector of old bottles, entered a home which he believed to be abandoned for many years. He did not know who the owner of the house was, nor did he have consent to enter. He did not know who the owner was, again, he just assumed the house was abandoned. Upon entering the home through a hole in the door, he tore his shirt; indicating that he entered by force. He discovered a pile of old bottles in the basement of the home, and he gathered a few of them. Upon leaving the home, he saw what he thought to be a homeless man sleeping in the corner. After squeezing through the door to exit the premises, he was confronted with a police officer on the other side of the door. Now, the officer is debating whether or not Joe should be charged with burglary. ISSUE Our issue is whether or not Joe should be charged with burglary. Ohio revised code 2911.12 states that burglary is “trespassing an occupied structure or in a separately secured or separately occupied portion of an occupied structure, with purpose to commit in the structure or separately secured or separately occupied portion of the structure any criminal offense.” There are four elements to the charge of burglary. Element 1- TRESPASS Trespassing is a required element of the crime of burglary. Ohio Revised Code 2911.12 states trespass is when a person “enters or remains on the property of another without permission.” Joe knowingly entered a separately secured structure when he forced his way through the hole in the door, which resulted in his shirt being torn. Therefore; Joe is guilty of Trespass. Element 2- USE OF FORCE, STEALTH, OR DECEPTION The second element of a burglary charge is entry by either force, stealth, or deception. Entry by force, stealth, or deception is a required element of burglary. FORCE According to Fleckner v. Fleckner 2008 WL 3198724, force is defined as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.” An example of a case where only a small amount of force was used would be State v. McKenzie 2008 WL 2640075 where the man had committed force just by simply opening the door or another room. Since Joe entered the home through a hole in the door and that he tore his shirt in the process proves that he exerted constraint physically against the door. Therefore; Joe clearly can be said to have used force. STEALTH According to State v. Campbell 2008 WL 918747, stealth is defined 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.” In State v. Howard 2005 WL 2386600, Howard entered the home through stealth when he surprised and frightened the occupants of the home. In Joe’s case, he believed the house to be abandoned for many years. If it he thought it was abandoned, then he would not have had to secretly gain entrance into the home. Therefore; Joe did not enter with stealth. DECEPTION According to State v. El-Berri case 2008 WL 2764873, deception is defined as “knowingly deceiving another or causing another to be deceived by any false or misleading representation.” In State v. McKenzie 2008 WL 2640075, McKenzie deceived the victim to gain entrance into her room by stating that he was a school employee. Joe did not deceive someone to gain entrance into the home since there was no-one present to deceive. Therefore; Joe did not enter by deception. Element 3- ENTRY INTO AN OPPUPIED STRUCTURE Entry into an occupied structure is the third element of a burglary charge, which is the third element required to be charged with burglary. Occupied structure, by statutory definition of the Ohio Revised Code 2909.01, “any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which at any time a person is present or likely to be present in it.” Joe believed this home to be abandoned for “many years”, and that the house appeared to be “old and run-down”, which gives reasonable cause for him to believe the house was not occupied, or likely to be. Plain language of statute clearly makes this an occupied structure because there happened to be a homeless man present at the time Joe was in the home. Therefore; Joe did enter an occupied structure. Element 4- PURPOSE TO COMMIT ANY CRIMINAL OFFENSE A purpose to commit a criminal offense is the fourth required element of burglary. If Joe committed any offense at all, that offense would be theft. Theft is defined by the Ohio Revised Code 2913.02, as “no person, with purpose to deprive the owner of property of services, shall knowingly obtain or exert control over either the property or services.” Joe knowingly entered the premises, without the consent of the owner, and knowingly obtained and exerted control over the bottles when he “gathered a few of the bottles, and began to leave.” However; a person cannot be convicted of theft if the property they take from has been abandoned. The State v. Crisp case states that a person cannot be convicted of theft if owner abandoned property or in defendant reasonably believed that property was abandoned. Again, Joe clearly believed that property to be abandoned based upon the facts, stated in Element 3, that he believed this home to be abandoned for “many years”, and that the house appeared to be “old and run-down”. Therefore, Joe did not have a purpose to commit a criminal offense on the structure. CONCLUSION Clearly, in order to be charged with burglary, the suspect must meet the four elements. These elements are trespass, the use of force, stealth, or deception to enter an occupied structure with purpose to commit a criminal offense. Based upon the results of my analysis of the four elements above, I believe Joe should not be charged with burglary since he took the bottles from an abandoned house. I believe that Joe should not be charged with elements 4 since he did not have a purpose to commit a criminal offense, nor do I believe he met element 2 that he used stealth or deception since he did not “sneak” his way into the house by any means, and he did not deceive anyone since there was nobody present to deceive. Therefore; Joe cannot be charged with burglary. |
