Legal 2-2F Robbery, Burglary, Trespass & Related Offenses

1. Legal 2-2F Robbery, Burglary, Trespass & Related Offenses

3. AGGRAVATED ROBBERY 2911.01 • While committing or attempting to commit or fleeing after a theft offense: • Have a deadly weapon on person or under control and display, brandish, indicate possession of or use a weapon OR • Have a dangerous ordnance on person or under control OR • Inflict or attempt to inflict serious physical harm

5. AGGRAVATED ROBBERY 2911.01 • No person, without privilege to do so… • Shall knowingly remove or attempt to remove a deadly weapon from the person of a law enforcement officer… OR… • Shall knowingly deprive or attempt to deprive a law enforcement officer of a deadly weapon, when both of the following apply: • The law enforcement officer, at the time of the removal, attempted deprivation, is acting within the course and scope of the officer’s duties AND… • The offender knows or has reasonable cause to know it is a law enforcement officer

6. AGGRAVATED ROBBERY 2911.01 • Degree of Offense: F-1 Interpreting Elements • Definition of Deadly Weapon—Any instrument, device or thing capable of inflicting death and designed or specially adapted for use as a weapon or possessed, carried or used as a weapon, For example: Gun, Knife, Brass knuckles, or Cane when used offensively

8. AGGRAVATED ROBBERY 2911.01 • Aggravated Robbery includes: • Robbery while armed • Robbery where offender inflicts or attempts serious personal harm, whether armed or not • Rationale—High degree of actual or potential harm • The basic element is theft, whether actual or attempted and flight after are all included

10. AGGRAVATED ROBBERY EXAMPLES • Shoplifter brandishes a gun during a getaway • Purse snatcher who knocks down old lady causing her to break her leg, • What if she only gets bruised? • Person who takes someone’s wallet at knifepoint but there is no harm or attempt to harm State v. Crawford (1983) 10 Ohio App 3d • Toy handgun = “deadly weapon” under ORC 2923.11 because of its possible use as a bludgeon State v. Meek (1978) 53 Ohio St. 2d 35

11. AGGRAVATED ROBBERY EXAMPLES • Unloaded gun - “deadly weapon” State v. Davis (1983) 6 Ohio St. 3d 91 • Pretending to have gun under shirt is sufficient to constitute “threat” of force; objective test as to fear of victim • Pick-pocket is caught removing a wallet from a person’s back pocket. Upon being noticed, pick-pocket runs • As he is running away, he knocks down a bystander, (NOT the victim). Bystander suffers a serious head injury and is hospitalized. Aggravated Robbery? • YES, Division (A) 3 Inflict, or attempt to inflict, serious physical harm on another.

14. ROBBERY 2911.02 • While committing or attempting to commit theft offense or fleeing there from… • Have a deadly weapon/dangerous ordnance on person or under control OR • Inflict, attempt or threaten to inflict physical harm to another OR • Use or threaten immediate use of force against another • Degree of Offense: F-2 or F-3

16. ROBBERY 2911.02 Interpreting Elements • Use of force or threat is satisfied if the victim’s fear is reasonable and common experience would cause a person to part with his property against his will. State v. Davis (1983) • Example: Offender raised his fists against a 67 year old man and demanded the man’s wallet. Threat of force was satisfied.

18. ROBBERY 2911.02 • Victim is passed out due to heavy drinking. • Defendant knows victim has $800.00 in his Pocket. Defendant intends to steal the money, but cannot get to it unless he physically rolls victim to one side. Defendant does so and takes the money. Is it a robbery? • No, The mere rearrangement of a person’s body does not constitute “force”. State v. Cohen (1978)

20. AGGRAVATED BURGLARY 2911.11 By force, stealth or deception • Trespass in: • Occupied structure or • Separately secured and/or occupied portion thereof • When another person is present (other than an accomplice) • With the purpose to commit any criminal offense

21. AGGRAVATED BURGLARY 2911.11 • When the offender: • Inflicts, attempts or threatens to cause physical harm to a person or • Has a deadly weapon or dangerous ordnance on person or under control • Degree: F-1

23. AGGRAVATED BURGLARY 2911.11 • Force: Any violence, compulsion or constraint physically exerted by any means upon or against a person or thing • Stealth: 1. Quality or condition of being secret or furtive. 2. The act of stealing when the victim is unaware of the theft. 3. Any secret, sly or clandestine act to avoid discovery AND…4. To gain entrance into or to remain within the residence of another without permission

25. DECEPTION 2913.01A • Knowingly deceiving another or causing another to be deceived… • By any false or misleading representation; • By withholding information; • By preventing another from acquiring information, or… • By any other conduct, act or omission that creates, confirms or perpetuates a false impression in another, including a false impression as to law, value, state of mind or other objective or subjective fact

27. BURGLARY 2911.12 • By force, stealth or deception • Trespass in occupied structure or separately secured and/or occupied portion… When another is present, other than an accomplice… to commit any criminal offenseOR • Trespass in an occupied structure and/or separately secured or occupied portion that is a permanent and/or temporary habitation… when a person is present or likely to be… to commit any criminal offenseOR

28. BURGLARY 2911.12 • Trespass in an occupied structure or separately secured and/or occupied portion… With purpose to commit any criminal offenseOR • Trespass in a permanent or temporary habitation … when any person is present or likely to be (no offense required) • Degree of Offense: F-2, F-3, or F-4 depending on section violated

30. BURGLARY 2911.12 Interpreting Elements • Distinguished from aggravated burglary by: • No threat or infliction of injury • No deadly weapon or dangerous ordnance required Examples • Dwelling house whose usual occupant is absent on a prolonged basis. Burglary? • YES • Apartment unit temporarily vacant? • YES

31. BURGLARY 2911.12 • A structure which is dedicated and intended for residential use, which is not presently occupied as a person’s habitation but which has neither been permanently abandoned nor vacant for a prolonged period of time can be a structure maintained as a dwelling State v. Green, (1984) • The rationale for this is that the persons taking care of the property are likely to be present • “Likely to be present” is more than mere possibility but less than a certainty

32. BURGLARY 2911.12 • Estranged husband’s wife has possession and control of their house. He enters without permission and leaves her a threatening note. • Is this a burglary or some other crime? • Burglary, DV, Menacing….

34. Burglary or NOT?

35. BREAKING AND ENTERING 2911.13 • Division (A) • By force, stealth or deception • Trespass in unoccupied structure • With purpose to commit a theft offense or any felony • Division (B) • Trespass on the property of another • With purpose to commit felony • Degree of Offense: F-5

37. BREAKING AND ENTERING 2911.13 • Case #1: Does the intent to commit a felony have to be formed before the trespass occurs??? • No—The “purpose to commit a felony” element may be formed while the trespass is in progress. The plan need not be fashioned prior to the trespass • Case #2: A person in an area where she is permitted to be, leaves that area and enters a locked office. Does this constitute Breaking and Entering? • Yes, they had no permission to enter and were trespassing.

39. CRIMINAL TRESPASS 2911.21 • Without privilege to do so • Knowingly enter or remain on the land or premises of another OR • Knowingly violate a known restricted access provision on the land or premises of another when offender knows he is in violation of restriction or is reckless in that regard OR

40. CRIMINAL TRESPASS 2911.21 • Recklessly enter or remain on land or premises when notice has been given by actual communication in a manner prescribed by law, by posting in a manner reasonably determined to provide said notice or by fencing designed to restrict access OR • Negligently fail or refuse to leave the land or premises of another after being told to do so (by owner or representative) • Degree of Offense: M-4

42. CRIMINAL TRESPASS 2911.21 • “Land or premises of another” includes any land, building, structure or place belonging to, controlled by or in custody of another…AND…Any structure enclosure or room or portion thereof • It is no defense to a charge under this section that the land or premises involved was owned, controlled or in custody of a public agency • It is no defense to a charge under this section that the offender was authorized to enter or remain on the land or premises involved, when such authorization was secured by deception

44. AGGRAVATED TRESPASS 2911.211 • Enter or remain • On the land or premises of another • With purpose to commit a misdemeanor • Which will cause another physical harm or the belief that he will be harmed • Degree of Offense: M-1

46. CRIMINAL TRESPASS ON PLACE OF PUBLIC AMUSEMENT 2911.23 • Without privilege to do so… • Knowingly…Enter or remain on any restricted portion of a place of public amusement and as a result… • Interrupt or cause the delay of the live performance, sporting event, or other activity taking place at the place of public amusement… • After notice of restricted access has been given • Degree: M-1

47. CRIMINAL TRESPASS ON PLACE OF PUBLIC AMUSEMENT 2911.23 • Reasonable force to restrain and remove a person from a restricted portion of the place of public amusement may be used by • An owner or lessee of a place of public amusement • An agent of the owner or lessee • A performer or participant

48. SAFECRACKING 2911.31 • With purpose to commit an offense • Knowingly enter, force entrance into or tamper with • Any vault, safe or strongbox • Degree of Offense: F-4

50. SAFECRACKING 2911.31 • The law involves a vault, safe or strongbox • It does NOT require the use of an instrument, device or explosive to “crack” the safe • There is NO requirement that the safe contain anything of value • It is only necessary that the offender’s purpose is forcing or tampering with the safe or strongbox to commitan offense