[Cite as State v. Hunt, 2009-Ohio-5435.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

CRAWFORD COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 3-09-06 

 v. 

STANLEY E. HUNT, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Crawford County Common Pleas Court 

Trial Court No. 08-CR-0047 

Judgment Affirmed 

Date of Decision: October 13, 2009 

 

APPEARANCES: 

Shane M. Leuthold for Appellant 

Clifford J. Murphy for Appellee 
Case No. 3-09-06 

-2-

WILLAMOWSKI, J.

{¶1} Defendant-appellant Stanley E. Hunt (“Hunt”) brings this appeal 

from the judgment of the Court of Common Pleas of Crawford County finding 

him guilty of burglary and sentencing him to a prison term of three years. For the 

reasons set forth below, the judgment is affirmed. 

{¶2} On February 11, 2008, Hunt, Willis Clary (“Clary”), and Joshua 

Smith (“Smith”) were dropped off near the victim’s residence with the intent to 

commit a burglary. The victim was not staying at the home at the time. The three 

then proceeded to break into the residence and steal numerous items. Although 

the victim was not staying at the residence at the time, he had left numerous 

personal effects and maintained the home as a residence with the intent of 

returning. 

{¶3} On March 10, 2008, the grand jury indicted Hunt on one count of 

burglary in violation of R.C. 2911.12(A)(3), a third degree felony. Hunt entered a 

plea of not guilty on April 30, 2008. A jury trial was held on December 18, 2008. 

The jury returned a verdict of guilty. On February 18, 2009, Hunt was sentenced 

to three years in prison. Hunt appeals from the judgment of conviction and raises 

the following assignment of error. 

The conviction of burglary is against the manifest weight of the 

evidence.
Case No. 3-09-06 

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{¶4} Hunt’s sole assignment of error alleges that the conviction is against 

the manifest weight of the evidence because the structure was not occupied and 

because Hunt did not trespass on the property. 

Weight of the evidence concerns “the inclination of the greater 

amount of credible evidence, offered in a trial, to support one 

side of the issue rather than the other. It indicates clearly to the 

jury that the party having the burden of proof will be entitled to 

their verdict, if, on weighing the evidence in their minds, they 

shall find the greater amount of credible evidence sustains the 

issue which is to be established before them. Weight is not a 

question of mathematics, but depends on its effect in inducing 

belief.” 

State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 514 (citing 

Black’s Law Dictionary (6 Ed. 1990) 1594). A new trial should be granted only 

in the exceptional case in which the evidence weighs heavily against conviction. 

Id. Although the appellate court may act as a thirteenth juror, it should still give 

due deference to the findings made by the jury. 

The fact-finder, being the jury, occupies a superior position in 

determining credibility. The fact-finder can hear and see as 

well as observe the body language, evaluate voice inflections, 

observe hand gestures, perceive the interplay between the 

witness and the examiner, and watch the witness’s reaction to 

exhibits and the like. Determining credibility from a sterile 

transcript is a Herculean endeavor. A reviewing court must, 

therefore, accord due deference to the credibility determinations 

made by the fact-finder. 

State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456. 
Case No. 3-09-06 

-4-

{¶5} Here, Hunt was convicted of burglary in violation of R.C. 

2911.12(A)(3). 

(A) No person, by force, stealth, or deception, shall do any of 

the following: 

* * * 

(3) Trespass in 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[.] 

Hunt claims he is not guilty of burglary because 1) he did not trespass in the 

property and 2) the structure was unoccupied. Hunt alleges that since the victim 

was not living at the home, it was not an occupied structure. Hunt’s first 

argument is that he did not trespass because he testified that he did not enter the 

structure, but stood outside the window while Clary and Smith passed items to 

him. The testimony at trial by Clary was that all three of them entered the home. 

Tr. 90. Smith also testified that Hunt entered the residence. Tr. 186. 

Additionally, Hunt does not deny that Clary and Smith entered the home or that 

he helped plan and execute the burglary. During the trial, the State put forth the 

theory that Hunt was complicit in the trespass because the burglary was planned 

by all three parties. The jury was given an instruction on complicity without 

objection by Hunt. By Hunt’s own admission, he was complicit to the trespass by 

his accomplices. Thus, the determination that Hunt had either trespassed on the 
Case No. 3-09-06 

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residence himself or was complicit in Clary and Smith doing so is not against the 

manifest weight of the evidence. 

{¶6} Hunt’s second argument is that the building was not an occupied 

structure. 

“Occupied structure” means any house, building, outbuilding, 

watercraft, aircraft, railroad car, truck, trailer, tent, or other 

structure, vehicle, or shelter, or any portion thereof, to which 

any of the following applies: 

(1) It is maintained as a permanent or temporary dwelling, 

even though it is temporarily unoccupied and whether or not 

any person is actually present. 

(2) At the time, it is occupied as the permanent or temporary 

habitation of any person, whether or not any person is actually 

present. 

(3) At the time, it is specially adapted for the overnight 

accommodation of any person, whether or not any person is 

actually present. 

(4) At the time, any person is present or likely to be present in 

it. 

R.C. 2909.01(C). When determining whether a structure is “occupied” the 

question is if the dwelling has a residential purpose, not whether the occupant is 

present. State v. Burgos, 9th Dist. No. 05CA008808, 2006-Ohio-4305. See also 

State v. Green (1984), 18 Ohio App.3d 69, 480 N.E.2d 1128 (holding that a home 

vacated when the residents moved to a new home was still an “occupied 

structure” because it was maintained as a dwelling). 
Case No. 3-09-06 

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We find the legislative intent of “occupied” structure evident 

from the Committee Comment to R.C. 2909.01. Said 

Committee comment states in pertinent part that under R.C. 

2909.01(C)(1) “all dwellings are classed as occupied structures, 

regardless of the actual presence of any person. Whether or not 

the dwelling is used as a permanent or temporary home is 

immaterial, so long as it is maintained for that purpose.” 

Burgos, supra at ¶22. 

{¶7} The victim in this case testified that he had left the home in October 

2007, after his wife died and he was injured in an accident. Tr. 20. He testified 

that he could not afford to heat the home on one income, so he moved in with his 

father. Tr. 20-21. However, he left several personal items in the residence 

including furnishings, bedding, firearms and ammunition, clothing, his crutches1

, 

a television, dvd players, appliances, etc. Tr. 21-32. The victim further testified 

that the electricity was left on in the house and that he intended to return to the 

home as his residence. Tr. 22-23, 32. Thus, this house was maintained as a 

residence and was “occupied” under the statutory definition. Since the evidence 

supports a finding that Hunt trespassed in an occupied structure for the purpose of 

committing a criminal offense, i.e. theft, the judgment finding him guilty of 

burglary is not against the manifest weight of the evidence. The assignment of 

error is overruled. 

 

1

 The victim had his legs amputated after an accident, and needed the crutches or a wheelchair to get 

around. 
Case No. 3-09-06 

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{¶8} The judgment of the Court of Common Pleas of Crawford County is 

affirmed. 

Judgment Affirmed 

ROGERS and SHAW, J.J., concur. 

/jlr