Donald Bertram's "cavalier attitude" while walking into a man's garage, taking a leaf blower without permission and driving away meant his actions do not fall under the legal definition of burglary.
An Ohio man undoubtedly took a leaf blower from someone’s yard without permission, but Donald Bertram, who had been sentenced for burglary, saw his criminal conviction vacated Wednesday when the state Supreme Court ruled that his “cavalier attitude” when he was caught in the act meant what he did was not technically a burglary.
“Because the evidence did not show Bertram made any attempt to actively avoid his discovery or use deceptive conduct to gain entry into the open garage, the evidence was insufficient to convict him of burglary,” the Ohio Supreme Court ruled Wednesday.
Timothy Huff was outside his home doing yardwork in September 2021 when he said he heard a car pull up near his driveway, according to the published opinion.
“Huff told the jury that as Bertram approached the garage, Bertram was acting ‘very cavalier’ and had ‘no sense of urgency at all,’” the opinion read. “Bertram strolled into the garage with ‘a smile on his … face.’”
Bertram then took the $500 leaf blower from his open garage, put it into his car and then left, despite Huff asking him repeatedly to stop, according to the opinion.
But based on the definition of burglary – for which Bertram was sentenced to 8 to 12 years in prison – the court must find that “the defendant actively avoided discovery or used deceptive conduct to gain entry into the structure.”
“Here, the evidence utterly failed to establish that during his trespass, Bertram engaged in any secret, sly or clandestine conduct,” the opinion read, stating that Bertram never made any effort not to be caught, nor did he lie in order to enter the garage.
Bertram did, however, engage in criminal trespass and it will now be up to the trial court to amend his conviction.
