
    The State of Ohio, Appellant, v. Lilly, Appellee.
    [Cite as State v. Lilly (1999), 87 Ohio St.3d 97.]
    (No. 98-1111
    Submitted March 31, 1999
    Decided October 20, 1999.)
    
      
      Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, John J. Amarante and Cheryl A. Ross, Assistant Prosecuting Attorneys, for appellant.
    
      Altick & Corwin Co., L.P.A., and Dennis J. Adkins, for appellee.
   Lundberg Stratton, J.

This case presents the court with the question of whether R.C. 3103.04 precludes prosecution of one spouse for burglary committed in the residence of the other spouse. For the reasons that follow, we hold that a spouse may be criminally liable for trespass and/or burglary in the dwelling of the other spouse who is exercising custody or control over that dwelling. R.C. 3103.04 is inapplicable in criminal cases.

In this case, the evidence showed that defendant entered by deception the separately leased property of his estranged spouse with intent to commit a crime. However, the court of appeals concluded that in the absence of a court order, R.C. 3103.04 prevented Mrs. Lilly from excluding defendant from her apartment and therefore the element of trespass could not be proven. Although the defendant did not raise this alleged R.C. 3103.04 privilege in the trial court, the court of appeals, nevertheless, found that it amounted to plain error. We disagree with the court of appeals’ application of R.C. 3103.04 to this case.

At common law, husband and wife were regarded as one. The legal existence of the wife during coverture was merged with that of her husband. As such, the wife was incapable of making contracts, of acquiring property, or of disposing of property without her husband’s consent. In pursuance of a more liberal policy in favor of the wife, statutes were passed across the country to relieve the married woman from the disabilities imposed upon her as a femme covert by the common law. See Thompson v. Thompson (1910), 218 U.S. 611, 614-615, 31 S.Ct. 111, 54 L.Ed. 1180, 1181.

Ohio’s Married Women’s Act was enacted in 1861. 58 Ohio Laws 54. “By the act concerning the rights of married women, passed April 3, 1861 (S. & S. 389), as amended March 23, 1866 (S. & S. 391), the general estate, as well as the separate estate, of a married woman, belonging to her at her marriage, and all her estate, legal and equitable, which may come to her during coverture, by conveyance, gift, devise, or inheritance, or by purchase with her separate means or money, together with the rents and issues thereof, becomes her separate property and under her control, free from the marital rights of the husband at common law over the same.” Levi v. Earl (1876), 30 Ohio St. 147, paragraph one of the syllabus.

In that same vein, in 1887, the General Assembly enacted what is now R.C. 3103.04 to “define the rights and liabilities of husband and wife.” 84 Ohio Laws 132. The Act related both to the relationship between husband and wife and to the rights of each in the property of the other. The 1887 Act contained the exclusion at issue in this case:

“Section 3111. Neither husband nor wife has any interest in the property of the other, except as mentioned in sections 3110 [husband must support himsélf and wife] and 4188 [dower] but neither can be excluded from the other’s dwelling.” 84 Ohio Laws 132.

The statute today is reflected in R.C. 3103.04:

“[Interest in the property of the other]

“Neither husband nor wife has any interest in the property of the other, except as mentioned in section 3103.03 of the Revised Code, the right to dower, and the right to remain in the mansion house after the death of either. Neither can be excluded from the other’s dwelling, except upon a decree or order of injunction made by a court of competent jurisdiction.”

In 1973, the Court of Appeals for Cuyahoga County considered the history of R.C. 3103.04 and attempted to unravel the reason behind the spousal exclusion prohibition. That court determined that one plausible explanation is that the General Assembly was unfavorably influenced by the New York experience with spousal exclusions prior to 1887. Slansky v. Slansky (1973), 33 Ohio App.2d 127, 131-132, 62 O.O.2d 235, 237-238, 293 N.E.2d 302, 306. The Slansky court cited two New York cases in which married women brought ejectment actions against their husbands to recover possession of their homes. In each case, the home was owned by the wife and was previously used as the marital dwelling before the husband forced the wife out of the dwelling. See Slansky, 33 Ohio App.2d at 132, 62 O.O.2d at 237-238, 293 N.E.2d at 306, citing Minier v. Minier (N.Y.S.Ct.1870), 4 Lans. 421, and Wood v. Wood (App.1881), 83 N.Y. 575, 1881 WL 14707.

The Slansky court concluded that the purpose of R.C. 3103.04 was to “limi[t] their [i e., spouses’] respective rights so that neither spouse can effect a separation, revengeful or otherwise, simply because one has full title to the marital dwelling house.” Slansky, 33 Ohio App.2d at 137, 62 O.O.2d at 240, 293 N.E.2d at 309. Thus, one can reasonably conclude that the basis behind the spousal exclusion is the fear that one spouse would eject the other from the marital dwelling.

This court, in 1893, considered the purpose of the Married Women’s Act and held that “[t]he legal effect of the statutes as to the property rights of married women is to place husband and wife upon an exact equality as to the property of each; that is, ‘neither husband nor wife has any interest in the property of the other,’ except as to dower, distribution, and support.” Heckman v. Adams (1893), 50 Ohio St. 305, 312, 34 N.E. 155, 156.

Notably, R.C. 3103.04 is situated in the domestic relations chapter of the Revised Code. Further, a review of the 1887 Act reveals that it primarily concerned property rights as they relate to domestic relations. See, e.g., Section 3112 (property rights), Section 3114 (taking and holding property), Section 4106 (deeds), Sections 4108 and 4109 (powers of attorney), Sections 4163-4177 (descent and distribution), Sections 4188-4194 (estates in dower). 84 Ohio Laws 132-136.

A review of other jurisdictions reveals seven other jurisdictions with a statute similar to R.C. 3103.04. See Cal.Fam.Code Ann. 752 and 753 (1994); Guam Code Ann., Title 19, Section 6101(h) (1993); Mont.Code Ann. 40-2-201 (1997); N.M.Stat.Ann. 40-3-3 (1994); N.D. Century Code Ann. 14-07-04 (1997); Okla. Stat., Title 43, Section 203 (1991); S.C. Cod.Laws 25-2-4 (1992). Significantly, we note that our review indicates that none of these jurisdictions applies this-civil statute in criminal contexts.

Thus, we conclude that R.C. 3103.04 was intended to address property ownership rights of married persons, matters of a civil nature. Privileges of a husband and wife with respect to the property of the other were not meant to be enforced criminally and do not affect criminal liabilities. See State v. Middleton (1993), 85 Ohio App.3d 403, 406, 619 N.E.2d 1113, 1115. Because we find that the General Assembly never intended for R.C. 3103.04 to apply in criminal contexts, we must turn to the Criminal Code to address this issue.

The crime of burglary, with which defendant was charged, provides:

“(A) No person, by force, stealth, or deception, shall do any of the following:

U * # *

“(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present, with purpose to commit in the habitation any criminal offense * * *.” R.C. 2911.12(A)(2).

“Criminal trespass” is defined as:

“(A) No person, without privilege to do so, shall do any of the following:

“(1) Knowingly enter or remain on the land or premises of another.” R.C. 2911.21.

The law of burglary evolved out of a desire to protect the habitation. Because intrusions into the habitation are dangerous to occupants, “the offense is viewed as serious, because of the higher risk of personal harm involved in maliciously breaking and entering an occupied, as opposed to an unoccupied, structure.” 1974 Legislative Service Commission Comment to R.C. 2911.12.

Because the purpose of burglary law is to protect the dweller, we hold that custody and control, rather than legal title, is dispositive. See R.C. 2911.21(E), providing that “ ‘land or premises’ includes any land, building, structure, or place belonging to, controlled by, or in custody of another, and any separate enclosure or room, or portion thereof.” (Emphasis added.) Thus, in Ohio, one can commit a trespass and burglary against property of which one is the legal owner if another has control or custody of that property.

A majority of other jurisdictions that have addressed this issue have found that the entry of an estranged spouse upon the property of the other spouse constitutes an unauthorized entry to support charges of trespass and burglary. See People v. Johnson (Colo.1995), 906 P.2d 122; People v. Hollenbeck (Colo.App. 1996), 944 P.2d 537; Davis v. State (Tex.Crim.App.1990), 799 S.W.2d 398; White v. State (Ala.Crim.App.1990), 587 So.2d 1218; Parham v. State (1989), 79 Md. App. 152, 161-162, 556 A.2d 280, 284-285; Matthews v. Commonwealth (Ky.1985), 709 S.W.2d 414; State v. Cox (1985), 73 N.C.App. 432, 326 S.E.2d 100; Knox v. Commonwealth (1983), 225 Va. 504, 304 S.E.2d 4; State v. Schneider (1983), 36 Wash.App. 237, 673 P.2d 200; Cladd v. State (Fla.1981), 398 So.2d 442.

Civil, peaceful avenues of redress exist to enforce the rights of a person who believes he or she has been wrongfully excluded from certain property. There is no privilege to use force, stealth, or deception to regain possession. See R.C. 2911.21(C) (“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.”).

In this case, there is no evidence that defendant had any right to custody or control of the leased property. The apartment was leased solely in Mrs. Lilly’s name. Defendant did not pay any part of the rent on Mrs. Lilly’s apartment. While defendant claims that he may have stayed at the apartment occasionally and performed maintenance tasks there for Mrs. Lilly, defendant never lived at the apartment, did not have a key to the apartment, and did not keep any of his belongings in the apartment. • Accordingly, it was reasonable for the jury to find that when, without permission, defendant entered Mrs. Lilly’s apartment through a door he had previously by deception left unlocked, he trespassed. When he trespassed in Mrs. Lilly’s apartment for the purpose of committing a crime, i.e., theft of her purse and damage to her property, it was reasonable for the jury to conclude that defendant committed a burglary.

Thus, there was ample evidence at trial for the jury to have determined that the defendant trespassed in Mrs. Lilly’s dwelling and that he did so with the purpose or intent of committing a crime. Sufficiency of the evidence is considered in a light most favorable to the prosecution. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. As such, we find that there was sufficient evidence of burglary to sustain his conviction. Therefore, we reverse the judgment of the court of appeals and reinstate defendant’s conviction for burglary under R.C. 2911.12(A)(2).

Judgment reversed and cause remanded.

Resnick, F.E. Sweeney and Pfeifer, JJ., concur.

Douglas, J., concurs in judgment.

Cook, J., concurs in judgment only.

Moyer, C.J., concurs in part and dissents in part.

Cook, J.,

concurring in judgment only. I disagree with the majority’s decision to address the applicability of R.C. 3103.04, since Lilly waived the issue by failing to raise it in the trial court. The court of appeals, on the strength of “plain error,” allowed the defendant to introduce, on appeal, the concept that he had a spousal privilege to enter his wife’s dwelling. The appellate court held that “[cjonvicting Lilly of a burglary offense, where, because of the operation of R.C. 3103.04, the trespass element of that offense had not been established, constituted a miscarriage of justice * * * [and] Lilly’s burglary conviction upon insufficient evidence was plain error.”

Appellate courts may only invoke the plain error doctrine “with the utmost caution, under exceptional circumstances.” State v. Long (1978), 53 Ohio St.2d 91, 97, 7 O.O.3d 178, 181, 372 N.E.2d 804, 808. Plain error is “obvious error prejudicial to a defendant, neither objected to nor affirmatively waived by him, which involves a matter of great public interest having substantial adverse impact on the integrity of and the public’s confidence in judicial proceedings. The error must be obvious on the records, palpable, and fundamental, and in addition it must occur in exceptional circumstances where the appellate court acts in the public interest because the error affects ‘the fairness, integrity or public reputation of judicial proceedings.’ ” State v. Craft (1977), 52 Ohio App.2d 1, 7, 6 O.O.3d 1, 4, 367 N.E.2d 1221, 1225-1226, quoting United States v. Atkinson (1936), 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, 557. I would find that this was not plain error. Even if R.C. 3103.04 would have obviated the element of trespass so as to aid Lilly’s defense, the failure to raise the issue decides the case.

Moyer, C.J.,

concurring in part and dissenting in part. I concur in the first paragraph of the syllabus and the judgment. I do not concur in the discussion of R.C. 3103.04 and the second paragraph of the syllabus for the reasons stated in the concurrence of Justice Cook. 
      
      . Some Ohio appellate courts, including the court in this case, have applied R.C. 3103.04 in criminal contexts. See, e.g., State v. Brooks (1995), 101 Ohio App.3d 260, 655 N.E.2d 418; State v. Middleton (1993), 85 Ohio App.3d 403, 619 N.E.2d 1113; and State v. Herder (1979), 65 Ohio App.2d 70, 19 O.O.3d 47, 415 N.E.2d 1000.
     