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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

CRIMINAL TRESPASS (014)

Also see Burglary and Related Offenses.

R.C. 2911.21 -- Criminal trespass.

State v. Dennis, 182 Ohio App. 3d 674, 2009-Ohio-2173 – Police responded to the report of a trespasser at an apartment complex. Believing apartment had been abandoned, officers entered and found the defendant in a recliner and a crack pipe in a potato chip bag. While trespassing for purposes of criminal law does not strictly follow civil law, he retained an expectation of privacy in the premises even though he had received eviction notices. Though he had been gone for a while, he was present when the officers entered and the state failed to prove the eviction process had been completed. Search and seizure case. Held that the defendant had standing to assert a Fourth Amendment violation and that good faith does not save the search because the officers could not have reasonably believed the apartment was vacant based on the information they had.

State v. Janson, 183 Ohio App. 3d 377, 2009-Ohio-3256 – Licensed realtor specializing in foreclosure sales went to look at property up auction by the sheriff. Without obtaining permission from the Hamilton County Sheriff or the owner, he used a step ladder to reach a second story window. He said he only looked in, but a neighbor said he entered. Neighbor called the sheriff. Defendant waited until deputy arrived. House was not posted no trespassing. Pro se appeal. Majority finds this amounted to trespassing. Dissent concludes, "Janson is not guilty of a crime. His misfortune is that he lives in a county where he would be convicted anyway." Actual entry offends majority though it is not a limit on interpretation of the trespassing statute. Dissent noted the neighbor was equally culpable for admittedly mowing the lawn of the abandoned property.

State v. Logsdon, 160 Ohio App. 3d 517, 2005-Ohio-1875 -- Abortion protestor's sign was carried into clinic by the executive director. Sign's owner was privileged to enter the premises and retrieve it. Criminal trespass conviction reversed.

State v. Spignola (1999), 136 Ohio App. 3d 136 -- The right to use public or governmental property for speech expression depends on whether the property has the status, through law or tradition, of a traditional public forum, a nontraditional public forum, or a nonpublic forum. The green at Ohio University does not qualify as a traditional public forum. The six sites on the green for which permits may be obtained to communicate with the public are nontraditional public forums, but the balance of the green, including a monument where people gather, remains a nonpublic forum. Criminal trespass conviction of preacher who refused to leave the monument area affirmed. Arresting him but not hecklers held not to be viewpoint discrimination.

State v. Larason (1956), 143 N.E. 2d 502, 503 -- "It is an abuse of a penal statute relating to criminal trespass to use it to try disputed rights in real property."

Beachwood v. Cohen (1986), 29 Ohio App. 3d 226, 231-232 -- It is necessary to prove that the defendant's presence was unlawful and not privileged. It is not sufficient to show merely that presence may have been unlawful.

State v. McMechan (1988), 48 Ohio App. 3d 261 -- Headnote: "Some form of communication of any restrictions on the use of land to those entering it is essential to a successful trespass prosecution under R.C. 2911.21(A)." Miami University student was arrested in a park posted with signs restricting use to daylight hours, but had not seen the signs. Court rejected trial judge's notion that the defendant should have gone looking for signs which might have restricted use of the park.

Columbus v. Hagwood (1984), 16 Ohio App. 3d 235 -- The word premises includes both land and buildings. Trespass may be accomplished merely by walking upon land where a no trespassing sign is posted.

In re Johnson (1982), 8 Ohio App. 3d 289, 290 -- "There is no distinction between trespassing from the outside of a structure and trespassing from within the structure from a permitted area into a locked prohibited area. A person who gains lawful entry into part of a structure can trespass in another part of the structure..." Also see State v. Shears (1975), 47 Ohio Misc. 27.

Columbus v. Andrews (February 27, 1992), Franklin Co. App. Nos. 91AP-590, 880 and 881, unreported (1992 Opinions 667) -- Privilege to trespass on the premises of another may arise from necessity and the defendant is entitled to have the jury so instructed. In dubious circumstances, a father was charged with trespass at the public school his child attended.

Cleveland v. Kliment (1990), 68 Ohio App. 3d 730 -- Conviction affirmed where repo men told principal they were at the school to repossess a teacher's car, were ordered to leave, but returned the following day and took the car.

State v. Shelton (1989), 63 Ohio App. 3d 137 -- While it is possible to prosecute for trespass on public property, a sheriff may not exclude from the public lobby of his office a person he considers a nuisance, then prosecute her for criminal trespass. For further discussion of trespassing on public property see Athens v. Bromall (1969), 20 Ohio App. 2d 140; Adderly v. Florida (1966), 385 U.S. 39.

Cleveland v. Bregar (1995), 106 Ohio App. 3d 713 -- Gateway stadium complex concluded to be private property for First Amendment purposes. Factual basis relied upon by the trial court was an unpublished federal district court opinion. Criminal trespass conviction upheld as requests that the defendant, who was holding a large sign, move to a nearby area, were related to public safety and did not attempt to regulate the content of speech.

State v. Newell (1994), 93 Ohio App. 3d 609 -- In a case focusing on limitations placed by security guards on the defendant's privilege to be at a public housing project where his sister lived, court finds state failed to prove ownership of the specific portion of the property the defendant was said to have trespassed upon.

State v. Boone (1995), 108 Ohio App. 3d 233, 237 -- Motorist stopped for a traffic violation pulled into a Proctor and Gamble parking lot. Criminal trespass conviction was not supported by the evidence.

Mariemont v. Wells (1986), 33 Ohio Misc. 2d 9 -- Privileged presence does not depend entirely on consent of owner or lessee of premises, and may come from consent of daughter allowing male visitor, though against express wishes of mother.

Mayfield Heights v. Riddle (1995), 108 Ohio App. 3d 337, 341-342 -- "In order to be guilty of criminal trespass through deception, a defendant must be aware either that a false impression is created or perpetuated or, knowing that the victim holds a false impression, withholds or prevents the victim from obtaining information to the contrary...A criminal conviction should not arise from an unsubstantiated belief."

State v. Rose (1975), 44 Ohio Misc. 17 -- Headnote 2: "A person who peacefully distributes handbills in front of a business enterprise in the public areas of a privately owned shopping center, the sole subject matter of which publicizes a labor dispute between his employer labor union and said business, may not be prosecuted for criminal trespass under R.C. 2911.21(A)(4), since such activity is protected by the First and Fourteenth Amendments to the U.S. Constitution." Compare Lawson Milk Co. v. Retail Clerks Union (1977), 59 Ohio App. 2d 207; South Discount Foods v. Retail Clerks Union (1968), 14 Ohio Misc. 188; Anderson v. Randall Park Mall (N.D. Ohio 1983), 571 F. Supp. 1173.

State v. Hohman (1983), 14 Ohio App. 3d 142 -- Headnote: "A labor organizer is not guilty of criminal trespass when he visits a nursing home, during normal visiting hours, at the invitation of some of its residents and while there he talks to some of the nursing home's employees and invites them to a union meeting." Compare State v. Otten (1986), 33 Ohio App. 3d 339.

State v. Keegan (1990), 67 Ohio App. 3d 824 -- Testimony of Planned Parenthood clinic director that defendants were told to leave was sufficient to establish lack of privilege to be present.

Cleveland v. Egeland (1986), 26 Ohio App. 3d 83, 89 -- Advocacy of a cause does not justify trespass as a matter of necessity. "Ohio does not recognize a right to trespass on another's rights, no matter how trivial they may be, in order to assert a cause, no matter how profound it may be." Also see Dayton v. Drake (1990), 69 Ohio App. 3d 180; State v. Prince (1991), 71 Ohio App. 3d 694; Kettering v. Berry (1990), 57 Ohio App. 3d 66; Cleveland v. Sundermeir (1989), 48 Ohio App. 3d 204; Akron v. Wendell (1990), 70 Ohio App. 3d 35.

Dayton v. Gigandet (1992), 83 Ohio App. 3d 886 -- Necessity does not excuse criminal trespass by abortion protesters.

State v. Lilly (1999), 87 Ohio St. 3d 97 -- Syllabus: "(1) 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 the dwelling. (2) R.C. 3103.04 is inapplicable in criminal cases." Also see State v. O'Neal (2000), 87 Ohio St. 3d 402; State v. O'Neal (1995), 103 Ohio App. 3d 151, 155. Compare State v. Middleton (1993), 85 Ohio App. 3d 403 (importance of a court order excluding husband from premises); State v. Brooks (1995), 101 Ohio App. 3d 260 (boyfriend had moved from apartment he and girlfriend formerly shared with lessee who had expressly refused him admission).

State v. Imperatore (1994), 98 Ohio App. 3d 384 -- Defendant charged with trespass at the home of his ex-wife at a time other than that allocated to child visitation could be prosecuted under either 2911.21(A)(1) or (2).

State v. Lyons (1985), 18 Ohio St. 3d 204, 205 -- "(W)e hold that for purposes of R.C. 2911.13(B), an otherwise unauthorized entry onto property restricted to those who pay a fee constitutes trespass where the person entering the property manifests no intention to pay the fee." (Proof of trespass was necessary to B&E charge.)

State v. Scruggs (1980), 18 Ohio Ops. 3d 154 -- Criminal trespass is a lesser-included offense of aggravated burglary. Also see State v. Murphy (1983), 9 Ohio App. 3d 248 -- Criminal trespass is a lesser included offense to breaking and entering.

State v. Finnegan (1983), 8 Ohio App. 3d 432 -- The criminal trespass statute does not apply to motor vehicles. Also see State v. Carroll (1980), 62 Ohio St. 2d 313.

Akron v. Wendell (1990), 70 Ohio App. 3d 35, 44 -- Disorderly conduct and criminal trespass charges, though arising from the same demonstration, are not allied offenses of similar import.

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