Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
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.
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
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
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
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
(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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