Cleveland v. Dickerson ( 2016 )

[Cite as Cleveland v. Dickerson, 2016-Ohio-806.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 101782 and 101783
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
NEDRA DICKERSON, ET AL.
DEFENDANTS-APPELLANTS
DECISION EN BANC:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case Nos. 2014 CRB 005203 and 2014 CRB 005201
BEFORE: The En Banc Court
RELEASED AND JOURNALIZED: March 3, 2016
ATTORNEYS FOR APPELLANTS
For Nedra Dickerson
Anna Markovich
Law Office of Anna Markovich
The Palm Aire Building
18975 Villaview Road, Suite 3
Cleveland, Ohio 44119
For Aaron Hendon
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Law Director
City of Cleveland
BY: Bryan Fritz
Victor R. Perez
Assistant City Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State Univ.,
120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, this court determined that a conflict
existed between the proposed majority panel decisions in these two cases and agreed to hear
these matters en banc. The cases were consolidated for en banc review.
{¶2} In this consolidated appeal, defendants-appellants, Nedra Dickerson (individually
“Dickerson”) and Aaron Hendon (individually “Hendon”) (collectively “appellants”), appeal the
judgment of the Cleveland Municipal Court finding them guilty of criminal trespass.
Appellants argue their criminal trespass conviction is supported by insufficient evidence and is
against the manifest weight of the evidence. Additionally, Dickerson contends that the trial
court abused its discretion in imposing as a condition of probation that she have no contact with
the airport, unless she is there for a “lawful reason.”
{¶3} After careful review of the record and relevant case law, we affirm.
I. Procedural and Factual History
{¶4} In March 2014, Dickerson and her then nineteen-year old son, Hendon, were cited
for criminal trespass in violation of Cleveland Codified Ordinances (“CCO”) 623.04, a
misdemeanor of the fourth degree. In July 2014, the case proceeded to a bench trial.
{¶5} At trial, Officer DiMarco of the Cleveland police testified that he was on duty at
Cleveland Hopkins International Airport (“Hopkins Airport”) in March 2014, when he observed
Dickerson in the baggage claim area speaking with Officer Harper. Following a brief
discussion, Officers DiMarco and Harper advised Dickerson that she could not loiter in the
airport. Officer DiMarco testified that he had warned Dickerson not to loiter in the past and that
she often became “argumentative.” On this occasion, Dickerson responded that she was not
loitering but was waiting for her son to return from the restroom. Officer DiMarco testified that
he walked to the nearest men’s restroom to determine if Hendon was inside. However, before
Officer DiMarco could enter the restroom, Hendon walked out and rejoined his mother in the
baggage claim area.
{¶6} Officer DiMarco testified that the situation did not conclude once he and Hendon
returned to the area where Dickerson was standing. At that time, Officer DiMarco advised
Dickerson for a second time that she could not loiter and would have to leave the airport.
According to Officer DiMarco, Dickerson stated, “I don’t know who you people are, I don’t have
to leave here. I’m not loitering, I’m not going to leave.” As Dickerson’s conduct became
more disruptive, Sergeant DeJesus approached the situation and advised Dickerson and Hendon
that he was Officer DiMarco’s supervisor and that they could be arrested for criminal trespassing
if they did not leave the premises. Officer DiMarco testified that Dickerson refused to leave,
stating, “Arrest me. Arrest me. I’m not leaving.” Dickerson was arrested at that time.
{¶7} Officer DiMarco testified that he then turned to Hendon, who was standing next to
Dickerson, and advised him that he would have to leave the airport or be arrested for criminal
trespass. Officer DiMarco testified that Hendon stated that he was not leaving and “was going
to jail.”
{¶8} Dickerson testified that she and her son are homeless. She stated that they took
public transportation to Hopkins Airport to use its restroom facilities. Contrary to Officer
DiMarco’s testimony, Dickerson testified that the officers never warned her that she could not
loiter and never asked her to leave the airport. Instead, Dickerson insisted that her disagreement
with the officers stemmed from Officer Harper’s failure to produce his name and badge number
and his disbelief that Dickerson was waiting for her son to use the restroom.
{¶9} Hendon also testified that he and his mother took public transportation to Hopkins
Airport to use the restroom. In addition, Hendon stated that the officers never asked them to
leave the airport. However, Hendon admitted that Officer DiMarco warned him and his mother
that they could not loiter in the airport. Hendon explained that although the officers advised
him that he was free to leave the premises, he did not leave the airport because he did not want to
leave his mother’s side.
{¶10} At the conclusion of trial, the trial court found Dickerson and Hendon guilty of
criminal trespassing. Appellants were each sentenced to a $250 fine and 30 days in jail. The
court gave them credit for the two days they served, suspended the remaining 28 days of the
sentence, and suspended the $250 fine. Additionally, the court placed appellants on “active
probation” for a period of nine months so that the probation department could assist with housing
or any other social services they needed. Finally, the court ordered Dickerson and Hendon to
have no contact with Hopkins Airport unless they were there for a “lawful reason.”
{¶11} Appellants now appeal from their conviction.
II. Law and Analysis
A. Sufficiency and Manifest Weight of the Evidence
{¶12} Under the first and second assignments of error, appellants argue their convictions
are not supported by sufficient evidence and are against the manifest weight of the evidence.
Because the arguments are related, we address the first and second assignments of error together.
{¶13} When assessing a sufficiency-of-evidence claim, a reviewing court examines the
evidence admitted at trial and determines whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.” Id.{¶14} A manifest-weight claim, on the other hand, requires the appellate court to review
the entire record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly
lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶15} In Ohio, there are various acts that constitute the crime of criminal trespass.
Relevant to the circumstances of this case, CCO 623.04(a)(4), which mirrors the language of
R.C. 2911.21(A)(4),1 provides, in part:
(a) No person, without privilege to do so, shall do any of the following:
***
(4) Being on the land or premises of another, negligently fail or refuse to leave
upon being notified to do so by the owner or occupant, or the agent or servant of
either.
{¶16} “The offense of criminal trespass forbidden under R.C. 2911.21(A)(4) basically
consists of failing to leave the premises once the actor is asked to leave; thus, if one remains on
the premises once he [has been] requested to leave, the offense is complete.” State v. Kemp, 2d
Dist. Montgomery No. 13396, 1993 Ohio App. LEXIS 1828, * 3 (Mar. 29, 1993), see also State
v. Ferguson, 1st Dist. Hamilton No. C-74216, 1975 Ohio App. LEXIS 7500, * 2 (Mar. 24, 1975).
(“The act which the State was compelled to prove [under R.C. 2911.21(A)(4)] was the
defendant-appellant’s refusal to leave [the store] upon being notified to do so by an agent of the
store.”); 75 American Jurisprudence 2d, Trespass, Section 165 (“Unlawful remaining, as applied
to public buildings and surrounding property, requires that a trespasser refuse or ignore a
contemporaneous order to leave. In other words, notwithstanding that when a property is open
to the public at the time of an alleged trespass the accused is presumed to have a license to be
present, a statute which provides that a person commits a criminal trespass when he or she
knowingly and without authority remains upon the land or premises of another person after
receiving notice from * * * an authorized representative of the owner or rightful occupant to
depart applies with equal force to publicly owned property.”).
{¶17} In challenging the sufficiency of the evidence supporting their convictions,
appellants argue the prosecution failed to prove that (1) they negligently failed to leave or refused
to leave the airport after being notified to do so, and/or (2) that they did not have the privilege to
enter and remain on the public property. We disagree.
{¶18} After careful review of the record, we find the prosecution presented sufficient
evidence to prove beyond a reasonable doubt that Dickerson and Hendon refused to leave the
airport after being notified to do so by the Cleveland police. In this case, Officer DiMarco, an
agent of the municipal property owner, testified that he and several other officers warned
Dickerson and Hendon that they could not loiter in the airport and could be arrested for criminal
trespass if they did not leave the property. As stated by Officer DiMarco, Dickerson was given
several opportunities to leave the premises but refused to do so, stating, “Arrest me. Arrest me.
I’m not leaving.” Further, Officer DiMarco testified that Hendon was advised that he would
have to leave the airport at that time or he would also be arrested. When asked if he was going
to leave, Hendon responded, “No, [I’m] going to jail.” Thus, the testimony presented at trial
sufficiently established appellants’ verbal and unambiguous refusals to leave.
1
For the purposes of this appeal, references to R.C. 2911.21 apply equally to CCO 623.04.
{¶19} With respect to appellants’ privilege argument, we note that “[t]he existence of a
privilege in a given case is necessarily dependent upon the particular facts and circumstances of
that case.” Dayton v. Moore, 2d Dist. Montgomery No. 13369, 1993 Ohio App. LEXIS 1647, *
8 (Mar. 25,1993).
{¶20} “Privilege” is defined in R.C. 2901.01(L):
Privilege means an immunity, license, or right conferred by law, or bestowed by
express or implied grant, or arising out of status, position, office, or relationship,
or growing out of necessity.
{¶21} As a general rule, a person has a privilege to enter and be upon the public areas of
public property. State v. Shelton, 63 Ohio App.3d 137, 578 N.E.2d 473 (4th Dist.1989).
However, the rule is not all encompassing, and a criminal trespass can be committed on public
land under certain circumstances. Id., citing Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17
L.Ed.2d 149 (1966). In fact, it is no defense in Ohio that a criminal trespass occurred on public
property. R.C. 2911.21(B); CCO 623.04(b); State v. Westfall, 2d Dist. Darke No. 897, 1975 Ohio
App. LEXIS 7692, * 7 (Feb. 10, 1975).
{¶22} Because “the status of land as public property cannot be a defense to a charge of
trespass [pursuant to R.C. 2911.21(B)], * * * then, concomitantly, the public official or agency
into whose charge the property is put can withdraw or revoke the privilege otherwise enjoyed by
a member of the public.” Moore at * 8. Thus, regardless of an individual’s initial privilege to
enter and be upon the public areas of public property, “the statute for criminal trespass states at
R.C. 2911.21(A)(4) that an owner or agent may revoke consent to remain on the premises.”
State v. Carr, 3d Dist. Union No. 14-11-20, 2012-Ohio-1679, ¶ 24.
{¶23} Applying the foregoing to the circumstances of this case, we find that while the
appellants had the privilege to enter the public airport for the purposes of using its restroom
facilities, that privilege was not indefinite and was revoked once the officers separately asked
Dickerson and Hendon to leave the property. As discussed, once their privilege was revoked,
the criminal trespass was completed at the moment Dickerson and Hendon refused to leave.
See Kemp, 1993 Ohio App. LEXIS 1828, at * 3; Ferguson, 1975 Ohio App. LEXIS 7500, at * 2.
{¶24} Nevertheless, appellants further argue that the City was required to prove that the
officer’s had a reasonable basis to revoke their privilege to remain on the public property.
Appellants rely on the North Carolina Court of Appeals decision in State v. Marcoplos, 154
N.C.App. 581, 572 S.E.2d 820 (2002), wherein the court held:
If premises are open to the public, the occupants of those premises have
the implied consent of the owner/lessee/possessor to be on the premises, and that
consent can be revoked only upon some showing that the occupants have
committed acts sufficient to render the implied consent void.
Id. at 582-583, citing State v. Winston, 45 N.C.App. 99, 102, 262 S.E.2d 331 (1980).
{¶25} In contrast to Marcoplos, however, courts have also construed similar versions of
Ohio’s “refuse to leave” criminal trespass statute as not requiring public or private property
owners to provide a reason or basis for asking an individual to leave their property. State v.
Pentico, 151 Idaho 906, 912, 265 P.3d 519 (Idaho App.2011) (“the statute does not distinguish
between public and private property and does not require the owner or authorized agent of the
owner of real property to identify (or even have) a reason to ask a person to leave.”), citing State
v. Korsen, 138 Idaho 706, 716, 69 P.3d 126 (2003), abrogated on other grounds (“By requiring
proof of an adequate reason for asking someone to leave public property, the magistrate
effectively created an additional statutory element to I.C. § 18-7008(8) that the law does not
require.”), State v. Missamore, 119 Idaho 27, 31, 803 P.2d 528 (1990), State v. Bowman, 124
Idaho 936, 945, 866 P.2d 193 (Idaho App.1993).
{¶26} In our view, a strict interpretation of R.C. 2911.21 reveals that there is nothing in
the language of the statute that would require the state to prove the agent or owner’s motivation
or basis for revoking an individuals’ “implied consent” to be on a specific property. See State v.
Gish, 4th Dist. Athens No. 94 CA 1612, 1994 Ohio App. LEXIS 5562, * 3 (Dec. 1, 1994) (“R.C.
2911.21(A)(4) only requires that the alleged trespasser refuses to leave the premises when told to
do so. * * * The record shows the defendants were asked to leave the premises and they
refused. The property owner’s motive in making the request is irrelevant.”). Accordingly, we
are unpersuaded by appellant’s reliance on Marcoplos. Had the legislature intended there to be
a heightened showing of proof under R.C. 2911.21(A)(4) for acts occurring on public property, it
would have so specified and would not have incorporated R.C. 2911.21(B) into the criminal
trespass statute. To hold otherwise, would require the prosecution to prove an element that is
omitted from the indictment, or in this case, the criminal complaint.
{¶27} Moreover, while appellants only cite Marcoplos for the proposition that one’s
privilege can only be revoked “upon some showing that the occupants have committed acts
sufficient to render the implied consent void,” we find it necessary to note that the Marcoplos
court went on to clarify that “one with lawful authority” may order a person to leave an area held
open to the public “when that person no longer has a legitimate purpose for being upon the
premises.” Id. at 584-585. Thus, even if we were to adopt the holding set forth in Marcoplos,
the outcome of this case would not be altered as the evidence presented at trial established that
Dickerson and Hendon were only asked to leave the airport after they used the public restrooms
and no longer had a “legitimate basis” to be in the baggage area of the airport.
{¶28} We emphasize that our holding does not stand for the proposition that a criminal
trespass conviction will always be upheld once the general privilege to enter public property is
revoked and the defendant refuses to leave. For example, there are circumstances where a
criminal trespass may be inappropriate where, subject to certain time, place, and manner of use
restrictions, the defendant is lawfully exercising his or her First Amendment rights to free speech
and peaceful assembly. However, the facts of this case do not support a finding that appellants
were exercising a constitutional right at the time they were asked to leave the airport. Instead,
Dickerson and Hendon were asked to leave following their confrontation with the police.
{¶29} Viewing the evidence in a light most favorable to the prosecution, a reasonable
trier of fact could find the essential elements of CCO 623.04(a)(4) to be proven beyond a
reasonable doubt. The record reflects that appellants were without privilege to remain on the
premises once they finished using the restroom facilities and were notified to leave by an agent of
the property owner. Further, Officer DiMarco’s testimony was sufficient to show that they
refused to leave. See State v. Doe, 9th Dist. Lorain Nos. 4130 and 4131, 1987 Ohio App.
LEXIS 8088 (July 22, 1987). Accordingly, appellants’ convictions are supported by sufficient
evidence.
{¶30} Moreover, we are unable to conclude that the verdicts were against the manifest
weight of the evidence. The trial court, as the trier of fact, was in the best position to weigh the
credibility of the witnesses and was free to find Officer DiMarco’s testimony to be more credible
than the appellants’. Deferring to the trial court’s assessment of the credibility of the witnesses,
as we must, we cannot say that the trier of fact lost its way and performed a miscarriage of justice
in convicting the appellants of criminal trespassing.
{¶31} Appellants’ first and second assignments of error are overruled.
B. Conditions of Community Control Sanctions
{¶32} In her third assignment of error, Dickerson argues the trial court abused its
discretion in imposing as a condition of probation that she shall have no contact with Hopkins
Airport unless she is there for a “lawful reason.”
{¶33} R.C. 2929.25 governs misdemeanor community control sanctions and provides that
the sentencing court shall require as a condition of any community control sanction that the
offender abide by the law. Additionally, the court is permitted to impose “additional
requirements” on the offender. See R.C. 2929.25(C)(2).
{¶34} Thus, pursuant to R.C. 2929.25, the trial court acted within its discretion in
ordering Dickerson, as a condition of her community control sanctions, to have no contact with
the airport except for a lawful purpose. Furthermore, we find no merit to Dickerson’s assertion
that the phrase “lawful purpose” is “overly broad.” In our view, the language is unambiguous.
Dickerson would violate the terms of her probation if she enters Hopkins Airport and
subsequently engages in unlawful conduct, as defined under state or municipal statutes.
{¶35} Dickerson’s third assignment of error is overruled.
III. Conclusion
{¶36} The appellants’ criminal trespassing convictions are supported by sufficient
evidence and are not against the manifest weight of the evidence. Furthermore, the trial court
did not abuse its discretion by ordering Dickerson to have no contact with Hopkins Airport
except for a “lawful purpose.”
{¶37} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, J., FRANK D. CELEBREZZE, JR., J., LARRY A. JONES, SR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
TIM McCORMACK, J., CONCURS (WITH SEPARATE OPINION ATTACHED)
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION ATTACHED) and CONCURS WITH SEPARATE CONCURRING OPINION OF
TIM McCORMACK, J.
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION ATTACHED)
PATRICIA ANN BLACKMON, J., EILEEN A. GALLAGHER, J., and MARY EILEEN
KILBANE, J., DISSENT (WITH SEPARATE OPINION ATTACHED)
ANITA LASTER MAYS, J., RECUSED
TIM McCORMACK, J., CONCURRING:
{¶38} This question arises from a dispute over the nature and usage of certain public
property, as to the degree of control, rules, regulations, and restrictions that can appropriately be
applied to property that is owned fully by the community. Thankfully while this dispute is not
sourced from a traumatic altercation, still its subject matter is important nonetheless as a
meaningful guide to clarifying and understanding both the rights and responsibilities of citizens
entering and using public property.
{¶39} While public property in its many manifestations often proves invaluable to the
pubic that enjoys its usage, public use and enjoyment of community property is naturally
tempered by the necessity of establishing reasonable and related restrictions on when and how we
utilize public assets.
{¶40} Public parks, libraries, swimming pools, skating rinks, and athletic fields each
provide wholesome outlets for the community. The attractions are open to the public and often
without charge. They also, though, have restrictions in place in order to ensure public safety
and convenience: hours of operation, pet policy, protection of natural settings, water
conservation, sound levels, traffic control, prohibitions on contraband. These public lands exist
for the benefit of the public, but the public is not invited to unbridled usage of the property owing
to the fact that they are a community not a private asset. That essential balance especially
applies to the many sensitive challenges that a major public airport faces each day.
{¶41} Public airport property is foremost dedicated to, and legally mandated to, safely
and conveniently serve the traveling public. Major public urban airports impact many square
miles of surrounding infrastructure in order to move the public to and through its terminals in a
safe, sanitary, and convenient manner. Approaching major interstate highways are clearly
marked with signage and instructions to lead to airport lanes. Dedicated airport acres are filled
with access roads to ensure approaching and departing safety and convenience. Once located on
grounds, walkways, escalators, elevators, ticketing, baggage claims, and retail store signage are
omnipresent in order to best ensure safe, orderly, and convenient movement of people to their
airport destinations. Public airport management and airport law enforcement have a legally
mandated duty to ensure that the traveling public will experience airport grounds that are fully
dedicated to its unique purpose, i.e., moving the air-traveling public safely, conveniently, and
sanitarily in and out of its airport. While all persons who are legally utilizing airport grounds
are entitled to its public spaces, no member of the public conversely possesses the cover of legal
protection to misuse the dedicated facility and thereby frustrate the necessary provision of airport
service to the traveling public. Those who would misuse airport property for non-traveling
purposes are not exempted from legal consequences because they choose to use public property
inappropriately in an unauthorized manner. A proper balance of fundamental interests on
airport grounds is not only legally supportable but as a matter of public policy, it is in the best
interests of the community.
SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶42} I concur in judgment only with the opinion of the majority. I respectfully disagree
with the determination by the majority in paragraph 23 that the appellants maintained their
privilege to use the airport restroom facilities within the meaning of R.C. 2901.01(L).
{¶43} If this case stands for anything, it likely demonstrates how we have failed to
address issues of homelessness in our society. This failure brings us to an unnecessary
discussion of privilege. Although I am certainly not suggesting that a member of the public can
be denied use of a public restroom in an open-to-public facility, I would stop short of conferring
an absolute privilege on that person where the person’s presence is not related to the purpose of
the facility.
{¶44} I would describe appellants’ status as having an implied consent or, under certain
circumstances, a limited privilege to use the public facility, but stop short of conferring an
absolute privilege upon the defendants in this case. The limited privilege remains “as long as
that privilege, based upon implied consent, is within the conditional or restricted consent of the
owner to enter.” State v. Girardier, Mo.App. No. ED102764, 2015 Mo. App. LEXIS 1255, at
*16 (Dec. 8, 2015). Evidence, however, of the stay being prolonged or for a reason unrelated to
the nature of the facility, boisterous conduct, breach of the peace, interference with others’
reasonable use of the facility, picketing, or other conduct that would revoke the implied consent
of the owner by acts inconsistent with the purposes of the business or facility demonstrates the
limited nature of the privilege bestowed upon the public. Id.{¶45} Appellants were not there to use the airport for its intended purpose, nor were they
even there to watch airplanes or pick anyone up. Thus, they had not availed themselves of the
limited privilege conferred upon entrants to the public facility. Had their presence been
connected to any reasonable or rational use of the airport, the limited privilege would arise.
Here, it did not; therefore, I concur in judgment only.
MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY:
{¶46} I agree with the dissent that there is no evidence indicating that Dickerson and
Hendon were doing anything unlawful in the airport when Dickerson was approached by the
officer and that his initial actions were based on the mistaken belief that Hendon was not using
the restroom facilities as his mother, Dickerson, stated. This means that they could not have
been lawfully arrested at this point: and they were not. However, when the officers concluded,
based on the appellants’ responses to them and their prior history with the appellants at the
airport, that they had no other legitimate or permissive reasons to remain in the airport, they were
authorized to ask the appellants to leave. The history of the appellants at the airport was
obviously key to the trial court’s decision. And although I agree in principle with the sentiment
of the dissent, I cannot conclude that the trial court’s finding was not rationally based on the
evidence.
PATRICIA ANN BLACKMON, J., EILEEN A. GALLAGHER, J., and MARY EILEEN
KILBANE, J., DISSENTING:
{¶47} We respectfully dissent. We would find the city did not prove, beyond a
reasonable doubt, that Hendon and Dickerson were at the airport, without privilege, which was
open to the public at the time of their arrest. It appears from the record that the initial officer’s
actions were based on his mistaken belief that Hendon was not in the restroom as Dickerson had
told the officer, leading to the compounded mistake that she was lying to him, and ultimately
ending in their arrests.
{¶48} According to Dickerson, Officer Harper approached her while she was waiting
outside the men’s restroom for Hendon. She explained that she was waiting for her son while
he used the restroom. Mother wanted to be near her 19-year-old son because he was feeling ill.
Officer Harper did a cursory look in the men’s restroom and did not see Hendon, so he returned
to Mother. He told Mother that no one was in the restroom. This was the beginning of the
misunderstanding.
{¶49} Officer Harper told Dickerson that she could not loiter at the airport. Dickerson
replied that “she wasn’t loitering[,] * * * she was waiting on her son[.]” The two of them “went
back and forth about [Hendon] being in the restroom.” Dickerson testified, “[f]or me, it was
unbelievable for [Harper] to go back and forth, when he didn’t check the restroom, and I knew
[Hendon] was in there.” Officer Harper continued to inquire. Dickerson then asked for his
name and badge number because she wanted to file a complaint.
{¶50} At this point, Officer DiMarco, who was the only witness to testify on behalf of the
city, approached and joined in the conversation. He noted that while Mother was speaking with
Officer Harper, she did not interfere with any passengers obtaining their luggage, cause a delay,
or harass anyone. Based on the conversation between Officer Harper and Dickerson, Officer
DiMarco decided to personally look in the restroom to determine if Hendon was actually using
the restroom. Officer DiMarco testified that he almost walked into Hendon as Hendon was
exiting the restroom. Clearly, Hendon had in fact been using the restroom.
{¶51} Officer DiMarco and Hendon then joined Officer Harper and Dickerson outside the
restroom. When Hendon came out of the restroom, Mother testified that “everything began to
collapse because [Sergeant DeJesus and Officer DiMarco] were believing [Officer Harper] * * *
as if I wasn’t * * * truthful.” Mother further testified that she was never told to leave. The
only discussion she had with the officers was “that [her] son wasn’t in the restroom.” Hendon
testified that the officers never told them that they had to leave, but Officer DiMarco told them
that they could not loiter at the airport.
{¶52} Officer DiMarco testified that they told Dickerson and Hendon that they had to
leave the airport and they could not loiter there. The officers advised Hendon that he would
have to leave or be arrested. Hendon did not get a chance to respond to the officers. Instead,
Dickerson, directing her remark to Hendon said, “[y]ou’re going to jail with me.” Officer
DiMarco then asked him if he was leaving. Hendon replied that he was not leaving, “he was
going to jail.”
{¶53} Hendon and Dickerson both argue that the city failed to prove loss of privilege
because they did not cause a disturbance or engage in conduct to justify the revocation. They
maintain that Hendon was lawfully using the public restroom, and Dickerson was waiting quietly
at the time they were approached by the officers.
{¶54} As this court stated in State v. Casey, 8th Dist. Cuyahoga No. 99742,
2014-Ohio-1229, discretionary appeal not allowed, 140 Ohio St.3d 1415, 2014-Ohio-3785, 15
N.E.3d 884, “[t]he state bears the burden of proving the lack of privilege.” Id. at ¶ 16, citing
State v. Newell, 93 Ohio App.3d 609, 611, 639 N.E.2d 513 (1st Dist.1994). See also Euclid v.
Moore, 8th Dist. Cuyahoga No. 75143, 1999 Ohio App. LEXIS 5900, *16 (Dec. 9, 1999) (where
this court stated “[t]he prosecution is also required to show beyond a reasonable doubt that
defendant did knowingly remain on the land or premises of another and was not privileged to be
there.” Id., citing Mariemont v. Wells, 33 Ohio Misc.2d 9, 10, 514 N.E.2d 764 (Hamilton Cty.
1986)); and Beachwood v. Cohen, 29 Ohio App.3d 226, 504 N.E.2d 1186 (8th Dist.1986)
(defendant-appellant’s conviction for criminal trespass was reversed where the city “introduced
no evidence to show that appellant was without privilege to be on the property” on the date of the
incident as required by city ordinance. Id. at 232.).
{¶55} In Casey, the defendant/ex-boyfriend broke through the door of the victim’s house
and shoved her on the couch. Id. at ¶ 3. The defendant previously possessed a key to the
victim’s property and stored some of his personal belongings there. The victim, however,
demanded the return of the keys two weeks prior to the incident. Id. at ¶ 5. The court found
the defendant guilty of aggravated burglary in violation of R.C. 2911.11(A)(1), noting that the
victim had sole custody and control of the apartment because her name was on the lease, she
alone paid the rent, and she revoked any privilege the defendant may have had when she
demanded the return of the keys two weeks before the incident occurred. Id. at ¶ 20.
{¶56} On appeal, we affirmed defendant’s criminal trespass conviction. We noted that
in a sufficiency challenge, every element of an offense must be proven beyond a reasonable
doubt. Id. at ¶ 12. In discussing the elements of criminal trespass, we stated:
[p]er R.C. 2911.10, the element of “trespass” refers to a violation of R.C. 2911.21
of the Revised Code. R.C. 2911.21, which governs criminal trespass, states, in
relevant part, that “[n]o person, without privilege to do so, shall * * * [k]nowingly
enter or remain on the land or premises of another. (Emphasis added.)
Id. at ¶ 14.
{¶57} We further stated that
[p]rivilege is the distinguishing characteristic between unlawful trespass and
lawful presence on the land or premises of another. R.C. 2901.01(A)(12) defines
“privilege” as “an immunity, license, or right conferred by law, bestowed by
express or implied grant, arising out of status, position, office, or relationship, or
growing out of necessity.” “Where no privilege exists, entry constitutes
trespass.” State v. Lyons, 18 Ohio St.3d 204, 206, 480 N.E.2d 767 (1985).
Id. at ¶ 16.
{¶58} Because Dickerson and Hendon have brought forth a sufficiency challenge, the city
bears the burden of proving, beyond a reasonable doubt, that they lost their privilege to be on
public property (the airport) in order to sustain the convictions for criminal trespass. Casey at ¶
16. Here, the majority concedes that Hendon and Dickerson had privilege to use the public
restrooms at the airport, but conclude the privilege was revoked when the officers asked them to
leave. However, Officer DiMarco, as the only witness for the city, was never asked or
volunteered any testimony about how Hendon or Dickerson lost their privilege to use a public
restroom.
{¶59} Instead, the testimony demonstrates that Dickerson was waiting for Hendon outside
of the public men’s restroom when she was approached by Officer Harper. Hendon used the
restroom while the airport was open to the public during normal business hours, because there is
no testimony indicating that the airport was closed at the time. There also was no evidence of
any signs restricting access to the public restroom, and no special key was needed to access the
restroom.
{¶60} The city never questioned its only witness, Officer DiMarco, about Hendon’s or
Dickerson’s privilege to be at the airport or how Hendon or Dickerson allegedly lost their
privilege at the time of the incident. The majority of Officer DiMarco’s testimony, which was
elicited by the city, described his past interactions with Hendon and Dickerson, and confirmed
that Dickerson was in fact waiting for her son while he used the public restroom. There was no
testimony by Officer DiMarco as to how Hendon or Dickerson lost their privilege to be at the
airport and on public property on the day in question.
{¶61} Dickerson’s and Hendon’s testimony is consistent and clear that Hendon was using
the public restroom, without causing a disturbance, while the exchange with Dickerson, Officer
Harper, and Officer DiMarco occurred. Hendon was lawfully using the public restroom at the
time Officer Harper and then Officer DiMarco approached Dickerson. Officer Harper’s initial
actions were based on the mistaken belief that Hendon was not in the restroom as Dickerson
stated, leading him to mistakenly believe that Dickerson was lying to him. This
misunderstanding resulted in the arrest of Dickerson and, ultimately, Hendon’s arrest.
{¶62} Unlike in Casey, Moore, and Cohen, in the instant case, the city introduced no
evidence establishing that Dickerson and Hendon had lost their privilege to be at the airport using
the public restroom. Moreover, there is no evidence to establish that they were doing anything
unlawful at the time of the incident, such as interfering in the airport’s operation or security.
Dickerson was simply waiting for Hendon while he used the public restroom at Cleveland
Hopkins International Airport, a facility that was open to the public at the time. Rather, the
record demonstrates that Dickerson and Hendon were arrested after Sergeant DeJesus instructed
Officer Marino to do so. The record is devoid of any reason why Dickerson could no longer
wait for her ill son, who was using the restroom.
{¶63} Based on the foregoing, and after viewing the evidence in a light most favorable to
the prosecution, we cannot say that the city established that Dickerson and Hendon were at the
airport without privilege. Thus, Dickerson’s and Hendon’s convictions for criminal trespass are
not supported by the sufficiency of the evidence. See State v. Hooper, 5th Dist. Delaware No.
13CAC010006, 2013-Ohio-4898, ¶ 24 (where the court found insufficient evidence to support
defendant’s criminal trespass conviction when there was no evidence that defendant did not have
a privilege or right to enter onto the premises. There were no signs restricting public access,
and the business property appeared open to the public during normal business hours.).
{¶64} Therefore, we would sustain the first assignment of error.
{¶65} In their second assignment of error, Hendon and Dickerson both claim that their
convictions are against the manifest weight of the evidence. They contend the trial court “lost
its way” in convicting them of criminal trespass in light of the evidence that they were privileged
to be at the airport and the police wrongfully revoked their privilege. In Dickerson’s third
assignment of error, she claims that the trial court abused its discretion imposing the no contact
order because the court did not specify what constitutes a lawful reason.
{¶66} Based on how we would resolve the first assignment of error, however, we would
find the second assignment of error and Dickerson’s third assignment of error moot. App.R.
12(A)(1)(c).
{¶67} Accordingly, we would reverse and remand the matters to the trial court with
instructions to vacate Hendon’s and Dickerson’s criminal trespassing convictions.