State v. Kalman , 2017 Ohio 7548 ( 2017 )

[Cite as State v. Kalman, 2017-Ohio-7548.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 16CA9
v. :
DECISION AND
ELIOT KALMAN, : JUDGMENT ENTRY
Defendant-Appellant. : RELEASED 09/01/2017
APPEARANCES:
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Ohio Public
Defender, Columbus, Ohio, for defendant-appellant.
Lisa A. Eliason, Athens City Law Director, and Tracy Meek, Athens City Prosecutor, Athens,
Ohio, for plaintiff-appellee.
Hoover, J.
{¶1} Defendant-appellant, Eliot Kalman (“Kalman”), was convicted of one count of
criminal trespass following a bench trial in the Athens County Municipal Court. The criminal
trespass charge arose from allegations that Kalman had entered a restricted area on the grounds
of the Athens County Courthouse; and that he had entered the Athens County Courthouse and
surrounding premises after having twice been given notice that he was banned from the
courthouse and the courthouse premises. On appeal, Kalman first contends that the trial court
erred in denying his motion to dismiss. In his motion to dismiss, Kalman alleged that he had a
First Amendment privilege to be within the restricted area. In addition, Kalman argues in his
second contention on appeal that the orders barring him from the courthouse property were
Athens App. No. 16CA9 2
unconstitutional and thus could not be relied upon to support the trial court’s guilty verdict. For
the following reasons, we affirm the judgment of the trial court.
I. Facts and Procedural History
A. Background History
{¶2} For an unknown number of years a large box with placards containing the names
of local churches was affixed to the outside of the Athens County Courthouse. Above the box
was a label that read: “Church Directory.” Only recently has the label been changed to read:
“Directory.” The parties dispute whether the box currently contains only the names of local
churches, or whether it contains other addresses and information as well. Kalman, and apparently
other individuals, have taken issue with the directory, claiming that religious signage on a public
building violates the First Amendment’s Establishment Clause.
{¶3} Kalman has conveyed his concerns regarding the signage to his local government
for a number of years. The record indicates that Kalman has written letters, emails, and requested
meetings with local officials to discuss the directory. Eventually, Kalman began placing stickers
on the directory conveying his belief that its presence was unconstitutional.
{¶4} On October 28, 2014, Kalman received a “Trespass Complaint Form” from the
Athens County Sheriff’s Office informing him that he was no longer permitted to return to 1
South Court Street, Athens, Ohio, the site of the Athens County Courthouse and attached
directory. This act only seemed to increase Kalman’s efforts to have the directory removed.
Specifically, Kalman began to place new stickers on the directory that featured just one word:
“UNCONSTITUTIONAL.” Kalman also wrote letters to the Athens County Commissioners in
the summer of 2015, stating that he would continue to object to the placement of the directory.
Athens App. No. 16CA9 3
{¶5} Sometime in the fall of 2015, metal chains were installed around the stairs and
ramp that surround the directory. Signs were also placed on the chains noting that only
authorized personnel was permitted beyond the chains.
B. The Events of October 29, 2015
{¶6} On October 29, 2015, Kalman entered the courthouse, approached the security
officers, and told them that he was going to put stickers on the directory. Constable Ronald
Hawk told him that he could be charged with a crime for doing that. Kalman indicated that he
understood the warning.
{¶7} Kalman then left the inside of the courthouse and went directly to the newly
installed chains hanging before the stairs and ramp that surround the directory. Kalman then
stepped over the chain and began to place stickers on the directory. The Constables then served
Kalman with another “Trespass Complaint Form” as he was sitting on a bench outside of the
courthouse. Constable Hawk then told Kalman that only authorized personnel were permitted to
cross the chain. Kalman replied that he was authorized by the Constitution of the United States.
{¶8} Following their discussion, Constable Hawk went back inside the courthouse and
monitored the security video of the courthouse perimeter. Approximately five minutes later he
saw Kalman return to the chain and cross over it again. This time Kalman placed a stepstool on
the ramp below the directory. He then used the stepstool to place another sticker on the directory.
{¶9} Kalman was then served with a criminal complaint charging him with criminal
trespass, a fourth degree misdemeanor in violation of R.C. 2911.21(A).
C. Litigating the First Amendment Issue
1. Pretrial Motions
Athens App. No. 16CA9 4
{¶10} In March 2016, as the scheduled trial date neared, the State filed a motion in
limine. The motion in limine sought to preclude Kalman from submitting any evidence regarding
the constitutionality of the directory and “any assertion that Defendant’s First Amendment right
permits or grants a privilege permitting him to engage in criminal trespass.” Specifically, the
State sought to exclude the following: eight photographs of the directory from 2014; a July 29,
2015 letter to the county commissioners regarding the constitutionality of the directory; an
August 3, 2015 letter to the county commissioners regarding the directory; thirteen photographs
of the directory from June 2015 to October 2015; a written statement from Kalman; and a DVD
compilation of Kalman’s “protest recordings.”
{¶11} Two days after the motion in limine was submitted, the trial court granted the
motion in its entirety. The trial court stated that the evidence was not relevant to the criminal
trespass charge. Further, the trial court found that the issue of privilege is a “legal issue and is
properly presented in a motion to suppress or a motion to dismiss” and not for a jury to decide.1
{¶12} In response, Kalman filed a motion to dismiss, arguing that he had a privilege to
be on the ramp and the stairs immediately below the directory because the area was a public
forum open to free expression of speech. The State filed a response, arguing that Kalman
trespassed by crossing the chains marked “Authorized Personnel Only” and by being on
courthouse property after being served with two Trespass Complaint Forms that barred him from
being on the courthouse property. The State also argued that the area did not constitute a public
1
We note that Crim.R. 12(C) permits a court to consider a defense and evidentiary issues when ruling on a pretrial
motion to dismiss only if the matter is capable of determination without trial of the general issue. (Emphasis added.)
State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 3. Here, we disagree with the trial court’s
assessment that evidence pertaining to the restricted area was not relevant to the criminal trespass statute. Rather,
whether the restricted area is a forum open for public debate goes to the essential element of whether Kalman was
privileged to be within the restricted area. Thus, this writing judge does not believe that it was best practice to
consider the issue in a pretrial motion to dismiss because determination of the motion requires consideration of the
general issue for trial. Nonetheless, because the trial court directed Kalman to present and argue the issue in this
manner, we will review his assignments of error.
Athens App. No. 16CA9 5
forum, but that if it constituted a designated public forum, the restriction was a content-neutral
regulation of time, place, and manner of expression.
2. The Motion to Dismiss Hearing
{¶13} The only person to testify at the motion to dismiss hearing was Athens County
Commissioner Charlie Adkins.2 Adkins described the restricted area along the right side of the
courthouse as a ramp and steps that lead to a door that leads into the Athens County Prosecutor’s
Office.3 Adkins indicated that the ramp and steps are approximately four feet wide. He further
testified that the landing area at the top of the steps and ramp is approximately four feet by five
feet in area, and the ramp is approximately eight to ten feet long. The restricted area also
contains the directory prominently displayed on the exterior of the courthouse and directly next
to the door. Adkins explained that a chain is affixed across the entrance of the ramp to block
access to the restricted area via the ramp. He further explained that a second chain is affixed to
block access to the restricted area via the steps. Attached to each chain is a sign that states
“Authorized Personnel Only”. Adkins described the area surrounding the restricted area as a “a
brick and concrete area” approximately forty feet by sixty feet in area, also referred to as the
“courtyard.” A sidewalk along Court Street, and a sidewalk along Washington Street also
surround the courthouse premises.
2
In addition to the testimony, the trial court also accepted the State’s exhibits into evidence. The exhibits consisted
of the agreement between the county and the Athens Christian Education Association regarding control and
maintenance of the directory, and photographs of the restricted area.
3
Adkins further explained that the steps and ramp formerly led to a restroom, but that at the time of the events at
issue the entrance led to the Athens County Prosecutor’s Office.
Athens App. No. 16CA9 6
(These photographs were admitted as exhibits in the proceedings below, and depict the restricted
area and directory.)
{¶14} Adkins described the space around the restricted area, aka the courtyard, as an
area that has a history of protest and first amendment expression. In fact he testified that protests
and demonstrations occur in the courtyard “[a]bout every day.” He indicated that the courtyard
extends to within four feet of the directory. Adkins stated that neither the commissioners,
constables, nor law enforcement would stop demonstrations in the courtyard as long as they were
non-violent and did not block access to the main entrance of the courthouse. Conversely, Adkins
testified that he was not aware of any individuals or groups who have assembled to protest or
exercise their first amendment rights in the restricted area other then individuals who have
vandalized the directory.
Athens App. No. 16CA9 7
{¶15} Adkins explained that the only individuals allowed in the restricted area were
those people with “authorization” or “the maintenance department.” He stated that the door
within the restricted area is locked and is no longer a public entry into the courthouse. He noted
that courthouse security is located at the main entrance, but that there is no security measures in
place to check individuals gaining access via the restricted area doorway. Accordingly, Adkins
contends that entrance through the restricted area would present a safety risk to those within the
courthouse, and that the county has an interest in deterring the public from attempting to gain
entry through the door. He further explained that the chains and signs were also installed to
prevent repeated acts of criminal mischief and criminal damage to the directory4, and because the
commissioners had liability concerns after seeing someone use a ladder to reach the directory.
Adkins indicated that the county did not control or maintain the directory; noting that the control
and maintenance of the directory had been transferred to the Athens Christian Education
Association via written agreement. Adkins confirmed that the contract to control and maintain
the directory was not open for bids, and that Kalman had requested to maintain the directory but
was not provided the opportunity. Adkins denied that the restricted area was created directly
because of Kalman’s actions.
{¶16} At the conclusion of the hearing the State argued that the restricted area at issue
was not a public forum, that the government had four legitimate interests in restricting the area,
and that even if the court found the area to be a designated public forum, the restriction was a
content-neutral regulation of time, place, or manner. Meanwhile, Kalman’s defense counsel
argued that the criminal trespass statute only prohibits conduct that individuals engage in without
privilege; and that Kalman had privilege to be on the courthouse property because the restricted
4
Adkins noted that individuals placed stickers on the plexiglass covering of the directory with such regularity that
the plexiglass had to be replaced.
Athens App. No. 16CA9 8
area was a public forum open to free speech. Thus, defense counsel argued that because the area
was a public forum, the government had to demonstrate a “significant interest” in order to restrict
the area. Defense counsel concluded that the government’s interests were not significant, but
were merely offered to disguise its actual objective, which was to prevent Kalman from voicing
his displeasure with what he perceived to be a constitutional violation.
3. The Trial Court’s Decision on the Motion to Dismiss
{¶17} At the conclusion of the motion to dismiss hearing, the trial court issued oral
findings. The trial court found that the restricted area was not a public forum, that there were
alternative means of communication available, that the restriction was narrowly tailored, and that
there was a significant and appropriate government interest. Specifically, the trial court found the
safety and liability concerns to be of significant interest to the county. It also found that
preventing defacement of property is a legitimate government interest.
{¶18} The trial court later issued a written decision on the motion to dismiss, which
added that the restriction was content-neutral.
D. Trial and Sentencing
{¶19} Following the denial of the motion to dismiss and the granting of the State’s
motion in limine, Kalman decided to move forward with a bench trial. On the day of the bench
trial Kalman proffered his First Amendment arguments via written filing, thus preserving those
issues for appeal.
{¶20} Ultimately, the trial court found Kalman guilty of criminal trespass. He was
sentenced to 30 days of jail; all of it was suspended in lieu of two years of community control.
The trial court also imposed a $250 fine, of which $200 was suspended.
Athens App. No. 16CA9 9
{¶21} Kalman filed a timely notice of appeal, as well as a motion to stay sentence. The
trial court ordered a stay of the sentence pending the outcome of this appeal.
II. Assignments of Error
{¶22} Kalman assigns the following errors for our review:
Assignment of Error I:
The trial court erred when it denied Mr. Kalman’s motion to dismiss. First and
Fourteenth Amendments to the U.S. Constitution; Ohio Constitution, Article I,
Sections 11; Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231, 107
S. Ct. 1722, 95 L. Ed. 2d 209 (1987); Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983); Motion to Dismiss:
Decision and Journal Entry, Apr. 20, 2016; Motion Hr’g Tr. 8, 13, 28, 41-46, 47-
48, 55, 62, 70, 72; Motion H’rg Exhibits A and F.
Assignment of Error II:
The trial court erred when it relied upon the unenforceable trespass-complaint
forms in order to find Mr. Kalman guilty of criminal trespass. First and
Fourteenth Amendments to the U.S. Constitution; Ohio Constitution, Article I,
Sections 11 and 16; R.C. 2911.21; State’s Response to Defendant’s Motion to
Dismiss; Motion Hr’g Tr. 52-53; Trial Tr. 10-12, 13, 35-37, 110; Exs. A and F.
III. Law and Analysis
A. First Assignment of Error
{¶23} In his first assignment of error, Kalman contends that the trial court erred by
overruling his motion to dismiss. Kalman contends that, under the facts of this case, the
enforcement of the criminal trespass statute violated his right to free speech under the United
States and Ohio Constitutions. Specifically, Kalman contends that: (1) the restricted area is a
public forum, (2) the restricted area was created in direct response to his protests of the directory,
i.e. was content or viewpoint based, (3) the government’s cordoning off of the restricted area
Athens App. No. 16CA9 10
must be analyzed under strict scrutiny, (4) the restriction does not serve a compelling interest and
is not narrowly tailored, (5) he therefore had a privilege5 to be in the restricted area to express his
freedom of speech, and (6) his being in the restricted area cannot constitute criminal trespass.
{¶24} The State argues that the restricted area is a nonpublic forum and, as such, the
reasonable, viewpoint-neutral restriction did not violate the First Amendment. Alternatively,
even if a higher level of scrutiny applies, the State argues that the cordoning off of the restricted
area is a content neutral time, place, or manner restriction, narrowly tailored to serve significant
government interests, leaving open ample alternative channels of communication. Thus, under
either analysis, the State contends that Kalman did not have a “privilege” to be within the
restricted area under the First Amendment.
1. Motion to Dismiss Standard of Review
{¶25} Appellate review of a trial court’s decision on a motion to dismiss involving a
constitutional determination involves a mixed question of law and fact. State v. Spingola, 136
Ohio App. 3d 136, 142, 736 N.E.2d 48 (4th Dist.). We will defer to a trial court’s factual findings
if some competent and credible evidence supports them, but we independently review whether
the trial court properly applied the law to the facts. Id.
2. First Amendment Analysis
{¶26} The First Amendment guarantees both the freedom of speech and the freedom of
assembly. See U.S. Constitution, First Amendment. Courts “evaluate free speech and free
5
Whether Kalman had a privilege to be within the restricted area is relevant to this case because the criminal
trespass statute, R.C. 2911.21, prohibits offenders from being in certain places “without privilege to do so.” In fact,
the essential element at issue in the first assignment of error is whether Kalman had a privilege to be in the restricted
area. A privilege includes a right conferred by law. R.C. 2901.01(A)(12).
Athens App. No. 16CA9 11
assembly claims under the same analysis.” Stagman v. Ryan, 176 F.3d 986, 999 (7th Cir.1999),
fn. 3.
{¶27} To demonstrate a violation of his First Amendment rights, Kalman must first
establish that the First Amendment protects his activities. Cornelius v. NAACP Legal Defense &
Edn. Fund, Inc., 473 U.S. 788, 797, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). If his activities are
so protected, we must then determine whether the challenged restrictions impact a public or
nonpublic forum. This determination is critical because it dictates the extent to which the
government can restrict First Amendment activities within the forum. Id.; see also Spingola at
142 (“The right to use public or government 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.”) Finally, we must determine whether the
State’s proffered justifications for prohibiting speech in the forum satisfy the requisite standard
of review. Cornelius at 797.
a. The First Amendment Protects Kalman’s Activities
{¶28} Kalman alleges that the cordoning off of the restricted area interferes with his
ability to protest and demonstrate against the placement of the directory on the county
courthouse.
{¶29} The “freedom to discuss public affairs and public officials is unquestionably * * *
the kind of speech the First Amendment was primarily designed to keep within the area of free
discussion.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 296-297, 84 S. Ct. 710, 11 L. Ed. 2d 686
(1964) (Black, J., concurring). Thus, to the extent that Kalman was engaged in speech aimed at
the government and his belief that the directory violated the Establishment Clause, the First
Amendment protects his activities.
Athens App. No. 16CA9 12
b. Public v. Nonpublic Forum
{¶30} Before determining whether the restricted area constitutes a public or nonpublic
forum, we find it necessary to discuss the differences between the forum statuses.
{¶31} “Nothing in the Constitution requires the Government freely to grant access to all
who wish to exercise their right to free speech on every type of Government property without
regard to the nature of the property or to the disruption that might be caused by the speaker’s
activities.” Cornelius, 473 U.S. at 799-800, 105 S. Ct. 3439. Nonetheless, the public may acquire
by tradition or prior permission the right to use government property for expressive purposes. Id.
at 802. Thus, to determine when and to what extent the Government may limit expressive
activity on its property, the Supreme Court has adopted a range of constitutional protections that
varies depending on the nature of the government property, or forum. Id. at 800.
{¶32} The three types of forums identified by the Court are: the traditional public forum;
the designated public forum; and the nonpublic forum. Id. at 802. Traditional public forums are
places that by long tradition have been open to public assembly and debate. Id.; Perry Edn. Assn.
v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983) (“At one
end of the spectrum are streets and parks which have immemorially been held in trust for the use
of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.”) (Internal quotations omitted.) In
traditional public forums, the government’s right to “limit expressive activity [is] sharply
circumscribed.” Perry at 45. A designated public forum is public property, not constituting a
traditional public forum, which the government has intentionally opened to the public for
expressive activity. Id. “They may be opened generally for all expressive activity. Or, they may
be designated for more limited purposes such as use by certain groups, or discussion of certain
Athens App. No. 16CA9 13
subjects.” Air Line Pilots Assn., Internatl. v. Dept. of Aviation of City of Chicago, 45 F.3d 1144,
1151 (7th Cir.1995) (Internal citations omitted). While the government is not required to retain
the open nature of property indefinitely, “as long as it does so it is bound by the same standards
as apply in a traditional public forum.” Perry at 46. If the property is not a traditional public
forum or a designated public forum, it is a nonpublic forum. Access to a nonpublic forum can be
restricted as long as the restrictions on speech are “reasonable and are not an effort to suppress
expression merely because public officials oppose the speaker’s view.” Id.
c. The Restricted Area is a Designated Public Forum
{¶33} Here the trial court determined that the restricted area was a nonpublic forum. For
the reasons that follow, we disagree.
{¶34} Commissioner Adkins testified that the restricted area is not an area that has
traditionally been open to the public for expressive activity. Thus, it is not a traditional public
forum. However, although the restricted area is not a traditional public forum, it has been opened
by the government as a place for public expression. Commissioner Adkins testified that the
directory has been placed on the exterior of the courthouse, within the restricted area, for as long
as he can remember. The directory is purportedly open for various organizations to use. In order
to access the directory one must use the steps or ramp. Commissioner Adkins testified that while
the directory is controlled and maintained by the Athens Christian Education Association, it is
owned by the county. Therefore, we determine that the government has intentionally opened the
restricted area to the public for expressive activity and the area is a designated public forum.
d. The Restrictions are Content-Neutral and Intermediate Scrutiny Applies
Athens App. No. 16CA9 14
{¶35} Government restrictions on speech in a designated public forum are subject to the
same scrutiny as restrictions in a traditional public forum. Pleasant Grove City, Utah v.
Summum, 555 U.S. 460, 470, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009). In a public forum, the
government cannot ban all expressive activity. Perry, 460 U.S. at 45, 103 S. Ct. 948. However,
even in a public forum, the government can restrict speech through “content-neutral time, place,
and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored
to advance that interest; and (c) leave open ample alternative channels of communication.” Doe
v. City of Albuquerque, 667 F.3d 1111, 1130-31 (10th Cir.2012). Content-based restrictions,
however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a
compelling government interest.” Summum at 469. In the case sub judice, the State claims that
the county created the restricted area as a content-neutral time, place, and manner restriction, and
that the restriction satisfies the intermediate scrutiny analysis described above. Kalman, on the
other hand, argues that the restricted area was created in direct response to his protests and
demonstrations against the directory, and thus is content-based or viewpoint discrimination
subject to strict scrutiny analysis.
{¶36} The trial court found that the cordoning off of the restricted area constituted a
content-neutral restriction and thus applied intermediate scrutiny.6 We agree with this
determination. Commissioner Adkins specifically testified that the cordoning off of the restricted
area was not in direct response to Kalman’s activities, and also advanced several other reasons
why the area was restricted. Kalman, conversely, did not advance any evidence to support his
contention that the restriction was content or viewpoint based, and rather relies on mere
6
It is not entirely clear why the trial court engaged in this analysis when it also determined the area to be a
nonpublic forum. As noted above, the government has broad discretion to restrict expressive activity in a nonpublic
forum, and the court need not conduct a narrowly tailored analysis. Rather, “restrictions on speech [in a nonpublic
forum] need only be reasonable and may not discriminate on the basis of viewpoint.” Air Line Pilots Assn.,
Internatl., 45 F.3d at 1151.
Athens App. No. 16CA9 15
supposition and conjecture. Because the restriction was not aimed at a single person and is
applicable to everyone without regard to the content of their messages, we determine it to be
content-neutral.
e. The Restriction Satisfies Intermediate Scrutiny and Kalman Did Not Have a Privilege to
be Within the Restricted Area
{¶37} Here, the government asserted four interests in support of its cordoning off of the
restricted area: public safety concerns, liability concerns, concerns regarding attempted
unauthorized access into the courthouse, and to prevent damage and defacement of county
property. We agree that these interests are significant.
{¶38} Certainly the safety and security of the individuals visiting and working in the
courthouse is of significant concern to county officials. Commissioner Adkins specifically
testified that he has witnessed individuals place a stool or ladder on the uneven pavement of the
ramp to reach the directory within the restricted area. He also testified that he did not believe the
ramp was ADA compliant, and that individuals working in the prosecutor’s office were
frightened when individuals tried to gain entrance through the door. Thus, it appears the county
had valid concerns regarding the safety and security of the restricted area, as well as an interest
in preventing the unauthorized attempted access into the courthouse.
{¶39} Furthermore, insulating the county from potential liability and safeguarding its
property is also of significant interest to the county. The county, like most in this region and this
State, simply cannot afford the costs associated with injury to persons or property. Evidence was
presented that the county has already spent money to replace a plexiglass covering of the
directory, and to pay labor costs associated with remediation of damage to the directory.
Athens App. No. 16CA9 16
{¶40} Next, we must determine whether the restriction was narrowly tailored to advance
the significant interests of the government. For the purposes of a content-neutral regulation, “the
requirement of narrow tailoring is satisfied so long as the * * * regulation promotes a substantial
government interest that would be achieved less effectively absent the regulation” and does not
“burden substantially more speech than is necessary to further the government’s legitimate
interests.” Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S. Ct. 2746, 105 L. Ed. 2d 661
(1989) (Internal quotations and citations omitted.) Here, the restricted area is relatively small in
comparison to the surrounding courtyard and sidewalks that surround the courthouse. This is not
a scenario where the government has categorically banned all First Amendment activity within
the entirety of the courthouse curtilage. In other words, effective demonstration of the directory
can occur immediately outside of the restricted area, a mere four feet from the directory, and the
restricted area does not significantly burden Kalman’s speech activities or the speech activities of
others. Thus, it is narrowly tailored.
{¶41} Finally, there are ample alternative channels for communication. According to
Commissioner Adkins, the only individual to testify at the motion to dismiss hearing, any
individual can stand immediately outside of the restricted area, in the courtyard, and exercise
their right to free speech. The courtyard has a history of being a free speech zone, and
Commissioner Adkins testified that free speech is not stifled in that area so long as it is peaceful
and does not block access to the main entrance. If an individual wished to protest the directory
specifically, we again note that this can be done in the courtyard a mere four feet from the
directory.
{¶42} Kalman alleges that he personally cannot demonstrate in the courtyard because he
was been served two Trespass Complaint Forms barring him from the county courthouse and its
Athens App. No. 16CA9 17
premises. While the forms do bar Kalman from the county owned property, they do not bar him
from the city owned sidewalks that also border the courthouse. Thus, Kalman can still
demonstrate and protest the directory from the city sidewalks. Furthermore, if Kalman or any
other person wishes to have information included in the directory, the county has established a
manner in which this can be accomplished.
{¶43} In sum, the creation of the restricted area did not violate Kalman’s First
Amendment rights because the restriction was content-neutral, narrowly tailored to ensure
significant government interests, and left open ample alternatives for Kalman to communicate
his message. Therefore, Kalman was not “privileged” to enter the restricted area, and the trial
court did not err in denying his motion to dismiss. Kalman’s first assignment of error is
overruled.
B. Second Assignment of Error
{¶44} In his second assignment of error, Kalman contends that the Trespass Complaint
Forms barring him from the courthouse property are unconstitutional and thus could not be relied
upon to support the trial court’s guilty verdict.
{¶45} Kalman was charged with one count of criminal trespass under R.C. 2911.21(A),
which states:
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;
(2) Knowingly enter or remain on the land or premises of another, the use of
which is lawfully restricted to certain persons, purposes, modes, or hours, when
the offender knows the offender is in violation of any such restriction or is
Athens App. No. 16CA9 18
reckless in that regard;
(3) Recklessly enter or remain on the land or premises of another, as to which
notice against unauthorized access or presence is given by actual communication
to the offender, or in a manner prescribed by law, or by posting in a manner
reasonably calculated to come to the attention of potential intruders, or by fencing
or other enclosure manifestly designed to restrict access;
(4) Being on the land or premises of another, negligently fail or refuse to leave
upon being notified by signage posted in a conspicuous place or otherwise being
notified to do so by the owner or occupant, or the agent or servant of either.
{¶46} Thus, because it is undisputed that Kalman entered the clearly marked restricted
area, and because we determined he did so without privilege, sufficient evidence exists to
support the trial court’s verdict regardless of the constitutionality of the Trespass Complaint
Forms. Consequently, the second assignment of error is moot and we decline to address it. See
App.R. 12(A)(1)(c).7
IV. Conclusion
{¶47} Based on the foregoing, we conclude that the trial court did not err in denying
Kalman’s motion to dismiss or in convicting Kalman of criminal trespass following the bench
trial. Having overruled Kalman’s first assignment of error and rendering moot his remaining
assignment of error, we affirm the judgment of the trial court.
7
While we decline to address the merits of Kalman’s second assignment of error, we note that there exists authority
supporting his argument; at least facially. See Huminski v. Corsones, 396 F.3d 53 (2d Cir.2004) (trespass notices
issued to protestor barring protestor from appearing in or around state court facilities or grounds were an
unreasonable restriction on protestor’s expressive activity under First Amendment). Nonetheless, we refrain from
determining whether the Huminski ruling would apply under the facts of the instant case.
Athens App. No. 16CA9 19
JUDGMENT AFFIRMED.
Harsha, J. concurring:
{¶48} It is doubtful that Kalman’s pretrial motion to dismiss was the proper procedural
mechanism to decide the issue of privilege. Crim. R. 12(C) provides for filing a motion to
dismiss only where it addresses a defense or issue that is “capable of detetermination without a
trial of the general issue. ” Here, the issue of whether Kalman had a privilege, constitutional or
otherwise, to be at the specific location was central to deciding the ultimate issue of criminal
trespass. In essence, Kalman’s pretrial motion to dismiss was a motion for summary judgment,
which the criminal rules do not authorize. See Katz & Giannelli, Baldwin’s Ohio Practice,
Criminal Law (3rd ed.), § 47:4.
{¶49} Kalman had two choices to put the issue of privilege before the court: 1) go to
trial and make a Crim. R. 29 Motion for Judgment of Acquittal or 2) enter into a stipulation of
facts and submit the case to the court on written memoranda. See State v. Bennett, 2nd Dist.,
2013-Ohio-4610, Froelich, J. concurring.
{¶50} However, in the absence of an objection at trial by the state, I see no error on our
part in considering the privilege issue in its current context.
Athens App. No. 16CA9 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County
Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.
For the Court
By: ____________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.