In re B.J.M. , 98 N.E.3d 867 ( 2017 )

[Cite as In re B.J.M., 2017-Ohio-8202.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF: : OPINION
B.J.M., DELINQUENT CHILD
:
CASE NO. 2017-L-007
:
Juvenile Appeal from the Lake County Court of Common Pleas, Juvenile Division,
Case No. 2015 DL 01773.
Judgment: Reversed.
Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, Assistant
Prosecutor, and Eric J. Foisel, Assistant Prosecutor, Lake County Administration
Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee, State of
Ohio).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Appellant,
B.J.M.).
DIANE V. GRENDELL, J.
{¶1} Delinquent child-appellant, B.J.M., appeals his adjudication for acts
constituting Criminal Trespass in the Lake County Court of Common Pleas, Juvenile
Division. The issue before this court is whether a police officer may, at his discretion,
revoke a juvenile’s privilege to enter and remain in a municipality’s public parks when
the juvenile has been involved in repeated disturbances at the parks. For the following
reasons, we reverse the decision of the juvenile court.
{¶2} On November 25, 2015, a Complaint was filed in juvenile court alleging
that B.J.M. committed Criminal Trespass, a misdemeanor of the fourth degree, if
committed by an adult, in violation of R.C. 2911.21(A)(3).
{¶3} On January 7, 2016, a plea hearing was held and a plea of not true was
entered on the charge.
{¶4} On March 1, 2016, trial was held on the matter before a magistrate. The
following testimony was presented.
{¶5} Officer Greg Williams of the Willowick Police Department testified that, on
August 2, 2015, he was called to Dudley Park in response to a report of an argument
between a pedestrian and occupants of a vehicle. After arriving at the park, Officer
Williams had occasion to speak with B.J.M. He advised him “that he was no longer
allowed in any of the parks of the city” since he “and his friends have been causing
issues at the parks or in and around that area for the past several weeks.” Officer
Williams further advised B.J.M. that if, during the remainder of the calendar year, “he’s
found in any park in the City of Willowick, * * * Dudley, Manry, Roosevelt, if he’s found
on any of the properties he’ll be cited for trespassing.”
{¶6} Officer Williams subsequently advised B.J.M.’s father of the same.
{¶7} On August 14, 2015, Officer Williams was called to Dudley Park in
response to a report that “there was a group of kids by the basketball courts that were
either talking about fighting or trying to start a fight.” B.J.M. was among a group of
juveniles “over by the basketball courts * * * being loud and rambunctious.” Officer
Williams cited him for Trespassing.
{¶8} Officer Keith Lawrence of the Willowick Police Department testified that,
on August 2, 2015, he responded to the reported disturbance in Dudley Park with
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Officer Williams. He testified that the decision to ban B.J.M. from the municipal parks
was based on a number of issues: “there [were] occasions where he was reported
throwing rocks at another individual, smoking, * * * prior disturbances [involving] a group
of juveniles being rowdy or wanting to fight.”
{¶9} Officer Lawrence again responded to Dudley Park on August 14, 2015,
but did not witness any disturbance.
{¶10} At the close of the testimony, counsel for B.J.M. made a “Rule 29 motion
to dismiss for insufficient evidence,” which the magistrate denied.1
{¶11} On March 1, 2016, a Magistrate’s Decision was issued, and was
disapproved by the juvenile court on the same day (“[t]he Court * * * finds that the
Decision ought not to be adopted”).
{¶12} On March 3, 2016, an Amended Magistrate’s Decision was issued, finding
the charge true, and approved by the juvenile court. B.J.M. was ordered to be placed
on Community Control; to serve a 90-day suspended sentence in the Lake County
Juvenile Detention Facility; to stay out of Willowick Parks pending further order; to
continue with counseling; and to continue on probation.
{¶13} On January 13, 2017, B.J.M. sought leave of this court to file a delayed
appeal, which we granted on April 5, 2017.
{¶14} On appeal, B.J.M. raises the following assignment of error:
1. Presumably, the reference is to Criminal Rule 29, inasmuch as “[t]he Rules of Juvenile Procedure do
not have a rule that is analogous to Crim.R. 29(A), which mandates the trial court to enter a judgment of
acquittal if the state fails to provide sufficient evidence to support the charged offense.” In re Whitlock,
11th Dist. Ashtabula No. 2008-A-0018, 2008-Ohio-4672, ¶ 8, fn. 2. Regardless of whether Criminal Rule
29 applies in juvenile proceedings, due process requires that delinquency adjudications be supported by
sufficient evidence, as explained below. Compare In re J.J., 9th Dist. Summit No. 21386, 2004-Ohio-
1429, ¶ 5, and In re A.K., 2d Dist. Montgomery No. 21504, 2007-Ohio-2095, ¶ 18.
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{¶15} “[1.] The trial court erred in denying the juvenile’s motion for acquittal on a
charge of Criminal Trespass where the State failed to prove that the juvenile was
‘without privilege’ to enter a city park based upon a police officer’s unilateral order
banning the juvenile from city park grounds.”
{¶16} “A juvenile court proceeding is a civil action,” to which there are “criminal
aspects,” and must comply with “basic due process requirements.” In re Anderson, 92
Ohio St.3d 63, 65-66, 748 N.E.2d 67 (2001), syllabus. Among these is the requirement
“that the state must prove its case against a juvenile beyond a reasonable doubt.” Id. at
66; Juv.R. 29(E)(4) (“the court shall * * * [d]etermine the issues by proof beyond a
reasonable doubt in juvenile traffic offense, delinquency, and unruly proceedings”).
“[T]he Due Process Clause of the Fourteenth Amendment to the United States
Constitution protects a defendant in a criminal case against a conviction ‘* * * except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged.’” (Citation omitted.) State v. Jenks, 61 Ohio St.3d 259, 263,
574 N.E.2d 492 (1991). Stated otherwise, “a conviction based on legally insufficient
evidence constitutes a denial of due process.” State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997).
{¶17} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” Jenks at 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 reasonable doubt.” Id.4
{¶18} In order to adjudicate B.J.M. delinquent of committing acts which, if
committed by an adult, constitute the crime of Criminal Trespass, the State was
required to prove that B.J.M., on or about August 14, 2015, and “without privilege to do
so,” recklessly entered or remained on the premises of the City of Willowick/Dudley
Park, as to which notice against unauthorized access or presence was given by actual
communication. R.C. 2911.21(A)(3).
{¶19} The determinative issue for the purposes of this appeal is whether B.J.M.
lacked privilege to be in Dudley Park on August 14, 2015. This issue turns on whether
Officer Williams could revoke such privilege.
{¶20} It is generally recognized that “a person has a privilege to enter and be
upon the public areas of public property.” Cleveland v. Dickerson, 8th Dist. Cuyahoga
Nos. 101782 and 101783, 2016-Ohio-806, ¶ 21. The United States Supreme Court has
recognized that “the freedom to loiter for innocent purposes is part of the ‘liberty’
protected by the Due Process Clause of the Fourteenth Amendment.” Chicago v.
Morales, 527 U.S. 41, 53, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). “Due process under
the Ohio and United States Constitutions demands that the right to notice and an
opportunity to be heard must be granted at a meaningful time and in a meaningful
manner where the state seeks to infringe a protected liberty or property interest.” State
v. Hochhausler, 76 Ohio St.3d 455, 459, 668 N.E.2d 457 (1996); Ohio Constitution,
Article I, Section 16; U.S. Constitution, Fourteenth Amendment.
{¶21} The determinative issue on appeal is whether, on August 2, 2015, Officer
Williams had the authority to revoke B.J.M.’s privilege to enter and be upon municipal
park property for one year. We conclude that he did not.
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{¶22} At the beginning of our analysis, we emphasize that the State has not
cited to any authority, ordinance, statute or rule whereby a police officer may ban a
person from using a public park; nor is this court aware of such authority.
{¶23} The State does cite to Cleveland v. Dickerson, 2016-Ohio-806, for the
proposition that “[p]olice officers have authority to revoke privilege on public land.”
Appellee’s brief at 7. The Dickerson case, however, is distinguishable from the present
one and does not address whether police officers may ban persons from entering public
property. In Dickerson, the defendants-appellants were found guilty of criminal trespass
after they were asked to leave Cleveland Hopkins International Airport and refused to
do so. The court of appeals found “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.” Id. at ¶ 23. The court further pointed out “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.” Id. at ¶ 27.2
{¶24} In the present case, B.J.M. committed the trespass by entering Dudley
Park contrary to Officer Williams’ command not to enter municipal parks for a year.3
The Dickerson case would apply to the situation on August 2, 2015, when officers
2. Willowick does not have a loitering ordinance and the State acknowledges that “B.J.M. has a right to
loiter for innocent purposes.” Appellee’s brief at 8. To repeat, the issue is whether Officer Williams has
the authority to revoke that right.
3. Thus, the defendants in Dickerson were charged under the Cleveland municipal ordinance
corresponding to R.C. 2911.21(A)(4), which prohibits “[b]eing on the land or premises of another * * * [or]
refus[ing] to leave upon * * * being notified to do so by the owner or occupant, or the agent or servant of
either.” B.J.M., in contrast, was cited for violating subsection (A)(3) which applies when a person enters
the land of another “as to which notice against unauthorized access or presence is given.” The court in
Dickerson even qualified its holding with respect to subsection (A)(4) by emphasizing “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.” 2016-Ohio-806,
at ¶ 28.
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expelled B.J.M. from the park for causing a disturbance. On August 14, 2015, B.J.M.
was not cited or expelled for causing a disturbance, but was cited for being present on
public property contrary to Officer Williams’ August 2 command. Thus, the Dickerson
case does not establish Officer Williams’ authority to revoke the privilege of being in
public parks, regardless of whether there is a legitimate purpose, for a given period of
time.
{¶25} The State also relies on the case of State v. Craft, 4th Dist. Athens No. 97
CA 53, 1998 WL 255442 (May 14, 1998), wherein the defendant was convicted of
criminal trespass after being advised by university police officers that he was not
allowed to enter university property. The court of appeals upheld the conviction on the
grounds “that OUPD officers, agents of the Ohio University Board of Trustees, provided
actual notice to appellant that he was not permitted to enter the campus grounds.” Id. at
*8.
{¶26} We find Craft distinguishable in that the right of access to the grounds of a
public university is subject to greater restriction than the right of access to a public park.
In Craft, the prosecution noted a committee comment to the trespass statute that it is
“well-settled that property owned by a state or political subdivision is not automatically
open to all members of the public, but is subject to limitations on access and use which
are reasonable in light of its purpose.” Id. at *2. Additionally, university trustees are
authorized by statute to “adopt rules for the conduct of the students, faculty, visitors,
and staff, and * * * provide for the ejection from college or university property,
suspension or expulsion of a person who violates such regulations.” R.C. 3345.21. The
defendant in Craft was not a student and had previously violated university regulations.
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The court noted that “[n]o evidence exists in the stipulated facts to indicate that
appellant had any legitimate purpose to enter the university grounds.” Id. at *8.
{¶27} B.J.M. relies heavily on the case of State v. Shelton, 63 Ohio App.3d 137,
578 N.E.2d 473 (4th Dist.1989). The defendant in Shelton had been advised that she
would be arrested for trespassing if she continued to visit the public lobby of the sheriff’s
office “because she was a nuisance.” Id. at 139. With minimal discussion, the court
noted that the defendant “did not enter a restricted area and did not refuse to leave,” but
had the privilege of entering the lobby revoked for being a nuisance. Id. at 139-140.
The court concluded that this was insufficient justification for a county official to revoke
her privilege. Id. at 140.
{¶28} B.J.M. also relies on Kennedy v. Cincinnati, 595 F.3d 327 (6th Cir.2010), a
Section 1983 civil rights action in which the plaintiff was issued a no-trespass warning,
effectively barring him from Cincinnati Recreation Commission properties. The officer
who issued the warning acknowledged that he lacked any reasonable suspicion of
criminal activity by the plaintiff but was requested to issue the warning because the
plaintiff’s conduct, staring at children, was making parents feel uncomfortable. Id. at
332. The plaintiff complied with the warning but filed suit alleging the infringement “of
his liberty interest to enter certain public spaces, as guaranteed by the Due Process
Clause of the Fourteenth Amendment.” Id. at 335.
{¶29} The circuit court concluded that the plaintiff had, for summary judgment
purposes, established a constitutional violation. “Any competent government official,
particularly a police officer, should have realized that he cannot deprive a person, who
has not committed a crime or violated some regulation, nor was likely to do so, of
access to public grounds without due process of law.” Id. at 335.
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{¶30} In a similar but distinguishable case, Kelly v. Mentor, 11th Dist. Lake No.
2001-L-066, 2002-Ohio-7342, this court considered a no-trespass order issued by the
“Director of Parks, Recreation and Public Lands, banning [the plaintiff] from entering the
Mentor Civic Arena for five years.” Id. at ¶ 1. The ban was based on the plaintiff’s
conduct in threatening the coaches of the municipal hockey team. Id. at ¶ 6. The
plaintiff filed suit “seeking a declaratory judgment that appellant’s actions had deprived
him of due process of law and seeking an injunction prohibiting appellant from enforcing
its ban on him.” Id. at ¶ 9.
{¶31} This court acknowledged the municipal official’s “authority to maintain,
operate, and police its facilities,” but held that such official was not “given unilateral
authority to gather evidence, hold quasi-judicial proceedings, punish patrons for bad
behavior, or prohibit someone from entering the public properties under his control.” Id.
at ¶ 33 and 28. Rather, this court observed that “the offender should be charged with
disorderly conduct or menacing, or another appropriate charge.” Id. at ¶ 33. And “[i]f
[the municipality] wished to prevent an offender from entering its property, it could
secure a restraining order” or “adopt rules governing the conduct of persons in the
arena and delegate the authority to enforce those rules.” Id.
{¶32} While none of the precedents cited are controlling, we conclude that,
although a municipality has authority to ban persons from using public property and may
delegate such authority to its agents, including police officers, due process requires that
such persons have a meaningful opportunity to be heard and to contest the decision.
B.J.M. in the present case was not afforded an opportunity to do so and, therefore, his
privilege to enter Willowick public parks was not properly revoked. It follows that there
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was insufficient evidence to adjudicate him delinquent for acts constituting Criminal
Trespass.
{¶33} We note that this holding applies to the categorical expulsion of persons
from public property otherwise open to the general public. With respect to property
designated for a particular purpose, such as an airport or school, for which access may
be conditioned on visitors having a legitimate purpose, a different conclusion could
apply. Nor does this holding apply to situations where police officers remove persons
from public property on a given occasion to maintain order or when they could otherwise
be cited or charged with causing a disturbance, as happened with B.J.M. on August 2,
2015.4
{¶34} The State maintains that the trespass warning was reasonable in light of
B.J.M.’s prior citations and repeated complaints about juveniles causing disturbances in
municipal parks when B.J.M. was present. With respect to the due process analysis,
however, the reasonableness of B.J.M.’s expulsion is not the determinative issue, but
rather whether B.J.M. was afforded a meaningful opportunity to contest its
reasonableness. He was not afforded such an opportunity. From the record before us,
Officer Williams’ decision to ban B.J.M. from municipal parks was not made according
to rule, statute, regulation, or even informal policy. The criteria for banning B.J.M.
appears to be nothing more than what Officer Williams found reasonable under the
circumstances. While Officer Williams orally communicated the decision to both B.J.M.
4. Compare R.C. 737.11: “The police force of a municipal corporation shall preserve the peace, protect
persons and property, and obey and enforce all ordinances of the legislative authority of the municipal
corporation, all criminal laws of the state and the United States, all court orders issued and consent
agreements approved pursuant to sections 2919.26 and 3113.31 of the Revised Code, all protection
orders issued pursuant to section 2903.213 or 2903.214 of the Revised Code, and protection orders
issued by courts of another state, as defined in section 2919.27 of the Revised Code.”
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and his father, such notice was not for the purpose of affording B.J.M. an opportunity to
be heard.
{¶35} Our decision in the present case is consistent with the decisions of other
jurisdictions in similar factual situations. See Anthony v. State, 209 S.W.3d 296, 303-
308 (Tex.App.2006) (municipality’s “unwritten policy delegate[ing] to individual [police]
officers the authority to issue [criminal trespass] warnings, banning individuals from the
park * * * [at] the discretion of the individual officer” was unconstitutionally vague and
violated procedural due process); Travis v. State, 812 N.E.2d 826, 830 (Ind.App.2004)
(“[i]f this case had involved a private property owner who had told Travis to leave his
property and Travis had returned two days later, we would agree with the State that all
the elements of criminal trespass * * * would be met”; however, “[w]hile a private
property owner may ban a person from his property permanently, the powers of police
officers are limited by statute” and “the State directs us to no statute which authorizes a
police officer to enjoin a citizen from visiting a public park”).
{¶36} The sole assignment of error is with merit.
{¶37} For the forgoing reasons, the Judgment of the Lake County Juvenile
Court, adjudicating B.J.M. delinquent for acts constituting Criminal Trespass, is
reversed. Costs to be taxed against the appellee.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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