[Cite as State v. Randolph, 2022-Ohio-2909.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-21-1140
Appellee Trial Court No. CRB-20-11063
v.
Antonio M. Randolph DECISION AND JUDGMENT
Appellant Decided: August 19, 2022
*****
David L. Toska, City of Toledo Chief Prosecuting Attorney, and Christopher D. Lawrence, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
DUHART, J.
{¶ 1} This is an appeal by appellant, Antonio Randolph, from the July 20, 2021
judgment of the Toledo Municipal Court, after he was found guilty of criminal trespass.
For the reasons that follow, we reverse. {¶ 2} Appellant sets forth two assignments of error:
I. Mr. Randolph’s conviction for criminal trespass was not supported
by sufficient evidence, or in the alternative was against the manifest weight
of the evidence, because he was never served written notice that he was
banned from the property, and therefore arguably did not know that he was
violating a restriction [regarding] * * * his presence [on the property].
II. The trial court abused its discretion when it found Mr. Randolph
guilty of criminal trespass when he arguably had privilege to be on the
property for the purpose of visiting his uncle who was a lawful resident of
the apartment complex.
Facts
{¶ 3} On December 29, 2020, in the early evening, appellant and approximately
10 other people were gathered for a party in an apartment leased to appellant’s uncle,
Henry Randolph (“uncle”), at the Greenbelt Place Apartments (“Greenbelt”) in Toledo,
Ohio. Greenbelt property manager, Renee Freeman, received noise complaints from
other tenants, so she and police officers, who were projecting at Greenbelt, went to the
uncle’s apartment. The uncle was not at his apartment for the festivities, but Freeman
and the police encountered appellant, who had been told on numerous occasions by
Freeman that he was not permitted on Greenbelt property. Appellant was arrested and
2. charged with criminal trespass in violation of R.C. 2911.21, a fourth degree
misdemeanor.
{¶ 4} A bench trial was held at which Freeman and appellant testified. Freeman
testified to the following. She has worked at Greenbelt since 2019, and her role as
Greenbelt manager includes “maintain[ing] the properties, the occupancy and living
standards for my residents.” She became aware of appellant within the first six months of
working at Greenbelt. Initially, she noticed that appellant visited family at Greenbelt,
then later, appellant was often found in vacant units. Freeman stated “[w]e are really
struggling with keeping the homeless population out of our vacant units * * *.
Unfortunately, [appellant] is one that is frequently found in a vacant unit.” Although the
empty apartments were locked, homeless people accessed the units “[t]hrough windows,
broken windows, kicking doors in. Whatever means it takes.”
{¶ 5} Freeman testified that beginning in June 2020, she told appellant many times
that he was banned from Greenbelt property. In addition, appellant’s name was on a list
of people who were banned from Greenbelt property (“banned list”), which was posted
on the window by the office door. On December 29, 2020, Freeman received complaints
from other Greenbelt tenants about the partying, trash and noise coming from the uncle’s
apartment. Freeman and police officers arrived at the apartment where there were about
11 people, including appellant. On cross-examination, Freeman was asked if appellant
3. was charged with breaking into the uncle’s apartment and she responded, “No. He
[appellant] was a guest.”
{¶ 6} After Freeman’s testimony, appellant made a motion for judgment of
acquittal pursuant to Crim.R. 29, which was denied. Appellant then testified to the
following. He was invited by his uncle to the uncle’s Greenbelt apartment on December
29, 2020. Appellant had never been told by anyone that he was not allowed on Greenbelt
property, and he was not aware he was on a banned list. On cross-examination when
appellant was asked if he understood that he was banned from Greenbelt property, he
responded, “No. I’m not banned from Greenbelt. * * * What did I do in order to get
banned from the Greenbelt? I have never committed a crime on the Greenbelt.”
{¶ 7} Appellant was found guilty of criminal trespass. In the trial court’s July 20,
2021 Decision and Judgment Entry, the court noted appellant argued he was a privileged
invitee of a tenant, and appellant relied on case law where the court held a landlord is
divested of the possessory interest in property when a lease is executed. However, the
trial court was persuaded by State v. Smith, 2d Dist. Montgomery No. 25048, 2012-Ohio-
4861, which held when an invitee has previously been in trouble at a multi-unit property,
the property owner or agent has an obligation to protect all of the tenants’ rights of quiet
enjoyment, and that obligation surpasses the right of a certain tenant to invite the
offending person onto the property. Id. at ¶ 17. The trial court held “[i]n essence, the
4. decisions not aligned with Smith confer the invited guest with third party beneficiary
status when they should not.”
{¶ 8} The trial court found Freeman’s testimony credible, including that she had
observed appellant on prior occasions in vacant Greenbelt units, she had informed him
multiple times that he was not permitted to return to Greenbelt, and appellant’s name was
placed on a printed banned list. The court observed that appellant, during cross-
examination, did not accept that Freeman had the right to exclude him from Greenbelt
property because appellant had been invited by his uncle. The court noted the unrebutted
testimony was that appellant was invited to Greenbelt by his uncle. Yet, the court found
it was Freeman’s responsibility to protect Greenbelt property and the right of quiet
enjoyment of all of the tenants. The trial court concluded “[d]espite having been properly
notified [appellant] without privilege entered the property of the Greenbelt Apartments
on December 29, 202[0].”
{¶ 9} The trial court sentenced appellant to serve 30 days in jail, which was
suspended, and ordered appellant to pay costs. Appellant timely appealed.
Criminal Trespass/Privilege
{¶ 10} R.C. 2911.21 reads, in pertinent part:
(A) 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;
5. (2) Knowingly enter or remain on the land or premises of another,
the use of which is lawfully restricted to certain persons, * * * when the
offender knows the offender is in violation of any such restriction or is
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 * * *;
(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 * * * [.]
***
(F) As used in this section:
(2) “Land or premises” includes any land, building, structure, or
place belonging to, controlled by, or in custody of another, and any separate
enclosure or room, or portion thereof.
6. {¶ 11} Privilege is defined, in R.C. 2901.01(A)(12), as “an immunity * * * or right
conferred by law, bestowed by express or implied grant, arising out of status * * * or
relationship, or growing out of necessity.”
First Assignment of Error
{¶ 12} Appellant asserts his conviction for criminal trespass was not supported by
sufficient evidence, or in the alternative was against the manifest weight of the evidence,
because he was never served with written notice that he was banned from the property.
{¶ 13} Appellant argues the issue concerns the adequacy of the notice that he was
given and/or that he received which banned him from Greenbelt property. Appellant
contends Freeman testified she verbally notified him many times that he needed to leave
Greenbelt property, but she never gave him a written notice. Appellant maintains without
written notice that he was prohibited from entering Greenbelt property, the state failed to
prove that he was restricted from entering Greenbelt property. Appellant submits the
state failed to prove an element of criminal trespass, “to wit: [appellant] could not
knowingly enter the premises of another knowing that he was violating a restriction * * *
if he had never been notified of the restriction. (R.C. 2911.21(A)(2) paraphrased).”
Appellant cites to Civ.R. 41, which describes methods of service, in support of his
position that verbal notice does not meet any standard for service of process.
7. {¶ 14} The state counters that written notice is not an element of the crime of
criminal trespass which it must prove. The state also contends appellant’s reliance on the
Ohio Rules of Civil Procedure is misplaced.
Analysis
{¶ 15} Upon review, the record shows the state presented evidence at trial that
Freeman, as the manager of Greenbelt, had verbally notified appellant on numerous
occasions that he was banned from Greenbelt property, and appellant’s name was on the
banned list posted by the office door. Appellant testified he was never told by anyone
that he was not allowed to be on Greenbelt property, and he never saw the banned list.
{¶ 16} We find the evidence is undisputed that appellant did not receive written
notice that he was banned from Greenbelt property. We further find there is no mandate
under R.C. 2911.21 which requires written notice. Since written notice is not an element
of criminal trespass, it is unnecessary for us to undertake an analysis of the sufficiency of
the evidence or manifest weight of the evidence as to appellant’s assertion that he was
never served with written notice that he was banned from the property. Accordingly, we
find appellant’s first assignment of error not well-taken.
Second Assignment of Error
{¶ 17} Appellant asserts the trial court abused its discretion when it found him
guilty of criminal trespass. Appellant submits he arguably had privilege to be on
Greenbelt property as an invitee of his uncle, a legitimate Greenbelt tenant. In support,
8. appellant relies on State v. Hermann, 11th Dist. Portage No. 95-P-0044, 1996 WL
210782 (March 8, 1996), and distinguishes State v. Scott, 2d Dist. Montgomery No.
19902, 2004-Ohio-271. Appellant argues that without notice of a restriction to enter
Greenbelt property, we should find he had permission to be on the property, and he was
able to assert the defense of privilege to the allegation of criminal trespass.
{¶ 18} The state counters appellant’s uncle did not testify at trial to confirm that
appellant had been invited to the property. The state observes the trial court found that
even if appellant was an invited guest, he was without privilege to be on Greenbelt
property.
{¶ 19} Upon review, although appellant contends the trial court abused its
discretion in finding him guilty because he arguably had privilege to be on Greenbelt
property, he is, in effect, arguing there was insufficient evidence to convict him of
criminal trespass.
{¶ 20} Whether a conviction is supported by sufficient evidence is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A question of
law is reviewed de novo by an appellate court. See State v. Morris, 132 Ohio St.3d 337,
2012-Ohio-2407, 972 N.E.2d 528, ¶ 16, quoting Castlebrook, Ltd. v. Dayton Properties
Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2d Dist.1992). An
appellate court must decide whether, viewing the evidence in a light most favorable to the
prosecution, it could have convinced the average finder of fact of the accused’s guilt
9. beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶ 21} Here, we must determine whether the state presented sufficient evidence to
establish all of the elements of criminal trespass, including whether appellant was without
privilege to be on Greenbelt property. In order to reach that determination, we will
consider several cases which are germane to appellant’s situation in that the basic
premise is the same: a non-tenant had been banned from apartment property and
thereafter the non-tenant was again on the property and charged with criminal trespass.
State v. Hermann
{¶ 22} Hermann was convicted of criminal trespass after she visited her boyfriend
at his apartment. Hermann, 11th Dist. Portage Nos. 95-P-0044 and 95-P-0045, 1996 WL
210782, at * 1. Hermann had been told by the owner of the apartment building on two
occasions that she was no longer permitted on the property.1 Id. Notwithstanding,
Hermann “was found ‘on the complex,’ but the factual stipulation does not identify the
specific location, whether she was found in a common area, a restricted area or in [her
boyfriend’s] apartment.” Id. Hermann claimed she could not be guilty of criminal
trespass as she was invited by her boyfriend, who was a lawful tenant. Id.
{¶ 23} The Eleventh District Court of Appeals found Hermann was not guilty of
criminal trespass as she had permission to be on the property, and she properly asserted
1 No reasons are set forth as to why Hermann was banned from the property.
10. the defense of privilege. Id. at * 2. The court cited to three cases in support of its
finding, including State v. Herder, 65 Ohio App.2d 70, 74, 415 N.E.2d 1000 (10th
Dist.1979), where the Herder court held “‘it is possible for a person to commit a trespass
with respect to property of which he is the owner or part owner. Trespass is an invasion
of the possessory interest of property, not an invasion of title.’” Hermann at * 2. The
Hermann court then concluded “[u]nder applicable property laws, the owner [of rental
property] sacrifices his possessory interests in the property to the renter, and he cannot
prohibit a tenant from inviting guests to the tenant’s abode.” Id.
State v. Smith
{¶ 24} Smith was convicted of criminal trespass at Marvin Gardens, which were
apartments where his girlfriend was a tenant. Smith, 2d Dist. Montgomery No. 25048,
2012-Ohio-4861, ¶ 1, 13. Smith had previously been told that he was not permitted on
the property, by the manager, because Smith had been fighting with his girlfriend’s son
and damaged the apartment. Id. at ¶ 3. Smith returned to Marvin Gardens to visit his
girlfriend, but “a short time later, [the girlfriend] called the police from the fire station
across the street and reported that [Smith] was in her apartment and she wanted him to
leave.” Id. at ¶ 4.
{¶ 25} On appeal, Smith claimed he had his girlfriend’s permission to be on the
property, which took precedence over the property owner’s right to exclude him. Id. at ¶
11. 13. Smith relied on several cases in support of his position, including Hermann and State
v. Hites, 3d Dist. Allen No. 1-2000-22, 2000 WL 1114809 (Aug. 8, 2000).
{¶ 26} The Second District Court of Appeals stated:
The theory of the decisions on which [Smith] relies appears to be
that because the tenant of leased property has the right to the exclusive
possession of the premises, * * * and inasmuch as “[t]respass is an invasion
of the possessory interest of property, not an invasion of title,” State v.
Herder, 65 Ohio App.2d 70, 74, 415 N.E.2d 1000 (10th Dist.1979), the
tenant’s permission to enter the property cloaks a “trespassed” invitee with
the privilege to be on the premises that R.C. 2911.21(A)(3) requires.
[Columbus v.] Parks[, 10th Dist. Franklin No. 10AP-574, 2011-Ohio-
2164]. Id. at ¶ 15.
{¶ 27} The Smith court then held:
[W]e consider not only the rights of a particular tenant to invite guests to
her home, but also the rights of the other tenants of a multi-unit premises to
the quiet enjoyment of their own residences. A landlord has a common law
duty to provide for the health and safety of all of his tenants, as well as to
ensure their quiet enjoyment of the premises. “‘In Ohio, a covenant of
quiet enjoyment is implied into every lease contract for realty.”’ Davis v.
Sean M. Holley Agency, Inc., 2d Dist. Montgomery No. 23891, 2010-Ohio-
12. 5278, ¶ 12, quoting Dworkin v. Paley, 93 Ohio App.3d 383, 386, 638
N.E.2d 636 (8th Dist.1994). Allowing one tenant’s invitation to trump the
landlord’s ability to discharge that duty can deprive other tenants of their
right to quiet enjoyment.
[The manager] did not [bar Smith] from Marvin Gardens arbitrarily.
He did so following [Smith’s] arrest at [his girlfriend’s] apartment after a
fight with [the girlfriend’s] son, damaging the apartment and resulting in
the police being called. To allow the possibility of such behavior to reoccur
in the future could put all tenants in danger of their personal safety, and at
least presents a significant risk of their inconvenience and annoyance.
When an invitee has previously been involved in a disturbance at the
property, a property owner or his agent has an obligation to protect all of
his tenants’ right of quiet enjoyment of the premises. This obligation
trumps the right of a particular tenant to invite the offending person to
again enter the premises. Id. at ¶ 16-17.
State v. Scott
{¶ 28} Scott was convicted of criminal trespass at property owned by the Dayton
Metropolitan Housing Authority (“DMHA”). Scott, 2d Dist. Montgomery No. 19902,
2004-Ohio-271, at ¶ 2. Prior to his conviction, Scott had been given two trespass notices
for causing problems at DMHA property, and was advised not to enter DMHA property.
13. Id. Thereafter, Scott was on DMHA property helping his girlfriend, who was a tenant,
move out. Id. at ¶ 2-3. Scott was seen carrying items out of the girlfriend’s apartment
building and placing them into another person’s car. Id. at ¶ 3. An officer checked the
license plate of the car and determined the car was known to be driven by someone who
was barred (“barred person”) from DMHA property. Id. Both Scott and the barred
person were arrested for criminal trespass. Id. On appeal, Scott claimed the state failed
to prove he was on DMHA property without privilege as he was an invited guest of a
tenant, and he remained within the lawful and proper bounds of his invitation. Id. at ¶ 7.
{¶ 29} The Second District determined Scott’s case was governed by Dayton v.
Gaessler, 2d Dist. Montgomery No. 18039, 2000 WL 1879103 (Dec. 29, 2000). The
Gaessler court determined that “a DMHA tenant derives her right to invite guests from
DMHA itself, thereby preventing the tenant from giving permission to an individual
listed on the trespass list to enter the property over DMHA’s objection.” Id. at * 4.
{¶ 30} The Scott court found the Gaessler case was not distinguishable from
Scott’s case, as “we explicitly stated that the tenant derived her rights as a tenant from
DMHA and, consequently, her rights to invite guests were subject to DMHA’s right to
preclude certain guests by means of the criminal trespass policy.” Scott at ¶ 18. The
Scott court noted Scott’s girlfriend “was aware of the DMHA criminal trespass policy
and of the fact that Scott had been given trespass notices, thus barring him from DMHA
property, pursuant to that policy.” Id. at ¶ 19. The court concluded Scott’s girlfriend
14. “could not validly invite Scott, an individual on the criminal trespass list, to her DMHA
residence in contravention of DMHA’s trespass notices to him. Accordingly, we find no
error * * * in the determination that Scott was on DMHA property ‘without privilege.’”
Id.
State v. Hites
{¶ 31} Hites was convicted of criminal trespass in violation of R.C.
2911.21(A)(1), at Lima Estate Apartments. Hites, 3d Dist. Allen No. 1-2000-22, 2000
WL 1114809, * 1. Hites had previously been notified that his presence at Lima Estates
“was strictly forbidden.”2 Id. When Hites was arrested and charged, he was in an
apartment leased by a tenant, and at the tenant’s invitation. Id.
{¶ 32} The Third District Court of Appeals, cited Hermann, noting it had nearly
identical facts. Id. at * 2. The Hites court agreed with the Hermann analysis, and held
the owner of an apartment complex cannot prohibit guests, invited by a tenant, from
being present on the property, as “[t]he criminal trespass statute does not provide a
substitute for other adequate remedies in the event that the tenants or their guests interfere
with the rights of others and/or violate a valid condition of the lease agreement.” Id. The
Hites court noted “[i]n a prosecution for criminal trespass, the state is required to prove
that the accused acted without privilege.” Id. The court found the state failed to establish
lack of privilege beyond a reasonable doubt. Id.
2 No reason was set forth as to why Hites was banned from the property.
15. Analysis
{¶ 33} A review of the foregoing cases reveals Hermann was decided by the
Eleventh District Court of Appeals, and Hites was decided by the Third District Court of
Appeals, who agreed with the Hermann analysis. Smith and Scott were both decided by
the Second District Court of Appeals. The rulings in Hermann and Hites are contrary to
and conflict with the holdings in Smith and Scott. We note all four of these cases lack
precedential effect in this district, and neither appellant nor the state cited any
privilege/invitee criminal trespass cases which are binding. Likewise, we did not uncover
any controlling cases in our independent research.
{¶ 34} A review of the trial court record shows, and we find: there is contested
evidence that appellant had been banned from Greenbelt property by Freeman prior to
December 29, 2020; there is uncontested evidence that Freeman received complaints
from other Greenbelt tenants about the partying, trash, and noise coming from the uncle’s
apartment on December 29, 2020; there is undisputed evidence that when appellant was
arrested for criminal trespass, he was a guest in his uncle’s Greenbelt apartment on
December 29, 2020; there is no evidence that appellant was the source of the trash and
noise coming from his uncle’s apartment on December 29, 2020; and there is no evidence
that appellant was in his uncle’s apartment on December 29, 2020 for unlawful purposes.
{¶ 35} Upon consideration of the evidence presented at the bench trial and the
case law, we conclude appellant’s situation is more akin to the circumstances of the
16. invitees in Hermann and Hites, than to the circumstances found in Smith and Scott. Like
Hites, appellant was arrested and charged with criminal trespass while in a tenant’s
apartment at the tenant’s invitation, but unlike Smith, appellant’s guest invitation had not
been revoked by the tenant, when he was arrested and charged with criminal trespass.
Thus, we conclude Hermann and Hites are more persuasive than Smith and Scott. We
further conclude the Hites court properly construed R.C. 2911.21 when it observed the
state was required to prove the accused acted without privilege.
{¶ 36} In light of these conclusions, in order for the state to prove appellant
committed a trespass in violation of R.C. 2911.21, the state was required to prove,
beyond a reasonable doubt, that appellant was without privilege to enter and remain in his
uncle’s apartment despite having been generally barred from the Greenbelt apartment
complex.
{¶ 37} Viewing the evidence in the record in a light most favorable to the state, we
find that no rationale trier of fact could have found beyond a reasonable doubt that
appellant was without privilege to be in his uncle’s Greenbelt apartment on December 29,
2020. It is noteworthy that the state failed to offer any evidence to show that appellant’s
uncle was not authorized or allowed to grant appellant that privilege. Compare Scott
(holding that a tenant’s right to invite guests into their individual rental unit can be
limited through applicable regulations or contractual lease restrictions). In fact, the
state’s witness, Freeman, the Greenbelt manager, testified appellant was a guest in the
17. uncle’s apartment. Thus, we find the state failed to present sufficient evidence to show
appellant was without privilege to enter and remain as an invited guest in his uncle’s
Greenbelt apartment on December 29, 2020. We therefore find the trial court erred when
it found appellant guilty of criminal trespass. Accordingly, appellant’s second
assignment of error is well-taken.
{¶ 38} With respect to the conflict which exists between our decision, the decision
in State v. Hermann, 11th Dist. Portage No. 95-P-0044, 1996 WL 210782, the decision
State v. Hites, 3d Dist. Allen No. 1-2000-22, 2000 WL 1114809 (Aug. 8, 2000) and the
contrary holdings in State v. Smith, 2d Dist. Montgomery No. 25048, 2012-Ohio-4861
and State v. Scott, 2d Dist. Montgomery No. 19902, 2004-Ohio-271, we note that Section
3(B)(4), Article IV of the Ohio Constitution provides:
[w]henever the judges of a court of appeals find that a judgment
upon which they have agreed is in conflict with a judgment pronounced
upon the same question by any other court of appeals of the state, the
judges shall certify the record of the case to the supreme court for review
and final determination.
{¶ 39} The Ohio Supreme Court, in Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d
594, 596, 613 N.E.2d 1032 (1993), set forth three requirements which must be met in
order to certify a case:
18. First, the certifying court must find that its judgment is in conflict
with the judgment of a court of appeals of another district and the asserted
conflict must be “upon the same question.” Second, the alleged conflict
must be on a rule of law-not facts. Third, the journal entry or opinion of the
certifying court must clearly set forth that rule of law which the certifying
court contends in conflict with the judgment on the same question by other
district courts of appeals.
{¶ 40} We find, sua sponte, our judgment in this appeal is in conflict with
decisions of the Second District Court of Appeals. See State v. Smith, 2d Dist.
Montgomery No. 25048, 2012-Ohio-4861 and State v. Scott, 2d Dist. Montgomery No.
19902, 2004-Ohio-271.
{¶ 41} We, therefore, sua sponte certify a conflict to the Supreme Court of Ohio,
on the following questions for review:
Can a rental property owner, or the owner’s agent (landlord or
agent), prohibit a person from entering onto the property such that a tenant
of that property is prohibited from inviting that person to the tenant’s
residence or apartment?
Must the owner of rental property, or an agent (landlord or agent),
sacrifice possessory interests in the property to a tenant so the tenant can
19. invite a banned or “trespassed” person to the tenant’s residence or
apartment?
Conclusion
{¶ 42} We certify a conflict to the Ohio Supreme Court, and the parties are directed
to Sup.R.Pract. 8.01 for instructions on how to proceed.
{¶ 43} The judgment of the Toledo Municipal Court is reversed and vacated.
Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed and vacated.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________ JUDGE Myron C. Duhart, P.J. CONCUR. ____________________________ JUDGE
Gene A. Zmuda, J. ___________________________ CONCURS IN JUDGMENT JUDGE AND WRITES SEPARATELY.
20. ZMUDA, J.
{¶ 44} I concur with the majority’s decision reversing the trial court’s judgment
convicting appellant of one count of criminal trespass in violation of R.C. 2911.21, which
prohibited appellant from entering and remaining on the premises of another without
privilege to do so. However, I believe the majority does not accurately identify that it is
the state’s burden to show that appellant lacked privilege as an element of the charged
offense, and does not accurately resolve the issue of who may grant or deny appellant that
privilege as a matter of law. I write separately to address these issues.
I. Law and Analysis
{¶ 45} In his second assignment of error, appellant argues that the trial court
“abused its discretion” when it found him guilty of criminal trespass. Specifically,
appellant argues that he had privilege to enter and remain on the premises and, therefore,
his conviction constituted error. The majority correctly concludes that despite identifying
the alleged error as being subject to an abuse of discretion review standard, appellant
actually argued that the state failed to introduce sufficient evidence regarding the lack of
privilege element of the alleged offense.
{¶ 46} While I concur with the majority that the state failed to introduce sufficient
evidence to support appellant’s conviction, I have two concerns with the majority’s
analysis in reaching this conclusion. First, I believe that the majority does not clearly
state that the lack of privilege is an element of a criminal trespass conviction that the state
21. must prove as a matter of law. Second, I believe that the majority’s analysis incorrectly
uses the facts of the case to determine the applicable legal standard. I believe the correct
analysis requires this court to determine the correct legal standard and then decide
whether the underlying facts satisfy that standard. I address these issues in turn.
A. The state bears the burden of showing a defendant lacked privilege to enter and remain on the premises to support a conviction for criminal trespass under R.C. 2911.21(A)(1).
{¶ 47} Appellant’s second assignment of error frames the issue of privilege as an
affirmative defense to a criminal trespass charge. While the majority ultimately
concludes that lack of privilege is an element of the criminal trespass offense rather than
an affirmative defense, it only passively reaches that conclusion by finding the facts of
the present case are “akin” to the facts underlying State v. Hites, 3d Dist. Allen No. 1-
2000-22, 2000 WL 1114809, *1 (Aug. 8, 2000), a decision that reached the same
conclusion. By declining to affirmatively state that the lack of privilege is an element of
a criminal trespass offense that the state must prove beyond a reasonable doubt, the
majority decision suggests that whether privilege is an element of the offense or an
affirmative defense is a fact-specific inquiry rather than a matter of law. This is
incorrect.
{¶ 48} An offender commits a criminal trespass when they violate R.C.
2911.21(A)(1), which states:
(A) No person, without privilege to do so, shall do any of the following:
22. (1) Knowingly enter or remain on the land or premises of another[.]
(emphasis added).
Clearly, the lack of privilege is an essential element of a criminal trespass offense that the
state must prove beyond a reasonable doubt in all criminal trespass claims alleged under
R.C. 2911.21(A)(1). See State v. Lyons, 18 Ohio St.3d 204, 480 N.E.2d 767 (1985); In
re. C.J., 6th Dist. Huron No. H-09-003, 2009-Ohio-5617, ¶ 11-16. This is the only
logical conclusion as the lack of privilege is what makes entering the premises a trespass.
Otherwise, the statute would, absurdly, make it illegal for any person to knowingly enter
or remain on the premises of another.
{¶ 49} The majority’s use of analogous case authority to state this issue of law
unnecessarily complicates the issue and detracts from the actual issue raised in this
appeal—that is, whether the lessor or the lessee has the authority to grant privilege to
another to enter and remain in the leased unit? For this reason, I concur with the majority
that the lack of privilege must be proven by the state but would rely on the direct
authority cited above.
B. Unless otherwise stated, a lease agreement grants the lessee the right to admit or exclude others from the leased unit even when the lessor has barred that individual from entering the premises.
{¶ 50} As to the merits of this appeal, appellant argues that the state introduced
insufficient evidence to support his criminal trespass conviction. The majority finds
23. appellant’s assignment well-taken and reverses the trial court’s judgment. I concur with
the majority’s decision but for reasons other than those stated by the majority.
{¶ 51} The relevant facts in this case are undisputed. Freeman, acting as property
manager on behalf of the lessor, Greenbelt Apartments, barred appellant from the
premises at some point prior to his arrest.3 Appellant was subsequently discovered in his
uncle’s rental unit after Freeman responded to a noise complaint. Appellant testified at
trial that his uncle had invited him to the rental unit earlier that day.
{¶ 52} As the basic facts were not in dispute, the only issue before the trial court
was whether the state had introduced sufficient evidence to show that appellant lacked
privilege to enter and remain on the premises. In its closing argument, the state argued
that Freeman barring appellant from the Greenbelt premises applied to both the common
areas as well as all individual rental units. In response, appellant argued that his uncle’s
invitation to the leased unit superseded his ban from the premises. Each party cited case
authority which arguably supported their position regarding who could grant him
privilege to enter his uncle’s apartment.
{¶ 53} Appellant cited both State v. Hermann, 11th Dist. Portage Nos. 95-P-0044,
95-P-0045, 1996 WL 210782 (March 8, 1996) and State v. Hites, 3d Dist. Allen No. 1-
2000-22, 2000 WL 1114809, in which the Third and Eleventh District Courts of Appeals,
respectively, concluded that a lessee retains the authority to grant or deny privilege to
3 At trial, appellant argued only that he was unaware of the ban and that any ban was unwarranted. He did not dispute the existence of the ban.
24. another person to enter their own rental unit despite the lessor’s ban of that person from
the premises. In turn, the state cited State v. Smith, 2d Dist. Montgomery No. 25048,
2012-Ohio-4861, in which the Second District Court of Appeals held that the lessor’s
obligation to ensure the quiet enjoyment of other tenants by barring a disruptive
individual from the premises “trumps the right of a particular tenant to invite the
offending person to again enter the premises.” Id. at ¶ 17.
{¶ 54} In light of the apparent conflict between the authorities cited by the parties,
the trial court reserved its judgment and permitted the parties to submit supplemental
closing briefs to address the privilege issue. Appellant filed his supplemental brief on
July 6, 2021. The state did not file a supplemental brief.
{¶ 55} On July 20, 2021, the trial court memorialized a written judgment entry
finding appellant guilty of criminal trespass. In its entry, the trial court noted its
consideration of appellant’s argument stating that appellant “correctly cite[d] several
cases where the courts have determined that a landlord is divested of its possessory
interest in the property when a lease is executed.” Nevertheless, the trial court was
“persuaded by the holding in [Smith]” finding that a lease agreement did not divest a
landlord of the right to exclude others from the leased unit. Because the evidence
introduced at trial showed that Freeman had barred appellant from the premises, the trial
court found appellant lacked privilege to be in his uncle’s unit and, therefore, was guilty
of criminal trespass.
25. {¶ 56} At appellant’s sentencing later that same day, the trial court expressly
recognized the apparent conflict between the cited authority stating:
My understanding of the law is that if a landlord tells you you can’t be
there, even if your uncle tells you that you can be, that you are prohibited
from going to that place. And I believe the manager, who placed you on
the banned list, did inform you of it, and you chose to ignore that. That’s
the reason I found you guilty. Having said that, I could be wrong.
The trial court’s resolution of this issue of law is precisely what is before this court and
must be clearly resolved in this appeal. I believe the majority’s analysis does not clarify
the applicable law regarding who may grant the applicable privilege—the lessor or the
lessee—and, as it did with determining whether the lack of privilege was an element of
the offense, suggests that this issue is fact-specific.
{¶ 57} To reach its conclusion, the majority found that because appellant was not
the source of the noise complaint which led to his discovery in the unit, that this scenario
is factually similar to Hermann and Hites. Applying those holdings to the present case,
the majority holds that appellant’s uncle retained the right to grant him the privilege to
enter the rental unit. The connotation invited by this conclusion, however, is that had
appellant been the source of the noise complaint, that the majority would find Smith
controlling and hold Freeman’s duty to protect the quiet enjoyment authorized her to
26. grant or deny appellant’s privilege to be in the private unit. By establishing the
appropriate standard based on factual similarities, the majority has not resolved the issue
of law present in this appeal and has invited the potential for an intra-district conflict
should another panel of this court elect to follow Smith. For these reasons, I write
separately and perform the necessary analysis to resolve this issue here.
{¶ 58} Sufficiency of evidence is an issue of law. State v. Harper, 2017-Ohio-
1395, 89 N.E.3d 141 (6th Dist.). “Sufficiency of the evidence is a determination of
adequacy, and a court must consider whether the evidence was sufficient to support the
conviction as a matter of law.” Id. at ¶ 38. To perform this review here, we must review
the status of the law regarding the privilege element of the alleged offense.
{¶ 59} In Hermann, the 11th District Court of Appeals aptly described the relevant
interests of the lessor and lessee regarding the granting of privilege to others to enter the
leased unit. There, the court held that “[t]respass is an invasion of the possessory interest
of property, not an invasion of title.” Id. at *1, citing State v. Herder, 65 Ohio App.2d
70, 74 (10th Dist.1979). By relinquishing its possessory rights to the rental unit, “the
owner sacrifices [their] possessory interests in the property to the renter, and [they]
cannot prohibit a tenant from inviting guests to the tenant’s abode.” Id. Put simply, the
possessory rights granted to a tenant through the lease of a rental unit includes the right to
grant privilege to others to enter the unit as a matter of law.
27. {¶ 60} The state’s argument that the lessor must retain that right to protect the
quiet enjoyment of other tenants is unavailing. In Ohio, “a covenant of quiet enjoyment
is implied in every lease contract for realty.” Cincinnati Ins. Co. v. Evans, 6th Dist.
Wood No. WD-09-012, 2010-Ohio-2622, ¶ 51. That covenant is breached when a
landlord “substantially interferes with the beneficial use of the premises by the tenant.”
Id., citing, Howard v. Simon, 18 Ohio App.3d 14 (8th Dist.1984). However, when one
tenant’s conduct breaches the quiet enjoyment of other tenants, the appropriate remedy is
a forcible entry and detainer action against the offending tenant. See S&M Properties v.
Gerhardt, 2d Dist. Montgomery No. 15884, 1996 WL 666707 (Nov. 15, 1996) (holding
that tenant whose conduct breached other tenant’s quiet enjoyment of the premises was
subject to forcible entry and detainer action). Therefore, Freeman had the ability to evict
appellant’s uncle from the premises if appellant’s presence breaches other tenants’ right
of quiet enjoyment. Freeman’s right to seek an eviction is immaterial, however, to
determine which party had the right to grant or revoke appellant’s privilege. For these
reasons, I find Smith is unpersuasive on this issue and that appellant’s uncle, as a matter
of law, was the party authorized to grant or deny appellant the privilege to enter his rental
unit.
{¶ 61} Importantly, this is not to say that a tenant’s authorization to grant privilege
to another to enter and remain in their individual unit is absolute under all circumstances.
In its brief, the state cited State v. Scott, 2d Dist. Montgomery No. 19902, 2004-Ohio-
28. 271, ¶ 2, a case where the lessor retained the right to exclude guests from the individual
unit through the terms of the lease agreement. The court held that this contractual
retention of the right to exclude was valid and that the lessor’s barring of an individual
from the premises was sufficient to support that individual’s criminal trespass conviction.
Id. at ¶ 19.
{¶ 62} In that scenario, I agree that the lessee has no right to admit or exclude
others and that a lessor’s barring an individual from the premises would show the lack of
privilege necessary to support a criminal trespass conviction. No such evidence was
introduced in the present case. Therefore, the holding in Scott is clearly distinguishable
and provides no persuasive authority on which this court can rely in the present appeal.
{¶ 63} Having established who was authorized to grant appellant privilege to be
present in his uncle’s rental unit, I turn to whether the state introduced sufficient evidence
to show that appellant lacked that privilege. In reviewing a challenge to the sufficiency
of the evidence, we view the evidence in a light most favorable to the prosecution and
determine whether “any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.” State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In making that determination, the appellate court will not weigh the
evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448,
2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support
29. a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997).
{¶ 64} At trial, the state did not introduce any evidence that appellant’s uncle had
excluded him from the rental unit. To the contrary, Freeman testified during the state’s
case-in-chief that appellant was his uncle’s “guest,” suggesting that appellant had
privilege to enter the rental unit through his uncle’s invitation. Viewing this evidence in
a light most favorable to the state, I find that the state did not introduce sufficient
evidence to show that appellant lacked privilege to enter and remain in Henry’s rental
{¶ 65} In light of this analysis, I find that this court’s decision conflicts with the
Second District Court of Appeals’ resolution of the same issue of law identified in State
v. Smith, 2d Dist. Montgomery No. 25048, 2012-Ohio-4861. I concur with the majority’s
certification of this conflict to the Ohio Supreme Court pursuant to Section 3(B)(4),
Article IV of the Ohio Constitution. However, I find that the issue in this case is
distinguishable from the issue addressed in State v. Scott, 2d Dist. Montgomery No.
19902, 2004-Ohio-271 and would not certify a conflict with that decision.
II. Conclusion
{¶ 66} For these reasons, I concur with the majority’s conclusion that the state
failed to introduce sufficient evidence to support appellant’s conviction for criminal
30. trespass and ordering appellant discharged. I find appellant’s second assignment of error
well-taken but for reasons other than those stated by the majority.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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