[Cite as State v. Le Blanc, 2018-Ohio-4840.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                  :

                 Plaintiff-Appellee,            :

v.                                              :                  No. 17AP-912
                                                              (C.P.C. No. 16CR-4440)
Elizabeth R. Le Blanc,                          :
                                                           (REGULAR CALENDAR)
                 Defendant-Appellant.           :


                                          D E C I S I O N

                                    Rendered on December 6, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee. Argued: Seth L. Gilbert.

                 On brief: Yeura Venters, Public Defender, and Ian J. Jones,
                 for appellant. Argued: Ian J. Jones


                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} Elizabeth R. Le Blanc is appealing from her conviction on a charge of trespass
in a habitation and the related sentence. She assigns two errors for our consideration:
                 [I.] THE TRIAL COURT ERRED WHEN IT GAVE AN
                 ERRONEOUS JURY INSTRUCTION ON THE DEFINITION
                 OF PRIVILEGE AND FAILED TO INSTRUCT THE JURY ON
                 THE CORRECT STATUTORY DEFINITION OF PRIVILEGE
                 AS IT APPLIES TO THE CRIMINAL TRESPASS STATUTE.
                 AS A RESULT, THE DEFENDANT'S ENTIRE DEFENSE
                 THAT SHE WAS PRIVILEGED TO ENTER THE HOME
                 BASED UPON HER LICENSE OR IMPLIED GRANT TO DO
                 SO AS A RESULT OF HER STATUS, POSITION, OR
                 RELATIONSHIP WITH THE PROPERTY OWNER WAS
                 EFFECTIVELY REMOVED FROM CONSIDERATION BY
                 THE JURY. THIS DEPRIVED THE DEFENDANT OF HER
No. 17AP-912                                                                                 2

              RIGHT TO A FAIR TRIAL, THE RIGHT TO PRESENT A
              DEFENSE, AND DUE PROCESS OF LAW.

              [II.] THE TRIAL COURT FAILED TO APPLY THE
              DEFENDANT'S CREDIT FOR TIME SHE HAD ALREADY
              SERVED ON THE CASE TOWARDS THE JAIL SENTENCE
              IT IMPOSED. THIS FAILURE VIOLATED R.C. 2949.08 AND
              THE    EQUAL    PROTECTION    CLAUSE     OF    THE
              CONSTITUTION.

       {¶ 2} Le Blanc and K.D. had a relationship dating back to 2009. They spent a lot of
time together both on a social basis and on a professional level while they worked for Betty
Boop Cleaning, a business they started.
       {¶ 3} Eventually K.D. became romantically involved with another woman and he
discontinued his physical relationship with Le Blanc. Le Blanc kept coming to his residence
anyway and took a picture of K.D. and his new girlfriend on his bed. Le Blanc posted the
pictures on her facebook page.
       {¶ 4} K.D. was concerned, so he purchased surveillance cameras which
demonstrated that Le Blanc was in his house on July 22, 2016. This led to the filing of
criminal charges.
       {¶ 5} Upon being arrested, Le Blanc was interviewed by a police detective. She
referred to K.D. as an ex-boyfriend. She acknowledged having keys to K.D's residence and
entering it, purportedly to check on the well-being of some cats she considered to be hers
which remained at the residence. She claimed that she received mail at K.D's residence and
had left some belongings there. She admitted taking the pictures of K.D. and his new
girlfriend on the bed, but claimed it was to get him back for posting nude photos of her.
       {¶ 6} Turning to the first assignment of error, Le Blanc argues that she had a
privilege to enter K.D.'s house. She had no such privilege as defined by R.C. 2901.01(12):
              "Privilege" means an immunity, license, or right conferred by
              law, bestowed by express or implied grant, arising out of
              status, position, office, or relationship, or growing out of
              necessity.

       {¶ 7} While Le Blanc may have had a privilege to enter K.D.'s residence at one point
in time, whatever privilege she once had no longer existed by the time she entered the
residence on the date charged in the indictment. She had her own residence. She had been
No. 17AP-912                                                                              3

asked to surrender her key and had done so. She had entered the residence on multiple
occasions without permission including the day she took personal pictures of her former
boyfriend and posted them on facebook.
       {¶ 8} Defense counsel for Le Blanc had no viable defense to the charge, given the
pictures from the surveillance cameras showing Le Blanc in K.D.'s house. Counsel's
attempt to argue privilege was understandable, but not supported by the evidence. The trial
court judge would have been within his discretion to refuse to give a charge on privilege.
Instead, the judge attempted to give a charge in language understandable for a lay jury. The
jury charge given was accurate and was not prejudicial under the circumstances.
       {¶ 9} The first assignment of error is overruled.
       {¶ 10} At the time of sentencing, the judge required Le Blanc to serve 45 days in
custody before community control formally began. Apparently Le Blanc was in jail for 171
days before her formal sentencing. Appellate counsel argues that the 45 additional days
required at the time of sentencing should be added to the 171 days to make the whole
sentence a violation for the statutory requirement that community control sanctions be 180
days or less.
       {¶ 11} Ironically, there is no dispute that the trial court judge could have sent Le
Blanc straight from the courtroom to prison to serve the sentence required for a felony of
the fourth degree.
       {¶ 12} We do not find that the time in pretrial detention counts for purpose of R.C.
2929.16(A) and its six month cap on community control sanctions. Le Blanc was not being
sanctioned for violating the terms of a community control. Thus, the pretrial detention was
not a community control sanction.
       {¶ 13} If Le Blanc violates the terms of her community control and is sent to prison,
she will have to be credited with the 171 days of pretrial confinement and the 45 days she
was ordered to be held between her sentencing date and her release from custody into
community control. The office of the Franklin County Sheriff would have a statutory duty
to report those 216 days to the Ohio Department of Rehabilitation and Correction. A trial
court judge cannot order the local sheriff to disregard that statutory duty. With that
additional observation, the second assignment of error is overruled.
No. 17AP-912                                                                            4

        {¶ 14} Both assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                     Judgment affirmed.

                               BRUNNER, J., concurs.
                             KLATT, J., concurs separately.

KLATT, J., concurring separately.
        I agree that the trial court's judgment should be affirmed. However, I write
separately because I would find that the appellant's second assignment of error is moot.
Appellant has already served the full 45-day sentence. Therefore, there is no remedy this
court can provide with respect to that sentence, which is what appellant challenges in her
second assignment of error. See State v. Jama, 10th Dist. No. 17AP-569, 2018-Ohio-1274,
¶ 13.
