[Cite as State v. Peirano, 2016-Ohio-5045.]




                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellant,               :
                                                                      No. 16AP-96
v.                                                  :              (C.P.C. No. 15CR-3542)

Marianne V. Peirano,                                :           (REGULAR CALENDAR)

                 Defendant-Appellee.                :



                                              D E C I S I O N

                                       Rendered on July 21, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Michael P. Walton, for appellant. Argued: Michael P.
                 Walton.

                 On brief: Scott & Nolder Co., LPA, and Steven S. Nolder,
                 for appellee. Argued: Steven S. Nolder.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} The State of Ohio is appealing from the dismissal of this case in the trial
court. It assigns a single error for our consideration:
                 THE TRIAL COURT ERRED IN DISMISSING THE
                 INDICTMENT BY GOING BEYOND THE FACE OF THE
                 INDICTMENT AND CONCLUDING THAT DEFENDANT
                 DID NOT COMMIT THE CHARGED OFFENSE.

        {¶ 2} Marianne V. Peirano and her husband were going through a contested
divorce case. Marianne was the sole owner of 545 Rocky Fork Ct. in Gahanna. While the
divorce was pending, she moved in with her parents in Florida. Her husband stayed at
what had been the marital residence.
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No. 16AP-96


         {¶ 3} Apparently, no one paid the mortgage so the property was the subject of a
foreclosure action which had proceeded to the point that a sheriff's sale was scheduled.
         {¶ 4} Marianne was alleged to have visited the property which was titled in her
name. The record before us does not reveal if this was to recover personal property still at
the former residence, to check on the status of the property to see if the value had been
affected in her absence, or to enter the property for some other purpose.
         {¶ 5} For reasons that are not clear, the State of Ohio submitted the situation to a
grand jury which returned an indictment for an alleged violation of R.C. 2911.12, which
reads:
               (A) No person, by force, stealth, or deception, shall do any of
               the following:

               (1) Trespass in an occupied structure or in a separately
               secured or separately occupied portion of an occupied
               structure, when another person other than an accomplice of
               the offender is present, with purpose to commit in the
               structure or in the separately secured or separately occupied
               portion of the structure any criminal offense;

               (2) Trespass in an occupied structure or in a separately
               secured or separately occupied portion of an occupied
               structure that is a permanent or temporary habitation of any
               person when any person other than an accomplice of the
               offender is present or likely to be present, with purpose to
               commit in the habitation any criminal offense;

               (3) Trespass in an occupied structure or in a separately
               secured or separately occupied portion of an occupied
               structure, with purpose to commit in the structure or
               separately secured or separately occupied portion of the
               structure any criminal offense.

               (B) No person, by force, stealth, or deception, shall trespass in
               a permanent or temporary habitation of any person when any
               person other than an accomplice of the offender is present or
               likely to be present.

               (C) As used in this section, "occupied structure" has the same
               meaning as in section 2909.01 of the Revised Code.

               (D) Whoever violates division (A) of this section is guilty of
               burglary. A violation of division (A)(1) or (2) of this section is
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No. 16AP-96


               a felony of the second degree. A violation of division (A)(3) of
               this section is a felony of the third degree.

               (E) Whoever violates division (B) of this section is guilty of
               trespass in a habitation when a person is present or likely to
               be present, a felony of the fourth degree.

       {¶ 6} After the indictment had been served on Marianne, her defense lawyer filed
a motion seeking dismissal of the charge. Specifically, her counsel relied on Crim.R. 12(C),
which reads:
               Pretrial motions. Prior to trial, any party may raise by motion
               any defense, objection, evidentiary issue, or request that is
               capable of determination without the trial of the general issue.
               The following must be raised before trial:

               (1) Defenses and objections based on defects in the institution
               of the prosecution;

               (2) Defenses and objections based on defects in the
               indictment, information, or complaint (other than failure to
               show jurisdiction in the court or to charge an offense, which
               objections shall be noticed by the court at any time during the
               pendency of the proceeding);

               (3) Motions to suppress evidence, including but not limited to
               statements and identification testimony, on the ground that it
               was illegally obtained. Such motions shall be filed in the trial
               court only.

               (4) Requests for discovery under Crim. R. 16;

               (5) Requests for severance of charges or defendants under
               Crim. R. 14.

       {¶ 7} The motion specifically argued that as the sole owner of the property,
Marianne could not be considered to have trespassed on her own property. The motion
included documents in which Marianne's husband acknowledged that she was the sole
owner of the property and documents which demonstrate that her husband had not
sought to exclude her from entering the property, especially by asking the Domestic
Relations Court to grant him exclusive use of the property.
       {¶ 8} The judge assigned to the criminal case applied Crim.R. 12(F), which reads:
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No. 16AP-96


               Ruling on motion. The court may adjudicate a motion based
               upon briefs, affidavits, the proffer of testimony and exhibits, a
               hearing, or other appropriate means.

               A motion made pursuant to divisions (C)(1) to (C)(5) of this
               rule shall be determined before trial. Any other motion made
               pursuant to division (C) of this rule shall be determined before
               trial whenever possible. Where the court defers ruling on any
               motion made by the prosecuting attorney before trial and
               makes a ruling adverse to the prosecuting attorney after the
               commencement of trial, and the ruling is appealed pursuant
               to law with the certification required by division (K) of this
               rule, the court shall stay the proceedings without discharging
               the jury or dismissing the charges.

               Where factual issues are involved in determining a motion,
               the court shall state its essential findings on the record.

       {¶ 9} The judge ordered the case dismissed.
       {¶ 10} The State of Ohio now argues that the trial court judge should have
disregarded the part of Crim.R. 12 regarding factual findings. The State of Ohio also
questions the part of Crim.R. 12 that requires that many types of motions to dismiss be
filed before trial.
       {¶ 11} The issue submitted to the trial court was basically an issue of law, namely
whether a sole owner of property who had not been the subject of any court order
affecting that ownership be considered a trespasser on their own property.
       {¶ 12} Criminal trespass is defined in R.C. 2911.21(A). It reads:
               (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;

               (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
               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
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No. 16AP-96


              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.

       {¶ 13} The statute consistently references being on the land or premises of another
for a person to be guilty of criminal trespass. If a person cannot be guilty of criminal
trespass under the facts of the case, we fail to see how the person could be guilty of the
greater offense of burglary as defined in R.C. 2911.12.
       {¶ 14} The trial court judge was correct in his ruling on the merits of the motion to
dismiss. The judge was also correct to set forth factual basis for his ruling. The trial court
reasoned:
              The Defendant was indicted by the Franklin County Grand
              Jury on July 21, 2015 for allegedly committing one count of
              Trespass in a Habitation in violation of Ohio Revised Code §
              2911.12. According to the Defendant, she married Antonio
              Peirano on February 14, 2002. There [sic] martial residence
              was at 545 Rocky Fork Court, Gahanna, Ohio. The Defendant
              was the sole mortgagor and sole owner as listed on the deed.
              The Defendant separated from her husband on October 25,
              2014. The Defendant and her children moved from the
              marital residence and lived with her parents in Florida.

              On November 21, 2014, Antonio Peirano initiated divorce
              proceedings in Franklin County, Ohio. In an order on April 1,
              2015, the Domestic Relations Court issued the Magistrate’s
              Temporary Order. This Order did not provide any disposition
              on the occupancy of the property in question in this case.

              The Indictment alleges that the Defendant "did by force,
              stealth or deception trespass in the permanent or temporary
              habitation of any person located at 545 Rocky Fork Court,
              Gahanna, OH 43230..." The Defendant contends in her
              Motion that as the only legal owner of the property and
              resident of the same, it was not possible for her to trespass.
              As the titled owner of the property, the Defendant retained a
              residual right to enter the property in question. The Court has
              no facts in this matter to contest that the Defendant’s decision
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No. 16AP-96


              to move from the property was not her decision and hers
              alone.

              ***

              The issue for the Court is whether the Defendant had a
              responsibility to provide notice or obtain permission from
              those residing therein before entering. The estranged spouse
              was not paying the mortgage nor was he renting the property.
              The Defendant retained her right to enter the property.
              Therefore, the Defendant’s Motion to Dismiss is
              SUSTAINED.

(Feb. 3, 2016 Entry Granting Dismissal at 1-2.)
       {¶ 15} Additionally, the State of Ohio waived the procedural process of disposing
the case as it failed to raise such objection during the miscellaneous hearing the court held
on the matter. In fact, the State actively participated at the hearing and further asked the
court for specific findings of fact. Given the adverse legal conclusions rendered by the
court, now the State of Ohio objects. After review of the record, this court finds no error,
plain or otherwise, with respect to the trial court's legal analysis of the law and thereby
dismissal of the case.
       {¶ 16} The sole assignment of error is overruled. The judgment of the Franklin
County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.
                                  HORTON, J., concurs.
                                 DORRIAN, P.J., dissents.
DORRIAN, P.J., dissenting.

       {¶ 17} I respectfully dissent.
       {¶ 18} I would find the trial court committed plain error in dismissing the
indictment because I believe the reason for dismissal was not "capable of determination
without trial of the general issue" pursuant to Crim.R. 12(C). Plain error is an error or
defect affecting substantial rights. "The test for plain error is stringent. A party claiming
plain error must show that: (1) an error occurred, (2) the error was obvious, and (3) the
error affected the outcome of the proceeding." State v. Simms, 10th Dist. No. 13AP-299,
2013-Ohio-5142, ¶ 8, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 378.
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No. 16AP-96


Dismissal of the indictment of this case meets all three criteria that the error occurred,
was obvious, and affected the outcome of the proceeding in that no trial on the merits was
ultimately held. Furthermore, I think State v. Link, 155 Ohio App.3d 585, 2003-Ohio-
6798 (5th Dist.), is distinguishable in that the state did not raise the issue before the trial
court, but also did not raise the issue on appeal. Therefore, the trial court determined not
to further address the procedural issue. In State v. Certain, 180 Ohio App.3d 457, 2009-
Ohio-148, ¶ 5 (4th Dist.), the trial court determined there was no prejudicial error "in light
of the State's active participation in this procedure." It appears that in Certain, the trial
court held a hearing on the motions and parties stipulated to facts. In the case before us,
it does not appear the trial court held a hearing on the motion to dismiss and the state
opposed the motion stating the "indictment has clearly stated a chargeable offense."
(Jan. 8, 2016 Memo Contra at 4.)
