[Cite as State v. Elkins, 2018-Ohio-1267.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. William B. Hoffman, J.
-vs-
                                                   Case No. 17 CA 59
DREW ELKINS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Mansfield
                                               Municipal Court, Case No. 17 CRB 163


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         March 30, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

MICHAEL J. KEMERER                             RANDALL E. FRY
ASSISTANT LAW DIRECTOR                         10 West Newlon Place
30 North Diamond Street                        Mansfield, Ohio 44902
Mansfield, Ohio 44902
Richland County, Case No. 17 CA 59                                                             2

Wise, P. J.

          {¶1}   Appellant Drew Elkins appeals following his conviction, in the Mansfield

    Municipal Court, Richland County, for obstructing official business and criminal trespass.

    Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

          {¶2}   On January 10, 2017, appellant and Victoria Chapman were at the Richland

    County Children Service's (“RCCS”) offices in Mansfield for a scheduled visit with their

    infant child.1 The agency’s family support specialist assisting with the visit, Erica

    Denham, specifically advised them prior to the commencement of the visit that no cell

    phones were allowed, and that if during the visit a cell phone or similar device were

    discovered, the event would terminate.

          {¶3}   At some point, appellant and Chapman discovered a red mark on their child,

    which caused concern to them. However, a cell phone rang during the visitation time, at

    which point Denham and some of her co-workers immediately “let them know that their

    visit was ending and that they needed to exit the building.” Tr. at 59. Appellant refused

    to leave, and he asked to speak to a supervisor.2 RCCS employees thereupon decided

    to request law enforcement assistance. Furthermore, an ambulance was requested for

    Chapman, even though two of the State’s witnesses later testified that they observed no

    medical conditions requiring such assistance. See Tr. at 68-69 (Denham), 77 (Gordon).




1   The State continues to question whether legal paternity has been established by
appellant. Appellee’s Brief at 2. This Court can only presently respond that this
information would be dehors the record and has little bearing on our analysis herein.
2   There is also some indication in the transcript that a supervisor had already been
requested by RCCS employees after Victoria Chapman had noted the purported mark on
the baby, before the cell phone incident. See Tr. at 71.
Richland County, Case No. 17 CA 59                                                         3


      {¶4}      Sgt. William Gordon of the Richland County Sheriff’s Department soon

arrived at RCCS. He gave some instructions to appellant, which he believed appellant

intentionally did not follow. Rather than immediately issuing a summons to appellant for

criminal trespass, Sgt. Gordon decided to allow appellant to follow the ambulance for

Chapman to the hospital.

      {¶5}      Sgt. Gordon thereafter came into the hospital waiting room and began

writing a summons for criminal trespass. Deputy Amber Alfrey also arrived on the scene.

As further analyzed infra, while Sgt. Gordon was attempting to write the summons,

appellant engaged in actions to attempt to delay the officer in his duties. Sgt. Gordon

therefore additionally charged the appellant with obstructing official business.

      {¶6}      The matter proceeded to a jury trial on May 22, 2017. Appellant was found

guilty of one count of obstructing official business, R.C. 2921.31(A), a misdemeanor of

the second degree, and one count of criminal trespass, R.C. 2911.21(A)(4), a

misdemeanor of the fourth degree.

      {¶7}      On June 1, 2017, appellant was sentenced as follows: a fine of $200.00 and

ninety days in jail for obstructing official business, and a $100.00 fine with thirty days in

jail on the offense of criminal trespassing. The jail sentences were ordered to be

consecutive to each other and were set to begin on July 11, 2017. Appellant was also

ordered to obtain a mental health assessment.

      {¶8}      The trial court subsequently suspended all jail time and imposed one year

of probation.

      {¶9}      Appellant filed a notice of appeal on June 30, 2017. He herein raises the

following two Assignments of Error:
Richland County, Case No. 17 CA 59                                                     4


      {¶10} “I.   THE EVIDENCE IN THIS CASE WAS INSUFFICIANT [SIC] AS A

MATTER OF LAW TO SUPPORT A CONVICTION OF OBSTRUCTION OF OFFICAL

[SIC] BUSINESS AND AS A RESULT, THE APPELLANT'S RIGHTS AS PROTECTED

BY ARTICLE I SECTION 16 OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT

OF THE UNITED STATES CONSTITUTION WERE VIOLATED.

      {¶11} “II. THE EVIDENCE IN THIS CASE WAS INSUFFICIANT [SIC] AS A

MATTER OF LAW TO SUPPORT A CONVICTION OF CRIMINAL TRESPASS AND AS

A RESULT, THE APPELLANT'S RIGHTS AS PROTECTED BY ARTICLE I SECTION

16 OF THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED

STATES CONSTITUTION WERE VIOLATED.”

                             Appellate Standard of Review

      {¶12} In reviewing a claim of insufficient evidence, “[t]he 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

a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

paragraph two of the syllabus. It is well-established that the State bears the burden of

establishing each and every element of a charged crime and must do so with proof

beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010-Ohio-

15, 2010 WL 27862, ¶ 11.

                                           I.

      {¶13} In his First Assignment of Error, appellant contends there was insufficient

evidence presented to convict him of the offense of obstructing official business. We

disagree.
Richland County, Case No. 17 CA 59                                                          5


      {¶14} R.C. 2921.31(A) states in pertinent part as follows: “No person, without

privilege to do so and with purpose to prevent, obstruct, or delay the performance by a

public official of any authorized act within the public official's official capacity, shall do

any act that hampers or impedes a public official in the performance of the public official's

lawful duties.”

      {¶15} Ohio courts have generally required an affirmative act for the offense of

obstructing official business. State v. Grice, 180 Ohio App.3d 700, 2009–Ohio–372, 906

N.E.2d 1203 (1st Dist.). An affirmative act is defined as any conduct, physical or verbal,

that hampers or impedes a police officer in the performance of his or her duties. State v.

Wellman, 173 Ohio App.3d 494, 2007–Ohio–2953, 879 N.E.2d 215 (1st Dist.). We have

recognized generally that police officers engaging in the detention and arrest of

individuals are engaged in a governmental function. See Herbert v. City of Canton, 5th

Dist. Stark No. 2001CA00281, 2002–Ohio–906. See, also, Pisoni v. McCord, 5th Dist.

Stark No. 2017CA00111, 2018-Ohio-64, ¶ 38.

      {¶16} The record in the case sub judice reveals Sgt. Gordon explicitly recounted

that as he was trying to issue the summons in the hospital waiting room, appellant

repeatedly asked questions, spoke on his cell phone, interrupted him multiple times

when he attempted to speak with the involved parties, and generally disrupted his

attempt to prepare citations for the offenses. See Tr. at 78-82. In the officer’s words:

             Um, during the whole process it was my interpretation of an

      intentional delay, um, if, you know, if I would ask him, hey, sit down, sit

      down, or would have to ask him multiple times sit down. If during the

      process he would keep asking me multiple questions and I would have to
Richland County, Case No. 17 CA 59                                                       6


      constantly tell him, you know, sit down, quit interrupting me, you know, not

      that you want to go in there as, as the bully that’s in control of everything,

      but you have to have control over the scene and, you know, you have to get

      in, handle what needs to be done and go to another call, we had multiple

      calls pending, I can’t spend all day, you know, when someone’s intentionally

      or what my perception was, was intentionally trying to delay you. * * * [E]ven

      at the hospital he had to be told multiple times, sit down, wait until I issue

      the summons and, you know, it, it caused me a much greater amount of

      time in issuing the summons then [sic] it would had normally taken had I not

      had multiple interruptions.

      {¶17} Tr. at 79-80.

      {¶18} Sgt. Gordon ultimately estimated that appellant’s actions caused him to

spend "twice as long if not longer" responding to and addressing the incident while at the

hospital. Tr. at 80-81.

      {¶19} In addition, Deputy Amber Alfrey also testified that appellant was

argumentative and uncooperative when Sgt. Gordon was attempting to issue the

citations, and she likewise noted that appellant during this time began talking on his cell

phone. Tr. at 91, 93. She further testified that based on her observations and her own

prior experience in issuing citations, appellant "absolutely" delayed Sgt. Gordon. Tr. at

92.

      {¶20} Furthermore, in regard to the issue of “privilege” under R.C. 2921.31(A), this

Court has taken the position that the absence of privilege is not an essential element of

obstructing official business which the State must prove beyond a reasonable doubt. See
Richland County, Case No. 17 CA 59                                                      7

State v. Stevens, 5th Dist. Morgan No. 07–CA–0004, 2008–Ohio–6027, ¶ 35. Other Ohio

appellate courts have reached the same conclusion. See State v. Luke, 4th Dist.

Washington No. 09CA30, 2010–Ohio–4309, ¶ 16; State v. Williams, 8th Dist. Cuyahoga

No. 83574, 2004–Ohio–4476, ¶ 38; State v. Novak, 4th Dist. Gallia No. 16CA4, 2017-

Ohio-455, ¶ 18. Appellant in this vein maintains that a police officer should be “expected

to tolerate a certain level of uncooperativeness.” Appellant’s Brief at 13. Certainly, a

person has the right to reasonably protest a police officer's actions, or perhaps even

argue with or curse at an officer, but that person does not have the right to hamper or

impede the officer in the performance of his or her duties. See State v. Wellman, 173

Ohio App.3d 494, 2007–Ohio–2953, 879 N.E.2d 215 (1st Dist.).

      {¶21} Accordingly, upon review of the record and transcript in a light most

favorable to the prosecution, we find that reasonable jurors could have found appellant

guilty beyond a reasonable doubt of the misdemeanor offense of obstructing official

business.

      {¶22} Appellant's First Assignment of Error is overruled.

                                            II.

      {¶23} In his Second Assignment of Error, appellant argues there was insufficient

evidence presented to convict him of the offense of criminal trespass. We disagree.

      {¶24} In essence, remaining upon the premises of another without legal authority

after being notified to leave constitutes the offense of criminal trespass. See State v.

Haley, 5th Dist. Coshocton No. 2014CA0002, 2014-Ohio-2515, ¶ 16, citing State v.

Carriker, 5 Ohio App.2d 255, 214 N.E.2d 809 (1964).
Richland County, Case No. 17 CA 59                                                          8


      {¶25} R.C. 2911.21(A)(4) states as follows: “No person, without privilege to do so,

shall *** [b]eing 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.”

      {¶26} Furthermore, R.C. 2911.21(B) specifically states: “It is no defense to a

charge under this section that the land or premises involved was owned, controlled, or

in custody of a public agency.”

      {¶27} In the case sub judice, there is little in the record to counter the State’s basic

evidence that appellant did not leave the RCCS premises when clearly advised to do so

by agency personnel. Appellant therefore instead urges that the State failed to show that

he “negligently failed or refused to leave” per the statute, maintaining the evidence shows

he was concerned about the red mark on the child and had made requests to speak to

a supervisor. However, we are not persuaded by appellant’s insufficiency claim in this

regard.

      {¶28} Finally, appellant again raises the issue of “privilege.” The definition of said

term is set forth in 2901.01(A)(12) as “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.” Interestingly, in contrast to case law regarding

the privilege question as to the offense of obstructing justice (see Stevens and Novak,

supra), “Ohio courts construe the lack-of-privilege requirement as an element of the

offense of criminal trespass, and not an affirmative defense.” Logsdon v. Hains, 492 F.3d

334, 341–42 (6th Cir. 2007), citing State v. Newell, 93 Ohio App.3d 609, 639 N.E.2d 513,

514 (1994).
Richland County, Case No. 17 CA 59                                                         9


      {¶29} However, in our minds, the stress and demands of children services

provision require that a visitation facility be maintained as a secure and professional

setting in order to properly meet the wide array of needs of the families involved. As

Denham noted in response to a question on cross-examination, “*** our role is more

protection of the baby, so once we are making sure that child is safe, we try not to get

involved with all of the other things happening.” Tr. at 67-68. Ohio law recognizes that if

a defendant's presence at the subject property is initially lawful, a trespass may

nonetheless occur if the defendant's privilege is revoked or terminated.            State v.

Roberson, 6th Dist. Lucas No. L-16-1131, 2017 WL 2610658, ¶ 49, citing State v.

Petefish, 7th Dist. Mahoning No. 10 MA 78, 2011–Ohio–6367, ¶ 22. Furthermore: “If the

status of land as public property is not always a defense to a charge of trespass, which

is always an entry without privilege, then, concomitantly, the public official or agency into

whose charge the property is put can withdraw or revoke the privilege otherwise enjoyed

by a member of the public to enter. Whether that action has occurred, and whether it is

reasonable, is a question of fact.” State v. Donahue, 5th Dist. Fairfield No. 2004-CA-20,

2005-Ohio-1478, ¶ 61 (additional citation omitted).

      {¶30} In this instance, Denham testified that she had warned appellant and

Chapman, apparently based on experiences with the couple during previous sessions,

that cell phone possession during their visit would not be permitted (Tr. at 58) and that

she clearly directed them to leave the premises after that rule was violated (Tr. at 59-

60). Appellant also admitted in his defense testimony that Sgt. Gordon had warned him

previously not to bring a cell phone to visitation sessions. Tr. at 113-114. In addition,

Deputy Alfrey recalled observing Sgt. Gordon trying to explain to appellant at RCCS that
Richland County, Case No. 17 CA 59                                                    10


“when they tell you that you have to leave the premises numerous times, you have to

leave, um, and Mr. Elkins was not cooperating and refusing to leave and very

argumentative.” Tr. at 90.

      {¶31} Accordingly, we reject appellant’s suggestion that his privilege to be at the

RCCS facility for purposes of a child visitation appointment extended indefinitely, and

upon review of the record and transcript in a light most favorable to the prosecution, we

find that reasonable jurors could have found appellant guilty beyond a reasonable doubt

of the misdemeanor offense of criminal trespass as charged.

      {¶32} Appellant's Second Assignment of Error is overruled.

      {¶33} For the reasons stated in the foregoing opinion, the judgment of the

Mansfield Municipal Court of Richland County, Ohio, is hereby affirmed.


By: Wise, P. J.

Gwin, J., and

Hoffman, J., concur.


JWW/d 0221
