ABELE
J.
This
is an appeal from a judgment of conviction and sentence
entered by the Athens County Municipal Court. The court found
John
Craft, defendant below and appellant herein, guilty of two
criminal
trespass counts in violation of R.C. 2911.21(A)(2) and
(A)(3).
Appellant raises two assignments of error for our review:
FIRST
ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN SUSTAINING THE STATE'S
MOTION IN LIMINE, REFRAINING THE DEFENDANT FROM ANY
REFERENCE TO OHIO REVISED CODE SECTION 3345.21 AT TRIAL, AS
SUCH A RULING DEPRIVES APPELLANT OF HIS CONSTITUTIONAL RIGHT
TO PRESENT A COMPLETE DEFENSE."
SECOND
ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
MOTION TO DISMISS AND IN FINDING APPELLANT GUILTY OF CRIMINAL
TRESPASS FOLLOWING HIS PLEA OF NO CONTEST, FOR THE REASON
THAT APPELLANT WAS PRIVILEGED TO ENTER ONTO THE PUBLIC
PROPERTY OF OHIO UNIVERSITY."
On
July 1, 1997, Ohio University Police Department (OUPD) Lt
Chris Johnson filed a complaint in the Athens County
Municipal Court charging appellant with a June 30, 1997
criminal trespass violation. See R.C
2911.21(A)(3).[1] On July 9, 1997, OUPD Ptl. Jim Ator
filed a complaint charging appellant with a July 9, 1997
criminal trespass violation. See R.C. 2911.21(A)(2). Both
charges constitute fourth degree misdemeanors. We note that
the OUPD officers indicated that appellant had previously
been provided with actual notice that he should not enter
upon university property.
On
October 22, 1997, appellant filed a motion to dismiss.
Appellant's motion provides in part:
"The Defendant is primarily charged with trespass and
receiving stolen property. It is the allegation of the State,
that the Defendant was notified that he was not to be on the
property of Ohio University, and that subsequently he was
found on that property, and when searched, had on his
possession the keys to one of the dorm rooms at Ohio
University.
As to the trespass charge which was the basis of the search,
the State maintains that the Defendant has violated Ohio
Revised Code Section 2911.21. However, as stated in the July
1, 1997, complaint of trespass, the allegation is that Mr.
Craft was banned from Ohio University, in accordance with
Ohio Revised Code Section 3345.21.[2] That section in
particular, requires the Board of Trustees of the University
to see that any rules providing for the ejection, suspension,
or expulsion of a person, `be published in a manner
responsibly designed to come to the attention of, and be
available to all faculty, staff, visitors, and students.'
(copy of Statute attached).
Counsel submits that there is no sign, or publication placed
in any manner which reasonably warns any citizen of the rules
which provide for expulsion, or ejection from campus. Counsel
further submits, that until said rules are published in
accordance with the requirements of Ohio Revised Code Section
3345.21, the university is without the authority to pursue a
criminal trespass action. Thus the initial case against the
Defendant, of trespass requires dismissal and counsel submits
that any search of the Defendant's person resulting in
any evidence seized, is the fruit of an unreasonable search,
and should be suppressed."
On
October 22, 1997, the prosecution responded to
appellant's motion by filing a motion in limine.
The motion requested the court to issue "an Order to
refrain from any reference during the trial of this matter to
Section 3345.21 of the Ohio Revised Code." The
prosecution's response provides in part:
"The evidence in the case will show that John Craft was
given actual notice by Ohio University Police on June 16,
1997. At a hearing on the matter, the evidence will show that
actual knowledge was sufficient notice to Defendant. R.C.
2911.21(C) states that `(i)t 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.' The 1974
committee Comment states that `(t)he section makes it clear
that a trespass is not excused simply because the property
involved is publicly rather than privately owned.' The
comment goes on to state that `(i)t 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.'
The statute and comment make it clear that actual notice to
Craft was sufficient.
The State respectfully requests that the Court delete the
reference to R.C. 3345.21 and not permit the defense to raise
the provision at trial."
After
conducting a hearing to consider the parties' motions,
the trial court overruled appellant's motion to dismiss
and granted the prosecution's motion in limine.
Thus, the trial court prohibited appellant from raising and
arguing issues associated with R.C. 3345.21.
We
note that at the hearing the parties stipulated to the
pertinent facts involved in this appeal. It appears that on
June 29, 1997 at approximately 6:30 a.m., OUPD officers found
appellant sleeping in Ohio University's Radio/TV building
on the Ohio University campus. For approximately twenty
minutes, OUPD officers explained to appellant that he was not
permitted to be on the Ohio University campus. The officers
explained in detail the geographical boundaries of the
campus. Subsequently, appellant was found on the Ohio
University campus on two separate occasions.
After
learning of the trial court's decisions regarding the
motions, appellant entered a no contest plea to each
trespassing charge. The trial court found appellant guilty as
charged. The court fined appellant one hundred dollars and
sentenced appellant to thirty days in the county jail on each
count. Appellant filed a timely notice of appeal.
Initially, we must address a threshold issue. After appellant
learned that the trial court had granted the prosecutor's
motion in limine and thereby prohibited appellant
from introducing certain evidence at trial, appellant entered
a no contest plea to the criminal trespass charges. Appellant
asserts that the trial court's decision granting the
prosecutor's motion in limine constitutes a
"final appealable order." Appellant contends that
the trial court's ruling excluded appellant's
evidence and hampered his ability to present a defense.
In
support of his argument that this court may review the trial
court's decision with respect to the prosecution's
motion in limine, appellant cites State v.
Grubb (1986), 28 Ohio St.3d 199, 503 N.E.2d 142.
Appellant contends that because the trial court's
decision "effectively undermined appellants efforts to
defend against the charge of criminal trespass, the trial
court decision affected a "substantial right." We,
however, disagree with appellant's assertion and
interpretation of relevant case
authorities.
In
Grubb, the Ohio Supreme Court's syllabus
provides:
"1. The effect of the granting of a motion in
limine in favor of the state in a criminal proceeding is
to temporarily prohibit the defendant from making reference
to evidence which is the subject of the motion.
2. At trial it is incumbent upon a defendant, who has been
temporarily restricted from introducing evidence by virtue of
a motion in limine, to seek the introduction of the
evidence by proffer or otherwise in order to enable the court
to make a final determination as to its admissibility and to
preserve any objection on the record for purposes of appeal.
(State v. Gilmore [1986], 28 Ohio St.3d 190, 503
N.E.2d 147, applied.)"
Thus,
the Grubb court held that a defendant, in order to
preserve for review an adverse ruling on a motion in
limine, must seek the introduction of the disputed
evidence, by proffer or otherwise, at trial. The
Grubb court noted at 28 Ohio St.3d 201-202, 503
N.E.2d 145:
"As was recognized in Riverside Methodist Hose. v
Guthrie (1982), 3 Ohio App.3d 308, 310, 444 N.E.2d 1358,
although the motions receives widespread use in Ohio courts,
"* * * it is frequently misused and misunderstood. * *
*" In State v. Spahr (1976), 47 Ohio App.2d
221, 353, N.E.2d 624 [1 O.O.3d 289], the court reasoned in
paragraph one of the syllabus:
`As related to trial, a motion in limine is a
precautionary request, directed to the inherent discretion of
the trial judge, to limit the examination of witnesses by
opposing counsel in a specified area until its admissibility
is determined by the court outside the presence of the
jury.' The power to grant the motion is not conferred by
rule or statute, but instead lies within the inherent power
and discretion of a trial court to control its proceedings.
Id. at 224, 353 N.E.2d 624, Riverside Methodist
Hose. Assn. v Guthrie, supra, at 3 Ohio App. at 310, 444
N.E.2d 1358. See, also, Evid.R. 103(A) and 611(A). The
function of the motion as a precautionary instruction is to
avoid error, prejudice, and possibly a mistrial by
prohibiting opposing counsel from raising or making reference
to an evidentiary issue until the trial court is better able
to rule upon its admissibility outside the presence of a jury
once the trial has commenced. In this sense, use of the
motion serves the interests of judicial economy, as well as
the interests of counsel and the parties, by helping to
reduce the possibility of the injection of error or prejudice
into the proceedings. Accord Annotation (1975), 63 A.L.R.3d
311.
* * *
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