Distinguished
Distinguished by State v. Lyons, 18 Ohio St. 3d 204 (1985)
Our review of Barksdale compels us to conclude that it is distinguishable from the instant cause on a crucial point.
The opinion
Holmes, J.,
dissenting. In my opinion, the majority too narrowly reads the relevant statutes, so I respectfully dissent.
Appellee was indicted, and convicted, for violating R.C. 2911.13(B), breaking and entering. The evidence revealed that appellee entered a used car lot at Arena Dodge while it was closed. Admittedly, there was an implied invitation for the public to enter the lot when it was closed to look at cars. However, in my opinion, a correct analysis of R.C. 2911.13(B) leads to the conclusion that appellee violated it when he broke into a locked car and took the property.
R.C. 2911.13(B) provides:
“No person shall trespass on the land or premises of another, with the purpose to commit a felony.”
It is not disputed that the theft by appellee was a felony. See R.C. 2913.02. Therefore, the question becomes, did appellee commit a trespass. The acts which may constitute a trespass are set forth in R.C. 2911.21, which, in pertinent part, reads:
“(A) No person, without a privilege to do so, shall do any of the following:
* *
“(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 he is in violation of any such restriction or is reckless in that regard; * * *”
Here, it is not that appellee’s entry onto the lot was restricted; rather, appellee remained on the lot for a purpose that was lawfully restricted. Specifically, the appellee remained on the premises to commit a theft, a restriction of which one may assume the appellee was aware. 4
Lastly, State v. Carroll (1980), 62 Ohio St. 2d 313 [ 16 O.O.3d 359 ], upon which the court of appeals relied, does not necessitate a contrary result. In Carroll , this court decided that a motor vehicle is not an “unoccupied structure” as that term is used in R.C. 2911.13(A). Carroll did discuss the meaning of “trespass” contained in R.C. 2911.13(B).
Based on the foregoing, I would reverse the judgment of the court of appeals and reinstate appellee’s conviction.
Krupansky, J., concurs in the foregoing dissenting opinion.
The appellee’s privilege to remain on the lot terminated when he remained for a purpose in violation of that privilege.