referring to the criminal trespass statute, R.C.2911.21[A]
How later courts described this case
- referring to the criminal trespass statute, R.C.2911.21[A]
Written by the judges who cited it.
The opinion
Holmes, J.,
concurring. I agree with the majority’s decision to uphold appellees’ convictions. I cannot, however, support the reaffirmation of State v. Barksdale (1983), 2 Ohio St. 3d 126 , or the narrow interpretation of R.C. 2911.13(B), breaking and entering, and R.C. 2911.21(A), trespass.
Breaking and entering occurs when there has been a trespass “with purpose to commit a felony.” R.C. 2911.13(B). Since a felony was committed herein, the question becomes whether a trespass occurred in the process of committing such felony. R.C. 2911.21 defines “trespass” as follows:
“(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 he is in violation of any such restriction or is reckless in that regard * * (Emphasis added.)
Barksdale effectively removed the element “remain” from that portion of the trespass statute quoted above and consequently narrowed the breaking and entering statutory provision. See Barksdale, supra, at 130 . (Holmes, J., dissenting.) Because Barksdale eliminated this element, the necessity arises to factually distinguish that case from the present case. Furthermore, today’s opinion continues the interpretation of R.C. 2911.13(B) and 2911.21(A) to encompass only the entry portion of the trespass statute. The test evolved is whether there was a privileged entry. Such a test is entirely too narrow in light of the statute’s language.
Wright, J., concurs in the foregoing concurring opinion.