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

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDREW ELKINS 

 Defendant-Appellant 

JUDGES: 

Hon. John W. Wise, P. J. 

Hon. W. Scott Gwin, J. 

Hon. William B. Hoffman, J. 

Case No. 17 CA 59 

O P I N I O N 

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-Ohio15, 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