[Cite as State v. Gilbert, 2020-Ohio-1641.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellant 

v. 

MICHAEL SERGIO GILBERT 

Defendant-Appellee 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

Appellate Case No. 2019-CA-64 

Trial Court Case No. 2019-CRB-497 

(Criminal Appeal from Municipal Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 24th day of April, 2020. 

. . . . . . . . . . . 

MARC T. ROSS, Atty. Reg. No. 0070446, Assistant Prosecuting Attorney, City of 

Springfield Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 

45502 

 Attorney for Plaintiff-Appellant 

 

GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio 

45409 

 Attorney for Defendant-Appellee 

 . . . . . . . . . . . . . 

 

WELBAUM, J. 
-2- 

{¶ 1} The State of Ohio appeals from the trial court’s order granting a Crim.R. 29 

motion for judgment of acquittal at the end of the State’s case during a jury trial for criminal 

trespass. 

Facts and Course of Proceedings 

{¶ 2} Appellee, Michael Sergio Gilbert, was charged with criminal trespass in 

violation of R.C. 2911.21(A)(3) and resisting arrest in violation of R.C. 2921.33(A). Prior 

to trial, the court granted the State’s motion to amend the criminal trespass complaint to 

allege a violation of R.C. 2911.21(A)(4). After the court entered a judgment of acquittal, 

the State sought leave to appeal the underlying legal issue: whether the trial court erred 

when it held that a person may be not be lawfully convicted of criminal trespass under 

R.C. 2911.21(A)(4) for refusing to leave a public transit bus. We granted the State’s 

motion for leave to appeal. 

{¶ 3} The jury trial commenced on August 15, 2019, in Springfield Municipal Court. 

The State called two witnesses, who provided the following testimony. On February 14, 

2019, Springfield bus driver Gary Ferryman picked up Gilbert and his service dog at the 

City of Springfield bus center. There was one other passenger on the bus. Tr. 12-13. 

Prior to Gilbert getting on the bus, and consistent with his routine, Ferryman had activated 

the kneeling function of the bus, which lowered the right side of the bus to make it easier 

for people to get on. Tr. 13. 

{¶ 4} Gilbert and his dog entered the bus while it was in the lowered position, and 

Gilbert paid the fare. Consistent with his routine, Ferryman raised the bus as soon as he 

closed the doors. Tr. 9, 13. Then Gilbert told Ferryman not to raise the bus until he and 

his dog were seated and he had his dog under control. Ferryman told Gilbert it was just 
-3- 

the normal operation of the bus. Tr. 13. 

{¶ 5} Gilbert started arguing and yelling at Ferryman, telling him to wait until he 

was seated before he raised the bus. Tr. 13. Ferryman was seated when the argument 

started. However, after Gilbert approached him from behind, Ferryman stood up and 

faced Gilbert; Ferryman found Gilbert screaming so close to him that Ferryman could feel 

Gilbert’s breath and saliva on his face as they argued. Tr. 25-26. Ferryman was 

concerned for his safety. Tr. 26. 

{¶ 6} Ferryman told Gilbert to sit down at least ten times, but Gilbert refused. 

Ferryman told Gilbert that the bus could not proceed until Gilbert sat down, to no avail. 

Tr. 14. After lots of yelling and screaming back and forth, Ferryman told Gilbert that he 

had two options: either sit down or get off the bus. Gilbert told Ferryman that he would 

not get off the bus and would not sit down until Ferryman got a supervisor. Tr. 14, 26. 

{¶ 7} As far as Ferryman knew, there was no supervisor available, so he called 

dispatch to say that he was going to be late because Gilbert would not sit down or get off 

the bus. Gilbert was standing next to the radio receiver. The dispatcher said over the radio 

that Ferryman should tell the passenger to either sit down or get off the bus, or they would 

have to call the police. Tr. 15. Instead of sitting down, Gilbert turned, did an about face, 

and leaned up against the windshield forward of the yellow line on the floor, which 

designated an area where passengers are not allowed to stand. Tr. 15. When the police 

arrived, Gilbert was still standing on the bus. 

{¶ 8} When they arrived, Officer Alec Sears and his partner observed Gilbert 

standing inside the bus on one of the steps leading up into the bus. He would not move. 

Tr. 30. Gilbert told Sears that he felt he had been disrespected by the bus driver. 
-4- 

Ferryman told Sears that Gilbert would not sit down or step off the bus. Tr. 30. Sears 

asked Gilbert how they could resolve the situation. Gilbert told him that he wanted a 

supervisor. Sears told him that one was not available so Gilbert needed to either sit down 

or get off the bus. Tr. 31. Sears and Gilbert went back and forth, with Sears continuing to 

ask Gilbert to abide by one of the options, and Gilbert refusing. Gilbert was speaking 

loudly, argumentative, and yelling at Sears. Tr. 34. Gilbert was agitated, emotional, and 

frustrated. Tr. 35. Eventually, Sears ordered Gilbert to either sit down or get off the bus 

or he would be arrested. Tr. 31-32. Again, Gilbert refused. Tr. 32. 

{¶ 9} Sears told Gilbert that he would be physically removed from the bus. As 

Sears and his partner placed hands on Gilbert, he physically resisted by moving his arms 

and pulling away while the officers struggled to handcuff him. Gilbert was arrested for 

criminal trespass and resisting arrest. Tr. 32-33. 

{¶ 10} Prior to booking Gilbert, the officers assisted with finding accommodations 

for Gilbert’s dog. After being handcuffed and removed from the bus, Gilbert was calm and 

conversational. Tr. 34. 

{¶ 11} At the close of the State’s case, Gilbert’s counsel moved for acquittal under 

Crim.R. 29. He argued that a person could not be charged with criminal trespass under 

the circumstances presented in this case because a motor vehicle does not fall within the 

definition of “land or premises” for purposes of criminal trespass, and that that if the 

criminal trespass arrest was not valid, then the resisting arrest charge also failed. Directed 

Verdict Tr. (“DV Tr.”) 3. In response, the State argued that R.C. 2911.21(F)(2) says that 

“land or premises includes any land, building, structure, or place,” that a bus is a “place,” 

and therefore that the law and facts supported a finding of criminal trespass. DV Tr. 5. 
-5- 

{¶ 12} In granting the motion for acquittal, the trial court stated: 

 [Defense Counsel], I’ll disagree with you on one point. It’s not cut and 

dry or the Court wouldn’t have spent the last 65 minutes researching the 

issue. However, I have found no case that expands the definition of land or 

premises to include a motor vehicle. In addition to Finnegan which you have 

cited, I have located State v. McLavin, 2007 WL 3054322 wherein the Court 

held that “premises in the statute would not apply to a motor vehicle. 

Premises refers only to real property and it’s not often defined to include 

personal property.” State v. Brittman, 1994 WL 41308, “premises is not 

often defined to include personal property. The Random House dictionary 

of the English language defines premises as ‘a tract of land, including its 

buildings; a building together with its grounds or other appurtenances: the 

property forming the subject of a conveyance or a bequest’ . . . In statutory 

construction, words are generally given their ordinary meaning. We 

presume that the legislature intended its ordinary meaning, and since 

personal property is generally not a meaning applied to premises, a vehicle 

is not included within its meaning.” 

 For those reasons, the Court has no choice but to grant the Rule 29 

Motion with regard to the criminal trespass charge. * * * 

DV Tr. 8-9. 

{¶ 13} The Court then explained that “[b]ecause the arrest for criminal trespass 

can’t stand, neither can the jury make a finding that the arrest was lawful. For those 

reasons, the Court has no choice but to grant the Rule 29 Motion for judgment of acquittal 
-6- 

with regard to both charges.” DV Tr. 10. The trial court’s entries contained in the case file 

jacket also stated that the Crim.R. 29 motion for judgment of acquittal was granted and 

that Gilbert was discharged. 

Analysis of Assignment of Error 

{¶ 14} On appeal, the State challenges only the trial court’s dismissal of the 

criminal trespass charge. Its single assignment of error states: 

The trial court erred in granting Appellee’s Criminal Rule 29 Motion for 

Judgment of Acquittal by finding that the Criminal Trespass Statute in R.C. 

2911.21 does not apply to vehicles, including modes of public transportation 

or vehicles on public roadways and areas open to the public. 

Therefore, our analysis will only address the dismissal of the criminal trespass charge. 

{¶ 15} R.C. 2911.21 provides in pertinent part that: 

(A) No person, without privilege to do so, shall do any of the following: 

* * * 

(4) Being 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. 

(B) 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. 

* * * 

(F) As used in this section: 

* * * 

(2) “Land or premises” includes any land, building, structure, or place
-7- 

belonging to, controlled by, or in custody of another, and any separate 

enclosure or room, or portion thereof. 

(Emphasis added.) 

{¶ 16} The trial court primarily relied on a 1983 case from the First Appellate 

District, State v. Finnegan, 8 Ohio App.3d 432, 457 N.E.2d 900 (Feb. 2, 1983). In that 

case, the defendant was charged with trespassing in a truck owned by the city. The First 

District held that the definition of “premises” was not sufficiently broad to include motor 

vehicles. It stated: 

 * * * It is manifest that his action was specifically prosecuted under 

R.C. 2911.21(A)(2), and a conviction under the facts sub judice must 

depend upon [whether] the definition of “premises” [is] sufficiently broad 

* * * to include a motor vehicle. The defendant was charged with trespassing 

on the premises of another and therefore the statutory definition of “land or 

premises” is of little aid in the determination of the definition of “premises” 

only. Dictionaries rarely, if ever, define the word “premises” so as to include 

personal property. See Webster's New International Dictionary of the 

English Language (2 Ed.1953); Black's Law Dictionary (Rev. 4 Ed.1968). It 

is interesting to note that Webster's states that “premises” is sometimes 

loosely applied to personal property such as a vessel. The “loose” 

application of “premises” cannot be countenanced here where a strict 

construction against the state is mandated. R.C. 2901.04. The foregoing 

reasoning is reinforced by the availability of at least one other criminal 

statute which would seem to cover the actions giving rise to this case, e.g.,
-8- 

R.C. 2909.07(A)(1). * * * 

(Emphasis sic.) Id. at 433. 

{¶ 17} The cases other than Finnegan relied upon by the trial court and cited by 

Gilbert involved courts citing Finnegan while interpreting whether motor vehicles were 

“premises” in drug cases. See State v. Brittman, 10th Dist. Franklin No. 93AP-1005, 

1994 WL 41308 (Feb. 10, 1994); State v. McLavin, 12th Dist. Fayette No. 2006-11-044, 

2007-Ohio-5633. Both of these cases discussed the fact that possession means having 

control over a thing or substance (in those cases, drugs), but that possession could not 

be inferred solely from access to the drugs through ownership or occupation of the 

premises upon which the drugs were found. These cases have no application to our 

statutory analysis. 

{¶ 18} Moreover, in its analysis, the Finnegan court did not address the import of 

the word “place” as part of the definition of premises. When we focus on the definition of 

premises as set forth in R.C. 2911.21(F)(2), we conclude that the statutory definition of 

premises does include motor vehicles. Therefore, the trial court erred. 

{¶ 19} “Place” is not defined by the Revised Code, so its common, everyday 

meaning must be considered. State v. Jones, Ohio Slip Opinion No. 2019-Ohio-5159, 

__ N.E.3d __, ¶ 29. In Jones, the Supreme Court of Ohio cited R.C. 1.42, which provides 

that words and phrases shall be read in context and construed according to the rules of 

grammar and common usage. 

{¶ 20} Miriam Webster’s Dictionary defines “place” to include, among other things, 

“physical environment,” “a way for admission or transit,” “physical surroundings,” “a 

building or locality used for a special purpose,” as in a place of learning or a fine eating 
-9- 

place, and “an available seat or accommodation.” Synonyms include “location, locus, 

point, position, site, spot, venue.” Merriam-Webster Dictionary, “Place,” www.merriamwebster.com/dictionary/place (accessed March 24, 2020). 

{¶ 21} The guidance Comments to the Revised Code section related to criminal 

trespass state that “the section defines ‘land or premises’ in a broad sense.” Likewise, the 

Ohio Attorney General has opined that a “public place” includes a person in a vehicle 

located on a public roadway for the purposes of illegal underage possession of alcohol 

under R.C. 4301.632. (Statute repealed 10-11-2002). 1988 Ohio Atty.Gen.Ops. No. 88-

061, at 2-310. 

{¶ 22} Finally, in defining “premises” for criminal trespass purposes, at least one 

state legislature has specifically listed non-traditional locations to which the statute 

applies and has included motor vehicles. See State v. Joseph, 195 Wash.App. 737, 381 

P.3d 187, ¶ 8 (construing whether second degree criminal trespass applied to a vehicle 

under the definition of “building” codified at RCW 9A.04.110(5), which specifically includes 

a “vehicle,” as well as “fenced area,” “railway car,” and “cargo carrier”). The Ohio 

legislature chose the word “place,” which is even more expansive. 

Conclusion 

{¶ 23} For these reasons, we decline to follow the decision of the First District in 

Finnegan, 8 Ohio App.3d 432, 457 N.E.2d 900. In our view, the reasonable and 

ordinary interpretation of the word “place,” as used in the definition of “land or premises” 

for purposes of criminal trespassing, includes a vehicle. We recognize that our decision 

is in conflict with Finnegan, which focused only on the term “premises” without regard to 

the fact that the definition of “land or premises” includes a “place” belonging to or 
-10-

controlled by another. 

{¶ 24} The State’s assignment of error is sustained. We conclude that the trial 

court erred in granting Gilbert’s motion for a judgment of acquittal regarding the criminal 

trespass charge on the basis that a public bus is not a “place” under the statutory definition 

of the offense. Nevertheless, this determination does not adversely affect the judgment 

of acquittal, because Gilbert cannot be twice placed in jeopardy. State v. Bistricky, 51 

Ohio St. 3d 157, 159, 555 N.E.2d 644 (1990); State v. Rac, 2019-Ohio-893, 124 N.E.3d 

878, ¶ 40 (2d Dist.). 

. . . . . . . . . . . . . 

TUCKER, P.J. and DONOVAN, J., concur. 

Copies sent to: 

Marc T. Ross 

Gary C. Schaengold 

Hon. Denise L. Moody