[Cite as State v. Dieker, 2022-Ohio-1260.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

TONYA M. DIEKER

Defendant-Appellant

:

:

:

:

:

:

:

:

:

:

Appellate Case No. 29242

Trial Court Case No. 2021-CRB-1813

(Criminal Appeal from

Municipal Court)

. . . . . . . . . . .

O P I N I O N

Rendered on the 15th day of April, 2022.

. . . . . . . . . . . 

STEPHANIE L. COOK, Atty. Reg. No. 0067101 & ANDREW D. SEXTON, Atty. Reg. No. 

0070892, Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, Appellate 

Division, 335 West Third Street, Room 372, Dayton, Ohio 45402

 Attorneys for Plaintiff-Appellee

 

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington 

Court House, Ohio 43160

Attorney for Defendant-Appellant

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

LEWIS, J.
-2-

{¶ 1} Defendant-Appellant Tonya M. Dieker appeals from her conviction for 

criminal trespass.

I. Facts and Course of Proceedings

{¶ 2} Elaine Lark, Dayton Police Officer Kenneth Webster, and Dieker testified 

regarding what happened on the evening of May 28, 2021, at the St. Vincent de Paul 

Gateway Woman and Family Shelter (“the Shelter”) located on West Apple Street in 

Dayton. Around 8:00 p.m., Dieker arrived at the Shelter with her dog. Trial Transcript 

(August 10, 2021) (“Tr.”), 7-8, 32-33. Elaine Lark, who was the second shift supervisor 

at the Shelter, began her shift that night at 9:00 p.m. Upon arriving for her shift, Lark 

was informed by the first shift supervisor that Dieker was at the Shelter and had her dog 

with her. Id. at 7. This was an issue because Dieker had been informed in December 

2020 that she was not allowed to bring her dog with her to the Shelter due to a dog bite 

incident. Id. at 33-34. 

{¶ 3} According to Lark, she approached Dieker on the evening of May 28th and 

asked her over ten times to remove her dog from the premises, but Dieker refused. Id.

at 9-10. Dieker testified, however, that she never spoke to Lark on the night of the 28th 

and that Lark was not even at the Shelter that evening. Id. at 40. Lark testified that she 

called the Dayton Police Department after Dieker repeatedly refused to leave the Shelter. 

Id. at 11. Dayton Police Officer Webster arrived at the Shelter shortly after 9:00 p.m. 

Id. at 19-20. He testified that he first had a conversation with Lark about why he had 

been dispatched there. Officer Webster then asked Dieker multiple times to leave the 
-3-

Shelter. But she refused and claimed that she was the owner of the Shelter. Officer 

Webster then handcuffed Dieker and took her and her dog to his police cruiser. At that 

time, Officer Webster discussed Dieker’s options with her and attempted to find solutions 

other than taking her to jail. For example, Officer Webster offered to drive Dieker to her 

parent’s house in Vandalia. They also discussed Dieker’s calling her sister to come pick 

up the dog. But Dieker made it clear that she would just return to the Shelter with the 

dog as soon as she could. Consequently, Officer Webster took Dieker to the police 

station and she ultimately went to jail. Id. at 20-26.

{¶ 4} Dieker was charged with criminal trespass, a fourth degree misdemeanor, in 

violation of R.C. 2911.21(A)(4). During an August 10, 2021 bench trial, she filed a 

Crim.R. 29 motion for acquittal at the end of the State’s case, which the court overruled. 

After the presentation of all the evidence, the trial court found Dieker guilty of criminal 

trespass and sentenced her to 30 days in jail. The court credited her with eight days 

served in jail and suspended the remaining 22 days on the condition of good behavior, 

which included a requirement that she could only return to the Shelter if she did not have 

her dog with her. The court stated that the fine and court costs also would be suspended. 

Tr. 50-52. On August 19, 2021, the court filed a Nunc Pro Tunc Sentencing Entry

memorializing its August 10th oral ruling. However, the docket entries state that, 

contrary to the trial court’s oral and written pronouncements, $70 of court costs were in 

fact paid out of the $154 bail deposit Dieker had made. Dieker timely filed a notice of 

appeal from her conviction.
-4-

II. Dieker’s Appeal Is Not Moot

{¶ 5} Initially, the State of Ohio contends that we should not consider Dieker’s 

assignments of error, because Dieker “lacks a ‘legally cognizable interest in the outcome’ 

thereby rendering the appeal moot.” Brief of Appellee, p. 4, quoting State v. Cohen, 2d 

Dist. Montgomery No. 28660, 2020-Ohio-5270, ¶ 4-6. According to the State, Dieker 

served her sentence voluntarily, no fine or probation was imposed, court costs were 

waived, and Dieker failed to argue any collateral disability resulting from her criminal 

trespass conviction. Brief of Appellee, p. 5.

{¶ 6} Dieker responds that her appeal is not moot, because: 1) the suspension of 

her remaining jail time was on the condition that she did not return to the Shelter with her 

service dog; 2) the eight days of jail time involuntarily served precluded a mootness 

finding; 3) the court costs were not actually waived and were paid from a partial refund of 

Dieker’s bail deposit; 4) she is suffering a collateral legal disability by not being able to 

use her service dog at the Shelter; 5) she has suffered a violation and loss of her civil 

rights; and 6) her appeal involves a matter of public or great interest. Reply Brief of 

Appellant, p. 4-5.

{¶ 7} When a defendant convicted of a misdemeanor offense voluntarily satisfies 

the imposed judgment, an appeal of the conviction is moot unless the judgment was 

served involuntarily or the “defendant * * * offer[s] evidence from which an inference can 

be drawn that * * * he will suffer some collateral legal disability or loss of civil rights 

stemming from [the] conviction.” State v. Golston, 71 Ohio St.3d 224, 226, 643 N.E.2d 

109 (1994). In Cleveland Heights v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 
-5-

N.E.2d 278, the Supreme Court examined whether an appeal is rendered moot when a 

misdemeanor defendant serves or satisfies his sentence. The Lewis Court explained 

that in determining whether an appeal is moot, courts should consider whether the 

misdemeanant 1) contested the charges at trial; 2) sought a stay of execution of the 

sentence for the purpose of preventing an intended appeal from being declared moot; 

and 3) appealed the conviction. Id. at ¶ 23.

{¶ 8} Here, Dieker involuntarily served eight days in jail, contested the criminal 

trespass charge at trial, and appealed her conviction. At the close of trial, the judge ruled 

that the remaining days of her 30-day sentence and both her fine and court costs would 

be suspended. It turns out, however, that Dieker was forced to pay court costs, contrary 

to both the trial court’s oral ruling and written sentencing entry. A review of the docket 

shows that court costs were paid out of Dieker’s bail deposit and then the remainder of 

the deposit was returned to Dieker. We cannot conclude that Dieker should have filed a 

stay to prevent this from happening, since there was no way for her to know that this was 

going to happen. Rather, Dieker did everything she was expected to do to preserve her 

right to have her conviction reviewed by this Court. Further, the condition that Dieker 

cannot take her dog with her to the Shelter arguably constitutes a collateral legal disability. 

{¶ 9} Based on a review of the record before us, we conclude that Dieker’s appeal 

is not moot. Therefore, we will address Dieker’s two assignments of error.

III. The State Presented Sufficient Evidence To Establish Each Element of The 

Offense of Criminal Trespass
-6-

{¶ 10} Dieker’s first assignment of error states 

THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT’S 

CRIM.R. 29 MOTION AS THE EVIDENCE PRESENTED WAS 

INSUFFICIENT TO FIND GUILT BEYOND A REASONABLE DOUBT IN 

VIOLATION OF HER RIGHTS TO DUE PROCESS AND A FAIR TRIAL 

UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION, AND ARTICLE 1, SECTIONS 10 AND 

16 OF THE OHIO CONSTITUTION.

{¶ 11} } Dieker contends that the trial court erred in overruling her Crim.R. 29 

motion. Crim.R. 29(A) provides, in part: “The court on motion of a defendant or on its 

own motion, after the evidence on either side is closed, shall order the entry of a judgment 

of acquittal of one or more offenses charged in the indictment, information, or complaint, 

if the evidence is insufficient to sustain a conviction of such offense or offenses.” A 

Crim.R. 29 motion challenges the legal sufficiency of the evidence. State v. Haggerty, 

2d Dist. Montgomery No. 24405, 2011-Ohio-6705, ¶ 19. “The 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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus.

{¶ 12} Dieker was charged with criminal trespass in violation of R.C. 

2911.21(A)(4), which provides that “[n]o person, without privilege to do so, shall do any 

of the following: * * * (4) Being on the land or premises of another, negligently fail or 
-7-

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.” R.C. 

2901.01(A)(12) defines “privilege” 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.” A privilege, once granted, can be revoked. City of 

Columbus v. Peoples, 10th Dist. Franklin No. 05AP-247, 2006-Ohio-1718, ¶ 32. 

{¶ 13} Dieker was asked several times by an authorized representative of the 

Shelter and by a police officer to remove her dog from the premises. Specifically, Lark 

testified as follows regarding her attempts to get Dieker to leave the Shelter:

Q: Tell me about the contact if you would?

A: When I came on shift, I just blatantly asked her, “Miss Dieker, you know 

you can’t have the dog on the premises. I’m going to have to ask you to leave.” 

I pretty much did that throughout the whole night. I tried to give chances.”

Tr. 9.

{¶ 14} Similarly, Officer Webster testified as follows regarding his attempts to get 

Dieker to leave the property voluntarily:

A: Yes, sir. I explained to Miss Dieker that shelter staff had requested 

that she leave the premises or her dog leave the premises.

Q: And how did she respond when you told her that?

A: She was not agreeable.

Q: Did you specifically ask her to leave with the dog?

A: Yes.

Tr. 21.
-8-

{¶ 15} Dieker conceded that she was informed more than five months earlier in 

December 2020 that her dog was no longer allowed on the Shelter’s premises due to an 

alleged biting incident. The testimony establishes that Dieker was notified by the agent 

of the Shelter and by a police officer to leave the premises, and she refused to leave. 

Any permission Dieker may have previously had to be at the Shelter with her dog was

revoked in December 2020, and this fact was reiterated to Dieker several times on the 

night of May 28, 2021. Consequently, the State presented sufficient evidence on each 

element of the offense of criminal trespass. R.C. 2911.21(A)(4). 

{¶ 16} Dieker contends that the trial court erred in overruling her Crim.R. 29 

motion, because R.C. 4112.02(G) precludes the Shelter from trespassing her from the 

Shelter’s premises. Dieker did not raise R.C. 4112.02 before the trial court, and we will 

not consider that argument here. Rather, Dieker centered her Crim.R. 29 motion around

the contention that there was no trespass, because Dieker was allowed to return to the 

Shelter once she removed her dog from the Shelter. According to counsel for Dieker, 

“her refusing to follow the rules is what participated [sic] her arrest not an actual trespass.” 

Tr. 30. Dieker refused to follow the rules of the Shelter, was previously informed that her 

dog was not allowed at the Shelter, and was asked to leave several times, but refused to 

do so. Contrary to Dieker’s argument, mere presence is not a defense to criminal 

trespass as presence upon the property of another without permission constitutes a 

crime. State v. Filkens, 11th Dist. Lake No. 88-L-13-134, 1989 WL 140155, *2 (Nov. 17, 

1989).

{¶ 17} Dieker’s first assignment of error is overruled.
-9-

IV. Dieker’s Conviction Was Not Against The Manifest Weight of the Evidence

{¶ 18} Dieker’s second assignment of error states 

THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY 

BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE, FIFTH AND FOURTEENTH AMENDMENTS, UNITED 

STATES CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO 

CONSTITUTION.

{¶ 19} A weight-of-the-evidence argument challenges the believability of the 

evidence and asks which of the competing inferences suggested by the evidence is more 

believable or persuasive. State v. Jones, 2d Dist. Montgomery No. 28179, 2019-Ohio2940, ¶ 13, quoting State v. Wilson, 2d Dist. Montgomery No. 2258, 2009-Ohio-525, ¶ 12. 

When evaluating whether a conviction is against the manifest weight of the evidence, an 

appellate court must review the entire record, weigh the evidence and all reasonable 

inferences, consider witness credibility, and determine whether, in resolving conflicts in 

the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage 

of justice that the conviction must be reversed and a new trial ordered.” State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 20} Dieker contends that the manifest weight of the evidence established that 

her “service dog had not been proven to have bitten anyone.” Brief of Appellant, p. 11. 

Dieker testified that in December 2020, someone alleged that her dog had bitten 
-10-

someone. She conceded that the woman who made the allegation had one dog bite. 

Tr. 42. Further, she was told at that time by a representative of the Shelter that her dog 

could not be on the Shelter’s property. Id. at 33-34. Upon the record before us, we 

cannot find that it was unreasonable for the Shelter to preclude Dieker from bringing her 

dog to the Shelter after the alleged dog biting incident. 

{¶ 21} Dieker also contends in this assignment of error that R.C. 4112.02’s 

prohibition against unlawful discriminatory practices applied to her situation. But as we 

noted above, Dieker failed to raise this argument at trial and we will not consider it here.

{¶ 22} The second assignment of error is overruled.

V. Conclusion

{¶ 23} Having overruled both of Dieker’s assignments of error, the judgment of the 

trial court is affirmed. 

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

TUCKER, P. J. and WELBAUM, J., concur. 

Copies sent to:

Stephanie L. Cook

Andrew D. Sexton

Steven H. Eckstein

Hon. Daniel G. Gehres