[Cite as State v. Ouyang,
2016-Ohio-5103.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 15CA35
vs. :
LI OUYANG, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
______________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Allen Vender, Ohio Assistant Public Defender,
Columbus, Ohio
Lisa A. Eliason, Athens City Law Director, and Tracy W. Meek, Assistant City Law Director,
Athens, Ohio
_________________________________________________________________
CRIMINAL APPEAL FROM MUNICIPAL COURT
DATE JOURNALIZED:7-15-16
ABELE, J.
{¶ 1} This is an appeal from an Athens County Municipal Court judgment of conviction
and sentence. A jury found Li Ouyang, defendant below and appellant herein, guilty of trespass
in violation of R.C. 2911.21(A). Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED LI OUYANG’S RIGHT TO
DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A
JUDGMENT OF CONVICTION FOR CRIMINAL TRESPASS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED LI OUYANG’S RIGHTS TO
DUE PROCESS AND A FAIR TRIAL WHEN, IN THE
ABSENCE OF SUFFICIENT EVIDENCE, IT ENTERED A
JUDGMENT OF CONVICTION FOR CRIMINAL TRESPASS.”
{¶ 2} Appellant is from China and is a Psychology PhD. candidate at the University of
Missouri. After finishing course work, she moved to Athens to be with her fiancé (a professor at
Ohio University) while she completed her dissertation. Apparently, the couple broke up
following a domestic violence incident that resulted in appellant's hospitalization. Also, some
indication exists in the record that appellant had been recently evicted. At sentencing, appellant
also informed the court that she suffers from gastritis, anxiety, depression and eats one meal
every two days.
{¶ 3} Around the time of the 2015 Ohio University commencement, several university
employees noticed that appellant spent entire days in a project room at the Academic Research
Center (ARC). After being observed sleeping in several places throughout the building, concerns
arose that she was actually living in the building. On July 2, 2015, Luanne Bowman, Chief
Administrative Officer for the College of Engineering, along with two Ohio University police
officers, confronted appellant. 1 Once they determined that appellant had no affiliation
whatsoever with the university as a student, faculty or staff member, she was informed that she
had to leave the building.
{¶ 4} Appellant reluctantly packed up her belongings and left, but was seen in ARC a
short time later. Bowman found appellant near vending machines in ARC and told her, once
1
This confrontation took place in a project room described as being filled with a large number of books, journal
articles and appellant’s personal effects.
ATHENS, 15CA35 3
again, that she had to leave the building. If not, she could be subject to arrest.
{¶ 5} Appellant then sent e-mails to several university faculty, including Dean of the
College of Engineering Richard Irwin, and sought permission to use the building. Dean Irwin did
not respond for several days, but later returned her e-mail, along with an attached letter, and
informed appellant that (1) she could not use the building, (2) she could not store personal
belongings in ARC, and (3) she had to remove her belongings by 5 PM that day.2
{¶ 6} After the 5 PM deadline, a member of the custodial staff again observed appellant in
the building. University police were called and arrested appellant. The following day, appellant
was again observed walking into ARC. Police were again called, but could not find appellant in
the building.
{¶ 7} A July 9, 2015 criminal complaint was filed that charged appellant with trespassing.
She pled not guilty and opted to represent herself. At her jury trial, a number of university
faculty and staff testified concerning these events. In her own defense appellant called Karen
Coschigano, an associate professor at the university, who testified that she unlocked the door to a
room for appellant to use on the evening July 2, 2015. Alie Guo, an assistant professor at the
university, also testified that he opened a door for appellant on July 6, 2015. Appellant’s theory
of the case is that, due to these professors unlocking doors for her and allowing her to study in
those rooms, she had permission to be in ARC and could not have trespassed.
{¶ 8} After hearing all the evidence and after a one-half hour period of deliberation, the
jury returned a guilty verdict. The trial court thereupon imposed a suspended thirty day jail
2
On July 6, 2015, appellant's suitcase was found hidden behind
a large air-duct.
ATHENS, 15CA35 4
sentence and ordered appellant to stay away from Ohio University property. This appeal
followed.
I
{¶ 9} We will consider the assignments of error in reverse order. In her second
assignment of error, appellant asserts that insufficient evidence supports the jury's verdict.
{¶ 10} When an appellate court reviews the sufficiency of the evidence, the inquiry
focuses primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt. State v. Thompkins, 78
Ohio St.3d 380, 386,
678 N.E.2d 541 (1997); State v. Jenks,
61 Ohio St.3d 259, 273,
574 N.E.2d
492 (1991). The standard of review is whether, after viewing the probative evidence and
inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational
trier of fact could have found all of the essential elements of the offense beyond a reasonable
doubt.
Jenks, supra at 273; State v. Issa,
93 Ohio St.3d 49, 66,
752 N.E.2d 904 (2001).
Reviewing courts are not to assess “whether the state's evidence is to be believed, but whether, if
believed, then the evidence against a defendant would support a conviction.” Thompkins,
78 Ohio
St.3d at 390, (Cook, J., concurring).
{¶ 11} With these principles in mind, we note that R.C. 2911.21 states in pertinent part:
“(A) No person, without 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 the offender is in violation of any such restriction or is
reckless in that regard[.]”
After our review of the entire record, we readily conclude that sufficient evidence was adduced at
ATHENS, 15CA35 5
trial to prove each element of this offense. On July 2, 2015, Luanne Bowman and the campus
police informed appellant that she could no longer be in ARC. She left, but returned later that
day. Bowman once again approached appellant and told her that she could not be in the building.
Shawn Osterman, Associate Dean for Research, met with appellant the same day and informed
her that she could not stay in the building “regardless of whose permission [she] got.”
{¶ 12} On July 7, 2015, the College of Engineering also sent appellant an e-mail along
with an attached letter that reiterated that appellant could not be in the building and had to remove
all of her personal possessions by 5 PM that evening. Nevertheless, a custodian and the arresting
police officer testified that appellant was observed inside the building after the deadline. This is
sufficient evidence for the jury to find her guilty of the offense.
{¶ 13} Appellant does not actually challenge any of the foregoing evidence, but instead
points to the testimony of Professors Coschigano and Guo who stated that although they knew that
appellant had no affiliation with the university, they unlocked doors for her in ARC so that she
could study. This, appellant concludes, gave her a “privilege” to be in the building and, thus, she
could not have trespassed. In support of her theory, appellant cites Columbus v. Parks, 10th Dist.
Franklin No. 10AP-574, 2011-Ohio-2164, in which the Franklin County Court of Appeals
reversed a trial court judgment and found that the accused had a “privilege” to be in an apartment
complex when invited by a tenant, despite having the property owner's security force issue a
trespass warning. We believe, however, that her reliance on this case is misplaced.
{¶ 14} The rationale for the Parks ruling is as follows:
“Although the parties stipulated that Officer Rogers, as an agent of the property
owner, had previously given Parks notice that he was not permitted on the
premises, prior warnings by an owner of rental property, or the owner's agent, do
ATHENS, 15CA35 6
not preclude a finding of privilege. Ohio courts have held that an individual
invited onto rental property by a tenant cannot be guilty of trespassing on the
owner's premises even if the owner expressly instructed the individual not to come
onto the property. See Hermann; Hites (“an owner of an apartment complex
cannot prohibit guests, invited by the tenant, from being present on the property”).
These holdings stem from the rationale that trespass is an invasion of the
possessory interest in property, which a property owner sacrifices to a tenant,
rather than an invasion of title.”
The outcome in Parks was as much dictated by the law of property, specifically landlord-tenant
law, as the law of trespass. There is no analogous relationship here. In fact, the situation here is
more analogous to that of a child being told “no” by one parent and then going to the other parent
hoping to hear “yes,” but not telling second parent what the first had said. Indeed, although
Professors Coschigano and Guo were aware that appellant was not affiliated with the university in
any way, she did not bother to share with them the fact that several people told her to leave ARC.
In particular, Guo testified that he would not have opened a room for appellant if he had known
that she had been banned from the building.
{¶ 15} We also hasten to add that Professor Coschigano opened a room for appellant on
July 2nd and Professor Guo unlocked a door for appellant on July 6th. Both of these events
pre-date Dean Irwin's July 7th e-mail and letter that explicitly stated that appellant could no longer
use the building and that all her personal possessions had to be removed from ARC by 5 PM that
day. Whatever privilege appellant may have arguably imagined that she had conveyed to her by
Professors Coschigano and Guo, she was nevertheless put on notice by Dean Irwin that it had
been revoked.
{¶ 16} For these reasons, we find no merit to appellant's second assignment of error and it
is hereby overruled.
ATHENS, 15CA35 7
II
{¶ 17} We now turn to appellant’s first assignment of error wherein she asserts that her
conviction is against the manifest weight of the evidence. Here again, the crux of appellant's
argument is that although the College of Engineering told her to leave the building, two College of
Medicine faculty members gave her permission. We, however, reject this argument for the same
reasons that we discussed under her second assignment of error.
{¶ 18} Here, the evidence reveals that the two professors from the College of Medicine
(Coschigano and Guo) were not aware that their Engineering colleagues had informed appellant
that she could not use, or be located in, the building. Bowman and campus police had already
informed appellant that she could not be in the building and would be subject to arrest if she
returned. More importantly, Dean Irwin sent appellant an e-mail and letter that very clearly
stated that she could not be in ARC.
{¶ 19} In considering a claim that a conviction is against the manifest weight of the
evidence, appellate courts will review the record, weigh the evidence, as well as all reasonable
inferences to be taken therefrom, and determine whether the jury 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. Beverly, 143 Ohio St.3d 258,
2015-Ohio-219,
37 N.E.3d 116, ¶17; State v.
Hunter,
131 Ohio St.3d 67,
2011-Ohio-6524,
960 N.E.2d 955, ¶119.
{¶ 20} We are very sympathetic concerning the events that have apparently transpired in
appellant’s personal life. We are also aware that English is not her native language, and could
have caused some degree of difficulty during the trial court proceedings. Nevertheless, we find
no manifest miscarriage of justice in this case. Our review of the record indicates that ample
ATHENS, 15CA35 8
competent, credible evidence was adduced during the trial that supports the conclusion that
appellant committed the trespass violation. Appellant was repeatedly told that she could not be
in ARC, but she refused to accept and abide by that directive.
{¶ 21} Accordingly, we hereby overrule appellant's first assignment of error and affirm the
trial court's judgment.
JUDGMENT AFFIRMED.
ATHENS, 15CA35 9
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County
Municipal Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
[Cite as State v. Ouyang, 2016-Ohio-5103.]
