[T]he State presented sufficient evidence on each element of the offense of criminal trespass.


State v. Dieker

2022 – Ohio – 1260

Second District Appellate Court

Montgomery County, Ohio

April 15, 2022

On the evening of Friday May 28, 2021, at the St. Vincent de Paul Gateway Women and Family Shelter located at 120 West Apple Street in Dayton. Around, 8:00 p.m., Ms. Tonya Dieker arrived at the Shelter with her dog. Ms. 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, Ms. Lark was informed by the first shift supervisor that Ms. Dieker was at the Shelter and had her dog with her. This was an issue because Ms. 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.

Ms. Tonya Dierker, a homeless woman arrived at the St. Vincent de Paul Gateway Women and Family Shelter at 120 West Apple Street in Dayton, Ohio with her dog.  Ms. Dierker was welcomed back to the shelter but not her dog.  The shelter supervisor and later Dayton Police Officer Kenneth Webster both provided repeated warnings to leave.  Ms. Dierker refused and was arrested.  Would the appellate court uphold Ms. Dierker’s Criminal Trespass conviction?

According to Ms. Lark, she approached Ms. Dieker on the evening of May 28th and asked her over ten times to remove her dog from the premises, but Ms. Dieker refused. Ms. Dieker testified, however, that she never spoke to Ms. Lark on the night of the 28th and that Ms. Lark was not even at the Shelter that evening. Ms. Lark testified that she called the Dayton Police Department after Ms. Dieker repeatedly refused to leave the Shelter. Dayton Police Officer Kenneth Webster arrived at the Shelter shortly after 9:00 p.m. He testified that he first had a conversation with Ms. Lark about why he had been dispatched there. Officer Webster then asked Ms. Dieker multiple times to leave the Shelter. But she refused and claimed that she was the owner of the Shelter. Officer Webster then handcuffed Ms. Dieker and took her and her dog to his police cruiser. At that time, Officer Webster discussed Ms. Dieker’s options with her and attempted to find solutions other than taking her to jail. For example, Officer Webster offered to drive Ms. Dieker to her parents’ house in Vandalia. They also discussed Ms. Dieker’s calling her sister to come pick up the dog. But Ms. Dieker made it clear that she would just return to the Shelter with the dog as soon as she could. Consequently, Officer Webster took Ms. Dieker to the police station and she ultimately went to jail.

Ms. Dieker was charged with Criminal Trespass, a fourth-degree misdemeanor, in violation of O.R.C. § 2911.21(A)(4). After the presentation of all the evidence, the trial court found Ms. Dieker guilty of criminal trespass and sentenced her to 30 days in jail. Her sentence included a requirement that she could only return to the Shelter if she did not have her dog with her. Ms. Dieker timely filed a notice of appeal from her conviction. Ms. Dierker’s appealed her conviction on the premise that the State of Ohio did not prove that she violated the Criminal Trespass statute: O.R.C. § 2911.21(A)(4) – Criminal Trespass states “No person, without privilege to do so, shall do any of the following … Being on the … premises of another … refuse to leave upon being notified by … the agent.”.


Ms. 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 Ms. 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 Ms. Dieker may have previously had to be at the Shelter with her dog was revoked in December 2020, and this fact was reiterated to Ms. 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.

Lessons Learned:

  1. Dierker had made a lifetime of decisions that resulted in her being homeless. On Friday May 28, 2021 she was reminded, repetitively by both the homeless shelter supervisor Ms. Elaine Lark and Dayton Police Officer Webster, that she was not permitted to bring her dog to the shelter.  However, Ms. Dierker was unable to heed these repeated warnings, was arrested and taken to jail.  She fought the charge in court, the trial judge convicted her and now the Second District Appellate Court upheld the conviction.  Legally, Ms. Dierker had what is called a Simple License to stay at the homeless shelter.  A Simple License can be revoked by the grantor or his agent. [see Blacks Law Dictionary, 919 – 920 (6thed. 1990).  In this case Ms. Lark was the agent of the homeless shelter and had the authority to withdraw Ms. Dierker’s Simple License.
  2. Law enforcement should be cautioned on authority when charging a person with Criminal Trespass. In this case, the homeless shelter was not under the authority of the City of Dayton, rather it is owned and operated by St. Vincent DePaul.  Since it is not owned by the City of Dayton, Dayton Police cannot be the agent.  In this case both Ms. Lark and Officer Webster were lawful in their respective actions.  Lark repeatedly told Ms. Dierker to leave – legally revoking her Simple License to remain on the property.  Thereafter, Ms. Dierker was told by Ms. Lark in front of Officer Webster to leave the shelter.  At that moment Ms. Dierker refused, Officer Webster established probable cause to arrest Ms. Dierker for Criminal Trespass.  However, Officer Webster went above and beyond his legal duties and provided her many more opportunities to leave without arrest.  Unfortunately, Ms. Dierker would not be reasonable.  Law enforcement officers, such as Officer Webster, spend careers trying to be reasonable with unreasonable people.
  3. To contrast the last paragraph, if this homeless shelter was owned and operated by the City of Dayton, then Officer Webster would have had the authority to revoke Ms. Dierker’s Simple License. Of course, law enforcement or any other city official must have a just cause to eject someone from city property.  But this legal nuance is important to review – most especially when law enforcement may criminally charge a person for Criminal Trespass.

Does your agency train on Criminal Trespass?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.