Officer Jagger’s bodycam video also shows Ms. Choudri’s stated purpose for trying to reenter the home was because she had to use the restroom, not because she was attempting to inspect or repair the hot water tank as the landlord.

 

State v. Choudri

2023 – Ohio – 4476

Third District Appellate Court

Marion County, Ohio

December 11, 2023

 

The Problem Begins with a Broken Hot Water Tank

Although she lived in New York, Ms. Maryum Choudri was the landlord for a house located at 507 Silver Street in Marion, Ohio. Mr. William Brammer (“Mr. Brammer”) was the tenant. In or around September of 2021, Mr. Brammer complained to Ms. Choudri that the hot water tank at the house was broken. Ms. Choudri told Mr. Brammer to arrange for someone to fix it and then she would wire money for the repair.

Ms. Maryum Choudri and Mr. William Brammer were landlord – tenant.  Ms. Choudri attempted to force her way into the home she owned at 507 Silver Street in Marion, Ohio to use the restroom.  Was this lawful entry?  Was this a civil dispute?  Was this a criminal violation? [Cat not pictured.]

From New York to Marion – The First Entry and a Physical Altercation

On Wednesday December 29, 2021, after not hearing anything further from Mr. Brammer and not receiving rent, Ms. Choudri decided to visit the rental property for the first time. Although she was unsuccessful in notifying Mr. Brammer of her intended visit, she left her home in New York and drove to the rental property in Marion, Ohio. Significantly, Ms. Choudri made two separate entries into the house on that day. Regarding the first entry, she gained admittance into the residence and spoke with Mr. Brammer about the hot water tank. At some point thereafter, a physical altercation ensued between Ms. Choudri and Mr. Brammer, after which she exited the house. The details of the first entry—including whether Mr. Brammer had invited Ms. Choudri into the house, why the physical altercation happened, whether Ms. Choudri touched or grabbed Mr. Brammer, and whether she was thrown down the front porch stairs by Mr. Brammer— involved disputed evidence at trial.

A Full Bladder Prompted the Second Entry

Before the second entry, Ms. Choudri called 911 multiple times. In response to the 911 calls, Officer Dana Jagger of the Marion City Police Department (“Officer Jagger”) came to the house. As Officer Jagger approached the house, she saw Ms. Choudri on the front porch kicking the front door. As shown on Officer Jagger’s bodycam video (which was played during the trial and admitted into evidence as State’s Exhibit 1), Ms. Choudri told Officer Jagger she owned the house and Mr. Brammer had thrown her down the porch stairs in front of the house. Officer Jagger instructed Ms. Choudri to come to another location in the front yard so they could talk outside the presence of Mr. Brammer (who came onto the porch once Officer Jagger arrived). However, Ms. Choudri responded to Officer Jagger’s instruction by walking back onto the porch saying, “I have to use the restroom, I’m gonna go in my home and use that.” At that point, Mr. Brammer was standing in the doorway, blocking entry to the house, and closing the door, all while repeatedly saying he did not want Ms. Choudri to come into his house.

Mr. Brammer Claimed Ms. Choudri was a Slum Landlord, Broke his Phone, Threw His Cat Out of the House and Punched Him in the Nose

While Officer Jagger was continuously instructing Ms. Choudri to stop, Ms. Choudri touched Mr. Brammer and pushed past him to get into the house. Upon entering the house, Officer Jagger told Ms. Choudri she would be put into handcuffs, to which Ms. Choudri responded, “Okay, fine.” After Ms. Choudri continued through the front room of the house, she was stopped by Officer Jagger and a second police officer. A struggle ensued, with the officers eventually bending Ms. Choudri over a table in the front room to handcuff her. Once Ms. Choudri had been removed from the house by other officers, Mr. Brammer told Officer Jagger on her bodycam video that Ms. Choudri was a “slum landlord”; he refused to pay rent until she fixed the hot water; Ms. Choudri owns the house but did not belong there and did not live there; Ms. Choudri had kicked his front door and—while he pointed to the ground in the entranceway—she had just damaged his phone; and, during the first entry, Ms. Choudri had physically thrown his cat out of the house and punched him in the nose.

Indictment, Trial, Conviction, and Sentencing

On January 5, 2022, Ms. Choudri was indicted on three counts: (1) Aggravated Burglary in violation of O.R.C. 2911.11(A)(1); (2) Burglary in violation of O.R.C. §2911.12(A)(2); and (3) Obstructing Official Business in violation of O.R.C. §2921.31(A).Regarding Counts 1 and 2, the Indictment stated:

Count One Aggravated Burglary – F1 O.R.C. §2911.11(A)(1), §2911.11(B)

Defendant Maryum Ms. Choudri
Date of Offense On or about December 29, 2021

did, by force, stealth, or deception, trespass, as defined in section §2911.21(A)(1) of the Revised Code, in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when Tina Frost [Mr. Brammer’s daughter] and William Mr. Brammer, a person other than the accomplice, was present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, to wit: Criminal Damaging, O.R.C.  §2909.06(A)(1), and the offender inflicted, or attempted or threatened to inflict physical harm on William Mr. Brammer.

Count Two Burglary – F2 O.R.C. §2911.12(A)(2), §2911.12(D) Defendant Maryum Ms. Choudri
Date of Offense On or about December 29, 2021 did, by force, stealth, or deception, trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent or temporary habitation of any person when any other person, not the accomplice of the offender was present or likely to be present, with purpose to commit in the habitation any criminal offense, to wit: Criminal Damaging, O.R.C. §2909.06(A)(1). (Indictment).

Ms. Choudri’s Counsel Claims She Had the Right to Enter

The matter proceeded to a three-day jury trial starting on November 1, 2022. Both parties discussed Ms. Choudri’s second entry into the home during opening statements. Ms. Choudri’s counsel told the jury that: Mr. Brammer tried to keep Ms. Choudri from walking back into the house; Ms. Choudri was trying to avoid Mr. Brammer and get through the house so she could use the bathroom to urinate; Mr. Brammer dropped his phone and it fell to the porch; and “[A]ll that’s gonna be in evidence for you to see.”.  Ms. Choudri’s counsel also said the following during opening statements: “At all points in time, Miss Ms. Choudri had privilege to be there, had a duty to be there by law, because she’s the landlord that has to fix things,” she “[N]ever trespassed on the property,” and she “never committed any criminal offenses inside the property.”

Mr. Brammer Testifies

The State called Mr. Brammer as a witness during its case-in-chief. Regarding the first entry, he testified that Ms. Choudri knocked on the front door, he opened it, and she shoved her way into the house. According to Mr. Brammer, he did not invite her into the house. Regarding the second entry, Mr. Brammer testified that, after the police showed up, Ms. Choudri tried to force her way back into the house. Mr. Brammer testified a “brawl” ensued between Ms. Choudri and the police, and “[T]hat’s when she broke my phone.” He also testified that his front room was torn up—including a table and chair being broken—when Ms. Choudri struggled with police officers.

Ms. Choudri was Found Guilty of Tresspass-in-a-Habitation

Ms. Choudri then made a motion under Rule 29 for the entire case to be dismissed, arguing there was no trespass because Ms. Choudri had a privilege to be in the house. The trial court denied the motion. Following the close of Ms. Choudri’s case and closing arguments, the trial judge gave the jury instructions, including instructions on trespass-in-a-habitation as a lesser-included offense for Count 2, a landlord’s statutory obligations as delineated in O.R.C. §5321.04(A), and privilege to enter upon the property under certain circumstances. The jury found Ms. Choudri not guilty of aggravated burglary, burglary, and obstructing official business. However, the jury found Ms. Choudri guilty of the lesser-included offense of trespass-in-a- habitation, in violation of O.R.C. §2911.12(B), a fourth-degree felony. The trial court sentenced Ms. Choudri to 18 months of community control, subject to the general supervision of the Adult Probation Department. This appeal followed.

Ms. Choudri Appeal is Based on a Need to Fix the Hot Water Tank

Ms. Choudri filed her notice of appeal with the trial court on December 20, 2022. In her first assignment of error, Ms. Choudri argues the trial court erred in denying her Crim.R. 29 motion. She contends the State failed to present sufficient evidence to support a conviction for trespass-to-a-habitation. According to Ms. Choudri, due to her “non-delegable duty as a landlord, she held a valid privilege to be present at the property to inspect and/or repair the issues with Mr. Mr. Brammer’s hot water heater,” and “the State failed to provide evidence sufficient to overcome Ms. Ms. Choudri’s privilege to be present on the property for purposes of repairs that would warrant a conviction for trespass” to a habitation. Through her argument, she implies that her being the landlord for the property also granted her the privilege to use the bathroom.

Trespass-in-a-Habitation O.R.C. §2911.12(B)

The statute prohibiting trespass-in-a-habitation states: “No person, by force … shall trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.” O.R.C. §2911.12(B). Thus, unlike burglary, trespass-in-a-habitation does not require the State to prove the defendant acted “with purpose to commit in the habitation any criminal offense.” O.R.C. §2911.12(A)(2).

Force O.R.C. §2901.01(A)(1) and Trespass O.R.C. §2901.01(A)(12)

Force is defined as “any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.” O.R.C. §2901.01(A)(1). One way a person can commit a “trespass” is by “[k]nowingly enter[ing] or remain[ing] on the land or premises of another,” “without privilege to do so.” O.R.C. §2911.21(A)(1). And, “‘[p]rivilege’ means 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.” O.R.C. §2901.01(A)(12).

Doctrine of Privilege Established Case Law

A person’s privilege to enter or remain on the land or premises of another can be revoked or terminated. State v. Bryant, 2022-Ohio-418, ¶ 9 (affirming conviction for criminal trespass). “[W]hile a person’s presence at the property may be initially lawful, it can, nonetheless, morph into trespass if that privilege is revoked or terminated.” citing State v. Petefish, 2011-Ohio-6367, ¶ 22.

Landlords Statutory Obligation … Excludes Cat Throwing

A landlord has various obligations, including to “[M]ake all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition.” O.R.C. §5321.04(A)(2). However, another obligation is that, “[E]xcept in the case of emergency or if it is impracticable to do so, [the landlord shall] give the tenant reasonable notice of the landlord’s intent to enter and enter only at reasonable times.” O.R.C. §5321.04(A)(8). “Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.” Id.; see also Spencer v. Blackmon, 22 Ohio Misc.2d 52, 53, 490 N.E.2d 943 (M.C. 1985) (any “emergency” under the statute must be a “bona fide emergency”).

Ms. Choudri’s Feeble Appeal

Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements for trespass-in-a-habitation proven beyond a reasonable doubt against Ms. Choudri. Specifically, the evidence in the State’s case-in-chief—including State’s Exhibit 1 (Officer Jagger’s bodycam video)—showed that Ms. Choudri, by force, trespassed in a permanent or temporary habitation of another person (Mr. Brammer’s home) when a person other than an accomplice was present (Mr. Brammer) and she knowingly entered the premises (Mr. Brammer’s home) without privilege to do so. O.R.C. §2911.12(B).

Ms. Choudri’s Right to Enter Excluded Use of the Restroom

As shown above, the focus of Ms. Choudri’s argument on appeal is the assertion she held a valid privilege to go into the house and the State did not provide sufficient evidence to overcome that privilege. We disagree with Ms. Choudri. Even if we assume Ms. Choudri initially held a valid privilege to make the first entry into the house (based on Ms. Choudri’s assertions that Mr. Brammer invited her into the house and/or she was there as the landlord to inspect or repair the hot water tank), any such privilege does not apply to the second entry. First, Mr. Brammer clearly revoked any privileges he may have provided. Officer Jagger’s bodycam video shows Mr. Brammer closing the door to the home and blocking the entrance—all while repeatedly saying he did not want Ms. Choudri to come into the house. Second, Officer Jagger’s bodycam video also shows Ms. Choudri’s stated purpose for trying to reenter the home was because she had to use the restroom, not because she was attempting to inspect or repair the hot water tank as the landlord.

Ms. Choudri’s Unreasonable Notice

Additionally, Ms. Choudri never provided Mr. Brammer with “reasonable notice of [her] intent to enter” the house, as required by O.R.C. §5321.04(A)(8), and she does not attempt to argue an exception to that requirement applied. The “reasonable notice” requirement also demonstrates that a landlord does not have an absolute right to enter the house whenever he or she wants. O.R.C. §5321.04(A)(8).

Ms. Choudri Maintains Her Civil Remedy to Sue Mr. Brammer

Ms. Choudri also cites O.R.C. §5321.04(B), which provides tenants with a civil remedy for a landlord’s violating O.R.C. §5321.04(A)(8), and argues it was error to find her guilty when “there exists adequate civil remedies for the purported violation.” However, simply because Mr. Brammer may have the ability to file a civil action against Ms. Choudri and recover financial damages for her conduct does not necessarily preclude the State from bringing criminal charges against Ms. Choudri for the same conduct.

Ms. Choudri’s Counsel Incorrectly Quotes Dicta

To support her argument, Ms. Choudri quotes from a Twelfth District opinion: “[C]riminal trespass statutes do not afford a substitute for other adequate civil remedies for trespass.” State v. Hohman, 14 Ohio App.3d 142, 143, (12th Dist.1983). However, in addition to the fact Hohman did not involve any charge except criminal trespass, that case is distinguishable because it arose from a criminal complaint filed by a private citizen (not an indictment issued by a grand jury). The appellate court in Hohman found the State had failed to show proof beyond a reasonable doubt that the defendant was without privilege to be at a nursing home (the premises at issue) because evidence indicated several nursing home residents had requested his presence there. The quote relied on by Ms. Choudri was dicta from the appellate court, used to express its disapproval for what it found “was not an appropriate remedy for the situation presented.”

Holding

Ms. Choudri’s first assignment of error is overruled.

Ms. Choudri filed two additional appeals, and both were also denied.  Those additional appeals are not evaluated in this article.

Information for this article was obtained from State v. Choudri, 2023 – Ohio – 4476.

State v. Choudri, 2023 – Ohio – 4476 was issued by the Third District Appellate Court on December 11, 2023 and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.

Lessons Learned:

  1. Trespass-in-a-Habitation“No person, by force … shall trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.” O.R.C. §2911.12(B). In this case Ms. Choudri was convicted of this rarely used statute.  Though she was indicted and tried on more serious charges of Aggravated Burglary, Burglary and Obstructing Official Business she was convicted of Trespass-in-a-Habitation.
  2. Landlord’s Right to Enter Rental Property – “[E]xcept in the case of emergency or if it is impracticable to do so, [the landlord shall] give the tenant reasonable notice of the landlord’s intent to enter and enter only at reasonable times.” O.R.C. §5321.04(A)(8). One court has determined that twenty-four hours is ‘reasonable notice’. “Twenty-four hours is presumed to be a reasonable notice in the absence of evidence to the contrary.” Id.; see also Spencer v. Blackmon, 22 Ohio Misc.2d 52, 53, 490 N.E.2d 943 (M.C. 1985) (any “emergency” under the statute must be a “bona fide emergency”).  At no time did Mr. Brammer or Ms. Choudri claim that her entry to 507 Silver Street in Marion, Ohio was based on an emergency.
  3. Civil or Criminal Violation of Law? Law enforcement often have to make quick decisions as to whether the dispute is civil or if there are criminal violations. In this case Marion Police Officer Dana Jagger did exceptional work to quickly evaluate the situation and determine that this much more than a Landlord-Tenant dispute.  Officer Jagger acted quickly and lawfully to stop what was most likely a felony in progress.  Even though the jury determined Ms. Choudri’s actions were only a misdemeanor, the evaluation of the crime in progress was properly made by Officer Jagger.  Well done Officer Jagger!

Does your agency train on Landlord-Tenant Disputes?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.