2016 Ohio 5045
Ohio Ct. App.2016Background
- Marianne Peirano, sole titled owner of 545 Rocky Fork Ct., separated from husband and moved to Florida while divorce was pending; husband remained at the former marital residence.
- Mortgage payments lapsed and a foreclosure/sheriff's sale was scheduled for the property.
- Peirano allegedly visited the property and was indicted by a grand jury for burglary under R.C. 2911.12 (trespass in a habitation).
- Defense moved to dismiss under Crim.R. 12(C), arguing Peirano could not criminally trespass on property she solely owned and presented deeds and domestic-relations materials.
- Trial court held a pretrial proceeding, made factual findings, and dismissed the indictment, concluding Peirano retained a residual right to enter as the titled owner.
- State appealed; the appellate court affirmed dismissal, overruling the State’s single assignment of error; one judge dissented arguing the dismissal involved factual issues not suitable for resolution pretrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a sole titled owner can be criminally trespasser/commit burglary by entering her own property while an estranged spouse resides there | State: indictment sufficiently charges burglary; trial court improperly resolved factual issues pretrial and went beyond indictment face | Peirano: as sole owner with no court order excluding her, she retained the right to enter and cannot be "on the premises of another" for trespass/burglary | Court affirmed dismissal: owner cannot be guilty of trespass/burglary under these facts; trial court properly made findings and dismissed indictment |
Key Cases Cited
- State v. Davis, 116 Ohio St.3d 404 (Ohio 2008) (plain-error test requiring error that is obvious and affecting substantial rights)
- State v. Link, 155 Ohio App.3d 585 (Ohio App. 5th Dist. 2003) (addressing procedural posture when state fails to raise certain objections)
- State v. Certain, 180 Ohio App.3d 457 (Ohio App. 4th Dist. 2009) (permitting pretrial resolution where the state actively participated and facts were stipulated)