Caseflicks

Ohio Court of Appeals • 1986

State v. Otten

515 N.E.2d 1009 | 33 Ohio App. 3d 339 | 1986 Ohio App. LEXIS 10283

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Takeaway

In short, this case holds that a nursing-home resident’s visitation right does not give a visitor an unconditional privilege to remain when no reasonable request was made to facility management and staff reasonably act to protect the resident’s health.

Background

Otten, an AFSCME employee, was assigned to represent Cindy Stouffer, a Wayne County Care Center employee charged with abusing resident Delbert Hill. Before Stouffer’s pre-disciplinary hearing, two nurse aides told Otten that Hill wanted to make a statement for Stouffer. During visiting hours, Otten and Stouffer’s husband went to Hill’s room.

Care-center staff, concerned about Hill’s fragile condition, told Otten to leave. The Director of Nursing first instructed him to leave, and the administrative assistant repeatedly did so after Otten questioned her authority. Otten refused to leave until a county employee escorted him from the room. Hill did not tell management that he had requested Otten’s visit, ask that the meeting continue, or object to Otten’s removal.

After a bench trial, the trial court convicted Otten of fourth-degree-misdemeanor criminal trespass under R.C. 2911.21(A)(4), which prohibits negligently failing or refusing to leave another’s premises after notice from the owner, occupant, or their agent. The court imposed a $200 fine and two days in jail. Otten appealed, challenging the basis for the order to leave, the finding that he negligently refused to leave, and the sentence.

Issues

Issue #1

Whether Otten had a privilege to remain in Hill’s room after care-center personnel directed him to leave.

Holding

No. Otten had no privilege to remain, and the care center’s agents were justified in ordering him to leave.

Reasoning

A conviction under R.C. 2911.21(A)(4) required proof that Otten was on another’s premises without privilege and negligently failed or refused to leave after notice. Although his initial entry was not disputed, Otten argued that Hill’s alleged request to meet gave him a privilege to stay. Ohio defines privilege to include a right or license conferred by law, express or implied grant, status, relationship, or necessity.

Otten relied on R.C. 3721.13(A)(20)(c), which gives nursing-home residents a right, on reasonable request, to private visits at reasonable hours. That right can create a visitor’s privilege in appropriate circumstances, but the statute requires that the resident first make a reasonable request. This prerequisite permits facility officials to assess, including through consultation with a physician, whether a visit is medically advisable.

The evidence did not establish that Hill made a request to care-center management for a visit with Otten. The nurse aides’ testimony that Hill asked to see Otten was admitted only to show Otten’s belief that Hill wanted a meeting, not to prove that Hill made such a request. Neither aide informed management, and Hill neither confirmed the request to management nor objected when staff removed Otten.

The court also balanced Hill’s visitation interests against the care center’s statutory duty to provide adequate and appropriate medical treatment. Hill had recently come from a cardiac unit and had suffered a fall. Staff described him as critically ill, upset, ashen, and scared when Otten entered. On this record, staff reasonably acted to protect Hill’s health, so their orders that Otten leave were justified.

Issue #2

Whether the evidence supported the finding that Otten negligently failed or refused to leave after being notified to do so.

Holding

Yes. Otten’s continued refusal to leave after repeated instructions was criminal negligence under R.C. 2901.22(D).

Reasoning

Criminal negligence exists when a person, through a substantial lapse from due care, fails to perceive or avoid a risk that conduct may have a prohibited result or may occur under prohibited circumstances. Here, the Director of Nursing instructed Otten to leave, and the administrative assistant repeatedly gave the same instruction. Otten’s own witness corroborated that these orders were made.

Because Otten had no privilege to remain, he was required to leave when first directed to do so. Instead, he questioned the administrative assistant’s authority and stayed until another employee physically escorted him out. The trial court could reasonably find that this conduct was a substantial lapse from due care, and the appellate court concluded that the conviction was neither contrary to law nor against the manifest weight of the evidence.

Issue #3

Whether the $200 fine and two-day jail sentence constituted an abuse of discretion.

Holding

No. The sentence was within the statutory range, and the trial court did not clearly abuse its discretion.

Reasoning

Criminal trespass under R.C. 2911.21 is a fourth-degree misdemeanor. The authorized maximum punishment was thirty days’ imprisonment and a $250 fine. Otten’s sentence of two days in jail and a $200 fine fell below both limits.

An appellate court ordinarily will not disturb a misdemeanor sentence absent a clear abuse of discretion. Nothing in the record showed that the trial court acted unreasonably, arbitrarily, or unconscionably in imposing this comparatively limited sentence.