State v. Haley ( 2014 )


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  • [Cite as State v. Haley, 2014-Ohio-2515.]
    COURT OF APPEALS
    COSHOCTON COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    JUDGES:
    STATE OF OHIO                                 :       Hon. William B. Hoffman, P.J.
    :       Hon. W. Scott Gwin, J.
    Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
    :
    -vs-                                          :
    :       Case No. 2014CA0002
    THOMAS J. HALEY                               :
    :
    Defendant-Appellant      :       OPINION
    CHARACTER OF PROCEEDING:                          Criminal appeal from the Coshocton
    Municipal Court, Case No. CRB1300771
    JUDGMENT:                                         Affirmed
    DATE OF JUDGMENT ENTRY:                           June 9, 2014
    APPEARANCES:
    For Plaintiff-Appellee                            For Defendant-Appellant
    CHRISTIE M.L. THORNSLEY                           JEFFREY MULLEN
    760 Chestnut Street                               239 N. Fourth Street
    Coshocton, OH 43812                               Coshocton, OH 43812
    JAMES R. SKELTON
    318 Chestnut Street
    Coshocton, OH 43812
    [Cite as State v. Haley, 2014-Ohio-2515.]
    Gwin, J.
    {¶1}     Defendant-appellant Thomas J. Haley [“Haley”] appeals his conviction and
    sentence after a bench trial in the Municipal Court of Coshocton County on one count of
    criminal trespass in violation of R.C. 2911.21(A)(1).
    Facts and Procedural History
    {¶2}     On November 14, 2013, Melanie Erman was in the dining room of her
    home. Upon turning around, she was startled to see Haley standing in her home. Ms.
    Erman testified that she did not hear Haley knock before entering her home; however if
    he had her dog would have barked. Ms. Erman testified Haley had been to her home
    before; however, he was never given permission to enter her home without knocking.
    When Ms. Erman asked Haley how he got in her house, Haley stated that he had
    entered through the back door. Ms. Erman stated that a four-foot privacy fence enclosed
    her back yard. Ms. Erman further stated that because of the privacy fence, people do
    not enter her home through the back door.
    {¶3}     Ms. Erman testified that Haley and her husband had been into an
    altercation approximately six months before this incident. The sheriff's office responded
    to the residence. No one was arrested, but both Ms. Erman's husband, James, and the
    Sheriff's deputy advised Haley he was no longer permitted at the Erman's home.
    {¶4}     In the case at bar, Ms. Erman told Haley to leave. Haley responded with a
    request to use the telephone. Ms. Erman consented. Haley made a telephone call and
    no one appeared to answer. When he hung up the phone, Ms. Erman repeated that
    Haley had to leave the home. Haley asked if he could use the telephone to call a cab.
    Ms. Erman allowed him to make this second telephone call but advised him he would
    Coshocton County, Case No. 2014CA0002                                                 3
    have to wait for the cab outside. Haley made the second telephone call and then left the
    residence. Shortly thereafter, Ms. Erman received a telephone call. The caller advised
    that the sheriff's office was looking for Haley.
    {¶5}   Ms. Erman did not call the Sheriff’s Office or file a criminal complaint.
    Sheriff’s deputies came to her home, interviewed her about the incident. Haley was then
    charged with criminal trespass.
    Assignment of Error
    {¶6}   Haley raises one assignment of error,
    {¶7}   “I. THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE
    EVIDENCE.”
    Analysis
    {¶8}   Our review of the constitutional sufficiency of evidence to support a
    criminal conviction is governed by Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979), which requires a court of appeals to determine whether
    “after viewing the evidence in the light most favorable to the prosecution, any rational
    trier of fact could have found the essential elements of the crime beyond a reasonable
    doubt.” Id.; see also McDaniel v. Brown, 
    558 U.S. 120
    , 
    130 S. Ct. 665
    , 673, 175 L.Ed.2d
    582(2010) (reaffirming this standard); State v. Fry, 
    125 Ohio St. 3d 163
    , 
    926 N.E.2d 1239
    , 2010–Ohio–1017, ¶146; State v. Clay, 
    187 Ohio App. 3d 633
    , 
    933 N.E.2d 296
    ,
    2010–Ohio–2720, ¶68.
    {¶9}   Weight of the evidence addresses the evidence's effect of inducing belief.
    State v. Thompkins, 
    78 Ohio St. 3d 380
    , 386-387, 
    678 N.E.2d 541
    (1997), superseded
    by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
    Coshocton County, Case No. 2014CA0002                                                         4
    St.3d 89, 
    684 N.E.2d 668
    , 1997-Ohio–355. Weight of the evidence concerns “the
    inclination of the greater amount of credible evidence, offered in a trial, to support one
    side of the issue rather than the other. It indicates clearly to the jury that the party
    having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
    their minds, they shall find the greater amount of credible evidence sustains the issue,
    which is to be established before them. Weight is not a question of mathematics, but
    depends on its effect in inducing belief.” (Emphasis sic.) 
    Id. at 387,
    678 N.E.2d 541
    ,
    quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
    {¶10} When a court of appeals reverses a judgment of a trial court on the basis
    that the verdict is against the weight of the evidence, the appellate court sits as a
    “’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
    testimony. 
    Id. at 387,
    678 N.E.2d 541
    , quoting Tibbs v. Florida, 
    457 U.S. 31
    , 42, 
    102 S. Ct. 2211
    , 
    72 L. Ed. 2d 652
    (1982). However, an appellate court may not merely
    substitute its view for that of the jury, but must find that “‘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. 
    Thompkins, supra
    , 78 Ohio St.3d at 387, quoting State v.
    Martin, 
    20 Ohio App. 3d 172
    , 175, 
    485 N.E.2d 717
    , 720–721(1st Dist. 1983).
    Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
    in which the evidence weighs heavily against the conviction.’” 
    Id. “[I]n determining
    whether the judgment below is manifestly against
    the weight of the evidence, every reasonable intendment and every
    reasonable presumption must be made in favor of the judgment and the
    finding of facts.
    Coshocton County, Case No. 2014CA0002                                                    5
    ***
    “If the evidence is susceptible of more than one construction, the
    reviewing court is bound to give it that interpretation which is consistent
    with the verdict and judgment, most favorable to sustaining the verdict and
    judgment.”
    Seasons Coal Co., Inc. v. Cleveland, 
    10 Ohio St. 3d 77
    , 80, 
    461 N.E.2d 1273
    (1984), fn.
    3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
    {¶11} In the case at bar, Haley was found guilty of criminal trespass. To prove
    Haley guilty of criminal trespass in violation of R.C. 2911.21(A)(1), the state had to
    prove that Haley knowingly entered or remained on the land or premises of another
    without privilege to do so.
    {¶12} R.C. 2901.22 defines “knowingly” as follows:
    (B) A person acts knowingly, regardless of his purpose, when he is
    aware that his conduct will probably cause a certain result or will probably
    be of a certain nature. A person has knowledge of circumstances when he
    is aware that such circumstances probably exist.
    {¶13} Whether a person acts knowingly can only be determined, absent a
    defendant's admission, from all the surrounding facts and circumstances, including the
    doing of the act itself.” (Footnotes omitted). State v. Huff, 
    145 Ohio App. 3d 555
    , 563,
    763 N.E.2d 695(1st Dist. 2001). Thus, “[t]he test for whether a defendant acted
    knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,
    2nd Dist. Montgomery No. 16221, 
    1998 WL 214606
    (May 1, 1998) (citing State v. Elliott,
    
    104 Ohio App. 3d 812
    , 663 N.E.2d 412(10th Dist. 1995)).
    Coshocton County, Case No. 2014CA0002                                                      6
    {¶14} R.C. 2901.01(A)(12) defines “privilege” as "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.”
    {¶15} In the case at bar, Ms. Erman testified that Haley did not have permission
    to enter her home on the day in question. Under Ohio law, a trespasser is “one who
    unauthorizedly goes upon the private premises of another without invitation or
    inducement, express or implied, but purely for his own purposes or convenience, and
    where no mutuality of interest exists between the owner or occupant.” Allstate Fire Ins.
    Co. v. Singler, 
    14 Ohio St. 2d 27
    , 
    236 N.E.2d 79
    , 81 (1968).
    {¶16} She further testified that she asked him to leave multiple times during the
    encounter. Remaining upon the premises of another without legal authority after being
    notified to leave constitutes the offense of criminal trespass. See, e.g., State v. Carriker,
    
    5 Ohio App. 2d 255
    , 
    214 N.E.2d 809
    (1964) (the law in Ohio is that a business invitee's
    privilege to remain on the premises of another may be revoked upon the reasonable
    notification to leave by the owner or his agents); Allstate Ins. Co. v. U.S. Associates
    Realty, Inc., 
    11 Ohio App. 3d 242
    , 
    464 N.E.2d 169
    (1983) (notice of express restriction
    or limitation on invitation turns business invitee into trespasser). CompuServe Inc. v.
    Cyber Promotions, Inc., 
    962 F. Supp. 1015
    , 1024, (S.D.Ohio 1997).
    {¶17} Viewing the evidence in a light most favorable to the prosecution, we
    conclude that a reasonable person could have found beyond a reasonable doubt that
    Haley committed the crime of criminal trespass. We hold, therefore, that the state met
    its burden of production regarding each element of the crime of criminal trespass and,
    Coshocton County, Case No. 2014CA0002                                                          7
    accordingly, there was sufficient evidence to submit the charge to the trial judge as the
    trier of fact and to support Haley’s conviction.
    {¶18} Ultimately, “the reviewing court must determine whether the appellant or
    the appellee provided the more believable evidence, but must not completely substitute
    its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
    finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
    ¶31, quoting State v. Woullard, 
    158 Ohio App. 3d 31
    , 2004-Ohio-3395, 
    813 N.E.2d 964
    (2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
    the evidence or two conflicting versions of events, neither of which is unbelievable, it is
    not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
    No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 
    131 Ohio App. 3d 197
    ,
    201, 722 N.E.2d 125(7th Dist. 1999).
    {¶19} The weight to be given to the evidence and the credibility of the witnesses
    are issues for the trier of fact. State v. DeHass, 
    10 Ohio St. 2d 230
    , 227 N.E.2d
    212(1967), paragraph one of the syllabus; State v. Hunter, 
    131 Ohio St. 3d 67
    , 2011-
    Ohio-6524, 
    960 N.E.2d 955
    , ¶118. Accord, Glasser v. United States, 
    315 U.S. 60
    , 80,
    
    62 S. Ct. 457
    , 
    86 L. Ed. 680
    (1942); Marshall v. Lonberger, 
    459 U.S. 422
    , 434, 
    103 S. Ct. 843
    , 
    74 L. Ed. 2d 646
    (1983).
    {¶20} The trial judge as the trier of fact was free to accept or reject any and all of
    the evidence offered by the parties and assess the witness’s credibility. "While the [trier
    of fact] may take note of the inconsistencies and resolve or discount them accordingly
    such inconsistencies do not render defendant's conviction against the manifest weight
    or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999
    Coshocton County, Case No. 2014CA0002                                                   
    8 WL 29752
    (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
    
    1996 WL 284714
    (May 28, 1996). Indeed, the [trier of fact] need not believe all of a
    witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist.
    Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 
    176 Ohio St. 61
    , 67,
    
    197 N.E.2d 548
    (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-
    2889, citing State v. Caldwell, 
    79 Ohio App. 3d 667
    , 
    607 N.E.2d 1096
    (4th Dist. 1992).
    Although the evidence may have been circumstantial, we note that circumstantial
    evidence has the same probative value as direct evidence. State v. 
    Jenks, supra
    .
    “[I]n determining whether the judgment below is manifestly against
    the weight of the evidence, every reasonable intendment and every
    reasonable presumption must be made in favor of the judgment and the
    finding of facts.
    ***
    “If the evidence is susceptible of more than one construction, the
    reviewing court is bound to give it that interpretation which is consistent
    with the verdict and judgment, most favorable to sustaining the verdict and
    judgment.”
    Seasons Coal Co., Inc. v. Cleveland, 
    10 Ohio St. 3d 77
    , 80, 
    461 N.E.2d 1273
    (1984), fn.
    3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
    {¶21} In Cross v. Ledford, 
    161 Ohio St. 469
    , 477, 
    120 N.E.2d 118
    (1954), the
    Supreme Court further cautioned,
    The mere number of witnesses, who may support a claim of one or
    the other of the parties to an action, is not to be taken as a basis for
    Coshocton County, Case No. 2014CA0002                                                     9
    resolving disputed facts. The degree of proof required is determined by
    the impression which the testimony of the witnesses makes upon the trier
    of facts, and the character of the testimony itself. Credibility, intelligence,
    freedom from bias or prejudice, opportunity to be informed, the disposition
    to tell the truth or otherwise, and the probability or improbability of the
    statements made, are all tests of testimonial value. Where the evidence is
    in conflict, the trier of facts may determine what should be accepted as the
    truth and what should be rejected as false. See Rice v. City of Cleveland,
    
    114 Ohio St. 299
    , 
    58 N.E.2d 768
    .
    161 Ohio St. at 477-478. (Emphasis added).
    A fundamental premise of our criminal trial system is that “the [trier
    of fact] is the lie detector.” United States v. Barnard, 
    490 F.2d 907
    , 912
    (9th Cir. 1973) (emphasis added), cert. denied, 
    416 U.S. 959
    , 
    94 S. Ct. 1976
    , 
    40 L. Ed. 2d 310
    (1974). Determining the weight and credibility of
    witness testimony, therefore, has long been held to be the “part of every
    case [that] belongs to the [trier of fact], who [is] presumed to be fitted for it
    by [his] natural intelligence and their practical knowledge of men and the
    ways of men.” Aetna Life Ins. Co. v. Ward, 
    140 U.S. 76
    , 88, 
    11 S. Ct. 720
    ,
    724-725, 
    35 L. Ed. 371
    (1891).
    United States v. Scheffer (1997), 
    523 U.S. 303
    , 313, 
    118 S. Ct. 1261
    , 1266-1267(1997).
    {¶22} Haley’s initial intrusion inside the home was not justified. No evidence was
    presented that Haley had a privilege to step inside Ms. Erman’s home unannounced to
    use the telephone or otherwise. The fact that Ms Erman placated Haley by allowing him
    Coshocton County, Case No. 2014CA0002                                                    10
    to use the telephone or giving him a drink of water does not alter the fact that he was
    not privileged to enter the home in the first instance.
    {¶23} We find that this is not an “‘exceptional case in which the evidence weighs
    heavily against the conviction.’” 
    Thompkins, 78 Ohio St. 3d at 387
    , 
    678 N.E.2d 541
    ,
    quoting 
    Martin, 20 Ohio App. 3d at 175
    , 
    485 N.E.2d 717
    . The judge neither lost his way
    nor created a miscarriage of justice in convicting Granados of the charges.
    {¶24} Based upon the foregoing and the entire record in this matter, we find
    Haley’s conviction is not against the sufficiency or the manifest weight of the evidence.
    To the contrary, the judge appears to have fairly and impartially decided the matters
    before him. This is court will not disturb the trier of facts finding so long as competent
    evidence was present to support it. State v. Walker, 
    55 Ohio St. 2d 208
    , 
    378 N.E.2d 1049
    (1978). The judge heard the witnesses, evaluated the evidence, and was
    convinced of Haley’s’ guilt.
    {¶25} Finally, upon careful consideration of the record in its entirety, we find that
    there is substantial evidence presented which if believed, proves all the elements of
    criminal trespass beyond a reasonable doubt.
    {¶26} Haley’s sole assignment of error is overruled.
    Coshocton County, Case No. 2014CA0002                                     11
    {¶27} For the foregoing reasons, the judgment of the Municipal Court of
    Coshocton County, Ohio, is affirmed.
    By Gwin, J.,
    Hoffman, .J., and
    Baldwin, J., concur