State v. Haley , 2014 Ohio 2515 ( 2014 )

[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