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Date: 02-28-2019
Case Style:
STATE OF OHIO v. ROBERT W. FISK
Case Number: 27874
Judge: Rosemarie Hall
Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Plaintiff's Attorney: LINDSAY E. BOZANICH
Defendant's Attorney: V. GAYLE MILLER
Description:
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Robert W. Fisk appeals from his conviction and sentence following a jury trial
on one count of unauthorized entry upon a nuisance premises, a third-degree
misdemeanor.
{¶ 2} Fisk advances three assignments of error. First, he challenges the legal
sufficiency of the State’s evidence to sustain his conviction. Second, he contends the trial
court erred in overruling his request for a jury instruction on the affirmative defense of
“necessity.” Third, he claims the trial court erred in accepting a jury verdict that was
rendered after less than 28 minutes of deliberation.
{¶ 3} The present appeal stems from an April 10, 2017 fire inside a house at 31
North McGee Street in Dayton. At trial, Fred Haney, a captain with the Dayton Fire
Department, testified that several crews responded to the scene. Upon arriving, Haney
found a “pretty significant fire” that he determined had started in the basement “due to a
generator being used inside the structure.” (Trial Tr. at 84-85.) Haney and the other
firefighters successfully doused the fire, which had burned a hole through the roof and
had caused a “partial collapse” on the second floor. (Id. at 86.) To be sure the fire was
extinguished, the crews also had to tear up ceilings and walls. (Id. at 87.) In the course of
their work, the firefighters also flooded the house with “probably six to eight inches of
standing water on the floor.” (Id. at 86.) They also knocked out one or more windows to
discard debris. (Id. at 87.)
{¶ 4} While removing debris and making sure the fire was extinguished, Haney
spoke to Fisk, a resident of the house. Fisk seemed “agitated” and wanted the firefighters
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to leave. (Id. at 880.) According to Haney, Fisk admitted that a generator he was using in
the basement had caught fire. (Id. at 99.) Following the fire, Haney believed the house
“was dangerous to go in[.]” (Id. at 89.) He considered it “a hazard,” and he contacted the
Dayton Housing Department. (Id. at 89-90.) Haney recalled that two housing officials
arrived on the scene, examined the house, and determined that it was unsafe. (Id. at 91.)
He saw the officials post orange signs “all over the house” warning people not to enter.
(Id. at 91, 94.)
{¶ 5} The next witness at trial was Sherry Coleman, a city housing inspector. (Id.
at 107.) Coleman met her supervisor at the scene while firefighters were still present and
proceeded to inspect and photograph the house. (Id. at 108-110.) She saw “severe”
damage, including fire damage, part of the roof missing, and windows out. (Id. at 110
111.) Coleman testified that Fisk was present at the scene yelling at her and her
supervisor to get off of his property. (Id. at 111.) For safety reasons, Coleman and her
supervisor considered the house to be a nuisance based on the fire damage, the hole in
the roof, and the considerable amount of water inside. (Id. at 117.) As a result, they placed
bright orange warning signs on the front and rear of the house. (Id. at 112-114, 116.) The
signs declared the property a public nuisance and included large type warning that
presence on the premises was prohibited without written consent from the Dayton
Housing Inspection Division. (State’s Exhibits 1-5.) The signs included an address and
phone number for the Housing Inspection Division and warned that violators would be
prosecuted for a third-degree misdemeanor. (Id.)
{¶ 6} Coleman proceeded to describe the process for obtaining permission to enter
the property. She testified that a person with proper identification could come to the city’s
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housing inspection office and obtain an authorization to enter free of charge during normal
business hours. (Id. at 119.) According to Coleman, the authorization can be obtained
instantly, and it allows a person to enter a nuisance property to repair it, to retrieve items,
or to do whatever else needs done. (Id. at 120, 218.) Coleman testified that no such
written authorization was given to Fisk. (Id. at 122.)
{¶ 7} On cross examination, Coleman testified that after a house is designated with
signs as being a nuisance, a legal order so indicating typically is sent to the property
owner. (Id. at 127.) According to Coleman, the order never is sent the same day signs
are posted and, in any event, Fisk was not the legal owner of the property at issue. (Id. at
123, 127.)
{¶ 8} The final prosecution witness was Dayton police officer Brandon Cartee. He
testified that he was dispatched to 31 North McGee Street on the afternoon of April 10,
2017 to investigate a report that someone was inside the house. (Id. at 131.) When he
pulled up, he saw Fisk and two other people inside the house “with signs on the house
posting that no one should be inside.” (Id. at 131-132.) Fisk complied with Cartee’s
direction to come out the front of the house, but the other two people fled out the back
door and got away. (Id. at 133.) It appeared to Cartee as if Fisk and his companions had
been gathering items and taking them out of the house. (Id.) Fisk professed to be unaware
that he could not go inside the house despite the fact that the orange signs still were
posted on or near the exterior doors. (Id. at 134, 136.) Cartee proceeded to explain what
the signs meant and told Fisk that he could not go inside the house without written consent
from the city. (Id. at 134.) Fisk responded by challenging the officer’s authority to keep
him out of the house and by continuing to try to go back inside. (Id. at 135.) After Cartee
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gave Fisk another warning, Fisk went back inside the house through the back door. (Id.)
At that point, Cartee arrested Fisk and took him to jail. (Id. at 137-138.)
{¶ 9} Following Cartee’s testimony, the State rested its case. Defense counsel
made a Crim.R. 29 motion, which the trial court overruled. (Id. at 151-154.) Fisk then
testified in his own defense. He claimed he was the owner of the house at 31 North
McGee Street by virtue of a land-contract. (Id. at 156-157.) He also identified an exhibit
that he claimed was a copy of the notarized land contract between himself and the out
of-state seller. (Id. at 158.) The document was notarized on August 17, 2016. (Id.) Fisk
acknowledged that the copy of the “contract” he presented at trial was not signed by the
seller. (Id. at 159.) He first claimed that he “assumed” a signed copy was destroyed in the
fire. (Id. at 159-160.) On cross examination, he admitted being unsure whether the seller
ever had sent him a signed contract. (Id. at 169.) He also admitted that neither he nor the
seller ever had the contract filed with the county recorder’s office. (Id.) Finally, he
acknowledged that the property referenced in the document was 33 North McGee Street
rather than 31 North McGee Street. (Id. at 168.) Fisk explained, however, that he was
buying 31 North McGee Street, 33 North McGee Street, and 27 North McGee Street on
land contract from the same seller. (Id. at 156, 168.)
{¶ 10} With regard to the incident in question, Fisk acknowledged that he installed
a new generator in the basement of his house and got it running the night before the fire.
(Id. at 160.) He claimed the generator was safe to use indoors, but he did not read the
instructions. (Id.) He used the generator for electricity and caught and filtered his own
water because he did not “rely on anyone to do anything” for him. (Id. at 161.) Fisk testified
that after the fire department put out the fire and left, he began removing his belongings
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from the house. (Id. at 163.) When police arrived, he explained to them that he was just
trying to secure his property. (Id. at 165.) On cross examination, he explained that he and
two friends were using the rear door to enter and exit the house after the fire. (Id. at 177.)
Although the record contains pictures of conspicuous, bright orange signs on the house,
including one on the door, Fisk claimed the signs were not there when he entered the
house. (Id. at 177.) He testified that he had “no idea” when the signs were placed there.
(Id. at 177-178.) Fisk admitted that the signs were present when he spoke to the police
officer, but he claimed not to have seen them previously. (Id. at 179.) He testified that he
never read the signs, but he admitted going in and out of the house just before the officers
arrived. (Id. at 182-183.)
{¶ 11} Following Fisk’s testimony, defense counsel rested. Defense counsel then
brought up a prior request for a jury instruction on the affirmative defense of “necessity.”
(Id. at 184.) After discussing the issue with counsel, the trial court concluded that the
evidence did not support the instruction and denied the request. (Id. at 184-191.) The jury
subsequently retired to deliberate at 4:47 p.m. and reconvened at 5:15 p.m. with a guilty
verdict on one count of unauthorized entry upon a nuisance premises in violation of
Dayton City Ordinance 152.12.1. The trial court imposed a 60-day jail sentence with 50
days suspended and credit for ten days served. (January 16, 2018 Transcript at 5.) It also
imposed a $50 fine plus court costs. (Id.) The trial court stayed execution of the sentence
pending appeal. (Doc. # 94.)
{¶ 12} In his first assignment of error, Fisk contends the trial court erred in
overruling his Crim.R. 29 motion at the close of the State’s case. His assignment of error
asserts that the State’s evidence was legally insufficient because housing inspector
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Coleman “failed to follow proper protocol” by not issuing a “legal order” after posting signs
on the property. His entire substantive argument is as follows:
The State’s second witness, housing inspector Sherry Coleman,
stated that a report was made detailing why placards were placed on 13
[sic] North McGee Street. (Tr.126). From this report, a “legal order” is issued
by the City of Dayton housing inspector upon a property being placarded as
a nuisance property (Tr. 127), but that legal order is not issued on the date
of placarding (Tr. 127, 129).
Coleman admitted that Fisk informed her that he was the owner of
the property, and that this was not the first time that she had encountered
Fisk on that property (Tr. 111, 118). Additionally, Coleman admitted that he
did not give Fisk instructions on how to obtain written authorization to be on
the property. (Tr. 117-121).
Having been informed by Fisk that he was the property owner,
Coleman should have instructed him on the procedure for obtaining
permission to be on the property, and * * * she should have supplied him
with a legal order. Coleman did not follow proper protocol, and the trial court
should not have rejected Defendant-Appellant’s argument and overruled on
this point.
(Appellant’s brief at 3.)
{¶ 13} Upon review, we see no error in the trial court’s denial of Fisk’s Crim.R. 29
motion.1 His arguments about the lack of a “legal order” and Coleman’s failure to tell him
1 The State contends Fisk failed to preserve his challenge to the legal sufficiency of the
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how to get permission to enter the house have no bearing on the legal sufficiency of the
evidence to sustain his conviction. Fisk was charged with violating Dayton City Ordinance
152.12.1, which provides in relevant part:
(A) No owner or other person shall enter or be present in or on any
building or premises that has been posted with a notice identifying the said
building or premises to be a public nuisance, without first obtaining
authorization in writing from the Superintendent of Neighborhood
Development and having such written authorization on his/her person at the
time.
(B) It shall be an affirmative defense to a violation of this section that
the person was the owner, or was authorized by the owner to be present on
the said premises, and that one of the persons present had the required
written authorization on his/her person at the time.
* * *
(D) Written authorization, as provided in this section, shall be issued
by the Superintendent of Neighborhood Development to any person who
provides documentation which, on its face, indicates that such person is
either an owner of the premises or is authorized by the owner to be present,
or to any person who makes application and pays for any permit to do work
on the premises.
evidence because he did not renew his Crim.R. 29 motion after all evidence was presented. While the State’s argument is technically correct, this court has recognized that it normally constitutes plain error for a defendant to be convicted based on legally insufficient evidence. State v. Travlus, 2d Dist. Montgomery No. 23666, 2010 WL 3366195, *4 (Aug. 27, 2010). Therefore, we will consider Fisk’s argument.
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{¶ 14} Section (A) of the ordinance prohibited Fisk from entering the house at 31
North McGee Street because it had been posted with notices identifying it as a public
nuisance and Fisk had not obtained written permission to enter the building. Even
assuming, purely arguendo, that Fisk was entitled to receive the follow-up “legal order”
issued to a property owner, Coleman explained that such an order never is issued the
same day placards are placed on a property. Regardless, Ordinance 152.12.1 does not
condition an owner’s or occupant’s compliance with its terms on prior receipt of a legal
order. Nor does the ordinance obligate anyone from the city to orally advise an owner or
occupant of the process for obtaining permission to enter the premises. Oral advice was
unnecessary because the large orange signs placed on the property clearly stated that
written permission from the Housing Inspection Division was required for someone to be
on the premises, and the signs provided contact information for interested parties to
obtain more information. Based on the prosecution’s evidence and photographs in the
record, Fisk’s self-serving testimony that he did not see any signs defies credibility.
Moreover, Officer Cartee testified that he explained the signs to Fisk and warned him not
to enter, but Fisk went back inside anyway.
{¶ 15} In short, Ordinance 152.12.1 unambiguously prohibited Fisk from entering
the house without written permission after the orange signs were posted. The record
supports a finding that he entered the house after the signs were posted and that he did
so without written permission. Therefore, we find legally sufficient evidence to sustain his
conviction, and the trial court properly denied his Crim.R. 29 motion. The first assignment
of error is overruled.
{¶ 16} In his second assignment of error, Fisk challenges the trial court’s denial of
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his request for a jury instruction on the affirmative defense of “necessity.” Fisk argues that
he acted out of necessity when he entered the house to remove his personal property
and that the evidence supported the requested jury instruction.
{¶ 17} “A criminal defendant is entitled to an instruction on an affirmative defense
if he has introduced sufficient evidence which, if believed, would raise a question in the
minds of reasonable people concerning the existence of the issue.” State v. Lawson, 2d
Dist. Montgomery No. 22155, 2008-Ohio-1311, ¶ 17, citing State v. Johnson, 2d Dist.
Montgomery No. 21459, 2007-Ohio-5662, ¶ 21. We review a trial court’s refusal to give a
requested instruction for an abuse of discretion. State v. Burnett, 2018-Ohio-109, 109
N.E.3d 61, ¶ 15 (2d Dist.).
{¶ 18} “In order to prove the defense of necessity, a defendant must establish: (1)
a harm due to the pressure of a physical or natural force, rather than human force; (2) the
harm sought to be avoided was greater than, or at least equal to that sought to be
prevented by the law defining the offense charged; (3) the actor reasonably believed at
the moment that his act was necessary and was designed to avoid the greater harm; (4)
the actor was without fault in bringing about the situation; and (5) the threatened harm
was imminent, leaving no alternative by which to avoid the greater harm.” Lawson at ¶
20, citing State v. Price, 2d Dist. Montgomery No. 21370, 2006-Ohio-3856, ¶ 11, reversed
on other grounds, 118 Ohio St.3d 144, 2008-Ohio-1974, 886 N.E.2d 852, and State v.
Harkness, 75 Ohio App.3d 7, 598 N.E.2d 836 (6th Dist.1991).
{¶ 19} The trial court found that Fisk satisfied the first requirement because there
was harm due to the pressure of a physical or natural force, namely a fire. The trial court
was unconvinced that Fisk had met the second requirement. It appears to have reasoned
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that the harm sought to be avoided (loss of Fisk’s personal property) was not greater than
or equal to the harm sought to be prevented by keeping him out of the house (injury to
himself). With regard to the third element, the trial court accepted that Fisk himself
reasonably believed his actions were necessary. The trial court found the fourth
requirement unsatisfied, however, based on its determination that he was at fault for using
the fire-causing generator in the basement. The trial court also found the fifth requirement
unmet because it concluded that he lived right next door and could have watched the
house. (Trial Tr. at 190-191.)
{¶ 20} On appeal, Fisk contends the trial court’s analysis of the second element is
flawed because it relied on its own 30-year-old recollection of a shipwreck case from a
law school text book. Fisk contends this was error because the trial court did not have the
unidentified case in front of it and did not check to see whether the case remained good
law. We disagree. Regardless of the trial court’s failure to cite the case, or to cite-check
it, Fisk makes no substantive argument addressing whether the harm sought to be
avoided here was greater than or equal to the harm sought to be prevented by the Dayton
ordinance under which he was convicted. Based on our review of the record, we conclude
that harm from the potential loss of Fisk’s personal property was not greater than or equal
to the potential harm to hims if he went inside the house. Therefore, the trial court correctly
found that the second requirement was not satisfied.
{¶ 21} With regard to the fourth requirement, Fisk contends he was not at fault for
causing the fire because he installed the generator properly and had used similar
generators numerous times. But because Fisk installed the fire-causing generator indoors
and did not read the directions, we believe the trial court correctly concluded that a
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reasonable juror would conclude that he was at fault in bringing about the situation. The
trial court also correctly found that Fisk had another alternative to avoid further harm to
his property. As the trial court noted, he could have kept an eye on the property because
he lived right next door. Fisk also testified that he had two roommates who presumably
could have helped him watch. He also could have obeyed the warning signs, called the
Dayton Housing Inspection Division, and followed the procedure for obtaining prompt
permission to enter the house.
{¶ 22} For the foregoing reasons, we conclude that the record lacks sufficient
evidence to raise a question in the minds of reasonable jurors on the affirmative defense
of “necessity.” Therefore, the trial court did not abuse its discretion in declining to give the
instruction. The second assignment of error is overruled.
{¶ 23} In his final assignment of error, Fisk claims the trial court should not have
accepted the jury’s verdict. He asserts that the jury returned its verdict too quickly and
that the trial court should have directed the jury to “reconsider the case” and to deliberate
longer.
{¶ 24} This assignment of error lacks merit. Defense counsel did not ask the trial
court to have the jury deliberate longer or raise any objection to the verdict. Therefore,
plain-error review applies. State v. Brown, 2d Dist. Champaign No. 2015-CA-21, 2016
Ohio-4573, ¶ 8. It is well settled that a jury need not deliberate for any particular length of
time. Very brief deliberation may be sufficient in a particular case. Id. at ¶ 9 (citing cases).
Here the jury deliberated 28 minutes before returning with a verdict. Although this was a
relatively short time, the trial itself was not long, the State’s evidence was straightforward,
and the issue before the jury was uncomplicated. Because the trial court declined to give
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a “necessity” instruction, the only real issue was whether the property at issue had been
posted with the orange warning signs prohibiting entry when Fisk admittedly entered the
house. Fisk claimed he never saw the signs and suggested that they were not present
when he entered the house. The State presented evidence that the signs were posted by
housing officials while the fire department was present and Fisk was at the scene. The
State also presented evidence that Fisk re-entered the house after a police officer showed
him the signs and explicitly warned him not to go inside. The jury’s verdict reflects that it
found the State’s evidence more persuasive. It reasonably could have made this
determination quickly. We see no plain error in the trial court’s acceptance of the jury’s
verdict. The third assignment of error is overruled.
Outcome: The judgment of the Dayton Municipal Court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: