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Date: 06-10-2020

Case Style:


Case Number: CA2019-08-067

Judge: Robert P. Ringland


Plaintiff's Attorney: D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton

Defendant's Attorney:

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Description: } In May 2019, appellant was charged by criminal complaint with two offenses:one count of criminal trespass, a fourth-degree misdemeanor in violation of R.C.2911.21(A)(1); and one count of disorderly conduct, a minor misdemeanor in violation ofThese charges stemmed from appellant's uninvited visit to see hischildren at the home of his ex-wife and her fiancé (the "victim"), during which appellantentered the victim's property and engaged in belligerent behavior. Appellant pled not guiltyand waived his right to counsel. The matter proceeded to a bench trial before a magistrate.At trial, the prosecution called one witness, the victim, and had admitted into evidence avideo recording the victim took of the incident. For his defense, appellant testified on hisown behalf and called his girlfriend, who was with him at the time, and the charging police
officer to testify.

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At the conclusion of the trial, the magistrate found appellant guilty as charged.
For the criminal trespass conviction, the trial court sentenced appellant to 15 days in jail,
but suspended the jail term subject to community service, a fine, and unsupervised
community control with an order to stay away from the victim's residence. For the disorderly
conduct conviction, the trial court sentenced appellant to an additional fine.
{¶ 4} Appellant now appeals raising two assignments of error for review. For ease
of analysis, we will discuss the assigned errors together.
{¶ 5} Assignment of Error No. 1:
{¶ 7} Assignment of Error No. 2:
{¶ 9} In his first and second assignments of error, appellant argues that there was
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insufficient evidence to convict him and that the guilty findings were against the manifest
weight of the evidence. Specifically, for the criminal trespass offense, appellant contends
that he had permission to enter the property and that he did not unreasonably remain on
the property after he understood his privilege to have been revoked. Appellant does not
dispute that he knowingly entered the property. Next, for the disorderly conduct offense,
appellant argues that he did not utter "fighting words" or otherwise engage in conduct likely
to provoke a violent response.
{¶ 10} Initially we note that appellant failed to object to the magistrate's decision,
therefore pursuant to Crim. R. 19(D)(3)(b)(iv), this court will review only for plain error. See
State v. Shie, 12th Dist. Butler No. CA2007-02-038, 2008-Ohio-350, ¶ 43-45. Notice of
plain error must be taken with utmost caution, under exceptional circumstances, and only
to prevent a manifest miscarriage of justice. State v. Baldev, 12th Dist. Butler No. CA2004-
05-106, 2005-Ohio-2369, ¶ 12, citing State v. Long, 53 Ohio St.2d 91, 95 (1978). To
constitute plain error, there must be an obvious deviation from a legal rule that affected the
defendant's substantial rights, that is, the error must have affected the outcome of the
proceeding. State v. Carpenter, 12th Dist. Butler No. CA2019-03-044, 2019-Ohio-4829, ¶
{¶ 11} Whether the evidence is sufficient to sustain a conviction is a question of law.
State v. Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). A sufficiency
of the evidence challenge requires the appellate court to review the evidence admitted at
trial to determine whether that evidence, if believed, would support a conviction. State v.
Carroll, 12th Dist. Clermont Nos. CA2007-02-030 and CA2007-03-041, 2007-Ohio-7075, ¶
117. The standard of review is whether any reasonable trier of fact, viewing the evidence
in a light most favorable to the prosecution, could have found all the essential elements of
the crime proven beyond a reasonable doubt. State v. Cobb, 12th Dist. Butler No. CA2007-
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06-153, 2008-Ohio-5210, ¶ 93, citing State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus.
{¶ 12} On the other hand, a manifest weight of the evidence challenge requires the
appellate court to examine the inclination of the greater amount of credible evidence offered
at trial to support one side over the other. State v. Barnett, 12th Dist. Butler No. CA2011-
09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest
weight of the evidence, the reviewing court must look at the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving the conflicts in the evidence, the trier of fact 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. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio3437, ¶ 42. While the manifest weight of the evidence challenge requires the reviewing
court to consider credibility of the evidence, an appellate court must be mindful that the trier
of fact has the primary role of weighing the evidence and determining witness credibility.
State v. Salinger, 12th Dist. Butler No. CA2014-10-208, 2015-Ohio-2821, ¶ 15, citing State
v. DeHass, 10 Ohio St.2d 230, 231 (1967). An appellate court will overturn a conviction on
manifest weight of the evidence grounds only in extraordinary circumstances, when the
evidence presented at trial weighs heavily in favor of acquittal. State v. Helton, 12th Dist.
Warren No. CA2018-12-141, 2019-Ohio-4399, ¶ 17. The determination that a conviction is
supported by the manifest weight of the evidence will be dispositive of the sufficiency of the
evidence challenge. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150,
¶ 19.
{¶ 13} To convict on criminal trespass, the prosecution had to prove that appellant,
without privilege to do so, knowingly entered or remained on the land or premises of
another. R.C. 2911.21(A)(1). Privilege is the distinguishing characteristic between an
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individual's lawful or unlawful presence on another's land or premises. State v. Bradford,
12th Dist. Warren No. CA2010-04-032, 2010-Ohio-6429, ¶ 27. Therefore, the lack of
privilege is an essential element of the offense that the prosecutor had to prove. State v.
Hubbard, 12th Dist. Butler No. CA99-02-040, 1999 Ohio App. LEXIS 4811, *5 (Oct. 11,
1999); See also State v. Hohman, 14 Ohio App.3d 142, 164 (12th Dist.1983). Privilege is
defined 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."
R.C. 2901.01(A)(12).
{¶ 14} Here, the victim testified that appellant drove by his house several times
before bringing the vehicle to a stop in front of the residence. Appellant spoke to the victim
from his vehicle asking if he could visit his daughters. The victim made some statements
about it not being the appropriately scheduled date and for appellant to "move on." He
additionally testified that he did not give appellant permission to enter his property and that
his statements to appellant were better characterized as taunts, although when asked by
the prosecutor if a privilege had been granted, he responded affirmatively. After making
those statements, appellant got out of his vehicle and moved quickly into the victim's yard.
Shortly after appellant entered the property, the victim testified that he explicitly told
appellant to leave. The victim testified that it seemed to take around 45 seconds for
appellant to depart. The victim also testified that he felt threatened during the interaction,
especially because appellant told him "it's coming," before appellant finally relented and
exited from the property.
{¶ 15} In addition to the victim's testimony, the prosecutor presented into evidence a
video recording of the incident. The victim testified that he used the video camera feature
on his cellular telephone to record the interaction before appellant got out of his vehicle.
The video depicts the two men yelling at each other across the victim's yard. The victim
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initially yells something to the effect of it is not your day and move on, but then says, "step
into my yard" and "do it" before appellant charges into the yard. In the background
appellant's ex-wife can be heard yelling at appellant to leave. Appellant moves into the yard
with his chest puffed out and his arms moving or flailing in an excited fashion. After entering
the yard, appellant exclaims, "do you want me to step into your yard, bitch?" The victim
moves up to intercept appellant, then tells appellant to leave with profanity-laden language.
Appellant halfway turns to leave but continues to squabble with the victim. Both men go
back and forth exclaiming "do it," "you do it." During this exchange appellant engages in
short lunges with his upper body toward the victim and ultimately lifts his sunglasses to his
forehead to stare at the victim and exclaim "it's coming" with more profanity before leaving
the property. Based on the video timestamp, the whole incident lasted around 20 seconds
from the time appellant enters the yard to when he leaves the property.
{¶ 16} For his defense, appellant called his girlfriend to testify. She testified that she
lives near the victim's home, so it was not abnormal for appellant to drive past the victim's
house. She testified that appellant saw his children out for a walk in the neighborhood, so
appellant decided to turn around in an attempt to talk to them. She acknowledged that
appellant hesitated as to whether to stop, but after driving by the house several times, she
suggested to appellant that he should stop to explain to the victim and his ex-wife that he
wanted to speak with his children. Regarding the incident, the girlfriend testified that she
did not believe appellant's conduct was provocative. While she did not believe that
appellant's conduct was provocative, she acknowledged that appellant lingered in the
victim's yard to get in the "last word."
{¶ 17} Finally, appellant testified that the victim's statements were an "invitation" to
enter the yard, but he did not feel welcome. He also characterized his demeanor as
"friendly" and explained that his statement of "it's coming" merely referenced a more
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favorable custody/visitation resolution for him, from the court, that he expected to come in
the future.
{¶ 18} In finding appellant guilty, the magistrate found that the victim's statements
did not amount to a grant of privilege to enter the property because it was conveyed as a
taunt or a dare, and alternatively that appellant failed to leave after expressly being told to
leave. After review of the record, we agree. The trier of fact may take note of any
inconsistencies in the witness' testimony and resolve them accordingly, believing all, part,
or none of each witness's testimony. See State v. Lark, 12th Dist. Fayette No. CA2018-03-
004, 2018-Ohio-4940, ¶ 29. The victim testified to facts as similarly demonstrated by the
video recording. The video evidence demonstrated that the victim and appellant were
engaged in a shouting match when appellant charged into the front yard. Appellant's
statement of "do you want me to step into your yard, bitch" as he entered the property,
coupled with his admission at trial that he did not feel welcome is sufficient evidence for any
reasonable trier of fact to conclude that appellant understood that no express privilege to
enter was granted to appellant. Moreover, there was evidence that appellant did not have
an "open invitation" to visit the victim's residence, nor was the victim's residence the normal
location for appellant to pick-up his children for scheduled visitation, therefore appellant did
not have an implied privilege to enter. Finally, appellant's bickering and posturing to get the
"last word" in after being explicitly told to leave further established that appellant violated
the statute by knowingly remaining on the property. Appellant's argument that he did not
"remain" on the premises and his reference to other state case law is unpersuasive in light
of the evidence at bar that appellant unnecessarily lingered for several moments and did
not quietly leave the victim's property, even assuming arguendo that he had the privilege to
enter. Consequently, the trial court did not lose its way finding appellant guilty of criminal
trespass. Appellant's conviction was not against the manifest weight of the evidence.
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{¶ 19} Next, to convict appellant on disorderly conduct the prosecution had to prove
that appellant recklessly caused inconvenience, annoyance, or alarm to another by
insulting, taunting, or challenging another, under circumstances in which that conduct is
likely to provoke a violent response. R.C. 2917.11(A)(3). Other Ohio courts have
interpreted R.C. 2917.11(A)(3) as prohibiting both the offender's use of "fighting words"
and/or conduct likely to "provoke a violent response." State v. Miller, 6th Dist. Lucas No. L86-281, 1987 Ohio App. LEXIS 5942, *4 (Feb. 27, 1987). Fighting words are "those words
that are likely by their very utterance to inflict injury or to incite an immediate breach of the
peace." City of Middletown v. Carpenter, 12th Dist. Butler No. CA2006-01-004, 2006-Ohio3625, ¶ 14. When determining whether the language used by the offender constitutes
fighting words, the circumstances surrounding the words must be examined. Id.; accord
Warren v. Patrone, 75 Ohio App.3d 595, 598 (11th Dist.1991). One of the factors for
determining if language constitutes "fighting words" is whether the language is directed at
a specific person or is more general statement—a targeted statement more usually
constitutes "fighting words." See Carpenter, 2006-Ohio-3625 at ¶ 15. The standard is
whether a reasonable person would be provoked to violence, not that an individual was
actually provoked to violence. See State v. Blair, 2d Dist. Montgomery No. 24784, 2012-
Ohio-1847, ¶ 9; See also State v. Johnson, 6 Ohio App.3d 56, 57 (12th Dist.1982).
{¶ 20} Here, the evidence at trial established that appellant quickly walked up to the
victim's property with his chest puffed out and his arms moving in an excited fashion. As
discussed above, appellant immediately and specifically addressed the victim with
profanity-laden language. The two men came within arm's reach of each other when the
victim told appellant to leave the property. At that point, with appellant partially turned to
leave, the two men continued to utter oral jeers to each other, in what can only be described
as challenges for the other to throw the first punch. In addition to his oral challenges,
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appellant made repeated short lunging motions with his upper body in a physically
aggressive manner. Finally, appellant dramatically exclaimed "it's coming" to the victim.
The victim testified that this exchange alarmed him. Objectively examining appellant's
words, both vulgar and not, in conjunction with his aggressive actions, under the
circumstances, we find appellant engaged in conduct likely to provoke a violent response.
The trial court did not lose its way in finding appellant guilty and the conviction was not
against the manifest weight of the evidence.
{¶ 21} Accordingly, appellant's first and second assignments of error are overruled.

Outcome: Judgement affirmed.

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