City of Akron v. Niepsuj, Unpublished Decision (12-10-2003)

2003 Ohio 6581
CourtOhio Court of Appeals
DecidedDecember 10, 2003
DocketNo. 21369.
StatusUnpublished
Cited by2 cases

This text of 2003 Ohio 6581 (City of Akron v. Niepsuj, Unpublished Decision (12-10-2003)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Akron v. Niepsuj, Unpublished Decision (12-10-2003), 2003 Ohio 6581 (Ohio Ct. App. 2003).

Opinion

DECISION AND JOURNAL ENTRY
{¶ 1} Defendant-Appellant Vincent M. Niepsuj has appealed from a decision of the Akron Municipal Court that found him guilty of criminal trespass. This Court affirms.

I
{¶ 2} On the afternoon of September 23, 2002, Appellant was arrested on the property of the University of Akron. The arrest warrant indicates that Appellant "was found on the University of Akron property after he was issued a written trespass warning, verbally warned and previously arrested for same. [Appellant] caused alarm to others, they in turn called police and [Appellant] was found in violation of previous warnings." Appellant was charged with criminal trespass, a violation of R.C. 2411.21 and a charge for which he was then currently on probation from a prior case. Appellant pleaded not guilty and the matter proceeded to a jury trial. The jury found Appellant guilty and he was sentenced to thirty days in the Summit County Jail and fined $500 plus court costs. The fine was suspended. Appellant was further ordered "not to return to the University of Akron [property.]"

{¶ 3} Appellant has timely appealed, asserting eight assignments of error. We have consolidated his assignments of error to facilitate review.

II
{¶ 4} As an initial matter, this Court notes that Appellant, acting pro se, has listed eight assignments of error, but he has presented only one argument for review. His assignments of error are as follows:

Assignment of Error Number One

"Not all elements of [the] crime were proven by the state."

Assignment of Error Number Two

"[The] trial court abused its discretion in stopping highly Relevant line of questioning to sergeant newman regarding [The] scope of [the] trespass warning."

Assignment of Error Number Three

"[The] trial court abused its discretion in stopping highly relevant line of questioning to patrol officer shannon regarding original alleged incidence [sic] of trespassing."

Assignment of Error Number Four

"The trial court erred in not granting acquittal."

Assignment of Error Number Five

"[The trial] court abused its discretion in sentencing."

Assignment of Error Number Six

"Ineffective assistance of counsel."

Assignment of Error Number Seven

"[The] state did tamper with evidence."

Assignment of Error Number Eight

"[The] trial court abused its discretion in its admonishing appellant in open court unnecessarily."

{¶ 5} The sole issue Appellant has presented for this Court's review is whether the state proved beyond a reasonable doubt that Appellant did not have privilege to be on the property of the University of Akron on the afternoon of September 23, 2002. This Court answers the question in the affirmative.

{¶ 6} Although Appellant's brief is primarily a self-serving narrative, rather than a series of cogent arguments, it appears that he is attempting to argue that he had privilege to be on the property of the University of Akron ("University") because 1) the University is a public university; and 2) the prior warnings he received to remain off the property of the University did not revoke his authority to be on the property for legitimate reasons. Based upon these arguments, Appellant has maintained that his conviction was against the manifest weight of the evidence and that there was insufficient evidence to find that he did not have privilege to be on the property of the University.

{¶ 7} This Court has previously explained that the sufficiency and manifest weight of the evidence are legally distinct issues. State v.Manges, 9th Dist. No. 01CA007850, 2002-Ohio-3193, ¶ 23, citing Statev. Thompkins (1977), 78 Ohio St.3d 380, 386. Sufficiency tests whether the prosecution has met its burden of production at trial, whereas a manifest weight challenge questions whether the prosecution has met its burden of persuasion. Manges, supra, 2002-Ohio-3193, at ¶ 25. In reviewing whether a conviction is against the manifest weight of the evidence, this Court must:

"[R]eview the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving 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. Otten (1986), 33 Ohio App.3d 339, 340.

{¶ 8} Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a "thirteenth juror," and disagrees with the factfinder's resolution of the conflicting testimony. Id. This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant.Otten, 33 Ohio App.3d at 340.

{¶ 9} In the instant matter, Appellant was convicted of criminal trespassing, a violation of R.C. 2911.21(A)(3).1 That statute provides, in pertinent part:

"(A) No person, without privilege to do so, shall do any of the following:

"* * *

"(3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access[.]"

{¶ 10} The term "privilege" is defined in the criminal code 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).

{¶ 11} At trial, several witnesses presented testimony regarding Appellant's prior trespass warnings and restriction from entering the University's property. Sergeant Jeffrey Newman, an officer with the University of Akron Police Department, testified that he received a complaint from staff members at the University of Akron Law Library on the afternoon of September 23, 2002. The complaint concerned "an unwanted person [at the University of Akron Library] that [the University employees were] aware * * * was not legally allowed to be in that building." When Sergeant Newman arrived at the University of Akron Law Library he recognized Appellant from a prior encounter that had occurred on June 26, 2002.2 Sergeant Newman stated that on June 26, 2002, he and another officer, Officer Sherry Shannon, responded "to a call of a person in a hallway that was making other faculty and staff and student members uneasy by his presence." It was at this time that Sergeant Newman first met Appellant.

{¶ 12}

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Bluebook (online)
2003 Ohio 6581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-akron-v-niepsuj-unpublished-decision-12-10-2003-ohioctapp-2003.