State v. Tingler

2017 Ohio 4158

• Court: Ohio Court of Appeals
• Decided: June 5, 2017
• Docket: 16 BE 0015
• Status: Published

Opinion

[Cite as State v. Tingler, 2017-Ohio-4158.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 BE 0015 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ZACHERY TINGLER ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the County Court, Western Division, of Belmont County, Ohio Case No. 15 CRB 00880-01

JUDGMENT: Affirmed.

APPEARANCES: For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Kevin Flanagan Chief Assistant Prosecuting Attorney Atty. Helen Yonak Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950

For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Stephen P. Hardwick Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

JUDGES: Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb Dated: June 5, 2017 [Cite as State v. Tingler, 2017-Ohio-4158.] WAITE, J.

{¶1} Appellant Zachary Tingler appeals his conviction for criminal trespass in

the Belmont County Court, Western Division. The issues raised on appeal are

whether there was sufficient evidence to support the conviction and whether the

conviction is against the manifest weight of the evidence. Based on our review of the

record, Appellant’s conviction is not against either the manifest weight or sufficiency

of the evidence. The evidence reflects that Appellant was not an owner or

permanent resident of the premises involved, but the boyfriend of a minor child

(“Anna”) living in the house. Appellant was asked to leave the residence by Anna’s

adult brother Art’s fiancée, Brandy Neace (“Neace”) and other adults in the home.

Neace also provided unrebutted testimony that the Belmont County Juvenile Court

requested that she monitor Anna while the child’s mother, Eugenia Berring (“Berring”)

was not available. Therefore, Appellant’s assignments of error are without merit and

the judgment of the trial court is affirmed.

Factual and Procedural Background

{¶2} The following facts were derived from the record. The house in

question was owned by Anna’s father who was recently deceased. Anna’s parents

never married and the home was allegedly bequeathed to Anna and her brother,

although the matter was still pending before probate court at the time the incident

occurred. Prior to her father’s death, Anna lived there along with her parents and her

brother. Appellant was allowed to stay at the residence intermittently, leaving for

periods of time and then reappearing to stay for a few days. On December 1, 2015,

Appellant was at the house with Anna. He had been staying there since he was -2-

released from jail and asked to leave his own mother’s house sometime in January of

2015. Neace was also staying there along with Anna and Berring. Neace had been

staying at the residence for approximately two weeks at the suggestion of the

Belmont County Juvenile Court to monitor Anna while her mother, Berring, was

unavailable. Apparently, Anna’s relationship with Berring was somewhat tumultuous,

and while they remained in the house together, Anna required supervision during

periods of her absences. On December 1, 2015, Neace witnessed Appellant conduct

two drug transactions in the driveway of the home. Berring was not at home at the

time. When Appellant entered the house and went upstairs, Neace followed him and

an argument between Neace and Appellant ensued, wherein she informed him that

his conduct was not allowed and that Anna could not give him permission to stay

there since she was a minor. Soon Anna became involved in the verbal altercation

and Neace informed her that Appellant would have to leave. Neace returned

downstairs to join Art and their guest. Neace overheard an argument between Anna

and Appellant and soon Anna called for them to come upstairs to get Appellant out.

There is some dispute at trial as to whether Appellant had a gun in his hand at that

time, but there was no mention of this gun in the report given to the police. Art told

Appellant to leave. Appellant objected, saying that he needed his things. After more

arguing between Art, Neace, Anna and Appellant, Appellant eventually left the house.

{¶3} The following morning Neace went to wake Anna for school and

discovered the door to Anna’s bedroom was locked. Anna refused to come out and

Neace could hear talking in the room. After Neace and Berring discussed the -3-

situation, they decided to contact the sheriff’s department. A deputy arrived a short

time later. Berring greeted the officer at the door and informed him that Appellant

was upstairs in her minor daughter’s bedroom and that he did not have permission to

be in the home. The deputy proceeded upstairs and knocked on the bedroom door.

It was locked and no one answered, but the officer could hear noises inside. Berring

advised that there was an adjoining door to the room from Berring’s room. The door

was unlocked and the officer entered the room to find Appellant and Anna laying on

the bed together. The officer also saw guns and smelled marijuana. After Anna and

Appellant packed most of his belongings into garbage bags, the officer escorted

Appellant out of the home. Neace testified that Appellant threatened to burn the

house down as he was leaving.

{¶4} Appellant was charged with possession of marijuana, in violation of

R.C. 2925.11(A), (C)(3)(a); menacing, in violation of R.C. 2903.22(A); and criminal

trespassing, in violation of R.C. 2911.21(A)(1). Appellant pleaded not guilty, and a

bench trial was held on April 5, 2016. Appellant was found guilty on all counts. On

the criminal trespassing conviction, Appellant was sentenced to thirty days in jail with

fifteen days suspended as well as two years of probation. Appellant filed this appeal

on the sole issue of his conviction for criminal trespassing.

ASSIGNMENT OF ERROR NO. 1

The evidence was insufficient to support a conviction for trespassing

because the State did not prove that Zachery Tingler lacked a privilege -4-

to be in the home. R.C. 2911.21(A)(1); Fifth and Fourteenth

Amendments to the United States Constitution. T.p. 7-46.

{¶5} A conviction which is based on insufficient evidence amounts to a

denial of due process. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d

541 (1997) citing Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652

(1982). The sufficiency of the evidence is a question of law addressing the legal

adequacy of the evidence; it is the legal standard applied to determine whether a

case may go to the jury or whether the evidence is legally sufficient as a matter of law

to support the verdict. Thompkins at 386; State v. Smith, 80 Ohio St.3d 89, 113, 684

N.E.2d 668 (1997).

{¶6} In analyzing a sufficiency of the evidence argument, the evidence of

record and all rational inferences that can be drawn from the evidence must be

evaluated in a light most favorable to the prosecution. State v. Goff, 82 Ohio St.3d

123, 138, 694 N.E.2d 916 (1998). The conviction will not be reversed on sufficiency

grounds unless the reviewing court determines that no rational juror could have found

the elements of the offense proven beyond a reasonable doubt. Id. at 138. The

reviewing court does not examine the credibility of the witnesses nor weigh the

evidence. Id. at 139.

{¶7} R.C. 2911.21(A)(1), criminal trespass, provides that, “[n]o person,

without privilege to do so, shall do any of the following: (1) Knowingly enter or remain

on the land or premises of another[.]” -5-

{¶8} To sustain a conviction for this offense, the state must show that

Appellant remained on the premises without privilege or permission to be there.

Appellant contends that there was insufficient evidence to convict him of criminal

trespass because Anna never told him to leave. He claims that Berring asked him to

leave but later changed her mind and that no one else had the authority to ask him to

leave. Appellant’s contention that only Berring possessed the ability to revoke

Appellant’s privilege to remain in the home and his recitation of the evidence is

somewhat mischaracterized. Berring did allow Anna, a minor, to have overnight

guests and did allow Appellant to periodically stay in the house after his own mother

threw him out. However, that was in November of 2015. The incident in question

happened on December 1, 2015. Berring was not at the house on that day. Berring

also testified that Appellant did not have permanent permission to stay; she had told

Appellant on a number of occasions before this incident that he had to leave the

premises. (Trial Tr., pp. 14-16.) Neace did have permission to stay at the residence

and was the adult in charge of Anna in Berring’s absence. Neace testified that after

she witnessed what she perceived to be two drug transactions conducted by

Appellant in the driveway of the premises on December 1, 2015, Appellant was

ordered out of the house. When he sneaked back into the premises, she notified

Berring, who agreed that the police should be called to remove Appellant. That

testimony was never rebutted by Appellant. Neace also testified that during an unruly

child proceeding involving Anna before the Belmont County Juvenile Court, Neace

was asked by the court to monitor the child when Berring was unavailable. While -6-

there was no journal entry or other documentation admitted into evidence to support

this testimony, this was the reason given for the fact that Neace was living in the

home and it was also unrebutted by Appellant. Further, although Berring may have

allowed Appellant to stay at the house for some period of time, that permission was

clearly not permanent or irrevocable. The evidence at trial shows there was concern

about drug activity as well as combative conduct by Appellant which raised concern

about him remaining in the home, and which eventually lead to the police escorting

him off of the premises after he remained behind locked doors with Anna in her

bedroom. This record reflects that evidence was presented which, if believed

showed that Appellant entered or remained on the land or premises of another

without privilege to do so. The state met its burden of production for criminal

trespass and presented evidence and testimony that is legally sufficient law to

support the verdict. Smith at 113. Thus, Appellant’s first assignment of error is

without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

Zachery Tingler's conviction for trespassing was against the manifest

weight of the evidence. R.C. 2911.21(A)(1). T.p. 746.

{¶9} 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.” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). “Weight is not a question of mathematics, but depends on its

effect in inducing belief.” (Emphasis deleted.) Id. -7-

{¶10} When reviewing a manifest weight of the evidence argument, a

reviewing court must examine the entire record, consider the credibility of the

witnesses and determine whether, in resolving conflicts in the evidence, 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. Id. at 387, 389. Only in

exceptional circumstances will a conviction be reversed as against the manifest

weight of the evidence. Id. This strict test for manifest weight acknowledges that

credibility is generally the province of the factfinder who sits in the best position to

accurately assess the credibility of the witnesses. State v. Hill, 75 Ohio St.3d 195,

204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d

212 (1967).

{¶11} As noted, Appellant was convicted of criminal trespass pursuant to R.C.

2911.21. If a complainant asks a guest to leave, has the authority to ask the guest to

leave, and the guest does not immediately leave the premises, then the guest is

trespassing. City of Steubenville v. Johnson, 7th Dist. No. 96JE17, 1997 WL 467582,

*3 (Aug. 7, 1997). Moreover, evidence that a guest has been asked to leave

repeatedly and refuses to make an effort to do so supports a conviction for criminal

trespass. Id.

{¶12} Appellant raises two arguments. He claims that he was not a guest,

because he was permitted to stay there and the premises was listed as his residence

on his driver’s license. He also argues that no one other than Berring, herself, had

the authority to ask him to leave and she had allowed him to stay in the past. We first -8-

note that these two arguments are mutually exclusive: if Appellant was not a guest,

whether Berring had granted him permission to stay would be irrelevant. Moreover,

his argument that Berring had granted him permission to remain at the house in the

past would be made a nullity by her revocation of permission, and Berring testified

that she wanted him out. Appellant argues that Neace was not a bona fide guardian

for Anna and, therefore, lacked authority to remove him from the home. However,

Neace testified that she was temporarily living in this home because the juvenile

court requested she monitor Anna while her mother was unavailable, and that

testimony went unrebutted. Additionally, Neace was the fiancée of Art. It was

Neace, along with Art, who responded to Anna’s calls for help that night to evict

Appellant from the premises following Anna’s argument with Appellant.

{¶13} Appellant generally argues that all of the testimony against him was

simply unbelievable. He claims that both Anna and Berring allowed him to stay in the

house. This overlooks the testimony that even Anna asked that he be removed on

December 1, 2015. And while the child apparently allowed him to return, he had no

permission to do so from the adults who resided there. Berring, Neace and the police

officer at the scene all testified that Appellant was asked to leave the premises and

had refused. The officer testified that Appellant locked himself with Anna in her

bedroom and refused to leave. Moreover, the record shows that Appellant crawled

through the window at night to gain entry back into the home after he was removed

by Neace and Art. Surely an individual asserting a right to be on the premises would -9-

utilize a door, rather than sneak through a window to enter the home. Appellant’s

own conduct demonstrates his recognition that he was not lawfully a resident.

{¶14} The trier of fact is best able to view the witnesses and observe their

demeanor, gestures and voice inflections, and utilize these observations to determine

credibility of the witnesses. Seasons Coal Company, Inc. v. City of Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Therefore, if the evidence is susceptible

to more than one interpretation, the reviewing court is bound to interpret it

consistently with the verdict and judgment. Id. Here the trial court, as trier of fact,

was in the best position to judge the credibility of the witnesses and weigh testimony

given by witnesses. The trier of fact found the witnesses credible and, given our

standard of review, we must give proper deference to the trial court’s finding.

Appellant’s second assignment of error is without merit and is overruled.

{¶15} In conclusion, Appellant’s conviction for criminal trespass was

supported by sufficient evidence and was not against the manifest weight of the

evidence. Appellant was not a resident of the home but a guest. He was asked

more than once to leave the premises and refused. Finally, Appellant did leave but

eventually, surreptitiously, gained entry back into the home. For these reasons,

Appellant’s assignments of error are without merit and are overruled. The judgment

of the trial court is affirmed.

DeGenaro, J., concurs.

Robb, P.J., concurs.