[Cite as State v. Jones, 2020-Ohio-3986.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 28618
                                                 :
 v.                                              :   Trial Court Case No. 2019-CRB-1309
                                                 :
 BARRY JONES                                     :   (Criminal Appeal from Municipal Court)
                                                 :
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                            OPINION

                             Rendered on the 7th day of August, 2020.

                                            ...........

MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant Prosecuting Attorney, City of
Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

REBECCA BARTHELEMY-SMITH, Atty. Reg. No. 0003474, 7821 North Dixie Drive,
Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                            .............




WELBAUM, J.
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       {¶ 1} Defendant-Appellant, Barry Jones, appeals from his conviction of trespass.

Jones contends that his conviction was against the manifest weight of the evidence. In

addition, although not asserted as a separate assignment of error, he raises the issue of

sufficiency of the evidence. For the reasons discussed below, we conclude that the

assignment of error is without merit. Accordingly, the judgment of the trial court will be

affirmed.



                              I. Facts and Course of Proceedings

       {¶ 2} On March 31, 2019, a criminal complaint was filed in Fairborn Municipal

Court, alleging that Jones had committed trespass, a fourth-degree misdemeanor. After

Jones pled not guilty, the case was tried to the court, which found Jones guilty as charged.

The court then sentenced Jones to 30 days in jail, with credit for one day served, and

suspended the remaining 29 days. The court also imposed $250 in fines and court costs,

but suspended $150 of the costs. Jones then timely appealed to our court.



                                 II. Manifest Weight Challenge

       {¶ 3} Jones’s sole assignment of error states that:

              The Lower Court Erred in Finding Barry Jones Guilty of Trespass

       Which Was Against the Manifest Weight of the Evidence.

       {¶ 4} Under this assignment of error, Jones contends that his conviction was

against the manifest weight of the evidence because the complainant’s testimony was not

believable. According to Jones, the more reasonable version of events was the one he

told at trial. Jones also contends that the conviction was not supported by sufficient
                                                                                        -3-


evidence, but he does not specify why this is the case.

      {¶ 5} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). In this situation, we apply the test from State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), which states:

             An appellate court's function when reviewing the sufficiency of the

      evidence to support a criminal conviction is to examine the evidence

      admitted at trial to determine whether such evidence, if believed, would

      convince the average mind of the defendant's guilt beyond a reasonable

      doubt. The relevant inquiry is whether, after viewing the evidence in a light

      most favorable to the prosecution, any rational trier of fact could have found

      the essential elements of the crime proven beyond a reasonable doubt.

(Citation omitted). Id. at paragraph two of the syllabus.

      {¶ 6} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation,

a “ ‘court reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines 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. The discretionary power

to grant a new trial should be exercised only in the exceptional case in which the evidence
                                                                                         -4-


weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Accord State v. Drummond, 111

Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. “ ‘The fact that the evidence is

subject to different interpretations does not render the conviction against the manifest

weight of the evidence.’ ” State v. Brock, 2019-Ohio-3116, 140 N.E.3d 1239, ¶ 17 (2d

Dist.), quoting State v. Adams, 2d Dist. Greene Nos. 2013-CA-61, 2013-CA-62, 2014-

Ohio-3432, ¶ 24.

       {¶ 7} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No.

10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d

501, ¶ 58 (2d Dist.). Consequently, “a determination that a conviction is supported by

the weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations

omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

       {¶ 8} Furthermore, “[b]ecause the factfinder * * * has the opportunity to see and

hear the witnesses, the cautious exercise of the discretionary power of a court of appeals

to find that a judgment is against the manifest weight of the evidence requires that

substantial deference be extended to the factfinder's determinations of credibility. The

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witness.”

State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

       {¶ 9} At trial, the State presented testimony from the following persons:
                                                                                        -5-


complainant “Donnita”; Dayton Police Officer Florijan Urekar, who was called to the scene

on March 30, 2019; and Dayton Police Officer Joseph Ambrose, who had responded to

the same address in December 2018.          Jones testified on his own behalf and also

presented testimony from his brother, Cory Driscoll.

        {¶ 10} According to the evidence, Officer Ambrose was dispatched on December

9, 2018, to a home on Almore Street in Dayton, Ohio. The call concerned a domestic

dispute. When he arrived, Donnita, Jones, and their daughter, Jane, were present.1

Jones and Donnita were arguing, and Donnita said that she did not want Jones around

the house or the kids anymore. Jones left the premises, and Officer Ambrose told him

as he was leaving that if he returned to the residence, he would be arrested. Ambrose

did not give Jones a written notice, nor did he tell him the length of the trespass order.

Transcript of Proceedings (“Tr.”) p. 81 and 83. Ambrose indicated that he does not

usually tell people the length of a trespass order. People are supposed to stay away for

one year unless the homeowner or business states otherwise. However, Ambrose did

not tell Jones that. Tr. p. 83. He also did not recall if he used the word “trespass” that

night, but said he always uses it. Tr. p. 135.

        {¶ 11} After informing Jones that he had been trespassed and was not welcome

back, Ambrose documented this by completing a field interview card in the police

department’s M.I.S. system. Thus, whenever another officer ran Jones’s information,

the officer could see the date and time of the prior contact, who wrote the interview card,

and who trespassed Jones, with the phone number listed.

        {¶ 12} Jones did not return to Donnita’s house until March 30, 2019, which was the


1   To protect the minor’s privacy, we are substituting a pseudonym for her name.
                                                                                         -6-


weekend after Jane’s birthday. Donnita was planning a birthday party for Jane for that

weekend and texted Jones about it on March 29, 2019. In the text, Donnita stated that

“It’s important,” “I need help for [Jane’s] thing tomorrow,” and “Call me back as soon as

possible.” State’s Ex. 1, p. 1. Because Jones was out of town (he was a truck driver)

and had a bad phone signal, he told Donnita he would try to call her.

       {¶ 13} A few minutes later, Jones called Donnita. According to Donnita, she was

not reaching out for Jones’s help in setting up the party or decorating; she told Jones over

the phone that she needed financial help. They also did not discuss the party. Instead,

the conversation went sour because Jones criticized her parents. As a result, Donnita

told Jones not to worry about helping her. Tr. at p. 19-20.

       {¶ 14} According to Donnita, she did not talk to Jones thereafter before he arrived

at the party the next day. She did talk with Jones’s brother, Driscoll, who was coming to

the party to bring some gifts. On the day of the party, Driscoll called to see what Jane

would like for her birthday. Tr. p. 23 and 37. During the call, Driscoll reassured Donnita

that she did not have anything to worry about because he and Jones were not even talking

to each other at the time. Tr. p. 24.

       {¶ 15} The testimony of Jones and Driscoll differed from that of Donnita. They

both testified that Donnita called Driscoll’s phone while they were at Walmart buying gifts

for Jane. Tr. p. 88, 97, and 113. Jones stated that he talked to Donnita for a few

seconds, and Donnita then put Jane on the phone to talk about what gifts Jane wanted.

Tr. p. 112 and 113.   According to Driscoll, Donnita knew he was with Jones because he

told her. Tr. p. 90. After buying the gifts, Jones and Driscoll went to Donnita’s house.

Tr. p. 89 and 91.
                                                                                          -7-


       {¶ 16} A dispute also existed about what occurred after the men arrived. Donnita

testified that she saw Jones’s truck pull up and realized that he and Driscoll were together.

Donnita further stated that when the men came to the house, they let themselves in the

front door rather than being admitted. In addition, Donnita said that she asked Driscoll

why he had misled her. She also told Jones at least 50 times to leave. When Jones

did not leave, Donnita called the police. She called from a different part of the house

because she did not want Jones to know, since he would leave if he knew the police were

coming. Tr. p. 29.

       {¶ 17} Jones and Driscoll told a different story, claiming that Donnita came to the

door and let them in the house. Tr. at p. 101. They also claimed that Donnita did not

tell Jones to leave. Tr. p. 92 and 117. All three agree, however, that Jones and Driscoll

stayed in the hall by the front door and did not go anywhere else in the house. Tr. p. 31,

40, 93, and 115.

       {¶ 18} About 10 to 15 minutes after Donnita called, the police arrived. Although

Jones said he would leave, the police arrested him based on the previous trespass. Tr.

p. 32-33 and 62.

       {¶ 19} Jones’s account was that the December 2018 incident occurred when

Donnita refused to give him his clothes and he called the police to come. Tr. p. 119. He

also denied ever being told that he had been trespassed from the property, although he

did acknowledge that he had been told not to come back. Tr. p. 118. Jones indicated

that he was there on March 30 only to drop off gifts and pay for pizza, and that Donnita

never told him to leave. Tr. p. 115 and 117.

       {¶ 20} After the trial judge heard the evidence, she stated that the court had
                                                                                           -8-


listened to all the testimony and evaluated the credibility of the witnesses, and “of the

three witnesses that testified, I just find all three of them [have] maginable [sic] credit in

terms of credibility.”    Tr. p. 157.   The judge then concluded that she did not have

sufficient evidence to determine, beyond a reasonable doubt, that the December 2018

communication was enough to establish that Jones was not supposed to be at the

premises. Tr. p. 158. However, the judge then concluded that under the essential

elements of the crime, Jones clearly remained on the property once he was asked to

leave. Id. In particular, the judge stressed that she believed Donnita’s testimony that

she asked Jones to leave. Id. The judge, therefore, found Jones guilty and imposed

sentence as indicated above. Tr. p. 158 and 168-169.

       {¶ 21} As noted, Jones was charged with having violated R.C. 2911.21(A)(3),

which provides that:

              (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;

       {¶ 22} Privilege, for purposes of the Revised Code, “means an immunity, license,

or right conferred by law, bestowed by express or implied grant, arising out of status,
                                                                                              -9-


position, office, or relationship, or growing out of necessity.” R.C. 2901.01(12).

          {¶ 23} The court’s conclusion at trial was that the State failed to establish the prior

order as a required part of the crime with which Jones was charged, i.e., that Jones

recklessly entered or remained on Donnita’s property after notice of unauthorized access.

In particular, the court concluded there may have been some confusion regarding the

December 18, 2018 situation, and that the officer’s notice was not the best way to handle

things.     Tr. p. 162.     The court also said there may have been a better way of

communicating the warning. Tr. p. 163.

          {¶ 24} Nonetheless, the court found that the elements of trespass were proven and

in the court’s entry of judgment (rather than the transcript), the court stated that Jones

had been found guilty of having violated R.C. 2911.21(A)(3). See Judgment, p. 1.

          {¶ 25} Although the trial court was concerned with respect to the adequacy of the

prior warning under R.C. 2911.21(A)(3), we have previously held (as the State notes) that

“[t]he statute does not require that [a defendant] be given notice, prior to his entry into the

[premises], that his invitation to use the premises may be revoked so as to make his

continued presence unauthorized.” State v. Thomas, 2d Dist. Clark No. 95 CA 22, 1995

WL 472152, *2 (Aug. 9, 1995).

          {¶ 26} In Thomas, the defendant caused a scene at a Meijer store and was asked

to leave, but he refused. After police officers arrived and calmed the defendant down,

he left the store. He was then charged with a violation of R.C. 2911.21(A)(3). Id. at *1.

In affirming the conviction for that charge, we rejected the defendant’s argument that “the

state was required to prove that he was given notice of restricted land use prior to his

entry onto the premises.” Id. at *2.
                                                                                           -10-


        {¶ 27} In this regard, we observed that:

               The record supports the jury's finding that Thomas recklessly

        remained at Meijer after having been actually and personally told that his

        continued presence was unauthorized. The trial court did not err in

        overruling Thomas’ motion for acquittal based on the state's alleged failure

        of proof. The plain language of the statute indicates that the state was not

        required to prove “prior notice of land restrictions” as an element of the

        offense.

Id. at *3.

        {¶ 28} Thus, the trial court incorrectly concluded that the prior order was a required

part of the crime. Under our decision in Thomas, the State was not required to prove the

prior trespass notice. Instead, the State only needed to prove that Jones recklessly

remained on the premises after he was told to leave. However, despite this error, the

court correctly found Jones guilty of trespass, both in its oral discussion and in the

judgment entry, where the court stated that Jones was guilty of having violated R.C.

2911.21(A)(3).

        {¶ 29} In Ohio, “courts speak only through their journal entries.” Kaine v. Marion

Prison Warden, 88 Ohio St.3d 454, 455, 727 N.E.2d 907 (2000). Accord State v. Smith,

2d Dist. Montgomery No. 26217, 2015-Ohio-700, ¶ 10 (“a court speaks only through its

journal entries, not through its oral pronouncements”). Consequently, the court’s oral

statement at trial does not control.

        {¶ 30} The remaining issue, therefore, is whether the judgment was against the

manifest weight of the evidence. We conclude that the judgment was not against the
                                                                                             -11-


weight of the evidence. This finding also disposes of the sufficiency argument.

       {¶ 31} As a preliminary point, we note that Officer Urekar spoke with Jones on the

front porch for several minutes on March 30, 2019. During this conversation, Jones

asked if he was going to jail, and Urekar responded that if Jones had been trespassed,

he was going to jail. Tr. p. 59. During the conversation, Jones also stated that he had

been trespassed. Id. Urekar could not verify the prior trespass at that point, but a

subsequent computer check revealed that Jones had previously been trespassed, and

he was then arrested. Tr. p. 60-61.

       {¶ 32} Thus, as background for the current trespass, Jones knew that he

previously had been told not to come back to the property; in fact, he admitted this at trial.

Tr. p. 118. In light of this background and the turbulent relationship between the parties,

Jones acted recklessly in remaining on the premises after Donnita told him to leave.

       {¶ 33} Notably, while the trial court did not find the parties credible in general, it did

specifically find Donnita credible on the issue of whether she asked Jones to leave. Tr.

158.   Since we defer to trial court decisions on credibility, we cannot find that the

judgment was against the manifest weight of the evidence.

       {¶ 34} Based on the preceding discussion, Jones’s sole assignment of error is

overruled.



                                           III. Conclusion

       {¶ 35} Jones’s assignment of error having been overruled, the judgment of the trial

court is affirmed.
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                                .............



DONOVAN, J. and HALL, J., concur.



Copies sent to:

Matthew Kortjohn
Rebecca Barthelemy-Smith
Hon. Deirdre E. Logan
