[Cite as State v. Myers, 2020-Ohio-59.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          MADISON COUNTY




STATE OF OHIO,                                  :

       Appellee,                                :     CASE NO. CA2019-01-003

                                                :              OPINION
    - vs -                                                      1/13/2020
                                                :

JOSEPH L. MYERS,                                :

       Appellant.                               :




             CRIMINAL APPEAL FROM MADISON COUNTY MUNICIPAL COURT
                               Case No. CRB1800750



Stephen J. Pronai, Madison County Prosecuting Attorney, 59 North Main Street, London,
Ohio 43140, for appellee

L. Patrick Mulligan & Associates, LLC, Laura M. Woodruff, L. Patrick Mulligan, 28 North
Wilkinson Street, Dayton, Ohio 45402, for appellant



        RINGLAND, J.

        {¶ 1} Appellant, Joseph Myers, appeals his conviction in the Madison County

Municipal Court after a jury found him guilty of criminal mischief. For the reasons detailed

below, we affirm.

        {¶ 2} On September 20, 2018, appellant was charged with one count of criminal

mischief in violation of R.C. 2909.07(A)(1), a third-degree misdemeanor. The state alleged
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that appellant had knocked down and removed a section of fence located in the Paint

Township Cemetery. Appellant appeared without an attorney and represented himself pro

se.

       {¶ 3} Pertinent to this matter is a long-held grievance by appellant against the

Township. Appellant owns property and lives next door to the cemetery. In a pretrial filing to

the court, appellant submitted a series of deeds, surveys, correspondence, and

miscellaneous interpretations of the law with respect to, among other things, boundary lines

and permissible uses of the cemetery. According to the record before this court, appellant

believes that, based on his review of the deeds, surveys, and interpretations of law, that there

is a public roadway that the Township is denying public access to or blocking.

       {¶ 4} Throughout these proceedings, appellant filed three sets of subpoenas for

various County and Township officials and employees. On October 9, 2018, appellant

commanded the following individuals to appear at a pretrial conference duces tecum: (1)

Dave Hughes with the Madison County Zoning Department, (2) Bryan Dhume, a Madison

County Engineer, (3) Phil Eades, a Paint Township Trustee, (4) Steve Cordell, a second

Paint Township Trustee. The subpoenas requested that the individuals provide him "all and

every piece of information" and "all paperwork, zoneing [sic] request, orders written and

verbal, letters, notes of any kind including texts" relating to the Paint Township Cemetery and

adjoining property. The state moved to quash the subpoenas as overbroad, oppressive,

unreasonable, irrelevant, vague, and filed under the wrong case number. The trial court

granted the state's motion to quash.

       {¶ 5} On October 22, 2018, appellant reissued the subpoenas for the same four

individuals for a jury trial scheduled on November 1, 2018. The subpoenas were also

requested duces tecum, again requesting "all and every piece of information" or "all

paperwork" relating to the cemetery. The state, again, moved to quash, which the trial court
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granted. However, the trial was continued until January 17, 2019.

       {¶ 6} On January 8, 2019, appellant reissued just one subpoena for Trustee Cordell

and requested that he "[b]ring all paperwork regarding said Fence including receipts and date

at installation." The subpoena for Cordell commanded him to appear on January 16, 2019 at

10:30 am, the day before trial. The state did not move to quash the subpoena and it is not

known whether Cordell appeared.

       {¶ 7} The matter proceeded to a jury trial on January 17, 2019. The state presented

the testimony of Jared Miller, a seasonal employee with the Township who was hired to cut

the cemetery's lawn. At trial, Miller testified that he had observed appellant driving a tractor

along the fence line. When Miller approached the area where the tractor had been, he

observed that the fence had been pulled down and dragged down a hill.

       {¶ 8} Deputy Wesley Davis was dispatched to the cemetery to investigate the

damage to the fence. Deputy Davis observed the damaged fence and interviewed Miller and

appellant. Deputy Davis testified that appellant was very evasive and refused to answer "yes

or no" questions.

       {¶ 9} Next, Trustee Jeff Kibler testified that appellant did not have permission to tear

down the cemetery fence. Kibler testified that the fence was erected by the Township to limit

access to the cemetery and to prevent rural snowmobilers and four-wheelers from driving

through the cemetery. Kibler stated that appellant has had issues with the Township with

regard to the fence and had previously expressed a desire to remove the fence.

       {¶ 10} Following the admission of exhibits, the state rested. Appellant attempted to

call Cordell as a witness. However, since the subpoena was issued for the wrong day,

Cordell was not in attendance and was not subject to the subpoena. Therefore, appellant

proceeded with his own testimony.

       {¶ 11} Appellant testified that he "moved" the fence but denied any wrongdoing.
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Instead, appellant maintained that he was the true owner of the fence due to property he

acquired from a trust. Upon conclusion of the testimony, the matter was submitted to the jury

for deliberation. Thereafter, the jury found appellant guilty of criminal mischief. Appellant

now appeals, raising four assignments of error for review.

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} THE TRIAL COURT ERRED IN SUSTAINING THE STATE'S MOTIONS TO

QUASH THE DEFENDANT'S SUBPOENAS.

       {¶ 14} In his first assignment of error, appellant argues the trial court erred by granting

the state's motions to quash. Appellant's argument is without merit.

       {¶ 15} Crim.R. 17(C) confers upon the trial court the discretion to quash or modify a

subpoena, on motion of a party, if compliance would be "unreasonable or oppressive." State

v. Baker, 12th Dist. No. CA2009-06-079, 2010-Ohio-1289, ¶ 15. A trial court's decision on a

motion to quash is reviewed for an abuse of discretion. Id. An abuse of discretion implies

more than an error of law or judgment; it suggests that the trial court acted in an

unreasonable, arbitrary, or unconscionable manner. State v. Barnes, 12th Dist. Brown No.

CA2010-06-009, 2011-Ohio-5226 at ¶ 23.

       {¶ 16} Pursuant to Crim.R. 17(C), when deciding a motion to quash a subpoena duces

tecum prior to trial, a trial court must hold an evidentiary hearing. Baker at ¶ 21, citing In re

Subpoena Duces Tecum Served Upon Atty. Potts, 100 Ohio St. 3d 97, 2003-Ohio-5234, ¶

16. At the hearing, the burden is on the proponent of the subpoena to demonstrate that the

subpoena is not unreasonable or oppressive. State v. Widmer, 12th Dist. Warren No.

CA2011-03-027, 2012-Ohio-4342, ¶ 129. The proponent accomplishes this by showing:

              that the documents are evidentiary and relevant; (2) that they are
              not otherwise procurable reasonably in advance of trial by
              exercise of due diligence; (3) that the party cannot properly
              prepare for trial without such production and inspection in
              advance of trial and that the failure to obtain such inspection may
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              tend unreasonably to delay the trial; and (4) that the application
              is made in good faith and is not intended as a general "fishing
              expedition."

Id., quoting United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090 (1974).

       {¶ 17} The Third District Court of Appeals recently addressed a similar issue in State

v. Bennett, 3d Dist. Wyandot No. 16-19-03, 2019-Ohio-4937, where the court found that, in

limited circumstances, the failure to hold a hearing can be subject to a harmless error

analysis if the subpoena was plainly improper. Id. at ¶ 85, citing Miamisburg v. Rinderle, 2d

Dist. Montgomery No. 26094, 2015-Ohio-351, ¶ 20.

       {¶ 18} In Bennett, the defendant was convicted of gross sexual imposition of a child.

Id. at ¶ 1. On appeal, the defendant argued that the trial court erred by failing to hold an

evidentiary hearing before quashing a subpoena for tax records of the child's parents. Id. at

¶ 75. Noting that a hearing should be held pursuant to Potts, the court expressed hesitation

in reversing a verdict where the record demonstrates that the subpoena plainly had no merit

and would have no impact on a trial that had already occurred. Id. at ¶ 85. Instead, the court

found that the subpoenas were mere fishing expeditions to find potentially impeachable

information. Id. at ¶ 86.

       {¶ 19} Following review, we believe this case represents such an instance where a

harmless error analysis should be employed. We begin by noting that all of the subpoenas

were inartfully drafted and requested documents that would be difficult, if not impossible, to

comply with. For example, appellant requests "all and every piece of information" related to

practically all areas of Township cemetery matters. In addition, appellant requests the

production of documents including "orders written and verbal." It is not at all clear how the

Township could comply with such a request.

       {¶ 20} This is compounded by various errors appellant made in his subpoenas. The

first set of subpoenas requested the presence of the four listed witnesses for a pretrial
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conference where there is no suggestion that any testimony or evidence was to be heard.

The second set of subpoenas were issued for the appropriate day, but the trial was ultimately

continued.   Appellant's final attempt to subpoena a witness commanded the witness'

attendance on the wrong day.

       {¶ 21} The record also reflects that the information sought from the subpoenaed

individuals was plainly improper as it relates to information excluded by the trial court. In this

case, the trial court granted the state's motion in limine, which "restrict[ed] any discussions

about the lane going back into the cemetery being a public road or having access to a public

road." Though appellant claims the subpoenaed individuals "would have relevant information

about the fence, its location, property ownership, and whether the defendant has permission

to alter the fence," this is plainly a reference to his argument concerning deeds, surveys,

correspondence, and miscellaneous interpretations of the law with respect to, among other

things, the boundary lines and permissible uses of the cemetery. The trial court found that

appellant's submitted materials on that issue were "sketchy and haphazard at best" and if he

wished to pursue those matters the appropriate venue was through a civil action or zoning

petition.

       {¶ 22} Though we recognize that appellant was acting pro se in the proceedings

below, pro se litigants are bound by the same rules and procedures as members of the bar,

regardless of their familiarity with them. State v. Miller, 12th Dist. Clermont No. CA2016-08-

057, 2017-Ohio-2801, ¶ 22. Pro se litigants are not to be accorded greater rights and must

accept the results of their own mistakes and errors, including those related to correct legal

procedure. State v. Kline, 12th Dist. Warren No. CA2004-10-125, 2005-Ohio-4336, ¶ 9.

Under these specific factual circumstances, we decline to find reversible error and instead

find that any error was, at worst, harmless. Therefore, because we find the trial court

committed, at worst, harmless error, we overrule appellant's first assignment of error.
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       {¶ 23} Assignment of Error No. 2:

       {¶ 24} THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY ABOUT THE

DEFENDANT'S STATEMENTS IN VIOLATION OF THE FIFTH AMENDMENT.

       {¶ 25} In his second assignment of error, appellant argues the trial court violated his

Fifth Amendment Rights. Appellant's second assignment of error is without merit.

       {¶ 26} During trial, Deputy Davis testified that he tried to speak with appellant as part

of his investigation, but found him to be "uncooperative," "beat around the bush," and was

evasive. Deputy Davis testified that appellant "would not answer yes or no" to his questions

and "refused to make a statement." When Deputy Davis asked appellant if he had removed

the fence, appellant refused to provide a yes or no answer, and instead went to get some

papers from the basement. It is undisputed that appellant did not object to the statements.

Therefore, this issue is reviewed under the plain error standard.

       {¶ 27} Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court." Plain error

exists where there is an obvious deviation from a legal rule that affected the defendant's

substantial rights by influencing the outcome of the proceedings. State v. Barnes, 94 Ohio

St.3d 21, 27, 2002-Ohio-68. "Plain error does not exist unless it can be said that but for the

error, the outcome of the trial would clearly have been otherwise." State v. Biros, 78 Ohio

St.3d 426, 436 (1997). This court should notice plain error with the utmost caution, under

exceptional circumstances and only to prevent a miscarriage of justice. Widmer, 2012-Ohio-

4342 at ¶ 84.

       {¶ 28} The use of a defendant's prearrest silence as substantive evidence of guilt

violates the Fifth Amendment privilege against self-incrimination. State v. Leach, 102 Ohio

St.3d 135, 2004-Ohio-2147, syllabus. In Leach, the Ohio Supreme Court held, in limited

circumstances, testimony concerning prearrest silence is appropriate if it is introduced as
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evidence of the "course of the investigation." Id. at ¶ 32. The court concluded that while it

was improper to admit the investigator's direct testimony regarding the defendant's decision

to exercise his right to silence through the invocation of counsel over the telephone, the

investigator's testimony regarding the defendant's failure to keep his scheduled appointment

with the police was "legitimate." Id.

       {¶ 29} Following review of the record, it is clear that Deputy Davis was not commenting

on appellant's silence, but rather his nonresponsive and evasive answers to questions

appropriately asked during the course of an investigation. Consistent with Leach, Deputy

Davis' testimony was related to the course of his investigation and was "legitimate."

Furthermore, appellant did not invoke his right to silence and, in fact, testified in his own

defense at trial. The Ohio Supreme Court has held that pre-Miranda silence may be used for

impeachment purposes if the defendant testifies at trial. See Leach at ¶ 21-23, citing Jenkins

v. Anderson, 447 U.S. 231, 100 S.Ct. 2124 (1980). In this case, Deputy Davis' testimony

was not an improper comment of appellant's right to silence, nor was it improper as appellant

testified at trial. As a result, we find appellant was not deprived of his Fifth Amendment

Rights. There was no error, much less plain error, with regard to Deputy Davis' testimony.

Appellant's second assignment of error is overruled.

       {¶ 30} Assignment of Error No. 3:

       {¶ 31} THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

       {¶ 32} Assignment of Error No. 4:

       {¶ 33} THE SUFFICIENCY OF THE EVIDENCE DOES NOT SUPPORT THE

APPELLANT'S CONVICTIONS.

       {¶ 34} In his third and fourth assignments of error, appellant argues that his conviction

is not supported by sufficient evidence and is against the manifest weight of the evidence.
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Appellant's argument is without merit.

       {¶ 35} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would support a conviction. State v. Workman, 12th Dist. Clermont Nos. CA2016-

12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 20. 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."

State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-2321, ¶ 22.

       {¶ 36} 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. Bradbury, 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17. An appellate

court will overturn a conviction due to the manifest weight of the evidence only in

extraordinary circumstances when the evidence presented at trial weighs heavily in favor of

acquittal. Id. at ¶ 18. A "determination that a conviction is supported by the manifest weight

of the evidence will also be dispositive of the issue of sufficiency." State v. Peyton, 12th Dist.

Butler No. CA2015-06-112, 2017-Ohio-243, ¶ 48.

       {¶ 37} Criminal mischief requires the state prove that appellant, without privilege to do

so, knowingly moved, defaced, damaged, destroyed, or otherwise improperly tampered with

the property of another. R.C. 2909.07(A)(1).

       {¶ 38} The state presented evidence of the eyewitness, Miller, who observed appellant

driving his tractor back and forth. Later, Miller observed that appellant had torn down and

moved the cemetery fence.
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       {¶ 39} The state also presented evidence that Paint Township erected and owned the

fence in question and appellant did not have permission to tear down the fence. Trustee

Kibler testified that the Township erected the fence to keep the general public from passing

through the cemetery for inappropriate purposes. According to Kibler, "we put it in there

because in a rural area, people's snowmobiles, four wheelers, dirt bikes. And we can't have

them running in and out of the cemetery. It's just, I mean, that's the reason we put it up."

Kibler further explained that the fence has been a source of disagreement between the

Township and appellant. Kibler explained that appellant "wanted access to the back of his

property * * * he thinks he should be able to use our bridge and our driveway to access the

back of his property to cross the creek."

       {¶ 40} Appellant testified on his own behalf and admitted that he removed the fence.

However, in a lengthy declaration, appellant denied owning the tractor discussed during trial,

and claimed to have bought property in 1991 that made him the true owner of the fence.

Appellant then stated that he suffered from a disability and isn't some "beach guy" that could

"tear this fence up." Appellant then continued to express disagreement with some of the

testimony and aired certain grievances he had with the Township.

       {¶ 41} Following review, we find appellant's conviction is supported by sufficient

evidence and the jury's verdict is not against the manifest weight of the evidence. The jury

heard evidence that appellant removed the cemetery fence and the state presented evidence

that the Township owned the fence and did not give appellant permission to remove it. While

appellant argued that he was the true owner of the fence, it is well established that "a

conviction is not against the manifest weight of the evidence simply because the jury believed

the prosecution testimony." State v. Bates, 12th Dist. Butler No. CA2009-06-174, 2010-Ohio-

1723, ¶ 11. As the trier of fact in this case, the jury was in the best position to judge the

credibility of witnesses and the weight to be given the evidence. State v. Davis, 12th Dist.
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Butler No. CA2010-06-143, 2011-Ohio-2207, ¶ 43. To the extent that appellant claims

ownership of the fence, or takes issue with the interpretation of past deeds, those are matters

that should be addressed through proper civil channels. Appellant was not permitted to

resort to "self-help" remedies by destroying the Township's fence. As a result, appellant's

third and fourth assignments of error are overruled.

       {¶ 42} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.




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