[Cite as State v. Clarke, 2013-Ohio-5857.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 13-CA-51
JERMAINE A. CLARKE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Municipal
                                               Court, Case No. 13 CRB 00564


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        December 26, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


J. MICHAEL KING                                ROBERT E. CALESARIC
Assistant Law Director                         35 South Park Place, Suite 150
City of Newark                                 Newark, Ohio 43055
40 West Main Street
Newark, Ohio 43055
Licking County, Case No. 13-CA-51                                                        2

Hoffman, J.


       {¶1}   Defendant-appellant Jermaine A. Clarke appeals his conviction entered by

the Licking County Municipal Court. Plaintiff-appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   At all times relevant herein, Appellant and K.C. had been involved in a

dating relationship and recently ended their relationship. K.C. lived with her daughter in

Section 8 housing.

       {¶3}   On March 23, 2013, K.C. was awakened in the middle of the night to

someone tossing mulch against her bedroom window. She went to the first floor, and

found Appellant had come to see her. She informed Appellant she was tired, and he

should come back the next day. Appellant did not leave, and asked why he was not

being invited inside. K.C. did not take the chain off the door, and refused to allow

Appellant inside, repeating he should return the next day. Appellant put his hand and

foot in the door frame, until K.C. said she would allow him inside. Upon removing his

hand and foot, K.C. shut the door and refused to allow Appellant inside the residence.

       {¶4}   Appellant left the premises. However, K.C. soon heard knocking at the

door and learned Appellant had returned.

       {¶5}   During the entire incident, Appellant was told to leave at least five times,

and returned two times. K.C. then called the police on her cell phone.

       {¶6}   As a result, Appellant was charged with criminal trespass, in violation of

Pataskala City Ordinance 541.05, which is identical to R.C. 2911.21.

       {¶7}   Subsequent to the criminal complaint, K.C. and Appellant discussed K.C.

dropping the charges. K.C. filed a statement with the Pataskala City Law Director,
Licking County, Case No. 13-CA-51                                                      3


stating she never asked Appellant to leave. However, K.C. then testified at trial the

statement was false and she had asked Appellant to leave on five occasions during the

incident.

       {¶8}   Following a trial to the court, Appellant was found guilty of the charge of

criminal trespass and fined $100, plus court costs.

       {¶9}   Appellant now appeals, assigning as error:

       {¶10} “I. THE TRIAL COURT ERRED WHEN IT REACHED A VERDICT OF

GUILTY THAT DEFENDANT DID, WITHOUT PRIVILEGE TO DO SO, KNOWINGLY

ENTERED [SIC] OR REMAINED [SIC] ON THE LAND OR PREMISES OF MS.

COWELL.”

       {¶11} Appellant maintains his conviction for criminal trespass is against the

manifest weight and sufficiency of the evidence.

       {¶12} In State v. Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, the Ohio

Supreme Court set forth the standard of review when a claim of insufficiency of the

evidence is made. The Ohio Supreme Court held: “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. Id. at paragraph two of the syllabus.

       {¶13} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the
Licking County, Case No. 13-CA-51                                                        4


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 judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

only in the exceptional case in which the evidence weighs heavily against the

judgment.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678 N .E.2d

541, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. Because

the trier of fact is in a better position to observe the witnesses' demeanor and weigh

their credibility, the weight of the evidence and the credibility of the witnesses are

primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d

212, syllabus 1.

      {¶14} Appellant was convicted of criminal trespass in violation of Pataskala City

Ordinance 541.05, which reads:

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

      {¶16} "(1) Knowingly enter or remain on the land or premises of another;

      {¶17} "(2) Knowingly enter or remain on the land or premises of another, the use

of which is lawfully restricted to certain persons, purposes, modes, or hours, when the

offender knows the offender is in violation of any such restriction or is reckless in that

regard;

      {¶18} "(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;
Licking County, Case No. 13-CA-51                                                        5


       {¶19} "(4) Being on the land or premises of another, negligently fail or refuse to

leave upon being notified by signage posted in a conspicuous place or otherwise being

notified to do so by the owner or occupant, or the agent or servant of either."

       {¶20} Appellant maintains the State failed to prove he did not have privilege to

enter or remain on the premises.        However, we find the record contains sufficient,

competent evidence Appellant did not live at the residence, did not have a key to the

residence, was not invited inside or asked to remain. The record establishes Appellant

remained on the premises and returned thereto having been told at least five times to

leave, despite K.C.’s statement recanting the same. It was up to the trier-of-fact to

determine which version of K.C.’s statements to believe.

       {¶21} Accordingly, we do not find the trier of fact erred in finding all of the

elements of the charge proven beyond a reasonable doubt, and the trial court did not

lose its way in finding Appellant guilty of criminal trespass.

       {¶22} The first and second assignments of error are overruled.

       {¶23} Appellant's conviction in the Licking County Municipal Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur
                                               ___________________________________
                                               HON. WILLIAM B. HOFFMAN


                                               ___________________________________
                                               HON. W. SCOTT GWIN


                                               ___________________________________
                                               HON. PATRICIA A. DELANEY
Licking County, Case No. 13-CA-51                                                 6


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
JERMAINE A. CLARKE                          :
                                            :
       Defendant-Appellant                  :         Case No. 13-CA-51


       For the reasons stated in our accompanying Opinion, Appellant's conviction in

the Licking County Municipal Court is affirmed. Costs to Appellant.




                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. W. SCOTT GWIN


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
