[Cite as State v. Haley, 2014-Ohio-2515.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. William B. Hoffman, P.J.
                                              :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 2014CA0002
THOMAS J. HALEY                               :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Coshocton
                                                  Municipal Court, Case No. CRB1300771

JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           June 9, 2014




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

CHRISTIE M.L. THORNSLEY                           JEFFREY MULLEN
760 Chestnut Street                               239 N. Fourth Street
Coshocton, OH 43812                               Coshocton, OH 43812

JAMES R. SKELTON
318 Chestnut Street
Coshocton, OH 43812
[Cite as State v. Haley, 2014-Ohio-2515.]


Gwin, J.

        {¶1}     Defendant-appellant Thomas J. Haley [“Haley”] appeals his conviction and

sentence after a bench trial in the Municipal Court of Coshocton County on one count of

criminal trespass in violation of R.C. 2911.21(A)(1).

                                            Facts and Procedural History

        {¶2}     On November 14, 2013, Melanie Erman was in the dining room of her

home. Upon turning around, she was startled to see Haley standing in her home. Ms.

Erman testified that she did not hear Haley knock before entering her home; however if

he had her dog would have barked. Ms. Erman testified Haley had been to her home

before; however, he was never given permission to enter her home without knocking.

When Ms. Erman asked Haley how he got in her house, Haley stated that he had

entered through the back door. Ms. Erman stated that a four-foot privacy fence enclosed

her back yard. Ms. Erman further stated that because of the privacy fence, people do

not enter her home through the back door.

        {¶3}     Ms. Erman testified that Haley and her husband had been into an

altercation approximately six months before this incident. The sheriff's office responded

to the residence. No one was arrested, but both Ms. Erman's husband, James, and the

Sheriff's deputy advised Haley he was no longer permitted at the Erman's home.

        {¶4}     In the case at bar, Ms. Erman told Haley to leave. Haley responded with a

request to use the telephone. Ms. Erman consented. Haley made a telephone call and

no one appeared to answer. When he hung up the phone, Ms. Erman repeated that

Haley had to leave the home. Haley asked if he could use the telephone to call a cab.

Ms. Erman allowed him to make this second telephone call but advised him he would
Coshocton County, Case No. 2014CA0002                                                 3


have to wait for the cab outside. Haley made the second telephone call and then left the

residence. Shortly thereafter, Ms. Erman received a telephone call. The caller advised

that the sheriff's office was looking for Haley.

       {¶5}   Ms. Erman did not call the Sheriff’s Office or file a criminal complaint.

Sheriff’s deputies came to her home, interviewed her about the incident. Haley was then

charged with criminal trespass.

                                        Assignment of Error

       {¶6}   Haley raises one assignment of error,

       {¶7}   “I. THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

                                              Analysis

       {¶8}   Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶68.

       {¶9}   Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
Coshocton County, Case No. 2014CA0002                                                         4


St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. 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. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue,

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶10} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.
Coshocton County, Case No. 2014CA0002                                                    5


                                           ***

               “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶11} In the case at bar, Haley was found guilty of criminal trespass. To prove

Haley guilty of criminal trespass in violation of R.C. 2911.21(A)(1), the state had to

prove that Haley knowingly entered or remained on the land or premises of another

without privilege to do so.

       {¶12} R.C. 2901.22 defines “knowingly” as follows:

              (B) A person acts knowingly, regardless of his purpose, when he is

       aware that his conduct will probably cause a certain result or will probably

       be of a certain nature. A person has knowledge of circumstances when he

       is aware that such circumstances probably exist.

       {¶13} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” (Footnotes omitted). State v. Huff, 145 Ohio App.3d 555, 563,

763 N.E.2d 695(1st Dist. 2001). Thus, “[t]he test for whether a defendant acted

knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,

2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998) (citing State v. Elliott,

104 Ohio App.3d 812, 663 N.E.2d 412(10th Dist. 1995)).
Coshocton County, Case No. 2014CA0002                                                      6


       {¶14} R.C. 2901.01(A)(12) defines “privilege” 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.”

       {¶15} In the case at bar, Ms. Erman testified that Haley did not have permission

to enter her home on the day in question. Under Ohio law, a trespasser is “one who

unauthorizedly goes upon the private premises of another without invitation or

inducement, express or implied, but purely for his own purposes or convenience, and

where no mutuality of interest exists between the owner or occupant.” Allstate Fire Ins.

Co. v. Singler, 14 Ohio St.2d 27, 236 N.E.2d 79, 81 (1968).

       {¶16} She further testified that she asked him to leave multiple times during the

encounter. Remaining upon the premises of another without legal authority after being

notified to leave constitutes the offense of criminal trespass. See, e.g., State v. Carriker,

5 Ohio App.2d 255, 214 N.E.2d 809 (1964) (the law in Ohio is that a business invitee's

privilege to remain on the premises of another may be revoked upon the reasonable

notification to leave by the owner or his agents); Allstate Ins. Co. v. U.S. Associates

Realty, Inc., 11 Ohio App.3d 242, 464 N.E.2d 169 (1983) (notice of express restriction

or limitation on invitation turns business invitee into trespasser). CompuServe Inc. v.

Cyber Promotions, Inc., 962 F.Supp. 1015, 1024, (S.D.Ohio 1997).

       {¶17} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Haley committed the crime of criminal trespass. We hold, therefore, that the state met

its burden of production regarding each element of the crime of criminal trespass and,
Coshocton County, Case No. 2014CA0002                                                          7


accordingly, there was sufficient evidence to submit the charge to the trial judge as the

trier of fact and to support Haley’s conviction.

       {¶18} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,

201, 722 N.E.2d 125(7th Dist. 1999).

       {¶19} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

       {¶20} The trial judge as the trier of fact was free to accept or reject any and all of

the evidence offered by the parties and assess the witness’s credibility. "While the [trier

of fact] may take note of the inconsistencies and resolve or discount them accordingly

such inconsistencies do not render defendant's conviction against the manifest weight

or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999
Coshocton County, Case No. 2014CA0002                                                   8

WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,

1996 WL 284714 (May 28, 1996). Indeed, the [trier of fact] need not believe all of a

witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist.

Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67,

197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-

2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).

Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks, supra.

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts.

                                           ***

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).

      {¶21} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,

             The mere number of witnesses, who may support a claim of one or

      the other of the parties to an action, is not to be taken as a basis for
Coshocton County, Case No. 2014CA0002                                                     9


      resolving disputed facts. The degree of proof required is determined by

      the impression which the testimony of the witnesses makes upon the trier

      of facts, and the character of the testimony itself. Credibility, intelligence,

      freedom from bias or prejudice, opportunity to be informed, the disposition

      to tell the truth or otherwise, and the probability or improbability of the

      statements made, are all tests of testimonial value. Where the evidence is

      in conflict, the trier of facts may determine what should be accepted as the

      truth and what should be rejected as false. See Rice v. City of Cleveland,

      114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

             A fundamental premise of our criminal trial system is that “the [trier

      of fact] is the lie detector.” United States v. Barnard, 490 F.2d 907, 912

      (9th Cir. 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct.

      1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of

      witness testimony, therefore, has long been held to be the “part of every

      case [that] belongs to the [trier of fact], who [is] presumed to be fitted for it

      by [his] natural intelligence and their practical knowledge of men and the

      ways of men.” Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720,

      724-725, 35 L.Ed. 371 (1891).

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267(1997).

      {¶22} Haley’s initial intrusion inside the home was not justified. No evidence was

presented that Haley had a privilege to step inside Ms. Erman’s home unannounced to

use the telephone or otherwise. The fact that Ms Erman placated Haley by allowing him
Coshocton County, Case No. 2014CA0002                                                    10


to use the telephone or giving him a drink of water does not alter the fact that he was

not privileged to enter the home in the first instance.

       {¶23} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge neither lost his way

nor created a miscarriage of justice in convicting Granados of the charges.

       {¶24} Based upon the foregoing and the entire record in this matter, we find

Haley’s conviction is not against the sufficiency or the manifest weight of the evidence.

To the contrary, the judge appears to have fairly and impartially decided the matters

before him. This is court will not disturb the trier of facts finding so long as competent

evidence was present to support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d

1049 (1978). The judge heard the witnesses, evaluated the evidence, and was

convinced of Haley’s’ guilt.

       {¶25} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of

criminal trespass beyond a reasonable doubt.

       {¶26} Haley’s sole assignment of error is overruled.
Coshocton County, Case No. 2014CA0002                                     11


      {¶27} For the foregoing reasons, the judgment of the Municipal Court of

Coshocton County, Ohio, is affirmed.

By Gwin, J.,

Hoffman, .J., and

Baldwin, J., concur
