[Cite as State v. Schwendeman, 2018-Ohio-240.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     ATHENS COUNTY

STATE OF OHIO,                                             :      Case No. 17CA7

        Plaintiff-Appellee,                               :

v.                                                         :      DECISION AND
                                                                  JUDGMENT ENTRY
THOMAS SCHWENDEMAN,                                       :
                                                                  RELEASED: 01/17/2018
        Defendant-Appellant.                              :
                                          APPEARANCES:

Patrick T. Clark, Assistant State Public Defender, Office of the Ohio Public Defender,
Columbus, Ohio for appellant.

Lisa A. Eliason, City Law Director, Jessica L. Branner, Athens City Prosecutor, Athens,
Ohio for appellee.

Harsha, J.
        {¶1}    After a jury found Thomas Schwendeman guilty of criminal damaging, the

court sentenced him to suspended jail time, a fine, and restitution. Schwendeman

contends that the trial court committed plain error and violated his constitutional due

process rights in failing to give a jury instruction that a privilege to remove

encroachments from his property would constitute a full defense. He also contends that

he was denied the right to effective assistance of counsel because his trial counsel

failed to request a corresponding jury instruction.

        {¶2}    The trial court did not commit plain error when it omitted a jury instruction

on an owner’s privilege to remove encroachments from his land. Schwendeman

presented no credible evidence supporting his contention that he owned the land.

Consequently, he failed to establish by the preponderance of the evidence an

affirmative defense of privilege to remove an encroachment. As a matter of law the trial
Athens App. No. 17CA7                                                               2


court could not have given a jury instruction on this affirmative defense. It was not an

error, plain or otherwise, for the trial court to omit this instruction. Thus the trial court did

not violate Schwendeman’s constitutional rights. And because the trial court properly

omitted this jury instruction, Schwedeman’s trial counsel cannot be deficient for failing to

request an unwarranted instruction.

        {¶3}   We affirm the trial court judgment.

                                               I. FACTS

        {¶4}   The state charged Schwendeman with criminal damaging, a second-

degree misdemeanor under R.C. 2909.06(A) because he damaged a chain-link fence

between his property and that of his neighbors, Dawn and Gordon Roach.

Schwendeman lives behind the Roaches on an adjacent property. The trial record

reveals that the Roaches erected a chain-link fence around their property in 2004 or

2005.

        {¶5}   About 12 years later, neighbor Danielle Metcalf informed Dawn Roach and

Dawn’s mother Linda Bennett that Schwendeman was tearing down the Roaches’

chain-link fence. Metcalf testified that she lived next door to the Roaches and that she

witnessed Schwendeman yelling and kicking the fence and showing “a lot of anger

towards the fence.” Metcalf testified that Linda Bennett approached Schwendeman and

the two began talking. Metcalf saw two or three panels of fencing on the ground and

heard Schwendeman state that he kicked the fence down because he was mad that the

Roaches sprayed for poison ivy.

        {¶6}   Linda Bennett testified that she is Dawn Roach’s mother and lives a few

houses down from her. Bennett testified that she and Dawn were sitting outside when
Athens App. No. 17CA7                                                           3


Danielle Metcalf approached and informed them that an older man was tearing down

the Roaches’ fence. Bennett testified that she went over and spoke with Schwendeman,

who told her that it was his fence and he was taking it down. But Bennett told

Schwendeman that he knew it was not his fence and he knew it had been erected by

the Roaches. Bennett testified she began repairing the fence as she spoke with

Schwendeman.

       {¶7}   Gordon Roach testified that his wife called him at work and told him that

Schwendeman had started tearing down their fence. When Gordon came home from

work he called the Athens County Sheriff’s Office and made a report. Gordon testified

he was unaware that there was any history of disputes with Schwendeman other than

once Schwendeman had complained about Roach’s occasional backyard campfires and

one other time Schwendeman complained to Gordon about Gordon’s radio volume.

Gordon testified about the damage Schwendeman caused to the fence. On cross-

examination Gordon testified that prior to installing the fence, he had his property

surveyed and he installed the fence along the pins on his property.

       {¶8}   Athens County Sheriff Deputy Jennifer Atkins testified she responded to

the Roaches’ call. Deputy Atkins inspected the fence and spoke to neighbor Danielle

Metcalf, Dawn’s mother Linda Bennett, as well as Gordon and Dawn Roach. Deputy

Atkins attempted to interview Schwendeman but he was not home, so she was unable

to interview him until a few weeks after the incident. Deputy Atkins testified that

Schwendeman complained to her about the Roaches’ campfires and told her that he

had contacted the Environmental Protection Agency in the past about the fires. He also

complained about the Roaches’ spraying herbicides for poison ivy along the fence line.
Athens App. No. 17CA7                                                        4


Schwendeman told her that he uses the brush along the fence to get berries, so the use

of chemicals was a concern to him. Deputy Atkins testified that Schwendeman admitted

that he had kicked down the fence because he was angry over the Roaches’ use of

chemicals. Deputy Atkins asked Schwendeman if it was his fence; Schwendeman

admitted that it was not his fence and it was not on his property.

       {¶9}   Athens County Sheriff Lieutenant Jason Kline testified he went with

Deputy Atkins to interview Schwendeman and heard Schwendeman admit both to

damaging the fence and that he did not own it.

       {¶10} Schwendeman testified about his problems with the five or six fires the

Roaches built in their backyard. Schwendeman reviewed photographs of the fence

damage and testified that the fence was installed in 2004 and the only damage he saw

was “wear and tear that’s happened over the period of twelve years. More than twelve

years it’s been there.” Schwendeman claimed that he witnessed tree branches falling on

the fence and the Roaches’ children climbing the fence, causing the fence to come

apart. Schwendeman testified that on multiple occasions he saw the fence pull loose

and collapse on the children when they were climbing it. Schwendeman said he

attempted to “disconnect it carefully when I disconnected the mesh from the poles

because I wanted, wanted to move it with me. He [Gordon Roach] knew it wasn’t on his

property . . . he’s said unless I have the property surveyed and he took me to court. He

wouldn’t move the fence.”

       {¶11} On cross-examination Schwendeman admitted he was angry when he

began dismantling the fence, “I had been poisoned. My berries had been poisoned . . .
Athens App. No. 17CA7                                                          5


my food had been poisoned and my next smoothie would make me very ill.”

Schwendeman admitted he did not “own” the fence, but claimed “it was on my property.”

       {¶12} In his closing argument Schwendeman’s attorney argued that the children,

dogs, and trees caused the damage to the Roaches’ fence. The apparent defense

strategy was to convince the jury that the fence was twelve to thirteen years old, was

suffering the usual wear and tear, and that Schwendeman did not cause the minimal

damage in the photographs. Defense counsel did not seek a jury instruction that

Schwendeman was exercising a privilege to remove an obstruction on his own land and

did not object to the court’s jury instructions.

       {¶13} The jury returned a guilty verdict. After the trial court heard evidence of

monetary damages it ordered restitution and imposed a fine and jail term, but

suspended all of the jail time and some of the fine.

                              II. ASSIGNMENTS OF ERROR

       {¶14} Schwendeman assigns the following errors for our review:

       1. THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED
          MR. SCHWENDEMAN’S DUE PROCESS RIGHTS, IN VIOLATION
          OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE
          UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 16 OF
          THE OHIO CONSTITUTION BY FAILING TO INSTRUCT THE JURY
          THAT MR. SCHWENDEMAN’S PRIVILEGE TO REMOVE
          ENCROACHMENTS FROM HIS PROPERTY WOULD CONSTITUTE
          A FULL DEFENSE TO THE CHARGE OF CRIMINAL DAMAGING.
          T.PP. 148, 154, 161, 169-170; STATE V. WILLIFORD, 49 OHIO ST.3D
          247, 551 N.E.2D 1279 (1990); STATE V. COOPER, 170 OHIO
          APP.3D 418, 2007-OHIO-1186, 867 N.E.2D 493 (4TH DIST.);
          NEWPORT HARBOR ASS’N V. DICELLO, 8TH DIST. CUYAHOGA
          NO. 87126, 2006-OHIO-4493.

       2. MR. SCHWENDEMAN’S RIGHT TO THE EFFECTIVE ASSISTANCE
          OF COUNSEL GUARANTEED UNDER THE SIXTH AND
          FOURTEENTH AMENDMENTS TO THE UNITED STATES
          CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE
Athens App. No. 17CA7                                                             6


           OHIO CONSTITUTION WAS DENIED WHEN TRIAL COUNSEL
           FAILED TO REQUEST THAT THE COURT INSTRUCT THE JURY
           ON AN AFFIRMATIVE DEFENSE OF MR. SCHWENDEMAN’S
           PRIVILEGE TO REMOVE ENCROACHMENTS FROM HIS OWN
           LAND. STRICKLAND V. WASHINGTON, 466 U.S. 668, 104 S.CT.
           2052, 80 L.ED.2D 674 (1984); STATE V. BRADLEY, 42 OHIO ST.3D
           136, 538 N.E.2D 373 (1989).

                                  III. LAW AND ANALYSIS

                         A. Plain Error and the Standard of Review

       {¶15} “On appeal, a party may not assign as error the giving or the failure to give

any instructions unless the party objects before the jury retires to consider its verdict,

stating specifically the matter objected to and the grounds of the objection.” Crim.R.

30(A). Schwendeman did not object to any omission in the court’s instructions. “A

party's failure to object to jury instructions before the jury retires constitutes a waiver of

any claim of error regarding the instructions, absent plain error.” State v. Cooper, 170

Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 30 (4th Dist.).

       {¶16} We apply the doctrine of plain error cautiously and only under exceptional

circumstances to prevent a manifest miscarriage of justice. Id. In that regard, “[T]he test

for plain error is stringent.” State v. Ellison, 4th Dist. Highland No. 16CA16, 2017-Ohio-

284, ¶ 27. “To prevail under this standard, the defendant must establish that an error

occurred, it was obvious, and it affected his or her substantial rights.” State v.

Spaulding, __ Ohio St.3d __, 2016-Ohio-8126, __ N.E.3d __, ¶ 64. An error affects

substantial rights only if it changes the outcome of the trial. Id. As noted we notice plain

error only to prevent a manifest miscarriage of justice. State v. Fouts, 4th Dist.

Washington No. 15CA25, 2016-Ohio-1104, ¶ 59, quoting State v. Long, 53 Ohio St.3d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The defendant carries the
Athens App. No. 17CA7                                                              7


burden to establish the existence of plain error, unlike the situation in a claim of

harmless error, where the burden lies with the state. Cooper at ¶ 31.



                        B. Jury Instruction on Landowner’s Privilege
                            to Remove Encroachments on Land

       {¶17} “A criminal defendant has the right to expect that the trial court will give

complete jury instructions on all issues raised by the evidence.” State v. Howard, 4th

Dist. Ross No. 07CA2948, 2007-Ohio-6331, ¶ 26. “[A] trial court should give a proposed

jury instruction if it is a correct statement of the law and is applicable to the facts of the

particular case.” Id. citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575

N.E.2d 828 (1991).

       {¶18} Our review of whether a jury instruction is warranted is de novo. State v.

Depew, 4th Dist. Ross App. No. 00CA2562, 2002-Ohio-6158, ¶ 24 (“While a trial court

has some discretion in the actual wording of an instruction, the issue of whether an

instruction is required presents a question of law for de novo review.”) In determining

whether to give a requested jury instruction, a trial court reviews the sufficiency of the

evidence to support the requested instruction. State v. Hively, 4th Dist. Gallia No.

13CA15, 2015-Ohio-2297, ¶ 20 (Harsha, J. dissenting on other grounds). A trial court

has no obligation to give an instruction if the evidence does not warrant it. State v.

Hamilton, 4th Dist. Scioto No. 09CA3330, 2011-Ohio-2783, ¶ 70.



       {¶19} Under Ohio law a land owner has the right to use self-help to remove

encroachments on his property, provided the landowner acts with reasonable care.

Brewer v. Dick Lavy Farms, LLC, 2016-Ohio-4577, 67 N.E.3d 196, ¶ 23 (2nd Dist.)
Athens App. No. 17CA7                                                          8

citing Newport Harbor Assn. v. DiCello, 8th Dist. Cuyahoga No. 87126, 2006-Ohio-

4493. A defendant must meet the burden of going forward with evidence sufficient to

raise an affirmative defense. See R.C. 2901.05(A). As a matter of law the trial court

cannot give a jury instruction on an affirmative defense if a defendant fails to meet this

burden. State v. Howard, 2007-Ohio-6331, at ¶ 28.

       {¶20} The proper standard for determining whether a defendant in a criminal

case has successfully raised an affirmative defense asks whether the defendant has

introduced sufficient evidence which, if believed, would raise a question in the minds of

reasonable jurors concerning the existence of the issue. Id at ¶ 29, citing State v.

Melchior, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978). Here Schwendeman failed to

introduce any credible evidence supporting his claim that he owned the property where

the fence was located.

       There are a variety of ways in which a party may show ownership of land.
       A party may offer into evidence any deeds relating to the transfer of
       property, provisions in a will or by way of express written agreement. Also
       competent as evidence are surveys or plats or maps. 7 O. Jur. 2d 821,
       822, Boundaries, Secs. 55, 57. Again, the claimant must establish
       ownership by a preponderance of the evidence.

Reed v. Fronfield, 3rd Dist. Van Wert No. 15-83-25, 1985 WL 9059, *3 (Jan. 14, 1985);

see also Dean v. Cox, 4th Dist. Lawrence No. 11CA10, 2012-Ohio-782 (surveys and the

testimony of surveyors provide competent credible evidence of boundaries in a

boundary dispute). Schwendeman did not introduce a deed, a survey or surveyor’s

testimony to support his contention that he owned the property on which the fence was

erected. Moreover, his claim at trial that the fence was on his land directly contradicted

prior statements he gave to the Athens County Sheriff Deputy Atkins and Lieutenant

Kline. Without providing a rationale for the inconsistency with his prior admissions to the
Athens App. No. 17CA7                                                            9


deputies, Schwendeman’s trial testimony was not credible. Because there was no

credible evidence supporting Schwendeman’s contention that he owned the land, the

trial court, as a matter of law, could not have properly given a jury instruction on this

affirmative defense. See State v. Nichols, 4th Dist. Scioto No. 01CA2775, 2002-Ohio-

415, Howard, supra. It was not an error, plain or otherwise, for the trial court to omit this

instruction. And because he does not argue application of state law on the instruction

issue deprives him of due process, Schwendeman cannot establish a violation of

federal or state constitutional rights.

       We overrule Schwendeman’s first assignment of error.

                              C. Ineffective Assistance of Counsel


       {¶21} The second assignment of error contends that Schwendeman received

ineffective assistance of counsel because his attorney failed to request a jury instruction

on his privilege to remove an encroachment from his land.

       {¶22} Based upon our disposition of the first assignment of error, a request for

an instruction would have been meritless. Because Schwendeman’s trial counsel

cannot be deficient for failing to request an unwarranted jury instruction, we overrule the

second assignment of error. See, e.g., State v. Tolbert, 4th Dist. Washington No.

15CA5, 2015-Ohio-4733, ¶ 27 (“counsel's failure to raise what at the time was a

meritless objection was not deficient”).

       {¶23} And based upon the “wear and tear” defense at trial, it is apparent that

counsel’s failure to request the instruction was based upon sound trial strategy.

                                      IV. CONCLUSION
Athens App. No. 17CA7                                                             10


       {¶24}   The trial court did not commit plain error in omitting jury instructions on a

landowner’s privilege to remove encroachments on his land where the defendant failed

to present any credible evidence to support his contention that he owned the land on

which the fence was installed. Trial counsel cannot be found deficient for failing to

request an unwarranted jury instruction or for exercising sound trial strategy.

                                                                  JUDGMENT AFFIRMED.
Athens App. No. 17CA7                                                        11


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs
herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & McFarland, J.: Concur in Judgment and Opinion.


                                  For the Court


                                  BY: ________________________________
                                      William H. Harsha, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
