[Cite as State v. Behnfeldt , 2021-Ohio-1915.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : JILL BEHNFELDT, : Case No. 2020CA00105 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court, Case No. 2019-CRB-1198

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 2, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

RONALD T. GATTS AARON KOVALCHIK City of Alliance Law Director's Office 116 Cleveland Ave. Nort h 470 E. Market Street Canton, Ohio 44702 Alliance, Ohio 44067Stark County, Case No. 2020CA00105 2

Baldwin, J. {¶1} Appellant, Jill Behnfeldt, appeals the decision of the Alliance Municipal Court finding her guilty of the offense of assault in violation of R.C. 2903.13(A), a firstdegree misdemeanor. Appellee is the State of Ohio.

STATEMENT OF FACTS AND THE CASE {¶2} Appellant, Jill Behnfeldt, decided that Gary Wheatley was tresp assing on her property and that it was necessary to use physical force to eject him. As he walked

to his home across what he believed was an easement across Behn feldt’s property, she shouted at him, quickly approached him and began pushing and st riking him in the head and body, knocking him to the ground. Behnfeldt was charged wi th assault, a violation of R.C.2903.13(A), and ultimately convicted by a jury. {¶3} Gary Wheatley, a neighbor of Behnfeldt, was aware of Behnfeldt’ s attitude toward trespassers as she clearly marked her property with no t respassing signs and she warned him away from her property when he would come near as he mowed his lawn. Wheatley and Behnfeldt had a prior dispute regarding a strip of property through which Wheatley believed Behnfeldt possessed only a utility easement. Wheatley mowed the grass on that strip until a conflict arose and the local police department advised against continued mowing of that area. {¶4} On July 14, 2019 Wheatley noticed that a new neighbor was insta lling a fence around their property and Wheatley decided to introduce h imself. He walked through another neighbor's property and across that portion of the neighbor's property where Wheatley believed the utility easement existed, taking ca re not to encroach onto Behnfeldt's property. He took the same route back and was conf ronted by Behnfeldt.Stark County, Case No. 2020CA00105 3

She ordered him off her property, approached him and began push ing and striking him. Wheatley responded, attempted to back away and covered his ches t with his hands to protect a pre-existing aortic defect. He fell to the ground as a result of Behnfeldt's actions. After the encounter, Behnfeldt returned to her home. {¶5} Wheatley returned to his home and discovered that the physical confrontation had caused him to lose a tooth, left scratches on his wrist and broke his watch band. He called the sheriff's office and a deputy appear ed and, after investigation, charged Behnfeldt with assault. {¶6} The case was presented to a jury on July 20, 2020 and the facts surrounding the physical contact between Behnfeldt and Wheatley were not contested. The location of the boundary lines of the property and whether Wheatley had trespassed

were at issue as was whether Behnfeldt had used reasonable forc e to eject Wheatley, if he had encroached on her property. {¶7} Wheatley insisted that he took great care to avoid Behnfeldt's property, given his prior conflict with her over the mowing of the lawn a nd the visible no trespassing signs. He did not stray off a path that he believed was an ease ment and did not enter what he believed was Behnfeldt’s property. Behnfeldt insisted that Wheatley was on her property, but did not testify. She did not provide a survey or any measurements to corroborate her argument that Wheatley trespassed on property, nor did she provide evidence that the strip in question was more than a utility eas ement through which she possessed any more than a right to maintain whatever utility ma y be located within that property.Stark County, Case No. 2020CA00105 4

{¶8} Behnfeldt did have a video camera trained on the scene and capt ured most of the confrontation between she and Wheatley. The state prese nted excerpts of the video showing Wheatley walking from right to left on the screen and minutes later, from left to right. Wheatley confirmed the video shows him walking across what he believed was an easement that benefited Behnfeldt's land, and not proper ty to which she held title. During his second appearance in the video, when he was returnin g home, Behnfeldt can be heard shouting at him. Wheatley responds and gestures to the strip of property that, at the time, he believed was an easement. Behnfeldt appears in the video, striding directly to Wheatley and begins shoving him and what appears to be chasi ng after him as she pushes him. Both disappear from the video, but a witness, Kayl a Dickson, confirmed that Behnfeldt struck Wheatley several times during the confrontatio n. The video also supports a conclusion that Wheatley was voluntarily moving in t he direction Behnfeldt was shoving him, but, rather than terminate the confrontation, Behnfeldt continued after him and continued to push and strike Wheatley. {¶9} Behnfeldt was found guilty, fined $500.00 and sentenced to 180 days in jail, with 90 days suspended. She was ordered to have no contact wit h Wheatley, to undergo psychological counseling and to comply with psychological recom mendations for a minimum period of six months. {¶10} Behnfeldt filed an appeal and submitted one assignment of error : {¶11} “I. APPELLANTS CONVICTION WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.”

STANDARD OF REVIEWStark County, Case No. 2020CA00105 5

{¶12} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. Th e standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllab us, in which the Ohio Supreme Court held as follows: “An appellate court's function w hen 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 believ ed, 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 t o the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” {¶13} In determining whether a conviction is against the manifest wei ght of the evidence, the court of appeals functions as the “thirteenth jur or,” and after “reviewing the entire record, weighs the evidence and all reasonable inference s, considers the credibility of witnesses and determines whether in resolving conflicts in t he 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.” State v. Thompkins, supra, at 387. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case in which the evidence weighs heavily against the conviction.” Id. {¶14} The weight to be given to the evidence and the credibility of t he witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d 212 (1967).Stark County, Case No. 2020CA00105 6

The trier of fact “has the best opportunity to view the demeano r, attitude, and credibility of each witness, something that does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

ANALYSIS {¶15} Behnfeldt contends that the record lacks sufficient evidence to support her conviction for assault and that her conviction is against the m anifest weight of the evidence. She argues that she did not assault Wheatley, but th at he was a trespasser and that she used reasonable, nondeadly force to eject him from her property. Behnfeldt claims her actions were in defense of her property consistent w ith R.C. 2901.05(B)(1) and

that she did not commit an assault in violation of R.C. 2903.13 (A). {¶16} The state charged Behnfeldt with a violation of R.C. 2903.13(A) which states: “No person shall knowingly cause or attempt to cause ph ysical harm to another or to another's unborn.” “Physical harm to persons” means any inju ry, illness, or other physiological impairment, regardless of its gravity or duration ." R.C. 2901.01(A)(3). The testimony of Wheatley, Officer Paris, and Kayla Dickson, the ph otographs taken by the

officer and the video of the confrontation between Behnfeldt an d Wheatley supply sufficient evidence for the jury to conclude that Behnfeldt did knowingly cause or attempt to cause physical harm to Wheatley. The video of the assault, supported by Wheatley's confirmation, shows that Behnfeldt pushed Wheatley. Wheatley a nd Kayla Dickson testified that Behnfeldt struck Wheatley several times and Whea tley claimed that the assault caused a scratch on his left hand, knocked a tooth from his mouth and broke his watch band. No evidence was offered to contradict these facts, so the jury had sufficient evidence to decided that an assault was committed, beyond a rea sonable doubt.Stark County, Case No. 2020CA00105 7

{¶17} Behnfeldt contends that she was merely defending her property b y ejecting a trespasser, that her actions were authorized by R.C. 2901.05 and that the state failed to establish, beyond a reasonable doubt, that she was not entit led to the protection of that

section of the Code. {¶18} Revised Code 2901.05(B)(1) states: A person is allowed to act in self-defense, defense of another, or defense of that person's residence. If, at the trial of a perso n who is accused of an offense that involved the person's use of force against a nother, there is evidence presented that tends to support that the accused pe rson used the force in self-defense, defense of another, or defense of th at person's residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense o f another, or defense of that person's residence, as the case may be. {¶19} Behnfeldt argues that Wheatley trespassed upon her land after b eing warned against trespassing. The record contains evidence that t ends to support that Wheatley was trespassing on B ehnfeldt's pr operty and that she u sed force in defense of her residence. Behnfeldt had a "common law right of ejecting, b y use of reasonable force, trespassers upon [her] property. Such reasonable force is in fa ct a defense to a charge

of assault ." State v. Howell , 5th Dist. Stark No. CA-7178, 1987 WL 19096, *3. The right to eject a trespasser arises after the trespassing is given war ning or notice to leave, but

fails to do so within a reasonable time. State v. Childers , 133 Ohio St. 508, 516, 14 N.E.2d 767, 770–71 (1938). "What constitutes reasonable force to ejec t is a question for the trier

of fact. State v. Ashworth, 11th Dist. No. 99–P–0094, 2001 WL 180225, *5, fn. 4 (Feb. 26,Stark County, Case No. 2020CA00105 8

2001), quoting Childers , at 515, as quoted in State v. Pedro, 7th Dist. Mahoning No. 11- MA-128, 2012-Ohio-3674, ¶ 27. {¶20} The video does not show that Wheatley posed a threat to Behnfel dt's property or that he planned to remain on her property in contra diction of her direction to leave. A reasonable juror could have concluded that Wheatley's path would have taken him from Behnfeldt's property in seconds if he had not been con fronted by her shouts and assault. He delayed long enough to express his opinion that he was not trespassing. {¶21} The record contains sufficient evidence for the jury to conclud e that he was a trespasser, but it also contains sufficient evidence for the jury to conclude, beyond a

reasonable doubt that Behnfeldt's did not act in defense of her property. The jury had

sufficient evidence before it to conclude that Behnfeldt did no t allow Wheatley reasonable time to comply and that the force that she used to eject him wa s not reasonable under the circumstances. Behnfeldt rushed up to Wheatley shouting at him to leave her property, and pushed him from her property and continued to pur sue him, striking him repeatedly after he had stepped from her property. {¶22} We conclude that the record contains sufficient evidence to sup port the jury's finding that Behnfeldt was guilty of assault and that sh e was not acting in defense of her property, both beyond a reasonable doubt. Further, the conviction is not against the manifest weight of the evidence as this is not an exception al case in which the evidence weighs heavily against the conviction.Stark County, Case No. 2020CA00105 9

{¶23} The assignment of error is overruled and the decision of the Al liance Municipal Court is affirmed.

By: Baldwin, J. Gwin, P.J. and Delaney, J. concur.