[Cite as State v. Schils , 2020-Ohio-2883.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

JAMES A. SCHILS, Appellant. :

:

:

:

:

: CASE NO. CA2019-08-067

O P I N I O N

5/11/2020

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2019CRB2278

D. Vincent Faris, Clermont County Prosecuting Attorney, Nichola s Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee W. Stephen Haynes, Clermont County Public Defender, Robert F. B enintendi, 302 East Main Street, Batavia, Ohio 45103, for appellant

RINGLAND, J. {¶ 1} Appellant, James A. Schils, appeals his convictions for crimina l trespass and disorderly conduct in the Clermont County Municipal Court. {¶ 2} In May 2019, appellant was charged by criminal complaint with t wo offenses: one count of criminal trespass, a fourth-degree misdemeanor in violation of R.C. 2911.21(A)(1); and one count of disorderly conduct, a minor mis demeanor in violation ofClermont CA2019-08-067

- 2 - R.C. 2917.11(A)(3). These charges stemmed from appellant's uni nvited visit to see his children at the home of his ex-wife and her fiancé (the "victim "), during which appellant entered the victim's property and engaged in belligerent behavi or. Appellant pled not guilty and waived his right to counsel. The matter proceeded to a ben ch trial before a magistrate. At trial, the prosecution called one witness, the victim, and h ad admitted into evidence a video recording the victim took of the incident. For his defen se, appellant testified on his own behalf and called his girlfriend, who was with him at the t ime, and the charging police officer to testify. {¶ 3} At the conclusion of the trial, the magistrate found appellant guilty as charged. For the criminal trespass conviction, the trial court sentenced appellant to 15 days in jail, but suspended the jail term subject to community service, a fin e, and unsupervised community control with an order to stay away from the victim's residence. For the disorderly conduct conviction, the trial court sentenced appellant to an a dditional fine. {¶ 4} Appellant now appeals raising two assignments of error for revi ew. For ease of analysis, we will discuss the assigned errors together. {¶ 5} Assignment of Error No. 1: {¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR IN ENTERING VERDICTS

OF GUILTY AS THE EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT TO SUSTAIN

CONVICTIONS FOR CRIMINAL TRES PASS OR DISORDERLY CONDUCT AS

CHARGED IN THE COMPLAINTS. {¶ 7} Assignment of Error No. 2: {¶ 8} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY

BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE. {¶ 9} In his first and second assignments of error, appellant argues that there wasClermont CA2019-08-067

- 3 - insufficient evidence to convict him and that the guilty findin gs were against the manifest weight of the evidence. Specifically, for the criminal trespas s offense, appellant contends that he had permission to enter the property and that he did no t unreasonably remain on the property after he understood his privilege to have been rev oked. Appellant does not dispute that he knowingly entered the property. Next, for the disorderly conduct offense, appellant argues that he did not utter "fighting words" or othe rwise engage in conduct likely to provoke a violent response. {¶ 10} Initially we note that appellant failed to object to the magist rate's decision, therefore pursuant to Crim. R. 19(D)(3)(b)(iv), this court will review only for plain error. See

State v. Shie , 12th Dist. Butler No. CA2007-02-038, 2008-Ohio-350, ¶ 43-45. Notice of plain error must be taken with utmost caution, under exceptiona l circumstances, and only to prevent a manifest miscarriage of justice. State v. Baldev , 12th Dist. Butler No. CA2004- 05-106, 2005-Ohio-2369, ¶ 12, citing State v. Long , 53 Ohio St.2d 91, 95 (1978). To constitute plain error, there must be an obvious deviation from a legal rule that affected the defendant's substantial rights, that is, the error must have af fected the outcome of the proceeding. State v. Carpenter , 12th Dist. Butler No. CA2019-03-044, 2019-Ohio-4829, ¶

35. {¶ 11} Whether the evidence is sufficient to sustain a conviction is a question of law.

State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). A su fficiency of the evidence challenge requires the appellate court to revie w the evidence admitted at trial to determine whether that evidence, if believed, would su pport a conviction. State v.

Carroll , 12th Dist. Clermont Nos. CA2007-02-030 and CA2007-03-041, 200 7-Ohio-7075, ¶ 117. The standard of review is whether any reasonable trier of fact, viewing the evidence in a light most favorable to the prosecution, could have found all the essential elements of the crime proven beyond a reasonable doubt. State v. Cobb , 12th Dist. Butler No. CA2007-Clermont CA2019-08-067

- 4 - 06-153, 2008-Ohio-5210, ¶ 93, citing State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶ 12} On the other hand, a manifest weight of the evidence challenge requires the appellate court to examine the inclination of the greater amoun t of credible evidence offered at trial to support one side over the other. State v. Barnett , 12th Dist. Butler No. CA2011- 09-177, 2012-Ohio-2372, ¶ 14. To determine whether a convictio n is against the manifest weight of the evidence, the reviewing court must look at the en tire record, weigh the

evidence and all reasonable infe rences, consider the credibilit y of the witnesses, and determine whether in resolving the conflicts in the evidence, t he 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. Taylor, 12th Dist. Fayette No. CA2018-11-021, 2019-Ohio3437, ¶ 42. While the manifest weight of the evidence challeng e requires the reviewing court to consider credibility of the evidence, an appellate cou rt must be mindful that the trier of fact has the primary role of weighing the evidence and deter mining witness credibility. State v. Salinger , 12th Dist. Butler No. CA2014-10-208, 2015-Ohio-2821, ¶ 15, ci ting State

v. DeHass , 10 Ohio St.2d 230, 231 (1967) . An appellate court will overturn a conviction on manifest weight of the evidence grounds only in extraordinary c ircumstances, when the evidence presented at trial weighs heavily in favor of acquitta l. State v. Helton , 12th Dist. Warren No. CA2018-12-141, 2019-Ohio-4399, ¶ 17. The determinat ion that a conviction is supported by the manifest weig ht of the evidence will be dispos itive of the sufficiency of the evidence challenge. State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. {¶ 13} To convict on criminal trespass, the prosecution had to prove t hat appellant, without privilege to do so, knowingly entered or remained on th e land or premises of another. R.C. 2911.21(A)(1). Privilege is the distinguishing characteristic between anClermont CA2019-08-067

- 5 - individual's lawful or unlawful presence on another's land or p remises. State v. Bradford , 12th Dist. Warren No. CA2010-04-032, 2010-Ohio-6429, ¶ 27. The refore, the lack of privilege is an essential element of the offense that the prose cutor had to prove. State v.

Hubbard , 12th Dist. Butler No. CA99-02-040, 1999 Ohio App. LEXIS 4811, *5 (Oct. 11, 1999); See also State v. Hohman , 14 Ohio App.3d 142, 164 (12th Dist.1983). Privilege is defined as an "immunity, license, or right conferred by law, be stowed by express or implied grant, arising out of status, position, office, or relationship , or growing out of necessity." R.C. 2901.01(A)(12). {¶ 14} Here, the victim testified that appellant drove by his house se veral times before bringing the vehicle to a stop in front of the residence . Appellant spoke to the victim from his vehicle asking if he could visit his daughters. The v ictim made some statements about it not being the appropriately scheduled date and for app ellant to "move on." He additionally testified that he did not give appellant permissio n to enter his property and that his statements to appellant were better characterized as taunts , although when asked by the prosecutor if a privilege had been granted, he responded af firmatively. After making those statements, appellant got out of his vehicle and moved qu ickly into the victim's yard. Shortly after appellant entered the property, the victim testif ied that he explicitly told appellant to leave. The victim testified that it seemed to tak e around 45 seconds for appellant to depart. The victim also testified that he felt th reatened during the interaction, especially because appellant told him "it's coming," before app ellant finally relented and exited from the property. {¶ 15} In addition to the victim's testimony, the prosecutor presented into evidence a video recording of the incident. The victim testified that he used the video camera feature on his cellular telephone to record the interaction before appe llant got out of his vehicle. The video depicts the two men yelling at each other across the victim's yard. The victimClermont CA2019-08-067

- 6 - initially yells something to the effect of it is not your day a nd move on, but then says, "step into my yard" and "do it" before appellant charges into the yar d. In the background appellant's ex-wife can be heard yelling at appellant to leave. Appellant moves into the yard with his chest puffed out and his arms moving or flailing in an excited fashion. After entering the yard, appellant exclaims, "do you want me to step into your yard, bitch?" The victim moves up to intercept appellant, then tells appellant to leave with profanity-laden language. Appellant halfway turns to leave but continues to squabble with the victim. Both men go back and forth exclaiming "do it," "you do it." During this ex change appellant engages in short lunges with his upper body toward the victim and ultimate ly lifts his sunglasses to his forehead to stare at the victim and exclaim "it's coming" with more profanity before leaving the property. Based on the video timestamp, the whole incident lasted around 20 seconds from the time appellant enters the yard to when he leaves the p roperty. {¶ 16} For his defense, appellant called his girlfriend to testify. S he testified that she lives near the victim's home, so it was not abnormal for appell ant to drive past the victim's house. She testified that appellant saw his children out for a walk in the neighborhood, so appellant decided to turn around in an attempt to talk to them. She acknowledged that appellant hesitated as to whether to stop, but after driving by the house several times, she suggested to appellant that he should stop to explain to the vi ctim and his ex-wife that he wanted to speak with his children. Regarding the incident, the girlfriend testified that she did not believe appellant's conduct was provocative. While she did not believe that appellant's conduct was provocative, she acknowledged that appe llant lingered in the victim's yard to get in the "last word." {¶ 17} Finally, appellant testified that the victim's statements were an "invitation" to enter the yard, but he did not feel welcome. He also character ized his demeanor as "friendly" and explained that his statement of "it's coming" me rely referenced a moreClermont CA2019-08-067

- 7 - favorable custody/visitation resolution for him, from the court , that he expected to come in

the future. {¶ 18} In finding appellant guilty, the magistrate found that the vict im's statements did not amount to a grant of privilege to enter the property be cause it was conveyed as a taunt or a dare, and alternatively that appellant failed to lea ve after expressly being told to leave. After review of the record, we agree. The trier of fac t may take note of any inconsistencies in the witness' testimony and resolve them acco rdingly, believing all, part, or none of each witness's testimony. See State v. Lark , 12th Dist. Fayette No. CA2018-03- 004, 2018-Ohio-4940, ¶ 29. The victim testified to facts as si milarly demonstrated by the video recording. The video evidence demonstrated that the vict im and appellant were engaged in a shouting match when appellant charged into the fro nt yard. Appellant's statement of "do you want me to step into your yard, bitch" as he entered the property, coupled with his admission at trial that he did not feel welcom e is sufficient evidence for any reasonable trier of fact to conclude that appellant understood that no express privilege to enter was granted to appellant. Moreover, there was evidence t hat appellant did not have an "open invitation" to visit the victim's residence, nor was t he victim's residence the normal location for appellant to pick-up his children for scheduled vi sitation, therefore appellant did not have an implied privilege to enter. Finally, appellant's b ickering and posturing to get the "last word" in after being explicitly told to leave further est ablished that appellant violated the statute by knowingly remaining on the property. Appellant's argument that he did not "remain" on the premises and his reference to other state case law is unpersuasive in light of the evidence at bar that appellant unnecessarily lingered fo r several moments and did not quietly leave the victim's property, even assuming arguendo that he had the privilege to enter. Consequently, the trial court did not lose its way find ing appellant guilty of criminal trespass. Appellant's conviction was not against the manifest weight of the evidence.Clermont CA2019-08-067

- 8 - {¶ 19} Next, to convict appellant on disorderly conduct the prosecutio n had to prove that appellant recklessly caused inconvenience, annoyance, or a larm to another by insulting, taunting, or challenging another, under circumstance s in which that conduct is likely to provoke a violent response. R.C. 2917.11(A)(3). Oth er Ohio courts have interpreted R.C. 2917.11(A)(3) as prohibiting both the offender 's use of "fighting words" and/or conduct likely to "provoke a violent response." State v. Miller, 6th Dist. Lucas No. L86-281, 1987 Ohio App. LEXIS 5942, *4 (Feb. 27, 1987). Fightin g words are "those words that are likely by their very utterance to inflict injury or to incite an immediate breach of the peace." City of Middletown v. Carpenter, 12th Dist. Butler No. CA2006-01-004, 2006-Ohio3625, ¶ 14. When determining whether the language used by the offender constitutes fighting words, the circumstances surrounding the words must be examined. Id .; accord

Warren v. Patrone , 75 Ohio App.3d 595, 598 (11th Dist.1991). One of the factors for determining if language constitutes "fighting words" is whether the language is directed at a specific person or is more general statement—a targeted state ment more usually constitutes "fighting words." See Carpenter, 2006-Ohio-3625 at ¶ 15. The standard is whether a reasonable person would be provoked to violence, not that an individual was actually provoked to violence. See State v. Blair , 2d Dist. Montgomery No. 24784, 2012- Ohio-1847, ¶ 9; See also State v. Johnson , 6 Ohio App.3d 56, 57 (12th Dist.1982). {¶ 20} Here, the evidence at trial established that appellant quickly walked up to the victim's property with his chest puffed out and his arms moving in an excited fashion. As discussed above, appellant immediately and specifically address ed the victim with profanity-laden l anguage . The two men came within arm's reach of each other when the victim told appellant to leave the property. At that point, wi th appellant partially turned to leave, the two men continued to utter oral jeers to each other, in what can only be described as challenges for the other to throw the first punch. In addit ion to his oral challenges,Clermont CA2019-08-067

- 9 - appellant made repeated short lunging motions with his upper bo dy in a physically aggressive manner. Finally, appellant dramatically exclaimed " it's coming" to the victim. The victim testified that this exchange alarmed him. Objective ly examining appellant's words, both vulgar and not, in conjunction with his aggressive actions, under the circumstances, we find appellant engaged in conduct likely to p rovoke a violent response. The trial court did not lose its way in finding appellant guilt y and the conviction was not against the manifest weight of the evidence. {¶ 21} Accordingly, appellant's first and second assignments of error are overruled. {¶ 22} Judgement affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.