State v. Schwendeman, 104 N.E.3d 44

Defendant Thomas Schwendeman was charged with and convicted by a jury of criminal damaging for dismantling a neighbor’s chain‑link fence; the trial court imposed suspended jail time, a fine, and restitution.
Witnesses (neighbors and sheriff’s deputies) testified Schwendeman admitted kicking down the Roaches’ fence and acknowledged it was not his.
Schwendeman testified he dismantled the fence because of repeated herbicide spraying, campfires, and alleged wear and tear, and claimed (contrary to earlier statements) that the fence was on his property.
Defense counsel argued the damage was caused by wear and tear/others and did not request a jury instruction that a landowner has a privilege to remove an encroachment from his property.
The trial court omitted any instruction on the owner’s privilege to remove encroachments; defendant did not object at trial and raised plain error and ineffective assistance of counsel on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether omission of a jury instruction on a landowner’s privilege to remove encroachments was plain error/violated due process	State: no plain error because evidence did not support the affirmative defense	Schwendeman: failure to instruct deprived him of due process because privilege is a full defense	No error: defendant produced no credible evidence of ownership, so no instruction was warranted; omission not plain error
Whether trial counsel was ineffective for not requesting that instruction	State: counsel not ineffective for failing to request a meritless instruction	Schwendeman: counsel deficient for not requesting instruction on affirmative defense	Not ineffective: requesting the instruction would have been meritless and counsel pursued alternate trial strategy

State v. Williford, 49 Ohio St.3d 247 (Ohio 1990) (jury‑instruction principles cited)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (ineffective‑assistance framework)
State v. Melchior, 56 Ohio St.2d 15 (Ohio 1978) (standard for raising affirmative defenses)
State v. Cooper, 170 Ohio App.3d 418 (Ohio Ct. App.) (plain‑error waiver for failure to object to jury instructions)