STATE OF OHIO Plaintiff-Appellee -vs- NELSON PARKS Defendant-Appellant
Case No. 2015CA00108
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 21, 2016
2016-Ohio-1178
Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2014CRB5268; JUDGMENT: Reversed
For Plaintiff-Appellee
JOSEPH MARTUCCIO Canton Law Director CHRISTY DONNELLY Assistant City Prosecutor 218 Cleveland Ave SW Canton, Ohio 44702
For Defendant-Appellant
KIMBERLY STOUT 201 Cleveland Ave. S.W. Suite 104 Canton, Ohio 44702
Hoffman, P.J.
{¶1} Defendant-appellant Nelson Parks appeals his conviction on one count of criminal trespass, in violation of
STATEMENT OF THE FACTS AND CASE1
{¶2} On October 21, 2014, Appellant entered the North Branch location of the Stark County District Library, bringing with him personal items in a bag, placing them on a table for display and study. The personal items included trash and debris. Library Security Officer Michael Osbourne approached Appellant, with intention to ask Appellant to leave.
{¶3} Appellant left the library without incident and without interaction with security personnel. However, Security Officer Osbourne alleges he attempted to call out to Appellant while he was in the area outside the library in a nearby ballfield, telling him if he returned prior to April 21, 2015, the police would be called and he would be charged with criminal trespassing. Officer Osbourne does not recall if Appellant acknowledged or otherwise indicated he heard the warning. Tr. at 15.
{¶4} On November 19, 2014, Appellant returned to the North Branch location of the Stark County District Library, again carrying trash and debris with him in his personal bags, displaying the same on a table. Security Officer Osbourne approached Appellant asking him to leave. Appellant refused to leave, and was served with a Notice of Violation.
{¶5} As a result of the incident Appellant was charged with one count of criminal trespass, in violation of
{¶6} On May 5, 2015, the matter proceeded to a trial to the court in the Canton Municipal Court. Via Judgment Entry of the same date, the trial court found Appellant guilty of the charge, and sentenced Appellant to thirty days in the Stark County Jail, suspending all but ten days on the condition Appellant have good behavior for two years and no contact with the Stark County District Library for two years. The no contact order was vacated on May 14, 2015.
{¶7} Appellant appeals, assigning as error,
{¶8} “I. THE TRIAL COURT‘S FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶9} 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. The 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 syllabus, in which the Ohio Supreme Court held,
“An appellate court‘s function when 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 believed, 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 to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶10} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals after reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered. State v. Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541.
{¶11} In this case, Appellant was charged with one count of criminal trespass, in violation of
(A) No person, without privilege to do so, shall do any of the following:
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(3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access;
{¶12} Here, the evidence presented at trial does not demonstrate Appellant had actual communication of notice he was not authorized to return to the North Branch location of the Stark County District Library until November 19, 2014 when he was served
{¶13} Further, Security Officer Osbourne‘s own testimony demonstrates he did not know if Appellant heard or acknowledged his warning not to return on October 21, 2014. Accordingly, the State did not prove actual communication to Appellant of notice not to return.
{¶14} Appellant‘s sole assignment of error is sustained.
{¶15} The May 5, 2015 Judgment Entry entered by the Canton Municipal Court is reversed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur