STATE OF OHIO, Plаintiff-Appellee, vs. SONYA STALEY, Defendant-Appellant.
APPEAL NOS. C-200270, C-200271, C-200272
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 8, 2021
[Cite as State v. Staley, 2021-Ohio-3086.]
TRIAL NOS. 19CRB-19555A, 19CRB-19555B, 19CRB-19555C; Criminal Appeals From: Hamilton County Municipal Court; Judgments Appealed From Are: Affirmed
Andrew Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Meagan D. Woodall, Assistant Prosecuting Attorney, for Plaintiff-Appellee City of Cincinnati,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant Sonya Staley.
{1} Defendant-appellant Sonya Staley appeals from three municipal court judgments in whiсh she was convicted of criminal trespass, disorderly conduct, and resisting arrest. For the reasons set forth below, we affirm the judgments of the trial court.
I. Facts and Procedure
{2} On August 1, 2019, Cincinnati Police Officer Carlos Sherman was working an off-duty detail for the Cincinnati Center City Development Corporation (“3CDC“) at Ziegler Park. Around 5:30 p.m., Sherman received a request for assistance from a 3CDC staff member. When Sherman arrived on the scene, he saw Staley lying flat on a cement park bench with sunglasses covering her eyes. According to Sherman, 3CDC had recently implemented a rule that prohibited park goers from lying down in Ziegler Park. He testified that the policy was put into effect that summer as a means of decreasing the number of false overdose calls received by the city.
{3} Sherman testified that he approached Staley and asked her to sit up in accordance with park policy. Sherman claimed that he repeated the order three or four times before Staley briefly sat up. Staley testified that she informed Sherman that she could not sit for extended periods of time due to a medical condition. She then lay back down on the bench. At that point, Sherman activated his body-worn camera. The body camera captured the remainder of the encounter.
{4} The video footage shows Staley lying on the bench with Sherman and a 3CDC member standing next to her. Sherman told Staley, “I‘m going to ask you one more time ma‘am to sit up. * * * They don‘t want you laying down at the park. I already had to tell one person to leave.” When Staley refused, Sherman instructed
{5} Approximately four minutes into the encounter, Sherman informed Staley that she was under arrest and contacted other officers for assistance. Instead of complying with Sherman‘s demands, Staley walked across the street, entered the Ziegler Park basketball court, and continued causing a scene. Sherman attempted to handcuff Staley on three separate occasions, but she pulled away. Staley was eventually arrested by another responding officer. The body-cam footage shows that eight minutes elapsed between Sherman‘s first request for Staley to leave the park and Staley‘s arrest.
{6} Staley was subsequently charged with criminal trespass, disorderly conduсt, and resisting arrest. On February 19, 2020, Staley waived her right to be tried by a jury and proceeded to a bench trial. The trial court found Staley guilty on all charges. Due to the COVID-19 shutdown, Staley‘s sentencing was continued until July 29, 2020.
{7} On the morning of sentencing, Staley filed a motion for a new trial pursuant to
II. Sufficiency and Weight of the Evidence
{8} In her first assignment of error, Staley argues that her convictiоns are supported by insufficient evidence and are against the manifest weight of the evidence.
{9} A sufficiency-of-the-evidence argument challenges the adequacy of the evidence on each element of the offense. In reviewing a sufficiency challenge, “[t]he 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 bеyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991).
{10} A manifest-weight-of-the-evidence argument challenges the believability of the evidence. In reviewing a challenge to the weight of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice. Id.
1. Criminal Trespass
{11} Staley was convicted of criminаl trespass in violation of
{12} “Privilege” is the distinguishing characteristic between criminal trespass and lawful presence. State v. Casey, 8th Dist. Cuyahoga No. 99742, 2014-Ohio-1229. “As a general rule, a person has a privilege to enter and be uрon the public areas of public property.” State v. Shelton, 63 Ohio App.3d 137, 578 N.E.2d 473 (4th Dist.1989). However, the rule is not all encompassing, and a criminal trespass can be committed on public land under certain circumstances. State v. Newell, 93 Ohio App.3d 609, 611, 639 N.E.2d 513 (1st Dist.1994), citing Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). The General Assembly has made it clear that a trespass is not excused simply because the property involved is publicly owned. See
{13} Because “the status of land as public property cannot be a defense to a charge of trespass * * * then, concomitantly, the public official or agency into whose charge the property is put can withdraw or revoke the privilege otherwise enjoyed by a member of the public.” Dayton v. Moore, 2d Dist. Montgomery No. 13369, 1993 WL 81966, *3 (Mar. 25, 1993). Thus, regardless of an individual‘s initial privilege to enter and be upon publiс property, “an owner or agent may revoke consent to remain on the premises.” State v. Carr, 3d Dist. Union No. 14-11-20, 2012-Ohio-1679, 24.
{14} In this case, Staley asks us to take judicial notice that Ziegler Park is a city-owned space, managed by 3CDC. Ziegler Park, https://zieglerpark.org/about/ (accessed August 25, 2021).
{15} 3CDC is a nonprofit real estate company entrusted with the maintenance, safety, and security of Ziegler Park. Ziegler Park, https://zieglerpark.org/about/about-3cdc/ (accessed August 27, 2021). The testimony at trial established that 3CDC hires off-duty city poliсe officers to enforce the rules and regulations of the park. Sherman testified that on August 1, 2019, he was working an off-duty detail for 3CDC.
{16} It is undisputed that Sherman revoked Staley‘s privilege to remain in Ziegler Park. The key question is whether he had the proper authority to do so.
{17}
This is particularly true with regard to persons charged with the supervision of public property. As they are not the actual owners of the property, they have no right to exclude persons from the property for any reason or no reason at all. As public officers, they must act reasonably and within the scope of their authority. When a person charged with the supervision of public property acts unreasonably or exceeds the scope of his or her authority, the purported revocation of the privilege to enter the property is void and of no further effect.
Id.
{18} In this case, Sherman testified that he acted at the behest of a 3CDC employee, who can be sеen standing next to Sherman in the body-cam footage. According to Sherman, the 3CDC employee requested his assistance because Staley was violating a recently-implemented rule prohibiting park goers from lying on the premises. When Sherman approached Staley, she was lying flat on her back on a cement park bench. Sherman testified that he asked Staley to sit up three or four times. When Staley did not comply, Sherman instructed her to leave the park.
{19} Staley disрutes the existence of 3CDC‘s park rule, and thus, Sherman‘s authority to revoke her privilege to remain in the park. However, even if 3CDC‘s alleged park rule does not provide Sherman with the proper authority, we take judicial notice of the city of Cincinnati‘s Park Board Rule 37, entitled “Lying Upon Park Property.” City of Cincinnati, Park Board Rules, https://www.cincinnatiparks.com/about-us/park-board-rules/ (accessed August 25, 2021). Rule 37 provides in pertinent part, “No person may lie upon any bench or ledge on park property.” Id. Thus, we find that Sherman had a reasonable and legitimate basis to revoke Staley‘s privilege to remain in Ziegler Park.
{21}
{22} A review of the record shows that Staley remained in Ziegler Park despite numerous instructions to leave. Over the course of one minute, Sherman asked Staley to leave the park six or seven times. After the second request, Sherman threatened to arrest Staley for criminal trespass. After the fifth request, Staley actively began leaving. Staley got her son from the playground, put on his shoes, and collected her belongings. However, the entire time Staley prolonged the process by questioning and arguing with Sherman. Staley stopped walking and turned around to video record Sherman on her cell phone approximately six times on her way out of the park. When Sherman instructed Staley to “head out to the sidewalk” and “keep
{23} There being sufficient evidence to support the conviction for criminal trespass, we next consider whether the conviction was against the manifest weight of the evidence.
{24} Staley contends that her conviction was against the manifest weight of the evidence because it was the product of racial targeting. However, this argument does not concern the weight of the evidence. It instead sounds in selective prosecution, which Staley did not properly raise. To the extent that Staley is claiming Sherman is racially biased, and thus, not credible, that is a determination best left to the trier of fact. Because Sherman‘s testimony was corroborated by the body-cam footage, which showed Staley lying on the park bench and failing to leave the premises when repeatedly asked to do so, we do not hold that the trial court clearly lost its way and created such a manifest injustice that Staley‘s conviction for criminal trespass must be reversed.
2. Disorderly Conduct
{25} Staley was also convicted of disorderly conduct in violation of
{26} The Ohio Supreme Court has held that a person may not be found guilty of disorderly conduct under subsection (A)(2) unless the words spoken are
{27} In determining whether Staley‘s language rose to the level of fighting words, we must consider the totality of her conduct, both verbal and physical. State v. Beamer, 5th Dist. Coshocton No. 11CA14, 2012-Ohio-2222, ¶ 11; Middletown v. Carpenter, 12th Dist. Butler No. CA2006-01-004, 2006-Ohio-3625, ¶ 14. Here, Staley used derogatory language in the midst of a public park playground, surrounded by numerous children and other park goers. Over the course of four minutes, Staley used several profane epithets to reflect her anger toward Sherman. Staley called Sherman an “Uncle Tоm” a dozen times; told Sherman, “Fuck you,” multiple times; and stated “Fuck you, dickhead,” to Sherman as she left the park. Staley also shouted that Sherman was “puttin’ on for these honkeys” and “ass kissin’ for these honkeys.” Furthermore, Staley displayed aggressive behavior toward Sherman by throwing her elbow at him and stating “You ain‘t gonna touch me and make me [leave]. I bet you won‘t touch me.” Sherman warned Staley, “you use one more cuss word in front of these kids, I‘m gonna take you to jail for DC.” Nonetheless, Staley continued to draw attention to the incident and openly involve other park goers. A review of the footage shows several alarmed children and onlookers. Under these circumstances, Staley‘s words and behavior together constituted “fighting words” not protected by the Constitution. Accordingly, there was sufficient evidence to support Staley‘s conviction for disorderly conduct under
3. Resisting Arrest
{29} Staley was further convicted of resisting arrest in violation of
{30} Staley argues that Sherman lacked probable cause to believe she hаd committed a criminal offense, and thus, she was not lawfully under arrest. However, as detailed above, we find that Staley‘s conduct amounted to two arrestable offenses: criminal trespass and disorderly conduct. Because there was a lawful basis on which to arrest Staley, there was sufficient evidence to support her conviction under
{31} Staley further argues that the manifest weight of the evidence does not support her conviction for resisting arrest because Sherman used excessive force to effectuate the arrest. In particular, Staley contends that Sherman “snatched her hair and tried to pull her away.” The state counters that Sherman simply put his hand on Staley‘s hair and did not use any force against her.
{33} That is exactly what happened in this case. Approximately four minutes into the encounter, Sherman told Staley that she was under arrest. Instead of complying with Sherman‘s demands, Staley walked across the street, entered the basketball court, and continued causing a scene. Sherman attempted to handcuff her on three separate occasions, but Staley pulled away. Staley only submitted to the arrest after a female officer arrived on the scene. It was not until the female officer was effectuating the arrest that Sherman grabbed ahold of Staley‘s hair. Because Sherman‘s use of force occurred after Staley‘s resistance, Staley failed to establish the affirmative defense of excessive force. Accordingly, the trial court did not clearly lose its way and create such a manifest injustice that Staley‘s conviction for resisting arrest must be reversed.
{34} Staley‘s first assignment of error is overruled.
III. Alleged Brady Material
{35} In her second, third, and fourth assignments of error, Staley presents several challenges based on the state‘s alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In her second and third assignments
{36} We review a trial court‘s denial of a motion for a new trial under an abuse-of-discretion standard. State v. Smith, 1st Dist. Hamilton Nos. C-180439 and C-180604, 2019-Ohio-5350, ¶ 15.
{37} Pursuant to
{38} In this case, the trial court entered its decision on February 19, 2020. Staley did not file her motion for a new trial until July 29, 2020, over 160 days later. Following a hearing on the motion, the trial court found that Staley was not unavoidably prevented from filing the motion within the 14-day period prescribed by
{39} A review of the record supports the trial court‘s conclusion. Staley‘s counsel received the citizen complaint records by preforming a search on a public database. There is no evidence that the database was unavailable prior to July 29,
{40} Even assuming Staley was unavoidably prevented from discovering the citizеn complaint records, her motion still fails on its merits.
{41} “The suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or punishment[.]” State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph four of the syllabus, citing Brady, 373 U.S. at 87. Evidence is materially exculpatory “‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.‘” Johnston at 61, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “The test is stringent,” and thus, ” ‘[the] mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’ ” State v. Jackson, 57 Ohio St.3d 29, 33, 565 N.E.2d 549 (1991), quoting United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
{42} The defendant bears the burden of proving that withheld evidence is materially exculpatory. State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693, ¶ 11 (1st Dist.), citing State v. Benton, 136 Ohio St.3d 801, 805, 737 N.E.2d 1046 (2000).
{44} But there is nothing in the record to support that claim. Counsel posited that from 2009 to 2013, 20 complaints were filed with the Citizen Complaint Authority against Sherman. Counsel provided brief descriptions of the complaints, such as “lack of service,” “off-duty conduct,” and “discourtesy.” Counsel alleged that two of the complaints were substantiated. However, counsel claims she could not access the entirety of the complaints and did not know any specific details from the complaints. Counsel even admitted, “I don‘t know what these things are.” None of the complaints were provided in the record. Thus, Staley failed to show that the undisclosed complaint records contained materially exculpatory information.
{45} Staley‘s second, third, and fourth assignments of error are overruled.
V. Conclusion
{46} For the foregoing reasons, Staley‘s assignments of error are overruled and the judgments of the trial court are affirmed.
Judgments affirmed.
WINKLER, J., concurs.
ZAYAS, P.J., concurs in judgment only.
The court has recorded its own entry on the date of the release of this opinion.