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State v. Tingler

Court of Appeals of Ohio, Seventh District, Belmont

June 5, 2017


         Criminal Appeal from the County Court, Western Division, of Belmont County, Ohio Case No. 15 CRB 00880-01

          For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Kevin Flanagan Chief Assistant Prosecuting Attorney Atty. Helen Yonak Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Stephen P. Hardwick Assistant State Public Defender

          Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb


          WAITE, J.

         {¶1} Appellant Zachary Tingler appeals his conviction for criminal trespass in the Belmont County Court, Western Division. The issues raised on appeal are whether there was sufficient evidence to support the conviction and whether the conviction is against the manifest weight of the evidence. Based on our review of the record, Appellant's conviction is not against either the manifest weight or sufficiency of the evidence. The evidence reflects that Appellant was not an owner or permanent resident of the premises involved, but the boyfriend of a minor child ("Anna") living in the house. Appellant was asked to leave the residence by Anna's adult brother Art's fiancée, Brandy Neace ("Neace") and other adults in the home. Neace also provided unrebutted testimony that the Belmont County Juvenile Court requested that she monitor Anna while the child's mother, Eugenia Berring ("Berring") was not available. Therefore, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural Background

         {¶2} The following facts were derived from the record. The house in question was owned by Anna's father who was recently deceased. Anna's parents never married and the home was allegedly bequeathed to Anna and her brother, although the matter was still pending before probate court at the time the incident occurred. Prior to her father's death, Anna lived there along with her parents and her brother. Appellant was allowed to stay at the residence intermittently, leaving for periods of time and then reappearing to stay for a few days. On December 1, 2015, Appellant was at the house with Anna. He had been staying there since he was released from jail and asked to leave his own mother's house sometime in January of 2015. Neace was also staying there along with Anna and Berring. Neace had been staying at the residence for approximately two weeks at the suggestion of the Belmont County Juvenile Court to monitor Anna while her mother, Berring, was unavailable. Apparently, Anna's relationship with Berring was somewhat tumultuous, and while they remained in the house together, Anna required supervision during periods of her absences. On December 1, 2015, Neace witnessed Appellant conduct two drug transactions in the driveway of the home. Berring was not at home at the time. When Appellant entered the house and went upstairs, Neace followed him and an argument between Neace and Appellant ensued, wherein she informed him that his conduct was not allowed and that Anna could not give him permission to stay there since she was a minor. Soon Anna became involved in the verbal altercation and Neace informed her that Appellant would have to leave. Neace returned downstairs to join Art and their guest. Neace overheard an argument between Anna and Appellant and soon Anna called for them to come upstairs to get Appellant out. There is some dispute at trial as to whether Appellant had a gun in his hand at that time, but there was no mention of this gun in the report given to the police. Art told Appellant to leave. Appellant objected, saying that he needed his things. After more arguing between Art, Neace, Anna and Appellant, Appellant eventually left the house.

          {¶3} The following morning Neace went to wake Anna for school and discovered the door to Anna's bedroom was locked. Anna refused to come out and Neace could hear talking in the room. After Neace and Berring discussed the situation, they decided to contact the sheriffs department. A deputy arrived a short time later. Berring greeted the officer at the door and informed him that Appellant was upstairs in her minor daughter's bedroom and that he did not have permission to be in the home. The deputy proceeded upstairs and knocked on the bedroom door. It was locked and no one answered, but the officer could hear noises inside. Berring advised that there was an adjoining door to the room from Berring's room. The door was unlocked and the officer entered the room to find Appellant and Anna laying on the bed together. The officer also saw guns and smelled marijuana. After Anna and Appellant packed most of his belongings into garbage bags, the officer escorted Appellant out of the home. Neace testified that Appellant threatened to burn the house down as he was leaving.

         {¶4} Appellant was charged with possession of marijuana, in violation of R.C. 2925.11(A), (C)(3)(a); menacing, in violation of R.C. 2903.22(A); and criminal trespassing, in violation of R.C. 2911.21(A)(1). Appellant pleaded not guilty, and a bench trial was held on April 5, 2016. Appellant was found guilty on all counts. On the criminal trespassing conviction, Appellant was sentenced to thirty days in jail with fifteen days suspended as well as two years of probation. Appellant filed this appeal on the sole issue of his conviction for criminal trespassing.


The evidence was insufficient to support a conviction for trespassing because the State did not prove that Zachery Tingler lacked a privilege to be in the home. R.C. 2911.21(A)(1); Fifth and Fourteenth Amendments to the United States Constitution. T.p. 7-46.

         {¶5} A conviction which is based on insufficient evidence amounts to a denial of due process. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997) citing Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The sufficiency of the evidence is a question of law addressing the legal adequacy of the evidence; it is the legal standard applied to determine whether a case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. Thompkins at 386; State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997).

         {¶6} In analyzing a sufficiency of the evidence argument, the evidence of record and all rational inferences that can be drawn from the evidence must be evaluated in a light most favorable to the prosecution. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). The conviction will not be reversed on sufficiency grounds unless the reviewing court determines that no rational juror could have found the elements of the offense proven beyond a reasonable ...

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