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State v. Popp

Court of Appeals of Ohio, Second District, Montgomery

September 1, 2017

STATE OF OHIO Plaintiff-Appellee
v.
CARL A. POPP Defendant-Appellant

         Criminal Appeal from Municipal Court T.C. NO. 15-CRB-15

          MICHAEL A. MAYER, Attorney for Plaintiff-Appellee.

          JENNIFER E. MARIETTA, Attorney for Defendant-Appellant.

          OPINION

          FROELICH, J.

         {¶ 1} On March 11, 2015, Carl A. Popp was charged by citation with one count of disorderly conduct, one count of criminal trespass, and one count of resisting arrest. The State dismissed the count of disorderly conduct before trial, and Popp was found guilty by a jury in the Oakwood Municipal Court of one count of criminal trespass; he was found not guilty of resisting arrest. Popp was sentenced to 30 days in jail, but that sentence was suspended and Popp was placed on supervised probation for two years on the condition that he continue mental health counseling until released. He was also fined $250.

         {¶ 2} Popp appeals from his conviction, raising four assignments of error.

         Sufficiency and Weight of the Evidence

         {¶ 3} The first and second assignments of error assert that Popp's conviction was supported by insufficient evidence and was against the manifest weight of the evidence.

         {¶ 4} An argument based on the sufficiency of the evidence challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Under a sufficiency analysis, an appellate court does not make any determinations regarding the credibility of witnesses. State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. "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." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶ 5} In contrast, when reviewing an argument challenging the weight of the evidence, the court reviews 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 finder 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. " ' The discretionary power to grant a new trial should be exercised only in the exceptional case in which evidence weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

         {¶ 6} Where an appellate court determines that a conviction is not against the manifest weight of the evidence, the conviction is necessarily based on legally sufficient evidence. State v. Million, 2d Dist. Montgomery No. 24744, 2012-Ohio-1774, ¶ 23; State v. Combs, 2d Dist. Montgomery No. 19853, 2004-Ohio-2419, ¶ 12.

         {¶ 7} Criminal trespass, as charged in this case, is defined as "[b]eing on the land or premises of another and negligently failing or refusing to leave upon being notified by signage posted in a conspicuous place or otherwise being notified to do so by the owner or occupant, or the agent or servant of either." R.C. 2911.21(A)(4).

         {¶ 8} The State's evidence at trial was as follows:

         {¶ 9} Paul Waller, the principal of Oakwood High School, testified that he learned of a "disciplinary situation" at the school involving Popp's son in early March 2015. Believing that the situation had been resolved by a teacher, Waller did not take any action until he received an email from Popp asking for a meeting. Waller then investigated the situation further by talking with the teacher and some of the other students involved, which confirmed Waller's view that no disciplinary action was needed. Waller agreed with the teacher that it had been resolved and had been "a good learning experience" for Popp's son.

         {¶ 10} Popp's email to Waller indicated that he (Popp) wanted to know the details of his son's "interrogation" and what other students had said about his son. Waller responded to Popp by email, indicating that Popp had "misinformation" about his son's being in trouble, but Waller also forwarded the emails to his secretary and asked her to set up a meeting with the Popps.

         {¶ 11} On March 11, 2015, Waller met with Popp, his wife Tammy, [1] and their son in Waller's office. According to Waller, Waller began the meeting by asking Popp's son to explain what had happened; the son's version was consistent with what Waller had been told by the teacher. Tammy expressed some confusion about why they were meeting, apparently not understanding that Popp had requested the meeting. Popp then said he needed to speak to his wife outside, and Popp and Tammy briefly left the room.

         {¶ 12} When Popp and Tammy returned, Popp asked for the names of the students who had said something to the teacher about his son. Waller refused to share this information, stating that the students had been concerned about their safety and had gone to an adult with their concerns, as they were taught to do. Popp was unsatisfied with this response, and made a comment to his son indicating, "That's the kind of answer you get from the one percent." Waller then tried to conclude the meeting. Waller asked Popp's son to go back to class, but Popp told his son not to leave because they were not done. Waller said to Popp, "You need to go, " but Popp said, "We're not leaving." Waller then informed Popp that he (Waller) was going to call the Oakwood Safety Department if Popp did not leave. Popp said, "Go ahead. I want to press charges on you." Waller had no idea what Popp was referring to, but informed Popp that he could press charges over at the Safety Department. Waller then instructed his secretary to call the Safety Department because the Popps would not leave his office.

         {¶ 13} According to Waller, Waller walked toward Popp's son with his arms extended to encourage the son to return to class, but Popp "knocked" his arms down and said, "Don't touch my son." Waller testified that he was trying to spare the son from embarrassment as a result of the encounter. By the time an officer arrived, Waller had asked the Popps to leave his office four or five times.

         {¶ 14} Waller testified that Oakwood Police Officer Upchurch entered the principal's office and also asked Popp to leave. According to Waller, Upchurch was not "especially aggressive"; Upchurch stated to Popp that the principal had asked him (Popp) to leave and he (Popp) needed to leave. Popp responded, "It's not that simple." Upchurch stated, "Yes it is, " and threatened to arrest Popp. Tammy started to gather her things, but Popp instructed her to stay in her seat. Popp also refused to get up ...


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