Court of Appeals of Ohio, Second District, Montgomery
Appeal from Municipal Court T.C. NO. 15-CRB-15
MICHAEL A. MAYER, Attorney for Plaintiff-Appellee.
JENNIFER E. MARIETTA, Attorney for Defendant-Appellant.
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
2} Popp appeals from his conviction, raising four
assignments of error.
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
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,
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,  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
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 ...