Court of Appeals of Ohio, Fourth District, Athens
Patrick T. Clark, Assistant State Public Defender, Office of
the Ohio Public Defender, Columbus, Ohio for appellant.
A. Eliason, City Law Director, Jessica L. Branner, Athens
City Prosecutor, Athens, Ohio for appellee.
DECISION AND JUDGMENT ENTRY
William H. Harsha, Judge
After a jury found Thomas Schwendeman guilty of criminal
damaging, the court sentenced him to suspended jail time, a
fine, and restitution. Schwendeman contends that the trial
court committed plain error and violated his constitutional
due process rights in failing to give a jury instruction that
a privilege to remove encroachments from his property would
constitute a full defense. He also contends that he was
denied the right to effective assistance of counsel because
his trial counsel failed to request a corresponding jury
The trial court did not commit plain error when it omitted a
jury instruction on an owner's privilege to remove
encroachments from his land. Schwendeman presented no
credible evidence supporting his contention that he owned the
land. Consequently, he failed to establish by the
preponderance of the evidence an affirmative defense of
privilege to remove an encroachment. As a matter of law the
trial court could not have given a jury instruction on this
affirmative defense. It was not an error, plain or otherwise,
for the trial court to omit this instruction. Thus the trial
court did not violate Schwendeman's constitutional
rights. And because the trial court properly omitted this
jury instruction, Schwedeman's trial counsel cannot be
deficient for failing to request an unwarranted instruction.
We affirm the trial court judgment.
The state charged Schwendeman with criminal damaging, a
second-degree misdemeanor under R.C. 2909.06(A) because he
damaged a chain-link fence between his property and that of
his neighbors, Dawn and Gordon Roach. Schwendeman lives
behind the Roaches on an adjacent property. The trial record
reveals that the Roaches erected a chain-link fence around
their property in 2004 or 2005.
About 12 years later, neighbor Danielle Metcalf informed Dawn
Roach and Dawn's mother Linda Bennett that Schwendeman
was tearing down the Roaches' chain-link fence. Metcalf
testified that she lived next door to the Roaches and that
she witnessed Schwendeman yelling and kicking the fence and
showing "a lot of anger towards the fence." Metcalf
testified that Linda Bennett approached Schwendeman and the
two began talking. Metcalf saw two or three panels of fencing
on the ground and heard Schwendeman state that he kicked the
fence down because he was mad that the Roaches sprayed for
Linda Bennett testified that she is Dawn Roach's mother
and lives a few houses down from her. Bennett testified that
she and Dawn were sitting outside when Danielle Metcalf
approached and informed them that an older man was tearing
down the Roaches' fence. Bennett testified that she went
over and spoke with Schwendeman, who told her that it was his
fence and he was taking it down. But Bennett told Schwendeman
that he knew it was not his fence and he knew it had been
erected by the Roaches. Bennett testified she began repairing
the fence as she spoke with Schwendeman.
Gordon Roach testified that his wife called him at work and
told him that Schwendeman had started tearing down their
fence. When Gordon came home from work he called the Athens
County Sheriffs Office and made a report. Gordon testified he
was unaware that there was any history of disputes with
Schwendeman other than once Schwendeman had complained about
Roach's occasional backyard campfires and one other time
Schwendeman complained to Gordon about Gordon's radio
volume. Gordon testified about the damage Schwendeman caused
to the fence. On cross-examination Gordon testified that
prior to installing the fence, he had his property surveyed
and he installed the fence along the pins on his property.
Athens County Sheriff Deputy Jennifer Atkins testified she
responded to the Roaches' call. Deputy Atkins inspected
the fence and spoke to neighbor Danielle Metcalf, Dawn's
mother Linda Bennett, as well as Gordon and Dawn Roach.
Deputy Atkins attempted to interview Schwendeman but he was
not home, so she was unable to interview him until a few
weeks after the incident. Deputy Atkins testified that
Schwendeman complained to her about the Roaches'
campfires and told her that he had contacted the
Environmental Protection Agency in the past about the fires.
He also complained about the Roaches' spraying herbicides
for poison ivy along the fence line. Schwendeman told her
that he uses the brush along the fence to get berries, so the
use of chemicals was a concern to him. Deputy Atkins
testified that Schwendeman admitted that he had kicked down
the fence because he was angry over the Roaches' use of
chemicals. Deputy Atkins asked Schwendeman if it was his
fence; Schwendeman admitted that it was not his fence and it
was not on his property.
Athens County Sheriff Lieutenant Jason Kline testified he
went with Deputy Atkins to interview Schwendeman and heard
Schwendeman admit both to damaging the fence and that he did
not own it.
Schwendeman testified about his problems with the five or six
fires the Roaches built in their backyard. Schwendeman
reviewed photographs of the fence damage and testified that
the fence was installed in 2004 and the only damage he saw
was "wear and tear that's happened over the period
of twelve years. More than twelve years it's been
there." Schwendeman claimed that he witnessed tree
branches falling on the fence and the Roaches' children
climbing the fence, causing the fence to come apart.
Schwendeman testified that on multiple occasions he saw the
fence pull loose and collapse on the children when they were
climbing it. Schwendeman said he attempted to
"disconnect it carefully when I disconnected the mesh
from the poles because I wanted, ...