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State v. Schwendeman

Court of Appeals of Ohio, Fourth District, Athens

January 17, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
THOMAS SCHWENDEMAN, Defendant-Appellant.

          Patrick T. Clark, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, Ohio for appellant.

          Lisa A. Eliason, City Law Director, Jessica L. Branner, Athens City Prosecutor, Athens, Ohio for appellee.

          DECISION AND JUDGMENT ENTRY

          William H. Harsha, Judge

         {¶1} 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 instruction.

         {¶2} 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.

         {¶3} We affirm the trial court judgment.

         I. FACTS

         {¶4} 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.

         {¶5} 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 poison ivy.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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, ...


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