State v. Staley

[Cite as State v. Staley, 2021-Ohio-3086.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-200270
C-200271
Plaintiff-Appellee, : C-200272
TRIAL NOS. 19CRB-19555A
vs. : 19CRB-19555B
19CRB-19555C
SONYA STALEY, :
O P I N I O N.
Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: September 8, 2021

Andrew Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and
Meagan D. Woodall, Assistant Prosecuting Attorney, for Plaintiff-Appellee City of
Cincinnati,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant Sonya Staley.
 OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} Defendant-appellant Sonya Staley appeals from three municipal court

judgments in which she was convicted of criminal trespass, disorderly conduct, and

resisting arrest. For the reasons set forth below, we affirm the judgments of the trial

court.

I. Facts and Procedure

{¶2} On August 1, 2019, Cincinnati Police Officer Carlos Sherman was

working an off-duty detail for the Cincinnati Center City Development Corporation

(“3CDC”) at Ziegler Park. Around 5:30 p.m., Sherman received a request for

assistance from a 3CDC staff member. When Sherman arrived on the scene, he saw

Staley lying flat on a cement park bench with sunglasses covering her eyes.

According to Sherman, 3CDC had recently implemented a rule that prohibited park

goers from lying down in Ziegler Park. He testified that the policy was put into effect

that summer as a means of decreasing the number of false overdose calls received by

the city.

{¶3} Sherman testified that he approached Staley and asked her to sit up in

accordance with park policy. Sherman claimed that he repeated the order three or

four times before Staley briefly sat up. Staley testified that she informed Sherman

that she could not sit for extended periods of time due to a medical condition. She

then lay back down on the bench. At that point, Sherman activated his body-worn

camera. The body camera captured the remainder of the encounter.

{¶4} The video footage shows Staley lying on the bench with Sherman and a

3CDC member standing next to her. Sherman told Staley, “I’m going to ask you one

more time ma’am to sit up. * * * They don’t want you laying down at the park. I

already had to tell one person to leave.” When Staley refused, Sherman instructed

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her to leave the park. Sherman ordered her to leave four more times before she

stood up. Staley then gathered her belongings, got her son from the playground and

put on his shoes, and began walking out of the park. The entire time Staley argued

with Sherman and loudly berated him in front of the other park goers. The body

camera captured Staley using the following language toward Sherman: “Uncle Tom,”

“Fuck you,” “Fuck you, dickhead,” “puttin’ on for these honkeys,” and “ass kissin’ for

these honkeys.” Sherman warned Staley that if she continued to use such language

around the children in the park, he would arrest her for disorderly conduct. Staley

persisted in using the derogatory language.

{¶5} Approximately four minutes into the encounter, Sherman informed

Staley that she was under arrest and contacted other officers for assistance. Instead

of complying with Sherman’s demands, Staley walked across the street, entered the

Ziegler Park basketball court, and continued causing a scene. Sherman attempted to

handcuff Staley on three separate occasions, but she pulled away. Staley was

eventually arrested by another responding officer. The body-cam footage shows that

eight minutes elapsed between Sherman’s first request for Staley to leave the park

and Staley’s arrest.

{¶6} Staley was subsequently charged with criminal trespass, disorderly

conduct, and resisting arrest. On February 19, 2020, Staley waived her right to be

tried by a jury and proceeded to a bench trial. The trial court found Staley guilty on

all charges. Due to the COVID-19 shutdown, Staley’s sentencing was continued until

July 29, 2020.

{¶7} On the morning of sentencing, Staley filed a motion for a new trial

pursuant to Crim.R. 33(A)(2). Staley argued that the state had failed to disclose

prior citizen complaints against Sherman. Staley posited: “In preparing for

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sentencing, defense counsel has been made aware of at least 20 complaints from

2009-2013 that were made to the [Citizen Complaint Authority], two being

substantiated.” None of the complaints were provided in the record or attached to

Staley’s motion. The trial court denied the motion and proceeded to sentencing.

Staley received a suspended 90-day jail sentence and one year of probation. Staley

filed this timely appeal, raising four assignments of error for our review.

II. Sufficiency and Weight of the Evidence

{¶8} In her first assignment of error, Staley argues that her convictions are

supported by insufficient evidence and are against the manifest weight of the

evidence.

{¶9} A sufficiency-of-the-evidence argument challenges the adequacy of the

evidence on each element of the offense. In reviewing a sufficiency challenge, “[t]he

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, 274,

574 N.E.2d 492 (1991).

{¶10} A manifest-weight-of-the-evidence argument challenges the

believability of the evidence. In reviewing a challenge to the weight of the evidence,

we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). We must review the entire record, weigh the evidence, consider

the credibility of the witnesses, and determine whether the trier of fact clearly lost its

way and created a manifest miscarriage of justice. Id.

1. Criminal Trespass

{¶11} Staley was convicted of criminal trespass in violation of R.C.

2911.21(A)(1), which provides: “No person, without privilege to do so, shall * * *

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[k]knowingly enter or remain on the land or premises of another[.]” Staley argues

that she was not without privilege to remain in Ziegler Park, or if she was without

privilege, that she left the premises when told to do so.

{¶12} “Privilege” is the distinguishing characteristic between criminal

trespass and lawful presence. State v. Casey, 8th Dist. Cuyahoga No. 99742, 2014-

Ohio-1229. “As a general rule, a person has a privilege to enter and be upon the

public areas of public property.” State v. Shelton, 63 Ohio App.3d 137, 578 N.E.2d

473 (4th Dist.1989). However, the rule is not all encompassing, and a criminal

trespass can be committed on public land under certain circumstances. State v.

Newell, 93 Ohio App.3d 609, 611, 639 N.E.2d 513 (1st Dist.1994), citing Adderley v.

Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). The General Assembly has

made it clear that a trespass is not excused simply because the property involved is

publicly owned. See R.C. 2911.21(B) (“It is no defense to a charge under this section

that the land or premises involved was owned, controlled, or in custody of a public

agency.”).

{¶13} Because “the status of land as public property cannot be a defense to a

charge of trespass * * * then, concomitantly, the public official or agency into whose

charge the property is put can withdraw or revoke the privilege otherwise enjoyed by

a member of the public.” Dayton v. Moore, 2d Dist. Montgomery No. 13369, 1993

WL 81966, *3 (Mar. 25, 1993). Thus, regardless of an individual’s initial privilege to

enter and be upon public property, “an owner or agent may revoke consent to remain

on the premises.” State v. Carr, 3d Dist. Union No. 14–11–20, 2012-Ohio-1679, ¶ 24.

{¶14} In this case, Staley asks us to take judicial notice that Ziegler Park is a

city-owned space, managed by 3CDC. Ziegler Park, https://zieglerpark.org/about/

(accessed August 25, 2021). Evid.R. 201(B) permits a court to take judicial notice of

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adjudicative facts of the case that “are not subject to reasonable dispute in that it is

either (1) generally known within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Judicial notice may be taken at any stage in the

proceeding, even on appeal. Evid.R. 201(F); Noe v. Housel, 2020-Ohio-1537, 153

N.E.3d 941 (6th Dist.), quoting State v. Mays, 83 Ohio App.3d 610, 614, 615 N.E.2d

641 (4th Dist.1992).

{¶15} 3CDC is a nonprofit real estate company entrusted with the

maintenance, safety, and security of Ziegler Park. Ziegler Park,

https://zieglerpark.org/about/about-3cdc/ (accessed August 27, 2021). The testimony

at trial established that 3CDC hires off-duty city police officers to enforce the rules

and regulations of the park. Sherman testified that on August 1, 2019, he was

working an off-duty detail for 3CDC.

{¶16} It is undisputed that Sherman revoked Staley’s privilege to remain in

Ziegler Park. The key question is whether he had the proper authority to do so.

{¶17} R.C. 2911.21 does not require a particular basis for revoking an

individual’s privilege to be on public property. However, the majority of Ohio courts

have held that “the privilege to enter or remain upon specific property, once granted

or conferred, may not be withdrawn arbitrarily or capriciously.” City of Columbus v.

Andrews, 10th Dist. Franklin No. 91AP-590, 1992 WL 41243, *7 (Feb. 27, 1992). See

State v. Manley, 3d Dist. Allen No. 1-97-52, 1998 WL 122213, *2 (Mar. 18, 1998);

State v. Donahue, 5th Dist. Fairfield No. 2004-CA-20, 2005-Ohio-1478, ¶ 61. Those

courts require a “reasonable or legitimate basis for withdrawing the privilege.”

Andrews at *11. According to the Tenth District:

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This is particularly true with regard to persons charged with the

supervision of public property. As they are not the actual owners of

the property, they have no right to exclude persons from the property

for any reason or no reason at all. As public officers, they must act

reasonably and within the scope of their authority. When a person

charged with the supervision of public property acts unreasonably or

exceeds the scope of his or her authority, the purported revocation of

the privilege to enter the property is void and of no further effect.

Id.

{¶18} In this case, Sherman testified that he acted at the behest of a 3CDC

employee, who can be seen standing next to Sherman in the body-cam footage.

According to Sherman, the 3CDC employee requested his assistance because Staley

was violating a recently-implemented rule prohibiting park goers from lying on the

premises. When Sherman approached Staley, she was lying flat on her back on a

cement park bench. Sherman testified that he asked Staley to sit up three or four

times. When Staley did not comply, Sherman instructed her to leave the park.

{¶19} Staley disputes the existence of 3CDC’s park rule, and thus, Sherman’s

authority to revoke her privilege to remain in the park. However, even if 3CDC’s

alleged park rule does not provide Sherman with the proper authority, we take

judicial notice of the city of Cincinnati’s Park Board Rule 37, entitled “Lying Upon

Park Property.” City of Cincinnati, Park Board Rules,

https://www.cincinnatiparks.com/about-us/park-board-rules/ (accessed August 25,

2021). Rule 37 provides in pertinent part, “No person may lie upon any bench or

ledge on park property.” Id. Thus, we find that Sherman had a reasonable and

legitimate basis to revoke Staley’s privilege to remain in Ziegler Park.

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{¶20} Staley claims that she was in the process of leaving Ziegler Park when

she was arrested. The state counters that Sherman repeatedly asked Staley to leave,

and yet, she remained on the premises until she was arrested.

{¶21} R.C. 2911.21 does not provide a time limit for leaving the premises

once privilege is revoked. However, several courts have held that a guest must

immediately leave once the privilege to remain on the premise is withdrawn. See

City of Kettering v. Kemp, 2d Dist. Montgomery No. 13396, 1993 WL 106142, *1

(Mar. 29, 1993) (“[I]f one remains on the premises once he’s requested to leave, the

offense is complete.”); State v. Todd, 12th Dist. Butler No. CA 2001–04–0929, 2001

WL 1079622 (Sept. 17, 2001) (“If the complainant asked the guest to leave, had the

authority to ask the guest to leave, and the guest did not immediately leave the

premises, then the guest was trespassing.”). Thus, “[e]vidence that a guest was asked

to leave the premises repeatedly and failed to make an effort to do so supports a

conviction for criminal trespass.” State v. Tingler, 7th Dist. Belmont No. 16 BE 0015,

2017-Ohio-4158, ¶ 11, citing City of Steubenville v. Johnson, 7th Dist. Jefferson No.

96JE17, 1997 WL 467582, *3 (Aug. 7, 1997).

{¶22} A review of the record shows that Staley remained in Ziegler Park

despite numerous instructions to leave. Over the course of one minute, Sherman

asked Staley to leave the park six or seven times. After the second request, Sherman

threatened to arrest Staley for criminal trespass. After the fifth request, Staley

actively began leaving. Staley got her son from the playground, put on his shoes, and

collected her belongings. However, the entire time Staley prolonged the process by

questioning and arguing with Sherman. Staley stopped walking and turned around

to video record Sherman on her cell phone approximately six times on her way out of

the park. When Sherman instructed Staley to “head out to the sidewalk” and “keep

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walking,” Staley responded “you ain’t gonna touch me and make me” and “I’m taking

my time.” Under these circumstances, there was sufficient evidence to support

Staley’s conviction for criminal trespass under R.C. 2911.21(A)(1).

{¶23} There being sufficient evidence to support the conviction for criminal

trespass, we next consider whether the conviction was against the manifest weight of

the evidence.

{¶24} Staley contends that her conviction was against the manifest weight of

the evidence because it was the product of racial targeting. However, this argument

does not concern the weight of the evidence. It instead sounds in selective

prosecution, which Staley did not properly raise. To the extent that Staley is

claiming Sherman is racially biased, and thus, not credible, that is a determination

best left to the trier of fact. Because Sherman’s testimony was corroborated by the

body-cam footage, which showed Staley lying on the park bench and failing to leave

the premises when repeatedly asked to do so, we do not hold that the trial court

clearly lost its way and created such a manifest injustice that Staley’s conviction for

criminal trespass must be reversed.

2. Disorderly Conduct

{¶25} Staley was also convicted of disorderly conduct in violation of R.C.

2917.11(A)(2), which provides: “No person shall recklessly cause * * * alarm to

another by * * * communicating unwarranted and grossly abusive language to any

person[.]” Staley claims that her words neither caused alarm nor constituted

unconstitutional speech, and thus, were insufficient to support a conviction under

R.C. 2917.11(A)(2).

{¶26} The Ohio Supreme Court has held that a person may not be found

guilty of disorderly conduct under subsection (A)(2) unless the words spoken are

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“fighting words.” State v. Hoffman, 57 Ohio St.2d 129, 133, 387 N.E.2d 239 (1979),

paragraph one of the syllabus. That is, the words spoken are “likely by their very

utterance, to inflict injury or provoke the average person to an immediate retaliatory

breach of the peace.” Id.

{¶27} In determining whether Staley’s language rose to the level of fighting

words, we must consider the totality of her conduct, both verbal and physical. State

v. Beamer, 5th Dist. Coshocton No. 11CA14, 2012-Ohio-2222, ¶ 11; Middletown v.

Carpenter, 12th Dist. Butler No. CA2006-01-004, 2006-Ohio-3625, ¶ 14. Here,

Staley used derogatory language in the midst of a public park playground,

surrounded by numerous children and other park goers. Over the course of four

minutes, Staley used several profane epithets to reflect her anger toward Sherman.

Staley called Sherman an “Uncle Tom” a dozen times; told Sherman, “Fuck you,”

multiple times; and stated “Fuck you, dickhead,” to Sherman as she left the park.

Staley also shouted that Sherman was “puttin’ on for these honkeys” and “ass kissin’

for these honkeys.” Furthermore, Staley displayed aggressive behavior toward

Sherman by throwing her elbow at him and stating “You ain’t gonna touch me and

make me [leave]. I bet you won’t touch me.” Sherman warned Staley, “you use one

more cuss word in front of these kids, I’m gonna take you to jail for DC.”

Nonetheless, Staley continued to draw attention to the incident and openly involve

other park goers. A review of the footage shows several alarmed children and

onlookers. Under these circumstances, Staley’s words and behavior together

constituted “fighting words” not protected by the Constitution. Accordingly, there

was sufficient evidence to support Staley’s conviction for disorderly conduct under

R.C. 2917.11(A)(2).

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{¶28} We likewise find that the conviction was supported by the manifest

weight of the evidence. Staley largely reiterates her arguments under the sufficiency

challenges. She contends that the manifest weight of the evidence does not support a

conviction for disorderly conduct because her speech neither caused alarm nor rose

to the level of fighting words. However, as described above, the video footage

provides credible evidence that Staley used abusive language and displayed

aggressive behavior in the midst of a public park, surrounded by children and other

park goers. Therefore, we do not hold that the trial court clearly lost its way and

created such a manifest injustice that Staley’s conviction for disorderly conduct must

be reversed.

3. Resisting Arrest

{¶29} Staley was further convicted of resisting arrest in violation of R.C.

2921.33(A), which provides: “No person, recklessly or by force, shall resist or

interfere with a lawful arrest of the person or another.”

{¶30} Staley argues that Sherman lacked probable cause to believe she had

committed a criminal offense, and thus, she was not lawfully under arrest. However,

as detailed above, we find that Staley’s conduct amounted to two arrestable offenses:

criminal trespass and disorderly conduct. Because there was a lawful basis on which

to arrest Staley, there was sufficient evidence to support her conviction under R.C.

2921.33(A).

{¶31} Staley further argues that the manifest weight of the evidence does not

support her conviction for resisting arrest because Sherman used excessive force to

effectuate the arrest. In particular, Staley contends that Sherman “snatched her hair

and tried to pull her away.” The state counters that Sherman simply put his hand on

Staley’s hair and did not use any force against her.

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{¶32} It is true that “an officer’s use of excessive force is an affirmative

defense to resisting arrest.” In re M.H., 2021-Ohio-1041, 169 N.E.3d 971, ¶ 35 (1st

Dist.). However, “resisting arrest and resisting an officer’s use of excessive force in

making an arrest are two different things.” State v. Elko, 2020-Ohio-4466, 158

N.E.3d 929, ¶ 40 (8th Dist.). Specifically, the Sixth Circuit Court of Appeals has

determined that only “pre-arrest excessive force is an affirmative defense to a charge

of resisting arrest in Ohio.” Hayward v. Cleveland Clinic Found., 759 F.3d 613 (6th

Cir.2014). Thus, where a defendant’s resistance precipitates an officer’s use of force,

the defendant cannot successfully assert the defense of excessive force.

{¶33} That is exactly what happened in this case. Approximately four

minutes into the encounter, Sherman told Staley that she was under arrest. Instead

of complying with Sherman’s demands, Staley walked across the street, entered the

basketball court, and continued causing a scene. Sherman attempted to handcuff her

on three separate occasions, but Staley pulled away. Staley only submitted to the

arrest after a female officer arrived on the scene. It was not until the female officer

was effectuating the arrest that Sherman grabbed ahold of Staley’s hair. Because

Sherman’s use of force occurred after Staley’s resistance, Staley failed to establish the

affirmative defense of excessive force. Accordingly, the trial court did not clearly lose

its way and create such a manifest injustice that Staley’s conviction for resisting

arrest must be reversed.

{¶34} Staley’s first assignment of error is overruled.

III. Alleged Brady Material

{¶35} In her second, third, and fourth assignments of error, Staley presents

several challenges based on the state’s alleged violation of Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In her second and third assignments

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of error, Staley contends that her due-process and fair-trial rights were violated when

the state committed prosecutorial misconduct by failing to disclose material

impeachment evidence, e.g., citizen complaints filed against Officer Sherman. In her

fourth assignment of error, Staley argues that the trial court erred in denying her

motion for a new trial on those same grounds. For ease of discussion, we start with

her fourth assignment of error.

{¶36} We review a trial court’s denial of a motion for a new trial under an

abuse-of-discretion standard. State v. Smith, 1st Dist. Hamilton Nos. C-180439 and

C-180604, 2019-Ohio-5350, ¶ 15.

{¶37} Pursuant to Crim.R. 33(A)(2), a new trial may be granted on the

grounds of prosecutorial misconduct. Prosecutorial misconduct includes the failure

to disclose materially exculpatory evidence, including evidence that undermines a

witness’s credibility. State v. Campbell, 2019-Ohio-3142, 140 N.E.3d 987, ¶ 43 (1st

Dist.). Motions for a new trial based on prosecutorial misconduct must be filed

within 14 days after the decision of the trial court. Crim.R. 33(B). Motions for a new

trial may be filed beyond the 14-day period only where the defendant was

“unavoidably prevented” from filing the motion. Id.

{¶38} In this case, the trial court entered its decision on February 19, 2020.

Staley did not file her motion for a new trial until July 29, 2020, over 160 days later.

Following a hearing on the motion, the trial court found that Staley was not

unavoidably prevented from filing the motion within the 14-day period prescribed by

Crim.R. 33(B), and denied the motion.

{¶39} A review of the record supports the trial court’s conclusion. Staley’s

counsel received the citizen complaint records by preforming a search on a public

database. There is no evidence that the database was unavailable prior to July 29,

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2020. Counsel claimed only that “she didn’t know it existed” until July 28, 2020.

Thus, there is no evidence that Staley was unavoidably prevented from discovering

the undisclosed complaint records within the time prescribed by Crim.R. 33.

Accordingly, the trial court did not abuse its discretion in denying Staley’s motion for

a new trial based on that evidence.

{¶40} Even assuming Staley was unavoidably prevented from discovering the

citizen complaint records, her motion still fails on its merits.

{¶41} “The suppression by the prosecution of evidence favorable to an

accused violates due process where the evidence is material either to guilt or

punishment[.]” State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988),

paragraph four of the syllabus, citing Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d

215. Evidence is materially exculpatory “ ‘only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different. A “reasonable probability” is a probability sufficient to

undermine confidence in the outcome.’ ” Johnston at 61, quoting United States v.

Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “The test is

stringent,” and thus, “ ‘[t]he mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome of the trial, does

not establish “materiality” in the constitutional sense.’ ” State v. Jackson, 57 Ohio

St.3d 29, 33, 565 N.E.2d 549 (1991), quoting United States v. Agurs, 427 U.S. 97,

109-110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

{¶42} The defendant bears the burden of proving that withheld evidence is

materially exculpatory. State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, 788

N.E.2d 693, ¶ 11 (1st Dist.), citing State v. Benton, 136 Ohio St.3d 801, 805, 737

N.E.2d 1046 (2000).

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{¶43} To satisfy the materiality requirement, Staley suggests that the

complaint records would have negatively affected the credibility of the state’s sole

witness, Officer Sherman. Staley speculates that the undisclosed records might have

contained instances of police misconduct, racial bias, and a history of untruthfulness

on behalf of Sherman. According to Staley, there is a “strong possibility that the

civilian complaints would have supported the defense’s theory that Officer Sherman

unfairly targeted and harassed Ms. Staley on the day in question and thereby

impeached the state’s sole witness.”

{¶44} But there is nothing in the record to support that claim. Counsel

posited that from 2009 to 2013, 20 complaints were filed with the Citizen Complaint

Authority against Sherman. Counsel provided brief descriptions of the complaints,

such as “lack of service,” “off-duty conduct,” and “discourtesy.” Counsel alleged that

two of the complaints were substantiated. However, counsel claims she could not

access the entirety of the complaints and did not know any specific details from the

complaints. Counsel even admitted, “I don’t know what these things are.” None of

the complaints were provided in the record. Thus, Staley failed to show that the

undisclosed complaint records contained materially exculpatory information.

{¶45} Staley’s second, third, and fourth assignments of error are overruled.

V. Conclusion

{¶46} For the foregoing reasons, Staley’s assignments of error are overruled

and the judgments of the trial court are affirmed.

Judgments affirmed.

W INKLER , J., concurs.
Z AYAS , P.J., concurs in judgment only.

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Please note:
The court has recorded its own entry on the date of the release of this opinion.

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