COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72475 CITY OF CLEVELAND HEIGHTS, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : JOSEPH SCHULGASSER, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : APRIL 30, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Cleveland Heights Municipal : Court : Case No. CRB-9601142 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Kim T. Segebarth City Prosecutor City of Cleveland Heights 40 Severance Circle Cleveland Heights, Ohio 44118 For defendant-appellant: Patricia Koch Windham SCHUSTER & SIMMON The Bevelin House 2913 Clinton Avenue Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Joseph Schulgasser, was convicted after a jury trial of criminal trespassing in violation of Cleveland Heights Codified Ordinance Section 541.05(A). On July 5, 1996, appellant was asked to leave an orthodox Jewish temple, Shomre Shabbos, by both David J. Lipins, the president of the congregation, and by Rabbi Sruly Wolf, the vice- president. After appellant remained, the Cleveland Heights Police Department was called. The police removed appellant and placed him under arrest for trespassing. At trial, the City of Cleveland Heights (the City ) called three witnesses, David Lipins, Sruly Wolf, and Cleveland Heights Police Officer Mecklenberg. Lipins and Wolf testified that appellant was present at the temple and refused to leave when asked to do so. Additionally, Lipins testified that in January, 1996 he sent a letter to appellant informing him that he was not welcome at Shomre Shabbos. Officer Mecklenburg testified that when he arrived he asked appellant to leave, that appellant did not acknowledge him, and that he then escorted appellant from the temple and arrested him for trespassing. The court overruled appellant's motion for acquittal at the close of the City's case. In defense, appellant called as witnesses Rabbi Yochanan Greenwald, Sruly Greenwald, Rabbi Israel Grumer, and himself. Both Rabbi Greenwald and his son, Sruly, testified that they were present when appellant was arrested and that prior to the arrest, appellant did not cause a commotion or disturbance at the temple. -3- Rabbi Grumer testified that he led services at the temple and he was aware appellant had been asked not to attend, but that he himself never told appellant not to come to the temple. Appellant testified that he received the letter from Shomre Shabbos, but that Rabbi Grumer told him that he would be welcome at the temple. The jury found appellant guilty of trespassing. The court sentenced appellant to a fine of $250, which was suspended; thirty days in jail, which was suspended; and placed appellant on three years inactive probation. Appellant's probation was conditioned upon him not entering Shomre Shabbos without permission of the congregational authorities; that he refrain from harassing, menacing, or physically abusing Shomre Shabbos' congregation, and that he not be convicted of another trespass. I. Appellant's first and third assignment of error read: I. THE TRIAL COURT ERRED IN OVERRULING MR. SHULGASSER'S CRIM.R. 29 MOTION FOR ACQUITTAL. III. MR. SCHULGASSER'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -4- The complaint, which follows the wording of Cleveland Heights Codified Ordinance Section 541.05(A), charging appellant with criminal trespass, reads in pertinent part that: Joseph Schulgasser, without privilege to do so, ( ) Knowingly entered or remained on the land or premises of another; ( ) Knowingly entered or remained on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes or hours, when the offender knows he is in violation of any such restriction or is reckless in that regard; *** ( ) Was on the land or premises of another, negligently failed or refused to leave upon being notified to do so by the owner or occupant, or the agent or servant of either, *** Crim.R. 29 provides in part: (A) Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. *** The syllabus in State v. Bridgman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, reads: Pursuant to Crim.R.29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime had been proved beyond a reasonable doubt. In order to convict appellant of the crime of trespass, the prosecution was required to show that appellant was without -5- privilege to be on the premises of, or to remain at, the synagogue as outlined in the complaint. Lipins and Wolf testified that appellant was aware he was without privilege to attend Shomre Shabbos. Also, there was ample testimony that appellant refused to leave the temple when asked to do so. As to appellant's first assignment of error that the City did not present sufficient evidence to sustain the conviction, we find sufficient evidence establishing the elements of trespass. Accordingly, appellant's first assignment of error is overruled. In State v. Martin (1985), 20 Ohio App.3d 172, 485 N.E.2d 717, the third paragraph of the syllabus reads: 3. In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court, reviewing 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 jury 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 the evidence weighs heavily against the conviction. As to appellant's contention in his third assignment of error that his conviction was against the manifest weight of the evidence, the evidence presented by the City clearly supports a finding of appellant's guilt. Accordingly, appellant's third assignment of error is overruled. II. Appellant's second assignment of error reads: II. THE TRIAL COURT ERRED IN DENYING ADMISSION OF THE CONGREGATION'S CONSTITUTION INTO EVIDENCE. -6- Appellant argues that the exclusion of the Shomre Shabbos' constitution pursuant to Evid.R. 403 was error. Evid.R. 403 provides: (A) Exclusion mandatory Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (B) Exclusion discretionary Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. The congregation's constitution provides the duties of officers within the congregation. Appellant argues that because the Shomre Shabbos' constitution only provides a mechanism to exclude members from the temple, the officers who excluded appellant were without authority to do so. Even had this document been admitted, appellant's argument fails. It is a tenet of property law that the right to exclude others is inherent to the right of property ownership. Bresnick v. Beulah Park Ltd. Partnership, Inc. (1993), 67 Ohio St.3d 302, 303, 617 N.E.2d 1096, 1097. Accordingly, as owners of the temple, the congregation,through its elected agents, had the right to exclude anyone. The congregation's constitution only serves to limit the ability to exclude members, not others. For these reasons we find no error in the court's exclusion of the constitution. Accordingly, appellant's second assignment of error is overruled. III. -7- Appellant's final assignment of error reads: IV. THE TRIAL COURT ERRED IN DENYING MR. SCHULGASSER A DIRECTED VERDICT AS HIS CONVICTION UNCONSTITUTIONALLY INFRINGES UPON HIS FREEDOM OF RELIGION. Appellant argues that the state impermissibly interfered with his constitutional right to freedom of religion by removing him from the temple. We first note that at trial appellant did not raise this constitutional issue, specifically agreeing to waive his right to this argument. Accordingly, appellant may now only raise this argument if the failure to bring this argument constitutes plain error. See, Crim.R. 52(B). Appellant claims that under Oregon v. Smith (1991), 494 U.S. 872, the City has the burden to prove that it's interests in enforcing it's criminal trespass ordinance outweigh appellant's freedom to exercise his religion. We disagree. In Smith, supra, the Supreme Court explicitly rejected a balancing test weighing the governmental interest in enforcing a neutral, generally applicable law against an individual's free exercise of religion, stating that We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. 494 U.S. at 879; see, also 494 U.S. 882-90 (Part II.B.). In this case, appellant was found by a jury to be trespassing at the temple. Cleveland Heights' ordinance prohibiting trespassing is a law of general applicability, not one specifically -8- aimed at preventing the free exercise of religion. Accordingly, appellant's fourth assignment of error is overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Heights Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and __________________________________ JOSEPH J. NAHRA DYKE, J., CONCUR. JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .