LIFE IS A BOWL OF BERRIES
Who knows how neighbor feuds that simmer for years and years suddenly explode? Maybe Tom Schwendeman knows.
Tom lives next to the Roaches (who are people, not insects). About 14 years ago, the Roaches surrounded their property with a chainlink fence, which was clearly on their land. They even had a surveyor lay down pins before the fence went up. Since that time, the Roaches have engaged in such loathsome activities as building campfires in their back yard on as many as five, yes, FIVE occasions, and for spraying herbicide on poison ivy growing along the fence.
We get a sense of how things were going with the Roaches, given that grumpy neighbor Tom called the EPA to complain about the campfires (which occurred at a frequency of about one every two years, if our math skills remain sharp). Being busy creating environmental disasters of its own, the EPA apparently declined to intervene. Also, Tom liked to pick berries that grew along the fence. The herbicide on the poison ivy was the last straw for Tom. Convinced that his next blueberry smoothie would be his last, Tom tried to kick the fence down.
You, of course, have heard on countless police shows the Miranda warning. You know, “you have the right to remain silent….” Heed it well. Tom should have. As we like to tell clients, remaining silent is not just your right: usually, it’s a damn good idea, too.
Tom did not remain silent but instead vented his spleen at the deputies who responded to the call. He admitted the fence belonged to the Roaches and was on their land, but… well… the campfires! And the berries! How much is a man supposed to endure?
When it came time for Tom’s misdemeanor trial, his lawyer did not have much to work with, other than Tom’s frivolous argument that the fence was already in bad shape, and his tirade did not make it materially worse. For good measure, Tom threw in the woof story that he was only trying to get the fence off his land. The last defense might have worked… if Tom had kept his mouth shut when the cops had first shown up.
State v. Schwendeman, Case No. 17CA7 (Ct.App. Athens Co., Jan. 17, 2018) 2018 Ohio App. LEXIS 242. The state charged Tom Schwendeman with criminal damaging, a misdemeanor, because he damaged a chain-link fence between his property and that of his neighbors, Dawn and Gordon Roach.
The Roaches installed the fence about 13 years ago. One day last summer, Tom – apparently furious because the Roaches had sprayed herbicide along the fence to kill poison ivy – began yelling and kicking and showing “a lot of anger towards the fence,” as a witness put it. Someone called the sheriff, and Tom admitted to a deputy that he knew it was not his fence but that the Roaches liked to have campfires in their back yard that bothered him and that they had sprayed herbicides for poison ivy along the fence line. Tom said he picked berries along the fence.
By the time he got to trial, Tom had an explanation that was a little more congruent. He complained about his problems with the five or six fires the Roaches had built in their back yard and argued that because the fence was 12 years old, the only damage he saw to it was “wear and tear that’s happened over the period of twelve years. More than twelve years it’s been there.” He claimed that he witnessed tree branches falling on the fence and the Roaches’ children climbing the fence, causing it to come apart. On more than one occasion, Tom claimed, the kids made “the fence pull loose and collapse…. when they were climbing it.” He said he disconnected the cyclone fence from the posts carefully because it was on his property and wanted to move it. Tom claimed the Roaches knew it was on his land, but they refused to move it unless Tom had the property surveyed and took them to court.
But on cross-examination, Tom admitted he was angry when he began dismantling the fence. “I had been poisoned,” Tom testified. “My berries had been poisoned… my food had been poisoned, and my next smoothie would make me very ill.” Tom admitted he did not “own” the fence, but he continued to press his claim that “it was on my property.”
Tom’s lawyer argued that children, dogs, and trees caused the damage to the Roaches’ fence. However, defense counsel did not seek a jury instruction that Tom was exercising a privilege to remove an obstruction on his own land and did not object to the court’s jury instructions.
The jury found Tom guilty. He was ordered to pay restitution and a fine. Tom appealed.
Held: The conviction was upheld. Tom claimed on appeal he had the right to remove obstructions from his land, but he never asked the court to instruct the jury on that defense.
When a party fails to object in the trial court, generally, he or she cannot make a claim on appeal that was not raised below unless he can show “plain error” that affects substantial rights. It’s a tough standard to meet.
Ohio law does indeed hold that a landowner has the right to use self-help to remove encroachments on his property, provided the landowner acts with reasonable care. That is what is called an “affirmative defense” to the criminal damaging charges that were brought against Tom. But a defendant is not entitled to have the court give the jury that instruction unless he has come forward with at least some evidence that, if believed, raises the affirmative defense. Otherwise, the court is not permitted to give a jury instruction on the affirmative defense.
Tom testified the fence was on his land, but he didn’t offer any evidence that that was so. He could have shown a deed, or a survey, or even a plat map. But he had to show something. What’s more, not only did he offer nothing at trial, his testimony that the fence was on his land directly contradicted his statements to two sheriff’s deputies. Without providing a rationale for the inconsistency with his prior admissions to the deputies, the Court said, Tom’s trial testimony was not credible. Because there was no credible evidence supporting his contention that he owned the land, the trial court as a matter of law could not properly give a jury instruction on the affirmative defense.
Tom also argued to the court of appeals that his defense attorney was a putz. The 6th Amendment to the constitution guarantees all criminal defendants effective assistance of counsel. Here, Tom fumed, his attorney was ineffective because he failed to request the jury instruction on Tom’s privilege to remove an encroachment from his land. The appellate court said no dice: based on the lack of evidence supporting the claim, the court properly would have refused to give the instruction. Tom’s trial counsel cannot be deficient for failing to request an unwarranted jury instruction. Anyway, the Court of Appeals observed, Tom’s lawyer was pursuing a “wear and tear” defense at trial, making a decision not to argue that Tom also had the right to move it off his property fairly sound trial strategy.
Trial counsel cannot be found deficient, the Court of Appeals said, for failing to request an unwarranted jury instruction or for exercising sound trial strategy.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 
Great overview of the case!!! I am one of the “Roaches” in question. We have had to endure years of harassment from old Tom for many years and sadly still are. I came across this article while Googling his name after a recent run in with him where we will be seeking a protection order YET AGAIN. For the record I would like to say this. 1. Myself, hubby, my mother (a witness), and neighbor witness were made to leave the court room during the trial only to return when it was our turn to talk then banished again. I believe this to be so we could not hear all the lies he said about us. 2. We sprayed for poison ivy only after our 4 yr old had to be taken to the dr because his eyes were swollen shut from poison ivy (for the second time). 3. No berries were hurt by the spraying. To my knowledge I have not seen any berries every growing on the fence line and we have lived there since 2001. He also stated in court hearing my hubby told him he should make a nice smooth with said berries because he wanted Tom to be sick…we run when we see him coming and limit interaction with him at ALL COST. I was also shocked to learn (from finding this case break down) that he filed an appeal on this case. My family got a kick out of the whole breakdown and pictures!!
Sad to hear your troubles with Tom. I don’t keep in close contact since I have been out of state for years and have no intention to ever have any thing to do with Ohio. He can be difficult at times. Some people never change. I can’t take sides as Robert Frost put it,”Fences make for Good Neighbors! ”
Several years back, my sister asked for assistance putting in a new fence. The application was in but not paid. I insisted that they keep the chain linked fence up on the property line. The city clerk mentioned that alot of fence application had been filed in the area. Also noted that my reason for putting up the new fence 30 inches from the property line was an excellent move. As in this situation, like most a fence goes up for (Let’s say privacy &peace of mind,.) a problem. Several years goes by and you have to make repairs. You can not get permission to do maintenance from your lovely Neighbors. The cycle starts all over again. With the chain linked fence my brother in-law has been able to maintain his own fence a mow the grass in between, without having to deal with the Yahoo next door. The Yahoo next door did try and Place items into the area between the fence, brother in-law gave him warning and tossed them back into the Yahoo’s yard. He got the message. Another sister in Ohio had to put in a fence, as the neighbor was trying to store vehicles on her property. His last name was Looney, which was funny as well. Didn’t know it at first. Thought that they were just calling them Looney. Hang in there Tom is supposed to be a pacifist (Quaker!) Remind him of that….I assume that this is the same Tom I know also.