CITY OF MAYFIELD HEIGHTS v. DENVER BARRY
No. 95771
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 2, 2011
2011-Ohio-2665
Criminal Appeal from the Lyndhurst Municipal Court, Case No. 09 CRB 00397
BEFORE: Cooney, J., and Celebrezze, P.J., and Rocco, J.
Nicholas J. Schepis
6181 Mayfield Road
Suite 302
Mayfield Hts., Ohio 44124
ATTORNEYS FOR APPELLEE
Dominic J. Vitantonio
George J. Argie
Argie, D’Amico & Vitantonio
6449 Wilson Mills Road
Mayfield Village, Ohio 44143
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Denver Barry (“Barry”), appeals the jury verdict finding him guilty of violating two sections of the Mayfield Heights Codified Ordinances (“MHCO”). We find no merit to the appeal and affirm.
{¶ 2} Barry, through his company April Management, Ltd., owns a two-acre parcel of land located at 1592 Lander Road (“the property”) in the
{¶ 3} On April 29, 2009, the City building inspector, Tim Tresar (“Tresar”), issued notices to cure two violations of the MHCO. The notices provided Barry approximately two weeks to correct the problems. On May 14, 2009, the City issued new notices giving Barry until June 10, 2009 to cure the violations. Meanwhile, on April 30, 2009, the City building director, Thomas Jamieson (“Jamieson”), criminally charged Barry with violating
{¶ 4} Barry initially pled not guilty and filed demands for discovery including a bill of particulars and a motion to compel responses to the bill of particulars. On the day scheduled for trial, the parties entered into a
{¶ 5} Barry’s engineer, Stephen J. Hovancsek (“Hovancsek”), submitted plans for the storm sewer to the City. However, the City engineer, David G. McCallops, P.E., URS Corporation, refused to approve Hovancsek’s plan because it lacked necessary topographic information, did not provide sufficient catch basins, the drawing did not show the existing drainage system, and various other reasons. As a result, Barry’s no contest plea was vacated and the case proceeded to a jury trial at which Barry was found guilty on both counts. On the first count, he was sentenced to a $1,000 fine, $750 suspended, 180 days in jail, suspended, with 6 months active probation or until compliance. On the second count, he was sentenced to a $500 fine, $250 suspended, and costs suspended pending compliance. A stay of the
Culpable Mental State
{¶ 6} In the first assignment of error, Barry argues the complaints were defective because they failed to include a culpable mental state. As such, he claims, the applicable degree of culpability is recklessness, which is therefore an element of the crimes. Barry further argues that because the jury was not instructed on the recklessness element of these crimes, it did not find proof beyond a reasonable doubt on all of the elements of the offenses. The City argues that both sections of the MHCO provide strict liability offenses.
{¶ 7} Barry never objected to the complaints in this case. By failing to timely object to a defect in the complaints, Barry waived all but plain error. State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, paragraph three of the syllabus. It is also well settled that if the party fails to object to the jury instructions before the jury retires to consider its verdict, the party waives the alleged error on appeal. State v. Slagle (1992), 65 Ohio St.3d 597, 605, 605 N.E.2d 916. Plain error is an obvious error or defect in the trial proceedings that affects a substantial right.
{¶ 8} Barry asserts that because the jury was not instructed on a recklessness element of the crimes, it did not find proof beyond a reasonable doubt on all of the elements of the offenses. However, the evidence of the violations is overwhelming. Barry’s neighbors testified that the violations persisted over a long period of time despite their many complaints. Employees of the Mayfield Heights Building Department spoke with Barry about the violations several times before formally charging him with the violations. Yet Barry failed to take any action to even attempt to correct the problem. Under these circumstances, it is doubtful the jury would have acquitted Barry even if the City was required to prove recklessness as an element of these offenses.
{¶ 9} Therefore, the first assignment of error is overruled.
The “Watercourse Charge”
{¶ 10} In his second assignment of error, Barry argues there was insufficient evidence to support the finding that he violated
{¶ 12}
“No person shall unlawfully obstruct or impede the passage of a navigable river, harbor, or collection of water, or corrupt or render unwholesome or impure a watercourse, stream of water, or unlawfully divert such watercourse from its natural course or state to the injury or prejudice of others.”
{¶ 13} The operative prohibitory language of the ordinance is “* * * obstruct or impede the passage of a * * * collection of water * * *.” The City never argued, nor was there any evidence, that Barry diverted a watercourse. Several neighbors testified that Barry’s activities caused water to pool on their properties. One witness described it as “quite a body of water.” The large collection of water at issue was also presented to the jury in numerous
{¶ 14} Accordingly, the second assignment of error is overruled.
The “Debris” Charge
{¶ 15} In his third assignment of error, Barry argues there was insufficient evidence to support the finding that he violated
{¶ 16} In support of this argument, Barry relies on provisions governing “notices of violations” and “noncompliance with notices” contained in Chapter
{¶ 17} Although
{¶ 18} Barry was charged with violating
{¶ 19} Accordingly, the third assignment of error is overruled.
Unfair Surprise
{¶ 20} In his fourth assignment of error, Barry argues there was insufficient evidence to support the debris charge conviction. Barry contends that the City’s presentation of evidence concerning conditions and events occurring months and years before the dates of the alleged building code violations constituted unfair surprise and deprived him of a fair trial.
{¶ 22} The record includes a copy of the City’s responses to Barry’s discovery requests. The cover letter, dated September 14, 2009, states:
“As you may know, this office has a practice of ‘open-file discovery’ in connection with the prosecution of all criminal, quasi-criminal and traffic cases in the Lyndhurst Municipal Court. It is our practice to make the entire police/court file open to the defense at any scheduled pretrial(s).”
{¶ 23} The letter further explains that during at least two pretrials, Building Inspector Tim Tesar was present with his entire file regarding Barry’s alleged offenses. The letter further states:
“The file was available for your review/inspection/scrutiny, at your leisure, and I made it clear that Tesar was available to answer questions regarding the subject matter of the charges. I placed no restrictions on your access to any of the information. As I stated above, you are each welcome to obtain a copy of anything in the file, at your request.”
{¶ 24} Tesar’s file included several photos of the properties taken at different times of the year. Barry also knew that his neighbors were going to testify at trial and that they would likely discuss the conditions reflected in Tesar’s photos as well as their experiences with Barry. Therefore, we find Barry’s claim that this evidence came as a surprise to be meritless.
Expert Testimony and Manifest Weight
{¶ 26} In his fifth assignment of error, Barry argues the jury verdict on the watercourse charge is against the manifest weight of the evidence. Barry argues the testimony of two expert witnesses is automatically more credible than lay witness testimony because they are professionals testifying to “physical facts.”
{¶ 27} With respect to the watercourse charge, the City alleged that before Barry started work on his property, water occasionally collected on the property after a heavy rain or melting snow. The water was distributed primarily on Barry’s property and to a lesser extent to an adjacent property owned by Ronald Brough. The City charged Barry with altering the grade and topography of his property so as to obstruct or impede the natural settling or flow of this water causing it to collect into a larger pool of water.
{¶ 28} In his case-in-chief, Barry presented two experts who were both professional surveyors. Neither expert had seen the property before Barry had changed it nor had they actually observed Barry working on his property. One expert, John Alban (“Alban”), testified that he compared the topography of the land with a topographical map that was made in 1993. He explained that the map was generated by photographs that were taken from an airplane
{¶ 29} The other expert, Steven Hovencsek, testified that there was a swale2 in the rear yards of the Mayland Avenue properties that was supposed to carry water in a westerly direction. He asserted that the swale was not working because of “large trees in the back of the Brough property.” However, on cross-examination, he admitted that he had not viewed the property until after September 2009, many months after Barry’s work had been completed. He admitted that he had no personal knowledge of any type of construction work that might have been performed on the property nor did he have any knowledge of the conditions on the property during heavy rainfall.
{¶ 30} Several affected neighbors testified for the City. They described what the land was like before Barry started his activities and how it has changed since Barry moved the soil on his property. They also testified that
{¶ 31} Accordingly, the fifth assignment of error is overruled.
Jury Instructions
{¶ 32} In his sixth assignment of error, Barry argues the trial court improperly instructed the jury on the watercourse charge. Barry contends the trial court should have defined “watercourse” according to the definition provided in Sporting Club v. Miller (1928), 118 Ohio St. 360, 161 N.E. 12, paragraph three of the syllabus. Barry also claims the court should have defined the words “navigable,” “obstruct,” “impeded,” and “divert.”
{¶ 33} However, because Barry never objected to the jury instructions at the time of trial, he has waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332, syllabus.
{¶ 34} The City never argued nor did it present evidence that Barry diverted or otherwise corrupted a “watercourse.” Rather Barry was charged and convicted of diverting a “collection of water.” Thus, the definition of a “watercourse” was irrelevant, and the trial court did not err in failing to define it.
{¶ 35} The words “navigable,” “obstruct,” “impeded,” and “divert” are common everyday words. Words of ordinary or common usage need not be defined for the jury because they are typically within the vocabulary of a person of ordinary intelligence. State v. Haskell, Seneca App. No. 13-03-45, 2004-Ohio-3345, ¶17; Bently v. Collins, Cuyahoga App. No. 83028, 2004-Ohio-369, ¶12, citing State v. Riggins (1986), 35 Ohio App.3d 1, 8, 519 N.E.2d 397. For this reason, the court often instructs the jury that they may apply the plain and ordinary meaning to words of common usage.
{¶ 36} In charging the jury, the trial court read
{¶ 37} Accordingly, the sixth assignment of error is overruled.
Jury Questions
{¶ 38} In the seventh assignment of error, Barry argues he was denied a fair trial because the trial court failed to read the jury questions into the record. Barry contends this omission prejudiced him because “in the absence of a complete record, this court must presume the regularity of the trial court’s proceedings.” An incomplete record, by itself, does not establish prejudice. Barry fails to show how the incomplete record affected the outcome of the proceedings. We therefore overrule the seventh assignment of error.
Plea Agreement
{¶ 39} In his eighth assignment of error, Barry argues he was denied due process because the City breached the plea agreement by failing to dismiss the debris charge. He also claims the trial court erred by failing to
{¶ 40} “Principles of contract law are generally applicable to the interpretation and enforcement of plea agreements.” State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶50, citing United States v. Wells (C.A.6, 2000), 211 F.3d 988, 995. If one side breaches the agreement, the other side is entitled to either rescission or specific performance of the plea agreement. State v. Walker, Lucas App. No. L-05-1207, 2006-Ohio-2929, ¶13, citing Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.
{¶ 41} The parties’ handwritten plea agreement provided that Barry would install a functioning stormwater drainage system on his property and the adjoining landowners’ properties. The storm drainage system was subject to approval by the City Building Department and the City’s engineer. The agreement further provided:
“Once the storm water drainage system has been approved by Stephen J. Hovancsek and the City and installed on the subject properties, these parties shall return to court. At that time, both pending charges will be dismissed with prejudice for the period of time prior to and up to the date of dismissal.”
{¶ 42} Barry never installed a functioning stormwater drainage system as required by the agreement. Although Hovencsek prepared a plan for a
{¶ 43} Furthermore, the fact that Barry removed the debris by May 14, 2009 does not relieve him of criminal liability for having violated
{¶ 44} Accordingly, the eighth assignment of error is overruled.
Bill of Particulars
{¶ 45} In the ninth assignment of error, Barry argues he was denied due process and a fair trial because he was denied a bill of particulars. Barry claims the vagueness of the “bill of particulars” deprived Barry of notice sufficient for preparing a defense on the basis of the statute of limitations. However, because Barry never objected to the sufficiency of the bill particulars, we review for plain error.
{¶ 46}
{¶ 47} Although Barry claims the vagueness of the bill of particulars impaired his ability to defend himself, he fails to show how knowledge of certain facts omitted from the bill of particulars would have changed his defense. The record indicates that Barry’s counsel was well prepared for trial and even offered two expert witnesses to defend against the watercourse charge. Finding that Barry was not prejudiced by an insufficient bill of particulars, we overrule the ninth assignment of error.
{¶ 48} In the tenth assignment of error, Barry argues he was deprived of a fair trial because the prosecutor improperly mislead the jury as to the evidence and applicable law. Barry claims that in closing argument, the prosecutor made “overly broad and incorrect statements of the law,” or invitations “to go on a fishing expedition.”
{¶ 49} During closing argument, the City argued that with respect to the watercourse charge, the relevant inquiry was whether Barry obstructed or impeded a collection of water. Throughout the trial, the City argued that Barry violated this section of the ordinance by obstructing or impeding the passage of a collection of water. Barry asserts that this statement constitutes “an overly broad and incorrect statement of the law,” because the word “navigable” applies to “river,” to “harbor,” and to “collection of water.” Thus, Barry contends the proper statement would be “obstructed or impeded a navigable collection of water.”
{¶ 50} However, because Barry’s trial counsel never objected to the prosecutor’s closing argument, we review the allegedly improper statements for plain error.
{¶ 51} Therefore, the tenth assignment of error is overruled.
“Other Acts” Evidence
{¶ 52} In the eleventh assignment of error, Barry argues he was deprived of a fair trial because the court allowed the prosecution to introduce “other acts” evidence in violation of
{¶ 53} Pursuant to
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶ 54} Accordingly, evidence of other crimes committed by the accused either before or after the crime charged is inadmissible to show a propensity
{¶ 55} The City offered photos of the flooded property strewn with debris for the sole purpose of establishing the material elements of the charged offenses. Photos of the large body of water “tend to show” that Barry unlawfully obstructed or impeded the flow of water in violation of
{¶ 56} Accordingly, the eleventh assignment of error is overruled.
{¶ 57} In the twelfth assignment of error, Barry claims he was denied due process of law because the ordinances he was charged with violating are void for vagueness. He contends they did not provide fair notice as to what conduct was prohibited because the notices the City issued to him did not specify the conditions alleged to be violation of the ordinances.
{¶ 58} First, we note that Barry never raised the issue as to whether the ordinances were constitutionally defective and void due to vagueness in the trial court. Where a defendant fails to raise a constitutional argument to the trial court, the appellate court need not review the issue. State v. Awan (1986), 22 Ohio St.3d 120, 123, 489 N.E.2d 277. However, we may review the issue if we so choose to exercise our discretion. In re M.D. (1988), 38 Ohio St.3d 148, 151, 527 N.E.2d 792. See, also,
{¶ 59} In determining whether a statute or ordinance is void for vagueness, the court must consider whether the enactment “(1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement.” Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, at ¶84. A statute is not void for vagueness simply because it could have been worded more precisely or with additional certainty. Rose v. Locke (1975), 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185. The “critical question in all cases is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law.” Norwood at ¶86.
{¶ 60} To invalidate legislation, the challenger must establish its unconstitutionality beyond a reasonable doubt. Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 38-39, 616 N.E.2d 163. In other words, the challenger must “‘prove, beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.‘” State v. Collier (1991), 62 Ohio St.3d 267, 269, 581 N.E.2d 552. (Citation omitted.)
{¶ 61} As previously stated,
“No owner or occupant of any premises shall maintain or permit to be maintained, at or on the exterior property * * * any condition which deteriorates or debases the appearance of the neighborhood, reduces property values in the neighborhood, * * * including but not limited * * * to:
“Plastic materials, paints, miscellaneous covering and/or any other materials * * * placed on the premises in such a manner as to be patently unsightly, grotesque or offensive of assessments.”
{¶ 62} The first paragraph prohibits property owners from keeping any condition on the property that damages the appearance of the neighborhood and reduces property values in the neighborhood. Simply put, the ordinance prohibits a property owner from allowing his property to look so bad that it reduces the property values in the neighborhood. The second paragraph more specifically describes a prohibited condition: property is littered with plastic materials or other materials that make the property “unsightly.” Although the term “unsightly” includes some degree of subjectivity, the word itself is commonly understood to mean “ugly.” The listing of “plastic materials” and “other materials” suggests that the prohibited condition involves materials being scattered or piled up on the property. Although the language is not precise, we find the plain and ordinary meaning of the language in this ordinance is sufficient to put a person of ordinary intelligence on notice of its proscriptions.
{¶ 63}
“No person shall unlawfully obstruct or impede the passage of a navigable river, harbor, or collection of water, or corrupt or render unwholesome or impure a watercourse, stream of water, or unlawfully
divert such watercourse from its natural course or state to the injury or prejudice of others.”
{¶ 64} This paragraph begins by prohibiting an unlawful obstruction of water. The water is listed as “a navigable river, harbor, or collection of water.” The word “or” indicates that these are three different kinds of waters that must not be unlawfully obstructed. Finally, the paragraph ends by explaining that the obstruction of water must not cause “injury or prejudice” to others. Simply put, the paragraph prohibits one from changing a natural passage of water in such a way as to injure or prejudice others. Once again, we find that the plain and ordinary meaning of the language is sufficient to put a person of ordinary intelligence on notice of the prohibited conduct. We therefore conclude that neither ordinance is unconstitutionally vague.
{¶ 65} Accordingly, the twelfth assignment of error is overruled.
Equal Protection and Selective Prosecution
{¶ 66} In his thirteenth assignment of error, Barry argues he was denied his constitutional rights to due process and equal protection of the laws because the City selectively prosecuted him. Barry claims the City selectively prosecuted him even though April Management, Ltd. and his daughter Tracy Barry were co-owners of the property. Barry also contends
{¶ 67} The decision whether to prosecute a criminal offense is generally within the prosecutor‘s discretion. United States v. Armstrong (1996), 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687. “There is * * * a ‘strong presumption of regularity’ in prosecutorial discretion.” State v. Norris, 147 Ohio App.3d 224, 229, 2002-Ohio-1033, 769 N.E.2d 896. In order to establish a case of “selective prosecution,” a criminal defendant must make a prima facie showing: “(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government‘s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.” State v. Flynt (1980), 63 Ohio St.2d 132, 134, 407 N.E.2d 15.
{¶ 68} The defendant‘s burden of establishing discriminatory prosecution is a heavy one. State v. Freeman (1985), 20 Ohio St.3d 55, 58, 485 N.E.2d 1043. “The mere failure to prosecute other violators of the statute which appellants were charged with violating does not establish the defense of selective prosecution.” Id. Selectivity in enforcement does not constitute
{¶ 69} There is no evidence of intentional or purposeful discrimination in this case. The City originally charged April Management and Tracy Barry with the same violations Barry was charged with. The City later dismissed the charges against them most likely because the complaining neighbors told City officials that they observed Barry making the changes to the property. The neighbors never complained about Tracy Barry or April Management.
{¶ 70} Barry also claims the City selectively prosecuted him even though his neighbors caused the water to collect on their properties. However, the only evidence suggesting that the neighbors caused the water to collect came from Barry‘s expert witnesses at trial. Prior to trial, the City was only aware of the neighbors’ complaints accusing Barry of creating the collection of water. Having failed to demonstrate that the prosecutor intentionally discriminated against him in bad faith, Barry fails to establish the prima facie case of selective prosecution.
{¶ 71} Accordingly, we overrule the thirteenth assignment of error.
{¶ 73} In his fourteenth assignment of error, Barry argues he was not afforded the effective assistance of counsel because his trial counsel: (1) failed to raise the issue of double jeopardy; (2) failed to challenge the absence of a mens rea in the ordinances, (3) failed to move for dismissal or continuance because the City failed to produce a bill of particulars, (4) failed to object to the prosecutor‘s mistatements of the law during closing argument, (5) filed inadequate jury instructions, (6) failed to demand an instruction and an answer to the jury‘s question regarding Barry‘s conduct before the date set forth in the complaint, (7) failed to object to testimony and evidence of conditions outside the complaint, and (8) failed to argue that the City had not established the existence of a watercourse as defined by Ohio law. In his fifteenth assignment of error, Barry argues that the cumulative effect of these errors deprived him of a fair trial. Because these two assigned errors are interrelated, we address them together.
{¶ 74} To establish ineffective assistance of counsel, Barry must demonstrate that his lawyer‘s performance fell below an objective standard of reasonable performance and that he was prejudiced by that deficient performance, such that but for counsel‘s error, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668,
{¶ 75} Pursuant to the cumulative error doctrine, the existence of multiple errors, which may not individually require reversal, may violate a defendant‘s right to a fair trial. State v. Madrigal (2000), 87 Ohio St.3d 378, 397, 721 N.E.2d 52, citing State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256. To affirm in spite of multiple errors, we would have to determine that the cumulative effect of the errors is harmless beyond a reasonable doubt. DeMarco at 195 (stating that the errors can be considered harmless if there is overwhelming evidence of guilt or other indicia that the errors did not contribute to the conviction).
{¶ 76} We have already determined in our discussion of Barry‘s other arguments that most of Barry‘s claimed “errors” were not errors as a matter of law. We found that the bill of particulars the City provided to Barry‘s counsel was sufficient to put him on notice of the specific allegations against him. We also held that the prosecutor‘s closing argument did not prejudice Barry because the Court read the ordinances to the jury verbatim when it instructed the jury on the law. Trial counsel‘s decision not to request a definition for “watercourse” was not error because a watercourse was not at
{¶ 77} With respect to Barry‘s claim that his lawyer failed to raise the issue of double jeopardy, Barry asserts that jeopardy attached when the trial court accepted his no contest plea. By failing to raise the issue before trial, Barry argues his trial counsel caused him to be subjected to an illegal and unnecessary trial. We disagree.
{¶ 78} The double jeopardy clause of the
{¶ 79} When Barry pled no contest, the court held its finding in abeyance pending Barry‘s efforts to comply with the ordinances. The court never found him guilty, and Barry was never convicted or sentenced. Barry was also never acquitted or punished for violating the City‘s ordinances before trial. Therefore, jeopardy never attached and his trial counsel had no reason to raise the issue of double jeopardy.
{¶ 81} Accordingly, the fourteenth and fifteenth assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR