STATE OF OHIO, EX REL., ALLEN COUNTY PROSECUTOR JUERGEN A. WALDICK, PLAINTIFF-APPELLANT, v. MOSE HOWARD, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-11-33
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
February 6, 2012
2012-Ohio-404
Appeal from Allen County Common Pleas Court Trial Court No. CV2009 0809 Judgment Affirmed
Gregory M. Antalis for Appellant
John A. Poppe for Appellees
{¶1} Plaintiff-appellant, State of Ohio ex rel. Allen County Prosecutor Juergen A. Waldick (hereinafter “the State“), appeals the Allen County Court of Common Pleas’ judgment entry enjoining the defendants-appellees, Moses and Willa Pearl Howard (hereinafter “the Howards“), from maintaining a nuisance at their place of business, the EZ Check Market (hereinafter “the market“), under
{¶2} On May 6, 2004, the Howards’ grandson, Dwaynel Howard, Jr., was arrested for selling crack cocaine to an undercover officer from a vehicle parked directly outside the front door of the market. (Apr. 11, 2011 Tr. Vol. II at 8, 17);1 (Godfrey Aff., Doc. No. 56, attached).2 Dwaynel was subsequently convicted of trafficking in crack cocaine in Allen County Case No. CR2004 0233. (7/28/04 JE & 9/8/04 JE, Doc. No. 56, attached).
{¶4} On or about September 15, 2005, a Lima police officer, while on a routine patrol of the area, observed David Evans standing in front of the market. (Stechschulte Aff., Doc. No. 56, attached). The officer knew Evans had an active warrant, so he parked in front of the market at which time Evans walked into the market behind the counter. (Id.). The officer then entered the market and placed Evans into custody, and a search incident to arrest revealed five crack cocaine rocks upon his person. (Id.). During a later police interview, Evans admitted that he went into the market to avoid being arrested for his outstanding warrant. (Id.). Evans was later convicted of possession of crack cocaine in Allen County Case No. CR2005 0441. (Id.); (12/19/05 JE & 2/22/06 JE, Doc. No. 56, attached).
{¶5} On or about October 5, 2006, members of the Lima Police Department conducted an undercover operation targeting street-level drug sales near the
{¶6} On or about June 11, 2007, the Lima Police Department P.A.C.E. unit conducted a controlled drug buy from the Howard‘s son, Randell, who was in a vehicle parked directly outside the back door of the market. (Tr. Vol. I at 15); (Tr. Vol. II at 6); (Godfrey Aff., Doc. No. 56, attached). On June 18, 2007, a C.I. made an additional controlled drug purchase from Randell while Randell was behind the counter in the market. (Godfrey & Johnson Affs., Doc. No. 56, attached).
{¶7} On or about June 19, 2007, law enforcement served a search warrant at the market. (Tr. Vol. I at 16); (Tr. Vol. III at 7); (Miller Aff., Doc. No. 56, attached). During the search, law enforcement located a piece of crack cocaine behind the front counter of the market; a clear plastic baggie of marijuana on the floor behind the counter of the market; a razor blade with residue on it behind the counter of the market; a brown paper bag with residue behind the counter of the
{¶8} On June 26, 2007, the Lima Police Department sent a letter to the Howards advising them of the illegal drug activity at their market. (P‘s Ex. 2); (Tr. Vol. II at 38-39). The Howards were further advised that their market constituted a public nuisance and that legal proceedings would be commenced if they failed to take action to abate the nuisance. (Id.); (Id.).
{¶9} On November 10th, 12th, and 17th, 2008, the West Central Ohio Crime Task Force conducted controlled drug purchases from Dwaynel Howard, Sr. inside the residential side of the market (1123 St. Johns). (Tr. Vol. I at 54-55, 57-58, 72); (Tr. Vol. III at 9); (Inv. Howard Aff., Doc. No. 56, attached). On November 20, 2008, a search warrant was served at the market, and law enforcement found drug paraphernalia, such as digital scales and baggies, in the residential side of the market. (Tr. Vol. I at 55, 60, 61, 80); (Inv. Howard Aff., Doc. No. 56, attached). In the basement shared between 1123 and 1125 St. Johns, law enforcement found a cookie tin containing baggies with white residue on
{¶10} On or about December 2, 2008, the Allen County Sheriff‘s Office sent a letter to the Howards advising them of the illegal drug activity at their market. (P‘s Ex. 3); (Tr. Vol. II at 38-39). The Howards were again notified that their market constituted a nuisance subject to abatement under
{¶11} On April 10, 2009, a C.I. went to the east side of the market and purchased $20.00 worth of crack cocaine from a window located under an overhang on the back porch of the market. (Tr. Vol. I at 14-15).
{¶12} On June 18, 2009, the Lima Police Department and the West Central Ohio Crime Task Force conducted a controlled drug buy using an undercover officer. (Leary Aff., Doc. No. 56, attached). The undercover officer drove in the area of the market and asked to purchase crack cocaine from a black male, later identified as Curtis Dunlap. (Id.). Dunlap was observed to walk into the market and emerge a short time later with drugs. (Id.). Dunlap was subsequently convicted of trafficking in cocaine in Allen County Case No. CR2010 0065. (3/3/10 JE & 4/12/10 JE, Doc. No. 56, attached).
{¶14} On September 25, 2009 and with leave of court, the Howards filed a document entitled “Answer of Moses and Willa Howard and Counterclaim and Cross-Claim with Jury Demand Endorsed Hereon”3 against the State, the Lima Police Department, Lima Police Department S.W.A.T., Lima Police Department P.A.C.E., Lima Police Department B.C.I. & I., West Central Ohio Crime Task Force (“WCOCTF“), and John Does 1-16 (undercover officers involved in the controlled drug buys at the market). (Doc. Nos. 6-8).
{¶15} On October 22, 2009, a stipulated extension was entered for the State and the WCOCTF to move or otherwise plead to the Howards’ counter-claim and third-party complaint by November 13, 2009. (Doc. No. 16).
{¶16} On October 26, 2009, the Lima Police Department, P.A.C.E., S.W.A.T., and B.C.I. & I. filed a joint motion to dismiss pursuant to
{¶18} The trial court dismissed the City of Lima on March 16, 2010. (Doc. No. 51). The trial court dismissed the Howards’ claims against the State and WCOCTF on March 24, 2010. (Doc. No. 53).
{¶19} On October 1, 2010, the State filed a motion for partial summary judgment on the issue of whether or not the Howards’ market was a nuisance under
{¶20} On April 22, 2011, the matter proceeded to a bench trial with the sole issue of whether or not the Howards knowingly acquiesced in the creation or perpetuation of the nuisance at their market for purposes of issuing an abatement order under
{¶21} On May 11, 2011, the trial court issued its decision and judgment entry declaring the Howards’ market a nuisance but denying the abatement order, and finding that the State failed to present clear and convincing evidence that the Howards were culpable in the creation or perpetuation of the nuisance activities. (Doc. No. 93).
{¶22} On June 8, 2011, the State filed a notice of appeal. (Doc. No. 95). The State now appeals raising one assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT‘S MAY 11, 2011, DECISION AND JUDGMENT ENTRY THAT APPELLANT FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE APPELLEES ACQUIESCED TO THE NUISANCE ACTIVITIES AT THE SUBJECT PREMISES, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶23} In its sole assignment of error, the State argues that the trial court‘s denial of the abatement order was against the manifest weight of the evidence.
{¶24} In civil cases, “[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.” Cincinnati ex rel. Cosgrove v. Grogan, 141 Ohio App.3d 733, 749, 753 N.E.2d 256 (1st Dist. 2001), citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), paragraph one of the syllabus. Furthermore, an appellate court must presume that the trial court‘s findings of fact are correct because “the trial [court] is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Id., citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). “A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court.” Seasons Coal, 10 Ohio St.3d at 80.
{¶27} On cross-examination, Goedde testified that the undercover officers did not pay extravagant prices for drugs because that would create a red flag, though he acknowledged that undercover officers, who are white, could receive less crack cocaine for their twenty dollars because of their race. (Id. at 33). When asked if the Howards had ever called the police and the police failed to show up, Goedde testified, “I‘d say they didn‘t call. We always show up[.]” (Id. at 35). Goedde testified that the Howards did not operate their business for the purpose of committing drug violations, but “they allow[ed] their establishment to be used for that.” (Id. at 37). Goedde testified that the EZ Check Market closes at 9:00 p.m. but it used to stay open later. (Id. at 38).
{¶28} Investigator Danny Howard, an Allen County Deputy Sheriff assigned to the West Central Ohio Crime Task Force, testified that the EZ Check
{¶30} Allen County Sheriff‘s Department Lieutenant Matthew Treglia, assigned to the West Central Ohio Crime Task Force, testified that the EZ Check Market is “a place where people hang out on the corner and sell drugs.” (Id. at 74-76). Treglia testified that he had arrested several warrant suspects who were standing on the corner near the EZ Check Market. (Id. at 77). He testified that he had witnessed several drug transactions occur at the EZ Check Market where “a
{¶31} The State then called Willa Howard upon cross-examination. (Tr. Vol. II at 1). Willa testified that she and her husband, Moses, have owned the EZ Check Market at 1123-1125 St. John‘s since 1997. (Id. at 2); (P‘s Ex. 1). Willa also testified that there is an apartment at 1123 St. John‘s. (Tr. Vol. I at 2). Willa testified that they used to live at 1115 St. Johns Avenue, which is two doors north from the market, but they now live at 1412 Hughes Avenue. (Id. at 3). Willa testified that the EZ Check Market was used as a convenience store and was their “job.” (Id. at 3-4). Willa testified that they sold groceries, candy, cigarettes, beer, wine, fresh bread, eggs, packets of lunch meat, cookies, sugar, and flour at the market. (Id. at 4-5). She testified that she and her husband are at the business almost all the time since they work there, but she denied that other male adults come to the store to play cards. (Id. at 5). Willa testified that her son, Randell
A: Well, being like almost my kids, you know, kids that I have known all my life, they didn‘t sell drugs in the store. The majority of the people in that neighborhood I think sell drugs – sell them or use them. So, what, because somebody sells drugs you don‘t let them in your store?
Q: Yea. Yea.
A: Well, if that was the case we really wouldn‘t have no business. Okay?
Q: So, your testimony is that you‘re really not going to have any business unless you let drug dealers in your store?
A: Well, are you supposed to turn them away if you know they sell drugs? Are you? * * * As long as it‘s not inside my store, I mean, what they do is their business.
(Id. at 20). Willa testified that she never attempted to photograph any of the people hanging outside of her market to give those photographs to the police. (Id. at 20-21). She testified that, in 2010, she posted a “no loitering” sign on the door of the market, which lasted about a year until “it got ripped up.” (Id. at 21-22). She also testified that they had security cameras inside the EZ Check but not outside of the market, though the security cameras were not working from 2004 to 2009. (Id. at 22). The Howards never considered hiring a security guard for the business because they were the security according to Willa. (Id. at 25). She also testified that, prior to 2007, her son, Randell Howard, would work in the EZ Check from 7:00 p.m. to 12:00 midnight, but, after 2007, they closed the EZ Check at 9:00 p.m. (Id. at 26). Randall has not worked at the market since his
{¶34} Willa admitted that she received letters from the Lima Police Department and the Sheriff‘s Office. (Id. at 38-39). She further testified that, after discovering that her son, Randell, was involved in drugs after the search of the EZ Check Market, her husband and she fired him and evicted him from the attached apartment. (Id. at 39). Later, after the second letter in December 2008, they evicted another son, Dwaynel, from the attached apartment. (Id. at 41). Willa testified that both of her sons, Randell and Dwaynel, had “apparently” sold drugs from the apartment, though she denied knowing about them selling drugs. (Id.). Willa admitted that, from 2004 to 2009, the EZ Check Market had a reputation as a place one could obtain drugs. (Id. at 42-43). She testified that, about three weeks ago, people were hanging out in front of her store so she told them to leave the area, but they only went to the other side of the road. (Id. at 47). Willa further
{¶35} Moses Howard testified upon cross-examination that the neighborhood around the EZ Check Market had a reputation for being an area to obtain drugs, and, in fact, that is why the previous owner sold the business. (Id. at 53-54). Moses further testified: “1998, when we bought the property, it seemed that the drug problem just escalated and just grew and it just grew because, well, I have heard individuals say that it was a good place to sell drugs because they wasn‘t getting arrested there.” (Id. at 57). Moses testified that he saw drug deals occur outside the market, but he further testified that he called the police department to complain many times. (Id. at 58-59). He testified that they “always” saw cars drive up and things get exchanged. (Id. at 60). Moses testified that they sold merchandise to people that broke the law, including people that he had seen making a drug deal immediately before entering the market. (Id. at 61-62). Moses testified that the drug dealers used the EZ Check Market as “cover” when the police drove by. (Id. at 64). Moses also testified that he believed the Lima Police Department did not do enough to stop the drug problems around the market. (Id. at 68-70). According to Moses, the apartment connected to the EZ Check was a source of the drug problem, and two of his children were part of the problem. (Id. at 74-75). Moses testified that they purchased the video cameras for the market to
{¶36} Christopher Neal Protsman, a Lima Police Department Lieutenant and member of the P.A.C.E. unit, testified that he has never seen any bread, eggs, lunch meat, fresh vegetables or fruit being sold at the EZ Check Market. (Tr. Vol. III at 3-4). He testified that the EZ Check Market had a reputation for being an area for drug trafficking. (Id. at 4). Protsman testified that, in 2007, he saw a vehicle stopped outside of the EZ Check Market with a gentleman standing at the window of the vehicle, indicative of an open-air drug sale. (Id.). He testified that he subsequently arrested the driver of the vehicle for possession of crack cocaine. (Id. at 5). The driver, who was from Celina, told Protsman that he learned at a party if he wanted to buy crack cocaine there would be people standing in front of the EZ Check Market who would sell to him. (Id.). Protsman testified that he was involved in the June 2007 search of the EZ Check Market, and that the Howards were “very irate” that law enforcement were inside the market. (Id. at 7-8).
she let me know that the officers -- two officers came into the business and just started walking around, didn‘t acknowledge her or didn‘t say anything to her. When she went up to ask them why they were there, they became upset with her and she thought she was being disrespected by them.
I talked to the officers about this incident and also reviewed their video tapes, which was just the audio of what was going on. The officers pulled up into the area and two gentleman, when they saw the officers ran behind the business. The officers thought that maybe they were going in the back door so the officers walked inside to see if they could locate those individuals.
Once they got inside, Mrs. Howard did approach them and asked them what they were doing inside the store. When they didn‘t answer uh, she told them that she didn‘t appreciate them walking into her business. And then her son who was behind the
counter, Randell, also told them that they were not wanted inside the business.
(Id. at 15-16). On cross-examination, Protsman testified that the Howards failed to do everything they could have to eliminate the drug problem at their market. (Id. at 25).
{¶37} Thereafter, the defense presented the testimony of Moses Howard. Moses testified that he originally bought the EZ Check Market so he could pass it on to his family. (Id. at 44). He testified that he is an ordained minister, and he works as an assistant pastor at the New Greater Grace Missionary Baptist Church. (Id. at 45). Moses attributed the drug problems in the neighborhood to a lack of police enforcement due to budgetary constraints. (Id. at 47). Moses testified that they stopped renting out the apartment next door to the EZ Check Market, which he thought helped solve some of the drug problems. (Id. at 48). He further testified that they also closed the market earlier and began running it on their own to reduce the drug activity. (Id. at 50).
{¶38} Willa Howard testified that they bought the EZ Check Market after learning from the previous owner that he was considering selling it to “Indians or Arabs” and they “didn‘t want to live in front of a business that the Arabs or the Indians owned.” (Id. at 54-55). She testified that she was not aware that Randell was selling drugs until after the 2007 search. (Id. at 57). Willa testified that she
{¶39} After reviewing the evidence presented at trial, we cannot conclude that the trial court‘s judgment denying the abatement order was against the manifest weight of the evidence since there was competent, credible evidence demonstrating that the Howards did not acquiesce in perpetuation of the nuisance
{¶40} Despite the foregoing evidence, the State argues that, after examining the evidence presented, the trial court‘s factual findings, and the Howards’ admissions, the Howards acquiesced as a matter of law. We are not prepared to make such a definitive rule of law. To begin with, most of the cases the State cites
{¶41} The State‘s sole assignment of error is, therefore, overruled.
{¶42} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, J., and WILLAMOWSKI, J., concur.
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