Wakeman v. SmithWakeman v. Smith
Appellee
v.
Sherwood D. Smith
Appellant
DECISION AND JUDGMENT
Decided: March 22, 2024
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Steven Palmer, Village of Wakeman Law Director, for appellee.
Brent L. English, for appellant.
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{¶ 1} This is an appeal from the judgment by the Norwalk Municipal Court, which sentenced defendant-appellant, Sherwood Smith, to pay fines and court costs totaling $3,282.84 after convicting him of five counts of violations of the junk motor vehicle ordinance enacted by plaintiff-appellee, village of Wakeman. For the reasons set forth below, this court affirms, in part, and reverses, in part, the judgment of the trial court.
{¶ 2} On April 7, 2022, appellee filed complaints against appellant alleging violations, as of April 5, of
{¶ 3}
No person shall willfully leave a junk motor vehicle with the permission of the person having the right to the possession of the property on which the junk motor vehicle is left covered or uncovered in the open for more than twenty-four consecutive hours. Junk motor vehicles and collector vehicles, defined as any motor vehicle or agricultural tractor or traction engine that is of special interest, that has a fair market value of one hundred dollars or more, whether operable or not, and that is owned, operated, collected, preserved, restored, maintained, or used essentially as a collector‘s item, leisure pursuit, or investment, but not as the owner‘s
principal means of transportation, pursuant to Ohio R.C. 4501.01(F) shall be covered by being housed in a garage or other suitable structure or shall be removed from the property.
{¶ 4} We then look to
[A]ny motor vehicle that is not currently registered and operable, defined as being capable of operation on a public street and meeting all safety requirements for such operation that is left covered or uncovered in the open on private property for more than twenty-four consecutive hours with the permission of the person having the right to the possession of the property, except if the person is operating a junk yard or scrap metal processing facility licensed under authority of
Ohio R.C. 4737.05 to4737.12 ; or regulated under authority of the Municipality.
{¶ 5}
{¶ 6} Appellant, acting pro se, pled not guilty, and the matter proceeded to a bench trial on July 27, 2022. Prior to the start of the trial, appellant alleged appellee offered a
{¶ 7} Appellant timely appealed and set forth four assignments of error:
- The Village of Wakeman, Ohio failed to prove beyond a reasonable doubt each and every element of the offenses of maintaining one or more “junked vehicles” on the Defendant-Appellant‘s real property at 32 Pleasant Street, Wakeman, Ohio 44889 and thus the judgments of conviction were not supported by sufficient evidence.
- The judgments of conviction for maintaining five supposedly “junk vehicles” on Sherwood Smith‘s real property in Wakeman, Ohio were against the manifest weight of the evidence.
- Wakeman Codified Ordinance Section 303.10 is unconstitutional because it runs afoul of a state statute of general application.
- Wakeman Codified Ordinance Section 303.10 is unconstitutionally vague and/or is unconstitutional as applied.
{¶ 8} We first address appellant‘s third and fourth assignments of error together for their challenges to the constitutionality of
{¶ 9} In support of his third assignment of error, appellant argues
{¶ 10} In support of his fourth assignment of error, appellant argues
{¶ 11} Appellee responds that a constitutional challenge raised for the first time on appeal is reviewed for plain error, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19 and State v. Brandeberry, 6th Dist. Lucas No. L-16-1137, 2017-Ohio-5676, ¶ 22. However, rather than provide any plain error analysis, appellee substantively argues
{¶ 12} It is undisputed the trial court did not first determine the constitutional challenges appellant raises on appeal. Where appellant failed to specifically preserve with the trial court either of his constitutional challenges, he waived them. State v. Hacker, Slip Opinion No. 2023-Ohio-2535, ¶ 26, fn. 2, citing State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), fn. 1. “Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.” Awan at the syllabus.
{¶ 14} Appellant‘s third and fourth assignments of error are found not well-taken.
III. Sufficiency of Evidence
{¶ 15} Appellant‘s first assignment of error argues appellee failed to meet its burden to produce sufficient evidence to convict him of each offense. Appellant argues that the definition of a “junk motor vehicle” required appellee to prove beyond a reasonable doubt that each of the five vehicles was both not “currently registered and operable” as of the date of the offense, April 5, 2022.
{¶ 16} For the “currently registered” element, appellant argues appellee failed to meet its burden because its evidence at trial for the registration status of each vehicle was outdated from February 18, and appellant‘s evidence at the July 27 trial showed that all five vehicles were currently registered and drivable. For the “currently operable”
{¶ 17} Appellant points to appellee‘s police chief specifically admitting at trial that one vehicle‘s registration, the 2003 Nissan Maxima, was “not expired” and did not have any flat tires, but had “low” tires. Appellant argues the police chief‘s assumptions that each vehicle was not operable was not based on any relevant evidence, but his irrelevant personal opinions that each vehicle had not moved “for a while” or, in the case of the Nissan Maxima, that someone was sleeping in the vehicle.
{¶ 18} Appellee responds that sufficient evidence was presented at trial for each element of violating
State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754, ¶ 57.
{¶ 19} The essential elements for appellant‘s violation of
{¶ 20} The essential elements of appellant‘s violation of a “junk motor vehicle” under
{¶ 21} With respect to the 2003 Nissan Maxima, appellee concedes that the evidence admitted at trial showed the vehicle was currently registered. That concession means it was not a “junk motor vehicle,” and no rational trier of fact could have found that appellant violated
{¶ 22} With respect to the other four vehicles, appellant argues that the photos taken by the police chief did not corroborate the police chief‘s opinions that each vehicle could not be safely operated on public streets because no photo taken by the police chief on February 18, 2022, showed a vehicle with flat tires. Appellee‘s photographic evidence demonstrated that four of the five vehicles could not be legally operated on public streets, due to expired registrations. While such illegal operation was proffered by appellee to be equated with unsafe operation that meets the definition of “junk motor vehicle,” this reasoning would render part of the definition under the Code superfluous, and is unnecessary based on evidence supporting a finding that the vehicles were both unregistered and inoperable.
{¶ 23}
{¶ 24} Based on the foregoing, we find that sufficient evidence was submitted to the fact-finder such that, after viewing the evidence in a light most favorable to appellee, any rational trier of fact could have found beyond a reasonable doubt the essential elements of appellant violating
{¶ 25} Appellant‘s first assignment of error is well-taken, in part.
{¶ 26} In support of his third assignment of error, appellant argues his convictions should be reversed because the fact-finder lost its way for two reasons: (1) “the trial court had no evidence that the cars in question were not properly registered as of the date of the alleged violations, April 5, 2022“; and (2) “there was no evidence whatsoever that the vehicles were not operable” when appellant testified that each of the vehicles was, in fact, drivable.
{¶ 27} In response, appellee argues the manifest weight of the evidence at trial supports appellant‘s convictions. The police chief testified regarding the Ohio Bureau of Motor Vehicle‘s report dated May 20, 2022 of the expired or lack of registrations for four vehicles as of April 5, while conceding the unexpired registration for the 2003 Nissan Maxima. The police chief further testified regarding his opinions that the five vehicles could not be safely operated on public streets because of flat tires and other safety concerns.
{¶ 28} “To evaluate a manifest-weight claim, we must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of all the witnesses.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. We must decide if the jury clearly lost its way in resolving conflicts in the evidence to create a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. Id. A manifest-weight claim questions the effect of the evidence in inducing belief of appellant‘s guilt by questioning whether the jury could find the
{¶ 29} In light of the testimony and evidence previously discussed, we find that any rational fact-finder could have found the inclination of a greater amount of credible evidence was admitted at trial than not to induce the fact-finder‘s belief of appellant‘s guilt for violating
{¶ 30} Appellant‘s second assignment of error is well-taken, in part.
IV. Conclusion
{¶ 31} On consideration whereof, the judgment of the Huron Municipal Court is affirmed, in part, and reversed, in part. The judgment is affirmed with respect to the 1989 light blue Buick LeSabre with expired Ohio plate No. HSG8211, the 2006 silver Honda Civic hybrid with no plate, the 2002 red Mercury Sable with expired Ohio plate No. HYJ8468, and the 2003 white Subaru Forester with no plate. The judgment is reversed and vacated with respect to the 2003 maroon Nissan Maxima with unexpired Ohio plate No. JJT3671.
Judgment affirmed, in part, and reversed and vacated, in part.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
Gene A. Zmuda, J.
JUDGE
Myron C. Duhart, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.