City of Toledo v. Schmiedebusch

949 N.E.2d 504, 192 Ohio App. 3d 402
CourtOhio Court of Appeals
DecidedJanuary 21, 2011
DocketNos. L-09-1290 and L-09-1291
StatusPublished
Cited by14 cases

This text of 949 N.E.2d 504 (City of Toledo v. Schmiedebusch) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Toledo v. Schmiedebusch, 949 N.E.2d 504, 192 Ohio App. 3d 402 (Ohio Ct. App. 2011).

Opinion

Cosme, Judge.

{¶ 1} Defendants-appellants, Teresa Schmiedebusch and Steven Schmiedebusch, were jointly tried and convicted by a jury on one count of failure to obey an order to abate a public nuisance in violation of Toledo Municipal Code 1726.08(a), a misdemeanor of the third degree. Appellants were each sentenced by the Toledo Municipal Court to a term of 60 days suspended upon certain conditions. Appellants now challenge their convictions and sentences on various evidentiary and procedural grounds. Because we find that appellants’ convictions and sentences were supported by sufficient evidence and free of any prejudicial error, we affirm the judgments of the Toledo Municipal Court.

I. BACKGROUND

{¶ 2} In August 2008, appellants, who reside in Ottawa, Ohio, purchased two contiguous properties with rearward borders in the Old West End section of Toledo, Ohio, one at 2057 Glenwood Avenue and one at 2104 Maplewood Avenue. By all accounts, the houses on both properties needed substantial repairs and the Maplewood house in particular was structurally unsound.

{¶ 3} On October 6, 2008, appellee, city of Toledo, purportedly mailed a “Determination of a Public Nuisance” notice to appellants in regard to the [406]*406Maplewood property, ordering them to make certain listed repairs or demolish the premises within 30 days after service of the notice. Specifically, the notice provided:

{¶ 4} ‘You are hereby notified pursuant to Section 1726.03 of the Toledo Municipal Code, that the Commissioner of The Building Inspection and Code Enforcement Division has declared the above property a public nuisance.
{¶ 5} ‘YOU ARE HEREBY ORDERED TO: Repair foundation, brick sidewalls, doors, windows, porches, steps/stairs, gutters and spouts; add railing; scrape and paint all exposed wood on house. Rehab or demolish. T.M.C. 1726.01(a).
{¶ 6} “Unless you cause the abatement of this public nuisance within thirty (30) days after service of this notice you are in violation of Toledo Municipal Code 1726.08. * * * In addition, the public nuisance may be abated at your expense, including demolition of the structure, by the City of Toledo.
{¶ 7} “ * * *
{¶ 8} “You may, within ten (10) business days from the date of this notice/order or no later than 24 hours from the date received, make an in-person request to the Supervisor-Enforcement Support Staff, for a hearing on the question of whether a public nuisance as defined in section 1726.01(a) exists.”

{¶ 9} On April 1, 2009, appellee filed separate housing complaints in the Toledo Municipal Court against Teresa Schmiedebusch (No. CRB-09-05820) and Steven Schmiedebusch (No. CRB-09-05818), charging each with one count of failing or neglecting to obey or abide with an order to abate a public nuisance in violation of Toledo Municipal Code 1726.08(a). The complaints alleged that appellants were “issued orders on 10/6/2008 to Repair * * * or demolish at 2104 Maplewood Ave but failed or neglected to obey or abide with said order within the 30 days granted in the order.”

{¶ 10} Appellants entered pleas of not guilty to the charges, and the matter proceeded to joint trial by jury of both appellants on September 10, 2009. Appellee presented testimony from Denise Guile, the city’s general inspector, and Stephanie Rand, an intermediate clerk with the Department of Neighborhoods. Guile testified about the condition of the premises, the determination of nuisance, and appellants’ failure to comply with the abatement order. Rand testified that she personally prepared the notice of public nuisance and abatement order and obtained appellants’ address and ownership status from the real estate records on file with the Lucas County auditor. She explained that pursuant to department procedure, she printed out both the notice and the envelope in which it was mailed, put the letter in the envelope, and then put the letter and envelope out for postage and mailing. She also stated that the mail is collected and taken to [407]*407the mail room every day at 2:30 p.m., that the notice to appellants was sent by regular U.S. mail, and that the mail was never returned as having not been received by them.

{¶ 11} At the close of appellee’s case, appellants moved for a judgment of acquittal on grounds that “there is not adequate proof that [the notice] was delivered to and received by the defendants in this case.” The trial court denied the motion, finding that the testimony of Rand was sufficient to establish compliance with the notice provisions of Toledo Municipal Code 1726.03(b)(1).

{¶ 12} During their case, appellants did not dispute that the house on Maple-wood was in poor condition or unsuitable for occupancy. Instead, appellants testified that they purchased the property with the intent to demolish the house. Their plan was to first renovate the Glenwood house for their daughter’s use while she attended the University of Toledo and to then demolish the Maplewood house and use that property as a driveway or parking garage in conjunction with the Glenwood property. Meanwhile, appellants boarded up the Maplewood house, cleaned the debris from the premises, maintained the landscaping, and posted no-trespassing signs.

{¶ 13} Appellants further testified that they never received the notice of nuisance and order of abatement allegedly sent by the city on October 6, 2008, and that their failure to have repaired or demolished the Maplewood house by the time of trial was due to a combination of health problems experienced by Steven Schmiedebusch and their counsel’s advice to preserve the house as evidence during the pendency of the trial proceedings. Appellants also sought to introduce character testimony, but the trial court sustained the city’s objection to the admission of such evidence.

{¶ 14} On September 11, 2009, the jury rendered separate verdicts finding each appellant guilty on one count of failure to abate a public nuisance as charged in the complaint. In each case, the trial court entered separate judgments in regard to the finding of guilt and the imposition of sentence, and appellants filed their individual appeals from the latter judgments. On December 1, 2009, this court sua sponte remanded the cause to the trial court for the issuance of a new judgment in each case that contains all the elements of a final, appealable order pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. On December 10, 2009, the trial court entered a single judgment in each case that indicated a finding of guilt as charged in the complaint and imposed a 60-day suspended sentence upon certain conditions. On December 11, 2009, this court reinstated both cases to its docket and consolidated them under case No. L-09-1290 for purposes of appeal.

{¶ 15} In this consolidated appeal from the trial court’s judgments of December 10, 2009, appellants assert seven assignments of error.

[408]*408II. GIVING OF NOTICE

{¶ 16} Appellants’ first and last assignments of error are expressly based on the same arguments and will therefore be addressed together. In those assignments of error, appellants assert:

{¶ 17} “1. The appellants’ motion for judgment of acquittal should have been granted [by] the trial court.”
{¶ 18} “7.

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Cite This Page — Counsel Stack

Bluebook (online)
949 N.E.2d 504, 192 Ohio App. 3d 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-toledo-v-schmiedebusch-ohioctapp-2011.