Cleveland v. Rini

2014 Ohio 3328

Opinion

[Cite as Cleveland v. Rini, 2014-Ohio-3328.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100866

CITY OF CLEVELAND PLAINTIFF-APPELLEE

vs.

RAEMARIE C. RINI DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cleveland Municipal Court Case No. 2013 TRD 071577

BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Blackmon, J.

RELEASED AND JOURNALIZED: July 31, 2014 FOR APPELLANT

Raemarie C. Rini, pro se 7216 Brookside Road Independence, OH 44131

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry Director of Law City of Cleveland By: Victor R. Perez Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, P.J.:

{¶1} Appellant Raemarie C. Rini appeals the decision of the Cleveland Municipal

Court that found her guilty of violating Cleveland Codified Ordinance (“CCO”)

403.02(a). For the reasons stated herein, we reverse the judgment of the trial court and

remand the matter for the conviction to be vacated.

{¶2} Appellant was issued a citation on November 24, 2013, for violating CCO

403.02(a), which provides: “a) No person shall fail to comply with any lawful order or

direction of any police officer invested with authority to direct, control, or regulate

traffic.” Appellant entered a plea of not guilty.

{¶3} The case proceeded to trial on December 16, 2013. The state called Officer

Charles Lipscomb to testify. Officer Lipscomb testified that on November 24, 2013, he

was on patrol at the stadium at the Cleveland Browns game and was flagged down by

another officer. He observed Officer Johnson conferring with a female on the side of

West 3rd Street and the Route 2 ramp. Because Officer Johnson was directing traffic,

Officer Lipscomb spoke to appellant and issued her a citation for failure to comply with

the order of the officer who was telling her to stop. Appellant informed Officer

Lipscomb that she did not hear or see Officer Johnson, or realize that Officer Johnson

was pulling pedestrian traffic off the ramp, and that there was a “walk” signal at the time

she was walking across the street. Officer Lipscomb conceded he had not given any orders to appellant and that appellant complied with his requests for identification and to

sign the citation he issued. Officer Johnson did not testify in the matter.

{¶4} The trial court found appellant guilty, imposed a $25 fine and court costs.

Appellant was also assessed two traffic points. She timely appealed to this court.

{¶5} Initially, we find that although appellant paid the fine and costs associated

with the judgment, the imposition of points is a collateral disability that is sufficient to

preserve the justiciability of an appeal. In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621,

867 N.E.2d 408, ¶ 18.

{¶6} Appellant raises two assignments of error, under which she claims (1) the city

of Cleveland failed to introduce sufficient evidence to sustain a conviction under CCO

403.02(a), and (2) Officer Lipscomb’s testimony about the subjective observations of

Officer Johnson was in violation of the Confrontation Clause of the Sixth Amendment to

the United States Constitution. We find merit to both assignments of error.

{¶7} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus. {¶8} In the case at bar, the officer who allegedly observed the violation did not

testify at trial. In order to establish the factual basis of the crime, the state offered

testimony, via Officer Lipscomb, to prove appellant failed to comply with a lawful order

of a police officer. However, Officer Lipscomb did not witness a violation, and he

testified that appellant complied with his orders. Officer Lipscomb wrote the citation

based on the information he learned from Officer Johnson.

{¶9} It is a violation of the Confrontation Clause to admit testimonial statements of

a witness who does not appear at trial unless the witness is unavailable to testify and the

defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541

U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Officer Lipscomb lacked any

firsthand knowledge of the alleged violation, and his testimony relating to the

observations of Officer Johnson was barred by the operation of the Confrontation Clause.

The trial court erroneously permitted this testimony at trial.

{¶10} Additionally, the only information Officer Lipscomb learned from appellant

was that she did not hear or see Officer Johnson, or realize that he was pulling pedestrian

traffic off the ramp, and that she had a “walk” signal as she was crossing the street. The

city did not present testimony from Officer Johnson to establish a lawful order from a

police officer was given or appellant’s failure to comply therewith.

{¶11} On this record, we conclude there is insufficient evidence to support the

conviction for failing to comply with the lawful order of a police officer in violation of CCO 403.02(a). Appellant’s two assignments of error are sustained, and we reverse her

conviction.

{¶12} The judgment is reversed, and the case is remanded to the trial court to

vacate the conviction. The trial court shall also order reimbursement of the fine paid and

the removal of the points assessed to appellant’s driving record.

It is ordered that appellant recover of appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and PATRICIA ANN BLACKMON, J., CONCUR