[Cite as Mayfield Hts. v. Barry, 2011-Ohio-2665.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95771
CITY OF MAYFIELD HEIGHTS PLAINTIFF-APPELLEE
vs.
DENVER BARRY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Lyndhurst Municipal Court Case No. 09 CRB 00397
BEFORE: Cooney, J., and Celebrezze, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: June 2, 2011 2
ATTORNEY FOR APPELLANT
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
city of Mayfield Heights (“the City”). The northern edge of the property is
bounded by ten parcels upon which there are single-family homes located on
Mayland Avenue. Shortly after April Management purchased the property,
Barry began making improvements to the single-family home that existed
there. As the project progressed, neighbors from the adjacent properties
complained to the City that Barry’s property was littered with a collection of
unsightly debris. They also complained that Barry used a backhoe to move
dirt on the property, changed the grade of the soil, and caused water to
accumulate into large pools that encroached into their backyards.
{¶ 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
MHCO 1389.04(A)(6), the “debris” charge, and MHCO 559.04(c), the
“watercourse” charge.
{¶ 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 4
three-page handwritten plea agreement, which provided that Barry would
plead no contest, pay court costs, and would hire an engineer to design, plan,
and install a functioning storm water drainage system on his property as well
as the affected adjoining landowners’ properties. The engineer’s plan was
subject to approval by the City Building Department and the City engineer.
In exchange, the City agreed to dismiss the charges against Barry with
prejudice once the storm drainage system was approved and installed on the
affected properties and his property was in compliance with the MHCO.
{¶ 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 5
sentence was granted for 30 days, pending appeal. Barry now appeals,
raising 15 assignments of error.
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. Crim.R. 52(B). Under
this standard, reversal is warranted only when the outcome of the trial would 6
have been different without the error. State v. Long (1978), 53 Ohio St.2d
91, 372 N.E.2d 804, paragraph two of the syllabus.
{¶ 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 MHCO 559.04(c),
the “watercourse charge.” Barry contends the evidence was insufficient
because the water the jury found to have been diverted was not a
“watercourse.” We disagree. 7
{¶ 11} A challenge to the sufficiency of the evidence supporting a conviction requires
a court to determine whether the prosecution has met its burden of production at trial. State
v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. On review for
sufficiency, courts are to assess not whether the City’s evidence is to be believed, but whether,
if believed, the evidence against a defendant would support a conviction. Id. The 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two
of the syllabus.
{¶ 12} MHCO 559.04(c) provides:
“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 8
photos taken at different times of the year.1 In one picture, there is such an
abundance of water that it looks as though there is a river or lake running
along the back yards of the houses located on the northern edge of Barry’s
property. Viewing this evidence in a light most favorable to the prosecution, any rational
trier of fact could have found that Barry unlawfully obstructed a “collection of water” to the
prejudice of the adjacent landowners. Therefore, there was sufficient evidence showing that
the essential elements of the “watercourse” charge were proven beyond a reasonable doubt.
{¶ 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 MHCO 1389.04,
the “debris” charge. Barry claims that because the City issued a notice of
the violations on April 30, 2009, which required the violations be cured by
May 15, 2009, the City did not have authority to institute criminal
proceedings until a reinspection on or after May 15, 2009 revealed continuing
violations.
{¶ 16} In support of this argument, Barry relies on provisions governing
“notices of violations” and “noncompliance with notices” contained in Chapter
Barry’s counsel admitted at oral argument that it was a collection of water. 1 9
1389 of the MHCO. MHCO 1383.04 provides that whenever the Director of
Buildings or other City department finds a premises to be in violation of any
of the provisions of the Housing Code, “the Director of Buildings shall give or
cause to be given or mailed to the owner or operator of such * * * premises a
written notice stating the violation.” The provision goes on to state that
“[s]uch notice shall order the owner or operator, within a stated reasonable
time, to repair, improve or demolish the structure or premises concerned.”
{¶ 17} Although MHCO 1383.04 explicitly requires notice be given to the
property owner, this notice is not a prerequisite to the filing of a criminal
charge. MHCO 1393.05, which governs noncompliance, authorizes the
Director of Buildings to issue notice to the property owner “ordering the * * *
premises or part thereof to be vacated.” MHCO 1393.05 also authorizes the
Director of Buildings to “advise the Director of Law of the circumstances and
request the Director to institute an appropriate action at law to compel
compliance, or both.” Although MHCO 1383.04 and 1383.05 allow the City
to enforce compliance, these two ordinances do not contain criminal sanctions
or set forth a preliminary requirement before filing such charges.
{¶ 18} Barry was charged with violating MHCO 1389.04 and 559.04.
The penalty for violation of the debris ordinance is set forth in MHCO
1389.99, which provides that it is a first degree misdemeanor. MHCO 10
1389.99 further provides that the imposition of a criminal penalty “shall not
preclude the Director of Law from instituting an appropriate action * * * in a
court of proper jurisdiction to * * * correct or abate a violation; or to require
compliance with the provisions of this chapter * * *.” MHCO 1389.99(b).
Thus, MHCO 1389.99(b) indicates that action to compel compliance under
Chapter 1383 is a separate method of enforcement in addition to criminal
proceedings. Because the notice provisions in Chapter 1383 do not apply to
criminal action taken under Chapter 1389, the fact that the City did not wait
to see if Barry would comply with the notice did not prevent the City from
instituting criminal proceedings for the violations. The City had agreed to
dismiss the charges once a storm water drainage system was approved and
installed.
{¶ 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. 11
{¶ 21} First, we note that Barry never objected to the City’s evidence
any time during the trial. His claim of surprise is being raised for the first
time on appeal and, therefore, was not preserved. Nevertheless, we find
Barry’s claim of unfair surprise is not supported by the record.
{¶ 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. 12
{¶ 25} The fourth assignment of error is overruled.
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 13
by an aerial surveying company in 1993. On cross-examination, he admitted
that the elevations depicted on the map would be accurate to within plus or
minus one foot. He also admitted that he had visited the property once in
August when the area was dry and that he had never even seen the property
with water present.
{¶ 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
Webster’s New World Dictionary, Third College Edition, defines “swale” as “a hollow, 2
depression, or low area of land” and “such a place in a wet, marshy area.” 14
they personally observed Barry moving the soil. There was no evidence of
any other changes on other properties that obstructed the flow of the water.
The jury apparently believed the neighbors’ testimony over that of Barry’s
experts. The neighbors’ testimony is competent, credible, and based on
personal knowledge.
{¶ 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. Crim.R. 52(B) provides that,
“[p]lain errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be
taken with the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Long at paragraph three of the syllabus. In order to find plain error 15
under Crim.R. 52(B), it must be determined, but for the error, the outcome of the trial clearly
would have been otherwise. Id. at paragraph two of the 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 MHCO 559.04(c) to the
jury. As previously explained, the ordinance prohibits one from unlawfully
obstructing or impeding “a navigable river, harbor, or collection of water.”
The testimony and photos at trial showed that Barry’s actions changed the
topography and created “quite a body of water.” The testimony further
established that although water had collected in that area before Barry 16
changed the topography, the water did not collect in such a way as to create
such a large “body of water.” Moreover, Barry’s neighbors testified that the
water was not a problem on their properties until after Barry changed the
topography. We find nothing in the record indicating that if the court had
defined the words in the ordinance, the jury would not have convicted Barry.
{¶ 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 17
require specific performance to force the City to dismiss the charges against
him.
{¶ 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 18
storm drainage system, the City engineer refused to approve Hovancsek’s
plan because it lacked the necessary topographic information, did not provide
sufficient catch basins, the drawing did not show the existing drainage
system, and various other reasons. The plea agreement was not completed,
and a jury trial was therefore scheduled. The docket reflects that the no
contest plea was vacated and Barry’s not guilty plea reinstated.
{¶ 43} Furthermore, the fact that Barry removed the debris by May 14,
2009 does not relieve him of criminal liability for having violated MHCO
1389.04 in the months leading up to April 30, 2009.
{¶ 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. Crim.R. 52(B).
{¶ 46} R.C. 2941.07 provides that upon timely written request, “the
prosecuting attorney shall furnish the defendant with a bill of particulars
setting up specifically the nature of the offense charged and of the conduct of 19
the defendant alleged to constitute the offense.” See, also, Crim.R. 7(E). “A
bill of particulars has a limited purpose — to elucidate or particularize the
conduct of the accused alleged to constitute the charged offense. * * * A bill of
particulars is not designed to provide the accused with specifications of
evidence or to serve as a substitute for discovery.” State v. Sellards (1985), 17
Ohio St.3d 169, 171, 478 N.E.2d 781. If the defendant seeks reversal of his
conviction because the bill of particulars was insufficient, the defendant must
show that the lack of knowledge of certain facts that should have been
included in the bill of particulars prejudiced his ability to fairly defend
himself. State v. Chinn (1999), 85 Ohio St.3d 548, 569, 709 N.E.2d 1166.
{¶ 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. 20
Prosecutorial Misconduct
{¶ 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. Crim.R. 52(B). The trial court provided the jury with a copy
of MHCO 559.04(c), which provides, in pertinent part that “[n]o person shall
unlawfully obstruct or impede the passage of a navigable river, harbor, or 21
collection of water.” Thus, the jury had the entire ordinance and heard
arguments from both sides. Under these circumstances, it cannot be said
that, absent the allegedly improper closing remarks, the outcome would have
been different.
{¶ 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 Evid.R. 404(B). Barry contends the
photos introduced as evidence were “old” and not taken on the day the
citations were issued.
{¶ 53} Pursuant to Evid.R. 404(B), evidence of other acts that are wholly
independent of the crime charged is generally inadmissible. State v.
Thompson (1981), 66 Ohio St.2d 496, 497, 422 N.E.2d 855. Evid.R. 404(B)
provides:
“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 22
to commit crimes, but may be relevant and admissible to show motive or
intent, the absence of mistake or accident, or a scheme, plan, or system in
committing the act in question. State v. Broom (1988), 40 Ohio St.3d 277, 533
N.E.2d 682, paragraph one of the syllabus. Evidence of an accused’s other
acts is thus admissible only when it “tends to show” one of the material
elements in the charged offense and only when it is relevant to the proof of
the accused’s guilt for such offense. State v. Curry (1975), 43 Ohio St.2d 66,
68-69, 300 N.E.2d 720.
{¶ 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 MHCO
559.04. The photos of debris “tend to show” that Barry littered his property
with plastic materials and other materials “in such a manner as to be
patently unsightly” in violation of MHCO 1389.04. Because the pictures do
not constitute evidence of any other crimes or acts, Evid.R. 404(B) is
inapplicable.
{¶ 56} Accordingly, the eleventh assignment of error is overruled. 23
Void for Vagueness
{¶ 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, Crim.R. 52(B) (if
substantial rights affected, court may decide to hear). Because Barry argues in a later
assignment of error that his trial counsel’s failure to object to numerous
errors deprived him of a fair trial, we review this issue.
{¶ 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 24
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, MHCO 1389.04 provides, in pertinent part:
“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: 25
“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} MHCO 559.04(c) provides:
“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 26
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 27
the City selectively prosecuted him even though his neighbors were guilty of
diverting and obstructing the water on their properties.
{¶ 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 28
a constitutional violation unless the discrimination is “intentional or
purposeful.” Flynt at 134, quoting Snowden v. Hughes (1944), 321 U.S. 1, 8,
64 S.Ct. 397, 88 L.Ed. 497. Moreover, the mere existence of a potential
discriminatory purpose does not, by itself, show that such purpose motivated
a particular defendant’s prosecution. Freeman at 58.
{¶ 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. 29
{¶ 72} Ineffective Assistance of Counsel and Cumulative 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, 30
687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Sanders, 94 Ohio St.3d 150,
151, 2002-Ohio-350, 761 N.E.2d 18. In other words, counsel’s errors must be
so serious as to render the result of the trial unreliable.
{¶ 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 31
issue and because the ordinances contained words of common usage typically
within the vocabulary of persons of ordinary intelligence.
{¶ 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 Fifth Amendment protects
against a second prosecution for the same offense after acquittal, against a
second prosecution for the same offense after conviction, and against multiple
punishments for the same offense. Brown v. Ohio (1977), 432 U.S. 161, 165,
97 S.Ct. 2221, 53 L.Ed.2d 187, quoting N. Carolina v. Pearce (1969), 395 U.S.
711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656.
{¶ 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. 32
{¶ 80} Barry also claims his trial counsel was ineffective because he
failed to demand an instruction and an answer to the jury’s question
regarding Barry’s conduct prior to the date set forth in the complaint. He
also claims his counsel was ineffective for failing to object to evidence
regarding the condition of his property prior to May 14, 2009 — the date set
forth in the misdemeanor citations. Barry fails to explain how these alleged
errors prejudiced him. Building code violations are often an ongoing concern
over a period of time until the property owner brings the property into
compliance. Although there was evidence that Barry violated the City’s
ordinances over a period of time, he was only charged with one count as to
each ordinance. Therefore, Barry was not prejudiced by counsel’s failure to
request an instruction or to object to evidence relating to Barry’s property
prior to the date alleged in the citations, and there was no accumulation of
errors that rendered the jury verdict unreliable.
{¶ 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. 33
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution. Case remanded to the
trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________ COLLEEN CONWAY COONEY, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and KENNETH A. ROCCO, J., CONCUR