State v. Horvath

2016 Ohio 8037

• Court: Ohio Court of Appeals
• Decided: December 7, 2016
• Docket: 15 MA 0145
• Status: Published

Opinion

[Cite as State v. Horvath, 2016-Ohio-8037.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 MA 0145 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) LANA HORVATH ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the County Court No. 5 of Mahoning County, Ohio Case No. 2015 TR D 01088

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Daniel A. Blasdell City Law Director for the City of Columbiana 28 West Friend Street Columbiana, Ohio 44408

For Defendant-Appellant: Atty. Peter Horvath P.O. Box 501 Lisbon, Ohio 44432

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 7, 2016 [Cite as State v. Horvath, 2016-Ohio-8037.] WAITE, J.

{¶1} Appellant Lana Horvath appeals her conviction in Mahoning County

Court No. 5 on a charge of following too closely, brought pursuant to a City of

Columbiana ordinance which parallels a state statute.

{¶2} On April 24, 2015 at approximately 10:00 p.m., Columbiana Police

Officer Brandon Ericsson was on duty and parked in a commercial parking lot on

State Route 14 facing southbound towards the roadway. Officer Ericsson observed a

car headed towards him, traveling westbound, headed out of Columbiana. He noted

as the vehicle approached that there was a second vehicle behind the first which was

following so closely that he originally only detected the headlights of the first vehicle.

Consequently, Ericsson stopped the second vehicle and cited Appellant for following

too closely, in violation of Columbiana City Ordinance No. 432.09.

{¶3} Appellant’s case was heard in Columbiana City Mayor’s Court on May

5, 2015. Appellant entered a plea of not guilty and the matter was transferred to

Mahoning County Court No. 5, where a bench trial was held on July 10, 2015. At the

close of the state’s evidence, Appellant’s counsel orally moved to dismiss on the

basis that the state failed to submit a copy of the ordinance into evidence. The court

took the matter under advisement and subsequently issued a judgment entry on July

14, 2015. The court found Appellant guilty and imposed a fine of $25.00 plus costs.

Appellant filed a notice of appeal.

{¶4} We first must note that subsequent to filing a timely notice of appeal,

Appellant has been tardy with every other filing to this Court. Her brief was filed

substantially out of rule and she failed to file a transcript of proceedings until long -2-

after Appellee requested that this appeal be dismissed. Appellant altogether failed to

file certain other documents. Based on Appellant’s several failures to comport with

the state and local rules, we would be well within our discretion to dismiss this

appeal. In the interests of justice, however, we will examine this matter on the merits.

{¶5} A review of the record before us reflects that Appellant was fully

apprised of the ordinance at issue, as it was properly noted on the citation and

available to Appellant at the city’s offices as well as online. The trial court had

sufficient information on which to take judicial notice of the law and did not err in

convicting Appellant. Based on the following, the judgment of the trial court is

affirmed.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT FAILED TO TAKE JUDICIAL NOTICE OF THE

ORDINANCE IN QUESTION.

SECOND ASSIGNMENT OF ERROR

THE ORDINANCE IS VOID FOR VAGUENESS.

{¶6} In Appellant’s first assignment of error she claims that the trial court

failed to take judicial notice of the city ordinance. However, counsel for Appellant

appears to be confused, as the record indicates that the trial court did take judicial

notice of the ordinance at issue. It appears that Appellant actually complains that the

trial court did, in fact, take judicial notice of the ordinance.

{¶7} Beyond this misstatement, Appellant’s brief appears problematic and

difficult to decipher for many reasons. The burden of affirmatively demonstrating -3-

error on appeal rests with the party raising the alleged error. App.R. 9; App.R.

16(A)(7). App.R. 12 requires that an appellate court determine the merits of an

appeal based on the “assignments of error” set forth by the appellant, which should

designate the specific rulings challenged. Pursuant to App.R. 16, an appellant must

present his or her contentions for each assignment and the reasons in support of

each contention, and include citations to authorities, statutes, and the parts of the

record on which the appellant relies. App.R. 16(A)(7); Roberts v. Hutton, 152 Ohio

App.3d 412, 2003-Ohio-1650, 787 N.E.2d 1267, ¶ 18 (10th Dist.).

{¶8} An appellate court may disregard an assignment of error presented for

review if the party raising it fails to identify in the record the error on which the

assignment of error is based or fails to argue the assignment in the brief as required

under the rules. App.R. 16(A); App.R. 12. In the case sub judice, Appellant’s brief

contains a page listing two assignments of error, followed by three pages which cite

various civil rules, rules of criminal procedure, and caselaw. These are followed by

short comments. The argument under the first assignment of error reads, in total:

“Lana is entitled to see the ordinance. In fact both Lana and her attorney are entitled

to see the ordinance in court.” (Appellant’s Brf., p. 8.) Appellant’s argument under

the second assignment of error appears to be: “This ordinance provides absolutely

no notice of the conduct that is prohibited. It is drafter [sic] in a manner that allows

arbitrary enforcement. Lana is entitled to a fair warning about what is expected of her

and the manner in which she drives through the city.” (Appellant’s Brf., p. 9.) -4-

{¶9} Appellant appears to be arguing that as Appellee did not introduce a

copy of the Columbiana City ordinance at trial, the court should not have taken

judicial notice of this law. Additionally, there appears to be an argument that the

court should not have relied on the exhibits admitted into evidence in making its

determination. Appellee submitted pictures of the scene, including the location of the

police vehicle, and photos demonstrating the highway line demarcations, posted

speed limit signs, and city corporate limit signs. Appellee also submitted a chart

indicating the conversion between miles per hour and feet per second to demonstrate

the distance traveled depending on vehicle speed. The court inquired whether

Appellant’s counsel had any objection to the exhibits presented. Appellant’s counsel

responded, “[n]o objection.” (Trial Tr., p. 16.) Therefore, counsel did not object to

these exhibits at trial and Appellant cannot now properly argue that the exhibits

should not have been admitted.

{¶10} The instant matter involves a traffic case and is subject to the Ohio

Traffic Rules. Traf.R. 1(A); State v. Boafer, 7th Dist. No. 12 MA 0192, 2013-Ohio-

4255, ¶ 40. Rule 20 of the Ohio Traffic Rules provides that, if no specific procedure

is set forth in the Traffic Rules, the Ohio Rules of Criminal Procedure apply.

Pursuant to the Ohio Rules of Criminal Procedure, judicial notice provisions of Civil

Rule 44.1 apply in criminal cases. Therefore, our analysis is guided by Civ.R.

44.1(A)(2), as follows:

A party who intends to rely on a municipal ordinance, a local rule of

court, or an administrative regulation within this state shall give notice in -5-

his pleading or other reasonable written notice. The court in taking

judicial notice of a municipal ordinance, a local rule of court, or an

administrative regulation within this state may inform itself in such

manner as it deems proper, and may call upon counsel to aid in

obtaining such information. The court's determination shall be treated

as a ruling on a question of law and shall be made by the court and not

the jury. A court may, however, take judicial notice of its own rules or of

a municipal ordinance within the territorial jurisdiction of the court

without advance notice in the pleading of a party or other written notice.

{¶11} Pursuant to the Ohio Traffic Rules, the Columbiana City ordinance at

issue is listed on the citation, giving Appellant notice of the ordinance in question. In

its judgment entry, the trial court, sitting on behalf of Columbiana Mayor’s Court,

noted, “[t]his cause came on for trial on the traffic citation issued against the

defendant.” (7/14/15 J.E.) The citation named Columbiana Ordinance No. 432.09,

which parallels R.C. 4511.34. This is sufficient for the trial court to familiarize itself

with, and take judicial notice of, the Columbiana ordinance, pursuant to Civ.R.

44.1(A)(2).

{¶12} Appellant also appears to contend the ordinance is vague, in that it

provides “no notice of the conduct that is prohibited.” (Appellant’s Brf., p. 9.)

Columbiana Ordinance No. 432.09 reads:

(1) The operator of a motor vehicle shall not follow another vehicle

more closely than is reasonable and prudent, having due regard for the -6-

speed of the vehicle and the traffic upon and the condition of the

highway.

(2) The driver of any truck, or motor vehicle drawing another vehicle,

when traveling upon a roadway outside a business or residence district,

shall maintain a sufficient space, whenever conditions permit, between

the vehicle and another vehicle ahead so an overtaking motor vehicle

may enter and occupy the space without danger. This division (a) does

not prevent overtaking and passing nor does it apply to any lane

specially designated for use by trucks.

(3) Motor vehicles being driven upon any roadway outside of a

business or residence district in a caravan or motorcade shall maintain

a sufficient space between the vehicles so an overtaking vehicle may

enter and occupy the space without danger. This division shall not

apply to funeral processions.

(b) Except as otherwise provided in this division, whoever violates this

section is guilty of a minor misdemeanor. If, within one year of the

offense, the offender previously has been convicted of or pleaded guilty

to one predicate motor vehicle or traffic offense, whoever violates this

section is guilty of a misdemeanor of the fourth degree. If, within one

year of the offense, the offender previously has been convicted of two

or more predicate motor vehicle or traffic offenses, whoever violates -7-

this section is guilty of a misdemeanor of the third degree. (ORC

4511.34).

{¶13} Appellant claims this ordinance is unconstitutionally vague because it

does not clearly set forth the conduct that is prohibited. All legislative enactments

have a strong presumption of constitutionality. State v Anderson, 57 Ohio St.3d 168,

171, 566 N.E.2d 1224 (1991). The “void for vagueness” doctrine emanates from the

due process provision of the Fourteenth Amendment, and bars enforcement of a law

that is so vague that “men of common intelligence must necessarily guess at its

meaning and differ as to its application.” United States v. Lanier, 520 U.S. 259, 266,

117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).

{¶14} As noted, the Columbiana ordinance parallels R.C. 4511.34. We have

addressed the constitutionality of this statute. State v. Quinones, 7th Dist. No. 02 CA

243, 2003-Ohio-6727, ¶ 35. In Quinones, we held that a traffic statute need not be

written with “absolute or mathematical certainty” in order to escape the “void for

vagueness” doctrine. Id. at ¶ 34, quoting State v. Gonzalez, 43 Ohio App.3d 59, 61,

539 N.E.2d 641 (6th Dist.1987).

{¶15} Columbiana ordinance 432.09, like R.C. 4511.34, does not specifically

define the distance that must be maintained between two vehicles. Instead, it uses a

“reasonable and prudent” standard. In Quinones, we held that the statute’s use of

the “reasonable” standard conveyed a sufficiently definite warning as to the conduct

that is proscribed. Id. at ¶ 35. Operating a motor vehicle in a reasonable manner so -8-

as to avoid a rear-end collision is conduct that is properly regulated by traffic laws.

Appellant’s second assignment of error is also without merit and is overruled.

{¶16} Based on the foregoing, Appellant’s assignments of error are without

merit and the judgment of the trial court is affirmed.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.