Wakeman v. Smith

2024 Ohio 1067

• Court: Ohio Court of Appeals
• Decided: March 22, 2024
• Docket: H-22-013
• Status: Published

Opinion

[Cite as Wakeman v. Smith, 2024-Ohio-1067.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY

Village of Wakeman Court of Appeals No. H-22-013

Appellee Trial Court No. CRB220299

v.

Sherwood D. Smith DECISION AND JUDGMENT

Appellant Decided: March 22, 2024

*****

Steven Palmer, Village of Wakeman Law Director, for appellee.

Brent L. English, for appellant.

{¶ 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. I. Background

{¶ 2} On April 7, 2022, appellee filed complaints against appellant alleging

violations, as of April 5, of Wakeman Municipal Code 303.10(b) and 303.10(f),

regarding five different vehicles it deemed were “junk motor vehicles” located at

appellant’s property known as 39 South Pleasant Street, Wakeman, Huron County, Ohio.

The five alleged junk motor vehicles are: (1) a 1989 light blue Buick LeSabre with

expired Ohio plate No. HSG8211, (2) a 2003 maroon Nissan Maxima with unexpired

Ohio plate No. JJT3671, (3) a 2006 silver Honda Civic hybrid with no plate, (4) a 2002

red Mercury Sable with expired Ohio plate No. HYJ8468, and (5) a 2003 white Subaru

Forester with no plate. The complaint alleged appellant had five previous convictions for

“junk motor vehicles” in 2019, 2020, and 2021.

{¶ 3} Wakeman Municipal Code 303.10(b) states the following violation:

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

2. 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 Wakeman Municipal Code 303.10(a), which defines a “junk

motor vehicle” as:

[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 to

4737.12; or regulated under authority of the Municipality.

{¶ 5} Wakeman Municipal Code 303.10(f) then provides the penalty in the

presence of prior offenses, stating, “If, within three years of the offense, the offender

previously was convicted of or pleaded guilty to one or more violations of this section,

the offense is an unclassified misdemeanor. When the offense is an unclassified

misdemeanor, the offender shall be fined no less than five hundred dollars but no more

than one thousand dollars.”

{¶ 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

3. plea deal that, “If you get those cars down to one or two, we will just drop all charges,”

which appellant denied. The trial court found that in the absence of an agreement

between the parties, the trial would proceed. The trial court heard testimony from three

witnesses, including appellant, and admitted 13 exhibits into evidence. The trial court

found appellant guilty of all five offenses. Sentencing occurred on August 31, 2022, and

by then appellant was represented by counsel. The trial court ordered appellant to pay a

$600 dollar fine for each offense plus court costs, totaling $3,282.84.

{¶ 7} Appellant timely appealed and set forth four assignments of error:

1. 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.

2. 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.

3. Wakeman Codified Ordinance Section 303.10 is unconstitutional

because it runs afoul of a state statute of general application.

4. Wakeman Codified Ordinance Section 303.10 is unconstitutionally

vague and/or is unconstitutional as applied.

4. II. CONSTITUTIONALITY OF MUNICIPAL ORDINANCE

{¶ 8} We first address appellant’s third and fourth assignments of error together

for their challenges to the constitutionality of Wakeman Municipal Code 303.10.

{¶ 9} In support of his third assignment of error, appellant argues Wakeman

Municipal Code 303.10 is unconstitutional because it impermissibly conflicts with R.C.

4513.65 in violation of Article XVIII, Section 3 of the Ohio Constitution, the village’s

home rule authority, in three ways: (1) it is an exercise of police power rather than self-

government; (2) it directly conflicts with the limits imposed by R.C. 4513.65 for the

definition of a “junk motor vehicle”; and (3) R.C. 4513.65 is a rule of conduct imposed

on citizens generally. Consequently, the village of Wakeman was without authority to

enact Wakeman Municipal Code 303.10 in conflict with R.C. 4513.65, and the ordinance

is a nullity.

{¶ 10} In support of his fourth assignment of error, appellant argues Wakeman

Municipal Code 303.10 is unconstitutionally void-for-vagueness on its face and as

applied to him. Appellant argues the ordinance’s definition of “operable, defined as being

capable of operation on a public street and meeting all safety requirements for such

operation” is facially void-for-vagueness because a person of ordinary intelligence cannot

ascertain the lawful or safe conduct from the unlawful or unsafe operation where the

“safety requirements” are not identified and do not refer to R.C. 4513.65. Appellant

argues the ordinance is unconstitutionally void-for-vagueness as applied to him because

5. he cannot be convicted for a crime for violating an ordinance that is a legal nullity

without force or effect.

{¶ 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 Wakeman Municipal Code 303.10 is constitutional for two

reasons: (1) “R.C. 4513.65(A), paragraph 2 provides a political subdivision has the ability

to regulate such vehicles stored in the open. By reference to political subdivisions, it

suggests that junk motor vehicle regulation was not intended to operate uniformly

throughout the state”; and (2) the municipal code meets the three-part analysis for void-

for-vagueness challenges both on its face and as-applied to appellant.

{¶ 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.

6. {¶ 13} This court may exercise its discretion to review whether the trial court

committed plain error with respect to forfeited constitutional arguments. State v. Barber,

6th Dist. Lucas No. L-22-1278, 2023-Ohio-2991, ¶ 28, citing Quarterman at ¶ 16.

However, we decline to do so in this case where the record is bereft of briefing, arguing,

and lower court consideration of the constitutional arguments; appellee’s brief makes

only a passing reference to the plain error doctrine; and appellant’s reply brief still “has

not dealt with the plain error analysis applicable to this appeal.” Quarterman at ¶ 18-19.

Accordingly, we decline to decide the constitutionality of Wakeman Municipal Code

303.10 or whether its application in this case rises to plain error, because those issues

were not properly raised or presented. Id. at ¶ 20.

{¶ 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”

7. element, appellant argues appellee failed to meet its burden because appellee submitted

no evidence that each vehicle was not currently “operable,” defined by the ordinance as

“capable of operation on a public street and meeting all safety requirements for such

operation.” Appellant argues appellee failed to present sufficient evidence at trial of each

vehicle’s capability to operate on a public street and the safety requirements for such

operation.

{¶ 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 Wakeman Municipal Code 303.10(b). Appellee points to the police

chief’s testimony at trial confirming that each of the five vehicles, with the exception of

the 2003 Nissan Maxima, was not currently registered as of the date of his photos,

February 18, 2022. Further, the police chief testified at trial that in his opinion, each

vehicle had not been moved since the date of his photos, which was more than 24 hours.

The police chief also testified that in his opinion each vehicle could not be safely

operated on public streets, mostly due to flat tires.

8. The test for sufficiency of the evidence 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.” “‘Proof beyond a reasonable doubt’ is proof of such

character that an ordinary person would be willing to rely and act upon it in

the most important of the person’s own affairs.” A sufficiency-of-the-

evidence challenge asks whether the evidence adduced at trial “is legally

sufficient to support the jury verdict as a matter of law.” (Citations

omitted.)

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 Wakeman Municipal

Code 303.10(b) are: (1) willful conduct by appellant, (2) with a “junk motor vehicle” as

defined by Wakeman Municipal Code 303.10(a), (3) located at appellant’s property, (4)

with his permission, (5) where the junk motor vehicle is in the open, covered or

uncovered, and (6) for more than 24 consecutive hours. Appellant’s assignment of error

only challenges one of the foregoing elements: after viewing the evidence in a light most

favorable to appellee, no rational trier of fact could have found beyond a reasonable

doubt that each of the five vehicles was a “junk motor vehicle.”

{¶ 20} The essential elements of appellant’s violation of a “junk motor vehicle”

under Wakeman Municipal Code 303.10(a) are: (1) a motor vehicle, (2) not currently

registered, (3) not currently operating as being capable of operation on a public street and

9. meeting all safety requirements for such operation, (3) located at appellant’s private

property, (4) with his permission, (5) where the junk motor vehicle is in the open,

covered or uncovered, and (6) for more than 24 consecutive hours.

{¶ 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 Wakeman Municipal Code 303.10(b) with respect to the 2003

Nissan Maxima.

{¶ 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} Wakeman Municipal Code 303.10(a) clearly requires current registration

and operability, with “operable” further defined as “being capable of operation on a

public street and meeting all safety requirements for such operation[.]” This provision

10. can be read as addressing both permissible use (registration) and safe use (operability).

The record contains sufficient evidence of both, with evidence that four of the five

vehicles remained on appellant’s property in a condition that demonstrated it was both

impermissible to operate the vehicle based on lack of current registration, and that the

vehicles were incapable of safe operation on the roadway. Appellant’s own testimony

provided evidence of inoperability, with appellant acknowledging the vehicles “were

sitting there with flats and things like that, I just didn’t have them plated,” and “I moved

them around periodically to try to show that they were operable. But I can’t drive them

on the street.” Evidence that demonstrates flat tires goes to operability of the vehicle. See,

e.g., Ottawa Hills v. Afjeh, 6th Dist. Lucas No. L-12-1093, 2013-Ohio-1474, ¶ 14 (in a

case involving nuisance violations, evidence included “two cars in appellant’s driveway

with flat tires, which clearly rendered the vehicles inoperable.”).

{¶ 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 Wakeman Municipal Code 303.10(b) for four-out-of-five

vehicles. We further find that insufficient 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 Wakeman Municipal Code 303.10(b) for the 2003 Nissan Maxima.

{¶ 25} Appellant’s first assignment of error is well-taken, in part.

11. IV. Manifest Weight of the Evidence

{¶ 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

12. inclination of a greater amount of credible evidence was admitted at trial to sustain that

decision than not. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

The discretionary power to grant a new trial is in the exceptional case in which the

evidence weighs heavily against the conviction. Id. The unanimous concurrence of all

three judges of a court of appeals panel is required to overturn, on the weight of evidence,

a judgment that results from a jury. Id. at 389.

{¶ 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 Wakeman Municipal Code 303.10(b) for four vehicles. However, we

find that with respect to the 2003 Nissan Maxima, an exceptional instance from the

record exists where the evidence admitted at trial weighs heavily against that conviction.

{¶ 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.

13. {¶ 32} Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed, in part, and reversed and vacated, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, J. JUDGE 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/.

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