St. Louis County v. Avivi Heiman ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION III
ST. LOUIS COUNTY, ) No. ED100518
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Honorable Renee Hardin-Tammons
AVIVI HEIMAN, )
)
Appellant. ) FILED: June 24, 2014
Introduction
Avivi Heiman (“Heiman”) appeals from the judgment of the Municipal Court of St. Louis
County overruling his motion to dismiss and finding him guilty of committing numerous
violations of the Property Maintenance Code of St. Louis County (“Code”).1 On appeal, Heiman
argues that the municipal court erred in entering judgment against him because (1) the
information charging him was facially insufficient in that it failed to state which sections of the
Code Heiman was charged with violating, and (2) the judgment is against the weight of the
evidence because St. Louis County failed to prove Heiman is the owner of the property at issue.
Because the County’s failure to include a precise reference to section numbers of the Code did
not prejudice Heiman’s understanding of the charges brought against him in the information or
his ability to defend against the charges, and because the municipal court’s finding that Heiman
1
St. Louis County Revised Ordinances, Chapter 1110.
was an owner of the property under the Property Maintenance Code was not against the weight
of the evidence, we affirm the judgment of the municipal court.
Factual and Procedural History
In January 2011, Vernon Casimere (“Casimere”), Program Manager of St. Louis
County’s Neighborhood Preservation Program, conducted a preoccupancy inspection on the Elta
Rose Apartment Complex in North St. Louis County. While performing the inspection,
Casimere met Heiman, who was working on the property grounds. Casimere found numerous
Code violations as a result of the inspection, and on at least ten occasions thereafter, Casimere
spoke with Heiman about the violations and what repairs and improvements were needed to
bring the property in compliance with the Code. Heiman told Casimere that he would hire a
crew to complete the necessary repairs, and at one point also provided Casimere a work scope
that laid out Heiman’s plans for completing the repairs. Throughout Casimere’s communications
with Heiman, Heiman never referred Casimere to a different individual to discuss the violations
and necessary repairs, nor did he indicate that he lacked authority to approve repairs at the
property.
On October 13, 2011, St. Louis County charged Heiman by information with numerous
violations of the Code at the Elta Rose Apartment Complex.2 The charging documents set forth
the name of the defendant, the date of the violation, the address of the building in violation, and a
short description of each violation with reference to an attached numbered photograph depicting
the violation.3 The charging documents did not include citations to the specific section numbers
of the Code allegedly violated by Heiman.
2
St. Louis County served Heiman with 17 separate informations, each of which was identical in form. For the sake
of clarity, we will refer to these separate informations collectively as “the charging documents.”
3
For example, “Damaged front entrance post Photo #1; Exterior not painted Photo #2; Graffiti not removed Photo
#3 . . .”
2
On February 14, 2013, Heiman filed a motion to dismiss arguing that the charging
documents were facially insufficient. Specifically, Heiman asserted that property ownership is
an essential element of the charged offenses, and the charging documents failed to allege any
facts showing that Heiman was the property owner of the Elta Rose Apartment Complex.
Therefore, Heiman alleged the charging documents were insufficient to charge him with the
Code violations.
The case proceeded to a bench trial on February 24, 2013. St. Louis County offered into
evidence the following sections of the Code that Heiman was charged with violating: 302.1,
304.6, 304.9, 304.10, 304.13, 304.14 and 604.3. Heiman objected to the admission of the
sections on the ground that the sections were not cited in the charging documents. The
municipal court overruled Heiman’s objection and admitted the Code sections into evidence.
On May 15, 2013, the municipal court entered its order and judgment overruling
Heiman’s motion to dismiss and finding him guilty of the Code violations. Heiman was ordered
to pay fines totaling $4,525.00 and was placed on probation for 2 years. This appeal follows.
Points on Appeal
Heiman presents two points on appeal. First, Heiman alleges that the trial court erred in
overruling his motion to dismiss because the charging documents did not identify which sections
of the Code Heiman allegedly violated, and therefore were facially insufficient. Second, Heiman
alleges that the municipal court’s judgment is against the weight of the evidence in that St. Louis
County failed to prove that Heiman is the owner of the Elta Rose Apartment Complex.4
4
We note that Heiman presents several arguments for reversal within the argument section of his brief that are not
raised in the points relied on. Arguments raised only in the argument section of the brief are not preserved for
review and we therefore do not address them. In re Marriage of Fritz, 243 S.W.3d 484, 488 (Mo. App. E.D. 2007).
3
Standard of Review
We will sustain the judgment of the municipal court unless it is not supported by
substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies
the law. City of Joplin v. Klein, 345 S.W.3d 351, 354 (Mo. App. S.D. 2011). We take the
evidence and the reasonable inferences therefrom in the light most favorable to the municipality
and disregard all contrary evidence and inferences. St. Louis Cnty. v. Afshari, 938 S.W.2d 303,
304 (Mo. App. E.D. 1997).
Discussion
I. The trial court did not err in overruling Heiman’s motion to dismiss.
In his first point on appeal, Heiman contends that the municipal court erred in overruling
his motion to dismiss because the charging documents were facially insufficient. Specifically,
Heiman claims that the charging documents did not inform him which sections of the Code he
was charged with violating, and instead merely stated that he violated Chapter 1110, the entire
Code. Heiman argues that St. Louis County’s failure to cite specific section numbers of the
Code is fatal to the charging documents and should have warranted a dismissal of the charges.
We disagree.
Pursuant to Rule 37.34, all municipal ordinance violations must be prosecuted by
information. Rule 37.34.5 Rule 37.35 sets forth the requirements for a sufficient charging
information. To be sufficient, an information must be in writing, signed by the prosecutor, and
filed in the court with jurisdiction over the ordinance violation. Rule 37.35(a). Additionally, the
information must: (1) state the name of the defendant; (2) state plainly, concisely, and definitely
the essential facts constituting the ordinance violation charged; (3) identify the time and place of
the ordinance violation charged; (4) cite the chapter and section of the ordinance alleged to have
5
All rule references are to Mo. R. Civ. P. (2013).
4
been violated and the chapter and section providing the penalty or punishment; and (5) state the
name of the prosecuting county or municipality. Rule 37.35(b). Although the language of Rule
37.35 is mandatory, Rule 37.41 further instructs that “[a]n information shall not be invalid, nor
shall the trial, judgment, or other proceedings on the information be stayed, because of any
defect that does not prejudice the substantial rights of the defendant.” Rule 37.41. Missouri
courts also have held that an information for a municipal ordinance violation does not require the
same strictness as an information in a criminal prosecution. City of Joplin v. Klein, 345 S.W.3d
351, 355 (Mo. App. S.D. 2011).
We recognize that Rule 37.35 requires that charging documents include a citation to the
chapter and section of the ordinance alleged to have been violated. Regrettably, St. Louis
County did not meet this mandatory requirement. While we do not condone St. Louis County’s
error in failing to cite the relevant Code sections in the charging documents, this defect did not
prejudice Heiman’s substantial rights. We note that the charging documents served on Heiman
provided a clear description of the Code violation such as “graffiti not removed” and “missing
trim at roofline” and also included a photograph that precisely depicted each violation. We are
not persuaded that Heiman was unable to understand from the charging documents the nature of
the charges brought against him. Not only did the charging documents describe the alleged
violation, but also, they included pictures of the violations, and a picture is worth a thousand
words. Based upon the record before us, we find that Heiman knew the violations with which he
was charged and what he needed to do to defend against the alleged violations. Accordingly, we
hold Heiman was not prejudiced by any defects in the charging documents. See City of
Hurdland v. Morrow, 861 S.W.2d 585, 587 (Mo. App. 1993) (defect in information did not
5
constitute reversible error where appellant did not show how specifically he was prejudiced, i.e.,
what information was missing that prevented him from preparing an adequate defense).
Because Heiman was not prejudiced by St. Louis County’s failure to include the section
number of each Code violation in the charging documents, the municipal court did not err in
overruling his motion to dismiss. Point one is denied.
II. The judgment is not against the weight of the evidence.
In his second point on appeal, Heiman argues that the judgment of the municipal court is
against the weight of the evidence because St. Louis County failed to prove Heiman was the
owner of the Elta Rose Apartment Complex. We disagree.
Section 202 of the Code defines “owner” as “[a]ny person, agent, operator, firm or
corporation having a legal or equitable interest in the property; or recorded in the official records
of the state, county or municipality as holding title to the property; or otherwise having control
of the property, including the guardian of the estate of any such person, and the executor or
administrator of the estate of such person if ordered to take possession or real property by a
court.” (emphasis added). St. Louis County does not contend that Heiman holds title to the
property. Instead, St. Louis County presented evidence at trial that Heiman maintained control
over the subject property, and therefore was an “owner” of the property as defined in section 202
of the Code. Casimere testified that he had approximately ten telephone conservations with
Heiman about the property and the repairs needed. Casimere testified that Heiman said he would
hire a crew to make necessary repairs, and at one point Heiman presented Casimere with a work
scope detailing when Heiman planned on completing the repairs. Additionally, Casimere
testified that Heiman never referred Casimere to a different party to discuss Code violations on
the property, nor did he ever indicate that anyone other than he would be needed to approve
6