N. Olmsted v. Keller , 2013 Ohio 1996 ( 2013 )

[Cite as N. Olmsted v. Keller, 2013-Ohio-1996.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99273
CITY OF NORTH OLMSTED
PLAINTIFF-APPELLEE
vs.
THEODORE J. KELLER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Rocky River Municipal Court
Case No. 12 TRD 18840
BEFORE: Kilbane, J., Jones, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: May 16, 2013
APPELLANT
Theodore Keller, pro se
6751 Cypress Drive
North Olmsted, Ohio 44070
ATTORNEY FOR APPELLEE
Michael Gordillo
City Prosecutor
Stephanie E. Landgraf
Legal Intern
City of North Olmsted
5200 Dover Center Road
North Olmsted, Ohio 44070
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Theodore Keller, pro se, appeals from a citation for
speeding, a violation of North Olmsted Ordinances 333.03. For the reasons set forth
below, we affirm.
{¶2} On October 24, 2012, defendant was cited for traveling at 51 m.p.h. in a 35
m.p.h. zone on Stearns Road. On November 6, 2012, defendant was arraigned, and trial
was set for November 8, 2012. On that date, defendant appeared in court pro se and
asked for a continuance of the trial. The court granted the motion and continued the trial
until November 29, 2012.
{¶3} Also on November 8, 2012, defendant served a discovery request upon the
prosecuting attorney. Defendant requested, inter alia, copies of “approvals” and surveys
authorizing the city “to amend and lower speed limit” of Stearns Road to 35 m.p.h., and
documents pertaining to “ODOT approval to use a 24” x 30” sign instead of a mandated
30” x 36” sign under the OMUTCD [Ohio Manual of Uniform Traffic Control Devices].”
The prosecuting attorney provided discovery on November 16, 2012.
{¶4} The matter proceeded to trial on November 29, 2012. On that date,
defendant filed a motion to dismiss the citation, contending that the city had improperly
lowered the speed limit on Stearns Road and the speed limit sign was smaller than
required under the OMUTCD. The trial court subsequently found defendant guilty of
speeding in an order that provided in relevant part as follows:
Defendant’s Motion to Dismiss * * * is overruled as not timely filed and not
properly served. Defendant’s argument alleges that discovery was not
provided as to the size of the sign in question. Court reviewed discovery
issue including the fact that his discovery request relating to the size of the
sign was not granted at a hearing on 11/08/12. There is uncontroverted
evidence that defendant was speeding. Defendant found guilty of
speeding. $50 fine and court costs. Execution of sentence stayed pending
appeal.
{¶5} Defendant now appeals and raises three issues for our review. Defendant
complains that he was denied discovery in this matter, that the area where he received his
citation should be designated 45 m.p.h. and not 35 m.p.h., that the speed limit sign is not
the correct size and was obstructed by other signs, and therefore, the posted speed limit is
unenforceable pursuant to Oakwood Village v. Blum, 8th Dist. No. 97081,
2012-Ohio-814.
{¶6} An appellant bears the burden of demonstrating error by reference to
matters in the record. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400
N.E.2d 384 (1980); State v. Johnson, 9th Dist. No. 02CA008193, 2003-Ohio-6814, ¶ 8.
If there is no verbatim transcript pursuant to App.R. 9(B), the appellant is required to
utilize App.R. 9(C) or 9(D) in order to have the contents of the trial court proceedings
included in the record on appeal. State v. Woods, 9th Dist. No. 23414, 2007-Ohio-1423.
In the absence of a complete and adequate record, a reviewing court must presume the
regularity of the trial court proceedings and the sufficiency of the evidence to support the
trial court’s decision. Bohrer v. Bakers Square Restaurant, 8th Dist. No. 88143,
2007-Ohio-2223, ¶ 5.
{¶7} In this matter, following the trial, the lower court determined that “[t]here is
uncontroverted evidence that defendant was speeding.” On appeal, defendant has not
provided us with a transcript of the trial proceedings pursuant to App.R. 9(B), and he has
not provided us with an App.R. 9(C) statement or an App.R. 9(D) agreed statement of the
case. Consequently, we must presume regularity, and we are unable to conclude that the
trial court committed reversible error in this matter.
{¶8} Judgment affirmed.
It is ordered that appellee recover from appellant 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 Rocky
River 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.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR