Cleveland v. Hasan , 2013 Ohio 820 ( 2013 )

[Cite as Cleveland v. Hasan, 2013-Ohio-820.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98490
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
KENNETH HASAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2011 TRD-070532
BEFORE: McCormack, J., Celebrezze, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: March 7, 2013
FOR APPELLANT
Fareed Hasan Bey
ex rel. Kenneth F. Hasan
c/o 634 East 124th Street
Cleveland, OH 44108
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
Victor R. Perez
Chief Prosecutor
Connor P. Nathanson
Assistant Prosecutor
City of Cleveland
Justice Center – 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Kenneth Fareed Hasan, appeals from a judgment of
the trial court finding him guilty of various traffic offenses after a bench trial. For the
following reasons, we affirm the judgment of the trial court.
{¶2} On December 12, 2011, Hasan was pulled over by a police officer after the
officer observed him running through a red light. The officer cited him with violations
of Cleveland Codified Ordinances 413.03 (disobeying traffic control signal), 435.06
(refusing to display a driver’s license), and 437.27(B)(1) (failing to wear seat belt).
Hasan was arraigned, and the court advised him of his rights. Because he refused to
enter a plea, the court entered a not guilty plea on his behalf. The matter then proceeded
to a bench trial.
{¶3} At trial, Officer David Smith testified that on December 12, 2011, he was
monitoring the traffic in an intersection near a school area, where the crossing guards had
complained of seeing drivers running through the red light and speeding. Around 8:20
a.m., when the children were going to the school, Officer Smith saw Hasan’s vehicle, a
Chevy TrailBlazer, going through the light. He pursued the vehicle and stopped it.
When Officer Smith asked for Hasan’s driver’s license, he stated, “I don’t have one.”
When asked for his vehicle registration, Hasan claimed “it belongs to the state”; when
asked for his ID, Hasan gave the officer his Moorish ID card. The officer learned his
name was Kenneth Hasan only after running the vehicle’s license plate. In response to
his claim that he does not have a driver’s license, the city submitted a print-out from the
Bureau of Motor Vehicles, which shows the bureau issued Hasan a driver’s license on
March 9, 2009.
{¶4} Hasan stated to the trial court that he is “F. Hasan Bey, former Kenneth
Torey Hasan, authorized representative of Kenneth Gary Hasan, not the person that was
created by legislature.” He challenged the trial court’s authority over him “as flesh and
blood” and asked for the prosecutor’s license to practice law. He objected when Officer
Smith stated his name, claiming “Smith” is an English name, not an “American” name,
and therefore, the officer has a “false identity.” When given the opportunity to
cross-examine Officer Smith, instead of eliciting testimony relating to the traffic
offenses, Hasan questioned the source of the city of Cleveland’s power to authorize its
police officers to make traffic stops. He did not provide testimony or otherwise offer
any evidence regarding the traffic violations. Rather, he argued he did not know he was
obligated to have a driver’s license, and he claimed a crime had not been committed
because no one was injured. He also claimed the city did not prove his offenses because
the city’s only evidence consisted of the officer’s testimony, unsupported by any
physical evidence. When asked by the prosecutor whether he received the citation from
Officer Smith, he pleaded the Fifth Amendment. Although the citation showed a
signature of “Fareed Hasan Bey, Authorized Representative,” Hasan denied having
signed the citation. He also claimed he was never issued a driver’s license from the state
of Ohio, despite the state’s exhibit showing the contrary.
{¶5} The trial court found him guilty of all three traffic offenses and sentenced
him to 180 days in jail (160 days suspended) and a $1,000 fine ($800 suspended) for
refusing to display the driver’s license, a fine of $150 for disobeying the traffic control
signal, and a fine of $30 for the failure to wear a seatbelt. The court stayed the
execution pending an appeal to this court.
{¶6} On appeal, Hasan raises five assignments of error. A review of the
appellant’s brief reveals that the “argument” under each assignment consists primarily of
disjointed sentences. Some assignments of error are devoid of any legal authority;
others cite unrelated case law. In the following, we address, to the best of our ability,
the claims we are able to discern from the assignments of error.
{¶7} Under the first assignment of error, Hasan appears to claim that there does
not exist sufficient evidence for his convictions of the traffic offenses. When reviewing
a challenge of the sufficiency of the evidence, an appellate court examines the evidence
admitted at trial and determines whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The pertinent
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.” Id.{¶8} Hasan claims the evidence is insufficient because the city did not offer any
physical evidence and its case consisted only of the police officer’s testimony. We note
that eyewitness testimony is a form of direct evidence. See State v. Evans, 4th Dist. No.
10CA1, 2012-Ohio-1562, ¶ 37. The city offered Officer Smith’s testimony that he
observed the vehicle driven by Hasan going through the red light. The officer also
testified that when he asked Hasan for his driver’s license, Hasan stated he did not have a
driver’s license. Regarding the seatbelt violation, the officer stated at
cross-examination that the citation for this offense was based “on the fact[ ] [Hasan was]
not wearing a seatbelt.” The officer’s testimony based on his personal observation of
the defendant’s conduct, if believed by the trier of fact, constituted sufficient evidence for
the three traffic offenses prohibited by Cleveland Codified Ordinances 413.03, 435.06,
and 437.27(B)(1). The first assignment of error is without merit.
{¶9} Under the second assignment of error, Hasan claims that he demanded a
jury trial, but was denied by the trial court, and that he never waived a jury trial.
{¶10} Crim.R. 23 governs a defendant’s right to a jury trial. Crim.R. 23(A)
states:
In serious offense cases the defendant before commencement of the
trial may knowingly, intelligently and voluntarily waive in writing his right
to trial by jury. Such waiver may also be made during trial with the approval
of the court and the consent of the prosecuting attorney. In petty offense
cases, where there is a right of jury trial, the defendant shall be tried by the
court unless he demands a jury trial. Such demand must be in writing and
filed with the clerk of court not less than ten days prior to the date set for
trial, or on or before the third day following receipt of notice of the date set
for trial, whichever is later. Failure to demand a jury trial as provided in this
subdivision is a complete waiver of the right thereto. (Emphasis added.)
{¶11} Crim.R. 2(C) defines a “serious offense” as any felony and misdemeanor for
which the penalty is confinement of more than six months. Crim.R. 2(D) defines a
“petty offense” as a “misdemeanor other than [a] serious offense.” Here, the offense of
refusing to display a driver’s license is a first degree misdemeanor, the maximum term of
incarceration for which is six months. Therefore, Hasan’s first degree misdemeanor
offense is a “petty offense.” A defendant charged with a “petty offense” has a right to
jury trial if the potential penalty included a term of confinement or a fine exceeding one
thousand dollars. R.C. 2945.17. Therefore, Hasan had a right to a jury trial, if
properly demanded under Crim.R. 23. The jury demand must be made in writing, and a
failure to do so constitutes a complete waiver of the right.
{¶12} Our review of the record does not reflect that Hasan made a proper jury
demand pursuant to Crim.R. 23. He alleges he made such a demand on February 9,
2012. A review of the docket reflects that, on that day, he filed a document titled
“AFFIDAVIT OF FACT/ WRIT OF DISCOVERY,” where he made a series of disjoined,
incomprehensible statements. Referring to the traffic ticket (No. 2157878) issued by the
officer, he stated, incongruously, “I am rebutting this fraudulent instrument (2157878),
which is a fraud, prima facie evidence, and a deliberate tort. A corporate policy, is not
the law of the Land and the issuer of this instrument (2157878) is violating Article 1,
Section 10 of the Constitution of the United States.” The only statement in the
document that referenced a jury trial is the following: “ If this Affidavit/Discovery is
ignored and the court proceeds with the trial, I’ll then exercise Traffic Rule 9(a) (Demand
Jury Trial), Civ.R. 38(a)(b), Crim.R. 22(a), Ohio Constitution, Article 1 Section 5 and the
United States Constitution, Seventh Amendment.”
{¶13} The February 9, 2012 document was styled as “an affidavit of fact” and
“writ of discovery,” not a demand for jury trial. Moreover, the request was stated
conditionally, rather than affirmatively. We, therefore, conclude that the record does
not reflect a definite demand for a jury trial as required by Crim.R. 23. The second
assignment of error is without merit.
{¶14} Hasan’s third assignment of error states “[c]ourt error by not having a
physical body as the injured party (Corpus delicti), with a verified complaint.” Hasan
fails to cite any law for his claim, and we are unable to discern any cogent argument
raised under this assignment. App.R. 16(7) requires “[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for review
and the reasons in support of the contentions, with citations to the authorities, statutes,
and parts of the record on which appellant relies.” Pursuant to App.R. 12(A)(2), we may
disregard an assignment of error if an appellant fails to cite to any legal authority in
support of an argument as required by App.R. 16(A)(7). See Musarra v. Cuyahoga Cty.
Auditor, 8th Dist. No. 98321, 2012-Ohio-3967, ¶ 12. Therefore, we summarily overrule
this assignment of error.
{¶15} The fourth assignment of error states that the trial court “made an arbitrary
decision on the testimony of a not creditable [sic] witness.” Hasan alleges the police
officer’s testimony was not credible and “evasive” in parts. “[T]he weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of the facts.”
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus. The trial court was free to believe or disbelieve all or any of the officer’s
testimony, and we will not substitute the trial court’s assessment of the witness’s
credibility. State v. Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10. This
assignment of error lacks merit.
{¶16} In the fifth assignment of error, Hasan claims the trial court did not have
jurisdiction to decide this matter. R.C. 1901.20 addresses subject matter jurisdiction for
municipal courts and provides that municipal courts have jurisdiction over traffic
offenses. See also State ex rel. Brady v. Howell, 49 Ohio St.2d 195, 360 N.E.2d 704(1977) (municipal court has jurisdiction to hear a case involving a traffic violation). This
assignment of error is without merit.
{¶17} Judgment affirmed.
It is ordered that appellee recover of 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 municipal
court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. 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.
______________________________________________
TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR