Lakewood v. Calanni

[Cite as Lakewood v. Calanni, 2011-Ohio-3465.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95610
CITY OF LAKEWOOD
PLAINTIFF-APPELLEE
vs.
CHARLES CALANNI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Lakewood Municipal Court
Case No. 2010-CRB-00684
BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 14, 2011
ATTORNEYS FOR APPELLANT
Timothy G. Sweeney
13363 Madison Avenue
Lakewood, Ohio 44107
Amy E. Stack
Kurt & Vermilya Law, Inc.
30432 Euclid Avenue
Suite 101
Wickliffe, Ohio 44092
ATTORNEYS FOR APPELLEE
Richard A. Neff
Chief Prosecutor
BY: Pamela L. Roessner
Assistant Prosecutor
City of Lakewood
12650 Detroit Avenue
Lakewood, Ohio 44107
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Charles Calanni, appeals from his conviction in the
Lakewood Municipal Court for failure to comply with a notice of violation
pursuant to Lakewood Municipal Ordinances (“L.M.O.”) 1306.99, which was
based on an earlier violation of L.M.O. 1161.03(j)(3). Appellant claims the
trial court improperly denied him the opportunity to present evidence
alleging disparate enforcement of the ordinance and that the city of Lakewood
(“Lakewood”) failed to adduce sufficient evidence of all elements of the
charged crime. After a thorough review of the record and law, we affirm
appellant’s conviction.
{¶ 2} On April 15, 2010, Lakewood Commercial Building Inspector
Kevin Kelley was investigating reports of graffiti on Madison Avenue in
Lakewood, Ohio. After investigating the graffiti complaints, Inspector Kelley
drove down Madison Avenue looking for apparent code violations. At
appellant’s auto repair business on Madison Avenue, Inspector Kelley
observed a full parking lot, with vehicles spilling out onto the public sidewalk,
and two individuals doing repair work on a van parked on the public
sidewalk. The two individuals had placed a sawhorse, or construction horse,
supporting a windshield on the sidewalk next to the van further impeding
pedestrian traffic. Inspector Kelley photographed the two individuals
repairing the windshield of the vehicle in front of the business and reported
the activity to his supervisor.
{¶ 3} Lakewood’s records indicate that appellant had been issued a
prior notice of violation of L.M.O. 1161.03(j)(3)1 on May 7, 1998 for doing
repair work on vehicles other than inside the structure located on the
1 This ordinance states: “In a C2 Retail District or C3 General Business
District, a motor vehicle repair/body shop may be permitted as a conditionally
permitted use provided that * * * (3) [a]ll activities, including cleaning, washing,
and drying operations shall take place inside the principal structure[.]”
property. Lakewood issued a citation for failing to comply with this earlier
notice.
{¶ 4} Trial was held on July 23, 2010, and Lakewood presented the
testimony of Kelley to establish the violation of the prior notice and that the
business was open and operating at the time of the incident because the
garage door was open and it was during the normal operating hours of the
business. Appellant attempted to introduce photographs of other activities
in the area by other business owners to show that he had been selectively
cited for violations of L.M.O. 1161.03(j)(3) when others had not. However,
the trial court ruled that such a constitutional claim must be raised in a
motion prior to trial, and the trial court did not allow appellant to question
Inspector Kelley regarding the photos.
{¶ 5} At the close of Lakewood’s case, appellant moved for dismissal
arguing that Lakewood had not shown that his business was located in a C2
retail or C3 general business zoned district, a requirement for citation under
L.M.O. 1161.03(j). This motion was overruled based on Lakewood’s
argument that appellant was cited for violating L.M.O. 1306.99, failure to
comply with a prior notice, and not L.M.O. 1161.03(j).
{¶ 6} Appellant also testified and denied knowing the individuals in the
photographs Kelley had taken or being present at the time the photos were
taken. Appellant claimed the individuals did not work for him and that they
were on his property doing repairs to a van without his knowledge or
permission.
{¶ 7} The trial court found appellant guilty and imposed a fine of $500,
one year of probation, and an additional $500 fine to be held in abeyance
should future violations occur. Appellant then moved for a stay of execution
of sentence and filed the instant appeal.
Law and Analysis
Failure to Raise Selective Prosecution Prior to Trial
{¶ 8} Appellant first argues that “[t]he trial court erred in barring
[him] from introducing evidence of equal protection violations.”
{¶ 9} It is well established that pursuant to Evid.R. 104, the
introduction of evidence at trial falls within the sound discretion of the trial
court. State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026; State v.
Sibert (1994), 98 Ohio App.3d 412, 648 N.E.2d 861. Pursuant to Crim.R.
12(C), certain defenses must be raised prior to trial or they are considered
waived. This rule states, “[p]rior to trial, any party may raise by motion any
defense, objection, evidentiary issue, or request that is capable of
determination without the trial of the general issue.”
{¶ 10} Crim.R. 12(H) makes clear that “[f]ailure by the defendant to
raise defenses or objections * * * shall constitute waiver of the defenses or
objections, but the court for good cause shown may grant relief from the
waiver.” See, also, Cleveland v. GSX Chem. Svcs. of Ohio, Inc. (May 7, 1992),
Cuyahoga App. No. 60512.
{¶ 11} Citing Cleveland v. Peppers (July 17, 1986), Cuyahoga App. Nos.
50538, 50539, and 50540, the trial court ruled that appellant must present
his selective prosecution challenge in a pretrial motion and because he did
not, it was waived. While that case does not stand for that proposition,2
Pepper Pike v. Dantzig, Cuyahoga App. No. 85287, 2005-Ohio-3486, does. In
Dantzig, this court held that “[a] defense of selective prosecution must be
raised in a pretrial motion.” Id. at ¶15, citing GSX Chem., supra, citing
United States v. Jarret (C.A.7, 1983), 705 F.2d 198. Therefore, the trial court
was correct in so holding.
{¶ 12} Because appellant failed to raise the issue of selective prosecution
in a timely pretrial motion, the trial court could limit the introduction of
evidence on this issue at its discretion.3
{¶ 13} Further, the evidence appellant wished to introduce would not
have carried the substantial burden of showing unequal protection. “‘To
support a claim of selective prosecution, “a defendant bears the heavy burden
2 This case involves a motion made prior to trial, but does not address the
situation here or state that a motion must be made prior to trial.
3 We note that the trial court did not completely exclude arguments
regarding appellant’s constitutional claims, but only excluded the introduction of
photographs appellant caused to be taken of similar instances of conduct for which
he was being prosecuted.
of establishing, at least prima facie, (1) that, while others similarly situated
have not generally been proceeded against because of conduct of the type
forming the basis of the charge against him, he has been singled out for
prosecution, and (2) that the government’s discriminatory selection of him for
prosecution has been invidious or in bad faith, i.e., based upon such
impermissible considerations as race, religion, or the desire to prevent his
exercise of constitutional rights.” State v. Flynt (1980), 63 Ohio St.2d 132,
134, 407 N.E.2d 15, quoting United States v. Berrios (C.A.2, 1974), 501 F.2d
1207, 1211.’” Dantzig at ¶18, quoting State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166, ¶44.
{¶ 14} Appellant was attempting to introduce photographs taken on his
behalf as evidence showing similar acts by others for which he was being
prosecuted. This no more demonstrates unequal application of the law than
photos of other motorists speeding in a case involving a speeding citation.
This would not help appellant show “intentional and purposeful
discrimination.” State v. Freeman (1985), 20 Ohio St.3d 55, 58, 485 N.E.2d
1043. This is so because the “‘burden of showing discriminatory enforcement
* * * is not satisfied by a mere showing that others similarly situated have
not been prosecuted.’” Cleveland v. Whitner, 119 Ohio Misc.2d 100,
2002-Ohio-4220, 774 N.E.2d 788, ¶18, quoting Elsaesser v. Hamilton Bd. of
Zoning Appeals (1990), 61 Ohio App.3d 641, 648-649, 573 N.E.2d 733.
Without evidence that Lakewood building inspectors ignored or refused to
issue notices of violation for similar conduct, appellant could not meet his
substantial burden of demonstrating unequal application of the law in
question.4 The trial court allowed appellant to explore issues of vagueness
and inquire into Inspector Kelley’s familiarity with citations issued for
violations of L.M.O. 1161.03. The only evidence appellant was not allowed to
introduce was the photographs, which would not be sufficient to support
appellant’s challenge.
{¶ 15} Accordingly, appellant’s first assignment of error is overruled.
4 Appellant did attempt to subpoena Inspector Kelley, requiring him to bring
records of all similar citations issued by Lakewood while Kelley has been employed
by Lakewood, but appellant did not file the subpoena duces tecum until 5:00 p.m.
the day before trial.
Motion for Acquittal
{¶ 16} Appellant next argues that “[t]he trial court erred in failing to
grant [his] Criminal Rule 29 motion for acquittal.”
{¶ 17} Under Crim.R. 29, a trial court “shall not order an entry of
judgment of acquittal if the evidence is such that reasonable minds can reach
different conclusions as to whether each material element of a crime has been
proved beyond a reasonable doubt.” State v. Bridgeman (1978), 55 Ohio
St.2d 261, 381 N.E.2d 184, syllabus. “A motion for judgment of acquittal
under Crim.R. 29(A) should be granted only where reasonable minds could
not fail to find reasonable doubt.” State v. Apanovitch (1987), 33 Ohio St.3d
19, 23, 514 N.E.2d 394.
{¶ 18} Thus, the test an appellate court must apply in reviewing a
challenge based on a denial of a motion for acquittal is the same as a
challenge based on the sufficiency of the evidence to support a conviction.
See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356. In State v. Jenks
(1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, the Ohio Supreme Court set
forth the test an appellate court should apply when reviewing the sufficiency
of the evidence in support of a conviction:
{¶ 19} “[T]he relevant inquiry on appeal is whether any reasonable trier
of fact could have found the defendant guilty beyond a reasonable doubt. In
other words, an appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt.
State v. Eley [(1978), 56 Ohio St.2d 169, 383 N.E.2d 132].” See, also,
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 20} Appellant argues that Lakewood failed to introduce evidence that
L.M.O. 1161.03(j)(3) applied to him. However, he was prosecuted for a
violation of L.M.O. 1306.99, which does not require evidence of the particular
zoning of appellant’s business. This ordinance states, “[w]hoever * * *
refuses, neglects, or fails to comply with a notice requiring the abatement or
removal of a violation or requiring compliance with any provisions of this
Code or other applicable Codes or any rule or regulation hereunder within the
time limit set forth in such notice, or maintains a use or occupancy prohibited
by this Code * * * shall be guilty of a misdemeanor * * *.” Appellant did not
challenge the notice of violation issued in 1998 or various other citations he
received for the same offense. A challenge to the notice of violation is the
proper forum to require Lakewood to demonstrate that L.M.O. 1161.03(j)(3)
applies to appellant.
{¶ 21} Lakewood presented sufficient evidence, including the prior
notice of violation letter, a history of interactions between Lakewood and
appellant for similar violations including explanation of work that was and
was not allowed to be performed outside of a structure, and photographs
showing that work was being done on appellant’s property while the business
was open and operating in violation of the prior notice. This constitutes
sufficient evidence of a violation of L.M.O. 1306.99.
{¶ 22} Accordingly, appellant’s second assignment of error is overruled.
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
Lakewood 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.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR