State v. Cooper

[Cite as State v. Cooper, 2016-Ohio-8048.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104099
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEWAYNE COOPER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-586732-A
BEFORE: Kilbane, P.J., Boyle, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 8, 2016
ATTORNEY FOR APPELLANT
John B. Gibbons
55 Public Square - Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Dewayne Cooper (“Cooper”), appeals from his
convictions and sentence for failing to have a license and permit for a solid waste facility,
open dumping, open burning, receiving stolen property, and possessing criminal tools.
For the reasons set forth below, we affirm.
{¶2} In July 2014, Cooper was charged in a six-count indictment. Count 1
charged him with failing to have licenses and permits for a solid waste facility. Count 2
charged him with open burning. Count 3 charged him with open dumping. Counts 4
and 5 charged him with receiving stolen property. Count 6 charged him with possessing
criminal tools.
{¶3} The matter proceeded to a bench trial, at which the following evidence was
adduced.
{¶4} In February 2014, Paul Kuffari (“Inspector Kuffari”), a building inspector
with the Cleveland Building and Housing Department, received a complaint about a
property located at 7810 Colfax Road in Cleveland, Ohio. It was later determined that
Cooper owned this property. Inspector Kuffari’s investigation of the complaint revealed
that the structure on the property was in “very bad shape.” He described the structure as
“a masonry building, one-story in height. Very dilapidated. Major part of the roof
missing.” Inspector Kuffari also stated that he observed several scrap vehicles, “plenty
of tires,” “settling tanks, wrecking and working on cars,” and a barrel with a fire burning
while on the property. He issued a combination of violation notices that condemned the
structure on the property. Inspector Kuffari further testified that Cooper did not have an
occupancy permit for the property. Consequently, in July 2014, he issued an illegal use
violation notice to Cooper “for illegally trying to establish auto wrecking yard, scrap
yard” and “the storage of the tires.”
{¶5} Cooper appealed the violation notice and was given three months to submit
plans and an application for the proper permits. Cooper never followed through with the
application. Once the three months lapsed, a summons was issued through housing court
for his failure to remedy the violation notices.
{¶6} Inspector Kuffari testified that he did not issue a housing court citation to
Cooper for the open burning. He further testified, however, that the focus of his
investigation was the “building structure and condemnation.”
{¶7} Cleveland Police Sergeant Andrew Ezzo (“Sergeant Ezzo”) testified that he is
the officer in charge of the environmental crimes task force, which investigates and
prosecutes environmental crimes within Cuyahoga County. On April 28, 2014, Sergeant
Ezzo responded to a call at an old auto repair shop at the intersection of East 79th Street
and Union Avenue in Cleveland. On his way back to the office, he observed a fire
through a fence surrounding a junkyard located at 7810 Colfax Road in Cleveland. He
also observed a vehicle turned upside down on its roof, as well as, a building with a
caved-in roof, a big excavator, and a big dumpster, which was filled with scrap metal and
car parts. Sergeant Ezzo then called for assistance because he observed several males on
the property.
{¶8} Once Sergeant Ezzo entered the property, he asked one of the males for the
owner and was introduced to Cooper. Sergeant Ezzo inquired about the property and the
fire. Cooper stated “he was just burning things to get rid of them.” Sergeant Ezzo
noticed that the fire originated from a 55-gallon drum with wood debris burning inside of
it. Cooper also stated the property “was a junkyard and like a light auto repair shop.”
He asked Cooper to put out the fire. The fire continued to burn, so he called the fire
department to extinguish the fire.
{¶9} While on the property, Sergeant Ezzo observed over 600 improperly stored
tires. Sergeant Ezzo testified that junkyards can only have up to 100 tires on the property
at any given time. The tires were not stacked properly, nor stored in a manner to prevent
them from becoming wet. In addition, the building on the premises was dilapidated.
When securing the property, the responding officers noticed a pile of scrap metal
containing car parts with VIN numbers. It was later determined these car parts came
from vehicles that were reported stolen.
{¶10} On cross-examination, Sergeant Ezzo testified that he was not aware
whether anyone from the city health department, building department, environmental
department, or the Ohio Environmental Protection Agency (“EPA”) analyzed the material
on Cooper’s property. He further testified that he did not see the excavator in operation
while he was on the property. Sergeant Ezzo further testified that the police department
“took the excavator [he observed on Cooper’s property] for possession of criminal tools.”
He stated that the excavator was directly next to the dumpster and the pile of scrap that
was the stolen car. In his experience, he has seen excavators used to take apart cars.
{¶11} Jennifer Carlin (“Inspector Carlin”), a solid waste inspector with the Ohio
EPA, testified that she investigates complaints and regulates solid waste facilities in
Cleveland. She testified that there is only one legally licensed solid waste facility or
landfill in Cuyahoga County, operating out of the city of Brooklyn. Cooper’s property is
not registered as a licensed facility. She testified that “solid waste” is “any unwanted
material resulting from commercial, industrial, agricultural, community operations. You
know, an example would be tires, appliances, car parts, stuff along those lines.”
{¶12} According to Inspector Carlin, in order to legally operate a facility as a
landfill, one must first obtain a license. The Ohio Administrative Code outlines the
criteria that need to be met in order to operate a legal facility. She described illegal use
of the facility as the property owner dumping “any unwanted materials at a site, either
open dump it where it’s visible on the ground or they can bury it on the property as well.”
She did not inspect Cooper’s property. The Ohio EPA and the health department have
jurisdiction to inspect solid waste facilities.
{¶13} After the conclusion of the state’s case, Cooper moved for acquittal under
Crim.R. 29 on all counts. The trial court denied his motion and found Cooper guilty of
all counts as charged in the indictment. Cooper was sentenced to an aggregate two-year
community control sanctions in April 2015. The trial court found Cooper indigent, but
ordered him to pay the costs of prosecution, supervision fees, and a $5,000 fine. The
court also ordered that the soil be tested to determine any hazardous conditions, with the
court being advised of the results; Cooper keep the property free from garbage and debris;
and Cooper not use the property as a junkyard or landfill. Cooper then appealed to this
court in State v. Cooper, 8th Dist. Cuyahoga No. 103029. This appeal was dismissed for
lack of a final appealable order because the court did not impose a sentence on every
count of which it found Cooper guilty. Subsequently, Cooper was resentenced in
January 2016.
{¶14} At the resentencing hearing, the trial court sentenced Cooper to two years in
prison on Count 1 and a $10,000 fine, with $5,000 of the fine suspended, two years in
prison on each of Counts 2 and 3, and six months in prison on each of Counts 4, 5, and 6.
The court ordered that all counts be served concurrent to each other. The trial court
suspended Cooper’s prison sentence and ordered that he serve a two-year period of
community control sanctions. The court further ordered that an environmental
examination of the underlying soil of the property be completed, with the court being
advised of the results; the property be kept free from garbage and debris; and the property
not be used a junkyard or landfill. The court also ordered that Cooper pay community
control supervision fees as well as court costs.
{¶15} Cooper now appeals, raising the following eight assignments of error for
review, which shall be discussed together where appropriate.
Assignment of Error One
The trial court erred by failing to grant [Cooper’s] motion for judgment of
acquittal pursuant to Rule 29(A) Ohio Rules of Criminal Procedure when
the state failed to establish sufficient evidence of the elements of the
distinct environmental crime of licenses and permits for solid waste facility
and failed to establish compliance with the specific terms of the statute and
compliance with the related administrative procedures and requirements
which are elements of the offense of the unique compliance statute.
Assignment of Error Two
The trial court erred by failing to grant [Cooper’s] motion for judgment of
acquittal pursuant to Rule 29(A) Ohio Rules of Criminal Procedure when
the state failed to establish sufficient evidence of the elements of this
distinct environmental crime of “open burning” and failed to establish
compliance with the related administrative procedures and requirements
which are elements of the offenses of this unique compliance statute.
Assignment of Error Three
The trial court erred by failing to grant [Cooper’s] motion for judgment of
Acquittal pursuant to Rule 29(A) Ohio Rules of Criminal Procedure when
the state failed to establish sufficient evidence of the elements of this
distinct environmental crime of open dumping and failed to establish
compliance with the related administrative procedure and requirement
which are elements of the offense of this unique compliance statute.
Assignment of Error Four
The trial court erred by failing to grant [Cooper’s] motion for judgment of
acquittal pursuant to Rule 29(A), Ohio Rules of Criminal Procedure as the
state of Ohio failed to introduce sufficient evidence to support his
conviction for the offense of possession of criminal tools.
Assignment of Error Five
The trial court erred in issuing a vague, over-broad order that as a condition
of his community control sanction, that [Cooper] was to conduct an
environmental examination of the underlying soil of his property, pay for
said environmental testing, and accomplish a clean up or remediation of the
property when there was absolutely no evidence presented by the state to
establish any contamination or need for environmental testing and clean up.
Assignment of Error Six
The trial court erred by imposing an excessive $5,000.00 fine upon an
indigent defendant, [Cooper], when there was no evidentiary basis showing
need for the fine and the court made no determination regarding Cooper’s
ability to pay the fine.
Assignment of Error Seven
The trial court erred by determining as part of [Cooper’s] sentence that he
was ordered to pay the costs associated with prosecution.
Assignment of Error Eight
[Cooper’s convictions] for the offenses of operation of unlicensed solid
waste facility, open burning[,] and open dumping are contrary to the
manifest weight of the evidence.
Motion for Acquittal
{¶16} In the first, second, third, and fourth assignments of error, Cooper
challenges the trial court’s denial of his Crim.R. 29 motion for acquittal on the following
convictions: failing to have a license and permit for a solid waste facility, open
dumping, open burning, and possession of criminal tools.
{¶17} Under Crim.R. 29(A), a trial court “shall not order an entry 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, 55 Ohio St. 2d 261, 381 N.E.2d 184 (1978), syllabus. A motion for judgment
of acquittal under Crim.R. 29 should only be granted where reasonable minds could not
fail to find reasonable doubt. State v. Apanovitch, 33 Ohio St. 3d 19, 23, 514 N.E.2d 394
(1987), citing Bridgeman.
{¶18} “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), 8th Dist. [Cuyahoga]
No. 65356, 1994 Ohio App. LEXIS 2291.” State v. Turner, 8th Dist. Cuyahoga No.
88489, 2007-Ohio-5449, ¶ 72. The Ohio Supreme Court in State v. Diar, 120 Ohio St. 3d
460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of
the evidence as follows:
Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St. 3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
In reviewing such a challenge, “[t]he relevant 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.” State v. Jenks (1991), 61 Ohio St. 3d
259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560.
{¶19} In Count 1, Cooper was convicted of failing to have a license and permit for
solid waste facility in violation of R.C. 3734.05(A), which states in pertinent part:
(1) Except as provided in divisions (A)(4), (8), and (9) of this section, no
person shall operate or maintain a solid waste facility without a license
issued under this division by the board of health of the health district in
which the facility is located or by the director of environmental protection
when the health district in which the facility is located is not on the
approved list under section [R.C. 3734.08].1
{¶20} At the time of Cooper’s convictions, “solid waste” was defined in R.C.
3734.01(E) to include “such unwanted residual solid or semisolid material as results from
industrial, commercial, agricultural, and community operations, * * * and * * * is not
limited to, garbage, scrap tires, combustible and noncombustible material, street dirt, and
debris.” A “facility”was defined under R.C. 3734.01(N) to include
any site, location, tract of land, installation, or building used for
incineration, composting, sanitary landfilling, or other methods of disposal
of solid wastes or, if the solid wastes consist of scrap tires, for the
collection, storage, or processing of the solid wastes; for the transfer of
solid wastes; for the treatment of infectious wastes; or for the storage,
treatment, or disposal of hazardous waste.
{¶21} Cooper maintains that his conviction must fail because no inspection was
completed by the EPA or its representative to determine if unlawful solid waste was on
the property. As a result, Cooper maintains that he did not operate a solid waste facility
and he was not required to have a license. We disagree.
1The exceptions referenced in R.C. 3734.05(A) do not apply to Cooper.
{¶22} In the instant case, testimony from Sergeant Ezzo and Inspector Kuffari
described Cooper’s property as having barrels with fires emitting from them, scrap
automobiles, settling tanks, the wrecking of cars on the property, scrap metal containing
automobile parts from stolen automobiles, a dumpster containing scrap metal, various car
parts, and approximately 600 improperly stored tires. Sergeant Ezzo testified that
Cooper admitted “he was just burning things to get rid of them” and that his property
“was a junkyard.” Inspector Kuffari testified that Cooper had no permits for any kind of
auto or scrap salvage usage. In addition, Inspector Carlin testified at trial that there is
only one legal landfill facility in Cuyahoga County, which is located in Brooklyn, Ohio.
{¶23} Based on the foregoing, we conclude any rational trier of fact could have
found that Cooper operated or maintained a solid waste facility without a license.
Therefore, it was not error for the trial court to deny his motion for acquittal on this
charge.
{¶24} In Counts 2 and 3, Cooper was convicted of open burning and open
dumping in violation of R.C. 3734.03, which provides in pertinent part:
[n]o person shall dispose of solid wastes by open burning or open dumping,
except as authorized by the director of environmental protection in rules
adopted in accordance with division (V) of section 3734.01, section
3734.02, or sections 3734.70 to 3734.73 of the Revised Code[.]2
“Open burning” is defined as
the burning of solid wastes in an open area or burning of solid wastes in a
type of chamber or vessel that is not approved or authorized in rules
2The exceptions referenced in R.C. 3734.03 do not apply to Cooper.
adopted by the director under [R.C. 3734.02] or, if the solid wastes consist
of scrap tires, in rules adopted under division (V) of this section or section
[R.C. 3734.73.]
R.C. 3734.01(H). “Open dumping” is defined as
the depositing of solid wastes * * * onto the surface of the ground at a site
that is not licensed as a solid waste facility under section [R.C. 3734.05] or,
if the solid wastes consist of scrap tires, as a scrap tire collection, storage,
monocell, monofill, or recovery facility under section [R.C. 3734.81]; the
depositing of solid wastes that consist of scrap tires onto the surface of the
ground at a site or in a manner not specifically identified in divisions [R.C.
3734.85(C)(2) to (5), (7), or (10).]
R.C. 3734.01(I).
{¶25} Here, Sergeant Ezzo testified that while on Cooper’s property, he observed a
55-gallon drum that had painted wood debris burning inside of it, which appeared to be
from a painted garage door. In response to Sergeant Ezzo’s inquiry about the fire,
Cooper stated “he was just burning things to get rid of them.” Sergeant Ezzo also
testified that despite the fact that junkyards can only have up to 100 tires at any given
time, he observed over 600 improperly stored tires on the property. These tires were not
properly stacked, nor stored in a manner to prevent them from becoming wet. Inspector
Kuffari also observed a barrel with a fire burning in it and improperly stored tires when
he visited Cooper’s property
{¶26} Based on the foregoing, we conclude that any rational trier of fact could
have found that Cooper illegally burned wood debris and improperly stored tires in direct
contravention of R.C. 3734.03. Therefore, it was not error for the trial court to deny his
motion for acquittal on this charge.
{¶27} In Count 6, Cooper was convicted of possessing criminal tools in violation
of R.C. 2923.24(A), which provides that “[n]o person shall possess or have under the
person’s control any substance, device, instrument, or article, with purpose to use it
criminally.”
{¶28} Cooper argues there was no evidence linking the excavator to any criminal
conduct. However, Sergeant Ezzo testified that he noticed dismantled cars on Cooper’s
property. There was a Volvo and a gold car in pieces. The excavator was directly next
to the dumpster and a pile of scrap that was determined to be from a stolen car. Sergeant
Ezzo testified, that in his experience, he has seen excavators used to dismantle cars.
Based on this testimony, a rational trier of fact could conclude the excavator was used
criminally to dismantle the stolen vehicles found on Cooper’s property. Therefore, it was
not error for the trial court to deny his motion for acquittal on this charge.
{¶29} Accordingly, the first, second, third, and fourth assignments of error are
overruled.
Sentence — Community Control Sanction
{¶30} In the fifth assignment of error, Cooper argues the trial court erred when it
ordered him to pay for the testing of the soil on the property and pay for the cost of
remediation. He contends that there is no evidence that the soil is contaminated;
therefore, he cannot be ordered to pay a financial sanction not supported by the evidence.
{¶31} We review the trial court’s imposition of community control sanctions for
an abuse of discretion. State v. Tally, 103 Ohio St. 3d 177, 2004-Ohio-4888, 814 N.E.2d
1201, ¶ 10. “The term ‘abuse of discretion’ connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219,
450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St. 2d 151, 404 N.E.2d 144
(1980).
{¶32} R.C. 2929.15(A) authorizes a court to impose financial sanctions, as well as
any other conditions of release under a community control sanction that the court
considers appropriate. Tally at ¶ 10. In Tally, the Ohio Supreme Court reiterated the
test it set forth in State v. Jones, 49 Ohio St. 3d 51, 550 N.E.2d 469 (1990), determining
the reasonableness of community control conditions. Under this test, courts must
consider whether the condition
“(1) is reasonably related to rehabilitating the offender, (2) has some
relationship to the crime of which the offender was convicted, and (3)
relates to conduct which is criminal or reasonably related to future
criminality and serves the statutory ends of probation.”3
Tally at ¶ 12, quoting Jones at 53. We recognize the community control conditions
“‘cannot be overly broad so as to unnecessarily impinge upon the [offender’s] liberty.”’
Id. at ¶ 13, quoting Jones at 52.
{¶33} In the instant case, Cooper was convicted of failing to have a license and
permit for a solid waste facility, open dumping, and open burning. Evidence presented
3 In Tally, the Ohio Supreme Court clarified that “[b]ecause community
control is the functional equivalent of probation, [prong (3)] applies with equal force
to community-control sanctions.” Id. at ¶16.
during sentencing indicated that there were tires and scrap metal buried beneath the
property in addition to the debris discovered on the surface of the property. Cooper also
advised the court that his property was pending a sale and the buyer would be paying for
the clean up costs.
{¶34} The court imposed community sanctions with the following conditions:4
THE COURT: [A]s long as the property is in your name — and at this time
I want to make sure that whomever, if it’s you or [the buyer], I want to
make sure there is nothing hazardous underneath that soil. If that’s the
condition of [the buyer] before they buy it, I want the results brought to the
probation department to verify that there are no problems there.
[COOPER]: No problem.
THE COURT: I want to keep continued compliance. I don’t want to see
any fire burning or tire storage there.
***
I want [the property] to be maintained until it’s taken over and the sale is
final.
{¶35} Considering that each of these conditions had some relationship to the
crimes committed and serves the statutory ends of community control and the court did
not impose vague or overbroad conditions, we conclude that the court did not abuse its
discretion when imposing community control sanctions.
{¶36} Therefore, the fifth assignment of error is overruled.
4The trial court imposed the same community control conditions at both the
initial sentencing and the resentencing hearing.
Sentence — Fine
{¶37} In the sixth assignment of error, Cooper argues the court erred and abused
its discretion by imposing a discretionary fine of $5,000. We note, however, that R.C.
3734.99 requires the imposition of a mandatory fine for violations of R.C. 3734.03 and
R.C. 3734.05 in the amount of “at least ten thousand dollars, but not more than
twenty-five thousand dollars[.]”
{¶38} At the resentencing hearing, Cooper stated to the trial court that he is
indigent. He further stated that, “I’ve been looking for employment. I’ve been paying
on my fines and no problems. I’m staying out of trouble.” While Cooper indicated that
he is indigent, he also indicated that he has been paying his own fines without any
problems and submitted paid clean up receipts. The court imposed a mandatory fine of
$10,000, but suspended $5,000 of the fine. In the absence of any evidence that Cooper
was both indigent and unable to pay, we cannot say the trial court erred in imposing the
fine.
{¶39} Accordingly, the sixth assignment of error is overruled.
Sentence — Costs
{¶40} In the seventh assignment of error, Cooper argues the trial court erred when
it ordered him to pay the costs associated with the prosecution of his case.
{¶41} In State v. White, 103 Ohio St. 3d 580, 2004-Ohio-5989, 871 N.E.2d 393, the
Ohio Supreme Court stated that “‘[i]n all criminal cases * * * the judge or magistrate
shall include in the sentence the costs of prosecution and render
a judgment against the defendant for such costs.”’ Id. at ¶ 5, quoting
R.C. 2947.23(A)(1). The court further stated that “R.C. 2947.23 does not prohibit a
court from assessing costs against an indigent defendant; rather it requires a court to
assess costs against all convicted defendants.” (Emphasis sic.) White at ¶ 8.
Therefore, a “defendant’s financial status is irrelevant to the imposition of court costs.”
State v. Clevenger, 114 Ohio St. 3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 3.
{¶42} In order to waive court costs, an indigent defendant must move the court
during the sentencing hearing. State v. Threatt, 108 Ohio St. 3d 277, 2006-Ohio-905, 843
N.E.2d 164, ¶ 23. The issue is then preserved for appeal and will be reviewed under an
abuse of discretion standard. Id. Here, Cooper objected to the imposition of
prosecution costs, but did not specifically move the court to waive the costs. Cooper
indicated to the court that he has been paying his own fines without any problems and
submitted receipts he had paid to clean up his property. Based on the foregoing, we
decline to find the court abused its discretion.
{¶43} Therefore, the seventh assignment of error is overruled.
Administrative Compliance and Manifest Weight of the Evidence
{¶44} Cooper argues that the state of Ohio (“State”) failed to comply with the
administrative provisions, which are interwoven with the statutory provisions, to establish
the elements of the offenses charged. This argument is discussed prior to Cooper’s
assigned errors and in the eighth assignment of error, in which he argues that his
convictions for failing to have a license and permit for a solid waste facility, open
dumping, and open burning are against the manifest weight of the evidence.
{¶45} A manifest weight challenge questions whether the prosecution met its
burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598,
¶ 13, citing Thompkins, 78 Ohio St. 3d at 390, 1997-Ohio-52, 678 N.E.2d 541. The Ohio
Supreme Court in State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, stated:
[T]he reviewing court asks whose evidence is more persuasive — the
state’s or the defendants? * * * “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony.” [Thompkins
at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S. Ct. 2211, 72
L. Ed. 2d 652.
{¶46} Cooper claims the “trial court lost its way” because the court did not
comprehend that “these environmental crimes are not Chapter 29 offenses.” He contends
that, prior to bringing criminal charges, the state had to comply with the Ohio
Administrative Code and involve the Ohio EPA.
{¶47} When establishing the material elements of a criminal violation under R.C.
Chapter 3734, we note that the provisions of the Ohio Administrative Code are not law,
but merely supplements to the Revised Code. N. Ohioans Protecting the Environment v.
Shank, 52 Ohio App. 3d 41, 43, 557 N.E.2d 126 (10th Dist.1988). In the instant case,
Cooper was charged with the following environmental violations, which are unclassified
felonies: failing to have a license and permit for a solid waste facility in violation of
R.C. 3734.05(A) and open burning and open dumping, both in violation of R.C. 3734.03.
While both statutes reference the Ohio EPA, neither of these statutes require the state, in
this instance, to first pursue remedies through the Ohio Administrative Code as Cooper
contends. Indeed, “[t]he authority of the Environmental Protection Agency to license,
supervise, inspect, and regulate hazardous waste facilities does not preclude
municipalities from enacting police power ordinances[,] which do not conflict with that
authority.” Fondessy Ent., Inc. v. Oregon, 23 Ohio St. 3d 213, 492 N.E.2d 797 (1986), at
paragraph four of the syllabus.
{¶48} Furthermore, R.C. 3734.10 provides the state with the power to criminally
prosecute “any person who has violated, is violating, or is threatening to violate any
section of this chapter[.]” Thus, the state was within its authority to prosecute this case.
See State v. Hilleary, 2d Dist. Montgomery No. 26426, 2015-Ohio-2782 (defendant’s
open dumping conviction was affirmed on appeal where the evidence demonstrated that
an environmental enforcement officer investigated a complaint concerning scrap tires and
the state brought open dumping charges against defendant in violation of R.C. 3734.03,
without the EPA’s involvement.)
{¶49} Accordingly, the eighth assignment of error is overruled.
{¶50} Judgment is 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR