[Cite as E. Liverpool v. Boyd, 2018-Ohio-355.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

CITY OF EAST LIVERPOOL, 

 PLAINTIFF-APPELLEE, 

V. 

GERALD BOYD, 

 DEFENDANT-APPELLANT. 

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CASE NO. 16 CO 0032 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from East Liverpool 

Municipal Court of Columbiana County, 

Ohio 

Case No. 2016 CRB 00607 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Timothy J. McNicol 

105 South Market Street 

Lisbon, Ohio 44432 

For Defendant-Appellant Attorney Lynsey Lyle-Opalenik 

991 Main Street 

Wellsville, Ohio 43968 

JUDGES: 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Hon. Carol Ann Robb 

 

 

 Dated: January 26, 2018 
[Cite as E. Liverpool v. Boyd, 2018-Ohio-355.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Gerald Boyd, appeals the judgment of the East 

Liverpool Municipal Court convicting him on one count of public nuisance in violation 

of East Liverpool Housing Code Ordinance 1329.05(b), a misdemeanor of the 

second degree. 

{¶2} Appellant owns and operates Jerry’s Auto Body Shop in East Liverpool. 

Appellant utilizes a coal/wood burning furnace to heat his body shop and has done 

so for over thirty years. 

{¶3} On February 4, 2016, appellant was notified via letter by plaintiffappellee, the City of East Liverpool, that the furnace at his body shop was creating a 

nuisance in the neighborhood. The February 4, 2016 letter ordered appellant to 

cease using his furnace or to have repairs made to abate the nuisance to the 

satisfaction of the East Liverpool Fire Department Chief and/or the East Liverpool 

Planning Department. 

{¶4} After receiving the letter, appellant’s furnace was inspected by the 

assistant fire chief for the City of East Liverpool, David Edgell (Edgell). Edgell found 

no violations with appellant’s furnace. Appellant was therefore under the belief that 

his furnace was compliant with the East Liverpool Fire Department and made no 

repairs. However, the city charged appellant with a public nuisance violation for 

smoke emanating from his furnace. The matter proceeded to trial before the court. 

{¶5} At trial, the city called three witnesses: Gregg Stowers (Gregg), Norma 

Jane McMahon (Norma), and Craig Stowers (Craig). All three of the city’s witnesses 

live in the immediate vicinity of appellant’s body shop. The city’s witnesses moved to 

their respective residences after appellant’s business was already established and 

while he was using his furnace. The three witnesses for the city all testified to the 

smoke that was emanating from appellant’s furnace and all testified to the various 

inconveniences the smoke was causing them. 

{¶6} Appellant called two witnesses in his defense: Darren Machuga 

(Machuga) and Edgell. Machuga is a field technician and an environmental specialist 

with the Ohio Environmental Protection Agency (Ohio EPA). Machuga testified that 
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he inspected the furnace twice and found that it was not in violation of any EPA 

regulations. Edgell testified that he inspected appellant’s furnace on multiple 

occasions and found no problems or violations. 

{¶7} On October 14, 2016, the trial court returned a verdict of guilty and 

sentenced appellant to pay $229.00 in fines and court costs. Appellant requested a 

stay of his sentence pending the outcome of his appeal with the trial court which was 

granted. Appellant timely filed this appeal on November 10, 2016. Appellant raises 

two assignments of error. 

{¶8} Appellant’s first assignment of error states: 

 THE EVIDENCE PRESENTED BY THE CITY OF EAST 

LIVERPOOL WAS INSUFFICIENT AS A MATTER OF LAW. 

{¶9} Appellant argues that the evidence presented by the city was 

insufficient to sustain a conviction for two reasons. First, the person who sent 

appellant the letter claiming appellant’s furnace was a violation of the housing 

ordinance, William Cowen, was never called to testify. Appellant argues that this was 

a violation of his right to confront witnesses against him. Second, appellant argues 

that insufficient evidence for a conviction existed because the February 4, 2016 letter 

stated that his furnace needed to conform to the satisfaction of the East Liverpool 

Fire Department, which appellant contends it did. 

{¶10} Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the verdict. State v. Dickson, 7th Dist. No. 12 CO 50, 2013-

Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 

(1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally sufficient 

to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the 

relevant inquiry is whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements 

proven beyond a reasonable doubt. Id. citing State v. Goff, 82 Ohio St.3d 123, 138, 
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694 N.E.2d 916 (1998). When evaluating the sufficiency of the evidence to prove the 

elements, it must be remembered that circumstantial evidence has the same 

probative value as direct evidence. Id. citing State v. Jenks, 61 Ohio St.3d 259, 272-

273, 574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other 

grounds). 

{¶11} Appellant was convicted of violating East Liverpool Housing Code 

1329.05(b). This housing code section provides: “[f]uel burning, heat producing 

equipment shall be installed and maintained so that the emission or discharge into 

the atmosphere of smoke, dust, particles, odors, or other products of combustion will 

not create a nuisance or be detrimental to the health, comfort, safety or property of 

any other person.” Pursuant to East Liverpool Housing Code 1321.99, violations of 

1329.05(b) are misdemeanors of the second degree. 

{¶12} Addressing the city’s three witnesses individually, Gregg testified that 

his residence is approximately 30-50 feet from appellant’s body shop. (Tr. 5). Gregg 

further testified that appellant was operating a furnace that was causing a smoke 

issue in the neighborhood. (Tr. 6). Gregg also testified that he can smell the smoke 

while inside of his house. (Tr. 6). Gregg testified that the smell gets into his curtains 

and couches and causes him headaches. (Tr. 7). Finally, Gregg testified that one 

day, the smoke was so bad, he had to leave his home. (Tr. 8). 

{¶13} Norma testified that she lives next door to appellant’s body shop. (Tr. 

23). Norma testified that she has witnessed smoke and other particles coming from 

appellant’s chimney. (Tr. 24). As for the effects of the smoke, Norma testified that: it 

smells “horrible,” black soot accumulates in between her windows, she can smell it 

inside of her home, it gives her a sore throat, and she has two air purifiers running in 

her bedroom as a result of the smoke. (Tr. 24). Norma also testified that the smoke 

emanates from appellant’s furnace seven days a week. (Tr. 25). Finally, Norma 

testified that she contacted the fire department either three or four times regarding 

the smoke. (Tr. 26). 

{¶14} Craig testified that he lives “catty corner” from appellant’s business and 
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approximately 100 feet away. (Tr. 34). Craig has seen the smoke emanating from 

appellant’s chimney on multiple occasions. (Tr. 35). In addition to his home, Craig 

also owns houses adjacent to his home and has to regularly spray his various homes’ 

porches and windows to remove soot from the furnace. (Tr. 36). Additionally, Craig 

testified that he has to continually wash soot off of his truck. (Tr. 36). Finally, Craig 

testified that he does smell the smoke but not as bad as other homes that may be 

closer to appellant’s body shop. (Tr. 37). Craig went as far as to say that the smoke 

has even made his cat smell. (Tr. 37). 

{¶15} The testimony of the city’s witnesses established that smoke and 

particles were emanating from appellant’s furnace which was detrimental to the 

comfort or property of the city’s witnesses. 

{¶16} Regarding William Cowen, a review of the record reveals that he is the 

director of the East Liverpool Planning and Development Department. Cowen was 

the person who signed the affidavit complaint bringing this charge against appellant. 

But the fact that Cowen did not testify at appellant’s trial does not violate his right 

under the Confrontation Clause. The Confrontation Clause applies only to 

“witnesses,” meaning those who “bear testimony against the accused.” State v. Stahl, 

111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 15 citing Crawford v. 

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The February 4, 2016 

letter was never offered nor introduced as an exhibit at trial. Because Cowen did not 

bear any testimony against appellant, appellant’s right under the Confrontation 

Clause was not violated. 

{¶17} Addressing the potential compliance with the February 4, 2016 letter 

argument, the letter was not admitted into evidence at appellant’s trial. In a 

sufficiency challenge, the reviewing court considers evidence that was admitted at 

trial. State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80 

citing Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). As 

the city established all of the elements of the offense, appellant’s conviction was 

sufficient as a matter of law. 
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{¶18} Accordingly, appellant’s first assignment of error lacks merit and is 

overruled. 

{¶19} Appellant’s second assignment of error states: 

 THE VERDICT OF GUILTY AS TO APPELLANT FOR 

VIOLATING EAST LIVERPOOL HOUSING CODE ORDINANCE 

1329.05(B) AND SUBSEQUENTLY ASSESSING A CRIMINAL 

PENALTY AS DESIGNATED BY EAST LIVERPOOL ORDINANCE 

NUMBER 1321.99 WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

{¶20} Appellant argues that there is a sufficient amount of evidence in his 

favor and a lack of evidence from the city, which indicates that the trial court’s 

decision to convict him was against the manifest weight of the evidence. 

{¶21} In determining whether a verdict is against the manifest weight of the 

evidence, an appellate court must review the entire record, weigh the evidence and 

all reasonable inferences and determine whether, in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a manifest miscarriage of 

justice that the conviction must be reversed and a new trial ordered. Thompkins, 78 

Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater 

amount of credible evidence, offered in a trial, to support one side of the issue rather 

than the other.’ ” Id. (Emphasis sic.) In making its determination, a reviewing court is 

not required to view the evidence in a light most favorable to the prosecution but may 

consider and weigh all of the evidence produced at trial. Id. at 390.

{¶22} Thompkins addressed a manifest weight argument in the context of a 

jury trial. But the standard of review is equally applicable when reviewing a manifest 

weight challenge from a bench trial. State v. Layne, 7th Dist. No. 97 CA 172, 2000 

WL 246589, at *5 (Mar. 1, 2000). A reviewing court will not reverse a judgment as 

being against the manifest weight of the evidence in a bench trial where the trial court 

could reasonably conclude from substantial evidence that the state has proved the 
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offense beyond a reasonable doubt. State v. Hill, 7th Dist. No. 09-MA-202, 2011-

Ohio-6217, ¶ 49, citing State v. Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304 

(1988).

{¶23} Yet granting a new trial is only appropriate in extraordinary cases where 

the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness 

credibility, conflicting testimony, and evidence weight are primarily for the trier of the 

facts who sits in the best position to judge the weight of the evidence and the 

witnesses' credibility by observing their gestures, voice inflections, and 

demeanor. State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, 

citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 

10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, 

“[w]hen there exist two fairly reasonable views of the evidence or two conflicting 

versions of events, neither of which is unbelievable, it is not our province to choose 

which one we believe.” State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.

{¶24} Appellant points out several instances in which, he contends, it shows 

the trial court’s decision was against the manifest weight of the evidence. First, the 

district representative for the Division of Air Pollution Control of the Ohio EPA and an 

assistant fire chief for the East Liverpool Fire Department both testified that there 

were no issues with appellant’s furnace. Second, the assistant fire chief’s report 

indicated that the smoke was “never as bad as the caller [Norma] states” and that the 

assistant chief believed this to be a neighborhood dispute. Third, the city produced 

no expert witnesses to testify that appellant’s furnace was the proximate cause of any 

smoke, soot, and smell complained of by the city’s witnesses. Fourth, the city’s 

witnesses testified that there exists smoke/steam producing industries around the 

East Liverpool area. Finally, appellant argues that the testimony of the city’s 

witnesses was self-serving compared to his witnesses at trial. 

{¶25} As stated previously, Edgell testified that he had personally investigated 

appellant’s furnace on February 20, 2016, and found no problems and made no 
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recommendations about repairing or replacing the furnace. (Tr. 72-74). Additionally, 

Machuga testified that he investigated appellant’s furnace on February 9, 2016 and 

February 29, 2016, and found that appellant was only burning wood and coal and 

only witnessed heat waves coming out of appellant’s stack. (Tr. 51-53). 

{¶26} However, Edgell and Machuga’s testimony is limited to the few times 

they each inspected appellant’s business and furnace. The three witnesses for the 

city all testified that they live in close proximity to appellant and have lived there for 

several years. (Tr. 5, 23, 34-37). The three witnesses for the city also testified that, 

on numerous occasions, they saw smoke coming from appellant’s furnace, smelled 

smoke, and/or had to continually clean their property due to soot accumulation from 

the furnace. 

{¶27} Nevertheless, appellant asserts that the city’s lack of an expert witness 

to testify that appellant’s furnace was the proximate cause of the smoke smell and 

soot continues to show that the trial court’s verdict was against the manifest weight of 

the evidence. Appellant asserts that this point is even further displayed by the fact 

that city’s witnesses testified that the East Liverpool area is surrounded by 

businesses that all emit smoke. (Tr. 14, 44). 

{¶28} But all three of the city’s witnesses testified that they lived in the 

immediate vicinity of appellant’s body shop. (Tr. 5, 23, 34-37). Furthermore, all three 

of the city’s witnesses testified that they continually see smoke coming from 

appellant’s body shop and the various effects the smoke had on each of them. (Tr. 5-

6, 23-26, 34-37). The mere fact that there were businesses surrounding the East 

Liverpool area that were also producing smoke does not negate the testimony that 

appellant’s furnace was producing smoke and soot. There is also no evidence in the 

record as to how far these businesses are from the neighborhood at issue. 

{¶29} Finally, appellant asserts that the city’s witnesses’ credibility was 

hindered. Appellant argues that this is merely a neighborhood dispute and the 

witnesses’ testimony is self-serving. Regarding the neighborhood dispute, Edgell 

provided testimony that the reason for Norma calling the East Liverpool Fire 
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Department concerning appellant’s furnace was merely a “neighborhood dispute.” 

(Tr. 71, Exhibits B, C). However, Edgell did not provide any evidence as to why he 

believed it to be a neighborhood dispute. Edgell’s report regarding Norma’s February 

20, 2016 call to the East Liverpool Fire Department stated “I think this is a 

neighborhood dispute.” (Tr. 71, Exhibit C). It is also a reasonable inference that 

Norma continued to call the East Liverpool Fire Department because the smoke was 

a continuing problem. 

{¶30} Regarding the self-serving nature of all of the city’s witnesses’ 

testimony, to the extent that the furnace is causing these effects, the city’s witnesses 

would gain the benefit of not having smoke permeate through their neighborhood. 

But there is no evidence that the trial court did not consider the potential bias from 

the city’s three witnesses. Ultimately, appellant’s conviction was not against the 

manifest weight of the evidence. 

{¶31} Accordingly, appellant’s second assignment of error is without merit and 

overruled. 

{¶32} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

DeGenaro, J., concurs 

Robb, P.J., concurs