[Cite as State v. Workman, 2014-Ohio-258.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MERCER COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 10-13-13 

 v. 

TIMOTHY SCOTT WORKMAN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Celina Municipal Court 

Trial Court No. 13-CRB-00311 

Judgment Reversed and Cause Remanded 

Date of Decision: January 27, 2014 

 

APPEARANCES: 

 

Quentin M. Derryberry, II for Appellant 

Andrew J. Hinders for Appellee 
Case No. 10-13-13 

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SHAW, J. 

{¶1} Defendant-appellant, Timothy S. Workman (“Workman”), appeals the 

June 5, 2013 judgment of the Celina Municipal Court finding him guilty of 

violating the Franklin Township Zoning Code. No fines were imposed as a result 

of the trial court’s ruling. However, the trial court ordered Workman to pay court 

costs of $165.75. 

{¶2} This action was initiated by a complaint filed by Mercer County 

Zoning Inspector Steve Keithley. In the complaint, Inspector Keithley alleged that 

Workman conducted a “commercial use” on land zoned as a “Prime Agricultural 

District” in violation of Section 1127.18 of the Franklin Township Zoning Code. 

The record reflects that the alleged “commercial use” was Workman’s storage of 

vehicles and equipment purportedly used in the course of his plumbing, HVAC, 

and gas line repair business on the property where he resides. 

{¶3} The case proceeded to a bench trial. The prosecution presented the 

testimony of three witnesses and six exhibits, including pictures of the vehicles on 

the property. Workman did not present any evidence in his defense. After hearing 

the evidence, the trial court found that Workman had used his land “in violation of 

the A-2 zoning and in [violation of] 1127.15 through 1127.19 of the Franklin 

Township Zoning Code[.]” (Doc. No. 21). As a result, the trial court found 

Workman “guilty of said violations” and ordered him to pay court costs. 
Case No. 10-13-13 

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{¶4} Workman now appeals, asserting the following assignments of error. 

ASSIGNMENT OF ERROR NO. I

A CRIMINAL COMPLAINT BASED ON TOWNSHIP 

ZONING REGULATION STATUTE—NO CRIME. 

ASSIGNMENT OF ERROR NO. II

ASSUMING ARGUENDO THAT THE PROSECUTION 

UNDER FRANKLIN COUNTY [sic] ZONING CODE 1127.18 

IN FACT STATED AN OFFENSE HAD BEEN BROUGHT 

PURSUANT TO R.C. 519.02-519.25; A REVIEW OF THE 

TESTIMONY AND CRIMINAL COMPLAINT FAILS TO 

SUPPORT A FINDING OF GUILTY. 

{¶5} For ease of discussion we elect to discuss the assignments of error 

together. 

First and Second Assignments of Error

{¶6} The gravamen of Workman’s argument on appeal is that the complaint 

did not mention or otherwise invoke R.C. 519.23, which is the state statute upon 

which criminal liability for violation of a township zoning code is predicated.1

 

Notably, Workman failed to raise this matter during the trial court proceedings and 

arguably waived any issues regarding defects in the complaint. See Crim.R. 

12(C)(2). Nevertheless, the question remains whether the complaint adequately 

 

1

 Specifically, R.C. 519.23 states, “No building shall be located, erected, constructed, reconstructed, 

enlarged, changed, maintained, or used, and no land shall be used in violation of any resolution, or 

amendment or supplement to such resolution, adopted by any board of township trustees under sections 

519.02 to 519.25, inclusive, of the Revised Code. Each day’s continuation of a violation of this section 

may be deemed a separate offense.” Furthermore, R.C. 519.99 provides that “[w]hoever violates [R.C. 

519.23] shall be fined not more than five hundred dollars for each offense.” 
Case No. 10-13-13 

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apprised Workman that his conduct constituted a criminal offense in violation of 

the Franklin Township Zoning Code. 

{¶7} The complaint filed by Zoning Inspector Keithley states the following 

in its entirety: 

The Complainant, after being duly cautioned and sworn, states 

that one Timothy Scott Workman, on land in Section 21, 

Township 6 South, Range 3 East, Franklin Township, Mercer 

County, Ohio, on or about April 7, 2013, did a conduct 

commercial use in an area of the Township not zoned for that 

land use. 

The Complainant alleges that this act is in violation of Section 

1127.18, of the Franklin Township Zoning Code, entitled A-2: 

Prime Agriculture District/Conditional Uses, being an 

unclassified misdemeanor, and against the peace and dignity of 

the State of Ohio. 

(Doc. No. 2). 

{¶8} The complaint does not specifically state the conduct Workman is 

alleged to have engaged in constituting an offense. Rather, the complaint 

generally alleges that Workman conducted a “commercial use” in violation of 

Section 1127.18 of the Franklin Township Zoning Code. This particular zoning 

code states the following: 

1127.18 Conditional Uses

A building or premises may be used for the following purposes 

in the A-2: Prime Agriculture District, if a Conditional Use 

Permit for the use has been obtained in conformance with the 

provisions of Chapter 1131. 
Case No. 10-13-13 

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Principal Uses:

A. Airports 

B. Animal Hospitals and Clinics 

C. Cemeteries 

D. Farm and Heavy Equipment Sales and Service 

E. Grain Elevators and Feed Mills 

F. Mineral Extraction 

G. Mixed Uses 

H. Oil and Gas Wells 

I. Public Service Facilities 

J. Recreation, Commercial 

K. Recreation, Non-Commercial 

L. Recreation, Public 

M. Religious Places of Worship 

Accessory Uses:

N. Expanded Home Occupations 

O. Nurseries and Garden Supply Stores 

P. Private Landing Strips and Heliports 

Q. Seasonal Storage Facility 

{¶9} Initially, we are struck by the fact that, contrary to the allegations in 

the complaint, nothing in the wording of Section 1127.18 serves to apprise an 

individual that simply conducting a “commercial use” in a Prime Agricultural 

District constitutes a violation of the zoning code nor does the complaint allege 

that Workman did not have a conditional use permit. Notably, the prosecution 

later specified in the Bill of Particulars that the alleged “commercial use” was 

Workman’s storage of his “personal property used in the course of his business” 

without having “a permit to conduct a Conditional Use on the real property* * *.” 

(Doc. No. 15). 
Case No. 10-13-13 

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{¶10} However, the term “commercial” is not defined in Section 1127.18 

nor is it defined anywhere in the zoning code. Moreover, it is not clear that the 

mere storage of one’s personal property to be used in the course of a business is an 

inherently “commercial” activity so as to adequately put an individual on notice 

that he may be conducting a “commercial use” in violation of the zoning code. 

Thus, even assuming the complaint properly set forth R.C. 519.23 as the overall 

criminal offense, Section 1127.18 of the Franklin Township Zoning Code does not 

sufficiently define the proscribed conduct constituting an offense in this case. 

{¶11} In addition to the deficiencies in the allegations of the complaint and 

the vagueness of Section 1127.18, the evidence at trial also failed to establish 

beyond a reasonable doubt that Workman conducted a “commercial use” on the 

property. Inspector Keithley testified that the nature of Workman’s alleged zoning 

violation was “operating a business” on property zoned only for agricultural use. 

(Tr. at 12). Inspector Keithley further stated that Workman did not have a valid 

conditional use permit to conduct a “commercial” activity. (Id. at 13). Inspector 

Keithley explained that the zoning violation was based solely on the fact that 

multiple vehicles were seen stored on the property displaying the name of 

Workman’s plumbing, HVAC, and gas line repair business. (Id at 12.) On crossexamination, Inspector Keithley also alleged that the presence of a skid loader and 
Case No. 10-13-13 

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a mini track hoe on the property, in addition to the work vehicles, formed the basis 

for the complaint. (Id. at 23). 

{¶12} The two other witnesses to testify for the prosecution were Franklin 

Township Trustees Ron Niekamp and Neal Klosterman. Both Niekamp and 

Klosterman testified that they met with Workman on the property when they handdelivered public records that he had requested. During this visit, Workman 

showed the Trustees around one of the structures he had recently built on the 

property. This building housed a tanning bed, a fighting cage, and personal fitness 

equipment. Klosterman and Niekamp observed a nonfunctioning toilet and 

pedestal sink vanity resting against the back wall. According to Klosterman and 

Niekamp, Workman explained that he used these items when he hired 

subcontractors—specifically to test their plumbing skills. Both witnesses also 

observed a mini track hoe stored in the building. Klosterman opined that a mini 

track hoe is the type of equipment typically used in Workman’s line of business. 

However, neither witness testified that Workman did in fact use this equipment for 

business purposes. 

{¶13} As previously mentioned, the Franklin Township Zoning Code does 

not define the term “commercial.” When a key term is not defined courts 

generally employ the plain meaning and common usage of the word. At trial, the 
Case No. 10-13-13 

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prosecution introduced as an exhibit a dictionary page defining the word 

“commercial” as follows: 

Commercial (adj) 1 a (1): engaged in work designed for the 

market (2): of or relating to commerce (3): characteristic of 

commerce (4): suitable, adequate, or prepared for commerce b 

(1): being of average or inferior quality (2): producing artistic 

work of low standard for quick market success 2 a: viewed with 

regard to profit b: designed for a large market 3: emphasizing 

skills and subjects useful for business 4: supported by 

advertisers. 

(State’s Ex. E). In Board of Trustees of Springfield Township v. Barnaby, the 

Sixth Appellate District was asked to review a zoning resolution that prohibited 

conducting a commercial operation in a residential district. Barnaby, 6th Dist. 

Lucas No. L-88-069 (Nov. 18, 1988). The court in Barnaby concluded that the 

exchange of money for goods or services was “undoubtedly an essential element 

of ‘commercial use. ’ ” Id. at *2. Nevertheless, the court in Barnaby further 

concluded that the prosecution in that case failed to establish beyond a reasonable 

doubt that Barnaby was engaged in a “commercial use” because it failed to show 

that Barnaby was involved in an exchange of money for goods and it failed “to 

provide any indicia tending to establish the concept of commerciality, e.g., 

advertising, receipts, customer lists, etc.” Id. The court reasoned that “[w]ithout 

this type of evidence the violation cannot be proven beyond a reasonable doubt.” 

Id. 
Case No. 10-13-13 

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{¶14} Here, there was no evidence presented at trial demonstrating that 

Workman was involved in the exchange of money for goods or services on the 

property. There was also no evidence presented demonstrating that Workman 

used the property to advertise his business or even that the equipment forming the 

basis of the complaint was indeed used in Workman’s business. While there was 

some testimony suggesting that Workman used a toilet and a pedestal vanity in 

one of his out buildings to test the skills of subcontractors, Inspector Keithley 

specifically testified that the allegations in the complaint were predicated solely 

upon the storage of the work vehicles and mini track hoe and skid loader on the 

property. 

{¶15} Moreover, Inspector Keithley stated the following at trial regarding 

Workman’s alleged conduct forming the basis for the violation: 

The Court: I have one question. In part of your various drivebys and photographs, is any part of the case [] based on activity 

that you saw other than the photographs of the parked vehicles, 

such as things being repaired, worked on, piping, tubing, 

employees, physical labor, carrying, lifting, moving, installing, 

putting things in trucks, anything like that that’s part of your 

zoning objection here? 

Inspector Keithley: Not that I have seen. 

(Tr. at 50). 

{¶16} On this record, we must concur with the reasoning used by the court 

in Barnaby. Without any specific definition in the zoning code setting forth the 
Case No. 10-13-13 

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meaning of “commercial use” and based upon the limited testimony set forth 

above, we cannot conclude that the mere presence of work vehicles and equipment 

alone is adequate to establish beyond a reasonable doubt that Workman conducted 

a “commercial use” on the property. 

{¶17} In addition to the foregoing difficulties, we are also compelled to 

note a number of issues within the judgment entry of conviction and sentence 

entered by the trial court in this case. 

{¶18} First, it is not clear that there is any judgment of conviction entered 

against Workman. Rather, the trial court simply states that “this Court hereby 

finds that the D has used this land in violation of the A-2 zoning and in [violation 

of] 1127.15 through 1127.19 of the Franklin Township Zoning Code for the times 

as proven in Court.” (Doc. No. 21). Workman is not named in the judgment and 

as noted earlier neither is any statute which actually sets forth a criminal offense, 

such as R.C. 519.23. As previously stated, the Franklin Township Zoning Code 

does not state a criminal offense and it is well established that criminal liability for 

a violation of a township zoning code must be predicated on R.C. 519.23, of which 

the trial court makes no mention in its judgment entry. See Strongsville v. 

McPhee, 142 Ohio St. 534, paragraph two of the syllabus (1944). 

{¶19} Second, the judgment entry does not make a specific finding of guilt 

beyond a reasonable doubt which is obviously necessary for a criminal conviction. 
Case No. 10-13-13 

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{¶20} Third, as a basis for its finding of guilt the judgment entry of the trial 

court mentions a prior case involving Workman and similar allegations, in which 

Workman apparently surrendered a conditional use permit. However, there is 

nothing in the evidence about such a prior case, this prior case was never made 

part of the record in this case, and nothing in the record suggests that the trial court 

ever attempted to take judicial notice of the prior case. Under the circumstances it 

is clearly troublesome for the trial court to mention the prior case in rendering its 

decision and judgment in the case before us. 

{¶21} Finally, the trial court states the following in its judgment entry. 

“Costs of this matter against Defendant. No fines herein subject to compliance by 

D and his agents, etc.” (Doc. No. 21). Once the trial court sentenced Workman to 

pay court costs, it no longer retained jurisdiction to threaten his continued 

compliance with the imposition of further fines. Accordingly, this portion of the 

judgment entry is either superfluous and unenforceable, or if intended as a 

contingency, the entry itself may lack the necessary finality to constitute a valid 

entry of conviction and sentence. 

{¶22} In sum, it is our conclusion that the specific sections of the zoning 

code that were alleged to have been violated in this case, the evidence presented at 

trial, and the final judgment entry appealed from, all fail as a matter of law to 

sufficiently apprise Workman of or identify for the record the proscribed criminal 
Case No. 10-13-13 

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conduct for which Workman was purportedly convicted. As such, the assignments 

of error are sustained and the judgment of the trial court is reversed as against the 

sufficiency of the evidence and we remand this case with instruction to dismiss the 

complaint. 

 Judgment Reversed and 

Cause Remanded 

ROGERS, J., concurs. 

/jlr 

WILLAMOWSKI, P.J., Concurring Separately. 

{¶23} I concur fully with the judgment of the majority; however I am 

writing separately to call attention to one more error committed by the trial court, 

which was not discussed by the majority. This is a criminal case. Yet, it is 

apparent from the record that Defendant was not present at the time he was found 

guilty and “sentenced” to “compliance with the requirements of [Franklin 

Township Zoning Board] and Zoning inspectors” as well as to the payment of the 

court costs. (See Tr. at 88 (indicating that the court was taking the matter under 

advisement and that the finding of guilty is absent from the trial transcript); Doc. 

No. 21, J. Entry (finding Defendant guilty in a written decision).) 

{¶24} Crim.R. 43(A) is mandatory in its requirement that “the defendant 

must be physically present at every stage of the criminal proceeding and trial, 
Case No. 10-13-13 

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including the impaneling of the jury, the return of the verdict, and the imposition 

of sentence,” except when a written waiver or a waiver on the record is secured, or 

in instances of disruptive conduct by the defendant. See also R.C. 2945.12: 

A person indicted for a misdemeanor, upon request in writing 

subscribed by him and entered in the journal, may be tried in his 

absence by a jury or by the court. No other person shall be tried 

unless personally present, but if a person indicted escapes or forfeits 

his recognizance after the jury is sworn, the trial shall proceed and 

the verdict be received and recorded. If the offense charged is a 

misdemeanor, judgment and sentence shall be pronounced as if he 

were personally present. If the offense charged is a felony, the case 

shall be continued until the accused appears in court, or is retaken. 

(Emphasis added.) 

{¶25} No waiver appears on the record and no disruptive behavior by 

Defendant is documented. Defendant was therefore within his rights to be present 

when the decision finding him guilty was announced. The trial court’s judgment 

should therefore be reversed based on this error alone. See State v. Welch, 53 

Ohio St.2d 47, 48, 372 N.E.2d 346 (1978) (reversing the judgment of the court of 

appeals that affirmed a verdict of guilty entered in the absence of the defendant). 

{¶26} Having said that, I concur with the conclusion of the majority that the 

judgment of the Celina Municipal Court be reversed and cause remanded with 

instructions to dismiss the complaint.