[Cite as Wakeman v. Smith , 2024
- Ohio
- 1067.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY Village of Wa keman Court of Appeals No. H

- 22

- 013 Appellee Trial Court No. CRB220299

v. S herwood D. Smith DECISION AND JUDGMENT Appellant Decided: March 22, 2024
* * * * * Steven Palmer, Village of Wakeman Law Director, for appellee.
Brent L. En glish , for appellant.
* * * * * {¶ 1} T his is a n a ppeal fro m the judgm ent by the Norwalk Municipal Cou rt , w hich sentenced defendant

- appell ant , Sherwo od Smith , to pay fines and court costs totaling $3,282.84 after convictin g him of five counts of violations of the junk motor vehicle ordinance enacted by plaintiff

- appell e e , village of Wakeman

. For the reason s set forth below, this court affirms , in part, and reverses, in part, the judgment of the trial court

.2

. I. Backgr ound

{¶ 2} On April 7 , 20 2 2 , appell ee filed c omplaint s against appell ant alleging violations , as of April 5, of Wakeman Municipal Code 303.10(b) and 303. 10 (f) , regarding five different vehicles it deemed were “ junk motor vehicles ” located at appellant ’ s property known as 39 South Pleasant Street, Wakeman, Huron County, Ohio

. The five alleged junk motor vehicles a re: (1) a 1989 light blue Buick LeSabre with

e xpired Ohio plate No. HSG8211 , (2) a 2003 maroon Nissan Maxima with unexpired Ohio plate No. JJT3671 , (3) a 2006 silver Honda Civic hybrid with no plate , (4) a 2002 red Mercury Sable with e xpired Ohio plate No. HY J8468 , and (5) a 2003 white Subaru
Forest er with no plate. The complaint alleged appellant had five previous convictions for

“ junk motor vehicles ” in 2019 , 2020, and 2021. {¶ 3} Wakeman Municipal Code 303.10(b) states the following violation : No person shall wil l fully leave a junk motor vehicle with th e permission of the person havin g the right to the possession of the p roperty on which the junk motor vehicle is left covered or uncovered in the open for more than twenty

- four consecutive hours. Junk motor vehi c les and collector vehicles, defined as any m otor vehicle or agricultural tractor or traction engine that is of special interest, that has a fair market value of one
hu n dred dollars or more, whether opera bl e or not, and that is ow ned , operat ed, collected , pres erved, restored, maintained , or used esse ntially as a collecto r ’ s item, leisure pursuit, or investment, b ut not as the owner ’ s3

. principal means of transportation, pursuant to Ohio R.C. 4501.01(F) shall

be covered by being housed in a garage or other suitabl e stru cture or shall be remov ed from the property. {¶ 4} We then look to Wakeman Municipal Code 303.10( a ) , which defines a “ junk motor vehicle ” as :

[A] ny motor vehicle that is not currently registered and operable, defined as being c apable of operation on a publ ic street and meeting all safety requirem ents for such o peration that is left covered or unco vered in the open on private property for more than twenty

- four consec ut ive hours with the per mission of the person having the right to the possession of th e
prope rty , except if the perso n is operating a junk yard or s c rap metal processing facility licensed under authority of Ohio R.C. 4737.05 to
4737.12 ; or regulated under authority of the Municipality. {¶ 5} Wa keman Municipal Code 303.10( f ) the n provides the penalt y in the
presence of pr ior offenses , stating , “ If, within three years of the offense, the offender previously was convicted of or plea ded guilty to on e or more violations of this section, the offense is an unclassi fied misdem eanor. When the offense is an unc las sified misdemeanor , the offender shall be fined no less than five hundred dollars but no more than one thousand dollars. ” {¶ 6} Appellant , acting pro se, pled no t guilty, and t he matter proceeded to a bench trial on July 27, 2022

. Prior to the start of the tr ial , appellant alleged appellee offered a4

.

pl ea deal that , “ If you get those cars do wn to one or two, we will just drop all charges , ” which appellant denied . The tri al court found that in the absence of an agreement bet w een the parties, the trial would proc eed

. The trial court heard testimony from th ree witnesses , including appellant, and admitted 13 exhibits into evidence

. The trial court found app ellant guilty of a ll five offenses. Sentencing occurred on August 31, 20 22, and by then appel lant was represented by counsel. T he tri al court ordered app el lant to pay a $600 dollar fine for each offense plus court costs, totaling $3,282.84

. {¶ 7} Appella nt timely ap pealed and set forth four assignm ent s of erro r : 1. The Village of Wakeman, Ohio failed to prove beyond a reasona ble doubt each and every element of the o ffenses of maintaining one or

more “ junked vehicles ” on the Defendant

- Appellant ’ s real property at 32 Pleas ant St reet, Wakeman, Ohio 44889 and thus the judgments of convi c tion were not supported by sufficient eviden ce . 2. The judgments o f convict ion for maint aining five suppo sedly “ junk vehicles ” on Sherwood Smith ’ s real property in Wakeman, Ohio

were against the manifest weight of the evidence

. 3. Wakeman Codified Ordinance Section 303.10 is unconstitutional because it ru ns afoul of a s t ate statute of ge neral ap pl ication.
4. Wakeman Codified Ordinance Section 303.10 is unconstitutional ly vague and/or is unconstitutional as applied.5

. II. CONSTITUTIONALITY OF MUNICIPAL ORDINANCE

{¶ 8} We first address appellant ’ s third and fourth assi gnments of error together for their chal lenges to the constitutionality of Wakeman Municipal Code 303.10

. {¶ 9} In support of his third assignment of error, appellant argues Wakeman Municipal Code 303.10 is unconstitutional because it impermissibly conflicts wi th R.C.
4513.65 in violation of Article XVIII, Section 3 of the Ohio Con stitution , the village ’ s ho me rule authority, in three ways: (1) it is an exercise of pol ice power rather than self

government ; (2) it d irectly conflicts with the limits imposed by R.C . 4513.65 for the definition of a “

junk moto r vehicle ” ; and (3) R.C. 4513.65 is a rule of conduct imposed

o n citizens generally. Conseque ntly, the village of Wakeman was without authority to
enact Wakeman Municipal Code 303.10 in conflict with R.C. 4513.65 , and the ordinance
is a n ullity. {¶ 10} In sup port of his f ourth assignment of error, appellant argues Wakeman Municipal Code 303.10 is unconstitutionally void

- for

- vague ness on its face and as applied to him. Appellant argues the ordinance ’ s definition of “ opera ble, defined as being

c apable of o perati on on a publ ic street and meeting all safety requirements for such operation ” is facially void

- for

- vagueness because a person o f ordinary intelligence cannot ascertain the lawful or safe conduct from the unlawful or unsafe operation where the

“ safety requi rements ” are not identified and do not refer to R.C. 4513.65. Appellant
argues the ordinance is unconstitutionally void

- for

- vague ness as applied to him because6

.

he cannot be convicted for a crime for violating an ordi nance that is a legal nullity with out fo rce or effect

. {¶ 11} Appellee responds that a constitutional challenge raised for the first t ime on appeal is reviewed for plain error, citing State v. Quarterman , 140 Ohio St.3d 464, 2014

- Ohio

- 4034, 19 N.E.3d 900, ¶ 1 9 an d State v. Brandeberry , 6th Dist. Lucas No. L

- 16

- 1137, 2017

- Ohio

- 5676, ¶ 22

. However, rather than provide any plain error analysis , appel lee substantively argue s Wakeman Municipal Code 303.10 is constitu tional for two reasons: (1) “ R.C. 4513.65(A), paragra ph 2 provides a political subdivision ha s the ability
t o regulate suc h vehicles store d in the open. By reference to political subdivisions, it suggests that junk motor veh icle regulation was not intended to operate u niformly throughout the state ” ; and (2) the municipal code meets the three

- part analysis for void

for

- vagueness challenges both on its face and as

- applied to appellant. {¶ 12} It is undisputed th e trial court did not first determine the constitutional challenges appellant raises on appeal. Where appell ant failed to specifically preserve with the trial court either of his constitutional challenge s , he waived them. State v. Hacker , Slip Opinion No. 2023

- Ohio

- 2535 , ¶ 26 , fn

. 2 , c iting State v . Awan , 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986) , fn. 1

. “ Fa ilure to rai se at the trial court level the issue of the constitutionality of a statute or its application, which issue is appare nt at the time of trial, constitutes a waiver of such issue and a deviation from this state ’ s orderly procedure, and therefore need not be heard for the first time on appeal. ” Awan at the syllabus

.7

. {¶ 13} T his court may exercise its discretion to review whether the trial court

committed plain error with respect t o forfeited constitutional a rguments. State v. Barber , 6th Dist. Lucas No. L

- 22

- 1278, 2023

- Ohio

- 2991, ¶ 28 , citing Q uarterman at ¶ 1 6. However, we decline to do so in this case where the record is bereft of briefing, arguing, and lower court consideration of the constitutional arguments ; appellee ’s brief makes only a passing refe r ence to the plain error doctrine ; and ap pellant ’s r eply brief still “ha s not dealt with the plain error an alysis applicable to this appeal. ” Quarterman at ¶ 18

- 19. Accordingly, we decline to decide the constitutiona lity of Wakeman Municipal Code
303.10 or whether its application in this case ris es to plain error, because those issues

were not properly raised or presented. Id. at ¶ 20. {¶ 14} Appellant ’ s third and fourth assignments of error are found no t well

- taken

.

I I I . Suffic iency of Evidence {¶ 15} Appell ant’s first a ss ignment of error argues appelle e f ail e d to meet its burden to pr oduce s uffi cient evidence to convict him of each offense

. A ppellant argues th at the definition of a “

junk motor vehicle ” require d appellee to prove beyond a reasonable doubt that each of th e five v ehicle s wa s both not “ c urrently r egistered and operable ” as of the date of the offense , April 5 , 2022

. {¶ 16} F or the “ currently registered ” element, appellant argues appellee failed to
meet its burden because its evidence at trial for the regi stration s t atus of each vehicle was
out dated from F ebruary 1 8 , and a ppellant ’s evidence at the July 27 trial showed that all five vehicles were currently registered a nd drivable

. F or the “currently operable ”8

.

element, appellant argues appellee failed to meet its burd e n because appellee submitted

no evid ence that each vehicle was not currently “ opera ble, ” defined by the ordinance as

“ ca pable of operation on a public street and meeting all safety requirements for such operation. ” Appellant argues appelle e failed to pres e nt sufficient evidence at trial of each vehicle ’ s ca pability to operate on a public street and the safety requirements for such operation. {¶ 17} Appellant points to a ppellee ’ s police chief s pecifically a dmitt ing at trial that o ne vehicle ’ s registration , the 200 3 Nissan Maxima , was “ not expired ” and di d not hav e any f

lat tires, but had “ low ” tires

. Appellan t argues t he polic e chief ’ s assumptions that each vehicle was not operable was not based on any relevant evidence, but his irrelevant person al opinion s that ea c h vehicle had not moved “ for a while ” or , in the case
of the Nissan Maxim a , that someone was sleeping in the vehicle. {¶ 18} A ppellee responds tha t s uffi cient evidence was presented at trial for each element of violating Wakeman Municipal Code 303.10(b) . Appelle e points to the police chief ’ s testimony at trial confirm ing that each of the five vehicles , with the exceptio n of th e 2003 Nissan Maxima , was not currently registered as of the date of his pho tos , February 18, 2022. Further , the police chief testified at t rial that in his opinion, each vehicle h ad not been moved since the date of his photos , which was more than 24 hours. The police chief als o testified that in his opinion each vehicle could not be safely operated on public streets , mostly due to flat tires

.9

. The test for sufficiency of the evidenc e is “whethe r, after viewing

the evidence i n a light most favor able to the prosecution, any rational trie r of fact could have fou nd the essential element s of the crime proven beyond

a reasonable doubt.” “‘Proof beyo n d a reasona ble doubt’ is proof of such

c harac te r tha t an ordinary person would be wi lling to rely and act upon it in the most importan t of th e pe rson ’ s own affairs.” A s ufficiency

- of

- the

eviden ce challe nge ask s whether the evidence adduced at trial “ is le g a lly suf ficient to support t he ju ry verd ict as a mat te r of law.” (Citations omitted. )
State v. Worley , 164 Ohio St.3d 589, 2021

- Ohio

- 2207 , 17 4 N. E.3d 754, ¶ 57. {¶ 19} Th e essential e lements for appellant ’ s violation of Wakeman Municipal Code 303.10(b) are: ( 1) w illful conduct by appellant , (2) with a “ junk motor vehicle ” as defined by Wakeman Municipal Code 303.10( a ) , (3) located at appellant ’ s property, (4) with his permission , (5) where the junk motor vehicle is in the open , c overed or uncovered, and (6) for m o re than 24 consecutive hours. Appellant ’ s assignment of error only challenges one of the foregoing elements: after viewing the evidence i n a light most favor able to appellee , no rational trier of fact could have found bey ond a reasonable dou bt that each o f the five vehicles was a “ junk motor veh icle

. ” {¶ 20} The essential elem ents of appellant ’ s violation of a “ junk motor vehicle ” under Wakem an Municipal Code 303.10( a) are: (1) a motor veh icle, (2) not c urrently registered , (3) not currently operating as being c a pable of operation on a public street an d10

.

meeting all safety requirements for such operation , (3) located at appellant ’ s private property, (4) with his permission , (5) where the junk motor vehicle is in the open ,

c overed or uncovered, and (6) for more tha n 24 consecutive hours

. {¶ 21} With respe ct t o t he 2003 Nissan Maxima, appellee concedes that the evidence admitted at trial showed th e vehicle was currently registered . That concession means it was not a “

junk motor vehicle , ” and no rational trier of fact could h ave found that appellant violated Wakem a n Municipal Code 303.10( b) with respect to the 2003 Nissan M axima. {¶ 22} With respect to the ot her four vehicles, appellant argues that the photos taken by the police chief did not corroborate the police chief ’s opinions t hat each vehicle could not be safely ope rated on public streets because no photo taken b y the police chief
on F e bruary 18, 2022, showed a vehicle with flat tires. Appellee’s photographic evidence
demonstrated that four of the five vehicles could not be le g ally operated on public streets, due to expired registrations. While such illegal operation was proffered b y appellee to be equated with unsafe operation that meets the definition of “junk motor vehicle,” this reasoning would render part of the definition under the Code superfluous, and is

unnec essary based on evidence supporting a finding that the vehicles wer e both unregistered and inoperable. {¶ 23} Wakem an Municipal Code 303.10(a) clearly requires current registration and operability, with “operable” further d efined as “being capable of operation on a public street and meeting all safety requirements for such operation[.]” This provision11

.

can be read as addressing both permissible use (registration) and safe use (operability). The record contains sufficient evi d ence of both, with evidence that four of the five vehicles remained on appellant’s property in a condition that demonstra ted it was both impermissible to operate the vehicle based on lack of current registration, and that the vehicles were incapable of sa f e operation on the roadway. Appellant’s own testimony provided evidence of inoperability, with appellant acknowledging th e vehicles “were sitting there with flats and things like that, I just didn’t have them plated,” and “I moved them around periodically to try to show that they were operable. But I can’t drive them on the street.” Evidence that demonstrates flat tires goes to operability of the vehicle

. See, e.g., Ottawa Hills v. Af

j eh, 6th Dist. Lucas No. L

- 12

- 1093, 2013

- Ohio

- 1474, ¶ 14 ( in a case invo l v ing nuisance violations, evidence includ ed “two cars in appellant ’ s driveway with flat tires, which clearly rendered the vehicles i noperable.”)

. {¶ 24} B a sed on the foregoing, w e find that suffi cie n t evidence was submi tted to the fact

- fi nder such that , after vi e w ing the evidence i n a light most favor ab le to appellee , any rat ional trier of fact could ha ve foun d beyond a reasonable doubt the e ss en tial elements of appellant violating Wakem an Municipal Code 303.10( b) for four

- out

- of

- five

ve hi cles . We further find t h a t insufficient evidence was submitted to the fact

- finder such that , after viewing the evidence i n a light most favor able to appellee , any rat ional trier of
fact could ha ve foun d beyond a reasonable doubt the e ss en tial elements of a ppellant violating Wakem a n Municipal Code 303.10( b) for the 2003 N issan Maxima. {¶ 25} A ppellant’s first assignment of error is well

- taken, in part

.12

. I V . Manifest Weight of th e Evidence

{¶ 26} In support o f his third assig nment of error, appellant a rgues his convictions sh ould be revers ed bec a u s e the fact

- finder lost its way for two re asons: (1) “ the trial court had no evidence that the cars in question were not properly registered as of the date of the
al leged violations, April 5, 2022 ” ; and (2 ) “ there was no evidence wh atsoever that the vehicl e s were not operable ” when appellant testi fied that each of the vehi cles was , in fact, drivable. {¶ 27} In respon se, appellee argues the manifest weight of the evidence a t trial supports appellant ’ s conviction s . The police chief testified regardi ng the Ohio B urea u of
M otor V ehicle ’ s report dated May 20, 2022 of the expired or lack of registrations for four vehicles as of April 5 , while conceding the unexpired registration for the 2003 Nissan Maxima. The police c hief further testified regard ing his opinions that th e fi ve vehicles could not be safely operat ed on public streets because of flat t ire s and other sa fety

concerns. {¶ 28} “ To evaluate a m anifest

- weight claim, we must review the enti re record, weigh the evidence and all reasonable inferences , and consider the credi b i lity of all the witnesses

. ” State v. McK

elton , 148 Oh io St.3 d 261, 20 16

- Ohio

- 5735, 70 N.E.3d 508, ¶
328

. We must decide if the jury clearly lost its way i n resolving confl icts in the evidence
to create a manifest miscarriage of ju stice such that the con v i c tion mu st be re versed and a new trial or dered

. Id. A manifes t

- weight claim questions the effect of the evidenc e in induci ng be lief of a ppellant’s guilt by question ing whet her the jury could find the13

.

inclination of a greater a mount of credible evidence wa s admi tte d at trial to sust ai n that decisi on than not. State v . Thompki ns , 78 Ohio St.3d 380, 38 7 , 678 N.E.2d 541 ( 1997)

. The di scretionary power to grant a new trial is in the exceptional case in which the evidence weighs heavily a gainst the conviction. I d

. The un animous concur renc e of all
t hree judges of a c ourt of appea ls panel is required to overturn , on the weight of evidenc e, a judgment that results from a jury. Id. at 389. {¶ 29} In light of th e testimony and evidence previously disc ussed, w e find that

a ny r a tional fact

- finde r could have fou nd the inclination of a greater a mount of credible evidence was admitted at trial th an not to induc e the fact

- finder ’s belief of appellant ’ s guilt for violating Wakeman Municipal Code 303.10(b) for four vehicles. However, w e find that with respect to the 2003 Nis san Maxima, an exceptional instance from t he

rec ord exists where the evidence admitted at tr ial weighs heavily against that conviction

. {¶ 30} A ppel lant’s second assignment of error is well

- taken , in part

. I V . Conc lusio n {¶ 31} O n consideration whereo f, t he judgment of the Huron Municipal Co urt is affirmed , in part, and reversed , in part

. The judgment is affirmed with respect to the 1989 light blue Buick LeSabre with e xpired Ohio plate No. HSG8211 , the 20 06 silver Honda Civic hy b r id with no plate , the 2002 red Mercury Sa ble with e xpired Ohio plate No.
HYJ8468 , and the 2003 white Subaru Forester with no plate. The judgment is reversed and vacated with respect to the 2003 maroon Nissan Maxima with unexpired Ohio plate
No. JJT3671

.14

. {¶ 32} A p pellee is ord ered to pay the costs o f th i s appeal pursuant to App .R. 24. Judgment af

firmed, in part , a nd reversed and vacated , in part

.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J.

____________________________ JUDGE Gene A. Zmuda , J.

____________________________ My ron C. Duhart, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further ed iting by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.