[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