[Cite as Conneaut v. Babcock, 2022-Ohio-2101.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY

CITY OF CONNEAUT,

Plaintiff-Appellee,

- v -

RUDOLPH BABCOCK,

Defendant-Appellant.

CASE NO. 2021-A-0045

Criminal Appeal from the

Conneaut Municipal Court

Trial Court No. 2021 CRB 00037

O P I N I O N

Decided: June 21, 2022

Judgment: Affirmed

John D. Lewis, Law Director, City of Conneaut, 294 Main Street, Conneaut, OH 44030 

(For Plaintiff-Appellee).

Christopher M. Newcomb, 213 Washington Street, Conneaut, OH 44030 (For 

Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Rudolph Babcock, appeals from the judgment of the Conneaut 

Municipal Court, convicting him, after accepting his plea of no contest, for discharging a 

firearm or gun, in violation of Conneaut Municipal Code Section 549.08(A), a 

misdemeanor of the fourth degree. At issue is whether appellant’s speedy-trial rights 

were violated and whether the conviction under section 549.08(A) is valid and 

constitutional. We affirm.

{¶2} On February 12, 2021, a City of Conneaut police officer was dispatched in 

response to a report that an individual had discharged a firearm within the city limits. The 
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complainant asserted his neighbor, appellant, shot a gun into a tree and, as appellant 

walked towards his deck, a squirrel fell from the tree. Apparently, the neighbor had a 

video recording of appellant with the gun in his hand after the incident. The gun was 

never identified or inspected, but the state and appellant agreed it was either a “rifle” or 

“pellet gun.” The video was not made part of the record.

{¶3} On February 18, 2021, a complaint was filed tracking the language of 

Section 549.08(a) of the Codified Ordinance of the City of Conneaut, alleging appellant 

“did discharge any air gun, rifle, shotgun, revolver, pistol or other firearm within the City 

of Conneaut * * *.” On March 1, 2021, the court’s bailiff attempted service at appellant’s 

residence. The return of service indicated “no service,” and noted that “no one home at 

the time but I believe defendant still resides at the residence.” Later, on March 8, 2021, 

service was again attempted at the residence but failed. On the return of service, the 

bailiff noted “I made several attempts at the front and rear door. I left business cards. 

There [have] been vehicles in the driveway and they have been gone. I made at least 

five attempts at different times.” Due to the failure of service, an arrest warrant was 

issued.

{¶4} On July 27, 2021, appellant voluntarily appeared in court on the outstanding 

warrant and was formally served with the complaint. Appellant pleaded not guilty and 

issued a general waiver of his right to a speedy trial. On August 27, 2021, however, 

appellant filed a motion to dismiss, alleging a speedy trial violation and challenged the 

constitutionality of the underlying ordinance. Regarding the first point, appellant claimed 

he did not attempt to evade service, and, in effect, the state failed to exercise due 

diligence to accomplish service. Appellant claimed his speedy-trial clock commenced 
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upon the issuance of the certified complaint. Because he was charged with a 

misdemeanor of the fourth degree, the state was statutorily required to bring him to trial 

within 45 days. With respect to his constitutional arguments, he maintained (1) he was 

charged with firing an “air gun,” but neither ordinance nor the Ohio Revised Code defines 

that term for purposes of discharging a firearm; (2) he asserted the ordinance is 

unconstitutional because it conflicts with state and federal law; and (3) the ordinance is 

unconstitutional because it contains more than one subject. The state duly opposed the 

motion, and appellant filed a reply.

{¶5} On September 20, 2021, the trial court filed its judgment entry denying 

appellant’s motion. On the following day, appellant, via counsel, executed a second 

waiver of his speedy trial rights and, again, on October 25, 2021, a third waiver was filed. 

Finally, on November 21, 2021, appellant entered a plea of no contest to the charge. He 

was sentenced to 30 days in jail, with 30 days suspended and fined $250. This appeal 

follows.

{¶6} Appellant’s first assignment of error provides:

{¶7} “The trial court committed prejudicial error by overruling appellant’s motion 

to dismiss based upon R.C. 2945.71 (time for trial) by failing to correctly determine the 

commencement of appellant’s speedy trial time and by failing to conduct an adequate 

hearing regarding the same.”

{¶8} Appellant asserts that his speedy trial timeline commenced upon the 

issuance of the complaint and summons on February 18, 2021 and, as a result, the city 

had to try him by April 5, 2021, 45 days after this date. Alternatively, he asserts that even 

if the issuance of the arrest warrant, on March 23, 2021, was the proper date to measure 
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his statutory speedy trial right, May 9, 2021 was the latest date to try him within the legal 

timeframe. Moreover, appellant emphasizes that, even though the court’s bailiff 

attempted service on various occasions, there is nothing to indicate that the state was 

reasonably diligent in attempting to perfect service. Under any of these arguments, 

appellant claims the trial court erred in denying his motion to dismiss. We disagree.

{¶9} Appellant was charged with a misdemeanor of the fourth degree and thus, 

was required to be brought to trial “within forty-five days after the person’s arrest or the 

service of summons * * *.” R.C. 2945.71(B)(1). Here, service was not perfected, despite 

multiple attempts, because no one at appellant’s residence was home when service was 

attempted or, if home, did not answer the door. Moreover, although an arrest warrant 

was issued, appellant was never formally arrested. Instead, he appeared at the court 

voluntarily on July 27, 2021. On this date, service was completed, and appellant signed 

an express speedy-trial waiver of unlimited duration. 

{¶10} “Regarding the duration of a speedy-trial waiver, when such a waiver does 

not contain any reference to a specific time period, it will be deemed unlimited in 

duration.” State v. Schwentker, 11th Dist. Ashtabula No. 2015-A-0012, 2015-Ohio-5526,

¶29. “‘[F]ollowing an express written waiver of unlimited duration by an accused of his 

speedy trial rights the accused is not entitled to a discharge for delay in bringing him to 

trial unless the accused files a formal written objection to any further continuances and 

makes a demand for trial, following which the state must bring him to trial within a 

reasonable time.’” State v. Braden, 197 Ohio App.3d 534, 2011-Ohio-6691 (11th Dist.), 

¶41, quoting State v. O’Brien, 34 Ohio St.3d 7, 9 (1987). Ordinarily, speedy-trial time 

would start the day after service. See State v. Kist, 173 Ohio App.3d 158, 2007-Ohio-
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4773, ¶24. Because, however, appellant executed a general waiver of his speedy trial 

rights on July 27, 2021, the clock did not commence.

{¶11} On August 27, 2021, appellant filed a motion to dismiss based upon, among 

other things, an alleged violation of his speedy trial rights. Pursuant to O’Brien, supra, at 

paragraph two of the syllabus, this pleading could be construed as a “formal written 

objection and demand for trial.” However, “[a] motion to dismiss acts to toll the time in 

which a defendant must be brought to trial, and such a motion tolls the statutory time until 

the trial court issues it its decision on the motion.” State v. Evans, 11th Dist. Trumbull No. 

2003-T-0132, 2005-Ohio-1787, ¶38. As such, speedy-trial time was tolled from August 

27, 2021 until September 20, 2021, the date the trial court issued its judgment denying 

the motion. The next day, on September 21, 2021, appellant’s counsel filed a motion for 

continuance of trial and another general, speedy-trial waiver of unlimited duration. Based 

on the continuance, trial, which was set for September 23, 2021, was reset for October 

25, 2021. See R.C. 2945.72(H) (the time in which an accused must be brought to trial is 

extended by the period of any continuance brought upon the accused’s motion). The 

speedy-trial waiver functioned to stop the statutory clock. Regardless of the second 

unlimited waiver, however, speedy trial would have been tolled, due to appellant’s motion 

for a continuance, through October 25, 2021.

{¶12} Further, although trial did not proceed on October 25, 2021, appellant 

entered an additional general waiver of speedy trial on that date. It would seem that the 

previous waiver, filed on September 21, 2021 was sufficient; still, this final waiver 

conclusively demonstrates appellant’s statutory right to a speedy trial was not violated. 
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Indeed, given the various waivers as well as the tolling events, not one day was 

chargeable to the state.

{¶13} Finally, appellant claims that, in originally attempting service, the state was 

not reasonably diligent in its efforts. Appellant cites to R.C. 2901.13(F) in support of his 

claim. That statute, however, addresses statutes of limitations for criminal prosecutions. 

There is no claim that the state failed to prosecute the underlying charge within the 

applicable statute of limitations. In light of our previous analysis, appellant’s assertion is 

therefore irrelevant to this case.

{¶14} Appellant’s first assignment of error lacks merit.

{¶15} Appellant’s second assignment of error provides:

{¶16} “The trial court committed prejudicial error in denying appellant’s motion to 

dismiss on grounds that appellee unconstitutionally violated appellant’s rights without 

proper passage of a municipal ordinance or resolution pursuant to R.C. 731.17 by failing 

to determine that ordinance section 549.09 and ordinance No. 70-17 are invalid.”

{¶17} Under this assignment of error, appellant argues that his charge was 

premised upon his possession and discharge “of what is known as a ‘spring gun’ or ‘BB 

gun.’” He maintains this “gun” is not prohibited by the ordinance under which he was 

charged. As such, he maintains the charge and conviction are invalid. 

{¶18} Section 549.08(a) provides, in relevant part: “No person shall discharge any 

air gun, rifle, shotgun, revolver, pistol or other firearm within the City of Conneaut * * *.” 

Although appellant attempts to argue the gun at issue was a “spring gun” or a “BB gun,” 

he conceded, at his plea hearing, he possessed either a “rifle or pellet gun.” The gun was 

neither thoroughly examined by the charging officer nor did appellant surrender the gun 
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for inspection by an expert to determine its nature. And, because he pleaded no contest 

to the charge, the sufficiency of the evidence (i.e., whether the gun was a prohibited gun 

under the ordinance) was never ultimately challenged. A pellet gun, to the extent it does 

not expel projectiles by a combustible or explosive propellent, utilizes air to propel pellets 

or projectiles. As such, a pellet gun can be reasonably viewed as an “air gun” which is 

prohibited under the ordinance. Moreover, a rifle is also listed as a prohibited “gun” under 

the ordinance. Consequently, by pleading no contest and conceding the gun was either 

a rifle or a pellet gun, we discern no legal problem with appellant’s conviction.

{¶19} Next, appellant asserts that, to the extent the “gun” in question could be 

considered an “air gun” (which is prohibited by the ordinance), neither the ordinance nor 

the Ohio Revised Code specifically defines such a weapon for purposes of the 

“discharging a firearm” prohibition. As a result, he appears to maintain the ordinance is 

unconstitutionally vague.

{¶20} Although the ordinance at issue is captioned “Discharging Firearms,” a

“firearm” is a term of art which contemplates a “gun” which expels projectiles “by the action

of an explosive or combustible propellent” See R.C. 2923.11(B)(1). The ordinance under

which appellant was charged is broader and contemplates the prohibition of the discharge

of “firearms” as well as “guns” that utilize compressed air to propel pellets, etc. Appellant

conceded he either fired a rifle or a pellet gun. A rifle can be either a “firearm” or an “air

rifle,” i.e., either use a combustible or explosive propellent or compressed air to propel

projectiles. While a pellet gun does not commonly use a combustible or explosive

propellent, it does typically utilize compressed air. We recognize the term “air gun” is not

defined. When words are not defined in a statute, however, they are given their plain and 
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ordinary meaning, absent a contrary legislative intent. State v. Conyers, 87 Ohio St.3d 

246, 249-250 (1999). The common meaning of an air gun is a “gun” using compressed 

air to fire a projectile. Merriam-Webster, “air gun,” www.merriamwebster.com/dictionary/air%20gun (accessed May 24, 2022). In light of the foregoing, 

we conclude appellant was on reasonable notice of what the ordinance prohibits, and 

thus the ordinance is not unconstitutionally vague.

{¶21} Similarly, any argument appellant attempts to make asserting the ordinance 

is unconstitutional as violative of due process must fail. He pleaded no contest to shooting 

either a pellet gun or a rifle. As just discussed, in conceding he either shot a pellet gun 

or a rifle, he was reasonably aware that the action for which he was charged was 

prohibited under the ordinance at issue.

{¶22} Appellant next asserts the ordinance at issue, when it was amended, 

violates R.C. 731.17 and Section III-3(B) of the Conneaut City Charter because it 

contravenes the “one-subject” rule. The one-subject rule is a constitutional provision set 

forth under Section 15(D), Article II of the Ohio Constitution. It does not appear, nor is it 

referenced under R.C. 731.17, which directs “Procedures for Legislation.” That statute

provides:

{¶23} (A) The following procedures shall apply to the passage of 

ordinances and resolutions of a municipal corporation:

{¶24} (1) Each ordinance and resolution shall be read by title only, provided 

the legislative authority may require any reading to be in full by a 

majority vote of its members.

{¶25} (2) Each ordinance or resolution shall be read on three different days, 

provided the legislative authority may dispense with this rule by a 

vote of at least three-fourths of its members.
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{¶26} (3) The vote on the passage of each ordinance or resolution shall be 

taken by yeas and nays and entered upon the journal.

{¶27} (4) Each ordinance or resolution shall be passed, except as 

otherwise provided by law, by a vote of at least a majority of all the 

members of the legislative authority.

{¶28} (B) Action by the legislative authority, not required by law to be by 

ordinance or resolution, may be taken by motion approved by at least 

a majority vote of the members present at the meeting when the 

action is taken.

{¶29} Section III-(B) provides: “No ordinance or resolution shall contain more than 

one subject matter, which subject shall be clearly expressed in its title.”

{¶30} A review of the statute demonstrates that the one-subject rule is unrelated 

to R.C. 731.17. Still, we shall address appellant’s argument because the one-subject rule 

is a viable constitutional provision and is included in the Conneaut City Charter. The 

constitutional one-subject rule “is merely directory in nature; [and] while it is within the 

discretion of the courts to rely upon the judgment of the General Assembly as to a bill’s 

compliance with the Constitution, a manifestly gross and fraudulent violation of this rule 

will cause an enactment to be invalidated.” State ex rel. Dix v. Celeste, 11 Ohio St.3d 

141 (1984), syllabus. Appellant claims that, via Ordinance No. 70-17, Section 549.08 

was amended to include (1) an exception for gun clubs to discharge firearms within the 

city; and (2) added the term “air gun” to other forms of weapons prohibited. He asserts 

these provisions envelop more than one-subject and thus the amendment was invalid. 

{¶31} Appellant’s argument assumes that both provisions were added by 

Ordinance No. 70-17. The record, however, does not substantiate that these provisions 

first appeared in Section 549.08 via Ordinance No. 70-17. Assuming both of these 

provisions were added to the amended ordinance via Ordinance 70-17, however, it is 
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unclear how their additions are violative of the one-subject rule. The addition of “air guns” 

to the ordinance, regardless of whether the term is otherwise defined in the code, simply 

prohibits an additional “gun” which may not discharge in the city. And, by allowing gun 

clubs to discharge listed “firearms” in the city, the amendment merely creates an 

exception to the previously existing prohibitions. The one-subject rule exists to prohibit 

disunity in subject matters of statutes. See Dix, supra, at 146. We discern no disunity by 

including “air guns” in the ordinance’s prohibition and, at the same time, setting forth 

entities that are not excluded by the ordinance’s prohibition.

{¶32} Finally, appellant makes various obscure arguments suggesting the 

amendment of Section 549.08 somehow did not meet necessary statutory or 

constitutional formalities. In particular, he argues that Ordinance No. 70-17 added the 

term “air gun” without a referenced definition. In this regard, he asserts it is vague or 

ambiguous. Additionally, he contends the addition of this term violates Section III-3(D) of 

the Conneaut City Charter, which provides: “Revisions and Amendments. No ordinance 

or resolution shall be revised or amended unless the entire language of the section being 

amended is included in the ordinance or resolution; in which case, the original section of 

the ordinance or resolution shall be repealed.”

{¶33} First, appellant’s assertion that the term “air gun” is undefined does not 

specifically run afoul of R.C. 731.17, nor does it render the amendment vague. Given its 

plain meaning, we discern no vagueness in this definition.

{¶34} Moreover, appellant’s contention that the amendment to Section 549.08, 

which he alleges, included the term “air gun” for the first time, violates Section III-3(D) is, 

in light of the record, not persuasive. Although a certified copy of Ordinance No. 70-17 
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was included in the record, and that copy does not include a direct statement that a 

previous version was repealed by that measure, Section III-3(D) does not specifically 

require such verbiage. Instead, it states that a revision or amendment (which would 

include the entire language of the revised or amended section) shall function to repeal 

the original section. The operative “shall” language indicates that the act of revision or 

amendment itself, to the extent the revision or amendment is otherwise procedurally valid, 

functions, by its passage, to repeal the previous version. We therefore see no issue with 

Ordinance 70-11 and its impact on Section 549.08.

{¶35} Appellant did not produce any evidence of procedural irregularities in the 

ordinance’s amendment that would suggest a statutory or constitutional violation. As a 

result, appellant’s challenges are overruled.

{¶36} Appellant’s second assignment of error lacks merit.

{¶37} For the reasons discussed above, the judgment of the Conneaut Municipal 

Court is affirmed.

THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.