Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Cleveland v. Elkins

December 4, 2008

CITY OF CLEVELAND PLAINTIFF-APPELLEE
v.
OTIS ELKINS DEFENDANT-APPELLANT



Criminal Appeal from the Cleveland Municipal Court Case Nos. 2007CRB 039670A and 2007TRD 065640A, JUDGMENT: REVERSED.

The opinion of the court was delivered by: James J. Sweeney, A.J.

JOURNAL ENTRY AND OPINION

BEFORE: Sweeney, A.J., Rocco, J., and McMonagle, J.

{¶1} This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.

{¶2} Defendant-appellant, Otis Elkins ("defendant"), appeals from his convictions of hauling scrap in a motor vehicle without a permit in violation of Cleveland Codified Ordinance 551.19 ("CCO §551.19") and wrongful entrustment of a motor vehicle in violation of R.C. 4511.203. For the following reasons, we reverse.

{¶3} A review of the record reveals the following: Defendant is the owner of a small business engaged in the business of home remodeling and repair. On the morning of November 7, 2007, defendant and his employee, Eric Butler ("Butler"), were headed to a job site, each in a separate vehicle, when Butler was pulled over by Cleveland Police Officer Andrew Gasiewski ("Officer Gasiewski") for a traffic offense. Butler was driving the defendant's pick-up truck at the time of the stop. A check of Butler's license revealed that he had a suspended driver's license. Officer Gasiewski also observed debris, gutters, and siding parts in the back of the pick-up truck.

{¶4} The defendant approached Officer Gasiewski and told him that he was the owner of the pick-up truck. Officer Gasiewski asked defendant if he had a permit for the debris in the truck. After the defendant told Officer Gasiewski that he did not have a permit, Officer Gasiewski issued two citations for hauling debris without a permit in violation of Cleveland Codified Ordinance 551.19 and unlawful entrustment in violation of R.C. 4511.203.

{¶5} Defendant pleaded not guilty and the matter proceeded to a bench trial on April 2, 2008. At the bench trial, the City offered the testimony of Officer Gasiewski, who testified that after he stopped Butler for the traffic offense, defendant came to the site and took full responsibility for the contents of the pick-up truck and admitted that he did not have a scrap permit from the City of Cleveland. Officer Gasiewski also testified that defendant took responsibility for the driver's actions, since it was his truck. On cross-examination, Officer Gasiewski conceded that the defendant did not admit that he knew that Butler had a suspended driver's license.

{¶6} After the trial court denied his motion for acquittal, defendant testified on his own behalf. Defendant testified that Butler worked for him for approximately six months. He testified that Butler always drove his own car to work and that he had no knowledge, nor any reason to suspect, that Butler was driving under suspension. Defendant also testified that he is in the business of aluminum and vinyl siding, windows, gutters, and roofing. He testified that he does not haul or transport debris, scrap, or solid waste for pay and that any transportation of solid waste was incidental to his business of siding and fixing windows. On cross-examination, defendant testified that he gets dumpsters for the debris at his work sites, but admitted that if there were small scraps he would put them in the back of his pick-up truck.

{¶7} At the close of the testimony, defendant was found guilty of both counts and fined $1,000. It is from this judgment that defendant now appeals and raises three assignments of error for our review, which we shall address together.

{¶8} "I. The trial court erred in overruling defendant's motion to dismiss as to each case since the City failed to prove essential elements required to sustain a conviction in either case.

{¶9} "II. The trial court erred in finding the defendant guilty of a violation of Cleveland Municipal Code 551.19 as defendant's business was not included in the activities covered by Code Section 551.19.

{¶10} "III. The trial court erred in finding defendant guilty of violating O.R.C. §4511.203, wrongful entrustment, as the City failed to offer any evidence upon which a guilty finding could be founded."

{¶11} In these assignments of error, defendant argues that there is insufficient evidence to support his convictions for hauling without a permit under CCO §551.19 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.