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City of Cleveland v. Krebs

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 1, 2018

CITY OF CLEVELAND PLAINTIFF-APPELLEE
v.
JOHN A. KREBS DEFENDANT-APPELLANT

         Criminal Appeal from the Cleveland Municipal Court Case No. 2017 TRD 008680

          ATTORNEYS FOR APPELLANT Larry W. Zukerman S. Michael Lear Zukerman, Daiker & Lear Co., L.P.A.

          ATTORNEYS FOR APPELLEE Barbara A. Langhenry Law Director City of Cleveland Bryan Fritz Assistant City Prosecutor

          BEFORE: Boyle, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, JUDGE.

         {¶1} Defendant-appellant, John Krebs, appeals from a judgment of the Cleveland Municipal Court convicting him of several misdemeanor traffic offenses stemming from an alleged illegal right-hand turn. He raises three assignments of error for our review:

1. The trial court failed to obtain a valid jury waiver from the Appellant prior to conducting a bench trial in the instant matter, thus violating appellant's constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
2. The trial court's judgments of conviction against appellant are based upon insufficient evidence and in violation of appellant's state and federal due process rights.
3. The judgments of conviction as to all counts are against the manifest weight of the evidence, in violation of appellant's right to a fair trial and due process of law, as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 16 of the Ohio Constitution.

         {¶2} After careful review of the record, we agree with Krebs's first assignment of error in part, i.e., we agree that the trial court failed to obtain a valid jury waiver on the failure to comply charge. The trial court did, however, have jurisdiction to conduct a bench trial on the two minor misdemeanor offenses: failure to yield to a public safety vehicle and driving on the sidewalk.

         {¶3} We further agree with Krebs's second assignment of error that the city failed to present sufficient evidence of failure to comply and failure to yield to a public safety vehicle.

         {¶4} Thus, while we would normally remand Krebs's conviction for failure to comply with a lawful order of police due to the trial court's failure to obtain a valid jury waiver, that is not necessary in this case because the state failed to present sufficient evidence of this charge.

         {¶5} Finally, we disagree with Krebs that his conviction for driving on a sidewalk is against the manifest weight of the evidence.

         {¶6} We, therefore, vacate Krebs's convictions for failure to comply with a lawful order of police and failure to yield to a public safety vehicle, and affirm his conviction for driving on the sidewalk.

         I. Procedural History and Facts

         {¶7} In March 2017, Krebs was cited for (1) failure to comply with a lawful police order in violation of Cleveland Codified Ordinances ("CCO") 403.02(A), a first-degree misdemeanor offense, (2) failure to yield to a public safety vehicle in violation of CCO 431.21, a minor misdemeanor offense, and (3) driving on the sidewalk, street, lawn, or curbs in violation of CCO 431.37, a minor misdemeanor offense.

         {¶8} At his arraignment, Krebs pleaded not guilty to the charges and also signed and filed a written jury demand. On April 26, 2017, the trial court convened for a bench trial. The trial transcript establishes that at the outset of the proceeding the judge gave all parties notice of the previously filed jury demand and asked Krebs if he wanted to proceed to a bench trial. After consulting with his attorney, Krebs stated that he did. There is no indication in the record that Krebs ever executed a written jury waiver before his trial commenced or at any point thereafter. The following facts were presented to the bench.

         {¶9} On the evening of March 14, 2017, there was a Cleveland Cavaliers game in downtown Cleveland. The game was sold out, and at around 5:30 p.m. there were many pedestrians and vehicles in downtown Cleveland. Rafael Mercado, a Cleveland police officer, was instructed by his supervisor to block the intersection of Prospect Avenue and Huron Road so that vehicles traveling on Prospect Avenue could not drive onto Huron Road.

         {¶10} Officer Mercado testified that he parked his police vehicle, a sports utility vehicle, in the middle of Prospect Avenue, parallel to the crosswalk on Huron Road, and faced his car forward (east) on Prospect Avenue. In doing so, he said that he blocked cars from turning onto Huron Road from Prospect Avenue. He also activated the lights on his police vehicle. Officer Mercado, who was in his police uniform and wearing a green vest, got out of his vehicle and began directing traffic from all directions away from Huron Road.

         {¶11} At around 5:30 p.m., Krebs, who was going to the game, was driving east on Prospect Avenue and turned right onto Huron Road to get to the "east garage" to park for the Cavaliers game. Officer Mercado testified that when he saw Krebs's vehicle begin to make the right-hand turn, he was about 15 feet away from Krebs, and he signaled Krebs to stop and began walking toward Krebs's car. Officer Mercado said that Krebs ignored his command, continued turning right onto Huron Road, and that to do so Krebs had to drive onto the sidewalk to "squeeze right through" and avoid hitting Officer Mercado's police vehicle.

         {¶12} Officer Mercado immediately got into his vehicle, followed Krebs and effectuated a traffic stop. He then issued Krebs the three citations.

         {¶13} Krebs testified that he saw the police vehicle, but did not see a police officer. He thought that a police officer must be directing traffic on the other side of the police vehicle. Krebs further stated that he did not hear Officer Mercado's command to stop because he had his windows rolled up and his radio on in his car. Krebs stated that when he turned right, he could see that he had "adequate room to get by, " make the turn onto Huron Road and that he did not have to drive on the sidewalk to do so. Krebs felt his tires brush the edge of the curb, but he did not drive onto the sidewalk.

         {¶14} The trial court found Krebs guilty on all counts and sentenced him to a suspended jail term of ten days, with fines amounting to $275 and court costs. It is from this judgment that Krebs now appeals.

         II. Jury Waiver

         {¶15} In his first assignment of error, Krebs argues that the trial court erred in conducting a bench trial instead of a jury trial. We agree in part.

         {¶16} Under the Ohio Rules of Criminal Procedure, a defendant has the right to be tried by a jury for certain petty offenses, which are generally considered to be misdemeanor offenses carrying up to a six-month term of imprisonment. Crim.R. 23(A), (C) (D).

         {¶17} Relevant to this appeal, Crim.R. 23(A) states:

In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.

(Emphasis added.)

         {¶18} Although a defendant has a right to a jury trial for certain petty offenses if properly invoked by the dictates of Crim.R. 23(A), the right does not extend ...


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