Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cleveland Municipal Court Case No. 2017 TRD
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,
JOURNAL ENTRY AND OPINION
J. BOYLE, JUDGE.
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
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
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
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
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.
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
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.
Finally, we disagree with Krebs that his conviction for
driving on a sidewalk is against the manifest weight of the
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.
Procedural History and Facts
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
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.
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
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.
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.
Officer Mercado immediately got into his vehicle, followed
Krebs and effectuated a traffic stop. He then issued Krebs
the three citations.
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.
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.
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.
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).
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
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 ...