Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Rocky River Municipal Court Case No.
2016 CRB 2047
ATTORNEY FOR APPELLANT Wendy S. Rosett 16781 Chagrin
Boulevard, Suite 304 Shaker Heights, Ohio 44120
ATTORNEYS FOR APPELLEE Michael R. Gareau, Jr. Director of Law
Bryan P. O'Malley Assistant Director of Law
BEFORE: Blackmon, J., Boyle, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, JUDGE
{¶1}
Defendant-appellant, Kim M. Rock ("Rock"), appeals
from the judgment of the Rocky River Municipal Court finding
her guilty of failing to maintain her property in accordance
with the requirements of the city's property maintenance
code, and failing to comply with a notice to remove trash and
debris from her property. She assigns the following errors
for our review:
I. [Rock's] convictions on both counts were based upon
insufficient evidence and were otherwise against the
sufficiency and/or manifest weight of the evidence and not
beyond a reasonable doubt contrary to Ohio law and the State
and Federal Constitutions, particularly given the lack of
argument, evidence or finding as to the mandatory mens rea.
II. The trial court erred to the prejudice of [Rock] by
sentencing her to 60 days in jail, l0 days to be served, 4
years of probation, improper conditions, and fines in
violation of Ohio law and [Rock's] right to due process
of law, and her right against imposition of excessive
sentences set forth in the Eighth and Fourteenth Amendments
to the U.S. Constitution and Section 16, Article I of the
Ohio Constitution.
{¶2}
Having reviewed the arguments of the parties and the
pertinent law, we affirm the convictions, reverse the
sentence in part, and remand for resentencing. The apposite
facts follow.
{¶3}
In August 2016, Rock was charged with two violations of
failing to maintain her property in accordance with the North
Olmsted Building Code by failing to remove trash and debris,
and failing to comply with notice of code violations, in
violation of North Olmsted Code Sections 1363.105,
1363.302.1, and 1363.302.2.
{¶4}
Rock pled not guilty and the matter proceeded to a bench
trial on March 1, 2017. The city's evidence demonstrated
that in early May 2016, North Olmsted Building Inspector
James McGaughey ("Inspector McGaughey") visited
Rock's property, located on Mackenzie Road, and observed
violations for a rusted trailer, accumulated trash and
debris, and discarded materials. One week later, he returned
to the property and took photographs depicting ongoing
violations. On May 11, 2016, Inspector McGaughey spoke with
Rock to further explain the violations. The following month,
he again visited the property and spoke with her about the
violations.
{¶5}
On June 13, 2016, Inspector McGaughey noted and photographed
the ongoing violations. He issued Rock a Notice of Code
Violations identifying that the trailer remained in the yard,
and there was accumulated trash, debris, and discarded
materials. The notice apprised Rock that she was to take
corrective action by June 22, 2016, or she would face
penalties identified in North Olmsted Code Section 1363,
unless she administratively appealed.
{¶6} When Inspector McGaughey returned
to Rock's property on June 23, 2016, he noted continuing
noncompliance. He photographed rubbish and various other
items, including rusted metal, an aquarium, tarps, shelving,
and wood. He sent Rock a second notice of Code Violations
explaining that there was accumulated trash, debris, and
discarded materials. The notice apprised Rock that she was to
take corrective action by July 11, 2016.
{¶7}
Inspector McGaughey returned to the property on July 14,
2016, and met with Rock. According to McGaughey, the trailer
was removed but rubbish and discarded materials violations
needed to be removed, including various totes, discarded
items and other clutter, including an aquarium, shelving,
wood, and rubbish. He then gave her until July 26, 2017, to
comply. On that date, he noted some improvement that
"was still not sufficient."
{¶8}
McGaughey admitted that Rock had questions about the
violations, and he stated that he met with her on the
property and pointed out each item that had to be removed.
{¶9}
For her defense, Rock testified that she did not receive
information concerning an appeal from the violations notice
until after she was criminally cited. She further testified
that she did understand the violation notices and did not
understand the specifics of why she was cited. She explained
that the items were in her yard as part of various furniture
refinishing, home repair, gardening, and other seasonal
projects. Rock stated that in response to her repeated
inquiries seeking clarification, Inspector McGaughey either
ignored her or referred her to the building code.
{¶10}
At the conclusion of the trial, the court found as follows:
1. The North Olmsted Building Department gave defendant
notice on or about 5/02/16 alleging [specific] violations of
North Olmsted Building Codes [and giving] defendant until
5/09/16 to abate the violation.
2. Defendant asked for and received more time to abate the
violations.
** *
4. In a Notice of Code Violation dated 6/13/16
(Plaintiff's Exhibit 1), defendant was advised
specifically as to items that had to be removed, including
both the trash and debris and the discarded materials.
5. That notice (Plaintiff's Exhibit 1) gave defendant
until 6/22/16 to correct the violations [and advised of
appeal procedures].
** *
7. No appeal was filed per the detailed instructions [on the
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