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State v. Grater

Court of Appeals of Ohio, Third District, Henry

July 30, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CHARLES L. GRATER, DEFENDANT-APPELLANT. STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
NORMA J. GRATER, DEFENDANT-APPELLANT.

          Appeals from Napoleon Municipal Court Trial Court Nos. 17CRB0473, 17CRB0474, 17CRB0475, 17CRB0476, 17CRB0477, 17CRB0478, 17CRB0479, 17CRB0480, 17CRB0481, 17CRB0464, 17CRB0465, 17CRB0466, 17CRB0467, 17CRB0468, 17CRB0469, 17CRB0470, 17CRB0471, 17CRB0472.

          Charles L. and Norma J. Grater, Appellants.

          Katie L. Nelson for Appellee.

          OPINION

          PRESTON, J.

         {¶1} Defendants-appellants, Norma Grater ("Norma") and Charles Grater ("Charles"), appeal the December 13, 2017 judgment entries of the Napoleon Municipal Court finding them guilty of violating the Damascus Township Zoning Resolution (the "Resolution"). For the reasons that follow, we affirm.

         {¶2} This case stems from an ongoing zoning dispute between Norma and Charles and Damascus Township, Henry County, Ohio. Norma and Charles, who are sister and brother, are joint owners, along with two other relatives, of a parcel of real estate situated on County Road M in McClure, Ohio (the "Property"). In June 2015 and July 2016, Charles received formal notices from Damascus Township informing him that the Property was not in compliance with the Resolution. (State's Exs. 31, 32). Finally, in May 2017, Charles and, for the first time, Norma-who had been added to the notices-received a notice warning them that they had until June 10, 2017 to bring the Property into compliance with the Resolution. (State's Ex. 33). Because Norma and Charles failed to meet this deadline, a total of 36 complaints were filed against Norma and Charles on June 13, 2017. Norma was charged in case numbers 17CRB0464, 17CRB0465, 17CRB0466, 17CRB0467, 17CRB0468, 17CRB0469, 17CRB0470, 17CRB0471, and 17CRB0472 ("Norma's Cases").[1] Charles was charged in case numbers 17CRB0473, 17CRB0474, 17CRB0475, 17CRB0476, 17CRB0477, 17CRB0478, 17CRB0479, 17CRB0480, and 17CRB0481 ("Charles's Cases").[2] Norma and Charles were each charged with nine violations of Article IV, Section Seven of the Resolution-each count representing one month during the period of September 8, 2016 through June 7, 2017 of which the Property was not in compliance with the Resolution. (Norma's Cases Doc. No. 1); (Charles's Cases Doc. No. 1). In addition, Norma and Charles were each charged with nine violations of Article IV, Section Eight of the Resolution-each count representing one month during the period of September 8, 2016 through June 7, 2017 of which the Property was not in compliance with the Resolution. (Id.); (Id.). On July 13, 2017, Norma and Charles appeared for arraignment, waived counsel, and entered pleas of not guilty. (Norma's Cases Doc. No. 3); (Charles's Cases Doc. No. 3).

         {¶3} A joint bench trial was held on November 28, 2017. (See Norma's Cases Doc. No. 6); (See Charles's Cases Doc. No. 6). On December 13, 2017, the trial court found Norma guilty on all 18 counts against her and Charles guilty on all 18 counts against him. (Norma's Cases Doc. No. 7); (Charles's Cases Doc. No. 7). The trial court fined Charles $400 for each of his 18 violations. (Charles's Cases Doc. No. 7). However, the trial court suspended $375 of each fine on the condition that Charles "have no violations of Article IV of the [Resolution] * * * for a two year period." (Id.). Similarly, the trial court fined Norma $150 for each of her 18 violations. (Norma's Cases Doc. No. 7). The trial court suspended the entirety of Norma's fines on the condition that Norma "have no violations of Article IV of the [Resolution] * * * for a two year period." (Id.).

         {¶4} On January 12, 2018, Norma and Charles filed notices of appeal. (Norma's Cases Doc. No. 9); (Charles's Cases Doc. No. 9). Norma's and Charles's appeals were subsequently consolidated for purposes of briefing and argument. They raise three assignments of error.

         Assignment of Error No. I

         The Manifest Weight of the Evidence Cannot Support Beyond a Doubt [sic].

         {¶5} In Norma and Charles's first assignment of error, they argue that their convictions for violating the Resolution are against the manifest weight of the evidence. Specifically, Norma and Charles argue that the trial court's determination that they are maintaining a junkyard at the Property in violation of the Resolution is against the manifest weight of the evidence because the State's evidence does not show that there is "junk" on the Property. Further, Norma and Charles argue that the trial court's determination that they are storing scrap metal on the Property is against the manifest weight of the evidence.

         {¶6} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, "'weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

         {¶7} Townships may enforce their zoning ordinances either by civil action or by criminal prosecution under R.C. 519.23.[3] Spencer Twp. Bd. of Trustees v. Dad's Auto Parts, L.L.C., 6th Dist. Lucas No. L-09-1188, 2010-Ohio-2253, ¶ 19, citing State v. McNulty, 111 Ohio App.3d 828, 830-832 (6th Dist. 1996) and W. Chester Twp. Zoning v. Fromm, 145 Ohio App.3d 172, 176-177 (12th Dist.2001). See State v. Workman, 3d Dist. Mercer No. 10-13-13, 2014-Ohio-258, ¶ 6 ("R.C. 519.23 * * * is the state statute upon which criminal liability for violation of a township zoning code is predicated."). "Criminal proceedings for violations] of [township] zoning ordinances * * * require proof beyond a reasonable doubt." Spencer Twp. at ¶ 19.

         {¶8} Norma and Charles were each charged with nine violations of Article IV, Section Seven of the Resolution and nine violations of Article IV, Section Eight of the Resolution. Article IV, Sections Seven and Eight of the Resolution provide:

{¶9} The following structures and uses are hereby prohibited[:]
* * *
7. Dumping, storing, burying, reducing, disposing of or burning garbage, refuse, scrap metal, rubbish, offal, or dead animals except such as result from the normal use of residential or agricultural premises, unless such dumping is done at a place provided by the Township Trustees for such specific purposes.
8. Junk yards, automobile graveyards, or places for the collection of scrap metal, paper, rags, glass, or junk for salvage purposes or for dismantling used vehicles or machinery.

(Emphasis added.). The Resolution does not define the term "junk yard." "Junk yard," as defined in the Ohio Revised Code, "means an establishment or place of business that is maintained or operated for the purpose of storing, keeping, buying, or selling junk." R.C. 4737.05(B). See also 1991 Ohio Atty.Gen.Ops. No. 91-018, syllabus (concluding that property that is "maintained or operated as a commercial establishment or place of business for the purpose of storing, keeping, buying, or selling" "old or scrap materials" is a junk yard). By the same token, "'[j]unk' means old or scrap copper, brass, rope, rags, trash, waste, batteries, paper, rubber, iron, steel, and other old or scrap ferrous or nonferrous materials, but does not include scrap tires as defined in [R.C. 3734.01]." R.C. 4737.05(A).

         {¶10} At trial, the State offered the testimony of Justin Niese ("Niese"), the Deputy Engineer and Surveyor with the Henry County Engineer's Office, who identified State's Exhibits 1 through 4 as aerial photographs printed from the Henry County Geographic Information System ("GIS"). (Nov. 28, 2017 Tr. at 11, 13-15). State's Exhibits 1 through 4 depict the Property at three points in time-2006, 2012, and 2016-and track the gradual expansion of a collection of various items on the Property from a modestly sized assortment of vehicles, machinery, and other miscellanea in 2006 to a sprawling assemblage which, by 2016, covered most of the Property and spilled out onto at least two adjacent or contiguous parcels of real estate. (See State's Exs. 1, 2, 3, 4). Niese testified that the GIS reflects that Norma owned the Property. (Nov. 28, 2017 Tr. at 14). Niese testified that the GIS lists the approximate size of the Property as 2.06 acres. (Id.).

          {¶11} Next, Greg Smith ("Smith"), a Damascus Township Trustee, testified that one of his principal duties as township trustee is to assist with enforcement of the Resolution. (Id. at 18). Smith testified that he is familiar with the Property. (Id. at 22). When asked whether he knew who owns the Property, Smith responded: "Mr. Grater, Charles Grater and his sister, maybe another sister, I'm not sure on the whole title." (Id.). Smith testified that Charles lives at the Property. (Id.).

         {¶12} Smith identified State's Exhibit 5 as an accurate copy of the Resolution. (Id. at 19-20). (State's Ex. 5). He testified that, to the best of his knowledge, the Resolution has not been amended since its original effective date in 1968. (Nov. 28, 2017 Tr. at 21). Smith also identified State's Exhibits 6 through 24 as various photographs of the Property. (Id. at 23-25). Like State's Exhibits 1 through 4, State's Exhibit 6 is an aerial photograph of the Property; however, there is no indication as to when the photograph was taken. (See State's Ex. 6). Smith testified that he personally took the photographs designated as State's Exhibits 7 through 24 from the road in front of the Property and that the photographs accurately depict the Property as it appeared from September 8, 2016 through June 7, 2017. (Nov. 28, 2017 Tr. at 24-25). (See State's Exs. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24). Although Smith testified that all the photographs labeled as State's Exhibits 7 through 24 were taken during the time period of September 8, 2016 through June 7, 2017, he could not remember the exact dates that he took the photographs. (Nov. 28, 2017 Tr. at 36).

         {¶13} Smith stated that the Property had "gotten worse" since he took the photographs designated as State's Exhibits 7 through 24. (Id. at 37). According to Smith, "[s]ome stuff has been moved and removed but more stuff has been added to the collection." (Id.). Smith testified that, in his "way of thinking," the Property was not in compliance with the Resolution. (Id.). Smith testified that he tried to speak with the Graters "[o]n numerous occasions" to ask them to bring the Property into compliance with the Resolution but that his efforts failed. (Id. at 38). Smith described some of the Graters' efforts to clean the Property, as well as a particular exchange with Charles, as follows:

[F]rom the first time we were out there you couldn't even walk in the driveway hardly * * * and [Charles] made some attempt to sort some of that so he could make a path back through there. On one occasion we were there and I was, at the time, working for a fabrication business south of Napoleon and there was [sic] a few air compressors sitting there * * * and I said, what about the air compressor? I said, why is it sitting there? He said, well nobody wants it * * * and I said, what do you want for it? [He told me] * * * today I'll take $100 for it. So I took my phone out to take a picture of it because we were in need of one where I worked and he said, well let me get the junk off of it first before I could take the picture. I took the picture, showed it to my boss and he wrote him a check and I went out and picked it up two days later.

(Id. at 38-39).

         {¶14} Smith testified that, as far as he knew, the Graters do not have a license to run a junkyard, salvage yard, or automobile graveyard at the Property, and they do not have a permit or a variance from Damascus Township to operate a junkyard. (Id. at 39). Finally, Smith identified State's Exhibits 25 through 30 as a series of "Craigslist listings for vehicles that evidently, * * * [Charles] has for sale online." (Id. at 39-40). (See State's Exs. 25-30). Smith testified that he saw "some" of the Craigslist advertisements but that he "didn't see all of them * * *." (Nov. 28, 2017 Tr. at 40). Smith testified that each advertisement depicts the place of sale as "about the location of [Charles's] residence." (Id.).

         {¶15} Charles, pro se, then proceeded to cross-examine Smith. On cross-examination, Smith testified that the air compressor that his boss purchased from Charles is "in use today" although it had to be repaired by "taking things off of it that were damaged from mishandling * * *." (Id. at 46). Charles asked Smith about the quality of the air compressor at the time of purchase:

[Charles]: So [the air compressor is] one thing you wouldn't consider to be junk, is that correct?
[Smith]: For the price we paid for it, I would call it salvage price. That's probably a several hundred-dollar air compressor.

(Id. at 47). Charles then asked Smith about the items that were on top of the air compressor that Charles allegedly called "junk":

[Charles]: You mentioned 1that I referred to some things that were lying on top of [the air compressor] as junk. Do you remember what those were?
[Smith]: Yes, they were boxes of concrete anchor bolts.
[Charles]: [They were] [b]rand new [anchor bolts], right?
** *
[Smith]: I don't know, they were rusty, in boxes that were ...

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