[Cite as Bellefontaine v. Miller, 2009-Ohio-2818.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,
CITY OF BELLEFONTAINE,

        PLAINTIFF-APPELLEE,                                   CASE NO. 8-08-32

        v.

JAMES R. MILLER,                                              OPINION

        DEFENDANT-APPELLANT.




                      Appeal from Bellefontaine Municipal Court
                            Trial Court No. 08CRB01291

                                      Judgment Affirmed

                              Date of Decision:      June 15, 2009




APPEARANCES:

        James R. Miller, Appellant

        William T. Goslee and Daniel L. Bennett for Appellee
Case No. 8-08-32


ROGERS, J.

         {¶1} Defendant-Appellant, James R. Miller, appeals the judgment of the

Bellefontaine Municipal Court finding him guilty of leaving junk, unlicensed

vehicles on private property, and ordering him to pay a $25 fine. On appeal,

Miller argues that the trial court erred when it failed to make a record of a previous

proceeding against him; erred when it failed to use a “de facto ruling” from the

previous proceeding against him, in which he was found not guilty; erred in its

understanding of Ohio’s licensing system; erred when it failed to allow him to

fully present his argument in the previous proceeding, which would have

prevented the current proceeding from going to trial; and, erred in its consideration

of the accuracy and truthfulness of the State’s witness in both the previous and the

current proceeding. Based upon the following, we affirm the judgment of the trial

court.

         {¶2} In July 2008, the Bellefontaine Police Department issued a notice of

a “junk motor vehicle” violation to Miller, stating that he would be cited in

violation of Bellefontaine City Ordinance 303.09(C) if he did not remove from his

property an inoperable 1979 Chevrolet Camaro and an inoperable 1973 Pontiac

GTO, both with no registration.




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        {¶3} In August 2008, the Bellefontaine Police Department cited Miller for

leaving junk, unlicensed vehicles on private property in violation of Bellefontaine

City Ordinance 303.09(C), a minor misdemeanor.

        {¶4} In September 2008, the case proceeded to trial, at which Miller

appeared pro se. Immediately prior to hearing testimony, Miller moved to dismiss

the case on the basis of “res judicata” because he had been previously cited for

violating the junk vehicle ordinance with the same vehicles in June, and the trial

court found him not guilty. The trial court overruled Miller’s motion, stating that

“[i]t doesn’t constitute res judicata, Mr. Miller. I decided the earlier one that in

June you were not guilty of that violation[.] * * * Now you’ve been charged with

violating the vehicle – violating the ordinance on August 16th, and whether you’re

in violation of the ordinance at that time or not I won’t know until I hear the

evidence[.]” (Trial Tr., p. 4).

        {¶5} At trial, Officer Glenn Newland of the Bellefontaine Police

Department testified that, in July 2008, he was dispatched to 1294 Campbell Drive

in Bellefontaine, Ohio, regarding several junk vehicles; that he discovered an early

1970s Pontiac GTO, a 1979 Chevrolet Camaro, and a 1988 Chevrolet Celebrity1

on the property; that all of the vehicles were in violation of a city ordinance

regarding junk vehicles; that he spoke to Miller that day and Miller indicated that


1
  The Chevrolet Celebrity was later determined to belong to Miller’s father, and is not a subject of this
appeal.


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he owned the GTO and Camaro; that the GTO had no current registration and bore

a white license plate with green lettering that was from the early 1990s; that the

engine in the GTO was unattached to the frame, clearly making the vehicle

inoperable; that Miller admitted to him that the engine was not attached to the

GTO; that the GTO had no current plates; that there was “junk” inside of the GTO

and a canoe leaned up against it; that the Camaro was sitting in the yard with

weeds growing up around it; that the Camaro had no plates and the VIN plate was

rusted to the point that he could not read it; that he was unable to check the

registration on the Camaro because it had no plates and the VIN was

indecipherable; that Miller told him that the Camaro was inoperable; that he

encouraged Miller to move the vehicles, to bring them into compliance, or to sell

them, but that he did not seem open to any of those ideas; that he issued Miller a

“code violation order” which is a form providing notice of a city ordinance

violation and gives seven days for the offender to correct the problem; that he

returned to the property in August 2008, well after the one-week period had

elapsed, and found that nothing had changed, so he issued Miller a citation for the

violations.

       {¶6} On cross-examination, Officer Newland testified that he did not take

any pictures of the rusted VIN numbers, and that the photograph he took of the

GTO hood did not clearly show that the engine was disconnected.



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       {¶7} Miller testified that his address was 1294 Campbell Drive,

Bellefontaine, Ohio; that the VIN numbers on the Camaro were intact; that he

never told Officer Newland that either vehicle did not run; that the Camaro ran,

however, it was not “street legal” because it did not have a catalytic converter; that

he never told Officer Newland that the motor to the GTO was disconnected; that

there were tags on the GTO, but there were no tags on the Camaro; that he had not

registered the Camaro since 1995, and had not operated it since 1998; that he had

not registered the GTO since the late 1980s, and it did not have valid plates; that

the engine on the GTO was not in running condition; and, that the photographs

demonstrated that the GTO had no headlights and had a flat tire.

       {¶8} Thereafter, the trial court found Miller guilty, stating that “I’m

satisfied with at least with regard to the [GTO] based upon what I’ve heard that it

is in fact inoperable, and that also fits the definition of a junk vehicle.” (Trial Tr.,

p. 23). The trial court ordered Miller to pay a $25 fine, plus court costs.

       {¶9} In October 2008, Miller filed a motion for leave to untimely appeal,

which this Court granted in December 2008.

       {¶10} In March 2009, Miller filed a motion for leave to supplement the

record with the judgment entries and supporting documents, including transcripts,

from both the prior June proceeding against him, as well as a proceeding initiated

subsequent to the September proceeding at issue.



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       {¶11} In April 2009, this Court denied Miller’s motion for leave to

supplement the record on appeal on the basis that a record may be supplemented

only to add matters that were actually before the trial court and therefore,

constitute part of the proceedings.

       {¶12} It is from his conviction that Miller appeals, presenting the following

pro se assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE
       A RECORD OF THE PROCEEDINGS REGARDING CASE
       NO.: 08CRB00849 HEARD ON JUNE 30TH, 2008.

                            Assignment of Error No. II

       THE TRIAL COURT SHOULD HAVE UTILIZED A DE
       FACTO RULING FROM CASE NO.: 08CRB00849, IN
       WHICH THE DEFENDANT WAS FOUND NOT GUILTY.

                           Assignment of Error No. III

       THE TRIAL COURT ERRED IN ITS UNDERSTANDING OF
       THE LICENSING SYSTEM UTILIZED BY THE STATE OF
       OHIO.

                           Assignment of Error No. IV

       THE TRIAL COURT ERRED WHEN IT FAILED TO
       ALLOW THE DEFENDANT TO FULLY PRESENT HIS
       ARGUMENT IN CASE NO.: 08CRB00849 WHICH WOULD
       HAVE PREVENTED CASE NO.: 08CRB01291 FROM GOING
       TO TRIAL.




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                            Assignment of Error No. V

       THE TRIAL COURT ERRED WHEN CONSIDERING THE
       ACCURACY AND TRUTHFULNESS OF THE STATE’S
       WITNESS IN CASE NO.: 08CRB01291 AND CASE NO.:
       08CRB01977.

                             Assignment of Error No. I

       {¶13} In his first assignment of error, Miller contends that the trial court

erred because it failed to make a record of a prior proceeding against him.

Specifically, Miller argues that, because the trial court did not make a record of a

prior proceeding against him, apparently regarding the same vehicles, it was

impossible for him to obtain a dismissal of the current case.

       {¶14} It is axiomatic that an appellate court may only consider evidence

that was before the trial court in the proceeding being appealed from and was

made part of the appellate record. Bank One Lima, N.A. v. Altenburger (1992), 84

Ohio App.3d 250, 256, citing Paulin v. Midland Mut. Life Ins. Co. (1974), 37 Ohio

St.2d 109, 112. Thus, an appellate court may not make a decision based upon

allegations founded upon facts outside of the record. App.R. 9(A); State v. Ishmail

(1978), 54 Ohio St.2d 402. Accordingly, we cannot consider Miller’s argument

that, had the trial court made a record of the prior proceeding, he would have been

able to dismiss the current proceeding, as this evidence was not before the trial

court in the current proceeding being appealed.

       {¶15} Accordingly, we overrule Miller’s first assignment of error.


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                            Assignment of Error No. II

       {¶16} In his second assignment of error, Miller contends that the trial court

erred when it failed to use a “de facto ruling” from the previous proceeding against

him, in which he was found not guilty. Specifically, Miller argues that res judicata

did not permit the second action against him based on new evidence.

       {¶17} Miller was convicted of leaving junk, unlicensed vehicles on private

property in violation of Bellefontaine City Ordinance 303.09, which provides, in

pertinent part:

       (c)    No person in charge or control of any property within the
       City, whether as owner, tenant, occupant, lessee, or otherwise,
       shall allow any partially dismantled, or non-operating, or
       wrecked, or junked, or discarded vehicle, or vehicle which does
       not have secured to it the full number of current license plates
       required by the laws of the State, to remain on such property
       longer than seven days[.] * * *
       ***
       (e)    Whoever violates this section is guilty of a minor
       misdemeanor, and shall also be assessed any costs incurred by
       the Municipality in disposing of such junk motor vehicle, less
       any money accruing to the Municipality from such disposal.
       Each day such violation is committed or permitted to continue
       shall constitute a separate offense.

       {¶18} Additionally, the doctrine of res judicata provides that “‘an existing

final judgment, rendered upon the merits, without fraud or collusion, by a court of

competent jurisdiction, is conclusive of rights, questions and facts in issue, as to

the parties and their privies, in all other actions * * *.’ Thus, a judgment in a

former action acts as a bar in a subsequent action where the cause of action


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prosecuted is the same.” State v. Hay, 169 Ohio App.3d 59, 2006-Ohio-5126, ¶24,

quoting Norwood v. McDonald (1943), 142 Ohio St. 299, 305.

       {¶19} Here, Miller argues that res judicata did not permit the current action

against him because he was previously prosecuted for the same offense, and that

the trial court should have used a “de facto” not guilty ruling from the prior

proceeding.     However, Miller’s res judicata argument lacks merit because

Bellefontaine City Ordinance 303.09(e) clearly provides that “[e]ach day such

violation is committed or permitted to continue shall constitute a separate

offense.”     Although Miller’s offense of violating the city ordinance is only

punishable once, each day he fails to comply constitutes a separate punishable

offense. See Cleveland v. Modic, 8th Dist. No. 63674, 1992 WL 390207, citing

Jones v. Thomas (1989), 491 U.S. 376, 381, Brown v. Ohio (1977), 432 U.S. 161.

Thus, res judicata did not bar his prosecution for this “separate offense.”

       {¶20} Accordingly, we overrule Miller’s second assignment of error.

                            Assignment of Error No. III

       {¶21} In his third assignment of error, Miller contends that the trial court

erred in its understanding of Ohio’s licensing system. Specifically, Miller argues

that the State only requires vehicles currently being used on public roadways to

have current license plates; thus, vehicles that are currently parked, stored, or used




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exclusively on private property are not required to be licensed, making

Bellefontaine City Ordinance 303.09 based upon a nonexistent state law.

       {¶22} R.C. 4503.191(A) governs issuance of display licenses, and

provides:

       The identification license plate shall be issued for a multi-year
       period as determined by the director of public safety, and shall
       be accompanied by a validation sticker, to be attached to the
       license plate. The validation sticker shall indicate the expiration
       of the registration period to which the motor vehicle for which
       the license plate is issued is assigned, in accordance with rules
       adopted by the registrar of motor vehicles. During each
       succeeding year of the multi-year period following the issuance
       of the plate and validation sticker, upon the filing of an
       application for registration and the payment of the tax therefor,
       a validation sticker alone shall be issued. * * *

       {¶23} Additionally, Ohio Adm. Code 4501-27-02 governs license plate

service specifications and provides, in pertinent part:

       (A) A person who is the owner or operator of a motor vehicle
       may continue to display a license plate issued to that vehicle
       under sections 4503.19 and 4503.191 of the Revised Code until
       the license plate is lost, mutilated, or destroyed; becomes
       illegible; loses its reflectivity; or is declared obsolete under this
       rule, provided that the plate also displays a current and valid
       validation sticker and county identification sticker.

       (B) No person who is the owner or operator of a motor vehicle
       shall display a license plate issued to a vehicle under sections
       4503.19 and 4503.191 of the Revised Code if the license plate is
       mutilated or destroyed, becomes illegible, loses its reflectivity, or
       is declared obsolete under this rule.

       ***



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       (F) All license plates having a white background with blue
       characters are determined to have exceeded their useful service
       life and are hereby declared obsolete effective upon the first
       registration expiration date occurring after the thirtieth day of
       September 2001.

       {¶24} As clarified in Miller’s reply brief and oral argument, we construe

his argument to be that Bellefontaine City Ordinance 303.09 is unconstitutional

because he contends it conflicts with State law. However, because Miller did not

raise the issue of constitutionality of the ordinance at trial, he has waived this

argument and we need not address it. See State v. Awan (1986), 22 Ohio St.3d

120, syllabus.

       {¶25} Accordingly, we overrule Miller’s third assignment of error.

                            Assignment of Error No. IV

       {¶26} In his fourth assignment of error, Miller contends that the trial court

erred when it failed to allow him to fully present his argument in the prior

proceeding, which he avers would have prevented the current proceeding from

going to trial. Specifically, Miller argues that the trial court denied him equal

protection of the laws because it did not afford him the opportunity to fully explain

his “motion for dismissal” in the prior proceeding, in which he contends he would

have alleged that the city arbitrarily chose to prosecute him and not others he

claims were in violation of the ordinance.




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       {¶27} As stated in our analysis of Miller’s first assignment of error, it is

axiomatic that an appellate court may only consider evidence that was before the

trial court in the proceeding being appealed from and that was made part of the

appellate record. Bank One Lima, supra, citing Paulin, supra. Here, as records

pertaining to the prior proceeding were not before the trial court in the present

proceeding being appealed from, and were not made part of the appellate record,

we may not consider this argument.

       {¶28} Accordingly, we overrule Miller’s fourth assignment of error.

                            Assignment of Error No. V

       {¶29} In his fifth assignment of error, Miller contends that the trial court

erred in its consideration of the accuracy and truthfulness of the State’s witness in

both the previous and the current proceeding. Specifically, Miller argues that

Officer Newland’s testimony was inaccurate because he identified Miller’s

father’s truck as “green” instead of “dark blue and gray,” and because he did not

photograph the rusted VIN number plate on the Camaro. Additionally, Miller

makes several references to alleged evidence outside of the record of the case

before us.

       {¶30} Substantively, Miller’s argument is that his conviction was against

the manifest weight of the evidence.        When an appellate court analyzes a

conviction under the manifest weight standard, it must review the entire record,



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weigh all of the evidence and all of the reasonable inferences, consider the

credibility of the witnesses, and determine whether, in resolving conflicts in the

evidence, the fact finder 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-Ohio-52, quoting State v.

Martin (1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the

evidence “weighs heavily against the conviction,” should an appellate court

overturn the trial court’s judgment. Id.

       {¶31} As discussed above, Miller was cited for violating Bellefontaine City

Ordinance 303.09 prohibiting “junk vehicles,” which provides, in pertinent part:

       (c)   No person in charge or control of any property within the
       City, whether as owner, tenant, occupant, lessee, or otherwise,
       shall allow any partially dismantled, or non-operating, or
       wrecked, or junked, or discarded vehicle, or vehicle which does
       not have secured to it the full number of current license plates
       required by the laws of the State, to remain on such property
       longer than seven days[.] * * *

       {¶32} Here, the city presented evidence from Officer Newland that Miller

admitted ownership of the two vehicles at his address, and that he admitted that the

engine was not attached to the GTO and that the Camaro was inoperable. Further,

Miller himself testified that the engine on the GTO was not in running condition,

and that it had no headlights and a flat tire. Although Miller testified that he never

told Officer Newland that either vehicle did not run or that the GTO engine was



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disconnected, we cannot find that the trial court clearly lost its way and created a

manifest miscarriage of justice, particularly given that the trial court is in the best

position to weigh witness credibility. See In re Jane Doe I (1991), 57 Ohio St.3d

135, 138.

       {¶33} Accordingly, we overrule Miller’s fifth assignment of error.

       {¶34} Finally, we note that, although not set forth in an assignment of error

in his brief, Miller contended in the “statement of facts” of his reply brief and at

oral argument that the trial proceedings were incorrectly transcribed, and that he

filed a motion with the trial court to correct the transcript in March 2009. App.R.

16 requires an appellant’s brief to contain a statement of the assignments of error

set forth for review and an argument with respect to each assignment of error.

Where arguments have not been adequately set forth for review, an appellate court

is not required to address them. App.R. 16(A)(7); App.R. 12(A)(2). Accordingly,

as Miller did not set forth this argument in an assignment of error in his appellate

brief, we need not address it.

       {¶35} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr



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