[Cite as Olmsted Falls v. Bowman, 2014-Ohio-109.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99012




                          CITY OF OLMSTED FALLS
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                      TED BOWMAN
                                                          DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                     Criminal Appeal from the
                                      Berea Municipal Court
                                     Case No. 07 CRB 01486

        BEFORE:         Keough, J., Stewart, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                         January 16, 2014
ATTORNEY FOR APPELLANT

Michael Aten
Westgate Towers, Suite 501
20525 Center Ridge Road
Rocky River, Ohio 44116


ATTORNEY FOR APPELLEE

Bradley D. Burland
1 Berea Commons, Suite 216
Berea, Ohio 44017
KATHLEEN ANN KEOUGH, J.:

      {¶1} Defendant-appellant, Ted Bowman (“Bowman”), appeals his conviction.

For the reasons that follow, we reverse and remand for further proceedings.

      {¶2} In 2006, Bowman was notified by the city of Olmsted Falls (“city”) that his

real property was in violation of the city’s zoning code and was ordered to bring his

property into compliance. When Bowman did not comply with the notice, he was issued

a citation and charged with failure to comply with that notice pursuant to Olmsted Falls

Codified Ordinances 1210.03(b).

      {¶3} Bowman moved to dismiss the citation, arguing that the citation issued to him

did not charge a criminal offense. After the trial court denied the motion to dismiss and

issued other adverse rulings against Bowman, Bowman pled no contest to the citation.

The trial court sentenced him to a fine of $100 plus court costs, and 60 days in jail.

Bowman appealed, challenging, among other things, that the trial court failed to comply

with Crim.R. 11.     See Olmsted Falls v. Bowman, 8th Dist. Cuyahoga No. 94000,

2010-Ohio-5767 (“Bowman I”).      This court agreed, reversed Bowman’s conviction, and

remanded the case for further proceedings.

      {¶4} On remand the matter proceeded to trial.       Following the bench trial, the

court found Bowman guilty and sentenced him to a $1,000 fine and 180 days in jail,

which was deferred for 60 days with a reduction in the penalty if Bowman brought the

property into compliance. Bowman now appeals, raising two assignments of error.
      {¶5} In his first assignment of error, Bowman contends that the trial court erred

and abused its discretion in violation of his right to compulsory process by granting in

part the city’s motion to quash the subpoena duces tecum directed to Robert McLaughlin,

Administrator of Building and Zoning for the city.

      {¶6} In March 2009 and again in 2012 after Bowman I,              Bowman issued a

subpoena duces tecum to McLaughlin and the city requesting that the city provide

documentation and photographs pertaining to the prosecution of the city’s case against

Bowman.     The information requested included documentation regarding Bowman’s

property, but also “citations, zoning compliance certificates and occupancy permits issued

since October 1997” for twelve other properties.

      {¶7} In response to the 2009 request, McLaughlin and the city filed a written

motion to quash the subpoena contending that the subpoena is unreasonable, oppressive,

and the information requested is irrelevant. The court granted the motion to quash, in

part — quashing the documents requested for the twelve other properties, but ordering the

city to provide the documents and items requested only as they pertained to Bowman’s

property. The court further denied Bowman’s request for reconsideration.

      {¶8} Prior to the start of trial in 2012, the city orally moved to quash the re-issued

subpoena as to the information requested on the other parcels of property not belonging to

Bowman because the evidence would be irrelevant and the production of the documents

would be unreasonable and oppressive.     The trial court agreed, specifically finding that

“reference to any other lot would be irrelevant, * * * and evidence as to any other lot is
excluded.” Additionally, the App.R. 9(C) statement of the proceedings provides that the

court indicated that “it had already ruled on this motion previously. Also, the records

were not available for proffer into evidence.”

       {¶9}     Bowman contends on appeal that the trial court erred in (1) failing to hold

an evidentiary hearing prior to quashing his subpoena and (2) the action of quashing his

subpoena prevented him from proving his defense of selective prosecution.

       {¶10} Crim.R. 17(C) confers upon the trial court the discretion to quash or modify

a subpoena, on motion of a party, if compliance would be “unreasonable or oppressive.”

State v. Baker, 12th Dist. Warren No. CA2009-06-079, 2010-Ohio-1289, ¶ 15. An

appellate court generally applies an abuse of discretion standard in reviewing a trial

court’s decision concerning a motion to quash a subpoena.     State v. Strickland, 183 Ohio

App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 37 (8th Dist.).

       {¶11} When deciding a motion to quash a subpoena under Crim.R. 17, the trial

court must conduct an evidentiary hearing. In Re Subpoena Duces Tecum Served upon

Attorney Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, 796 N.E.2d 915, paragraph one of

the syllabus.

       At the hearing, the proponent of the subpoena bears the burden of
       demonstrating that the subpoena is not unreasonable or oppressive by
       showing “(1) that the subpoenaed documents are evidentiary and relevant;
       (2) that they are not otherwise reasonably procurable in advance of trial by
       due diligence; (3) that the proponent cannot properly prepare for trial
       without production and inspection of the documents and that the failure to
       obtain the documents may tend to unreasonably delay the trial, and (4) that
       the subpoena is made in good faith and not intended as a general ‘fishing
       expedition.’”
Id., quoting United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d

1039 (1974).

       {¶12} In this case, the trial court did not conduct an evidentiary hearing prior to

ruling on the city’s day of trial oral motion to quash.          Even if the court silently

considered the Nixon factors, as the city argues on appeal, this “non-oral” consideration is

insufficient under Nixon and Potts because the proponent of the subpoena bears the

burden of proving that he satisfies the Nixon factors.     See Potts at ¶ 15.   A trial court

unilaterally determining whether the proponent can or cannot satisfy his or her burden

without hearing any argument deprives the proponent due process under the law.

       {¶13} Therefore, following the precedent in Potts, we sustain Bowman’s

assignment of error. Reversing on this issue renders Bowman’s second issue concerning

selective prosecution also raised under this assignment of error moot.

       {¶14} In his second assignment of error, Bowman contends that the trial court

erred and abused its discretion in violation of his right to present a defense by granting the

city’s motion to exclude evidence regarding procedural defects in the enactment of the

zoning ordinance.

       {¶15} The App.R. 9(C) statement provides that Bowman, as a defense to the

citation, challenged the validity of the ordinance under which he was charged.            He

“contended that the [c]ity [c]harter mandated ‘yea’ or ‘nay’ votes on all business.

[Bowman] proposed to introduce the testimony of Angela Mancini, the Olmsted Falls

Clerk of Council, to the effect that the votes taken on the ordinance in question were ‘yes’
or ‘no’ votes.”     According to Bowman, the use of the “yes” or “no” votes were not in

conformity with the city charter, therefore, the ordinance was never properly enacted.

       {¶16}      According to the App.R. 9(C) statement,

       The Court found that the terms “yea” and “nay” were not defined in the City
       Charter nor the ordinances adopted pursuant thereto and that common sense
       interprets such terms as requiring only an indication of an affirmative or
       negative vote, irrespective of the words actually used. To find otherwise,
       the Court reasoned, would practically disenfranchise council members and
       therefore the citizens of Olmsted Falls. Having so decided, the Court
       granted the prosecution’s motion to exclude evidence as to the validity of
       the ordinance. The witness was then excused without having proffered
       records subpoenaed or evidence to which she would or could have testified.


       {¶17} The App.R. 9(C) record before this court does not provide that Bowman

objected to Mancini being excused as a witness or that he was precluded from proffering

the records or evidence to which Mancini would have testified.        Accordingly, there is

nothing in the record before this court that the city charter was not followed when the city

enacted Olmsted Falls Ordinances 1210.03(b).

       {¶18}      Bowman’s second assignment of error is overruled.

       {¶19} Judgment reversed; case remanded to the trial court for further proceedings

consistent with this opinion, including conducting an evidentiary hearing and applying the

appropriate standard on the city’s motion to quash.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Berea

Municipal Court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
