[Cite as State v. Shutway, 2016-Ohio-432.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2014-CA-26
                                                   :
 v.                                                :   Trial Court Case No. 2013-CRB-1144
                                                   :
 JOHN A. SHUTWAY                                   :   (Criminal Appeal from
                                                   :   Municipal Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 5th day of February, 2016.

                                              ...........

BREANNE PARCELS, Atty. Reg. No. 0089370, Champaign County Municipal
Prosecutor, 205 South Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

JOHN A. SHUTWAY, 573 East Church Street, Urbana, Ohio 43078
     Defendant-Appellant-Pro Se

                                             .............

WELBAUM, J.

        {¶ 1} Defendant-appellant, John A. Shutway, appeals pro se from his conviction in

the Champaign County Municipal Court for violating an order of the Champaign County

Health District in violation of R.C. 3707.48. For the reasons outlined below, the judgment
                                                                                            -2-


of the trial court will be reversed.

       {¶ 2} On October 15, 2013, Shutway was charged by complaint with one count of

resisting arrest, one count of failure to comply with the order or signal of a police officer,

and one count of obstructing official business. In addition, Shutway was charged with

one minor misdemeanor count of violating R.C. 3707.48, which provides:

       No person shall violate * * * any order or regulation of the board of health of

       a city or general health district made in pursuance thereof, obstruct or

       interfere with the execution of such order, or willfully or illegally omit to obey

       such order.

       {¶ 3} Shutway pled not guilty to all the charges and filed multiple pretrial motions,

including a motion to suppress, which was denied by the trial court.             After several

hearings and continuances, the matter eventually went to trial on July 17, 2014. At trial,

the trial court dismissed the charges for resisting arrest and failure to comply on

Shutway’s motion, and the jury found Shutway not guilty of obstructing official business.

Thereafter, the minor misdemeanor charge for violating R.C. 3707.48 was tried separately

before the bench.

       {¶ 4} The minor misdemeanor charge stemmed from allegations that Shutway

failed to have the city water service reconnected to his residence in Urbana, Ohio, after it

was shut off due to the nonpayment of his water bill, and then continued to live on the

property after the Champaign County Health District (“Health District”) had it condemned.

Specifically, the State alleged in its complaint that on October 13, 2013, Shutway “did

violate an order of the Champaign County Health District by willfully and illegally omitting

to obey said order issued by the Champaign County Health District 1008.2.3, failed to
                                                                                             -3-


either vacate or correct said violation (i.e. shut off water).” Complaint (Oct. 15, 2013),

Champaign County Municipal Court Case No. 2013-CRB-1144, Docket No. 5, p. 1.

       {¶ 5} At trial, the Superintendent of Urbana’s Water Division, Robert Munch,

testified that the Water Division had provided water service to Shutway for 14 years, but

had turned off Shutway’s service in May and July 2013, due to his outstanding water bill.

During his testimony, Munch identified Shutway’s application for water service, which was

admitted as Plaintiff’s Exhibit A. Munch also identified a letter he wrote to Shutway on

October 31, 2013, notifying Shutway that his water service had been restored. Munch’s

letter was admitted as Plaintiff’s Exhibit B.

       {¶ 6} Russ Wellman, an Environmental Technician from the Health District,

testified that on August 6, 2013, the Water Division notified the Health District that

Shutway’s water had been turned off. Wellman indicated that property without running

water violated Section 1008 of the Housing Maintenance Code of the Champaign Health

District (“Housing Maintenance Code”).          After the Health District was notified of the

violation, Wellman testified that on August 6, 2013, he personally left a notice at

Shutway’s residence regarding the water being shut off, as no one from the residence

would answer the door. A written report prepared by Wellman, which was admitted as

Plaintiff’s Exhibit C, also noted that Wellman had “[l]eft water shut off notice in door.”

       {¶ 7} After receiving no notice that Shutway’s water had been turned back on,

Wellman testified that he returned to Shutway’s residence two days later on August 8,

2013, and posted a “Condemned” sign near the front door of the property. A photograph

of the sign was admitted as Plaintiff’s Exhibit D. Wellman’s testimony and his written

report indicates that on August 14, 2013, he attempted to hand Shutway a copy of the
                                                                                        -4-


August 6th notice during a Health District board meeting that Shutway attended, but

Shutway refused to take the notice. Wellman, however, indicated that Shutway was

eventually served with the notice on August 20, 2013, when Sheriff’s Deputy John

McNeely personally handed it to him at court.

      {¶ 8} The State also presented testimony from Deputy Culler with the Champaign

County Sheriff’s Office.   Culler testified that he observed indicators that Shutway’s

residence was occupied on October 13, 2013, while he was inside the residence

attempting to arrest Shutway for unrelated charges. Specifically, Culler testified that he

observed Shutway’s son playing video games on the couch, electricity turned on, and

food in the kitchen.   In addition, Culler observed Shutway himself in the basement.

Deputy Glenn Kemp, who was also inside Shutway’s residence that day, testified that he

observed possessions in the home and that he poured a glass of water for Shutway’s wife

from a container that was on the kitchen counter, not from the tap. Culler testified that

at no point in time did Shutway indicate that he resided elsewhere, and it was obvious to

him that Shutway was living at that location. Culler also testified that he saw the Health

District’s “Condemned” sign near the door when he entered the residence.

      {¶ 9} Based on the testimony and evidence presented at trial, the trial court found

Shutway guilty of violating R.C. 3707.48. Specifically, the trial court found there was

unrebutted testimony establishing that Shutway was inside the residence while it was

marked as condemned, and that simply being present on the property was a violation of

the Health District’s order. As a result of his conviction, the trial court ordered Shutway

to pay a $100 fine and court costs.

      {¶ 10} Shutway now appeals from his conviction, raising eight assignments of error
                                                                                      -5-


for review. However, because it is dispositive of this appeal, we need only address

Shutway’s Fifth Assignment of Error, which is as follows:

      AS A MATTER OF LAW, THE CHAMPAIGN COUNTY HEALTH DISTRICT

      FAILED TO PROVIDE THE DUE PROCESS OF LAW WHEN IT FAILED

      TO SERVE “NOTICE” UPON THE DEFENDANTS PURSUANT TO

      HEALTH DISTRICT REGULATION OF A CLAIMED VIOLATION AND

      PLACED A “CONDEMNED” PLACARD ON THE APPELLANTS’ HOUSE.

      {¶ 11} Under his Fifth Assignment of Error, Shutway argues that the Health District

did not provide him with proper notice of the Housing Maintenance Code violation for his

failure to have the city water service reconnected to his property, and that said failure

violates the notice requirements of the Housing Maintenance Code and due process of

law. We agree.

      {¶ 12} “Due process under the Ohio and United States Constitutions demands that

the right to notice and an opportunity to be heard must be granted at a meaningful time

and in a meaningful manner where the state seeks to infringe a protected liberty or

property interest.” (Citations omitted.) State v. Hochhausler, 76 Ohio St.3d 455, 459,

668 N.E.2d 457 (1996). “Due process is a flexible concept, and the procedures required

vary as demanded by circumstances.” Riffe v. Ohio Real Estate Appraiser Bd., 130 Ohio

App.3d 46, 51, 719 N.E.2d 587 (1998), citing Morrissey v. Brewer, 408 U.S. 471, 481, 92

S.Ct. 2593, 33 L.Ed.2d 484 (1972). Accord Chapman v. Chapman, 2d Dist. Montgomery

No. 21652, 2007-Ohio-2968, ¶ 21; Thrower v. City of Akron, 9th Dist. Summit No. 21153,

2003-Ohio-1307, ¶ 24.

      {¶ 13} Section 1012.2 of the Housing Maintenance Code governs the form of
                                                                                            -6-


notice that is required to be given owners of property when the Health District finds a

residence unfit for habitation. That section of the code provides:

       Whenever the Health District has declared a dwelling or multi-family

       dwelling as unfit for human habitation and constituting a nuisance he shall

       give notice to the owner of such declaration and placarding of the dwelling

       or multi-family dwelling as unfit for human habitation. Such notice shall:

       (1)    Be in writing; and

       (2)    Include a description of the real estate sufficient for identification; and

       (3)    State the time occupants must vacate the dwelling units; and

       (4)    Said notice shall further state that, if such repairs, reconstruction,

              alterations, removal, or demolition are not voluntarily completed

              within the stated time as set forth in the notice, the Health District

              shall institute such legal proceedings charging the person or

              persons, firm, corporation or agent with a violation of this regulation.

       {¶ 14} In addition, Section 1012.3 of the Housing Maintenance Code provides the

following regarding the required service of notice:

       Service of notice to vacate shall be as follows:

       (1)    By delivery to the owner personally, or by leaving the notice at the

              usual place of abode of the owner with a person of suitable age and

              discretion; or

       (2)    By depositing the notice in the U.S. Post Office addressed to the

              owner at his last known address with postage prepaid thereon; or

       (3)    By posting and keeping posted for twenty-four hours a copy of the
                                                                                             -7-


              notice in placard form in a conspicuous place on the premises to be

              vacated.

       {¶ 15} As previously noted, Russ Wellman, the Environmental Technician from the

Health District, testified regarding the notice that was provided to Shutway by the Health

District. Both Wellman’s testimony and Plaintiff’s Exhibit C (the written report prepared

by Wellman) establish that Wellman left a “water shut off notice” on Shutway’s door on

August 6, 2013.     The same evidence also establishes that Wellman unsuccessfully

attempted to serve Shutway with the same notice at the Health District board meeting on

August 14, 2013, but that personal service of the notice was ultimately achieved on

August 20, 2013.

       {¶ 16} Taken as a whole, Wellman’s trial testimony indicates that the August 6th

notice concerned the Housing Maintenance Code violation for the water being

disconnected at Shutway’s residence. However, noticeably absent from the trial record

is any testimony or exhibits explaining the specific contents of that notice. Although the

August 6th notice was filed with the trial court on the day of trial, it is clear from the trial

transcript that the notice was never admitted as a trial exhibit, as the State never

presented Wellman with the notice to authenticate it during trial, nor offered the notice as

a trial exhibit for the trial court to consider. Wellman also testified that he did not have a

copy of the notice with him at trial.

       {¶ 17} We note that the August 6th notice was admitted during the suppression

hearing in this case, during which Wellman testified that the notice ordered Shutway to

either vacate the property or get the water reconnected within 48 hours, and that his

failure to do so would result in possible legal action.          Unfortunately, none of this
                                                                                              -8-


information was presented during Shutway’s bench trial.             Furthermore, there is no

stipulation in the record that the evidence admitted at the suppression hearing would also

be considered by the trial court in determining Shutway’s guilt at trial.

       {¶ 18} The “Condemned” sign Wellman posted at Shutway’s residence does not

shed any light on this matter either. At trial, Wellman agreed that “there is no way to tell

what the condemnation is by reading the [‘Condemned’] sign.” Trial Trans. Vol. II (July

17, 2014), p. 111.      Plaintiff’s Exhibit D, the photograph of the “Condemned” sign,

confirms that there was no specific Housing Maintenance Code violation nor any specific

order from the Health District affixed to the sign.

       {¶ 19} Therefore, although reflected in other parts of the record, we find nothing in

the record of the bench trial reflecting that the Health District served Shutway with a notice

that ordered him to do anything, let alone vacate his property or reconnect the water within

48 hours. Rather, based on the evidence submitted at trial, it appears that the notice

served on Shutway merely informed him that his water had been disconnected in violation

of the Housing Maintenance Code. This is insufficient and does not comply with the

notice requirements of Section 1012.2 of the Housing Maintenance Code.

       {¶ 20} Moreover, because the State failed to introduce any evidence at trial

regarding the Health District’s order, the State cannot support its allegation that Shutway

violated R.C. 3707.48. While the State clearly had access to evidence of the Health

District’s order, it nevertheless glossed over that fact at trial and failed to enter it into the

trial record. Due to the State’s technical failure of not offering any evidence showing that

the Health District provided a proper notice to Shutway ordering him to either vacate his

residence or have the water reconnected within 48 hours, it was erroneous for the trial
                                                                                      -9-


court to convict Shutway of violating R.C. 3707.48, as there is simply no order reflected

in the trial record from which it could be argued that Shutway willfully and illegally

disobeyed.

       {¶ 21} Shutway’s Fifth Assignment of Error is sustained.

       {¶ 22} Because our decision on Shutway’s Fifth Assignment of Error is dispositive

of the appeal, we need not address his remaining seven assignments of error, as they

are rendered moot. Having sustained Shutway’s Fifth Assignment of Error, the judgment

of the trial court convicting Shutway of violating R.C. 3707.48 is reversed.

                                     .............



DONOVAN, P.J. and FROELICH, J., concur.



Copies mailed to:

Breanne Parcels
John A. Shutway
Hon. Teresa L. Liston, Retired, Sitting by Assignment (c/o Hon. Gil S. Weithman)
