[Cite as Lakewood v. Calanni, 2011-Ohio-3465.]




         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95610




                              CITY OF LAKEWOOD
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                               CHARLES CALANNI
                                                       DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED



                                  Criminal Appeal from the
                                  Lakewood Municipal Court
                                  Case No. 2010-CRB-00684
     BEFORE: Celebrezze, J., Stewart, P.J., and Rocco, J.

    RELEASED AND JOURNALIZED:                 July 14, 2011
ATTORNEYS FOR APPELLANT

Timothy G. Sweeney
13363 Madison Avenue
Lakewood, Ohio 44107

Amy E. Stack
Kurt & Vermilya Law, Inc.
30432 Euclid Avenue
Suite 101
Wickliffe, Ohio 44092


ATTORNEYS FOR APPELLEE

Richard A. Neff
Chief Prosecutor
BY: Pamela L. Roessner
Assistant Prosecutor
City of Lakewood
12650 Detroit Avenue
Lakewood, Ohio 44107


FRANK D. CELEBREZZE, JR., J.:

     {¶ 1} Appellant, Charles Calanni, appeals from his conviction in the

Lakewood Municipal Court for failure to comply with a notice of violation

pursuant to Lakewood Municipal Ordinances (“L.M.O.”) 1306.99, which was

based on an earlier violation of L.M.O. 1161.03(j)(3). Appellant claims the

trial court improperly denied him the opportunity to present evidence

alleging disparate enforcement of the ordinance and that the city of Lakewood
(“Lakewood”) failed to adduce sufficient evidence of all elements of the

charged crime. After a thorough review of the record and law, we affirm

appellant’s conviction.

      {¶ 2} On April 15, 2010, Lakewood Commercial Building Inspector

Kevin Kelley was investigating reports of graffiti on Madison Avenue in

Lakewood, Ohio. After investigating the graffiti complaints, Inspector Kelley

drove down Madison Avenue looking for apparent code violations.                  At

appellant’s auto repair business on Madison Avenue, Inspector Kelley

observed a full parking lot, with vehicles spilling out onto the public sidewalk,

and two individuals doing repair work on a van parked on the public

sidewalk. The two individuals had placed a sawhorse, or construction horse,

supporting a windshield on the sidewalk next to the van further impeding

pedestrian traffic.       Inspector Kelley photographed the two individuals

repairing the windshield of the vehicle in front of the business and reported

the activity to his supervisor.

      {¶ 3} Lakewood’s records indicate that appellant had been issued a

prior notice of violation of L.M.O. 1161.03(j)(3)1 on May 7, 1998 for doing

repair work on vehicles other than inside the structure located on the


      1  This ordinance states: “In a C2 Retail District or C3 General Business
District, a motor vehicle repair/body shop may be permitted as a conditionally
permitted use provided that * * * (3) [a]ll activities, including cleaning, washing,
and drying operations shall take place inside the principal structure[.]”
property. Lakewood issued a citation for failing to comply with this earlier

notice.

      {¶ 4} Trial was held on July 23, 2010, and Lakewood presented the

testimony of Kelley to establish the violation of the prior notice and that the

business was open and operating at the time of the incident because the

garage door was open and it was during the normal operating hours of the

business. Appellant attempted to introduce photographs of other activities

in the area by other business owners to show that he had been selectively

cited for violations of L.M.O. 1161.03(j)(3) when others had not. However,

the trial court ruled that such a constitutional claim must be raised in a

motion prior to trial, and the trial court did not allow appellant to question

Inspector Kelley regarding the photos.

      {¶ 5} At the close of Lakewood’s case, appellant moved for dismissal

arguing that Lakewood had not shown that his business was located in a C2

retail or C3 general business zoned district, a requirement for citation under

L.M.O. 1161.03(j).     This motion was overruled based on Lakewood’s

argument that appellant was cited for violating L.M.O. 1306.99, failure to

comply with a prior notice, and not L.M.O. 1161.03(j).

      {¶ 6} Appellant also testified and denied knowing the individuals in the

photographs Kelley had taken or being present at the time the photos were

taken. Appellant claimed the individuals did not work for him and that they
were on his property doing repairs to a van without his knowledge or

permission.

      {¶ 7} The trial court found appellant guilty and imposed a fine of $500,

one year of probation, and an additional $500 fine to be held in abeyance

should future violations occur. Appellant then moved for a stay of execution

of sentence and filed the instant appeal.

                             Law and Analysis

         Failure to Raise Selective Prosecution Prior to Trial

      {¶ 8} Appellant first argues that “[t]he trial court erred in barring

[him] from introducing evidence of equal protection violations.”

      {¶ 9} It is well established that pursuant to Evid.R. 104, the

introduction of evidence at trial falls within the sound discretion of the trial

court. State v. Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026; State v.

Sibert (1994), 98 Ohio App.3d 412, 648 N.E.2d 861. Pursuant to Crim.R.

12(C), certain defenses must be raised prior to trial or they are considered

waived. This rule states, “[p]rior to trial, any party may raise by motion any

defense, objection, evidentiary issue, or request that is capable of

determination without the trial of the general issue.”

      {¶ 10} Crim.R. 12(H) makes clear that “[f]ailure by the defendant to

raise defenses or objections * * * shall constitute waiver of the defenses or

objections, but the court for good cause shown may grant relief from the
waiver.” See, also, Cleveland v. GSX Chem. Svcs. of Ohio, Inc. (May 7, 1992),

Cuyahoga App. No. 60512.

      {¶ 11} Citing Cleveland v. Peppers (July 17, 1986), Cuyahoga App. Nos.

50538, 50539, and 50540, the trial court ruled that appellant must present

his selective prosecution challenge in a pretrial motion and because he did

not, it was waived.    While that case does not stand for that proposition,2

Pepper Pike v. Dantzig, Cuyahoga App. No. 85287, 2005-Ohio-3486, does. In

Dantzig, this court held that “[a] defense of selective prosecution must be

raised in a pretrial motion.”     Id. at ¶15, citing GSX Chem., supra, citing

United States v. Jarret (C.A.7, 1983), 705 F.2d 198. Therefore, the trial court

was correct in so holding.

      {¶ 12} Because appellant failed to raise the issue of selective prosecution

in a timely pretrial motion, the trial court could limit the introduction of

evidence on this issue at its discretion.3

      {¶ 13} Further, the evidence appellant wished to introduce would not

have carried the substantial burden of showing unequal protection.            “‘To

support a claim of selective prosecution, “a defendant bears the heavy burden


      2 This case involves a motion made prior to trial, but does not address the
situation here or state that a motion must be made prior to trial.
      3 We note that the trial court did not completely exclude arguments
regarding appellant’s constitutional claims, but only excluded the introduction of
photographs appellant caused to be taken of similar instances of conduct for which
he was being prosecuted.
of establishing, at least prima facie, (1) that, while others similarly situated

have not generally been proceeded against because of conduct of the type

forming the basis of the charge against him, he has been singled out for

prosecution, and (2) that the government’s discriminatory selection of him for

prosecution has been invidious or in bad faith, i.e., based upon such

impermissible considerations as race, religion, or the desire to prevent his

exercise of constitutional rights.” State v. Flynt (1980), 63 Ohio St.2d 132,

134, 407 N.E.2d 15, quoting United States v. Berrios (C.A.2, 1974), 501 F.2d

1207, 1211.’” Dantzig at ¶18, quoting State v. LaMar, 95 Ohio St.3d 181,

2002-Ohio-2128, 767 N.E.2d 166, ¶44.

       {¶ 14} Appellant was attempting to introduce photographs taken on his

behalf as evidence showing similar acts by others for which he was being

prosecuted. This no more demonstrates unequal application of the law than

photos of other motorists speeding in a case involving a speeding citation.

This   would   not   help   appellant   show    “intentional   and   purposeful

discrimination.” State v. Freeman (1985), 20 Ohio St.3d 55, 58, 485 N.E.2d

1043. This is so because the “‘burden of showing discriminatory enforcement

* * * is not satisfied by a mere showing that others similarly situated have

not been prosecuted.’”      Cleveland v. Whitner, 119 Ohio Misc.2d 100,

2002-Ohio-4220, 774 N.E.2d 788, ¶18, quoting Elsaesser v. Hamilton Bd. of

Zoning Appeals (1990), 61 Ohio App.3d 641, 648-649, 573 N.E.2d 733.
Without evidence that Lakewood building inspectors ignored or refused to

issue notices of violation for similar conduct, appellant could not meet his

substantial burden of demonstrating unequal application of the law in

question.4 The trial court allowed appellant to explore issues of vagueness

and inquire into Inspector Kelley’s familiarity with citations issued for

violations of L.M.O. 1161.03. The only evidence appellant was not allowed to

introduce was the photographs, which would not be sufficient to support

appellant’s challenge.

      {¶ 15} Accordingly, appellant’s first assignment of error is overruled.




      4 Appellant did attempt to subpoena Inspector Kelley, requiring him to bring
records of all similar citations issued by Lakewood while Kelley has been employed
by Lakewood, but appellant did not file the subpoena duces tecum until 5:00 p.m.
the day before trial.
                            Motion for Acquittal

      {¶ 16} Appellant next argues that “[t]he trial court erred in failing to

grant [his] Criminal Rule 29 motion for acquittal.”

      {¶ 17} Under Crim.R. 29, a trial court “shall not order an entry of

judgment of acquittal if the evidence is such that reasonable minds can reach

different conclusions as to whether each material element of a crime has been

proved beyond a reasonable doubt.”       State v. Bridgeman (1978), 55 Ohio

St.2d 261, 381 N.E.2d 184, syllabus. “A motion for judgment of acquittal

under Crim.R. 29(A) should be granted only where reasonable minds could

not fail to find reasonable doubt.” State v. Apanovitch (1987), 33 Ohio St.3d

19, 23, 514 N.E.2d 394.

      {¶ 18} Thus, the test an appellate court must apply in reviewing a

challenge based on a denial of a motion for acquittal is the same as a

challenge based on the sufficiency of the evidence to support a conviction.

See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356. In State v. Jenks

(1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, the Ohio Supreme Court set

forth the test an appellate court should apply when reviewing the sufficiency

of the evidence in support of a conviction:

      {¶ 19} “[T]he relevant inquiry on appeal is whether any reasonable trier

of fact could have found the defendant guilty beyond a reasonable doubt. In

other words, an appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt.

 State v. Eley [(1978), 56 Ohio St.2d 169, 383 N.E.2d 132].”        See, also,

Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

      {¶ 20} Appellant argues that Lakewood failed to introduce evidence that

L.M.O. 1161.03(j)(3) applied to him.     However, he was prosecuted for a

violation of L.M.O. 1306.99, which does not require evidence of the particular

zoning of appellant’s business.    This ordinance states, “[w]hoever * * *

refuses, neglects, or fails to comply with a notice requiring the abatement or

removal of a violation or requiring compliance with any provisions of this

Code or other applicable Codes or any rule or regulation hereunder within the

time limit set forth in such notice, or maintains a use or occupancy prohibited

by this Code * * * shall be guilty of a misdemeanor * * *.” Appellant did not

challenge the notice of violation issued in 1998 or various other citations he

received for the same offense. A challenge to the notice of violation is the

proper forum to require Lakewood to demonstrate that L.M.O. 1161.03(j)(3)

applies to appellant.

      {¶ 21} Lakewood presented sufficient evidence, including the prior

notice of violation letter, a history of interactions between Lakewood and

appellant for similar violations including explanation of work that was and
was not allowed to be performed outside of a structure, and photographs

showing that work was being done on appellant’s property while the business

was open and operating in violation of the prior notice.       This constitutes

sufficient evidence of a violation of L.M.O. 1306.99.

      {¶ 22} Accordingly, appellant’s second assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant 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

Lakewood Municipal Court to carry this judgment into execution.             The

defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR
