[Cite as Canton v. Schuster, 2020-Ohio-3060.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



CITY OF CANTON                                     JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 2019 CA 00115
CHRISTINE SCHUSTER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Canton Municipal
                                                Court, Case No. 2019CRB01102


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         May 21, 2020



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

KRISTEN BATES-AYLWARD                           AARON KOVALCHIK
CANTON LAW DIRECTOR                             116 Cleveland Avenue South
JASON P. REESE                                  Suite 808
CANTON CITY PROSECUTOR                          Canton, Ohio 44702
KELLY PARKER
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW
Canton, Ohio 44702
Stark County, Case No. 2019 CA 00115                                                        2


Wise, J.

       {¶1}   Appellant Christine Schuster appeals her conviction on one misdemeanor

count of failing to comply with a notice of violation or order to correct property

maintenance code violations.

       {¶2}   Appellee is the City of Canton.

                                  STATEMENT OF THE FACTS

       {¶3}   For purposes of this Opinion, the relevant facts and procedural history are

as follows:

       {¶4}   Karla Heinzer works in the city of Canton Building Department as a Code

Enforcement Officer and enforces Cod. Ord. 1351.03(L), which states that any person

failing to comply with a notice of violation or order to correct property maintenance code

violations is guilty of a misdemeanor or civil infraction. (T. at 47; Cod. Ord. 1351.03(1)).

When a Code Enforcement Officer sees a property maintenance code violation, the officer

will issue a written notice of the violation and order the owner to correct the violation by a

re-inspection date. (T. at 50-51, 53-54). The notice identifies the property, includes a

statement of the violation, includes a correction order allowing a reasonable amount of

time to make repairs, and informs the property owner of the right to an administrative

appeal before the Canton Board of Building Appeals. (T. at 51; Cod. Ord. 1351.01, 2006

IPMC §107.2). The notice is posted at the property and is also mailed to the property

owner at the last known address. (T. at 50-51, 53-54).

       {¶5}   Upon receiving a complaint about the property, Officer Heinzer inspected

906 High Avenue, N.W. on February 22, 2018. (T. at 49). As a result of the inspection,

Officer Heinzer issued notice of twelve (12) property maintenance code violations to the
State County, Case No. 2019 CA 00115                                                       3


owner of the property, Appellant Christine Schuster, and ordered her to tuck-point the

masonry joints at the foundation, scrape and paint the siding, eaves, and fascia, repair or

replace the gutters, repair or replace downspouts, repair or replace steps to the backdoor,

install a handrail, repair or replace lattice work, clean up trash and debris, repair the

garage foundation where there was a hole at the northwest corner, repair or replace

garage gutters, repair or replace garage downspouts, and scrape and paint the garage

siding, including the trim, by April 6, 2018. (T. 53-54 ).

       {¶6}   Officer Heinzer re-inspected the property on April 6, 2018, May 15, 2018,

and September 4, 2018. (T. at 61, 68, 70).

       {¶7}   When Appellant failed to comply with the April order, the City of Canton

issued a non-compliance fine and issued a second notice of violation. (T. at 61). A third

notice of violation was subsequently issued. (T. at 66, 69-70, 110).

       {¶8}   Following the final inspection on September 4, 2018, all twelve (12)

violations from the February inspection and notice still remained. (T. at 70-73).

       {¶9}   Appellant was subsequently charged with a misdemeanor of the first degree

for failing to comply with a notice of violation or order to correct property maintenance

code violations. Id.

       {¶10} On July 1, 2019, the case proceeded to trial in the Canton Municipal Court.

The jury heard testimony from Ms. Heinzer and Appellant. Appellant did not make any

legal challenges to the ordinance, constitutional or otherwise.

       {¶11} At the conclusion of the trial, the jury found Appellant guilty as charged.

       {¶12} Appellant now appeals, raising the following errors for review:
State County, Case No. 2019 CA 00115                                                       4


                                  ASSIGNMENTS OF ERROR

       {¶13} “I. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.

       {¶14} “II. CANTON CITY ORDINANCE 1351.03 IS VAGUE AND THEREFORE

UNCONSTITUTIONAL.”

                                             I.

       {¶15} In her first assignment of error, Appellant argues that her conviction was not

supported by the manifest weight or sufficiency of the evidence. We disagree.

       {¶16} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶17} On review for manifest weight, a reviewing court is to 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 jury 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. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–

Ohio–52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in the
State County, Case No. 2019 CA 00115                                                      5


exceptional case in which the evidence weighs heavily against the conviction.” Martin at

175.

       {¶18} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d

212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and

credibility of each witness, something that does not translate well on the written page.”

Davis v. Flicking, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.

       {¶19} As set forth above, Appellant was charged with and convicted of violating

Canton City Ordinance 1351.03(L) which states that any person failing to comply with a

notice of violation or order to correct property maintenance code violations is guilty of a

misdemeanor or civil infraction.

       {¶20} Upon review, we find that the record supports a conviction under Canton

City Ordinance 1351.03(L).

       {¶21} At trial, during her testimony, Appellant admitted that she was the owner of

the property, and that she received the notices of violations. She testified that she

attempted to correct some of the violations by power washing the house, fixing the

masonry, and that she purchased supplies to fix the back steps. (T. at 101-102). She

testified that she could not comply with the February 22, 2018, order due to the weather

conditions. (T. at 87). She further testified that she was disabled and was not physically

able to finish corrections, and that at times she did not have the money to pay contractors.

(T. at 83, 85, 103-104).

       {¶22} Ms. Heinzer testified that Appellant was issued three (3) violation notices.

(T. at 49-50, 61, 68, 70). The initial notice was sent to her on February 22, 2018, which
State County, Case No. 2019 CA 00115                                                      6


ordered her to correct twelve (12) violations. Id. These violations included tuck-pointing

the masonry joints at the foundation; scraping and painting the siding, eaves, and fascia;

repairing or replacing the gutters; repairing or replacing downspouts; repairing or

replacing steps to the backdoor; installing a handrail; repairing or replacing lattice work;

cleaning up trash and debris; repairing the garage foundation where there was a hole at

the northwest corner; repairing or replacing garage gutters; repairing or replacing garage

downspouts; and, scraping and painting the garage siding, including the trim, no later

than April 6, 2018. (T. 53-54).

       {¶23} Ms. Heinzer testified that when she inspected the property on September

4, 2018, all twelve (12) violations were still present and unresolved. Id. Ms. Heinzer also

presented photographs of the property.

       {¶24} Further, all of the notices sent to Appellant contained the address of the real

property, a statement of the code violations and a correction order which allowed for a

reasonable amount of time to complete the repairs and/or improvements, and advised

Appellant of her right to appeal. (T. at 50-55, 61-62, 70-71).

       {¶25} Based on the foregoing, we find that the City proved that Appellant violated

Canton City Ordinance 1351.03(L), and that her conviction for failure to comply with a

notice of violation or order to correct property maintenance code violations was not

against the manifest weight and sufficiency of the evidence.

       {¶26} Appellant’s first assignment of error is overruled.

                                                II.

       {¶27} In her second assignment of error, Appellant challenges the constitutionality

of Canton City Ordinance 1351.03(L).
State County, Case No. 2019 CA 00115                                                         7


       {¶28} Upon review, we find Appellant did not advance the constitutional argument

to the trial court.

       {¶29} The Ohio Supreme Court has held: “Failure to raise at the trial court level

the issue of the constitutionality of a statute or its application, which issue is apparent at

the time of trial, constitutes a waiver of such issue and a deviation from this state's orderly

procedure, and therefore need not be heard for the first time on appeal.” State v. Awan,

22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. The Court subsequently clarified

Awan, holding a court has the right to consider constitutional challenges in its discretion

even if the argument was waived “in specific cases of plain error or where the rights and

interests involved may warrant it.” See In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286

(1988), syllabus.

       {¶30} Here, Appellant did not make the constitutional challenge before the trial

court, and we find no grounds in the present matter to warrant addressing the alleged

constitutional violations raised by Appellant for the first time on appeal.

       {¶31} Appellant’s second assignment of error is overruled.

       {¶32} For the reasons stated in the foregoing opinion, Appellant’s conviction

entered in the Canton Municipal Court, Stark County, Ohio, is affirmed.

By: Wise, J.
Hoffman, P. J., and
Delaney, J., concur.

JWW/d 0513
