[Cite as State ex rel. Waldick v. Howard, 2012-Ohio-404.]




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




STATE OF OHIO, EX REL.,
ALLEN COUNTY PROSECUTOR
JUERGEN A. WALDICK,
                                                            CASE NO. 1-11-33
        PLAINTIFF-APPELLANT,

        v.

MOSE HOWARD, ET AL.,                                        OPINION

        DEFENDANTS-APPELLEES.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV2009 0809

                                      Judgment Affirmed

                           Date of Decision: February 6, 2012




APPEARANCES:

        Gregory M. Antalis for Appellant

        John A. Poppe for Appellees
Case No. 1-11-33



PRESTON, J.

        {¶1} Plaintiff-appellant, State of Ohio ex rel. Allen County Prosecutor

Juergen A. Waldick (hereinafter “the State”), appeals the Allen County Court of

Common Pleas’ judgment entry enjoining the defendants-appellees, Moses and

Willa Pearl Howard (hereinafter “the Howards”), from maintaining a nuisance at

their place of business, the EZ Check Market (hereinafter “the market”), under

R.C. 3767.05(D) but denying the State’s request for an abatement order closing

the market for one year. For the reasons that follow, we affirm.

        {¶2} On May 6, 2004, the Howards’ grandson, Dwaynel Howard, Jr., was

arrested for selling crack cocaine to an undercover officer from a vehicle parked

directly outside the front door of the market. (Apr. 11, 2011 Tr. Vol. II at 8, 17);1

(Godfrey Aff., Doc. No. 56, attached).2 Dwaynel was subsequently convicted of

trafficking in crack cocaine in Allen County Case No. CR2004 0233. (7/28/04 JE

& 9/8/04 JE, Doc. No. 56, attached).

1
  The bench trial was held on one day: April 11, 2011. All references to the transcript herein refer to the
bench trial held on that one day, so the date will be excluded from the citation hereinafter.
2
  Since the trial court had already granted the State partial summary judgment determining that the EZ
Check Market was a nuisance as a matter of law, the bench trial was limited to the issue of whether the
Howards acquiesced to the perpetuation of the nuisance. Therefore, it was necessary to take some of the
facts stated herein from affidavits and notarized court documents submitted in support of the State’s motion
for summary judgment. (Doc. No. 56). It should be noted that these documents were made part of the
record, not contested by the Howards in their memorandum contra the State’s motion for partial summary
judgment, and formed the factual basis of the trial court’s grant of summary judgment. (11/12/10 JE, Doc.
No. 60). Furthermore, the Howards acknowledged that many of these events occurred throughout the
proceedings but alleged that they were not to blame for the incidents; law enforcement responded
inadequately to the drug trafficking problem; and, law enforcement contributed to the drug trafficking
problem by using C.I.s and “secret police” to sell drugs near their market. (See Answer and Amended
Answer, Doc. Nos. 8, 29).

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      {¶3} On November 5th and 17th, 2004, a confidential informant (“C.I.”)

purchased crack cocaine from Bart Howard, who was standing directly outside the

back door of the market. (Johnson Aff., Doc. No. 56, attached). On December 8,

2004, a C.I. purchased crack cocaine from Bart again. (Id.). During this second

drug purchase, Bart brought the crack cocaine from inside the market to the

outside back door to complete the sale. (Id.). Bart was subsequently convicted of

trafficking in crack cocaine in Allen County Case No. CR2005 0009. (8/23/05 JE

& 9/26/05 JE, Doc. No. 56, attached).

      {¶4} On or about September 15, 2005, a Lima police officer, while on a

routine patrol of the area, observed David Evans standing in front of the market.

(Stechschulte Aff., Doc. No. 56, attached). The officer knew Evans had an active

warrant, so he parked in front of the market at which time Evans walked into the

market behind the counter. (Id.). The officer then entered the market and placed

Evans into custody, and a search incident to arrest revealed five crack cocaine

rocks upon his person. (Id.). During a later police interview, Evans admitted that

he went into the market to avoid being arrested for his outstanding warrant. (Id.).

Evans was later convicted of possession of crack cocaine in Allen County Case

No. CR2005 0441. (Id.); (12/19/05 JE & 2/22/06 JE, Doc. No. 56, attached).

      {¶5} On or about October 5, 2006, members of the Lima Police Department

conducted an undercover operation targeting street-level drug sales near the

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market. (Delong Aff., Doc. No. 56, attached). A black male, later identified as

Ivory Kendricks, approached an undercover officer’s vehicle, and the officer asked

to purchase crack cocaine. (Id.). In response, Kendricks stated, “[y]eah, I gotta go

in the store.” (Id.). Kendricks entered the market, exited a short time later, and

handed the undercover officer drugs. (Id.). Kendricks was subsequently convicted

of trafficking crack cocaine in Allen County Case No. CR2006 0475. (Id.); (1/9/07

JE & 2/23/07 JE, Doc. No. 56, attached).

       {¶6} On or about June 11, 2007, the Lima Police Department P.A.C.E. unit

conducted a controlled drug buy from the Howard’s son, Randell, who was in a

vehicle parked directly outside the back door of the market. (Tr. Vol. I at 15); (Tr.

Vol. II at 6); (Godfrey Aff., Doc. No. 56, attached). On June 18, 2007, a C.I.

made an additional controlled drug purchase from Randell while Randell was

behind the counter in the market. (Godfrey & Johnson Affs., Doc. No. 56,

attached).

       {¶7} On or about June 19, 2007, law enforcement served a search warrant

at the market. (Tr. Vol. I at 16); (Tr. Vol. III at 7); (Miller Aff., Doc. No. 56,

attached). During the search, law enforcement located a piece of crack cocaine

behind the front counter of the market; a clear plastic baggie of marijuana on the

floor behind the counter of the market; a razor blade with residue on it behind the

counter of the market; a brown paper bag with residue behind the counter of the

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market; 1.5 grams of crack cocaine and a second baggie of marijuana on the floor

of the market. (Tr. Vol. III at 8-9); (Miller Aff., Doc. No. 56, attached). Dwaynel

Howard was later convicted for possession of crack cocaine in Allen County Case

No. CR2007 0368 (5/15/07 JE & 4/15/08 JE, Doc. No. 56, attached); Randell

Howard was later convicted of trafficking in crack cocaine in Allen County Case

No. CR2008 0180 (8/12/08 JE & 9/18/08 JE, Doc. No. 56, attached).

       {¶8} On June 26, 2007, the Lima Police Department sent a letter to the

Howards advising them of the illegal drug activity at their market. (P’s Ex. 2); (Tr.

Vol. II at 38-39). The Howards were further advised that their market constituted

a public nuisance and that legal proceedings would be commenced if they failed to

take action to abate the nuisance. (Id.); (Id.).

       {¶9} On November 10th, 12th, and 17th, 2008, the West Central Ohio

Crime Task Force conducted controlled drug purchases from Dwaynel Howard,

Sr. inside the residential side of the market (1123 St. Johns). (Tr. Vol. I at 54-55,

57-58, 72); (Tr. Vol. III at 9); (Inv. Howard Aff., Doc. No. 56, attached). On

November 20, 2008, a search warrant was served at the market, and law

enforcement found drug paraphernalia, such as digital scales and baggies, in the

residential side of the market. (Tr. Vol. I at 55, 60, 61, 80); (Inv. Howard Aff.,

Doc. No. 56, attached). In the basement shared between 1123 and 1125 St. Johns,

law enforcement found a cookie tin containing baggies with white residue on

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them, a dinner plate with a razor blade on it containing white residue, and several

firearms. (Tr. Vol. I at 61-62); (Inv. Howard Aff., Doc. No. 56, attached).

       {¶10} On or about December 2, 2008, the Allen County Sheriff’s Office

sent a letter to the Howards advising them of the illegal drug activity at their

market. (P’s Ex. 3); (Tr. Vol. II at 38-39). The Howards were again notified that

their market constituted a nuisance subject to abatement under Ohio Revised Code

Chapter 3767. (Id.); (Id.).

       {¶11} On April 10, 2009, a C.I. went to the east side of the market and

purchased $20.00 worth of crack cocaine from a window located under an

overhang on the back porch of the market. (Tr. Vol. I at 14-15).

       {¶12} On June 18, 2009, the Lima Police Department and the West Central

Ohio Crime Task Force conducted a controlled drug buy using an undercover

officer. (Leary Aff., Doc. No. 56, attached). The undercover officer drove in the

area of the market and asked to purchase crack cocaine from a black male, later

identified as Curtis Dunlap. (Id.). Dunlap was observed to walk into the market

and emerge a short time later with drugs. (Id.).        Dunlap was subsequently

convicted of trafficking in cocaine in Allen County Case No. CR2010 0065.

(3/3/10 JE & 4/12/10 JE, Doc. No. 56, attached).




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        {¶13} On August 10, 2009, the State filed a complaint for nuisance

abatement and request for injunctive relief alleging the aforementioned criminal

activity at the Howards’ market. (Doc. No. 1).

        {¶14} On September 25, 2009 and with leave of court, the Howards filed a

document entitled “Answer of Moses and Willa Howard and Counterclaim and

Cross-Claim with Jury Demand Endorsed Hereon”3 against the State, the Lima

Police Department, Lima Police Department S.W.A.T., Lima Police Department

P.A.C.E., Lima Police Department B.C.I. & I., West Central Ohio Crime Task

Force (“WCOCTF”), and John Does 1-16 (undercover officers involved in the

controlled drug buys at the market). (Doc. Nos. 6-8).

        {¶15} On October 22, 2009, a stipulated extension was entered for the State

and the WCOCTF to move or otherwise plead to the Howards’ counter-claim and

third-party complaint by November 13, 2009. (Doc. No. 16).

        {¶16} On October 26, 2009, the Lima Police Department, P.A.C.E.,

S.W.A.T., and B.C.I. & I. filed a joint motion to dismiss pursuant to Civ.R.

12(B)(1) and Civ.R. 12(B)(6). (Doc. No. 17). On November 4, 2009, the Howards

filed a memorandum contra the motion to dismiss; however, the trial court granted

the motion to dismiss on November 6, 2009. (Doc. Nos. 18-19).


3
 The claims against the Lima Police Department, the other law enforcement agencies or units, and John
Does 1-16 technically constitute a third-party complaint under Civ.R. 14, not “cross-claims” under Civ.R.
13, as designated.

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       {¶17} On December 15, 2009, the Howards filed a motion for leave to

amend their answer and counter claim to join the City of Lima as a third-party

defendant. (Doc. No. 27). The trial court granted the Howards leave to amend,

and on February 8, 2010, the City of Lima filed a motion to dismiss pursuant to

Civ.R. 12(B)(2), (5), and (6). (Doc. No. 43). On February 19, 2010, the State and

the West Central Ohio Crime Task Force filed a motion to dismiss the Howards’

counterclaims and third-party complaints and/or sever the claims for purposes of

trial. (Doc. No. 44).

       {¶18} The trial court dismissed the City of Lima on March 16, 2010. (Doc.

No. 51). The trial court dismissed the Howards’ claims against the State and

WCOCTF on March 24, 2010. (Doc. No. 53).

       {¶19} On October 1, 2010, the State filed a motion for partial summary

judgment on the issue of whether or not the Howards’ market was a nuisance

under Ohio Revised Code Chapter 3767. (Doc. No. 56). On October 15, 2010, the

Howards filed a memorandum contra the State’s motion for partial summary

judgment. (Doc. No. 57). However, on November 12, 2010, the trial court granted

the motion for partial summary judgment declaring that a nuisance exists and has

been maintained at the market. (Doc. No. 60).       The trial court certified the

judgment entry as a final, appealable order pursuant to Civ.R. 54(B). (Id.). The



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Howards filed an appeal, but we dismissed it for lack of jurisdiction. (Doc. Nos.

62, 65).

       {¶20} On April 22, 2011, the matter proceeded to a bench trial with the sole

issue of whether or not the Howards knowingly acquiesced in the creation or

perpetuation of the nuisance at their market for purposes of issuing an abatement

order under R.C. 3767.05(E) and 3767.06(A). (Doc. Nos. 67, 88, 93).

       {¶21} On May 11, 2011, the trial court issued its decision and judgment

entry declaring the Howards’ market a nuisance but denying the abatement order,

and finding that the State failed to present clear and convincing evidence that the

Howards were culpable in the creation or perpetuation of the nuisance activities.

(Doc. No. 93).

       {¶22} On June 8, 2011, the State filed a notice of appeal. (Doc. No. 95).

The State now appeals raising one assignment of error for our review.

                          ASSIGNMENT OF ERROR

       THE TRIAL COURT’S MAY 11, 2011, DECISION AND
       JUDGMENT ENTRY THAT APPELLANT FAILED TO
       PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT
       THE APPELLEES ACQUIESCED TO THE NUISANCE
       ACTIVITIES AT THE SUBJECT PREMISES, WAS AGAINST
       THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶23} In its sole assignment of error, the State argues that the trial court’s

denial of the abatement order was against the manifest weight of the evidence.


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Specifically, the State argues that the trial court expressly found as a legal

conclusion, and the parties and witnesses all admitted, that the area near the

market had a reputation for chronic drug activity; and therefore, the trial court had

prima facie evidence of the Howards’ acquiescence to the nuisance activity under

R.C. 3767.05(A). The State argues that this prima facie evidence, along with the

Howards’ testimony at trial, amounted to clear and convincing evidence of the

Howards’ acquiescence as a matter of law.

       {¶24} In civil cases, “[j]udgments supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed by a

reviewing court as being against the manifest weight of the evidence.” Cincinnati

ex rel. Cosgrove v. Grogan, 141 Ohio App.3d 733, 749, 753 N.E.2d 256 (1st Dist.

2001), citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978), paragraph one of the syllabus. Furthermore, an appellate court must

presume that the trial court’s findings of fact are correct because “the trial [court]

is best able to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.” Id., citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984). “A reviewing court should not reverse a decision simply

because it holds a different opinion concerning the credibility of the witnesses and

evidence submitted before the trial court.” Seasons Coal, 10 Ohio St.3d at 80.

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Case No. 1-11-33



       {¶25} “[I]n order to obtain an abatement order pursuant to R.C. 3719.10

and 3767.02 et seq., it is necessary for the relator to prove by clear and convincing

evidence that the defendant had knowledge of and either acquiesced to or

participated in a felony violation of R.C. Chapter 2925 or 3719 on the property.”

State ex rel. Freeman v. Pierce, 61 Ohio App.3d 663, 671, 573 N.E.2d 747 (2nd

Dist. 1991). See also Grogan, 141 Ohio App.3d at 748; State ex rel. Pizza v.

Rezcallah, 84 Ohio St.3d 116, 702 N.E.2d 81 (1998), paragraph two of the

syllabus. “Clear and convincing evidence is that measure or degree of proof

which will produce in the mind of the trier of facts a firm belief or conviction as to

the allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477,

120 N.E.2d 118 (1954). The relator may meet his burden of proving knowledge of

and acquiescence to or participation in any one of three ways: first, by direct

evidence; second, by proof of the property’s general reputation; and third, by an

admission by or a finding of guilt of any person under the criminal laws against

[drug possession and drug trafficking] at the site of the alleged nuisance. State ex

rel. Pizza v. Carter, 63 Ohio Misc.2d 235, 240, 622 N.E.2d 1194 (C.P. 1993);

Grogan, 141 Ohio App.3d at 748-749.            The second and third categories of

evidence create a rebuttable presumption of knowledge and acquiescence or

participation under R.C. 3767.05. Carter, 63 Ohio Misc.2d at 240; Grogan, 141

Ohio App.3d at 748-749.

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      {¶26} The State presented the testimony of six witnesses at trial. Lima

Police Department Patrolman Timothy R. Goedde testified that the EZ Check

Market was a small convenience store that sold alcohol, pop, and tobacco products

and was “known for a high drug activity area. There’s a lot of open air sales and a

lot of people standing around.” (Tr. Vol. I at 3-5). Goedde testified that, after he

was assigned to the P.A.C.E. unit, he used to do controlled drug buys in and

around the area of the EZ Check Market. (Id. at 7). He testified that, on June 11,

2007 during a controlled purchase, he observed a C.I. enter the front door of the

EZ Check Market. (Id. at 11). Goedde testified that, on April 10, 2009 during a

controlled purchase, he observed a C.I. approach an eastside window of the

building attached to the EZ Check Market, stay there for a short period of time,

and then leave in an eastbound direction. (Id. at 14-15). Goedde testified that

narcotics were purchased during both controlled drug buys. (Id. at 15). Goedde

further testified that, on June 9, 2009 during a controlled buy, he observed an

undercover officer drive up to the EZ Check Market and gesture out of the car

window that she wanted twenty dollars’ worth of crack cocaine. (Id.).           The

undercover officer then drove around the block, and the person she asked to

purchase the crack cocaine entered the front door of the EZ Check Mart long

enough for the undercover officer to drive around the block a few times, and then

park on Catalpa Street, according to Goedde. (Id. at 16). Goedde testified that

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Case No. 1-11-33



drugs were obtained during that controlled buy. (Id. at 15).         Goedde further

testified that he was involved in a raid of the EZ Check Market in June of 2007,

and that the Howards were present during the raid. (Id. at 16). Goedde testified

that he spoke with Mr. Howard at length about how he could deal with the drug

problem around his business, suggesting criminal trespass laws as the main

enforcement vehicle. (Id. at 17). Goedde testified that he did not ever have any

conversation with Mr. Howard after that, and the Howards never called him

afterwards to request his assistance with the criminal trespass forms. (Id. at 17-18).

       {¶27} On cross-examination, Goedde testified that the undercover officers

did not pay extravagant prices for drugs because that would create a red flag,

though he acknowledged that undercover officers, who are white, could receive

less crack cocaine for their twenty dollars because of their race. (Id. at 33). When

asked if the Howards had ever called the police and the police failed to show up,

Goedde testified, “I’d say they didn’t call. We always show up[.]” (Id. at 35).

Goedde testified that the Howards did not operate their business for the purpose of

committing drug violations, but “they allow[ed] their establishment to be used for

that.” (Id. at 37). Goedde testified that the EZ Check Market closes at 9:00 p.m.

but it used to stay open later. (Id. at 38).

       {¶28} Investigator Danny Howard, an Allen County Deputy Sheriff

assigned to the West Central Ohio Crime Task Force, testified that the EZ Check

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Market had a reputation “as a hot bed for illegal activity, including drug

trafficking.” (Id. at 52-53). Investigator Howard testified that, on November 10,

2008, he witnessed a C.I. enter the front door of 1123 St. Johns, which is the

residential side of the EZ Check Market. (Id. at 55). After leaving the premises,

the C.I. indicated that he had just purchased crack cocaine from Dwaynel Howard,

Sr. (Id.). Investigator Howard further testified that, on November 12th and 17th of

2008, the C.I. purchased more crack cocaine from Dwaynel Howard, Sr. at the

same location. (Id. at 58). Investigator Howard testified that 1123 St. Johns is not

listed as a separate property on the Allen County Auditor’s website; rather, the

only property listed is 1125 St. Johns, which is the business side of the property.

(Id. at 55, 59). He further testified that basements for the buildings at 1123 and

1125 St. Johns are shared. (Id. at 60). Since the property was only listed as 1125

St. Johns and the properties shared a basement, law enforcement executed a search

of both locations. (Id.). Investigator Howard testified that, in the residential side,

they found drug paraphernalia such as digital scales and baggies, and, inside the

shared basement, they found a cookie tin with baggies containing white residue, a

dinner plate with a razor blade with white residue on it, and several firearms. (Id.

at 61-62). At the time of the search, the Howards were behind the counter on the

business side of the premises (1125 St. Johns). (Id. at 61, 69).



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       {¶29} On cross-examination, Investigator Howard testified that the three

controlled drug buys occurred in the residential side of the premises where

Dwaynel Howard, Sr. lived. (Id. at 63).          When asked whether anyone had

mentioned the Howards as being part of the drug problem, Investigator Howard

testified, “Willa and Moses Howards’ name has always been synonymous with the

business of Howards’ EZ Check. Their offspring has been -- well, it’s been

common in the law enforcement community to understand that they all sling dope

from someplace around the residence, or the business, or on the street corner.” (Id.

at 71). He further testified that he had no personal knowledge that the Howards

were involved in drug trafficking. (Id. at 72). Investigator Howard testified that

Dwaynel Howard, Sr. was not at the residence during the search but denied

knowing whether or not Dwaynel had been evicted. (Id. at 72-73). On the other

hand, he testified that he had just seen Dwaynel “standing on the corner just a few

days ago out in front of the business.” (Id. at 73).

       {¶30} Allen County Sheriff’s Department Lieutenant Matthew Treglia,

assigned to the West Central Ohio Crime Task Force, testified that the EZ Check

Market is “a place where people hang out on the corner and sell drugs.” (Id. at 74-

76). Treglia testified that he had arrested several warrant suspects who were

standing on the corner near the EZ Check Market. (Id. at 77). He testified that he

had witnessed several drug transactions occur at the EZ Check Market where “a

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car would pull up to the corner and people would have a brief conversation with

the * * * persons in the vehicle. They would either leave right from there or

people would go inside the EZ Check and come back out and then they would

leave.” (Id. at 79). Treglia also testified that they had arrested people with drugs

on them in that area, and some of the vehicles in the area were from out-of-county,

which was indicative of drug behavior. (Id.).        On cross-examination, Treglia

denied having knowledge of the Howards’ frequent calls to the police department.

(Id. at 92).

       {¶31} The State then called Willa Howard upon cross-examination. (Tr.

Vol. II at 1). Willa testified that she and her husband, Moses, have owned the EZ

Check Market at 1123-1125 St. John’s since 1997. (Id. at 2); (P’s Ex. 1). Willa

also testified that there is an apartment at 1123 St. John’s. (Tr. Vol. I at 2). Willa

testified that they used to live at 1115 St. Johns Avenue, which is two doors north

from the market, but they now live at 1412 Hughes Avenue. (Id. at 3). Willa

testified that the EZ Check Market was used as a convenience store and was their

“job.” (Id. at 3-4). Willa testified that they sold groceries, candy, cigarettes, beer,

wine, fresh bread, eggs, packets of lunch meat, cookies, sugar, and flour at the

market. (Id. at 4-5). She testified that she and her husband are at the business

almost all the time since they work there, but she denied that other male adults

come to the store to play cards. (Id. at 5). Willa testified that her son, Randell

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Howard, used to be the market’s night manager, and that he allowed things to go

on at the market that should not have happened. (Id. at 5). Randell Howard went

to prison in 2007 for selling drugs to an undercover officer in the EZ Check

Market, according to Willa. (Id. at 5-6). Willa denied ever knowing that Randell

was selling drugs at the market, though she recalled overhearing a police officer

tell Randell that he heard about stuff going on at the store. (Id. at 6). Willa

testified that she thought Randell was “set up,” “but if he was stupid enough to be

set up to sell drugs on the property then he’s where he should be.” (Id.). Willa

admitted that there is drug activity around the area of the market, but it was not

just near there but “the whole south end of Lima.” (Id. at 7). When asked about

the area right outside of the EZ Check Market, Willa testified, “[y]ea. I mean

there was some drugs out there.” (Id. at 8). Willa testified that she knew there

were drugs out in front of the market because her grandson, Dwaynel Howard, Jr.,

was arrested outside of the market on a drug charge, and “[m]ost of the people that

area, well, most of them sell drugs.” (Id.). Willa acknowledged that people she

suspected were dealing drugs in front of the market would run into the store when

a police car drove by the market. (Id. at 9). Willa testified that she would tell

those individuals not to run into the market, and she always tried to run people off

her property. (Id.).



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       {¶32} Willa testified that the police were always welcome to come into her

store, though she acknowledged she did not let the police feel welcome on one

particular occasion when she felt the officers were being disrespectful to her. (Id.

at 9-10). Willa testified that they never received the support they needed from the

Lima Police Department, and that they were arrogant and disrespectful when they

came to her market. (Id. at 10-11). Willa testified that they called the police for

help, but the police said they could not respond every time she called, and they

could not ask the drug dealers to leave since it was a public sidewalk. (Id. at 11).

Willa estimated that she called the police department at least fifty times from 2004

to 2009, each time identifying herself as the caller and identifying the location as

the EZ Check Market. (Id. at 12-13).          Willa testified that she thought the

undercover officers paid excessive amounts for drugs, because she overheard

young people she knew talking about taking advantage of white people who were

buying drugs in the neighborhood. (Id. at 14-15). Willa testified that she did not

know there was a drug problem around the EZ Check until her grandson was

arrested on a drug offense in 2004 outside of the market. (Id. at 17). Willa denied

seeing any drug transactions occur outside of the market, but testified that she

knew that drug dealers were hanging around trying to sell whatever they could.

(Id. at 18).



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       {¶33} When asked about what she would do when known drug dealers

would enter the EZ Check, Willa testified as follows:

       A: Well, being like almost my kids, you know, kids that I have
       known all my life, they didn’t sell drugs in the store. The
       majority of the people in that neighborhood I think sell drugs –
       sell them or use them. So, what, because somebody sells drugs
       you don’t let them in your store?
       Q: Yea. Yea.
       A: Well, if that was the case we really wouldn’t have no business.
       Okay?
       Q: So, your testimony is that you’re really not going to have any
       business unless you let drug dealers in your store?
       A: Well, are you supposed to turn them away if you know they
       sell drugs? Are you? * * * As long as it’s not inside my store, I
       mean, what they do is their business.

(Id. at 20). Willa testified that she never attempted to photograph any of the

people hanging outside of her market to give those photographs to the police. (Id.

at 20-21). She testified that, in 2010, she posted a “no loitering” sign on the door

of the market, which lasted about a year until “it got ripped up.” (Id. at 21-22).

She also testified that they had security cameras inside the EZ Check but not

outside of the market, though the security cameras were not working from 2004 to

2009. (Id. at 22). The Howards never considered hiring a security guard for the

business because they were the security according to Willa. (Id. at 25). She also

testified that, prior to 2007, her son, Randell Howard, would work in the EZ

Check from 7:00 p.m. to 12:00 midnight, but, after 2007, they closed the EZ

Check at 9:00 p.m. (Id. at 26). Randall has not worked at the market since his

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arrest according to Willa. (Id. at 26-27). Willa testified that she had seen open air

drug deals in front of the store while she had police officers inside the store

watching. (Id. at 31). Willa testified that the drugs found in the EZ Check Market

during the drug raid were dropped in the store by customers. (Id. at 35.). Willa

testified that she recalled a police officer discussing signing a document to give

law enforcement the power to remove persons outside the market, but she did not

recall signing it. (Id. at 36-37).

       {¶34} Willa admitted that she received letters from the Lima Police

Department and the Sheriff’s Office. (Id. at 38-39). She further testified that, after

discovering that her son, Randell, was involved in drugs after the search of the EZ

Check Market, her husband and she fired him and evicted him from the attached

apartment. (Id. at 39). Later, after the second letter in December 2008, they

evicted another son, Dwaynel, from the attached apartment. (Id. at 41). Willa

testified that both of her sons, Randell and Dwaynel, had “apparently” sold drugs

from the apartment, though she denied knowing about them selling drugs. (Id.).

Willa admitted that, from 2004 to 2009, the EZ Check Market had a reputation as

a place one could obtain drugs. (Id. at 42-43). She testified that, about three weeks

ago, people were hanging out in front of her store so she told them to leave the

area, but they only went to the other side of the road. (Id. at 47). Willa further



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testified that she talked to Lima Police Chief Garlock about the incident, but no

officer responded. (Id. at 48).

       {¶35} Moses      Howard    testified    upon   cross-examination    that   the

neighborhood around the EZ Check Market had a reputation for being an area to

obtain drugs, and, in fact, that is why the previous owner sold the business. (Id. at

53-54). Moses further testified: “1998, when we bought the property, it seemed

that the drug problem just escalated and just grew and it just grew because, well, I

have heard individuals say that it was a good place to sell drugs because they

wasn’t getting arrested there.” (Id. at 57). Moses testified that he saw drug deals

occur outside the market, but he further testified that he called the police

department to complain many times. (Id. at 58-59). He testified that they “always”

saw cars drive up and things get exchanged. (Id. at 60). Moses testified that they

sold merchandise to people that broke the law, including people that he had seen

making a drug deal immediately before entering the market. (Id. at 61-62). Moses

testified that the drug dealers used the EZ Check Market as “cover” when the

police drove by. (Id. at 64). Moses also testified that he believed the Lima Police

Department did not do enough to stop the drug problems around the market. (Id. at

68-70). According to Moses, the apartment connected to the EZ Check was a

source of the drug problem, and two of his children were part of the problem. (Id.

at 74-75). Moses testified that they purchased the video cameras for the market to

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monitor thefts in the store, but that the system was only operational for about three

to four years, from about 1998 to 2002. (Id. at 76). He testified that, about a year

ago, they placed “no soliciting” signs on the front door of the market. (Id. at 77).

Moses testified that they did not consider hiring a security guard but kept calling

the police, instead. (Id. at 77-78). Moses testified that he did not recall the police

asking him to sign a power of attorney, and he wished they would have because he

would have signed it. (Id. at 78).

       {¶36} Christopher Neal Protsman, a Lima Police Department Lieutenant

and member of the P.A.C.E. unit, testified that he has never seen any bread, eggs,

lunch meat, fresh vegetables or fruit being sold at the EZ Check Market. (Tr. Vol.

III at 3-4). He testified that the EZ Check Market had a reputation for being an

area for drug trafficking. (Id. at 4). Protsman testified that, in 2007, he saw a

vehicle stopped outside of the EZ Check Market with a gentleman standing at the

window of the vehicle, indicative of an open-air drug sale. (Id.). He testified that

he subsequently arrested the driver of the vehicle for possession of crack cocaine.

(Id. at 5). The driver, who was from Celina, told Protsman that he learned at a

party if he wanted to buy crack cocaine there would be people standing in front of

the EZ Check Market who would sell to him. (Id.). Protsman testified that he was

involved in the June 2007 search of the EZ Check Market, and that the Howards

were “very irate” that law enforcement were inside the market. (Id. at 7-8).

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Protsman testified that they found crack cocaine on the floor and counter of the

market and a razor blade with cocaine residue under the counter of the market

during the search. (Id. at 8-9). Protsman further testified that he talked with Willa

about executing a power of attorney for the police department to remove people

off their property through criminal trespass. (Id. at 12). Protsman testified that he

was only aware of the Howards calling the police to report drug activity on one

occasion. (Id. at 14). Protsman testified that Willa filed a formal complaint against

two police officers who entered the market in October 2005. (Id. at 14-15).

Protsman testified that, as a result of the complaint, he investigated the incident.

(Id. at 15). Protsman testified about that investigation as follows:

       she let me know that the officers -- two officers came into the
       business and just started walking around, didn’t acknowledge
       her or didn’t say anything to her. When she went up to ask
       them why they were there, they became upset with her and she
       thought she was being disrespected by them.

       I talked to the officers about this incident and also reviewed
       their video tapes, which was just the audio of what was going on.
       The officers pulled up into the area and two gentleman, when
       they saw the officers ran behind the business. The officers
       thought that maybe they were going in the back door so the
       officers walked inside to see if they could locate those
       individuals.

       Once they got inside, Mrs. Howard did approach them and
       asked them what they were doing inside the store. When they
       didn’t answer uh, she told them that she didn’t appreciate them
       walking into her business. And then her son who was behind the


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       counter, Randell, also told them that they were not wanted
       inside the business.

(Id. at 15-16). On cross-examination, Protsman testified that the Howards failed

to do everything they could have to eliminate the drug problem at their market.

(Id. at 25).

       {¶37} Thereafter, the defense presented the testimony of Moses Howard.

Moses testified that he originally bought the EZ Check Market so he could pass it

on to his family. (Id. at 44). He testified that he is an ordained minister, and he

works as an assistant pastor at the New Greater Grace Missionary Baptist Church.

(Id. at 45). Moses attributed the drug problems in the neighborhood to a lack of

police enforcement due to budgetary constraints. (Id. at 47). Moses testified that

they stopped renting out the apartment next door to the EZ Check Market, which

he thought helped solve some of the drug problems. (Id. at 48). He further

testified that they also closed the market earlier and began running it on their own

to reduce the drug activity. (Id. at 50).

       {¶38} Willa Howard testified that they bought the EZ Check Market after

learning from the previous owner that he was considering selling it to “Indians or

Arabs” and they “didn’t want to live in front of a business that the Arabs or the

Indians owned.” (Id. at 54-55). She testified that she was not aware that Randell

was selling drugs until after the 2007 search. (Id. at 57). Willa testified that she


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Case No. 1-11-33



would not have thought anything strange about seeing razor blades and baggies

near the market counter since they use razor blades to open boxes and plastic

baggies to sell penny candy. (Id. at 57). Willa testified that she thought they

solved the drug problem when Randell was arrested, and they evicted him from

the apartment. (Id. at 58). Willa testified that Protsman brought out power of

attorney forms for her to sign, but she did not sign them because they had to be

notarized, and she did not know the last names of the individuals she wanted off

the property, which was necessary for the form. (Id. at 61). Willa testified that

things have improved near the EZ Check Market since they were served with the

nuisance complaint because she told the suspected drug dealers to stop since they

were in court because of them. (Id. at 63). Willa testified that Moses and she are

planning on moving into the apartment attached to the market to be better stewards

of their property. (Id. at 64). She testified that they also started closing the market

at 9:00 p.m. to deter drug activity in the area. (Id. at 66). Willa also testified that

she and her husband have always considered the store as an outreach from their

church. (Id. at 68).

       {¶39} After reviewing the evidence presented at trial, we cannot conclude

that the trial court’s judgment denying the abatement order was against the

manifest weight of the evidence since there was competent, credible evidence

demonstrating that the Howards did not acquiesce in perpetuation of the nuisance

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Case No. 1-11-33



at their market. The Howards testified that, once they discovered that their sons,

Dwaynel and Randell, were selling drugs from the apartment (1123 St. Johns)

attached to the market (1125 St. Johns), they evicted them. They also terminated

Randell’s employment at the market. They further testified that they began to

work at the market all day themselves (10:00 a.m. to 9:00 p.m.) rather than have

employees, so they could manage the property better. The Howards testified that

Randell used to work at the market until 12:00 midnight, but they decided to close

the market earlier to diminish the drug activity around the market. The Howards

also testified that they worked with law enforcement, calling the police over fifty

times, in an effort to curb the drug activity near their market. The Howards even

put up a “no loitering” sign on their business after the nuisance complaint was

filed, and Willa testified that she told the drug dealers to leave the area on multiple

occasions. Finally, the Howards testified that they were going to move into the

apartment attached to their market so they could be better stewards of their

property in the future. Based upon the aforementioned testimony, the trial court’s

judgment was not against the manifest weight of the evidence.

       {¶40} Despite the foregoing evidence, the State argues that, after examining

the evidence presented, the trial court’s factual findings, and the Howards’

admissions, the Howards acquiesced as a matter of law. We are not prepared to

make such a definitive rule of law. To begin with, most of the cases the State cites

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Case No. 1-11-33



in support of its position are procedurally distinguishable because the appellate

courts affirmed the trial court’s decisions in those cases. Grogan, 141 Ohio

App.3d 733; State ex rel. Stern v. Butler, 7th Dist. No. 98-JE-54 (Sept. 26, 2001);

State ex rel. Cleveland Director of Law v. Alahmad, 8th Dist. No. 86447, 2006-

Ohio-804.    Notably, the only case the State cites where the appellate court

reversed involved a trial court that had applied the incorrect rule of law. State ex

rel. City of Cleveland v. The Beehive Tavern, 8th Dist. No. 78252 (June 7, 2001).

The trial court here applied the correct rules of law. Furthermore, the trial court

here reached its decision by emphasizing that the State failed to meet its burden of

proof at trial, i.e. to clearly and convincingly prove that the Howards acquiesced in

the perpetuation of the nuisance at their market.         Upon review, we cannot

conclude that the trial court’s determination in that regard was erroneous as a

matter of law, especially in light of our limited standard of review.

       {¶41} The State’s sole assignment of error is, therefore, overruled.

       {¶42} 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
ROGERS, J., and WILLAMOWSKI, J., concur.
/jlr




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