[Cite as State v. Workman, 2014-Ohio-258.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 10-13-13

        v.

TIMOTHY SCOTT WORKMAN,                                 OPINION

        DEFENDANT-APPELLANT.




                         Appeal from Celina Municipal Court
                           Trial Court No. 13-CRB-00311

                      Judgment Reversed and Cause Remanded

                          Date of Decision: January 27, 2014




APPEARANCES:

        Quentin M. Derryberry, II for Appellant

        Andrew J. Hinders for Appellee
Case No. 10-13-13


SHAW, J.

       {¶1} Defendant-appellant, Timothy S. Workman (“Workman”), appeals the

June 5, 2013 judgment of the Celina Municipal Court finding him guilty of

violating the Franklin Township Zoning Code. No fines were imposed as a result

of the trial court’s ruling. However, the trial court ordered Workman to pay court

costs of $165.75.

       {¶2} This action was initiated by a complaint filed by Mercer County

Zoning Inspector Steve Keithley. In the complaint, Inspector Keithley alleged that

Workman conducted a “commercial use” on land zoned as a “Prime Agricultural

District” in violation of Section 1127.18 of the Franklin Township Zoning Code.

The record reflects that the alleged “commercial use” was Workman’s storage of

vehicles and equipment purportedly used in the course of his plumbing, HVAC,

and gas line repair business on the property where he resides.

       {¶3} The case proceeded to a bench trial. The prosecution presented the

testimony of three witnesses and six exhibits, including pictures of the vehicles on

the property. Workman did not present any evidence in his defense. After hearing

the evidence, the trial court found that Workman had used his land “in violation of

the A-2 zoning and in [violation of] 1127.15 through 1127.19 of the Franklin

Township Zoning Code[.]” (Doc. No. 21). As a result, the trial court found

Workman “guilty of said violations” and ordered him to pay court costs.


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        {¶4} Workman now appeals, asserting the following assignments of error.

                            ASSIGNMENT OF ERROR NO. I

        A CRIMINAL COMPLAINT BASED ON TOWNSHIP
        ZONING REGULATION STATUTE—NO CRIME.

                            ASSIGNMENT OF ERROR NO. II

        ASSUMING ARGUENDO THAT THE PROSECUTION
        UNDER FRANKLIN COUNTY [sic] ZONING CODE 1127.18
        IN FACT STATED AN OFFENSE HAD BEEN BROUGHT
        PURSUANT TO R.C. 519.02-519.25; A REVIEW OF THE
        TESTIMONY AND CRIMINAL COMPLAINT FAILS TO
        SUPPORT A FINDING OF GUILTY.

        {¶5} For ease of discussion we elect to discuss the assignments of error

together.

                           First and Second Assignments of Error

        {¶6} The gravamen of Workman’s argument on appeal is that the complaint

did not mention or otherwise invoke R.C. 519.23, which is the state statute upon

which criminal liability for violation of a township zoning code is predicated.1

Notably, Workman failed to raise this matter during the trial court proceedings and

arguably waived any issues regarding defects in the complaint.                          See Crim.R.

12(C)(2). Nevertheless, the question remains whether the complaint adequately



1
  Specifically, R.C. 519.23 states, “No building shall be located, erected, constructed, reconstructed,
enlarged, changed, maintained, or used, and no land shall be used in violation of any resolution, or
amendment or supplement to such resolution, adopted by any board of township trustees under sections
519.02 to 519.25, inclusive, of the Revised Code. Each day’s continuation of a violation of this section
may be deemed a separate offense.” Furthermore, R.C. 519.99 provides that “[w]hoever violates [R.C.
519.23] shall be fined not more than five hundred dollars for each offense.”

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apprised Workman that his conduct constituted a criminal offense in violation of

the Franklin Township Zoning Code.

       {¶7} The complaint filed by Zoning Inspector Keithley states the following

in its entirety:

       The Complainant, after being duly cautioned and sworn, states
       that one Timothy Scott Workman, on land in Section 21,
       Township 6 South, Range 3 East, Franklin Township, Mercer
       County, Ohio, on or about April 7, 2013, did a conduct
       commercial use in an area of the Township not zoned for that
       land use.

       The Complainant alleges that this act is in violation of Section
       1127.18, of the Franklin Township Zoning Code, entitled A-2:
       Prime Agriculture District/Conditional Uses, being an
       unclassified misdemeanor, and against the peace and dignity of
       the State of Ohio.

(Doc. No. 2).

       {¶8} The complaint does not specifically state the conduct Workman is

alleged to have engaged in constituting an offense.       Rather, the complaint

generally alleges that Workman conducted a “commercial use” in violation of

Section 1127.18 of the Franklin Township Zoning Code. This particular zoning

code states the following:

       1127.18 Conditional Uses

       A building or premises may be used for the following purposes
       in the A-2: Prime Agriculture District, if a Conditional Use
       Permit for the use has been obtained in conformance with the
       provisions of Chapter 1131.


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      Principal Uses:
      A. Airports
      B. Animal Hospitals and Clinics
      C. Cemeteries
      D. Farm and Heavy Equipment Sales and Service
      E. Grain Elevators and Feed Mills
      F. Mineral Extraction
      G. Mixed Uses
      H. Oil and Gas Wells
      I. Public Service Facilities
      J. Recreation, Commercial
      K. Recreation, Non-Commercial
      L. Recreation, Public
      M. Religious Places of Worship
      Accessory Uses:
      N. Expanded Home Occupations
      O. Nurseries and Garden Supply Stores
      P. Private Landing Strips and Heliports
      Q. Seasonal Storage Facility

      {¶9} Initially, we are struck by the fact that, contrary to the allegations in

the complaint, nothing in the wording of Section 1127.18 serves to apprise an

individual that simply conducting a “commercial use” in a Prime Agricultural

District constitutes a violation of the zoning code nor does the complaint allege

that Workman did not have a conditional use permit. Notably, the prosecution

later specified in the Bill of Particulars that the alleged “commercial use” was

Workman’s storage of his “personal property used in the course of his business”

without having “a permit to conduct a Conditional Use on the real property* * *.”

(Doc. No. 15).




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       {¶10} However, the term “commercial” is not defined in Section 1127.18

nor is it defined anywhere in the zoning code. Moreover, it is not clear that the

mere storage of one’s personal property to be used in the course of a business is an

inherently “commercial” activity so as to adequately put an individual on notice

that he may be conducting a “commercial use” in violation of the zoning code.

Thus, even assuming the complaint properly set forth R.C. 519.23 as the overall

criminal offense, Section 1127.18 of the Franklin Township Zoning Code does not

sufficiently define the proscribed conduct constituting an offense in this case.

       {¶11} In addition to the deficiencies in the allegations of the complaint and

the vagueness of Section 1127.18, the evidence at trial also failed to establish

beyond a reasonable doubt that Workman conducted a “commercial use” on the

property. Inspector Keithley testified that the nature of Workman’s alleged zoning

violation was “operating a business” on property zoned only for agricultural use.

(Tr. at 12). Inspector Keithley further stated that Workman did not have a valid

conditional use permit to conduct a “commercial” activity. (Id. at 13). Inspector

Keithley explained that the zoning violation was based solely on the fact that

multiple vehicles were seen stored on the property displaying the name of

Workman’s plumbing, HVAC, and gas line repair business. (Id at 12.) On cross-

examination, Inspector Keithley also alleged that the presence of a skid loader and




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a mini track hoe on the property, in addition to the work vehicles, formed the basis

for the complaint. (Id. at 23).

       {¶12} The two other witnesses to testify for the prosecution were Franklin

Township Trustees Ron Niekamp and Neal Klosterman.             Both Niekamp and

Klosterman testified that they met with Workman on the property when they hand-

delivered public records that he had requested.       During this visit, Workman

showed the Trustees around one of the structures he had recently built on the

property. This building housed a tanning bed, a fighting cage, and personal fitness

equipment.    Klosterman and Niekamp observed a nonfunctioning toilet and

pedestal sink vanity resting against the back wall. According to Klosterman and

Niekamp, Workman explained that he used these items when he hired

subcontractors—specifically to test their plumbing skills. Both witnesses also

observed a mini track hoe stored in the building. Klosterman opined that a mini

track hoe is the type of equipment typically used in Workman’s line of business.

However, neither witness testified that Workman did in fact use this equipment for

business purposes.

       {¶13} As previously mentioned, the Franklin Township Zoning Code does

not define the term “commercial.”       When a key term is not defined courts

generally employ the plain meaning and common usage of the word. At trial, the




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prosecution introduced as an exhibit a dictionary page defining the word

“commercial” as follows:

      Commercial (adj) 1 a (1): engaged in work designed for the
      market (2): of or relating to commerce (3): characteristic of
      commerce (4): suitable, adequate, or prepared for commerce b
      (1): being of average or inferior quality (2): producing artistic
      work of low standard for quick market success 2 a: viewed with
      regard to profit b: designed for a large market 3: emphasizing
      skills and subjects useful for business 4: supported by
      advertisers.

(State’s Ex. E). In Board of Trustees of Springfield Township v. Barnaby, the

Sixth Appellate District was asked to review a zoning resolution that prohibited

conducting a commercial operation in a residential district. Barnaby, 6th Dist.

Lucas No. L-88-069 (Nov. 18, 1988). The court in Barnaby concluded that the

exchange of money for goods or services was “undoubtedly an essential element

of ‘commercial use. ’ ” Id. at *2. Nevertheless, the court in Barnaby further

concluded that the prosecution in that case failed to establish beyond a reasonable

doubt that Barnaby was engaged in a “commercial use” because it failed to show

that Barnaby was involved in an exchange of money for goods and it failed “to

provide any indicia tending to establish the concept of commerciality, e.g.,

advertising, receipts, customer lists, etc.” Id. The court reasoned that “[w]ithout

this type of evidence the violation cannot be proven beyond a reasonable doubt.”

Id.



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       {¶14} Here, there was no evidence presented at trial demonstrating that

Workman was involved in the exchange of money for goods or services on the

property. There was also no evidence presented demonstrating that Workman

used the property to advertise his business or even that the equipment forming the

basis of the complaint was indeed used in Workman’s business. While there was

some testimony suggesting that Workman used a toilet and a pedestal vanity in

one of his out buildings to test the skills of subcontractors, Inspector Keithley

specifically testified that the allegations in the complaint were predicated solely

upon the storage of the work vehicles and mini track hoe and skid loader on the

property.

       {¶15} Moreover, Inspector Keithley stated the following at trial regarding

Workman’s alleged conduct forming the basis for the violation:

       The Court: I have one question. In part of your various drive-
       bys and photographs, is any part of the case [] based on activity
       that you saw other than the photographs of the parked vehicles,
       such as things being repaired, worked on, piping, tubing,
       employees, physical labor, carrying, lifting, moving, installing,
       putting things in trucks, anything like that that’s part of your
       zoning objection here?

       Inspector Keithley: Not that I have seen.

(Tr. at 50).

       {¶16} On this record, we must concur with the reasoning used by the court

in Barnaby. Without any specific definition in the zoning code setting forth the


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meaning of “commercial use” and based upon the limited testimony set forth

above, we cannot conclude that the mere presence of work vehicles and equipment

alone is adequate to establish beyond a reasonable doubt that Workman conducted

a “commercial use” on the property.

       {¶17} In addition to the foregoing difficulties, we are also compelled to

note a number of issues within the judgment entry of conviction and sentence

entered by the trial court in this case.

       {¶18} First, it is not clear that there is any judgment of conviction entered

against Workman. Rather, the trial court simply states that “this Court hereby

finds that the D has used this land in violation of the A-2 zoning and in [violation

of] 1127.15 through 1127.19 of the Franklin Township Zoning Code for the times

as proven in Court.” (Doc. No. 21). Workman is not named in the judgment and

as noted earlier neither is any statute which actually sets forth a criminal offense,

such as R.C. 519.23. As previously stated, the Franklin Township Zoning Code

does not state a criminal offense and it is well established that criminal liability for

a violation of a township zoning code must be predicated on R.C. 519.23, of which

the trial court makes no mention in its judgment entry.            See Strongsville v.

McPhee, 142 Ohio St. 534, paragraph two of the syllabus (1944).

       {¶19} Second, the judgment entry does not make a specific finding of guilt

beyond a reasonable doubt which is obviously necessary for a criminal conviction.


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       {¶20} Third, as a basis for its finding of guilt the judgment entry of the trial

court mentions a prior case involving Workman and similar allegations, in which

Workman apparently surrendered a conditional use permit. However, there is

nothing in the evidence about such a prior case, this prior case was never made

part of the record in this case, and nothing in the record suggests that the trial court

ever attempted to take judicial notice of the prior case. Under the circumstances it

is clearly troublesome for the trial court to mention the prior case in rendering its

decision and judgment in the case before us.

       {¶21} Finally, the trial court states the following in its judgment entry.

“Costs of this matter against Defendant. No fines herein subject to compliance by

D and his agents, etc.” (Doc. No. 21). Once the trial court sentenced Workman to

pay court costs, it no longer retained jurisdiction to threaten his continued

compliance with the imposition of further fines. Accordingly, this portion of the

judgment entry is either superfluous and unenforceable, or if intended as a

contingency, the entry itself may lack the necessary finality to constitute a valid

entry of conviction and sentence.

       {¶22} In sum, it is our conclusion that the specific sections of the zoning

code that were alleged to have been violated in this case, the evidence presented at

trial, and the final judgment entry appealed from, all fail as a matter of law to

sufficiently apprise Workman of or identify for the record the proscribed criminal


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conduct for which Workman was purportedly convicted. As such, the assignments

of error are sustained and the judgment of the trial court is reversed as against the

sufficiency of the evidence and we remand this case with instruction to dismiss the

complaint.

                                                           Judgment Reversed and
                                                                Cause Remanded

ROGERS, J., concurs.

/jlr


WILLAMOWSKI, P.J., Concurring Separately.

       {¶23} I concur fully with the judgment of the majority; however I am

writing separately to call attention to one more error committed by the trial court,

which was not discussed by the majority. This is a criminal case. Yet, it is

apparent from the record that Defendant was not present at the time he was found

guilty and “sentenced” to “compliance with the requirements of [Franklin

Township Zoning Board] and Zoning inspectors” as well as to the payment of the

court costs. (See Tr. at 88 (indicating that the court was taking the matter under

advisement and that the finding of guilty is absent from the trial transcript); Doc.

No. 21, J. Entry (finding Defendant guilty in a written decision).)

       {¶24} Crim.R. 43(A) is mandatory in its requirement that “the defendant

must be physically present at every stage of the criminal proceeding and trial,


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including the impaneling of the jury, the return of the verdict, and the imposition

of sentence,” except when a written waiver or a waiver on the record is secured, or

in instances of disruptive conduct by the defendant. See also R.C. 2945.12:

       A person indicted for a misdemeanor, upon request in writing
       subscribed by him and entered in the journal, may be tried in his
       absence by a jury or by the court. No other person shall be tried
       unless personally present, but if a person indicted escapes or forfeits
       his recognizance after the jury is sworn, the trial shall proceed and
       the verdict be received and recorded. If the offense charged is a
       misdemeanor, judgment and sentence shall be pronounced as if he
       were personally present. If the offense charged is a felony, the case
       shall be continued until the accused appears in court, or is retaken.

(Emphasis added.)

       {¶25} No waiver appears on the record and no disruptive behavior by

Defendant is documented. Defendant was therefore within his rights to be present

when the decision finding him guilty was announced. The trial court’s judgment

should therefore be reversed based on this error alone. See State v. Welch, 53

Ohio St.2d 47, 48, 372 N.E.2d 346 (1978) (reversing the judgment of the court of

appeals that affirmed a verdict of guilty entered in the absence of the defendant).

       {¶26} Having said that, I concur with the conclusion of the majority that the

judgment of the Celina Municipal Court be reversed and cause remanded with

instructions to dismiss the complaint.




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