[Cite as E. Liverpool v. Boyd, 2018-Ohio-355.]



                          STATE OF OHIO, COLUMBIANA COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

CITY OF EAST LIVERPOOL,                          )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )           CASE NO. 16 CO 0032
V.                                               )
                                                 )                  OPINION
GERALD BOYD,                                     )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from East Liverpool
                                                 Municipal Court of Columbiana County,
                                                 Ohio
                                                 Case No. 2016 CRB 00607

JUDGMENT:                                        Affirmed.

APPEARANCES:
For Plaintiff-Appellee                           Attorney Timothy J. McNicol
                                                 105 South Market Street
                                                 Lisbon, Ohio 44432

For Defendant-Appellant                          Attorney Lynsey Lyle-Opalenik
                                                 991 Main Street
                                                 Wellsville, Ohio 43968




JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                 Dated: January 26, 2018
[Cite as E. Liverpool v. Boyd, 2018-Ohio-355.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Gerald Boyd, appeals the judgment of the East
Liverpool Municipal Court convicting him on one count of public nuisance in violation
of East Liverpool Housing Code Ordinance 1329.05(b), a misdemeanor of the
second degree.
        {¶2}     Appellant owns and operates Jerry’s Auto Body Shop in East Liverpool.
Appellant utilizes a coal/wood burning furnace to heat his body shop and has done
so for over thirty years.
        {¶3}     On February 4, 2016, appellant was notified via letter by plaintiff-
appellee, the City of East Liverpool, that the furnace at his body shop was creating a
nuisance in the neighborhood. The February 4, 2016 letter ordered appellant to
cease using his furnace or to have repairs made to abate the nuisance to the
satisfaction of the East Liverpool Fire Department Chief and/or the East Liverpool
Planning Department.
        {¶4}     After receiving the letter, appellant’s furnace was inspected by the
assistant fire chief for the City of East Liverpool, David Edgell (Edgell). Edgell found
no violations with appellant’s furnace. Appellant was therefore under the belief that
his furnace was compliant with the East Liverpool Fire Department and made no
repairs. However, the city charged appellant with a public nuisance violation for
smoke emanating from his furnace. The matter proceeded to trial before the court.
        {¶5}     At trial, the city called three witnesses: Gregg Stowers (Gregg), Norma
Jane McMahon (Norma), and Craig Stowers (Craig). All three of the city’s witnesses
live in the immediate vicinity of appellant’s body shop. The city’s witnesses moved to
their respective residences after appellant’s business was already established and
while he was using his furnace. The three witnesses for the city all testified to the
smoke that was emanating from appellant’s furnace and all testified to the various
inconveniences the smoke was causing them.
        {¶6}     Appellant called two witnesses in his defense: Darren Machuga
(Machuga) and Edgell. Machuga is a field technician and an environmental specialist
with the Ohio Environmental Protection Agency (Ohio EPA). Machuga testified that
                                                                                  -2-


he inspected the furnace twice and found that it was not in violation of any EPA
regulations. Edgell testified that he inspected appellant’s furnace on multiple
occasions and found no problems or violations.
       {¶7}   On October 14, 2016, the trial court returned a verdict of guilty and
sentenced appellant to pay $229.00 in fines and court costs. Appellant requested a
stay of his sentence pending the outcome of his appeal with the trial court which was
granted. Appellant timely filed this appeal on November 10, 2016. Appellant raises
two assignments of error.
       {¶8}   Appellant’s first assignment of error states:

              THE EVIDENCE PRESENTED BY THE CITY OF EAST
       LIVERPOOL WAS INSUFFICIENT AS A MATTER OF LAW.

       {¶9}   Appellant argues that the evidence presented by the city was
insufficient to sustain a conviction for two reasons. First, the person who sent
appellant the letter claiming appellant’s furnace was a violation of the housing
ordinance, William Cowen, was never called to testify. Appellant argues that this was
a violation of his right to confront witnesses against him. Second, appellant argues
that insufficient evidence for a conviction existed because the February 4, 2016 letter
stated that his furnace needed to conform to the satisfaction of the East Liverpool
Fire Department, which appellant contends it did.
       {¶10} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Dickson, 7th Dist. No. 12 CO 50, 2013-
Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St.3d 89, 113, 684 N.E.2d 668
(1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally sufficient
to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
proven beyond a reasonable doubt. Id. citing State v. Goff, 82 Ohio St.3d 123, 138,
                                                                                -3-


694 N.E.2d 916 (1998). When evaluating the sufficiency of the evidence to prove the
elements, it must be remembered that circumstantial evidence has the same
probative value as direct evidence. Id. citing State v. Jenks, 61 Ohio St.3d 259, 272-
273, 574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other
grounds).
       {¶11} Appellant was convicted of violating East Liverpool Housing Code
1329.05(b). This housing code section provides: “[f]uel burning, heat producing
equipment shall be installed and maintained so that the emission or discharge into
the atmosphere of smoke, dust, particles, odors, or other products of combustion will
not create a nuisance or be detrimental to the health, comfort, safety or property of
any other person.” Pursuant to East Liverpool Housing Code 1321.99, violations of
1329.05(b) are misdemeanors of the second degree.
       {¶12} Addressing the city’s three witnesses individually, Gregg testified that
his residence is approximately 30-50 feet from appellant’s body shop. (Tr. 5). Gregg
further testified that appellant was operating a furnace that was causing a smoke
issue in the neighborhood. (Tr. 6). Gregg also testified that he can smell the smoke
while inside of his house. (Tr. 6). Gregg testified that the smell gets into his curtains
and couches and causes him headaches. (Tr. 7). Finally, Gregg testified that one
day, the smoke was so bad, he had to leave his home. (Tr. 8).
       {¶13} Norma testified that she lives next door to appellant’s body shop. (Tr.
23). Norma testified that she has witnessed smoke and other particles coming from
appellant’s chimney. (Tr. 24). As for the effects of the smoke, Norma testified that: it
smells “horrible,” black soot accumulates in between her windows, she can smell it
inside of her home, it gives her a sore throat, and she has two air purifiers running in
her bedroom as a result of the smoke. (Tr. 24). Norma also testified that the smoke
emanates from appellant’s furnace seven days a week. (Tr. 25). Finally, Norma
testified that she contacted the fire department either three or four times regarding
the smoke. (Tr. 26).
       {¶14} Craig testified that he lives “catty corner” from appellant’s business and
                                                                                -4-


approximately 100 feet away. (Tr. 34). Craig has seen the smoke emanating from
appellant’s chimney on multiple occasions. (Tr. 35). In addition to his home, Craig
also owns houses adjacent to his home and has to regularly spray his various homes’
porches and windows to remove soot from the furnace. (Tr. 36). Additionally, Craig
testified that he has to continually wash soot off of his truck. (Tr. 36). Finally, Craig
testified that he does smell the smoke but not as bad as other homes that may be
closer to appellant’s body shop. (Tr. 37). Craig went as far as to say that the smoke
has even made his cat smell. (Tr. 37).
       {¶15} The testimony of the city’s witnesses established that smoke and
particles were emanating from appellant’s furnace which was detrimental to the
comfort or property of the city’s witnesses.
       {¶16} Regarding William Cowen, a review of the record reveals that he is the
director of the East Liverpool Planning and Development Department. Cowen was
the person who signed the affidavit complaint bringing this charge against appellant.
But the fact that Cowen did not testify at appellant’s trial does not violate his right
under the Confrontation Clause. The Confrontation Clause applies only to
“witnesses,” meaning those who “bear testimony against the accused.” State v. Stahl,
111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 15 citing Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The February 4, 2016
letter was never offered nor introduced as an exhibit at trial. Because Cowen did not
bear any testimony against appellant, appellant’s right under the Confrontation
Clause was not violated.
       {¶17} Addressing the potential compliance with the February 4, 2016 letter
argument, the letter was not admitted into evidence at appellant’s trial. In a
sufficiency challenge, the reviewing court considers evidence that was admitted at
trial. State v. Yarbrough, 95 Ohio St. 3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80
citing Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). As
the city established all of the elements of the offense, appellant’s conviction was
sufficient as a matter of law.
                                                                               -5-


       {¶18} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
       {¶19} Appellant’s second assignment of error states:

              THE VERDICT OF GUILTY AS TO APPELLANT FOR
       VIOLATING EAST LIVERPOOL HOUSING CODE ORDINANCE
       1329.05(B)    AND    SUBSEQUENTLY          ASSESSING       A     CRIMINAL
       PENALTY AS DESIGNATED BY EAST LIVERPOOL ORDINANCE
       NUMBER 1321.99 WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶20} Appellant argues that there is a sufficient amount of evidence in his
favor and a lack of evidence from the city, which indicates that the trial court’s
decision to convict him was against the manifest weight of the evidence.
       {¶21} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences 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. Thompkins, 78
Ohio St.3d at 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’ ” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
       {¶22} Thompkins addressed a manifest weight argument in the context of a
jury trial. But the standard of review is equally applicable when reviewing a manifest
weight challenge from a bench trial. State v. Layne, 7th Dist. No. 97 CA 172, 2000
WL 246589, at *5 (Mar. 1, 2000). A reviewing court will not reverse a judgment as
being against the manifest weight of the evidence in a bench trial where the trial court
could reasonably conclude from substantial evidence that the state has proved the
                                                                                 -6-


offense beyond a reasonable doubt. State v. Hill, 7th Dist. No. 09-MA-202, 2011-
Ohio-6217, ¶ 49, citing State v. Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304
(1988).
       {¶23} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses'   credibility   by   observing   their   gestures,   voice   inflections,   and
demeanor. State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49,
citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass,
10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus,
“[w]hen there exist two fairly reasonable views of the evidence or two conflicting
versions of events, neither of which is unbelievable, it is not our province to choose
which one we believe.” State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
       {¶24} Appellant points out several instances in which, he contends, it shows
the trial court’s decision was against the manifest weight of the evidence. First, the
district representative for the Division of Air Pollution Control of the Ohio EPA and an
assistant fire chief for the East Liverpool Fire Department both testified that there
were no issues with appellant’s furnace. Second, the assistant fire chief’s report
indicated that the smoke was “never as bad as the caller [Norma] states” and that the
assistant chief believed this to be a neighborhood dispute. Third, the city produced
no expert witnesses to testify that appellant’s furnace was the proximate cause of any
smoke, soot, and smell complained of by the city’s witnesses. Fourth, the city’s
witnesses testified that there exists smoke/steam producing industries around the
East Liverpool area. Finally, appellant argues that the testimony of the city’s
witnesses was self-serving compared to his witnesses at trial.
       {¶25} As stated previously, Edgell testified that he had personally investigated
appellant’s furnace on February 20, 2016, and found no problems and made no
                                                                                 -7-


recommendations about repairing or replacing the furnace. (Tr. 72-74). Additionally,
Machuga testified that he investigated appellant’s furnace on February 9, 2016 and
February 29, 2016, and found that appellant was only burning wood and coal and
only witnessed heat waves coming out of appellant’s stack. (Tr. 51-53).
       {¶26} However, Edgell and Machuga’s testimony is limited to the few times
they each inspected appellant’s business and furnace. The three witnesses for the
city all testified that they live in close proximity to appellant and have lived there for
several years. (Tr. 5, 23, 34-37). The three witnesses for the city also testified that,
on numerous occasions, they saw smoke coming from appellant’s furnace, smelled
smoke, and/or had to continually clean their property due to soot accumulation from
the furnace.
       {¶27} Nevertheless, appellant asserts that the city’s lack of an expert witness
to testify that appellant’s furnace was the proximate cause of the smoke smell and
soot continues to show that the trial court’s verdict was against the manifest weight of
the evidence. Appellant asserts that this point is even further displayed by the fact
that city’s witnesses testified that the East Liverpool area is surrounded by
businesses that all emit smoke. (Tr. 14, 44).
       {¶28} But all three of the city’s witnesses testified that they lived in the
immediate vicinity of appellant’s body shop. (Tr. 5, 23, 34-37). Furthermore, all three
of the city’s witnesses testified that they continually see smoke coming from
appellant’s body shop and the various effects the smoke had on each of them. (Tr. 5-
6, 23-26, 34-37). The mere fact that there were businesses surrounding the East
Liverpool area that were also producing smoke does not negate the testimony that
appellant’s furnace was producing smoke and soot. There is also no evidence in the
record as to how far these businesses are from the neighborhood at issue.
       {¶29} Finally, appellant asserts that the city’s witnesses’ credibility was
hindered. Appellant argues that this is merely a neighborhood dispute and the
witnesses’ testimony is self-serving. Regarding the neighborhood dispute, Edgell
provided testimony that the reason for Norma calling the East Liverpool Fire
                                                                               -8-


Department concerning appellant’s furnace was merely a “neighborhood dispute.”
(Tr. 71, Exhibits B, C). However, Edgell did not provide any evidence as to why he
believed it to be a neighborhood dispute. Edgell’s report regarding Norma’s February
20, 2016 call to the East Liverpool Fire Department stated “I think this is a
neighborhood dispute.” (Tr. 71, Exhibit C). It is also a reasonable inference that
Norma continued to call the East Liverpool Fire Department because the smoke was
a continuing problem.
      {¶30} Regarding the self-serving nature of all of the city’s witnesses’
testimony, to the extent that the furnace is causing these effects, the city’s witnesses
would gain the benefit of not having smoke permeate through their neighborhood.
But there is no evidence that the trial court did not consider the potential bias from
the city’s three witnesses. Ultimately, appellant’s conviction was not against the
manifest weight of the evidence.
      {¶31} Accordingly, appellant’s second assignment of error is without merit and
overruled.
      {¶32} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

DeGenaro, J., concurs

Robb, P.J., concurs
