COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59233 : CITY OF MAYFIELD HEIGHTS : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOYCE C. BRAUN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 14, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. 89-CRB-397 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: VINCENT A. FEUDO ALBERT C. NOZIK Mayfield City Prosecutor 7833 Lakeshore Blvd. 55 Public Square Building Mentor-On-The-Lake, Ohio Cleveland, Ohio 44113 44060 -2- PATRICIA A. BLACKMON, J.: Joyce C. Braun, appellant, timely appeals the trial court's decision that found her guilty and sentenced her for violation of Mayfield Heights Codified Ordinance 1393.01, which prosecutes a person for a first degree misdemeanor who fails to maintain exterior walls of a building pursuant to BOCA National Existing Structures Code, E.S. 302.3.2. Appellant raises six assignments of error. She contends that the complaint fails to state the proper ordinance number for the offense and argues that a motion to compel discovery of the ordinance should have been granted. She further contends that as a result of the denial of discovery appellee should not have been permitted to amend the complaint. Furthermore, appellant claims that evidence was insufficient to sustain a verdict of guilty for the crime charged, and the trial court abused its discretion when it sentenced her for a fine of $4,000. For the reasons set forth below, we affirm. The facts of this case showed that appellant received a summons which stated that on July 24, 1989, " E.S. 302.3.2 Exterior Walls, failed to replace rotted wood, scrape, weather- proof all buildings in violation of Cod. Ord. No. 85-29". The complaint named "(Gateway Apt.) Joyce Braun, Mgr." and bore her signature as having received it. On November 22, 1989, prior to trial, appellant made a motion to compel his previous discovery request for copies of all Mayfield Heights ordinances relating to the maintenance and -3- repairs required to be made on the buildings. Appellee failed to provide this information, and the trial court denied the motion to compel. Appellee made a motion to amend the complaint to reflect Mayfield Heights Ordinance, 1393.01 instead of 85-29. Appellant objected and made a motion to dismiss. Appellee's motion to amend was granted, and appellant's motion to dismiss was denied. Appellee presented two witnesses at trial, Dominic Celico, a Housing Inspector for the City of Mayfield Heights and Bernard Samac, a Building Commissioner for the City of Mayfield Heights. Mr. Celico testified that he observed peeling, flaking and chipping paint on the exterior walls of all twelve buildings of the Gateway Apartments. He sent notice to the owner, Albert C. Nozik on June 21, 1988, with a copy of the Code E.S. 302.3.2 attached. From June 21, 1988 to July 24, 1989 only two buildings had been painted. Shortly after the citation was issued, four additional buildings were painted. By November 1, 1989, there were four buildings that needed painting and showed signs of deterioration. Mr. Celico photo- graphed the condition of these buildings and identification as buildings C, E, G, and J. The photographs were admitted into evidence. He further testified that he served the complaint on July 24, 1989 to Joyce Braun, because he believed that she was the manager of the complex. In the past she represented to him that -4- if future repairs to the premises were needed, he should see her. Finally, he testified that the basis of the complaint was "the BOCA Basic National Existing Structural Code 1984," and the trial court took judicial notice of the code. Mr. Bernard Samac did a visual inspection of the exterior surface of the buildings on November 20, 1987 and observed the same conditions seen by Mr. Celico. In his opinion, peeling paint was evidence of deterioration. He also testified, as a custodian of records, having a letter signed by Joyce Braun as manager of the Gateway apartments. The letter was dated October 25, 1988 and addressed to Mr. Celico. The letter advised Mr. Celico of the status of repairs at Gateway Apartments. After appellee rested, appellant renewed her motion to dismiss and made a motion for judgment of acquittal. These motions were denied. Appellant presented three witnesses at trial, David Maxim, an employee of Gateway Apartments, Joyce Braun, appellant, and Albert C. Nozik, a shareholder of the corporation which owns Gateway Apartments. Mr. Maxim testified that he was a maintenance man for Gateway Apartments. His duties included interior maintenance and repairs to buildings, and orders for repairs made to him would be at the appellant's direction. He receives repair orders from appellant. She supervised his interior work, but he was paid and contractors performing exterior work were paid through a Mentor- On-The-Lake Office. Checks were signed by Mr. Nozik or Eleanor -5- McDonald. He also testified that the only building he knew that still needed painting was Building G. Joyce Braun testified on her own behalf. She testified that she was the rental agent and her responsibilities were to show apartments for rent and facilitate repairs for tenants. She dispersed work orders for tenant complaints, and did not supervise the exterior work. All exterior work, payments and leases were handled through the Mentor-On-The-Lake Office. She maintained that her offer to aid the housing inspectors was only an offer to relay a message to her father, Mr. Nozik, who was the manager. Nevertheless, she admitted to signing the October 25, 1988 letter as manager. Finally, Mr. Nozik testified that he was a shareholder of the company that owned Gateway Apartments. He also testified that he was the manager and Ms. Braun had no responsibility or authority in the maintenance of the building. He admitted to receiving the notice in June of 1988, but does not recall if a copy of the code was attached. After all the evidence, the trial court found appellant guilty. Appellant was fined $4,000.00 and costs pursuant to Mayfield Heights Ordinance 1383.99. Appellant requested an opportunity to file a motion to mitigate. The request was granted and appellant was given until December 6, 1989. Appellant filed a motion to mitigate on the due date. The motion was denied. This appeal ensued. Appellant's first assignment of error is as follows: -6- THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE COMPLAINT SUA SPONTE, OR ON MOTION OF THE DEFENDANT, INASMUCH AS THE COMPLAINT CHARGED A VIOLATION OF A ZONING ORDINANCE AND NOT A CRIMINAL COMPLAINT. Appellant's argument that the complant did not comply with Criminal Rule 3 is unpersuasive. The complaint is a written statement of the essential facts constituting the offense charged. It shall also state the numerical designation of the applicable statute or ordinance. It shall be made upon oath before any person authorized by law to administer oaths. Crim. R. 3. A valid complaint under Criminal Rule 3, must contain all the essential elements of the crime charged. State v. Bergun (1976), 49 Ohio App. 2d 112. In the case, sub judice, the elements of the crime are defined by ordinance of the City of Mayfield Heights. Mayfield Heights Ordinance, 1393.01 provided for the inclusion of the BOCA National Existing Structures Code, ("the BOCA code"), and creates a criminal offense and provides that "whoever violates or fails to comply with any of the provisions of the BOCA National Existing Structures Code, as adopted in Section 1393.01, shall be punished as provided in Section 1383.99", which defines 1393,01 as a misdemeanor of the first degree with a maximum penalty of One Thousand Dollars ($1,000.00) and six months in jail, and deems a separate offense is "committed each day during or on which a violation or noncompliance occurs or continues." E.S. 302.3.2 is a part of the BOCA Code adopted under 1393.01. E.S. 302.3.2 provides that: -7- Every exterior wall shall be free of holes, breaks, loose or rotting boards or timbers, and any other conditions which might admit rain or dampness to the interior portions of the walls or to the occupied spaces of the building. All exterior surface materials, including wood, composition, or metal siding, shall be maintained weatherproof and shall be properly surface coated when required to prevent deterioration. Therefore, the essential element of the criminal offense is a violation of or failure to comply with the BOCA Code, specific- ally, a failure to maintain exterior walls weatherproof and properly surface coated when required to prevent deterioration. A review of the record reveals that all of the essential elements of the offense are set forth in the complaint. Appellant's argument that no crime exists because 1393.01 is a zoning ordinance is also unpersuasive. A "crime" may be defined as a violation of, or neglect to perform, a legal duty of such importance to the protection of society that the State takes notice thereof and imposes a penalty or punishment for such violation or neglect. And in Ohio it is well settled that no act is a crime unless it has been specifically defined by the Legislature and a penalty provided by them for the violation thereof. State v. Bundy (1956), 79 Ohio Law Abs. 253,255. The legislature in Mayfield Heights has defined the crime under its ordinance, 1393.01 in conjunction with 1393.99 and provided a penalty under its ordinance 1383.99. Appellant's first assignment of error is not well taken. Appellant's second assignment of error is as follows: -8- THE REFUSAL OF THE TRIAL COURT TO COMPEL DISCOVERY OF THE ORDINANCE UPON WHICH THE COMPLAINT WAS FILED, OR ANY OTHER ORDINANCE APPLICABLE THERETO, WAS PREJUDICIAL ERROR. This argument is premised on the belief that appellee had a duty to provide appellant with copies of the ordinances applicable to his case. Criminal Rule 16(B)(1) does not impose such a duty on the prosecuting attorney. However, Criminal Rule 7(E) provides that: When the defendant makes a written request within twenty-one days after arraignment but not later than seven days before trial, or upon court order, the prosecuting attorney shall furnish the defendant with a bill of particulars setting up specifically the nature of the offense charged and of the conduct of defendant alleged to constitute the offense. A bill of particulars may be amended at any time subject to such conditions as justice requires. Crim. R. 7(E). The Ohio Supreme Court has held that the prosecution must provide a more specific bill of particulars upon request of accused when the state possesses the information sought. See, State v. Lawrinson (1990), 49 Ohio St. 3d 238. In the instant case, appellee had no duty to provide a bill of particulars to appellant absent a timely request. See, Crim. R. 7(E). The record does not reveal a request for a bill of particulars was ever made. Therefore, any prejudice that may have resulted from the trial court's failure to compel discovery of applicable ordinances was waived. Appellant's second assignment of error is not well taken. Appellant's third assignment of error states that: -9- THE TRIAL COURT ERRED IN PERMITTING AN AMENDMENT DURING TRIAL OF THE COMPLAINT BY SUBSTITUTION OF AN ORDINANCE THAT WAS NOT IDENTIFIED IN THE COMPLAINT OR PRODUCED ON DISCOVERY. Criminal Rule 7(D) provides in pertinent part that: The court may at any time before, during, or after a trial amend the indictment, information, complaint or bill of particulars, in respect to any defect, imper- fection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. *** The critical issue in determining whether a trial court may grant an amendment is whether it constitutes a change in the name or identity of the crime to the extent that the appellant was misled or deprived of notice of the actual offense. Beachwood v. Cohen (1986), 29 Ohio App. 3d 226. In the case, sub judice, the trial court's amendment did not change the name or identity of the crime, nor did it change the elements of the offense. This court has decided, in disposition of appellant's first assignment of error, that appellant was informed of the charge by the language of the complaint. There- fore, there is no evidence in the record that appellant was misled by the complaint or its amendment. Appellant was only misled by his own belief that discovery pursuant to Criminal Rule 16 is substitute for filing a request for a bill of particulars pursuant to Criminal Rule 7(E). Appellant's third assignment of error is not well taken. Appellant's fourth assignment of error is as follows: -10- THE TRIAL COURT ERRED IN MAKING A FINDING OF GUILT BEYOND A REASONABLE DOUBT AGAINST AN IMPROPER PARTY DEFENDANT WHO WAS A MERE EMPLOYEE WITH NO RESPONS- IBILITY OR AUTHORITY IN FINANCIAL MATTERS OR DECISION MAKING. In reviewing a conviction involving personal accountability for organizational conduct, R.C. 2901.24 provides the following: (A) An officer, agent, or employee of an organization *** may be prosecuted for an offense committed by such organization, if he acts with the kind of culpability required for the commission of the offense, and any of the following apply: (1) In the name of the organization or in its behalf, he engages in conduct constituting the offense, or causes another to engage in such conduct, or tolerates such conduct when it is of a type for which he has direct responsibility; (2) He has primary responsibility to discharge a duty imposed on the organization by law, and such duty is not discharged. (B) When a person is convicted of an offense by reason of this section, he is subject to the same penalty as if he had acted in his own behalf. Culpability is not required in a violation of Mayfield Heights Ordinance 1393.99. R.C. 2901.21(B), in pertinent part provides the following: When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpa- bility is not required for a person to be guilty of the offense. The language contained in 1393.99, "violates or fails to comply," plainly indicates a legislative intent to impose strict liability. See, State v. Cheraso (1988), 43 Ohio App. 3d 221. (where the language "no person shall" construed to plainly indicate a legislative intent to impose strict liability). -11- Therefore, the record, sub judice, need only demonstrate that the appellant was in a position of responsibility. Where there is a conflict of evidence, the trier of fact is to resolve the conflict and its judgment will be affirmed if there is substantial evidence. E.g. State v. Walker (1972), 55 Ohio St. 2d 208, 213. Although appellant maintains that she was only the rental agent, there is sufficient evidence in the record that she was in a managerial position of responsibility. Therefore, any conflict is immaterial. Substantial evidence, in the instant case, consists of a letter dated June 8, 1989 addressed to Appellee's Building Department which was admitted as a joint exhibit of the parties. On cross-examination, appellant admitted signing the letter as manager of Gateway Apartments. The letter provides Mr. Celico as housing inspector, a progress report of exterior painting. Appellant's letter clearly demonstrates responsibility for the maintenance of exterior walls. Appellant's fifth assignment of error is as follows: THE FINDING OF GUILT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the verdict is against the manifest weight of the evidence, because Mayfield Heights Ordinance 1968.72, 5-21 C(4)(a) creates a presumption that exterior walls need not be painted. We disagree. In a criminal case, a verdict cannot be said as a matter of law to be against the manifest weight of the evidence when sub- -12- stantial evidence is offered by the state in support of all the elements of the offenses charged; and if such evidence was of sufficient probative value to sustain a conviction, the reviewing court will not reverse on the weight of evidence. State v. Barnes (1986), 25 Ohio St. 3d 203, 209. Mayfield Heights Ordinance 1968.72, 5-21 C(4)(a) is as follows: Presentation of evidence that all exterior surfaces have, not more than five (5) years prior to the date of inspection, been properly prepared and painted with at least one coat of good exterior paint or covered with other approved protective coating or surface shall be prima facie evidence of the exterior being in good condition. The presumption created by Mayfield Heights Ordinance 1968.72 is no more stringent than the presumption of innocence guaranteed to all criminal defendants. R.C. 2901.05. In the instant case, there is overwhelming evidence through photograph and testimony that Gateway Apartments were in need of painting. Appellant's fifth assignment of error is not well taken. Appellant's sixth and final assignment of error is as follows: THE TRIAL COURT COMMITTED A GROSS ABUSE OF DISCRETION IN IMPOSING AN UNUSUAL AND SEVERE SENTENCE UPON THE DEFENDANT FOR A MINOR MISDEMEANOR. A silent record raises the presumption that the trial court considered the mitigating factors contained in R.C. 2929.12 and 2929.22 Cleveland v. Cramer (May 24, 1990), Cuyahoga App. No. 58628, unreported. See also, State v. Adams (1988), 37 Ohio St. -13- 3d 295. This court has also held that "a pre-sentence report or some other evidence that the trial judge considered the statutory factors, satisfies the law." E.g. Cleveland v. Cammel (May 30, 1990), Cuyahoga App. No. 58666, unreported. In the instant case, there is no evidence that the trial court abused its discretion in sentencing appellant. The trial court sentenced the appellant without a hearing, but provided appellant the opportunity to file a motion to mitigate, considered it and denied it. Therefore, it is this court's conclusion that the trial court considered the statutory factors. Appellant's sixth and final assignment of error is not well taken. Judgment affirmed. -14- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lyndhurst Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. NAHRA, P.J., and ANN MCMANAMON, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .