COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60042 CITY OF LYNDHURST, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION FORREST L. COLLINS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 12, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Lyndhurst Municipal : Court : Case No. 90-TRD-4785 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Irl Rubin, Prosecutor City of Lyndhurst 5301 Mayfield Road Lyndhurst, Ohio 44124 For defendant-appellant: Forrest L. Collins, Pro Se 7515 Avon Lake Chester Township, Ohio 44026 -2- NAHRA, P.J.: Forrest L. Collins appeals his speeding conviction. Pursuant to App. R. 9(C) the following facts were adduced by the Lyndhurst Municipal Court: THE MATTER CAME ON on (sic) May 9, 1990 on a charge against the defendant, Forrest L. Collins, for speeding in the City of Lyndhurst. The charge was under Ohio Rev.C. (sic) 4511.21, a minor misdemeanor. The City's evidence was by Patrolman Terrence L. Crawley, who testified that on Saturday, April 21, 1990 at 7:45 A.M., he was operating a radar detail at Mayfield Road and Daytona, and further, he was in a marked patrol car and in uniform using a "Falcon hand- held radar". The officer testified that he checked the radar with an internal test and an external test and that he found the radar to be in operating condition just prior to the radar clock on the defendant at 7:45 A.M. The officer further testified that he trained in radar at the Ohio State Patrol Academy in his basic training from January through March this year, 1990. Adn (sic) that, further, he had operated radar on the job since beginning his active duty in April of this year. The Court determined that the officer was a qualified operator and that radar was fully operational and in working order on the date and time of the clocking. The Court took Judicial (sic) notice of the speed of the clock after the officer testified he made a visual observation of the vehicle westbound on Mayfield at the date and time in question. The officer further testified that from his visual observation, the vehicle of the defendant was exceeding the speed limit. The officer testified that the radar measured the defendant's speed at 50 miles an hour in a 35-mile-an- hour zone and the Court took judicial notice of this fact. The evidence further showed that the pavement was wet, it was partly cloudy. At the same time, the officer testified that the defendant's vehicle was alone at the time -- no other vehicle close by. The defendant stated that there was some other vehicle; namely, a Lincoln, going in the opposite direction. The defendant further stated that he "didn't believe he was speeding"; that he was looking at the other vehicle. He again stated that he didn't believe he was -3- exceeding the speed limit. He did not state at what speed he was operating. The Court found that the State proved beyond a reasonable doubt that at the same time and place, the defendant was exceeding the stated speed limit and was operating his vehicle at 50 miles an hour in a 35-mile-an-hour zone and that the same was unreasonable for the conditions then and there appearing. There was an Exhibit (sic) introduced by the defendant of the sign indicating the speed limit on Mayfield Road in the area of the clocking. The defendant did not dispute that the sign was posted but stated that it was not at the legal height. Collins' fine amounted to $66. His timely appeal follows. I. Appellant's first assignment of error states: THE COMPLAINT IN THIS CASE DID NOT ORIGINALLY, OR AFTER AMENDMENT, IDENTIFY THE OFFENSE WITH THE REQUIRED PARTICULARITY. When Collins received the traffic citation for speeding, Patrolman Crawley listed the violation under section 434.03 of the Lyndhurst Municipal Code. The ticket specified that Collins was driving 50 m.p.h. in a 35 m.p.h. speed zone. Shortly before trial, the trial court amended the original charge to R.C. 4511.21. Collins maintains that he was not notified adequately about the nature of the charge against him and that the amended charge was not identified with particularity. Crim. R. 7(D) governs the amendment of traffic ticket complaints. City of Tiffen v. Ruden (1988), 46 Ohio App. 3d 138, 546 N.E.2d 223. Amendments of such complaints are permissible if the defendant has a reasonable opportunity to prepare his defense -4- and the amendment clarifies or amplifies in a way consistent with the original complaint. Id.; see Cleveland Heights v.Perryman (1983), 8 Ohio App. 3d 443, 457 N.E.2d 926. Crim. R. 7(D) provides: * * * 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, imperfection, or omission in form or substance, or if any variance with the evidence, provided no change is made in the name or identity of the crime charged. * * * We believe that the trial court's amendment of the original charge, under section 434.03 of the Lyndhurst Municipal Code, to that under R.C. 4511.21, was proper. Both ordinances are materially the same. R.C. 4511.21(B)(3) states: (B) It is prima-facie lawful, in the absence of a lower limit declared pursuant to this section by the direction of transportation or local authorities, for the operator of a motor vehicle, * * * to operate the same at a speed not exceeding the following: * * * (3) Thirty-five miles per hour on all state routes or through highways within municipal corporations outside business districts, except as provided in divisions (B)(4) and (B)(6) of this section; Lyndhurst Municipal ordinance section 434.03(b)(4) is almost identical, and states: (b) It is prima-facie lawful, in the absence of a lower limit declared pursuant to Ohio R.C. 4511.21 by the Ohio Director of Transportation or local authority, for the operator of a motor vehicle to operate the same at a speed not exceeding the following: (4) Thirty-five miles per hour in all state routes or through highways within the Municipality -5- outside business districts, except as provided in paragraph (5) hereof. (Emphasis in original.) A traffic complaint will satisfy legal requirements if it apprises the defendant of the nature of the charge together with a citation of the statute or ordinance involved. Cleveland v. Austin (1978), 55 Ohio App. 2d 215, 38 N.E.2d 1357. The amendment to the original charge did not deprive Collins of a reasonable opportunity to prepare a defense. Nor did he lack notice of the nature of the charge against him. While the amended charge apparently did not specify the particular subsection under R.C. 4511.21, the traffic citation made clear that Collins was driving 50 m.p.h. in a 35 m.p.h. zone. Collins admits that he tried at trial to avail himself of certain exceptions to the speed limit under R.C. 4511.21 but did so without success. The charge against Collins was proper. Appellant's assignment of error is overruled. II. Appellant's second assignment of error states: ANY OFFENSE WHICH MAY HAVE BEEN CHARGED WAS VOID BY REASON OF NONCOMPLIANCE BY THE APPELLEE WITH R.C. 4511.11. R.C. 4511.11, which concerns the uniformity of traffic control devices, states in pertinent part: (A) Local authorities in their respective jurisdictions shall place and maintain traffic control devices in accordance with the department of transportation manual and specifications for a uniform system of traffic control devices, adopted under section 4511.09 of the Revised Code upon highways under the jurisdiction as are necessary to indicate and to -6- carry out sections 4511.01 to 4511.76 and 4511.99 of the Revised Code, local traffic ordinances, or to regulate, warn, or guide traffic. * * * (D) All traffic control devices erected on a public road, street, or alley, shall conform to the state manual and specifications. Accord State, ex rel. Ohio Motorists Assn., v. Masten (1982), 8 Ohio App. 3d 123, 456 N.E.2d 567. Section 2E-4 of the Uniform System of Traffic Control Devises, adopted by the Ohio Department of Transportation, requires that the bottom of signs in commercial and residential districts must be at least seven feet above the ground. Collins contends that the sign giving notice of the 35 m.p.h. speed limit on Mayfield Road was at most 6' 2" above ground level. As a result, he was not given adequate notice of the speed limit and the judgment must be reversed. We disagree. A review of the App. R. 9(C) statement reveals that Collins made the same argument at trial. However, the trial judge, the finder of fact, did not determine that the sign in question was in noncompliance with the requirements of the manual of traffic control devices. Nor does the photograph of the sign, an exhibit provided by Collins, indicate to us that the sign failed to be posted seven feet above ground level. We find no need to disturb the trial court's evaluation of the evidence. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. Appellant's assignment of error is overruled. III. -7- Appellant's third assignment of error states: THE APPELLANT'S RIGHT TO A TRIAL BY JURY FOR WHICH A TIMELY WRITTEN DEMAND WAS MADE WAS IMPROPERLY DENIED. Collins contends that the trial court erred when it denied his request for a jury trial. R.C. 2945.17 provides that an accused has the right to a jury trial in all cases except "in cases in which the penalty does not exceed a fine of one hundred dollars". The right is dependent upon the potential penalty involved in the case. See State v. Tate (1979), 59 Ohio St. 2d 50, 391 N.E.2d 738. Here, the charge was a minor misdemeanor and the fine could not exceed $100.00. Accordingly, he was not entitled to be tried by a jury. The trial court's denial of his request for a jury trial was proper. Appellant's assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE CONVICTION OF THE APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Collins asserts that the record does not contain evidence that the 35 m.p.h. speed limit existed or that such limit was proper. Instead, he argues that the speed limit on the road on which he drove should be 50 m.p.h. because it was a multi-lane highway. However, the record before us indicates that the trial court determined the speed limit to be 35 m.p.h. at the location in -8- question. Our review of the record does not reveal that the judgment was against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 461 N.E.2d 1273; State v. Neff (1975), 41 Ohio St. 2d 17, 18, 322 N.E.2d 274. Appellant's assignment of error is overruled. V. Appellant's fifth assignment of error states: THE LACK OF A TRANSCRIBED RECORD UNDER THE FACTS OF THIS CASE CONSTITUTES A DENIAL OF DUE PROCESS. Collins finally asserts that he was denied due process inasmuch as the trial court did not maintain a transcript of the proceedings below. He contends that the App. R. 9(C) statement does not adequately show his objections at trial or the facts of the case. App. R. 9 governs procedure with respect to the transmission of the record on appeal. In the absence of a written transcript at trial, App. R. 9(C) provides that a statement of the evidence may become part of the record after approval by the trial court. Initially, the appellant should present a proposed statement of the facts to the appellee before submission to the trial court. Here, there is nothing in the record which indicates that Collins presented his proposed statement of facts to the City of Lyndhurst, appellee, pursuant to App. R. 9(C). The trial court approved a statement of the evidence in timely fashion which properly became part of the record on appeal. State, ex rel. -9- Fant, v. Trumbo (1986), 22 Ohio St. 3d 207, 489 N.E.2d 1316. We also note that an appellant has the duty to provide a transcript for appellate review and to demonstrate any possible error. Columbus v. Hodge (1987), 37 Ohio App. 3d 68, 523 N.E.2d 515. Collins could have requested a court reporter at trial to transcribe the proceedings. However, no such request was apparently made. Moreover, there is no apparent duty of a municipal court to provide a court reporter. Accordingly, appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -10- 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. BLACKMON, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .