COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60646, 60647 CITY OF EAST CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HENRY CLINKSCALE AND JERRY : BROWN : Defendant-appellants : : DATE OF ANNOUNCEMENT : AUGUST 13, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from East Cleveland Municipal Court : Case No. 90 CRB 684-1 90 CRB 685-1 JUDGMENT : REVERSED IN CASE NO. 60646 AND AFFIRMED IN CASE NO. 60647 DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellants: ESTHER D. HARBER 14340 Euclid Avenue East Cleveland, OH 44112 MARK FUSCO FRANK J. GROH-WARGO 30 Park Drive P.O. Box 332 Berea, OH 44017 - 2 - PATTON, J. This is an appeal from judgments entered against defendants- appellants Jerry Brown and Henry Clinkscale by the East Cleveland Municipal Court. On May 2, 1990, appellant Brown was issued a citation charging him with a building code violation. Specifically, he was charged with violating East Cleveland Ordinance 1351.25(c) in that he "as owner, did unlawfully allow another to park a dilapidated automobile on the premises" at 13857-61 Euclid Avenue. On the same date, appellant Clinkscale was issued a citation charging him with a traffic code violation. Specifically, he was charged with violating East Cleveland Ordinance 307.07(b) in that he did unlawfully "park an inoperable vehicle in the rear of 13857-61 Euclid Avenue." On July 26, 1990, appellants entered pleas of not guilty to the charges, and the case was scheduled for a bench trial. On August 2, 1990, a joint bench trial was conducted in which appellants proceeded pro se. Following trial, the appellants were convicted of violating East Cleveland Ordinance 1351.25(c) and were ordered to pay a fine of $50.00 plus court costs. The appellants filed separate appeals from the trial court's judgment, which were consolidated for our review. Appellant Brown raises the following assignment of error: EAST CLEVELAND MUNICIPAL ORDINANCE 1351.25(C) IS SO VAGUE, INDEFINITE AND UNCERTAIN THAT ITS ENFORCEMENT DENIES THE APPELLANT DUE - 3 - PROCESS OF LAW IN VIOLATION OF BOTH THE UNITED STATES AND OHIO CONSTITUTIONS. Appellant Brown argues that East Cleveland Ordinance 1351.25(c) is unconstitutionally vague. Specifically, appellant challenges the inclusion of the term "dilapidated automobile" in the aforementioned ordinance. For the following reasons, we need not address appellant Brown's assignment of error. In State v. Awan (1986), 22 Ohio St. 3d 120, the Ohio Supreme Court stated: The general rule is that "an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Childs (1968), 14 Ohio St. 2d 56 [43 O.O.2d 119], paragraph three of the syllabus; State v. Glaros (1960), 170 Ohio St. 471 [11 O.O.2d 215], paragraph one of the syllabus; State v. Lancaster (1971), 25 Ohio St. 2d 83 [54 O.O.2d 222], paragraph one of the syllabus; State v. Williams (1977), 51 Ohio St. 2d 112, 117 [5 O.O.3d 98]. Likewise, "[c]onstitutional rights may be lost as finally as any others by a failure to assert them at the proper time." State v. Childs, supra, at 62, citing State v. Davis (1964), 1 Ohio St. 2d 28 [30 O.O.2d 16]; State, ex rel. Specht, v. Bd. of Edn. (1981), 66 Ohio St. 2d 178, 182 [20 O.O.3d 191], citing Clarington v. Althar (1930), 122 Ohio St. 608, and Toledo v. Gfell (1958), 107 Ohio App. 93, 95 [7 O.O.2d 437]. Accordingly, the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court. See State v. Woodards (1966), 6 Ohio St. 2d 14 [35 O.O.2d 8]. This rule applies both to appellant's claim that the statute is unconstitutionally vague on its face and to his claim that the trial - 4 - court interpreted the statute in such a way as to render the statute unconstitutionally vague. Both claims were apparent but yet not made at the trial court level. Id., at 122-123. After reviewing the record below, we hold that appellant Brown's constitutional attack of East Cleveland Ordinance 1351.25(c) as being void for vagueness was waived by his failure to directly raise such issue in the trial court. Accordingly, we need not address appellant Brown's assignment of error as the claim was apparent but was not made at the trial court level. Appellant Clinkscale's assignment of error provides: THE APPELLANT'S CONVICTION FOR AN OFFENSE FOR WHICH HE WAS NOT CHARGED VIOLATES HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND MUST BE REVERSED. Appellant Clinkscale maintains that he was improperly 1 convicted of violating East Cleveland Ordinance 1351.25(c) where 1 1351.25 EXTERIOR PROPERTY AREAS. No owner or operator of any premises shall maintain or permit to be maintained at or on the exterior property areas of such premises any condition which deteriorates or debases the appearance of the neighborhood; or reduces property values in the neighborhood; or creates a fire, safety or health hazard; or which is a public nuisance; including but not limited to the following: * * * (c) Out-of-use or nonusable appliances, dilapidated automo- biles or automobile parts. - 5 - the charging instrument clearly sets forth a violation of East 2 Cleveland Ordinance 307.07(b). The trial court's judgment entry simply states that appellant Clinkscale was found guilty of a "litter violation." It does not specify the section of East Cleveland's Ordinances which was violated by appellant Clinkscale. However, the transcript reveals that the following exchange took place during the sentencing phase of appellant's trial: THE COURT: Okay. We agree that Mr. Brown allowed you to put the car on his premises, you agree that you put the car on his premises. MR. CLINKSCALE: Yes, I did. THE COURT: All right. That's litter violation 1351.25 D or C, which one is it? THE BAILIFF: C. THE COURT: C, okay. That's $50 and costs for both of you on that one. All right? (T. 46-47) It thus appears that, although appellant Clinkscale was charged with violating East Cleveland Ordinance 307.07(b), he was found guilty of violating East Cleveland Ordinance 1351.25(c), an offense with which he was not charged. 2 307.07 REMOVAL AND DISPOSAL OF JUNK VEHICLES. * * * (b) No person shall place, stand or park a junk vehicle upon any public street, public ground or upon any private property in the city. - 6 - It is a general rule that an accused who is charged with a particular offense cannot be convicted of another offense unless the latter is a lesser included offense of the former. State v. Morris (1982), 8 Ohio App. 3d 12, 16. Moreover, it has been held that where offenses are separately set forth in independent sections of municipal ordinances, it may be reasonably assumed that the city intended the separate sections to set out separate and independent offenses, not included or interchangeable ones. City of Akron v. Hull (1943), 72 Ohio App. 449, 451. In the instant case, appellant Clinkscale was charged with violating East Cleveland Ordinance 307.07(b), a traffic code violation. He was ultimately found guilty of violating East Cleveland Ordinance 1351.25(c), a building code violation. Given the fact that the offenses are set forth in entirely separate sections of the East Cleveland Ordinances, we conclude the city intended to set out separate offenses and not included ones. We thus find the conviction of appellant Clinkscale for violating East Cleveland Ordinance 1351.25(c) was erroneous. Accordingly, the trial court judgment against Clinkscale is reversed and final judgment discharging Clinkscale is ordered. Judgment affirmed in Case No. 60647 and reversed in Case No. 60646. - 7 - It is ordered that appellee recover of appellant its costs taxed in Case No. 60647 and that the appellant recover of appellee his costs in Case No. 60646. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, P.J. ANN McMANAMON, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .