COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66946 CITY OF PARMA : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIAM BAMBECK : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 16, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Parma Municipal Court : Case No. 93-CRB-2635-1-1 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: WILLIAM D. MASON City of Parma Chief Prosecutor DAVID T. TOETZ, Assistant 5750 West 54th Street Cleveland, Ohio 44129 For defendant-appellant: WILLIAM BAMBECK, pro se 5711 Bradley Avenue Parma, Ohio 44129 - 2 - DONALD C. NUGENT, J.: Defendant-appellant William Bambeck timely appeals a judgment of conviction from the Parma Municipal Court for unlawful repair or servicing of a vehicle in a residential neighborhood. The relevant facts, as adduced from appellant's bench trial, are as follows: Thomas Sanicky, appellant's next-door neighbor, observed appellant making various repairs on a 1973 Dodge cargo van from April to October of 1993. Mr. Sanicky testified that sometime in April, the cargo van arrived at appellant's residence on a flat bed tow truck. According to Mr. Sanicky, the van was kept in the driveway in appellant's back yard from April, 1993 up to the date of trial (January 26, 1994). From April to October of 1993, Mr. Sanicky observed appellant make numerous repairs to the van, including pulling out the engine with an engine hoist and replacing it, replacing the brakes, and gutting out and painting the interior. Mr. Sanicky further testified that despite making three separate complaints to the police department, he never saw any results. Mr. Sanicky also made a complaint with the city prosecutor's office and attended a prosecutor's hearing. Mr. Sanicky added that appellant worked on the van well into the night. On several occasions, appellant worked on a bench - 3 - grinder till 9:30 p.m. Mr. Sanicky stated that appellant's work on the van was very disturbing. Mr. Sanicky's son was kept awake on school nights, and the Sanickys could not socialize in their own back yard. Mr. Sanicky concluded, on re-direct, that the van has been inoperable and on wooden ramps in appellant's back yard since April. Timothy Meyer, another neighbor, testified next. Mr. Meyer had also called the police department on several occasions to complain about appellant working on the van. Mr. Meyer stated that the police would come out and warn appellant to stop working on the van, only to have appellant continue fifteen minutes after they left. Mr. Meyer also observed appellant changing the motor with a motor hoist, doing a brake job, and painting the interior, as well as some of the exterior. According to Mr. Meyer, appellant allowed puddles of brake and transmission fluid to be washed down the driveway and into the sewer system. Mr. Meyer also testified that the van has been in appellant's back yard from April of 1993 up to the time of trial. According to Mr. Meyer, appellant hammered away on the van past 9:00 at night, which disturbed Mr. Meyer's school-aged children. Mr. Meyer confirmed that the van had been on wooden tire ramps for the last four months and had not left the driveway since it arrived on the flat bed truck in April. On cross-examination, Mr. Meyer acknowledged working on his 1974 Porsche and to having - 4 - rebuilt the engine. Mr. Meyer added that he works on his car in his garage and that he may have removed the motor outside but that he has never left anything outside overnight. Jack Corwin, a maintenance inspector with the City of Parma Building Department, was the city's final witness. Mr. Corwin stated that he and Inspector Tibits received several complaints concerning appellant's property. Mr. Corwin first responded to these complaints on May 10, 1993, but appellant would not allow Mr. Corwin to visually inspect his property without a warrant. Mr. Corwin returned on May 17th and conducted a visual exterior maintenance inspection from the neighboring property. After observing the inoperable van, Mr. Corwin sent appellant a certified letter demanding that appellant remove the vehicle. Mr. Corwin returned several months later, only to observe the same conditions. Mr. Corwin further testified that at the prosecutor's hearing, appellant stated that he could not afford to have the van towed away. Mr. Corwin responded by offering to have it towed at the city's expense; however, appellant declined Mr. Corwin's offer, stating it was a matter of "principle." On November 29, 1993, Mr. Corwin returned to observe the same conditions, at which time Mr. Corwin signed the instant complaint. Further, Mr. Corwin went back to the property on the morning of trial and observed the van at appellant's property in the same condition. - 5 - Finally, Mr. Corwin testified that the van is listed to the People's Hope United Methodist Church. Mr. Corwin concluded by noting that appellant admitted to replacing the engine and doing brake work. Christy Sanicky, Thomas Sanicky's wife, was the first witness called by appellant. Mrs. Sanicky testified that she has seen appellant do repair services on the white van but could not remember a date. Mrs. Sanicky also observed appellant work on another brown car and on a grey Caravan. Jimmy Frye, an assistant scout master for the Boy Scouts, testified next. Mr. Frye stated that appellant is a member of the Troop Committee and Chairman of the Troop Vehicle. Mr. Frye also testified that the entries in the "Boy Scout Truck Log" were accurate and complete. The "Boy Scout Truck Log" was admitted into evidence as part of appellant's case to show that various work performed on the truck was "temporary" in nature. Galen Younkin, a friend of appellant's through boy scouts and church, testified that the truck is "temporarily" out for repair. Mr. Younkin stated that the reason the repair work has taken so long is due to the difficulty in finding volunteers to perform the work and the lack of funds to finance the repairs. Mr. Younkin added that, in the meantime, the truck sits in appellant's back yard and repairs are made "from day to day." Appellant gave narrative testimony on his own behalf. Appellant stated that the repair services have been rendered on a - 6 - temporary basis. Further, the repairs conducted on the truck are reflected in the "Boy Scout Truck Log." Lastly, appellant offered various papers pertaining to the truck which, he claimed, are signed in his name. However, the trial court noted his signature appears on the Ohio consumer sales or use tax return and on the temporary title transfer form as power of attorney. Moreover, the certificate of title lists the above named church as owner while the vehicle registration expiration notice is signed by apellant as vehicle manager for the church and the boy scouts. On cross-examination, appellant admitted to changing the engine, doing a brake job (appellant stated he replaced one brake line), painting the interior of the vehicle and doing minor body work. Based on the foregoing, the trial court found appellant guilty as charged in the complaint and fined him $100. The trial court subsequently stayed execution of the sentence. This appeal follows, wherein appellant raises the following assignments of error: I. THE TRIAL COURT ABUSED ITS DISCRETION AND ENORMOUSLY BROADENED THE TIME FRAME OF RELEVENT (sic.) EVENTS FROM THE TIME FRAME OF THE INDICTMENT FOR THE PURPOSES OF THE PROSECUTION AND OF THE COURT. BUT THE TRIAL COURT'S OWN AMMENDMENT (sic.) TO THE MOTION TO AMEND THE COMPLAINT IMPOSED A VERY NARROW TIME FRAME ON THE DEFENSE SO THAT I WAS PREVENTED FROM REBUTTING TESTIMONY BY SHOWING THAT THE EVENTS TESTIFIED TO BY THE PROSECUTION ACTUALLY OCCURRED ON DAYS ISOLATED BY MONTHS OVER A PERIOD OF YEARS, OUTSIDE THE NARROW TIME PERIOD I WAS ALLOWED. THIS ALLOWED THE - 7 - PROSECUTOR'S FICTION TO PERSIST, CONTRARY TO THE OVERWHELMING WEIGHT OF EVIDENCE, THAT THE WORK WAS "MAJOR" AND "CONTINUOUS" AND THUS NOT "TEMPORARY" AS REQUIRED BY PARMA ORD. 660.31. II. THE TRIAL COURT IN RENDERING JUDGEMENT (sic.) ERRONEOUSLY CONFUSED THE PROPER READING OF "SERVICES TEMPORARY IN NATURE" AS STATED IN THE ORDINANCE WITH "REPAIRS TEMPORARY IN NATURE", SOMETHING QUITE DIFFERENT, AND THEN USED THE ERRONEOUS INTERPRETATION AS BASIS FOR JUDGEMENT. (sic.) III. THE TRIAL COURT ERRED IN CONSTRUING SECTION 660.31 OF THE PARMA ZONING CODE AS NOT ALLOWING THE VEHICLE REPAIRS AS A PERMITTED USE, BY NOT CONSTRUING TWO KEY UNDEFINED WORDS IN THE MOST LIBERAL CONSTRUCTION OF THE COMMON AND ORDINARY MEANINGS OF THE WORDS A. "TEMPORARY" AND B. "OWNED." IV. THE TRIAL COURT ABUSED ITS DISCRETION AND PROHIBITED ALL TESTIMONY TO DEFEND MY CHARACTER, IN DIRECT VIOLATION OF EVID. R. 404(A)(1). THIS DENIED MY RIGHT AS THE ACCUSED TO THE DEFENSE ALLOWED BY THE RULE. V. PROSECUTORIAL MISCONDUCT DENIED ME THE RIGHT TO A FAIR TRIAL (EXTENSIVELY, THROUGHOUT). I. Appellant, through his first assignment of error, argues the trial court committed prejudicial error in amending the complaint to reflect that the complained-of events took place from April to November of 1993, as opposed to 1992, as originally charged. Crim.R. 7(D) provides: - 8 - (D) Amendment of indictment, information or complaint. 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 of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment, information or complaint, or to cure a variance between the indictment, information or complaint and the proof, the accused is entitled to a discharge of the jury on his motion, if a jury has been impanelled, and to a reasonable continuance, unless it clearly appears from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. Where a jury is discharged under this division, jeopardy shall not attach to the offense changed in the amended indictment, information, or complaint. No action of the court in refusing a continuance or of postponement under this division is reviewable except after motion to grant a new trial therefor is refused by the trial court, and no appeal based upon such action of the court shall be sustained nor reversal had unless, from consideration of the whole proceedings, the reviewing court finds that a failure of justice resulted. An amendment to the date of the alleged offense does not affect an essential element of the crime charged nor does it involve the name or identity of the crime charged. State v. Ahedo (1984), 14 Ohio App.3d 254; State v. Stapples (1993), 88 Ohio App.3d 359; State v. Price (1992), 80 Ohio App.3d 35. In the present case, the trial court's action in amending the complaint did not affect an essential element of unlawful repair or servicing - 9 - of a vehicle in a residential neighborhood nor did it change the name or identity of the charge. Further, appellant did not request a continuance to prepare his defense nor does it appear that appellant has been misled or prejudiced by the defect in the original complaint. The record reflects that appellant had been to the prosecutor's office on two occasions to discuss the matters set forth in the complaint and that the building inspector had also contacted appellant regarding the charge set forth in the complaint. Thus, we conclude, from consideration of the whole proceedings, that a failure of justice has not resulted. Appellant's first assignment of error is overruled. II. In appellant's second and third assignments of error, appellant argues the trial court erroneously interpreted Parma Codified Ordinance 660.31, which provides: 660.31 VEHICLE REPAIR AND SERVICING. (a) No person shall repair, repaint or perform any other services on a vehicle in a residential neighborhood except as follows: (1) Such services are temporary in nature; (2) The services are performed on a vehicle owned, leased or rented by a resident of the premises where the work is done. - 10 - (b) Whoever violates this section is guilty of a minor misdemeanor. Punishment shall be as provided in Section 698.02. (Ord. 127-86. Passed 6-2-86.) Appellant argues that the weight of evidence at trial demonstrates that the services performed on the truck were merely temporary in nature. Apparently, appellant contends that because he did not continuously and without break work on the truck, such services were temporary in nature. Appellant's arguments strain common sense and logic. It is undisputed that words, not otherwise defined in a zoning ordinance, are to be given their common and ordinary meanings. Sammons v. Batavia (1988), 53 Ohio App.3d 87, paragraph one of the syllabus. Further, since zoning regulations deprive the owners of real property of certain uses thereof, and are in derogation of the common law, they must be strictly construed and not extended by implication. Id., paragraph two of the syllabus. Appellant requests this court to consider the meaning of "services temporary in nature," which provides an exception to the ordinance, in contrast with "repairs temporary in nature." We must, therefore, consider the common and ordinary meaning of the words "services" and "repairs." Taken in context, "service" is defined as "*** the performance of work commanded or paid for by another *** an act done for the benefit or at the command of another ***." Webster's Third New International Dictionary (1986), - 11 - 1 2705. In contrast, "repair" is defined as "*** the act or process of repairing: restoration to a state of soundness, efficiency, or 2 health ***." Id. at 1923. In light of the foregoing definitions, it is apparent that "repair" work is included within the term "service" as that term fits within the exception to the ordinance. Specifically, one can perform work or repairs for the benefit of or at the command of another. Thus, appellant's attempt to distinguish services and repairs is of no avail. To fall within the ordinance's exception, then, the service, which may include repairs, must be "temporary in nature." "Temporary" is defined in pertinent part as "*** lasting 3 for a time only: existing or continuing for a limited time ***." Id. at 2325. Accordingly, as the trial court pointed out, a mechanically talented individual can "repair" a muffler or change a spark plug in one's own driveway in under an hour and fall within the ordinance's exception. However, in the present case, the work or repairs performed by appellant for the benefit of the Boy Scouts cannot reasonably be 1 Webster's New Collegiate Dictionary (1981), 1051, defines "services," in pertinent part, as "*** a facility providing maintenance and repair." 2 Webster's New Collegiate Dictionary (1981), 972, defines "repair," in pertinent part, as "*** to restore by replacing a part or putting together what is torn or broken: *** to restore to a sound or healthy state *** to make good ***." 3 Webster's New Collegiate Dictionary (1981), 1191, defines "temporary," in pertinent part, as "*** lasting for a limited time." - 12 - considered as "existing or continuing for a limited time." The undisputed evidence shows that appellant has been conducting services or repair work on the truck for the Boy Scouts' benefit since April of 1993 up to the date of trial (January 26, 1994). It is undisputed that as of trial, the truck remained unrepaired. It was further undisputed that the act or process of repairing the truck was still continuing. Appellant, himself, acknowledged that the truck was inoperable and in continuing need of servicing or repairing in order to make it operable. Thus, the continuing services provided by appellant could not possibly be considered temporary. Appellant also argues that the record, including various documents petaining to the van, demonstrates that he is the owner of the van in question. However, the record shows that the People's Hope United Methodist Church is listed as the owner of the van on the certificate of title while appellant's signature appears on various other documents as power of attorney. Contrary to appellant's assertions, the fact that appellant may have rightful possession of the van is not conclusive of ownership nor is it synonymous with leasing or renting the van. The record is, therefore, indisputably that appellant does not own, lease or rent the vehicle in question. Appellant's second and third assignments of error are, accordingly, overruled. - 13 - III. In appellant's fourth assignment of error, appellant complains that the trial court prejudicially prohibited appellant from producing character evidence in his defense. Evid.R. 404(A)(1) allows an accused to present "[e]vidence of a pertinent trait of his character ***." Evid.R. 405(A) provides that reputation or opinion testimony may be offered to prove a character trait. The admission of evidence rests within the sound discretion of the trial court and will not be the basis for a reversal absent an abuse of discretion. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus; State v. Tomlin (1992), 63 Ohio St.3d 724, 728. In the present case, appellant was permitted to produce evidence of his character. Appellant's involvement in his church and in the Boy Scouts was well documented at trial, as was his general propensity to obey the law. The trial court, however, did not abuse its discretion in limiting appellant from producing evidence of specific instances of conduct as appellant's character traits were not an essential element of the crime charged. Evid.R. 405(B). Appellant's fourth assignment of error is, therefore, overruled. IV. - 14 - In appellant's final assignment of error, appellant complains of "numerous" instances of alleged prosecutorial misconduct. "The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips (1982), 455 U.S. 209, 219; accord State v. DePew (1988), 38 Ohio St.3d 275, 288. Moreover, in a bench trial, the trial court is presumed to rely only upon relevant, material and competent evidence in arriving at its judgment. State v. Richey (1992), 64 Ohio St.3d 353, 362; State v. Post (1987), 32 Ohio St.3d 380, 384. In the present case, we conclude appellant was not deprived of a fair trial. A review of the trial court's announcement of its decision, and the evidence recited in reliance thereon, leads us to conclude that the trial court relied only upon relevant, material and competent evidence in reaching its decision. Appellant's final assignment of error is overruled. Judgment affirmed. - 15 - 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 Parma Municipal Court 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. LEO M. SPELLACY, P.J. TERRENCE O'DONNELL, J. CONCUR JUDGE DONALD C. NUGENT 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .