COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67309 : CITY OF CLEVELAND : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ELMER J. HALBERG : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 25, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court Case No. CRB-25879 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: DAVID D. ROBERTS, ESQ. MICHAEL K. ASHAR, ESQ. Assistant Director of Law 198 East Aurora Road Room 106 - City Hall Northfield, Ohio 44067 601 Lakeside Avenue Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J.: Elmer Halberg, defendant-appellant appeals the trial court's convicting him of several violations of the Cleveland Building Code. Halberg assigns the following six errors for our review: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO ADVISE DEFENDANT OF HIS RIGHT TO COUNSEL WHEN A CONVICTION COULD RESULT IN IMPRISONMENT. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO ADVISE DEFENDANT OF HIS RIGHT TO A TRIAL BY JURY. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO AFFORD DEFENDANT A REASONABLE TIME TO PREPARE A DEFENSE. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN CONDUCTING A VIEWING OF DEFENDANT'S PRIVATE PROPERTY WITHOUT DEFENDANT'S KNOWLEDGE OR PERMISSION AND WITHOUT AFFORDING DEFENDANT AN OPPORTUNITY TO ATTEND. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING UNSWORN TESTIMONY FROM UNIDENTIFIED WITNESSES IN THE TRIAL AND SUBSEQUENT PROCEEDINGS. VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN THAT THE FINDING OF GUILTY ON THE CHARGE OF C.O. 3103.09 IS AGAINST THE WEIGHT OF THE EVIDENCE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Elmer Halberg, defendant-appellant, and his wife, Carole, owned property located at 6403-6407 Detroit Avenue in Cleveland. On August 2, 1993, City Building Inspector, Dushan Kaluznik, issued -3- 1 a Notice of Violation of Building Ordinances. The notice listed four violations of C.O. 3101.10 involving general maintenance of the property, and one violation of C.O. 3103.09(C) involving the failure to effectively board up the building. The notice required all repairs to be made by September 2, 1993. Kaluznik returned to inspect the property on October 12, 1993. On October 13, 1993, Kaluznik issued a summons and complaint against Halberg for failing to correct the violations listed in the previous notice. He was ordered to appear in court on December 7, 1993. Halberg failed to appear at the December 7 hearing and it was rescheduled for January 4, 1994. Halberg appeared at the January 4, 1994 hearing before Judge William H. Corrigan and pleaded not guilty. The trial court proceeded to hear evidence on the matter. According to Kaluznik, Halberg had not corrected the violations. The building was "extremely in disrepair." People trespassed into the building through a rear entrance, which was not secured. Martha Perrine of the Detroit Shoreway Community Group also testified about the poor condition of the building and Halberg's refusal to participate in a community fix-up program. Halberg denied receiving the August 2, 1993 notice of violations. He stated he did not see the notice until October, when it was attached to the complaint. He said he was unaware of the trespassing problem and that most of the necessary repairs to 1 Although Carole Halberg was originally cited in the notice of violations, the charges against her were nolled by the city. -4- the building had been made. The trial court found Halberg guilty on all counts and continued the case for three weeks for execution of the sentence. Another hearing was held on February 1, 1994. Halberg was fined $20,000 plus costs. $250 was paid, and execution of the remainder of the fine was continued until February 8, 1994. At the February 8, 1994 hearing, the City presented evidence that the building's rear entrance had been secured but the building's side door was inadequately secured. Although about half of the debris inside the building had been removed, combustible materials were being stored in the building. Aside from the removal of some mattresses and carpet, the general maintenance work had not been done. Also, a hole in the roof was allowing snow into the building. The court added 30 days confinement to Halberg's sentence and continued the case for two weeks for execution of sentence. After several continuances, the next hearing was held on March 17, 1994. Halberg was represented by attorney Michael Ashar. Ashar stated the property had been sold and the new owner had agreed to make the necessary repairs within 180 working days. Judge Corrigan continued the case until April 21, 1994 and stated he had visited the building. At the April 21, 1994 hearing, the court suspended $15,000 of the fine and ordered Halberg to perform 300 hours of community service instead of the 30 days jail time. This appeal followed. -5- In his first assignment of error, Halberg argues the trial court failed to advise him of his right to counsel. He also claims the trial court failed to ask him whether he wanted trial counsel and that no evidence exists in the record that he waived his right to counsel. Crim.R. 10 imposes upon a trial court the duty to inform a defendant and determine if he understands his right to retain counsel or to have counsel appointed for him if he is unable to retain counsel. Our review of the record indicates that the trial court complied with Crim.R. 10 in this case. On the first day of Halberg's hearing, the trial court instructed all the defendants about their rights. His instruction included all of Crim.R. 10(C) and a significant portion of Crim.R. 11(A) and (B) which refer to pleas. Such a group instruction is permitted by Crim.R. 10(D) which provides that where multiple defendants are to be arraigned, the judge may advise them of their rights by general announcement. Additionally, the different pleas were specifically explained to Halberg before he entered his not guilty plea. Under the circumstances, we find that Halberg's rights were sufficiently explained to him. Halberg's first assignment of error is overruled. Halberg next argues the trial court erroneously failed to advise him of his right to be tried by a jury. Halberg argues, under R.C. 2945.17, he was entitled to a jury trial. R.C. 2945.17 provides a defendant has the right to be tried by a jury in all cases except those where the potential penalty does not exceed a fine of $100 dollars. The City argues, under Crim.R. 23(a), -6- defendants in petty offense cases where there is a right to a jury trial will be tried by the court unless he demands a jury in writing at least ten days before the trial date. A petty offense is a misdemeanor for which the penalty includes confinement for six months or less. Crim.R. 2(C) and (D). In State v. Tate (1979), 59 Ohio St.2d 50, the Ohio Supreme Court held a defendant in a petty offense case does not have an absolute, unrestricted right to a jury trial. The court held the Crim.R. 23 requirement of a written demand was valid. "Such a rule is "not in any wise violative of the constitutional right to trial by jury." Id. at 52. (citation omitted). In this case, Halberg did not file a written jury trial demand. Consequently, he waived his right to a jury trial. Halberg argues Crim.R. 23 should not apply to his case because, due to the provisions of 3103.99, he was facing fines well in excess of $1000 and confinement well in excess of six months. We rejected this argument in Cleveland v. Oppman (September 8, 1994), Cuyahoga App. Nos. 66282, 66283, 66284, 66285, 66286, 66287, 66288, 66289, unreported. We find, as we did in Oppman, the possibility that Halberg's offenses could lead to an aggregate sentence of more than six months does not alter their definition as petty offenses. Halberg's failure to make a timely written demand for a jury trial as required by Crim.R. 23 constituted a waiver of his jury trial right. Halberg's second assignment of error is without merit. -7- Halberg next argues the trial court erred in failing to give him a reasonable time to prepare a defense to the charges against him. The complaint was served in October, 1993. Halberg acknowledges receiving the complaint but he failed to attend his originally scheduled court appearance on December 7, 1993. He finally appeared in court on January 4, 1994, over two months after receiving the complaint. We find Halberg had ample time to prepare a defense. Even if Halberg had been unable to fully prepare his defense before the scheduled trial date, we find no error in the trial court's decision to proceed with the trial of the case. On the day of his trial, Halberg was fully advised of his right to seek a reasonable continuance in order to obtain counsel. Halberg opted not to seek a continuance and the case proceeded to trial. Under the circumstances, we find no error by the trial court. Halberg's third assignment of error is without merit. In his fourth assignment of error, Halberg argues the trial court erred in conducting a viewing of his property without his knowledge or permission and without giving him a chance to attend. Citing R.C. 2945.16, Halberg argues that a criminal defendant has the right to attend a jury view. Crim.R. 43 provides that a defendant shall be present at every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence. However, when the trial judge conducted his view of the premisses, Halberg's trial had already been concluded. He had already been sentenced and the execution of -8- sentence was pending. The trial court has broad discretion with respect to views and we find no abuse of that discretion in this case. See State v. Richey (1992), 64 Ohio St.3d 353,367. Halberg's fourth assignment of error is without merit. In his fifth assignment of error, Halberg argues the court erred in admitting unsworn testimony from unidentified witnesses. Before a witness may testify, Evid.R. 603 requires him to declare by oath or affirmation that he will testify truthfully. At the January 4, 1994 hearing, the witnesses were sworn in as follows: BAILIFF: All of those who are going to testify you swear or affirm to tell the truth and nothing but the truth? ALL PARTIES: I do. (1/4/94 Tr. 3). Halberg argues the trial court had an obligation to swear in each witness individually. However, he provides us with no authority to support his argument. On the day of Halberg's trial, the trial court swore in all the potential witnesses. We find the court's administration of the oath was sufficient. We also reject Halberg's argument that the trial court improperly allowed unsworn testimony in the February 8, 1994 hearing. Halberg's trial concluded on January 4, 1994, when he was found guilty. The February 8, 1994 hearing was conducted for execution of sentencing. It is unclear from the record whether the witnesses who provided testimony in the February 8 hearing were sworn in. However, at the February 8 hearing, the trial court had already determined that -9- Halberg was guilty of the code violations. While Evid.R. 603 requires witnesses to be sworn in at trial, the Ohio Rules of Evidence do not apply to criminal sentencing proceedings. Evid.R. 101(C)(3). We overrule Halberg's fifth assignment of error. Finally, Halberg argues his conviction was against the manifest weight of the evidence. A conviction will not be reversed as against the manifest weight of the evidence unless a review of the entire record, a consideration of the credibility of the witnesses and a weighing of all the evidence and its reasonable inferences reveals the factfinder clearly lost its way in resolving the conflicts in the evidence and created a manifest miscarriage of justice necessitating a new trial. State v. Martin (1983), 20 Ohio App.3d 172,175. A new trial should only be granted where the evidence weighs heavily against the conviction. Id. In this case, the City presented testimony from Building Inspector Kaluznik and from Martha Perrine of the Detroit Shoreway Community Group. Kaluznik testified that Halberg had not corrected any of the violations listed in the August 2, 1993 notice. Although Halberg claimed that he did not receive the notice, the record reveals that it was mailed to his last known address in compliance with the provisions of Section 3103.09 of the Building Code. Kaluznik testified that Halberg had not corrected the violations and described the building as being "extremely in disrepair." He stated that people trespassed into the building through a rear entrance which was not secured. Perrine also testified about the poor condition of the building. In light of -10- the overwhelming evidence against Halberg, we find that his conviction was not against the manifest weight of the evidence. Our conclusion is not altered by the trial court's failure to state on the record how many days Halberg had been in noncompliance. Under Section 3103.99, the trial court was authorized to fine Halberg up to $1000 per day for each day of noncompliance. According to the evidence presented at trial, Halberg's property had been out of compliance since August 1993. The $20,000 fine imposed against Halberg was well within the trial court's statutory authority. Halberg's sixth assignment of error is overruled. Judgment affirmed. -11- 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 Cleveland 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. DAVID T. MATIA, J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .