COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67947 : CITY OF CLEVELAND : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JAMES MUNTASER : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 31, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 94-CRB-11090 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SHARON SOBOL JORDAN, ESQ. THOMAS PARIS, ESQ. Director of Law PARIS & PARIS THOMAS HAMILTON, ESQ. 55 Public Square Assistant Law Director Suite 1575 Room 106 - City Hall Cleveland, Ohio 44113 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: Defendant-appellant James Muntaser appeals from his Cleveland Municipal Court bench trial conviction for three separate misdemeanor violations of City of Cleveland Food Shop and Food Handler Ordinances. Defendant was charged in the municipal court on May 13, 1994, with nine violations of Cleveland Codified Ordinances Chapter 241 governing Food Shops and Food Handlers. The charges arose out of a Cleveland Health Department inspection of the Lakeview Superette located at 970 Lakeview on April 8, 1994. The complaint alleged defendant committed the following offenses, viz.: (1) offered for sale food products that were unfit for human consumption; (2) failed to provide a professional exterminator to abate the nuisance of rodents; (3) failed to maintain all equipment in a clean and sanitary manner at all times and failed to provide proper repairs to meat and dairy display case; (4) failed to maintain interior of shop free from accumulation of filth and waste material; (5) failed to keep all rubbish and debris confined in proper waste containers and covered; (6) failed to discontinue smoking during operation; (7) failed to maintain restroom in a clean and sanitary manner at all times; (8) failed to maintain floors in a clean and sanitary manner at all times; and (9) failed to provide and post current food handlers class A retail license. - 3 - Defendant pleaded not guilty to the charges and the case proceeded to a bench trial in the municipal court on September 14, 1994. Health Department Inspector Ricardo Phillips and microbiologist Fred Jackson testified at trial for the prosecution. Phillips testified that he conducted several health inspections of the Lakeview Superette. Defendant was present at the store during all of Phillips' inspections, including the inspection on April 8, 1994, which resulted in the charges in this case. Phillips testified that defendant always stated the owner of the store was unavailable, but that defendant indicated he was in charge of the store and its employees and that he would correct the violations. Phillips described in detail the violations he observed at the store on April 8, 1994. Photographs introduced into evidence corroborated the testimony of Phillips concerning the deplorable condition of the premises and food items. Phillips stated that he found some of the same violations when he subsequently reinspected the store on June 21, 1994. Microbiologist Fred Jackson testified that he found contaminants in seven food samples given to him by Inspector Phillips and that the items were unfit for human consumption. Defendant did not make a motion for judgment of acquittal when the prosecution rested its case. Defendant testified as follows. Several Cleveland Police officers, executing a search warrant at the store on April 8, 1994, did not find the food stamps they were looking for, made a mess in the store, drank beer, and smoked cigarettes, before - 4 - Inspector Phillips arrived. The police removed the spoiled food items from a box to be returned to the distributor and placed them in the display case where Phillips discovered them. The store was in good condition before the police arrived on April 8, 1994, and resembled photographs of the premises taken after the premises were cleaned following the inspection. Further, defendant stated, he was merely a part-time employee who worked at the store five hours a day, seven days a week. Defendant thereafter rested his case and made no motion for judgment of acquittal. The municipal court subsequently found defendant guilty of the following three charges, viz.: (1) offering for sale food products unfit for human consumption, (2) failure to maintain all equipment in a clean and sanitary manner at all times and failure to provide proper repairs to the meat and dairy display case, and (3) failure to maintain restroom in a clean and sanitary manner at all times. The municipal court nolled count nine concerning display of food retail license in the store and found defendant not guilty of the remaining five charges. The municipal court fined defendant a total of $2,000 for his three convictions in an order journalized October 14, 1994. The municipal court stayed execution of defendant's sentence pending appeal. Defendant's sole assignment of error follows: THE TRIAL COURT OF THE MUNICIPAL COURT OF CLEVELAND IMPROPERLY RETURNED A GUILTY VERDICT AGAINST THIS DEFENDANT WITHOUT REQUIRING THE STATE TO PROVE ALL ELEMENTS OF THE CRIME CHARGED WITH PROOF BEYOND A REASONABLE DOUBT. - 5 - Defendant's sole assignment of error lacks merit. Defendant contends the municipal court improperly convicted him of the three offenses because there was insufficient evidence to find that he was directly in charge and/or control of the premises. Defendant concedes there was sufficient evidence to support every other element of the three offenses, but argues that non-managerial employees cannot be held responsible for the offenses. Based on our review of the record, defendant has failed to show any error. The record demonstrates defendant did not move for judgment of acquittal based on the alleged insufficiency of the evidence pursuant to Crim. R. 29 at any time in the municipal court. As a result, defendant has waived any claim of error concerning the sufficiency of the evidence to support his convictions. State v. Roe (1989), 41 Ohio St.3d 18, 25. We note that even if defendant had properly preserved this claim of error concerning the sufficiency of the evidence, defendant's argument lacks merit. The record contains the following testimony by Inspector Phillips during direct examination in the prosecution's case in chief: Q: *** Inspector, how do you determine that defendant, James Muntaser was the responsible party for the violations on April 8, 1994? A: All previous inspections, I made of the operation, Mr. Muntaser was always there. I always talked to him about the violations that I found. When I wrote out papers, he signed it, and told me personally that he would see to it that the violations were corrected. He assumed responsibility. - 6 - Q: Inspector, on the license, the person listed is Ayoub Shanininc. Why did you not cite Mr. Shanininc, as the owner of the premises. Why did you choose to cite James Muntaser? A: Well, Mr. Shanininc was always unavailable. Q: And, who told you Mr. Shanininc was unavailable? A: Either he was out of the country or out of the state. Q: Mr. Muntaser, at that time, represented to you that he was the person with authority over the store-- DEFENSE COUNSEL: Objection. THE COURT: Overruled. --He was the person in control of the operations, and you believed to be the one to correct the violations? A: That is correct. Q: Furthermore, how many employees would there be at any given time? A: At any given time, there would be between 1 and 3 or 4 employees in the store, at any given time. Q: Mr. Muntaser appeared to be the person in control of managing the store and the duties of the employees? A: That's correct. (Tr. 14-15.) The record demonstrates that defendant also made several statements during direct examination by defense counsel which indicated that defendant was in charge of or had control over the operation of the store. Defendant admitted he worked at the store seven days a week. Defendant also described in detail how - 7 - he maintained the premises and operated the store both before and after the inspection on April 8, 1994. The ordinances, moreover, do not provide that only the owner of the store may be charged with violations which occur at the store. The record contains evidence that the absentee owner listed on the license of the Lakeview Superette entrusted the operation of the store to the care, management or direction of defendant. Under the circumstances, when viewed in the light most favorable to the prosecution, this testimony is sufficient to support the municipal court's finding that defendant was directly in charge and/or control of the store when the violations occurred in this case. There is no excuse for such an egregious disregard of the public health, safety and welfare by offering to sell the public dangerously contaminated food from filthy premises in violation of law. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 8 - 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. 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. JAMES D. SWEENEY, P.J., and HARPER, J., CONCUR. DIANE KARPINSKI 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 .