COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68243 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MOHAMAD ALNAJADA, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 10, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CRB-14584 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: THOMAS HAMILTON, ESQ. THOMAS M. MORONEY, ESQ. ASSISTANT LAW DIRECTOR 1230 Standard Building City Hall - Room 106 Cleveland, Ohio 44113 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - DYKE, J.: Defendant-Appellant, Mohamad Alnajada, appeals his conviction for three counts of failing to remove molded food from grocery store shelves and one count of failing to provide smooth, cleanable floors and to clean floors on a daily basis in violation of Chapter sections 241.23 and 241.11 of the Codified Ordinances of the City of Cleveland ("the City"), Plaintiff-Appellee herein. Appellant claims his convictions should be reversed because the court permitted testimony regarding an unauthenticated laboratory report and because the City's complaint erroneously indicated that he was the owner of Johnny's Shoprite. Appellant's assignments of error are meritless. The judgment of the trial court is affirmed. I ALLOWING THE LABORATORY REPORT INTO EVIDENCE WAS A VIOLATION OF RULE 803(6) AND/OR (8) OF THE OHIO RULES OF EVIDENCE AND O.R.C. SECTION 2317.40 AND CONSTITUTED PREJUDICIAL ERROR. R.C. 2317.40 provides in relevant part that: A record of an act, condition, or event, insofar as relevant, is competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission. Appellant claims he was prejudiced when the court permitted a microbiologist other than the microbiologist who signed the report to testify at trial. Appellant's assignment of error is devoid of - 3 - merit. The City's microbiologist testified that he was qualified to read and interpret the report; that testing at "Accura- Laboratory" was conducted on a team basis and that he worked closely with the microbiologist who signed the report. Hence, the information, method and time of preparation of the report were such as to justify the testimony. In addition, Cleveland Codified Ordinance, Section 241.23, does not require the introduction of scientific evidence to prove a violation as it provides in relevant part that: No person, firm or corporation shall sell, keep for sale, store or serve any food or drink that is unclean, unwholesome, spoiled, unfit for human consumption, adulterated, misbranded, not labeled if required to be labeled or which does not conform to a standard... . Accordingly, all that is required is evidence of the observation of the above-described conditions. Inspector Hodge's testimony that she saw mold growing on the pork jowls, bacon ends and grapes which she embargoed for testing and her report which ordered that the remaining molded items be removed from the shelves, were sufficient to prove a violation of the ordinance. See, Rucker v. Ross Corr. Inst. (1992), 62 Ohio Misc.2d 372, 374. Assuming arguendo that the court erred in permitting the testimony, such error is harmless as the microbiologist's testimony represented merely cumulative evidence. Appellant's first assignment of error is overruled. II - 4 - THE DECISION OF THE TRIAL COURT SHOULD BE REVERSED BECAUSE THERE IS NO EVIDENCE THAT MOHAMED ALNAJADA IS THE OWNER OF JIMMY'S SHOPRITE. Appellant's second assignment of error is also meritless as Section 241.23, supra, is silent with respect to ownership. The ordinance merely states that "[n]o person ... shall sell, keep for sale, store or serve any food that is unclean, unwholesome, ... ." Hence, appellant's status as an owner or non-owner is irrelevant to his conviction. The plain language of the ordinance permits the indictment, prosecution and conviction of operators as well as owners. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. Also, it is well settled that the credibility of the witnesses is a matter for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 231. Inspector Hodge, who drafted the complaint, testified that on May 16, 1994 when she inspected the store, she believed that the appellant was the person who was selling or offering to sell food that was unfit for human consumption. She also testified that the appellant was in actual control of the store and that when she asked who was responsible for the compliance information noted in her report, the appellant stepped forward to sign the report. (Tr. 5, 10, 11) Inspector Hodge's testimony that the appellant was in actual control of the store is not inconsistent with the defense - 5 - testimony of a stockboy who stated that the appellant was the nephew of the store owner and that the appellant was "helping his uncle out." (Tr. 20) Such testimony is sufficient to support an inference that the appellant was present in the store to sell grocery items, several of which were determined to be unfit for human consumption and therefore, violative of the City's sanitation code. See, also State v. Fischer (January 18, 1990) Cuyahoga App. No. 56372, unreported, where we affirmed the conviction of a bookstore clerk charged with pandering obscenity. Additionally, Crim.R. 12(B) and (G) require that any defense or objection to an indictment be raised in a pretrial motion to dismiss the indictment and that a defendant waives his right to assert such defense or objection if he fails to do so. See, State ex rel. Johnson v. Talikka (1994), 71 Ohio St.3d 109, 110. The record fails to demonstrate that the appellant filed a pretrial motion to dismiss in this case. His second assignment of error is overruled. The judgment of the trial court is affirmed. - 6 - 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 Common Pleas 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. PATTON, C.J., AND NAHRA, J., CONCUR. ANN DYKE JUDGE 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, .