COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68827 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIAM J. NOVAK : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 23, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 95-CRB-3500 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee : SHARON SOBOL JORDAN Director of Law RAMONA L. GERBER, Assistant 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114 For defendant-appellant: WILLIAM J. NOVAK, pro se 2299 West 11th Street Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: Defendant-appellant William Novak appeals from his convic- tions for housing and building code violations. For the reasons set forth below, we affirm. On February 22, 1995, Novak was cited for sixteen violations of the City of Cleveland's Housing and Building Code at his two- family dwelling located at 2299 West 11th Street. The violations included fifteen charges that Novak breached Section 369.13 of the Building and Housing Code by allowing various defects to go unre- paired and also included an additional charge that Novak violated Section 371.01 by renting a portion of the structure. Novak pleaded not guilty, and the matter proceeded to a bench trial on April 4, 1995. Inspector Anthony Iwenofu of the City of Cleveland's Division of Building and Housing testified that he inspected the property on October 31, 1994. At this time, he observed that the service walk was cracked, the driveway was not paved, the porch was weak and the porch railing deteriorated, the windows were broken and window seals and sashes were missing, window screens were torn, the front storm door had broken and missing glass, and gutters and downspouts were missing. Iwenofu further testified that he conducted a title search of the property, which revealed that defendant-appellant was - 3 - the owner of the property. Finally, he testified that he left notice which ordered that these violations were to be corrected by January 3, 1995. He then returned to the property after this date and noted that no corrections had been made. The city subsequently nolled the charge that Novak violated Section 371.01. Novak then questioned Iwenofu regarding whether windows at the apartment were boarded, whether there was a fence blocking any view of the property and what the condition of the driveway was. Thereafter, Novak affirmatively stated that the porch was solid and well maintained, that the windows were boarded, thereby precluding any violation regarding their condition, and that there was no broken glass or missing screens. The court then found Novak guilty of the remaining fifteen counts and sentenced him to one year of inactive probation and thirty hours of community service. He now appeals and assigns six errors for our review. I. Novak's first assignment of error states: THE TRIAL COURT ERRED IN RULING IN THIS CASE INASMUCH AS THE TRIAL COURT IS WITHOUT PROPER SUBJECT MATTER OR PERSONAL JURISDICTION TO HEAR THE DEFENDANT'S CASE. In support of this assignment of error, Novak complains that the court lacked jurisdiction and that he should have been served with an indictment prior to his court appearance. - 4 - With regard to the issue of subject matter jurisdiction, we note that R.C. 1901.01, 1901.181, 1901.20 and 1901.19 establish subject matter jurisdiction in this instance. R.C. 1901.01 provides as follows: There is hereby created a housing division in the Cleveland Municipal court, and an envi- ronmental division in the Franklin county municipal court. R.C 1901.181(A), in turn, provides in relevant part: *** [I]f a municipal court has a housing or environmental division, the division has ex- clusive jurisdiction within the territory of the court in any criminal action for a viola- tion of any local building, housing, air pol- lution, sanitation, health, fire, zoning, or safety code, ordinance, or regulation appli- cable to premises used or intended for use as a place of human habitation, buildings, structures, or any other real property subject to any such code, ordinance, or regulation. *** Similarly, R.C. 1901.20 provides in relevant part: *** The municipal court, if it has a housing or environmental division, has jurisdiction of any criminal action over which the housing or environmental division is given jurisdiction by section 1901.181 of the Revised Code, provided that *** no judge of the court other than the judge of the division shall hear or determine any action over which the division has jurisdiction. In all such prosecutions and cases, the court shall proceed to a final determination of the prosecution or case. Finally, R.C. 1901.19(A) provides in relevant part as fol- lows: *** [A] municipal court and a housing or en- vironmental division of a municipal court have jurisdiction within its territory in all of the - 5 - following actions or proceedings and to perform all of the following functions: * * * (4) In any civil action or proceeding at law in which the subject matter of the action or proceeding is located within the territory or where the defendant or any of the defendants resides or is served with summons within the territory ***. These statutes clearly vest the Housing Division of the Cleveland Municipal Court with jurisdiction over this criminal action for violations of Cleveland's Building and Housing Code at a parcel of property located within the City of Cleveland. This portion of the assigned error, therefore, lacks merit. With regard to the issue of personal jurisdiction, it is clear that the court had personal jurisdiction since defendant's subject property was located within the city and there was service of process, as demonstrated by the confirmation of mailing by the United States Postal Service. Cf. General Motors Acceptance Corp. v. Kollert (1986), 33 Ohio App.3d 274, 275. Moreover, even assuming that the court was without personal jurisdiction in this instance, defendant-appellant's appearance and participation in the matter constitutes an implied waiver of any defects. 1 Baldwin's Ohio Civil Practice (1988), 40-41, T 3.03. This claim is, therefore, without merit. As to defendant-appellant's remaining contention that he should have been issued an indictment in connection with this - 6 - matter, we note that Crim.R. 7(A) provides in relevant part as follows: A misdemeanor may be prosecuted by indictment or information in the court of common pleas, or by complaint in courts inferior to the court of common pleas. ***. In this instance, defendant was prosecuted for misdemeanor charges, by complaint filed in the Cleveland Municipal Court. There was, therefore, full compliance with Crim.R. 7(A). More- over, since defendant was not prosecuted for these misdemeanor charges in the court of common pleas, there was no basis for issuing an indictment. The first assignment of error is overruled. II. Novak's second assignment of error states: THE TRIAL COURT ERRED BY EXHIBITING EXTREME BIAS. In support of this assignment of error, Novak complains that the trial court repeatedly interrupted him, did not allow him to complete his cross-examination of the inspector and "favored" the testimony of the inspector. It is the duty of a trial judge to perform the duties of the office impartially and to hear all proceedings fairly. Code of Judicial Conduct, Canon 3. Nonetheless, it is entirely proper for a trial judge to propound proper and pertinent questions to wit- nesses to clarify material facts. Bates v. Bill Swad Leasing Co. - 7 - (1984), 17 Ohio App.3d 153, 154. In addition, the court may prod the parties and their counsel to move the matter along. Guziak v. Guziak (1992), 80 Ohio App.3d 805, 817. In this instance, the court actively led the questioning in an effort to assist defendant-appellant, a pro se litigant. In this connection, the court propounded pertinent questions on the material issues and exercised reasonable control to avoid needless delay with immaterial and irrelevant issues. We, therefore, reject this assignment of error. III. Novak's third and fifth assignments of error are interrelated and state: THE TRIAL COURT ERRED BY ALLOWING TESTIMONY OF THE ONLY WITNESS AGAINST DEFENDANT EVEN THOUGH THAT WITNESS OBVIOUSLY PERJURED HIMSELF. THE TRIAL COURT ERRED BY NOT FINDING THE SOLE WITNESS AGAINST DEFENDANT TO BE INCOMPETENT. Novak next complains that the trial court erred in accepting the testimony of Inspector Iwenofu because Iwenofu testified regarding the condition of "most" of the windows and the porch yet did not personally observe these areas of the dwelling. As an initial matter, Novak conceded at trial that the in- spector testified that "only some" of the windows were broken. (Tr. 15.) Further, the inspector stated that the problems with the porch were evident from "walking on the floor system." (Tr. 4; 11.) Accordingly, this assignment of error lacks support in the record - 8 - and is, therefore, without merit. L. A. & D. Inc. v. Bd. of Commrs. (1981), 67 Ohio St.2d 384, 386. In any event, questions of credibility are to be resolved by the trier of fact. Seasons Coal v. Cleveland (1983), 10 Ohio St.3d 77, 80. The court explained: The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Id. at 80. Finally, competency is governed by Evid.R. 601, which pro- vides as follows: Every person is competent to be a witness except: (A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are exam- ined, or of relating them truly. (B) A spouse testifying against the other spouse charged with a crime except when either of the following applies: (1) A crime against the testifying spouse or a child of either spouse is charged; (2) The testifying spouse elects to testify. (C) An officer, while on duty for the exclu- sive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as defined by - 9 - statute or was not wearing a legally distinc- tive uniform as defined by statute. (D) A person giving expert testimony of the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless the person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school. This division shall not prohibit other medical professionals who otherwise are competent to testify under these rules from giving expert testimony of the appropriate standard of care in their own profession in any claim asserted in any civil action against a physician, podiatrist, medical professional, or hospital arising out of the diagnosis, care, or treatment of any person. (E) As otherwise provided in these rules. A trial judge, being in the best position to view and hear a witness and being in the best position to determine the witness's understanding of the events in question and his or her understand- ing of the nature of an oath, is to be given wide discretion in determining that witness's competence to testify. State v. Bradley (1989), 42 Ohio St.3d 136, 141. In this instance, there is no indication in the record that Iwenofu was incompetent under any of the aforementioned provisions of Evid.R. 601, and there is, therefore, no basis upon which this court may conclude that the trial court abused its discretion in failing to find the witness incompetent. - 10 - For the foregoing reasons, the third and fifth assignments of error are overruled. III. Novak's fourth assignment of error states: THE TRIAL COURT ERRED BY DISALLOWING DEFENDANT TIME TO PREPARE A DEFENSE. Novak next complains that after the city nolled the charge that he had rented the dwelling in violation of Section 371.01 and then proceeded on the remaining charges, he was, in effect, "re- charged under 15 new counts" and was not given "adequate time to prepare a defense on the new charges." Crim.R. 7(D) provides for the amendment of an indictment, information or complaint and allows amendment "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." In Cleveland Heights v. Perryman (1983), 8 Ohio App.3d 443, 445-446, this court stated that amendments of misdemeanor com- plaints are permitted so long as the defendant still has a reason- able opportunity to prepare his defense and the amendment simply clarifies or amplifies in a manner consistent with the original complaint. In this instance, the "amendment" was simply the dismissal of one of the charges. No new charges were presented, and there was no change in the name or identity of the remaining charges. We - 11 - are, therefore, unable to conclude that defendant-appellant was denied the reasonable opportunity to prepare his defense or that the due process requirements of notice were violated. The fourth assignment of error is overruled. IV. Novak's sixth assignment of error states: THE TRIAL COURT ERRED BY ABUSING ITS AUTHORITY AND DISCRETION. Appellant has not presented any argument in support of these assignments of error; accordingly, they are rejected herein. See App.R. 12(A)(2); App.R. 16(A)(7); Park v. Ambrose (1993), 85 Ohio App.3d 179, 186. Judgment affirmed. - 12 - 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. ANN DYKE, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .