COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69395, 69396, 69397, 69398 CITY OF CLEVELAND : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION SAMUEL MOFFIE : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 12, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case Nos. 95-CRB-4547, 95-CRB-4548, 95-CRB- 3481, 94-CRB-26538 JUDGMENT: AFFIRMED IN PART AND REVERSED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: SHARON SOBOL JORDAN Director of Law BARBARA A. LANGHENRY Chief Assistant Director of Law 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114 For Defendant-Appellant: JOHN A. HICKEY 3794 Pearl Road Cleveland, Ohio 44109 - 3 - O'DONNELL, J.: Samuel Moffie appeals four judgments of the Cleveland Municipal Court, Housing Division, in four separate cases finding him guilty of sixty-eight counts of building and housing code violations on three properties owned and managed by Moffie. The four cases have been consolidated for purposes of review on this appeal. Case number 69395, relates to a city inspection of Moffie's property located at 11014-24 Detroit Avenue in Cleveland on March 24, 1993 which resulted in issuance of a violation notice citing multiple violations of the city's building and housing ordinances. Case number 69396, relates to a city inspection of Moffie's property located at 2159 West 89th Street in Cleveland on December 9, 1993 which resulted in a violation notice citing multiple violations of the city's building and housing ordinances. Case number 69397, relates to an additional city inspection of Moffie's Detroit Avenue property on November 1, 1994 which resulted in a separate violation notice for violations of the city's building and housing ordinances. Case number 69398, relates to a city inspection of Moffie's property located at 16500 Euclid Avenue in Cleveland on August 4, 1994 which resulted in issuance of a violation notice citing - 4 - multiple violations of the city's building and housing ordinances. In each of the four cases, Moffie filed motions to suppress evidence. In case numbers 69395, 69396, and 69397, Moffie also filed motions to dismiss. Moffie also made motions for findings of fact in case numbers 69396 and 69397, and made motions for acquittal, pursuant to Crim. R. 29, in case numbers 69395 and 69397. The trial court held a hearing on the motion to suppress evidence in case number 69398 and then denied the motion. The trial court also denied all other motions in this case. After a bench trial on all four cases, the trial court found Moffie guilty of 68 violations in the four cases and imposed $500 fines on each, totaling $34,000. Moffie now appeals and assigns seven errors for our review. The first assignment of error states: WHETHER THE TRIAL COURT ERRED TO THE DEFENDANTS (SIC) DETRIMENT BY OVERRULING THE MOTION TO SUPPRESS EVIDENCE BASED UPON THE CITYS (SIC) ENTRY UPON THE REAL ESTATE OF THE DEFENDANT WITHOUT A SEARCH WARRANT, CONSENT, OR IN FURTHERANCE OF AN "AREA INSPECTION PLAN." Moffie believes the trial court should have granted his motion to suppress evidence of the violations because the city searched his premises without obtaining search warrants, without consent, and not in accordance with any established administrative standard, and therefore selectively enforced its code against him. - 5 - The city, on the other hand, argues the court properly overruled Moffie's motion to suppress because it made the inspections in each instance with consent. The issue for our consideration is whether the trial court erred in denying Moffie's motions to suppress. In Katz v. United States (1967), 389 U.S. 347, 357 the United States Supreme Court held: [S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. Therefore, once the party challenging the search establishes a warrantless search, the burden of going forward with the evidence shifts to the state to demonstrate the validity of the search. State v. Kessler (1978), 53 Ohio St.2d 204. In Xenia v. Wallace (1988), 37 Ohio St.3d 217, the Ohio Supreme Court clarified this standard when, in that case, a defendant challenged breathalyzer test results, but did not delineate whether the basis was lack of exigent circumstances, lack of reasonable basis to stop the defendant, or lack of probable cause to administer the test. Thus, the court held in its syllabus: To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis of the challenge. - 6 - In this case, Moffie's motions to suppress meet the requirements of Xenia, supra, because they allege warrantless searches of his properties and that the city lacked justification for these searches, thus sufficiently advising the prosecution of the basis for the motions. Furthermore, in State v. Penn (1991), 61 Ohio St.3d 720, 723-724 the court stated: Where there is no search warrant, the burden falls on the state to show that a search comes within one of the judicially recognized exceptions: (a) A search incident to a lawful arrest; (b) consent signifying waiver of constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit; (e) probable cause to search and the presence of exigent circumstances; or (f) the plain view doctrine. On appeal, the city argued it had consent to search Moffie's property. In the three cases where the court did not hold a hearing, the city argues it received consent from the building custodian on March 24, l993 (case number 69395); from an electrical contractor hired by the owner to evaluate the contractor's work under a permit on December 9, 1993 (case number 69396); and from building tenants on November 1, 1994 (case number 69397). However, no hearings were held, no testimony elicited, and no evidence exists to support the city's position. Furthermore, the city's efforts to supplement the record on - 7 - appeal resulted in delivery to this court of documents which were not part of the record below, not filed in the clerk's office, and hence we cannot consider them. See App. R. 9 and App. R. 12. Thus, the record demonstrates no city opposition to the motions and no evidence of consent for the inspections in case numbers 69395, 69396, and 69397. The trial court, therefore, erred in denying Moffie's motions to suppress in these cases. In case number 69398, the trial court conducted a full evidentiary hearing on the motion to suppress evidence. City inspector Jeff Clark testified that he spoke with Moffie, who consented to the search, and on the day of the search Moffie's employee, Mike MacIntosh, let him into the building. Three other members of the city's inspection team corroborated Clark's testimony that Moffie's representative admitted them to the building. In contrast, Moffie and MacIntosh testified that, in fact, no consent had been given. After a full hearing on the motion in this case, the trial court concluded the inspector received permission to inspect the premises, and denied Moffie's motion to suppress. In accordance with Penn, supra, consent constitutes a valid exception to the search warrant requirement, and therefore, the trial court properly denied the motion to suppress in case number 69398. Thus, this assignment of error is sustained as to case numbers - 8 - 69395, 69396, and 69397, but is overruled as it relates to case number 69398. The third assignment of error states: WHETHER THE TRIAL COURT ERRED WHEN THE COURT REQUIRED THE DEFENDANT TO "GO FORWARD WITH EVIDENCE" AT THE MOTION TO SUPPRESS HEARING, AND WHETHER THE STATE MET ITS BURDEN OF "CLEAR AND CONVINCING" EVIDENCE TO SHOW THE SEARCH AND SEIZURE WAS IN COMPLIANCE WITH LAW. In this assignment of error, Moffie challenges the actions of the court in its suppression hearing in case number 69398 wherein Moffie focused on the validity of a search on March 18, 1994. However, the court decided case number 69398 based on violations discovered during an inspection conducted on August 4, 1994. Thus, any action on the motion to suppress the evidence obtained in the March 18, 1994 search is irrelevant to this appeal because the fruits of the March 18, 1994 search did not constitute the basis of the trial court's judgment in case number 69398. The second assignment of error states: WHETHER THE TRIAL COURT ERRED TO THE DEFENDANTS (SIC) DETRIMENT BY OVERRULING THE DEFENDANT'S MOTION TO DISMISS FOR WANT OF A SPEEDY TRIAL. The fourth assignment of error states: WHETHER THE TRIAL COURT ERRED IN ALLOWING "OWNERSHIP OF REAL ESTATE" TO BE PROVEN BY "HEARSAY STATEMENTS" OF A HOUSING COURT INSPECTOR, ALL TO THE DETRIMENT OF THE DEFENDANT. - 9 - The fifth assignment of error states: WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW AND THEREBY PREJUDICED HIS RIGHT TO A FAIR TRIAL AND TO A PROPER REVIEW BY THIS HONORABLE COURT. The seventh assignment of error states: WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL, MADE AT THE CLOSE OF THE STATE'S CASE AND RENEWED AT THE CLOSE OF ALL THE EVIDENCE AS THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A CONVICTION FOR EACH OF THE OFFENSES CHARGED, THEREBY VIOLATING APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT AND SECTION 16, ARTICLE 1 OF THE OHIO CONSTITUTION. As these assignments of error relate to case numbers 69395, 69596, and 69397, these assignments of error are rendered moot by our resolution of the first assignment of error, supra. The sixth assignment of error states: WHETHER THE VERDICTS IN THE INSTANT CASE WERE ERRONEOUS AS THEY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL, AND THEREBY VIOLATED APPELLANT'S RIGHTS SECURED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION. Moffie contends the verdicts in this case were against the manifest weight of the evidence because the city produced no expert testimony to prove the violations charged. The city believes the manifest weight of the evidence supports the verdicts in this case. - 10 - The issue, then, for our determination is whether the verdicts in this case are against the manifest weight of the evidence. Due to our resolution of the first assignment of error, supra, we will examine the manifest weight of the evidence in case number 69398 only. In considering whether a verdict is against the manifest weight of the evidence we look to State v. Martin, (1983), 20 Ohio App.3d 172, 175, where the court explained the standard of review as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Citations omitted.) This same standard has been applied to bench trials. See State v. Otten (1986), 33 Ohio App.3d 339; State v. Parks (July 6, 1995), Cuyahoga App. No. 68201, unreported. We are also cognizant that issues of credibility of witnesses and weight to be accorded certain evidence are matters to be decided by the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. In this case, the city presented testimony from plumbing inspector Leroy Koeth who examined Moffie's property and issued notices of violations of city ordinances. The inspector detailed - 11 - problems with blocked floor drains, standing water, unusable bathrooms, open sewer pipes which enabled sewer gases to escape, and work being done without issue of a permit. Moffie testified on his own behalf that all of the problems had been corrected and that he did not know about the lack of permit because he had hired a contractor to do the work. We therefore conclude that evidence existed to support the trial court's conclusions. Accordingly, we do not believe the court lost its way in resolving conflicts, the verdicts are not against the manifest weight of the evidence, and the sixth assignment of error is overruled. In accordance with the foregoing, we affirm the judgment of the trial court in case number 69398, and reverse the judgment of the trial court in case numbers 69395, 69396, and 69397. Judgment affirmed in part and reversed in part. - 12 - It is ordered that appellee(s) recover of appellant(s) 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. MATIA, J., CONCURS; HARPER, P.J., CONCURS IN JUDGMENT ONLY. JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .