COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71450 CITY OF CLEVELAND : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : JAMES G. DAWSON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Cleveland Municipal Court Case No. 96-TRD-55049 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: REUBEN J. SHEPERD, ESQ. JAMES G. DAWSON, ESQ. ASSISTANT CITY PROSECUTOR 4881 Foxlair Trail Eighth Floor, Justice Center Richmond Hts., Ohio 44143 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, J.: Defendant James G. Dawson appeals from his conviction for violating R.C. 4411.22(A), which prohibits impeding or blocking the normal and reasonable movement of traffic. For the reasons set forth below, we affirm. On August 16, 1996, defendant was issued a citation for violating R.C. 4511.22. On the citation, the charging police officer noted that defendant was Stopped in traffic, and further indicated that there was heavy vehicular and pedestrian traffic in the area. Defendant pleaded not guilty to the charge. Thereafter, on September 4, 1996, defendant filed a motion to dismiss the charge in which he asserted that R.C. 4511.22 is unconstitutionally vague. The trial court denied the motion and the matter proceeded to trial on September 19, 1996. Cleveland Police Officer Jeffrey Ryan testified that at approximately 10:45 p.m., on Friday, August 16, 1996, he observed defendant stopped in his vehicle on Elm Street at Winslow Avenue, near the Powerhouse Complex in the Flats. According to Ryan, the area was very crowded with extremely heavy traffic. Defendant's vehicle was approximately five feet from the curb and was stopped in a no parking zone. Ryan further stated that defendant's vehicle was partially blocking traffic. According to Officer Ryan, other traffic had to pull around defendant's vehicle in order to proceed and this impeded the flow of traffic turning right from Elm Street into an adjacent parking lot. Ryan informed defendant that he was -3- blocking traffic and issued him a citation for violating R.C. 4511.22. Officer Ryan admitted on cross-examination that traffic was not backed up and that he did not observe other drivers beeping or shouting at defendant. He also admitted that he did not have defendant move his vehicle while he wrote the citation. Finally, Officer Ryan admitted that he did not witness any vehicles which were unable to make the right hand turn into the parking lot due to the location of defendant's vehicle. Defendant elected to present evidence and testified that he was not five feet away from the curb as Officer Ryan had stated, but was instead approximately one foot away from the curb. He further indicated that he had taken various measurements of Elm Street and had determined that it is thirty-eight feet wide. Southbound traffic occupies fourteen feet of this width, leaving twenty-four feet available for northbound traffic and vehicles parked in the northbound lane. Thus, according to defendant, assuming that the average car is six feet wide, eighteen feet are available for vehicles traveling northbound on Elm Street. Defendant further testified that traffic was heavy in the area and cars were continuously lined up in order to enter the parking lot. Defendant denied blocking any traffic during the ten minute time period during which his vehicle was stopped on Elm. Essentially, defendant asserted that his vehicle was directly in front of a row of parked cars and traffic continued to flow in the lane immediately ahead of his vehicle. Any impairment in the flow of -4- traffic was due to the great volume of cars in the area and not the location of defendant's stopped vehicle. The trial court subsequently determined that defendant's vehicle was in a position where it did effectively prevent the normal flow of traffic at this intersection. (Tr. 37). It then found defendant guilty as charged on the citation. Defendant now appeals and assigns three errors for our review. For the sake of clarity, we shall address defendant's assignments of error out of their predesignated order. Defendant's third assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY DENYING HIS MOTION TO DISMISS ON THE GROUNDS THAT R.C. 4511.22(A) IS UNCONSTITUTIONALLY VAGUE AND THAT THE ENFORCEMENT OF SAID STATUTE VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 1, OF THE OHIO CONSTITUTION. Within this assignment of error, defendant complains that R.C. 4511.22(A) does not give people of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and vests police with too much discretion creating the danger of arbitrary and discriminatory enforcement. Specifically, defendant maintains that the ordinance impermissibly fails to set forth any guidelines as to what is the normal and reasonable movement of traffic. He further asserts that in the City of Cleveland's version of the slow speed statute, stopping is not prohibited, which, defendant asserts, demonstrates that the Cleveland City Council concluded -5- that the word stop is impermissibly vague within the context of similar legislation. Legislative enactments must be afforded a strong presumption of constitutionality. Cincinnati v. Langan (1994), 94 Ohio App.3d 22, 30. In order to prevail, the party asserting that an ordinance is unconstitutional must prove his assertion beyond a reasonable doubt. Id., at 30-31. In State v. Collier (1991), 62 Ohio St.3d 267, 269-270, the Supreme Court set forth a void-for-vagueness test: A tripartite analysis must be applied when examining the void-for-vagueness doctrine. See Papachristou v. City Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110; Grayned v. City of Rockford (1972), 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222; Kolender v. Lawson (1983) 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903. In [State v.]Tanner [(1984), 15 Ohio St.3d 1, 15 OBR 1, 472 N.E.2d 689], Justice Locher instructed that `[t]hese values are first, to provide fair warning to the ordinary citizen so behavior may comport with the dictates of the statute; second, to preclude arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints; and third, to ensure that fundamental constitutionally protected freedoms are not unreasonably impinged or inhibited. Proper constitutional analysis necessitates a review of each of these rationales with respect to the challenged statutory language.' Id., 15 Ohio St.3d at 3, 15 OBR at 3, 472 N.E.2d at 692. Id., 62 Oho St.3d at 269-270, 581 N.E.2d at 554. As to whether a challenged enactment provides citizens with fair warning so that they may comport with the dictates of the statute, The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that the language of a criminal statute must be sufficiently definite `to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.' Pepper Pike v. Felder (1989), 51 Ohio App.3d 143, 144, 555 N.E.2d 333, 335, quoting State v. Earlenbaugh (1985), -6- 18 Ohio St.3d 19, 21, 18 OBR 16, 17, 479 N.E.2d 846, 848, 52 A.L.R.4th 1153, 1157. The essence of the vagueness doctrine is notice. An ordinance must be sufficiently clear in defining the activity proscribed so that it informs those who are subject to it what conduct on their part will render them liable to its penalties. Singer v. Cincinnati (1990), 57 Ohio App.3d 1, 566 N.E.2d 190, citing Columbus v. Thompson (1971), 25 Ohio St.2d 26, 54 O.O.2d 162, 266 N.E.2d 571, and State v. Artis (1989), 46 Ohio App.3d 25, 545 N.E.2d 925. A law which forbids the doing of an act in terms so vague that people of ordinary intelligence must guess at its meaning violates that person's right to due process of law. Singer, supra, citing S. Euclid v. Richardson (1990), 49 Ohio St.3d 147, 551 N.E.2d 606. Cleveland v. Isaacs (1993), 91 Ohio App.3d 360, 364. Further, a litigant asserting a vagueness defense must demonstrate that the statute in question is vague as applied to the litigant's conduct without regard to its potentially vague applications to others. Parker v. Levy (1974), 417 U.S. 733, 757; In re Harper (1996), 77 Ohio St.3d 211, 221. Finally, we note that R.C. 4511.22 provides in relevant part as follows: (A) No person shall stop or operate a vehicle, trackless trolley, or street car at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law. Applying all of the foregoing, it is clear that the first portion of defendant's vagueness challenge presents an attack upon the normal and reasonable movement of traffic language within the statute. Defendant must meet his vagueness challenge by demonstrating that the statute is vague as applied to this conduct, which, he admitted was stopping on Elm near the entrance into the parking lot. (Tr. 30). Thus, this court should consider whether, -7- in proscribing that [n]o person shall stop *** as to impede or block the normal and reasonable movement of traffic ***, the statute fails to provide citizens with notice of what conduct is prohibited. In this connection, we note that one court has stated that [i]t is apparent, then, that slow-speed statutes such as R.C. 4511.22(A) are intended are intended to apply to vehicles *** which move unnecessarily slowly, to the impediment of other traffic. State v. Benshoff (March 21, 1990), Wayne App. No. D 89 3 304, unreported. We further note: The Constitution requires only that the challenged statute or ordinance `*** conveys [a] sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' United States v. Petrillo (1947), 332 U.S. 1, 8. Absolute or mathematical certainty is not required in the framing of a statute. Reasonable certainty of the nature and cause of the offense is all that is required. Some offenses admit of much greater precision and definiteness than others, but it is quite obvious that in the case at bar the statute must be sufficiently elastic and adaptable to meet all the dangerous situations presented, in order to adequately safeguard the travelling public ***. State v. Schaeffer (1917), 96 Ohio St. 215, 236, 117 N.E. 220, 226. As the court in Hinson [(Feb. 2, 1982), Vinton App. No. 385, unreported],stated at 2 `*** the statute is merely a traffic regulation which has for its standard the rule of reason. Traffic circumstances vary greatly. A more specific regulation would not adequately safeguard the public. State v. Gonzalez (1987), 43 Ohio App.3d 59, 60-61 (upholding R.C. 4511.34 which prohibits following another vehicle more closely than is reasonable or prudent, having due regard for *** speed *** and the traffic ). -8- Accordingly, we reject defendant's contention that R.C. 4511.22 is unconstitutionally vague in relation to language prohibiting stopping as to impede or block the normal and reasonable movement of traffic as we conclude that this language gives people of ordinary intelligence a reasonable opportunity to know that they should not stop within lanes of travel when the traffic of the area is normally and reasonably moving. With regard to defendant's additional claim that the statute vest police with too much discretion, the Supreme Court of the United States has noted, within the context of a void-for vagueness challenge, that if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. Grayned v. Rockford (1972), 408 U.S. 104, 109. Thus, a law is impermissibly vague when it delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory application. Id. Accord Akron v. Rowland (1993), 67 Ohio St.3d 374, 381 ( Due process requires that the terms of a criminal statute be reasonably clear and definite and that there be ascertainable standards of guilt on which citizens, courts, and the police may rely. ) In this instance, we find that the plain language of the ordinance does provide adequate guidelines for law enforcement as it prohibits stopping and the impeding and blocking of traffic which is moving normally and reasonably, thus establishing a clear standard of guilt on which police and the courts may rely. -9- Finally, as to defendant's claim that the omission of the word stop from the City of Cleveland's version of R.C. 4511.22 further demonstrates that this term is vague, we note that in a prior enactment, R.C. 4511.22 did not prohibit stopping. It provided as follows: No person shall operate a vehicle, trackless trolley, or streetcar at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or to comply with law. See, e.g., State v. Hannah (April 10, 1978), Trumbull App. No. 2552, unreported. Under this version of the statute, the state was required to prove that the speed at which the defendant was traveling would have blocked or impeded the normal and reasonable movement of traffic. Id. (Emphasis added). Case law construing this and related ordinances held that defendants who were simply stopped on streets or highways could not be cited for violating such provisions. See, e.g., Cleveland v. Jackson ((September 25, 1986), Cuyahoga App. No. 50984, unreported. (Emphasis added). Thereafter, R.C. 4511.22, and some corresponding local ordinances, were amended to additionally provide that [n]o person shall stop ***. As the Jackson Court observed, however, the Cleveland Codified Ordinances prohibited improper stopping within other provisions, e.g., C.O. 401.59; 431.14; 451.03;451.10. We therefore reject the claim that the absence of a prohibition against stopping within Codified Ordinance 433.04 is evidence that the term is vague. Defendant's third assignment of error is overruled. -10- Defendant's first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FINDING HIM GUILTY OF VIOLATING R.C. 4511.22(A) WHERE THE DECISION AND JUDGMENT ARE AGAINST THE WEIGHT OF THE EVIDENCE. In State v. Thompkins (1997), 78 Ohio St.3d 380, 387, the Supreme Court held as follows: When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982), 457 U.S. 31], 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in 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.") Further, under the statute at issue, stopping the progress of another vehicle is not a prerequisite; a violation may be established where other vehicles are diverted due to the conduct of defendant. See State v. Orr (April 3, 1996), Summit App. No. 17367, unreported, at 3. The statute is violated where vehicles move unnecessarily slowly, to the impediment of other traffic. State v. Benshoff, supra. In this instance, the evidence established that although traffic was not completely stopped by defendant's conduct, his conduct, i.e., stopping in a lane which could have been used for -11- travel, nonetheless diverted other vehicles and thereby impeded traffic which was turning into the Powerhouse parking area. Moreover, there is no indication that defendant was stopped within traffic or that the prevailing traffic conditions of the area otherwise justified his conduct. We therefore cannot conclude that the trial court lost its way and created a manifest miscarriage of justice in finding defendant guilty of violating R.C. 4511.22. The first assignment of error is overruled. Defendant'S second assignment of error states: THE TRIAL COURT ERRED AND THE APPELLANT WAS DENIED DUE PROCESS OF LAW, IN THE WAKE OF IMPERMISSIBLE LIMITATIONS PLACED BY THE TRIAL COURT ON APPELLANT'S EFFORTS TO PRESENT EVIDENCE RELEVANT TO HIS DEFENSE. Within this assignment of error, defendant complains that the trial court erroneously prohibited him from presenting evidence to demonstrate that the traffic condition which he was charged with, impeding, was unusually heavy and was not the normal and reasonable movement of traffic contemplated within R.C. 4511.22. As an initial matter, Evid. R. 403 vests a trial court with discretion to determine whether the probative value of proffered evidence is substantially outweighed by the danger of prejudice, of confusion of the issues, or of misleading the jury. See State v. Adams (1980), 62 Ohio St.2d 151, 157. Absent an abuse of discretion, a court of appeals should be slow to interfere with an evidentiary ruling of the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 265. -12- Further, as we noted previously, the slow-speed statutes such as R.C. 4511.22(A) are intended to apply to vehicles *** which move unnecessarily slowly, to the impediment of other traffic. State v. Benshoff, supra. Thus the trial court was required to consider whether the traffic in the area was moving normally and reasonably and whether the defendant impeded its flow. The trial court was not required to consider a comprehensive evaluation of all of the traffic patterns of the area at various times of the day and days of the week in order to make a preliminary determination of whether defendant was traveling within normal and reasonable traffic conditions. Thus, the trial court properly prohibited the presentation of evidence concerning traffic patterns other than the one prevailing at the time defendant was cited. The court did not abuse its discretion in refusing to permit defendant from asking Officer Ryan questions concerning the traffic flow at the intersection at other times during the week (Tr. 10-11) and in refusing to allow defendant to present evidence that the Friday night traffic within the area was heavier than ordinarily encountered at other times during the week. (Tr. 11, 29) The second assignment of error is overruled. Affirmed. -13- 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. DAVID T. MATIA, P.J., AND ROCCO, J., CONCUR. ANN DYKE JUDGE 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 of decision by the .