COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73544 CITY OF SHAKER HEIGHTS : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION AUBREY WILLACY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : NOVEMBER 19, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Shaker Heights Municipal Court : Case No. 97-TRD-27965 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: GARY R. WILLIAMS, ESQ. City Prosecutor Shaker Heights City Hall 3400 Lee Road Shaker Heights, OH 44120 AUBREY WILLACY, ESQ. 700 Western Reserve Building 1468 West 9th Street Cleveland, OH 44113 -2- JOHN T. PATTON, J.: Defendant-appellant Aubrey Willacy appeals his conviction for a violation of a local traffic ordinance which occurred on June 20, 1997. Defendant appeals from his conviction and denial of his motion for a new trial. Construction activities were underway on a main thoroughfare named Shaker Heights Boulevard between two intersecting streets, Green Road and Richmond Road. Signs were erected and placed on Shaker Heights Blvd. and on the ramp leading from the RTA station indicating the street was closed. However, there were entrance and exit ramps to the RTA station which were open and which were not within the construction area. On the day in question, defendant picked up his wife from the RTA station and was leaving the station when he encountered one of the construction signs. Defendant drove around the sign and came upon several orange barrels, which he proceeded through. At this point, defendant was confronted by two police officers, one of whom issued him a ticket for disobeying a traffic signal or device by driving on a road closed due to construction with local access in violation of Shaker Heights codified ordinances section 1131.26. Defendant entered a plea of not guilty and the matter proceeded to trial. Two Shaker Heights police officers testified for the city, and defendant and his wife testified for the defense. The trial court heard all the testimony and requested post-trial briefs on several issues. On September 9, 1997, the trial court journalized its verdict finding defendant guilty of the charge -3- against him. In response, defendant filed a motion for a new trial which was later denied by the trial court. Defendant then filed a notice of appeal arguing the trial court improperly denied his motion for a new trial and erred in finding him guilty. Initially, we must decide whether this court has jurisdiction to hear this appeal. Defendant filed his motion for a new trial seventeen days after the trial court journalized its verdict and fine of defendant for $35. This is in violation of Crim.R. 33 which provides motions for a new trial must be filed within fourteen days after the verdict was rendered. However, because the trial court mailed notice of its verdict to defendant causing him to receive it three days after the date of journalization, we hold Crim.R. 45(E) applies and allowed defendant three extra days to file his motion for a new trial. As a result, this court has jurisdiction over defendant's appeal because he timely filed his motion for a new trial resulting in his notice of appeal also being timely filed. I. In his first assignment of error defendant complains it was against the manifest weight of the evidence for the trial court to find him guilty of driving upon a street posted as closed for repair where the evidence revealed he departed from a business situs within a construction zone which permitted such local traffic. In support of this argument, defendant claims he was a business customer of the RTA Rapid Transit System and therefore he was permitted both ingress and egress from the station even though -4- the station was partially within the construction zone and signs were present allowing for local traffic only. The Shaker Heights codified ordinance of which defendant complains states as follows: 1131.26 DRIVING UPON STREET POSTED AS CLOSED FOR REPAIR. No person shall drive upon, along or across a street or highway, or any part thereof, which has been closed in the process of construction *** and posted with appropri- ate signs by the authority having jurisdiction to close such street or highway. The evidence reveals defendant drove from a part of the RTA station or ramp that was not under construction to a ramp that had a road closed sign. Defendant then encountered a Road Closed Local Traffic Only sign and several orange barrels. Defendant proceeded through both this second sign and the orange barrels. Subsequently, defendant was stopped by the police on Shaker Heights Blvd., the street closed for construction purposes, and issued a ticket for violating the above ordinance. This evidence clearly shows defendant violated the above ordinance. He drove along a street which had been closed for the purposes of construction and failed to obey posted signs which indicated the street or road was closed. Furthermore, we disagree with defendant's argument that he should have been able to enter the construction zone because he was an RTA customer. First, there is nothing in the ordinance providing for this type of access. Second, defendant does not cite to any authority to support his position that business customers are allowed to use the local traffic only provision as a means of -5- egress and ingress. Third, there were two other exits defendant could have used to leave the RTA station, other than the one he used, that were not within the construction zone. It is well settled law that a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Seiber (1990), 56 Ohio St.3d 4, 13. Moreover, in reviewing a claim that a conviction is against the manifest weight of the evidence, the conviction cannot be reversed unless it is obvious that the trier of fact clearly lost its way and created such a manifest miscar- riage of justice that the conviction must be reversed and a new trial ordered. State v. Garrow (1995), 103 Ohio App.3d 368, 370- 371. Based on the evidence adduced above, it is clear that all the elements of the offense have been proven beyond a reasonable doubt and the trial court did not create a manifest miscarriage of justice. Accordingly, defendant's first assignment of error is overruled. II. In his second assignment of error, defendant complains Shaker Heights Codified Ordinance 1113.01 which states [n]o person shall drive upon *** a street or road *** in the process of construction *** and posted with appropriate signs ***, is vague because the two signs posted Road Closed at Shaker Boulevard and Road Closed -6- at Shaker Blvd Local Traffic Only did not give people of ordinary intelligence knowledge of what was prohibited. First, defendant claims the wording Road Closed at Shaker Boulevard is subject to two interpretations. The first interpre- tation is that the exit ramp on which this sign was located itself was closed and the second is that Shaker Blvd. was closed. Defendant contends the placement of the orange barrels with gaps between them allowing for cars to pass and the other sign providing for local traffic only were ambiguous and did not provide the necessary indication of what conduct was prohibited. Second, defendant claims the Local Traffic Only sign was vague because it did not indicate where the local traffic zone was located and he did not understand the meaning of the word `Traffic.' 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. 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. Id. Moreover, the Constitution requires only that the challenged statute or ordinance convey a sufficiently definite warning as the to proscribed conduct when measured by common understanding and practices. United States v. Petrillo (1947), 332 U.S. 1. -7- In addition, 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. In re Harper (1996), 77 Ohio St.3d 211, 221. Applying this doctrine to the present case, we must determine whether the signs posted were appropriate to give defendant a reasonable opportunity to know what conduct was prohibited. The purpose of the statute is to stop motorists from driving on streets that are under construction. The wording appropriate signs indicates this purpose will be conveyed to drivers through the use of traffic signs. The two signs in question state Road Closed at Shaker Blvd and Road Closed at Shaker Blvd Local Traffic Only. Defendant is a licensed attorney and has attended law school and presumably studied complex and intricate doctrines. He now claims he and his wife, who is also an attorney, stopped when they faced the Road Closed at Shaker Blvd Local Traffic Only because they were unsure of its verbiage. We cannot conceive of any more clearer language to convey the purpose of the ordinance. The sign was placed in the middle of the road so as to block traffic and it contained only eight words, none of which are outside the vocabu- lary of a person with common intelligence. Moreover, motorists who live in the Cleveland area see signs such as these and orange barrels located all over the roads during the summer months because many city roads are under repair as a result of the effects of -8- winter. We reject defendant's argument that these signs could be interpreted in more than one way in light of the fact that defendant lives in this area, the signs are simply worded, and defendant is highly educated. Defendant also complains that under The Ohio Manual of Uniform Traffic Control Devices for Streets and Highways (hereinafter manual ) the signs were incorrectly placed and should have been accompanied by detour signs. He argues the manual states the Road Closed sign shall be used at the point where the roadway is closed to all traffic and shall be accompanied by detour signing. Defendant maintains the use of the word shall makes these provisions mandatory in nature and because the sign was not accompanied by detour signing or placed at a point where the roadway was closed, the trial court did not have the authority to find him guilty of violating the ordinance. Regarding the non-accompaniment of detour signing, the manual was amended on December 2, 1996. Specifically, the language of section 7C-5 was changed from shall be accompanied by detour signing to should be accompanied by detour signing. In City of Shaker Heights v. Willacy (Feb. 21, 1985), Cuyahoga App. No. 48702, unreported, this present defendant was convicted of running a red light and appealed his conviction to this court. We affirmed, holding the use of the word should instead of shall makes the manual provisions recommended rather than mandatory. Thus, the Road Closed Sign did not have to be accompanied by detour signing. -9- Regarding placement of the sign at a point where the roadway was closed, section 7B-5, Position of Signs, states [s]igns shall be placed in positions where they will convey their messages most effectively and placement must therefore be accommodated to highway design and alignment. In the present case, the sign was located at the bottom of the ramp which led to the closed road, Shaker Blvd. The city maintains the sign was placed at this point rather than at the top of the ramp where it intersects with Shaker Blvd., because this placement saved motorists the trouble of driving down the ramp, finding out Shaker Blvd. was closed, turning around and returning up the ramp. The logic behind this placement was motorists were notified in advance of the closed road. Thus, the sign was placed in the most effective location to convey the message and at the point where the roadway was closed to traffic. Because the provision in the manual defendant complains of was merely a recommendation and the sign was placed at the point where the roadway is actually closed to traffic, we find defendant's argument unpersuasive. Accordingly, defendant's second assignment of error is overruled. -10- III. In his third assignment of error, defendant argues the trial court erroneously overruled his motion for acquittal and entered a finding of guilt where the evidence at trial established the police officer who issued him the traffic citation did not actually observe the commission of the offense. Specifically, defendant contends the testimony of Officer Schmoldt indicates he issued defendant the citation but did not personally observe where or how defendant entered eastbound Shaker Blvd. In support, defendant cites Sopko v. Maxwell (1965), 3 Ohio St.2d 123, where the Court narrowly limited the permissible use of police officers' affidavits charging offenses which the signing officer did not observe. Defendant claims because of Sopko the person issuing the citation has to have reasonable grounds to do so, and since Schmoldt did not personally observe the commission of the crime, he did not have reasonable grounds to issue the citation. Therefore, it was unlawfully issued. The testimony adduced at trial revealed that Officer Spidalieri pulled over defendant and asked him why he was driving in the construction area. After determining defendant was not a resident, he gave defendant's license to Officer Schmoldt who then issued defendant the citation. Schmoldt testified he was called to this area to help Spidalieri write citations because there were so many cars being pulled over. Schmoldt said Spidalieri questioned defendant, then handed him defendant's license and Schmoldt issued defendant the citation. -11- In Sopko,the case cited by defendant, Sopko was charged with assault with the intent to rob. Sopko alleged he was illegally detained because he was arrested without a warrant and without probable cause. The court held [i]t is not necessary that the affidavit be executed by one who observed the commission of the offense. It is sufficient if such person has reasonable grounds to believe that the accused has committed the crime. This issue was addressed recently in State v. Robinette (1997), 118 Ohio App.3d 450, citing State v. Villagomez (1974), 44 Ohio App.2d 209, where the court held personal knowledge is not required to issue a criminal complaint. The court went on to say [t]he issue is whether or not the crime was committed not whether the affiant had personal knowledge of each element of the offense. Based on these three cases, we find that Schmoldt did not have to personally observe defendant commit the crime before issuing the citation. It was enough that Officer Spidalieri witnessed the offense and conveyed this information to Schmoldt. Accordingly, there was sufficient evidence to support the trial court's denial of defendant's motion for acquittal and defendant's third assignment of error is overruled. IV. In his final assignment of error, defendant argues the trial court erroneously overruled his motion for judgment of acquittal because the traffic citation was issued before the offense occurred and was premised upon his future intention to complete the commission of the offense. -12- Defendant admits he drove around the Road Closed to Local Traffic Only sign and several orange barrels and was stopped on Shaker Blvd. which was the road closed due to construction. The testimony of Officer Spidalieri indicates defendant was stopped on Shaker Blvd. and issued a citation for proceeding on a road closed due to construction. Defendant had already driven around the sign and orange barrels and was stopped on the actual road closed for construction. It does not matter in what part of the construction zone he was stopped or that he did not complete his trip through the construc- tion zone. Defendant violated the ordinance as soon as he avoided the sign and entered Shaker Blvd. Therefore, based on the above analysis we find the trial court correctly overruled defendant's motion for acquittal and had sufficient evidence to believe that reasonable minds could reach different conclusions as to whether each material element of the crime had been proven beyond a reasonable doubt. Defendant's fourth assignment of error is overruled. Judgment affirmed. -13- -14- 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 Shaker Heights 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. TIMOTHY E. MCMONAGLE, P.J. LEO M. SPELLACY, J.,CONCUR. JUDGE JOHN T. PATTON 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 .