Nesby v. City of Montgomery

• Decision Date: 19 August 1994
• Citation: Nesby v. City of Montgomery, 652 So.2d 784 (Ala. Crim. App. 1994)
• Parties: Bernice NESBY v. CITY OF MONTGOMERY. CR 93-1155.
• Court: Alabama Court of Criminal Appeals

Page 784

652 So.2d 784

Bernice NESBY v. CITY OF MONTGOMERY.

CR 93-1155.

Court of Criminal Appeals of Alabama.

Aug. 19, 1994.

Rehearing Denied Oct. 21, 1994.

Certiorari Denied Jan. 6, 1995

Alabama Supreme Court 1940169.

James E. Wilson, Jr., Montgomery, for appellant.

Hugh Evans III, Montgomery, for appellee.

BOWEN, Presiding Judge.

Bernice Nesby, the appellant, was convicted of violating Montgomery City Ordinance 37-91, on a complaint charging that she failed to remove junk vehicles from her real property. She was fined $30 and was ordered to pay $54 in court costs. The appellant raises three issues on this appeal from that conviction.

I

In Nesby v. City of Montgomery, 639 So.2d 591 (Ala.Cr.App.1993) (table), this Court, in an unpublished memorandum, affirmed the appellant's earlier conviction for this same offense. The substance of that memorandum was as follows:

"AFFIRMED BY MEMORANDUM. Bernice Nesby, the appellant, was convicted for a violation of Montgomery City Ordinance 37-91, in failing to remove junk vehicles from her real property. She was fined $30 and [was] ordered to pay $54 in court costs. The appellant raises three issues on this appeal from that conviction.

I.

"The appellant asserts that the evidence is insufficient to support the conviction. The appellant alleges that she had a license to buy and sell, restore antique vehicles, and that she fell within an exception provided in the ordinance. There was no objection of any type challenging the sufficiency of the evidence and this issue was not preserved for review. Ex parte Maxwell, 439 So.2d 715, 717 (Ala.1983).

II.

"The appellant asserts that the municipal ordinance under which she was convicted is void for vagueness. This court 'will not consider on appeal any constitutional questions not raised below.' Steele v. State, 289 Ala. 186, 189, 266 So.2d 746 (1972).

III.

"The appellant asserts that the penalty imposed for violating municipal ordinance 37-91 violates the constitutional prohibition against double jeopardy. The appellant requests 'this court to take judicial notice that appellant was found guilty of a subsequent separate offense and said conviction is on appeal to the Circuit Court of Montgomery, Alabama awaiting disposition.' Appellant's brief at 12. This issue was not preserved for review by objection. Cox v. State, 462 So.2d 1047 (Ala.Cr.App.1985). This Court cannot take judicial notice of 'other proceedings.' An appellate court generally cannot consider matters outside of the record. Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So.2d 90 (Ala.1963); Lyle v. Eddy, 481 So.2d 395 (Ala.Civ.App.1985)."

These same issues are presented on this appeal from a later conviction. In addition, the parties stipulated that "the testimony and evidence adduced at the trial in cases styled, City of Montgomery v. Bernice Nesby, and further identified by Case Nos. CC-93-5065/5066, are adopted and incorporated in the above-styled cause as if the testimony and evidence were fully set forth herein." C.R. 13. The appellant was convicted in case number CC-5066 and that conviction was the subject of the memorandum in Nesby v. City of Montgomery, quoted above. The City of Montgomery nol-prossed case number CC-5065.

The parties further stipulated to facts that demonstrate to this Court that defense counsel preserved these issues by proper and timely objection before the trial court. C.R. 14.

II

The appellant claims that the evidence was not sufficient to support her conviction.

Montgomery City Ordinance 37-91 provides, in pertinent part:

"ARTICLE I--TITLES AND DEFINITIONS

"SECTION 1. TITLE

"This ordinance shall be known and may be cited as the 'Litter, Weed and Mud Control Ordinance of the City of Montgomery.'

"SECTION 2. DEFINITIONS

"....

"j. Junk. Any vehicle or vehicle parts, rubber tires, appliances, dilapidated furniture, machinery, equipment, building material or other items which are either in a wholly or partially rusted, wrecked, junked, dismantled, or inoperative condition.

"k. Junked or other vehicle. One that does not bear a current registration license plate and is unable to move under its own power.

"....

"ARTICLE IV--STATIONARY VIOLATIONS

"....

"SECTION 5. INDISCRIMINATE DUMPING OR DISCHARGING OF LITTER, TRASH, JUNK, SOLID WASTE, AND MUD

"a. It shall be unlawful for any person to discard or dump along any street, street median, or road, on or off the right-of-way, any household or commercial solid waste or trash or junk on any private or public property unless disposed of in receptacles provided for public use for the deposit of said material, or in an area designated by the Alabama Department of Environmental Management as a permitted disposal site. Mud at construction activities shall be cleaned without delay from public property. Any person charged with a violation of this section shall be required to appear in municipal court to answer said charge or charges and, upon conviction, shall be fined a minimum of One Hundred Dollars ($100.00) and shall be subject to any other penalties provided in this section.

"b. Cleaning Litter, Weeds, High Grass, or Junk from Open Private Property: The Inspection Department is hereby authorized and empowered to notify the owner of any open or vacant private property within the City, or the agent of such owner, to properly dispose of litter o[r] trash or junk, or mow or cut weeds or grass in excess of twelve (12) inches in height located on such owner's property. The failure, neglect, or refusal of any owner so notified to properly dispose of litter or trash or junk or mow or cut weeds or grass in excess of twelve (12) inches in height within fifteen (15) days after being notified of the adverse condition as provided for in this section shall constitute a violation of this ordinance. In addition, the City of Montgomery is specifically authorized to institute an action in the Municipal Court of the City of Montgomery, Alabama, to abate any public nuisance created by litter, trash, junk, weeds or high grass located on any open or vacant property within the City of Montgomery and the costs of said proceeding and the removal of said litter or trash or junk or abatement of weeds or high grass shall be assessed against the owners of such property.

"Exceptions:

"1. This shall not apply to licensed junk dealers or establishments engaged in the repair, rebuilding, reconditioning, or salvaging of equipment, provided that the work area is screened from public view by a fence, hedge, wall or similar device of sufficient height to provide a visual buffer, and is in compliance with the City's Junk and Zoning Ordinance."

The appellant contends the evidence was insufficient to support her conviction because, she says, she was a licensed junk dealer and there was no evidence that "the work area [was not] screened from public view by a fence, hedge, wall or similar device of sufficient height to provide a visual buffer." The City proved that the appellant had at least three junk vehicles on her property and that she did not have a license to operate a junkyard or an "automobile graveyard." Although there was evidence that the appellant's husband had a license to restore vehicles and to sell automobile parts, there was also evidence that he had "quitclaimed" the property to the appellant on May 28, 1987. Although there was no direct and specific testimony that the area was not "screened from public view by a ... visual buffer," photographs admitted into evidence reveal only a chain link fence around the yard in which the vehicles were located. Furthermore, the testimony of the housing inspector allowed the inference that the area was not properly screened:

"This is an exception that's sometimes used in the event of a licensed junk dealer, in which case the property can be used, all other conditions being met, as a junkyard. But there are certain things that have to be done in order to meet the code for junkyards, such as privacy screening around the property so it is not visible to any residential people or the public traffic. Also I think there is a different license--I think there is a different license you have to get to store junk vehicles. Anything over three vehicles the City considers an automobile graveyard or junkyard, so to speak." R. 6-7.

"In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution." Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, 471 So.2d 493 (Ala.1985). When viewed in the light most favorable to the prosecution, the evidence is at least minimally sufficient to sustain the appellant's conviction.

III

The appellant contends that the ordinance is unconstitutionally vague because she says, it does not adequately warn of the prohibited conduct. Specifically, she asserts that the ordinance "fails to disclose that failure of a licensed establishment to screen the work area from public view constitutes a violation of the ordinance." Appellant's brief at 12. We disagree.

In Chorzempa v. City of Huntsville, 643 So.2d 1021 (Ala.Cr.App.1993), the defendant was convicted of violating Huntsville City Ordinances 90-202 and 73-14 by unlawfully storing "junk" in his yard and illegally parking a "one-ton" van in a residential area. In response to the defendant's argument that Ordinance 90-202 was unconstitutionally vague, this Court held:

" '[V]alidity of an ordinance as to vagueness is measured by whether it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden thereunder.' City of Coral Gables v. Wood, 305 So.2d 261 (Fla.App.1974). Here, the ordinance specifically detailed the offense of storing 'junk' and defined the term 'junk.' The ordinance was not vague. "While some degree of ambiguity inheres in...