State v. Stirnkorb

• Decision Date: 04 September 1990
• Docket Number: Nos. CA89-08-076,CA89-11-098,s. CA89-08-076
• Citation: 63 Ohio App.3d 778,580 N.E.2d 69
• Parties: The STATE of Ohio, Appellee and Cross-Appellant, v. STIRNKORB, Appellant and Cross-Appellee. *
• Court: Ohio Court of Appeals

Page 778

63 Ohio App.3d 778

580 N.E.2d 69

The STATE of Ohio, Appellee and Cross-Appellant, v. STIRNKORB, Appellant and Cross-Appellee. ^*

Nos. CA89-08-076, CA89-11-098.

Court of Appeals of Ohio, Twelfth District, Clermont County.

Decided Sept. 4, 1990.

Anthony J. Celebrezze, Jr., Atty. Gen., E. Dennis Muchnicki, Charles R. Dyas, Jr., Philip E. Haffenden and Shane Farolino, Asst. Attys. Gen., Columbus, and Donald W. White, Pros. Atty., Batavia, for appellee and cross-appellant.

Lindhorst & Dreidame, Leo J. Breslin and Steven E. Martin, Cincinnati, Porter, Wright, Morris & Arthur and Richard M. Markus, Cleveland, for appellant and cross-appellee.

PER CURIAM.

Defendant-appellant, John Stirnkorb, appeals from a conviction in the Clermont County Court of Common Pleas on ten counts of illegally disposing of hazardous waste and related charges. The conviction stems from the alleged discharge in 1984 of 27,000 gallons of contaminated water from a hazardous waste holding cell into a tributary of Pleasant Run Creek in Clermont County. At the time of the offenses, appellant was on-site supervisor for CECOS International, Inc. ("CECOS"), which company was licensed to operate a hazardous waste disposal facility in the state of Ohio.

This is not our first treatment of the issues arising out of these facts. See State v. CECOS Internatl., Inc. (May 26, 1987), Clermont App. No. CA86-03-017, unreported, 1987 WL 11595, reversed and remanded in State v. CECOS Internatl., Inc. (1988), 38 Ohio St.3d 120, 526 N.E.2d 807 (regarding discovery of grand jury testimony); State, ex rel. Celebrezze, v. CECOS Internatl., Inc. (Mar. 19, 1990), Clermont App. No. CA90-01-003, unreported, 1990 WL 28680 (regarding the state's discovery of CECOS's internally generated audits in a related civil action); State v. CECOS Internatl., Inc. (Sept. 4, 1990), Clermont App. Nos. CA89-06-049, -050, and -051, unreported, 1990 WL 127212, motion to certify allowed in (1991), 57 Ohio St.3d 705, 566 N.E.2d 169 (regarding double jeopardy issues surrounding state's attempt to retry after declaration of mistrial).

The instant appeal originated in March 1985 with the state's issuance of four twenty-four count indictments against appellant, CECOS, its parent company Browning-Ferris Industries ("Browning-Ferris"), and environmental manager Allan Orth. The indictments charged that the above-named parties had pumped accumulated rainwater from the surface of an uncapped hazardous waste cell into a drainage ditch leading to the Pleasant Run Creek. Trial commenced in October 1988 in the Clermont County Court of Common Pleas.

At the conclusion of the state's case, the state rested, and all four defendants moved to dismiss the action under Crim.R. 29(A). The trial court denied this motion. ¹ Appellant then rested without presenting a defense. His renewed motion to dismiss under Crim.R. 29(B) was also denied. The other defendants, CECOS, Browning-Ferris and Orth, then presented their defenses with the trial court's assurances to appellant that evidence presented by those parties would not affect its disposition of the case against appellant. The action against CECOS, Browning-Ferris and Orth culminated in a mistrial, however. See State v. CECOS (Sept. 4, 1990), supra.

In a one-hundred-eight-page decision released May 15, 1989, the trial court convicted appellant on ten counts of violating hazardous waste and other laws. Specifically, the trial court found appellant guilty under five separate charges, with the violations having occurred on two separate occasions. This resulted in a ten-count conviction.

The trial court found the following violations to have occurred on November 1 and November 6, 1984:

(1) Illegal disposal of hazardous waste under R.C. 3734.02(F);

(2) Illegal disposal of hazardous waste without prior analysis as required under R.C. 3734.11 and Ohio Adm.Code 3745-65-13;

(3) "Illegal pollution," as defined in R.C. 6111.01(A), of water of the state of Ohio, under R.C. 6111.04; (4) Violation of hazardous waste facility and operations permits contrary to R.C. 3734.11; and

(5) Violation of terms and conditions requiring compliance with performance standards of a hazardous waste facility installation and operation permit issued to CECOS under R.C. 3734.11.

In addition, each of these counts was raised under the purview of R.C. 2901.24, which reads as follows:

"(A) An officer, agent, or employee of an organization as defined in section 2901.23 of the Revised Code may be prosecuted for an offense committed by such organization, if he acts with the kind of culpability required for the commission of the offense, and any of the following apply:

"(1) In the name of the organization or in its behalf, he engages in conduct constituting the offense, or causes another to engage in such conduct, or tolerates such conduct when it is of a type for which he has direct responsibility;

"(2) He has primary responsibility to discharge a duty imposed on the organization by law, and such duty is not discharged.

"(B) When a person is convicted of an offense by reason of this section, he is subject to the same penalty as if he had acted in his own behalf."

Upon its determination of guilt, the trial court sentenced appellant to an actual sentence of two consecutive six-month jail terms and four concurrent six-month terms, for a total of one year's imprisonment. In addition, appellant was fined $30,000. However, the court imposed a five-year probation period, an optional one thousand five hundred hours of community service, with six days' credit for each ten hours of service to reduce jail time, and $100 of credit for each ten hours served to be applied toward the fine. Appellant's sentence is the subject of a cross-appeal by the state.

Appellant has timely filed the instant appeal and assigns the following as error:

Assignment of Error No. 1:

"The trial court erroneously denied defendant's motions to dismiss the charges pursuant to Crim.R. 29(A) and 29(B), when the state failed to prove essential elements of the claimed offenses."

Assignment of Error No. 2:

"The trial court erroneously convicted the defendant when the state failed to present sufficient evidence to establish essential elements of the offenses beyond a reasonable doubt."

Assignment of Error No. 3:

"The defendant's convictions are contrary to the manifest weight of the evidence."

Assignment of Error No. 4:

"The trial court expressly relied on findings which do not support the judgment and which lack support from the evidence."

Assignment of Error No. 5:

"Over objection, the trial court erroneously admitted and expressly relied upon inadmissible opinion testimony."

Assignment of Error No. 6:

"The trial court erroneously denied defendant's motion for a new trial, where the state withheld critical exculpatory laboratory evidence despite repeated discovery requests and orders."

I

Appeal By Stirnkorb

A

For his first three assignments of error, appellant essentially charges that the state failed to prove every element of every offense beyond a reasonable doubt resulting in the trial court's error in finding him guilty. Specifically, appellant argues that the state failed to show that (1) he disposed of hazardous waste away from a facility with a hazardous waste disposal permit; (2) he polluted public waters; (3) he violated a hazardous waste facility operations permit; (4) he caused or tolerated an organizational offense for which he could be criminally liable; and (5) he acted recklessly. Because these first three assignments of error rely upon an evidentiary review, we will address the issues they raise together.

Preliminarily, we note that in an appeal questioning the sufficiency or weight of the evidence, we may not reverse "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. Eskridge (1988), 38 Ohio St.3d 56, 59, 526 N.E.2d 304, 307. Our review of the record in the instant action convinces us that substantial evidence was presented to the trial court from which the court could conclude that the state proved its case beyond a reasonable doubt.

First, our reading of the decision of the court below indicates that the court properly considered evidence presented by the state that rainwater pumped from the surface of an uncapped hazardous waste cell was likely to have mixed with the hazardous waste and thus become hazardous waste as well. Appellant argues that soil and water samples taken some days after the pumping did not indicate beyond a reasonable doubt that mixture had occurred; however, the trial court disagreed and found that traces of phenol, toluene, and cyanide in the samples suggested some mixture had taken place.

Moreover, the court properly rejected appellant's assertion that because no harm had apparently resulted from the pumping, the state could not prove hazardous waste had been pumped. The court found that injury was not an element of the offense so that a failure to prove injury did not necessarily indicate that appellant was innocent.

Finally, we agree with the court that the drainage ditch did not constitute part of the disposal site, both under CECOS's operating permit and under a commonsense theory. The state clearly met its burden of showing that the location to which the run-off water was pumped was away from the permitted facility since CECOS was required by law to place hazardous materials only in the storage cells themselves, and not merely at any location as long as it was a part of CECOS's property.

We also believe that the trial court properly found that the state showed that appellant had polluted the waters of the state of Ohio, since according to the definition set forth in R.C. 6111.01, waters of the state can include drainage systems. The trial court determined that since the drainage ditch led to Pleasant Run Creek, it was part...