CITY OF NAPOLEON, PLAINTIFF-APPELLEE, v. MARK R. GREEN, DEFENDANT-APPELLANT.
CASE NO. 7-13-17
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
July 21, 2014
[Cite as Napoleon v. Green, 2014-Ohio-3192.]
Appeal from Napoleon Municipal Court Trial Court No. 13TRD1414 Judgment Reversed and Cause Remanded
Alan J. Lehenbauer for Appellant
Trevor Hayberger for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Mark R. Green (“Green“), appeals the Napoleon Municipal Court‘s December 2, 2013 judgment entry convicting him of operating an overweight vehicle on local streets in violation of
{¶2} On July 18, 2013, Napoleon Police Department Officer David Mack (“Mack“) initiated a traffic stop of the commercial truck operated by Green after Mack observed the truck turn off of State Route 108 onto Lagrange Street in Napoleon. (Doc. No. 1). Green was travelling to the Campbell Soup Supply Company. (Dec. 2, 2013 Tr. at 8). Because Green was unfamiliar with the area, he was following the route suggested by his GPS unit. (Id. at 7-8). As such, to travel to the Campbell Soup Supply Company, Green turned off U.S. Route 24 onto State Route 108 South. (Id. at 7). However, State Route 108 South was closed after it intersected with Lagrange Street. (Id. at 10). Because State Route 108 was closed by barricade, Green turned his truck right onto Lagrange Street. (Id. at 10, 12). Green then turned right again onto the first driveway available to him to turn around. (Id. at 12, 14). The driveway Green turned onto is located between a BP gas station and Hill‘s Restaurant. (Id.) A “no trucks” sign was posted just after the Hill‘s Restaurant. (Id.) Mack cited Green for operating his truck “off route” in violation of
{¶4} The trial court held a bench trial on December 2, 2013. (Dec. 2, 2013 Tr. at 2). Plaintiff-appellee, the City of Napoleon (“City“),1 presented the testimony of Mack. (Id.). Mack testified that he was sitting in a private parking lot near Subway on State Route 108 monitoring commercial truck traffic because of complaints of trucks driving “off route” in that area. (Id. at 5-6). Mack testified that he observed Green exit U.S. Route 24 and proceed down State Route 108 past all “no trucks, road closed, [and] road closed at certain distances” signs up to the portion of State Route 108 that was barricaded. (Id. at 6-7). Mack clarified that the “no trucks, road closed, [and] road closed at certain distances” signs that Green drove past were indicating that State Route 108 was closed just after it intersected with Lagrange Street, not that the portion of State Route 108 that Green drove his truck on was closed. (Id. at 10). Mack testified that he further observed Green turn right onto Lagrange Street because he could not proceed any further down State Route 108. (Id. at 10, 12).
{¶5} After Mack testified, the City rested, and Green made a “motion to dismiss.” (Id. at 19). After hearing Green and the City‘s arguments regarding Green‘s motion, the trial court denied Green‘s motion and proceeded to find him1
{¶6} Green filed his notice of appeal on December 24, 2013. (Doc. No. 13). He raises three assignments of error for our review. Because it is dispositive, we address only Green‘s first assignment of error.
Assignment of Error No. I
The trial court erred by not granting appellant‘s motion to dismiss.
{¶7} In his first assignment of error, Green argues that the trial court erred in not granting his “motion to dismiss.” Specifically, Green argues that the City failed to prove beyond a reasonable doubt an essential element of
{¶8} As an initial matter, we note that Green mischaracterized his motion, in his trial and in his assignment of error, as a “motion to dismiss.” Because
{¶10} Here, Green was cited for violating
Except as provided in this section, no person shall operate any truck, commercial tractor (with or without a semitrailer attached) or other motor vehicle, being a gross weight of 10,000 pounds or more upon any street or highway within the City, other than U.S. routes or state routes or the intersections thereof, unless the weight limit for any particular street or highway is otherwise modified by the City.
When a semitrailer is attached to another and separate motor vehicle, then the gross weight shall include the motor vehicle, semitrailer and load for determining gross weight.
{¶11} Green argues that the City was required to prove, beyond a reasonable doubt, that he was operating a truck being a gross weight of 10,000
{¶12} The City concedes that the issue presented by this case may be an issue of first impression—that is, whether a veteran law enforcement officer‘s testimony that he generally knows, through his training and experience, that the
{¶13} We agree with Green and hold that the City failed to establish beyond a reasonable doubt an essential element of the Napoleon Codified Ordinance—that Green was operating a truck being of a gross weight of 10,000 pounds or more. Accordingly, we reject the City‘s argument that this court should accept the unfounded statement that a veteran law enforcement officer knows, through training and experience, that a truck similar to Green‘s would weigh at least 20,000 to 30,000 pounds with no load as sufficient to establish that Green‘s truck was of a gross weight of 10,000 pounds or more.
{¶14} “[T]he general description of the vehicle is insufficient to allow the trier of fact to infer the necessary weight, as the weight of a given semi tractor-trailer is beyond common knowledge.” State v. Myers, 10th Dist. Franklin No. 94AP11-1601, 1995 WL 318755, *1 (May 25, 1995), citing Ohio State Patrol v. Hitt, 11th Dist. Lake No. 92-L-081, 1993 WL 76237, *2 (Feb. 12, 1993) and Cox, 1991 WL 42510, at *1-2. See also State v. Rice, 2d Dist. Clark No. 2000 CA 5, 2000 WL 1369924, *3 (Sept. 22, 2000) (noting that “Ohio courts have determined
{¶15} In this case, the City could have proved the weight of Green‘s truck by, for instance, having Mack testify that he checked Green‘s registration or load tickets to verify that the weight of Green‘s truck was greater than 10,000 pounds. See, e.g., Short, 61 Ohio App.3d at 520. However, because Mack did not verify the weight of Green‘s truck by checking his registration or load tickets or by any other adequate manner, the City, to have Mack testify based on his knowledge of the weight of trucks, needed to elicit testimony from Mack that would properly qualify him to testify as an expert in the weight of trucks to establish that Green operated a truck being of a gross weight of 10,000 pounds or more. (Dec. 2, 2013 Tr. at 15). Specifically, the City was required to establish that Mack‘s training and experience provided him the knowledge that the weight of Green‘s truck was greater than 10,000 pounds. See, e.g., State v. Brooks, 5th Dist. Ashland No. 98-COA-01268, 1999 WL 547441 (June 29, 1999).
{¶17} The testimony Mack provided regarding his training and experience and the weight of Green‘s truck is as follows:
[City‘s Counsel]: In your training and experience would you have the ability to testify to whether or not you believe the defendant‘s truck was over 10,000 pounds of gross weight?
[Mack]: Yes it was.
[City‘s Counsel]: It was over?
[Mack]: Yes, the semi, tractor trailer, yes.
(Dec. 2, 2013 Tr. at 6-7). And, Mack provided the following additional testimony on re-direct examination:
[City‘s Counsel]: In your training and experience would the weight issue be close, was his truck even close to 10,000 pounds?
[Mack]: No sir, it would not have been close.
[City‘s Counsel]: How far off would you estimate?
[Mack]: Through my experience they are upwards in the high 20‘s to low 30‘s empty with no load.
[City‘s Counsel]: Do you know if his had a load or not?
[Mack]: I don‘t recall.
(Id. at 15-16).
{¶18} Mack testified that, based on his training and experience, he knew Green‘s vehicle was over 10,000 pounds; but, there is no indication what training and experience Mack had for him to have such knowledge about the weight of trucks. Mack testified that he had worked for the Napoleon City Police Department since 1996 and, as noted in the trial court‘s judgment entry, the parties stipulated to Mack‘s training and experience. (Dec. 2, 2013 JE; Doc. No. 11); (Dec. 2, 2013 Tr. at 3). However, the parties stipulated to Mack‘s training and experience to be a patrolman, not his training and experience regarding the weight
{¶19} A similar issue was presented in Brooks, 1999 WL 547441. The defendant in Brooks was convicted of speeding in violation of
{¶21} We note that the Second District concluded that a law enforcement officer‘s testimony that “it was his knowledge that tractor-trailers generally weigh ‘well over 8,000 pounds‘” and that “he was certain that the ‘truck and trailer combination’ weighed over 8,000 pounds was sufficient to establish that the vehicle operated by the defendant weighed over 8,000 pounds.” Rice, 2000 WL 1369924, at *3. However, we conclude that the Second District failed to explain how the law enforcement officer gained the knowledge that tractor-trailers generally weigh well over 8,000 pounds. Therefore, the Second District‘s conclusions in Rice are inapplicable to this case.
{¶22} Thus, even though Mack testified that, through his training and experience, Green‘s truck was over 10,000 pounds and that trucks similar to
{¶23} Therefore, Green‘s first assignment of error is sustained.
Assignment of Error No. II
It was an error of law for the trial court to find the appellant guilty of operating an overweight motor vehicle on a local street as the conviction was against the manifest weight of the evidence.
Assignment of Error No. III
The trial court case was procedurally defective and violated appellant‘s due process rights.
{¶24} In his second assignment of error, Green argues that his conviction was against the manifest weight of the evidence. In his third assignment of error, Green argues that his case was procedurally defective because he was not permitted an opportunity to present a complete defense.4
{¶26} Having found error prejudicial to the appellant herein in the particulars assigned and argued in his first assignment of error, we reverse the judgment of the trial court and remand for further proceedings.
Judgment Reversed and Cause Remanded
WILLAMOWSKI, P.J. and ROGERS, J., concur.
/jlr
“Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers at 302.