State v. RochowiakState v. Rochowiak
KONRAD KUCZAK, Atty. Reg. No. 0011186, 130 West Second Street, Suite 1010, Dayton, Ohio 45402 Attorney for Defendant-Appellant
O P I N I O N
Rendered on the 29th day of May, 2009.
WOLFF, J. (by assignment)
{¶ 1} Stephen A. Rochowiak appeals from his conviction and sentence in Miami County Municipal Court for operating an overloaded vehicle in violation of
{¶ 2} Rochowiak advances two assignments of error on appeal. First, he challenges the
{¶ 3} After he was charged, Rochowiak‘s case proceeded to a bench trial in May 2008. The only witnesses were trooper Timothy Mularcik and inspector Jeffrey Keaser, both of the Ohio State Highway Patrol. Mularcik testified that he observed Rochowiak driving a commercial truck with a double trailer on southbound Interstate 75 in Miami County. He watched the truck weave slightly within its lane and then “cross outside of its lane[.]” As he moved closer to initiate a traffic stop for a marked-lanes violation, Mularcik became suspicious that the vehicle was over the legal weight limit. He noticed movement of the suspension and observed that the trailers had no arc, which indicated a heavy load. After he pulled the truck over for a marked-lanes violation, Mularcik also observed that the truck‘s tires were bulging, indicating a potentially overweight vehicle.
{¶ 4} Mularcik proceeded to obtain Rochowiak‘s shipping papers, log book, and registration. The shipping papers indicated that the truck‘s cargo alone weighed nearly 100,000 pounds. Without a special permit, which Rochowiak did not have, Mularcik testified that the legal weight limit was 80,000 for the truck and loaded trailers. As a result, Mularcik had Rochowiak move a little over a mile to exit 69 at the intersection of Donn Davis Way and County Road 25-A. There he met inspector Keaser and a portable scales team. Mularcik watched as Keaser weighed the truck and loaded trailers. The total weight was 140,400 pounds. Mularcik cited Rochowiak for being 60,400 pounds over the legal weight and for a marked-lanes violation.
{¶ 6} After overruling a Crim.R. 29 motion from defense counsel, the trial court found Rochowiak guilty of the overloaded-vehicle and marked-lane charges and sentenced him accordingly. The trial court stayed the sentence, and this appeal followed.
{¶ 7} Rochowiak‘s first assignment of error states:
{¶ 8} “The Trial Court Committed Prejudicial Error Finding the Defendant Guilty of Violating
{¶ 9} In essence, Rochowiak challenges the legal sufficiency and manifest weight of the evidence to support his conviction for violating
{¶ 10} Our analysis is different when reviewing a manifest-weight argument. When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. A judgment should be reversed as being against the manifest weight of the evidence “only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶ 11} Although Rochowiak purports to challenge the sufficiency and weight of the State‘s evidence, he fails to argue these two challenges separately. In any event, the specific arguments he raises go more to the legal sufficiency of the State‘s evidence. He first contends the State failed to prove that the scales used by inspector Keaser had appropriate seals affixed to them when his vehicle was weighed. This argument implicates
{¶ 12} “Any police officer having reason to believe that the weight of a vehicle and its
{¶ 13} In order to establish an overweight violation, the State must “prove that the scale used in weighing [a defendant‘s] vehicle had affixed to it the type of official seal customarily employed by municipal, county, or state sealers in the performance of their duties[.]” State v. Gribble (1970), 24 Ohio St.2d 85, 88. In Gribble, the Ohio Supreme Court found inadequate an officer‘s testimony that the scales in question “had a seal and a wire through them that they had been checked[.]” Id. at 89. The Gribble court added, however, “that all that need be shown by the prosecution on this point is that the seal affixed to the scale is official and is of the type customarily used by the sealers enumerated in
{¶ 14} In State v. Myers (1990), 63 Ohio App.3d 765, 776 n.5, we opined that “affidavits certifying that the scales used had been properly sealed in conformance with legal requirements” were sufficient to satisfy Gribble. In Myers, “the prosecution offered as evidence certified copies of affidavits from the Ohio Department of Agriculture indicating that the scales used by the State Highway Patrol had been accurately calibrated within the limits set forth by the National Bureau of Standards and the Ohio Revised Code.” Id. at 776. The scales had been
{¶ 15} In the present case, inspector Keaser testified that the scales he used had been checked for accuracy in January. He added that the scales were sealed, and he described the seals as being “metal, small wise uh pea size.” As in Myers, he also presented the trial court with fourteen affidavits, one for each portable scale he used to weigh Rochowiak‘s vehicle. Keaser identified the affidavits, which were admitted into evidence, as being from the Ohio Department of Agriculture, and as applying to the particular scales he used on Rochowiak‘s vehicle. The affidavits established that the scales were tested and sealed within one year of Rochowiak‘s citation. The affidavits indicated that the scales were “found to be appropriate for the intended use [and] to be accurate within the tolerance set forth by the National Institute of Standards and Technology (NIST), United States Department of Commerce.” The affidavits further stated that the inspector “has been properly trained and is duly qualified to perform the accuracy test and seal the device as being accurate and correct.” Based on inspector Keaser‘s testimony and the affidavits, the evidence supports a finding that the scales he used had the appropriate seals affixed to them when he weighed Rochowiak‘s vehicle. We find no merit in Rochowiak‘s first argument.
{¶ 16} Rochowiak next claims the State failed to prove that his vehicle was weighed within three miles of where trooper Mularcik initially stopped it. This argument is equally unpersuasive. Under
{¶ 17} The record does not support Rochowiak‘s allegations. The evidence persuades us that Rochowiak‘s vehicle was weighed within three miles of where it was stopped. Trooper Mularcik testified that he first observed the vehicle on southbound Interstate 75. After observing a marked-lanes violation, he came closer and initiated a traffic stop. The only reasonable inference from this testimony is that he stopped the vehicle on southbound Interstate 75. During the stop, he became suspicious about the vehicle‘s weight. As a result, he called a portable scales team and directed Rochowiak to move his vehicle to a safe location to be weighed. At trial, Mularcik responded to questions from the prosecutor about the move as follows:
{¶ 18} Q: “And did you direct the Defendant to uh move his vehicle at that point?”
{¶ 19} A: “Uh after making contact and getting the confirmation from my portable scales team was coming[,] for safety, um I moved to an area that I‘m familiar with them doing the portable scales weight check at. I moved them from approximately a little over a mile to Exit 69 um near the Circle K BP at the intersection of Donn Davis Way and County Road 25-A.”
{¶ 20} Q: “And as [sic] you meet uh Load Inspector Keaser at that point?”
{¶ 21} A: “I did. * * *.”
{¶ 22} For his part, inspector Keaser testified that he made contact with Rochowiak‘s vehicle on “Park Davis Way,” where he arrived to weigh it. The trial court reasonably could have concluded that Keaser‘s reference to Park Davis Way was an inadvertent misstatement.
{¶ 23} We also reject Rochowiak‘s claim that Mularcik moved the portable scales team a little over a mile, rather than Rochowiak‘s vehicle. As set forth above, Mularcik discussed the move in response to a question about moving Rochowiak‘s vehicle to be weighed. He stated that he moved to an area he was familiar with for safety. He then added: “I moved them from approximately a little over a mile to Exit 69 um near the Circle K BP at the intersection of Donn Davis Way and County Road 25-A.” Mularcik appears to have been explaining, perhaps inartfully, that he had the portable scales team come to his new location, which was a little over a mile from where he made the traffic stop. Nothing in the record suggests that he relocated the portable scales team after it arrived on the scene. The only relevant distance at trial was the distance Mularcik moved Rochowiak‘s vehicle. Based on the evidence presented, the trial court reasonably could have concluded that this distance was less than three miles.
{¶ 24} Finally, Rochowiak contends the State failed to prove that his vehicle had pneumatic tires and, therefore, failed to establish a violation of
{¶ 25} We examined the need for the prosecution to prove the type of tires in State v. Thompson (1999), 135 Ohio App.3d 164. In that case, which also involved an alleged violation of
{¶ 26} “The Ohio General Assembly has identified two types of vehicle tires: pneumatic and solid. See
{¶ 27} “It is clear from a reading of these statutes that they are specific and apply only to vehicles equipped with certain, and different, types of tires. The essence of the offense entails a determination of the type of tire used in order to determine which statute has been violated and under which statute a defendant may be convicted.
{¶ 28} “From our review, we must agree that the record is devoid of any proof as
{¶ 29} Citing Thompson, Rochowiak contends the State failed to prove an essential element under
{¶ 30} Rochowiak‘s second assignment of error states:
{¶ 31} “The trial court committed prejudicial error finding the defendant guilty of a violation of
{¶ 32} In other words, Rochowiak challenges the legal sufficiency and manifest weight of the evidence to support his conviction for violating
{¶ 33} “(A) Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:
{¶ 34} “(1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety.”
{¶ 35} “* * *
{¶ 36} “(3) Official signs may be erected directing specified traffic to use a designated lane or designating those lanes to be used by traffic moving in a particular
{¶ 37} Rochowiak‘s entire argument regarding his conviction for violating
{¶ 38} “The Defendant was observed in ‘Concord Township Miami County, Ohio,’ not a municipal corporation. The state offered no evidence of the number of lanes or that the lanes on Interstate 75 were ‘clearly marked’ or if it was or was not practicable for the Defendant to operate his vehicle within a single lane. Moreover the state offered no proof that the Defendant moved his vehicle from any single lane without ascertaining if he could do so in safety. (Apparently the movement was accomplished in safety, because there was no claim that it was not.) No proof was offered as to the placement of official signs restricting the use of any lane of travel.
{¶ 39} “The best that can be said for the state‘s proof on this issue is that the driving by the Defendant irritated the trooper which hardly rises to the level of proof of a criminal offense beyond a reasonable doubt.”
{¶ 40} Upon review, we find no merit in the foregoing argument, which addresses the sufficiency and weight issues together. As an initial matter, we reject the State‘s argument that Rochowiak waived his challenge to the sufficiency of the evidence to support a conviction under
{¶ 41} The State‘s failure to prove that Rochowiak‘s offense occurred within a municipal corporation is irrelevant. As the State points out,
{¶ 42} As for Rochowiak‘s other arguments, the State had no burden to prove that it was practicable for him to drive entirely within a single lane or that he failed to ascertain the safety of leaving his lane before drifting. The Ohio Supreme Court recently addressed a similar argument in State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. Although Mays involved the constitutionality of a traffic stop for violating
{¶ 43} “Appellant argues that his actions in this case—twice driving across the white edge line—are not enough to constitute a violation of
{¶ 44} “Appellant‘s argument is not persuasive.
{¶ 45} “Appellant further argues that the stop was unjustified because there was no reason to suspect that he had failed to first ascertain that leaving the lane could be done safely or that he had not stayed within his lane ‘as nearly as [was] practicable,’ within the meaning of
{¶ 46} ”
{¶ 47} “* * *
{¶ 48} “* * * [W]hen an officer could reasonably conclude from a person‘s driving outside the marked lanes that the person is violating a traffic law, the officer is justified in stopping the vehicle.
{¶ 50} “In this case, the trooper observed the appellant twice cross the white edge line, and he was reasonable in concluding that the appellant‘s driving was in violation of
{¶ 51} Mays admittedly involved the existence of articulable suspicion and probable cause to justify a traffic stop for violating the marked-lanes statute, whereas the present appeal challenges the legal sufficiency and manifest weight of the evidence to sustain a conviction. The Ohio Supreme Court nevertheless made clear in Mays that ”
{¶ 52} We are inclined to agree that
{¶ 53} Our conclusion that Rochowiak bore the burden of proof on the foregoing issues is consistent with
{¶ 54} In the present case, trooper Mularcik testified that he observed Rochowiak‘s truck “cross outside of its lane[.]” Absent evidence of any exigency that compelled Rochowiak to stray from his lane, Mularcik‘s testimony established a violation of the marked-lanes statute. In light of Mularcik‘s testimony, Rochowiak has failed to demonstrate that his conviction for violating
{¶ 55} Finally, Rochowiak‘s argument about a lack of evidence concerning official signs restricting the use of any lane of travel is misplaced. His argument implicates
GRADY, J., and FROELICH, J., concur.
(Hon. William H. Wolff, Jr., retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Brandon A. Coate
Konrad Kuczak
Hon. Elizabeth Simms Gutmann