[Cite as State v. Hamilton, 2019-Ohio-3702.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                      Court of Appeals No. E-19-013

        Appellee                                   Trial Court No. TRD 190055

v.

Derrick A. Hamilton                                DECISION AND JUDGMENT

        Appellant                                  Decided: September 13, 2019


                                               *****

        Konrad Kuczak, for appellant.

                                               *****

        ZMUDA, J.

        {¶ 1} Appellant, Derrick A. Hamilton, appeals the Huron Municipal Court’s

February 8, 2019 judgment entry convicting him of a violation of R.C. 5577.04. For the

reasons that follow, we reverse the trial court’s judgment.
                                     I. Background

       {¶ 2} On January 16, 2019, during his travel through Erie County, Ohio, appellant

was issued a citation alleging a violation of R.C. 5577.04(E) for exceeding the 80,000

pound gross vehicle weight limit established therein. The matter proceeded to a bench

trial on February 8, 2019, where the following facts were established.

       {¶ 3} On the date appellant was issued the citation, Deputy Nick Mazur of the Erie

County Sheriff’s Department was monitoring traffic on State Route 2 in Erie County. He

noticed appellant traveling westbound on State Route 2. As appellant approached

Mazur’s location, Mazur identified appellant’s vehicle as being “oversized” through its

use of amber warning lights and the presence of an Ohio State Highway Patrol unit

escort. Once appellant’s vehicle passed Mazur’s location, he obtained appellant’s license

plate number and ran it through the Ohio Department of Transportation’s special permit

system to review appellant’s permit to operate an oversized load. In reviewing the

permit, Mazur identified appellant’s approved route of travel. Because Mazur was not

familiar with any locations along the approved route where appellant could deliver the

oversized load, he began to follow appellant.

       {¶ 4} While behind appellant, the deputy noted the load extended past both sides

of appellant’s trailer. He also concluded the vehicle’s tire bulge suggested appellant’s

gross vehicle weight exceeded 80,000 pounds, the limit established in R.C. 5577.04(E).

The deputy followed appellant to the highway intersection of State Route 13 at U.S.

Route 6, identified in the permit as the conclusion of appellant’s approved route. Once

appellant reached this point, he turned right onto U.S. Route 6 heading eastbound. He

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then turned left from U.S. Route 6 onto Tiffin Avenue in the City of Huron, Erie County,

Ohio. Following appellant’s subsequent right turn onto Meeker Street in Huron, Mazur

initiated a traffic stop.

        {¶ 5} During the traffic stop, Mazur weighed appellant’s vehicle using a scale

sealed and certified by the Ohio Department of Agriculture. The scale showed

appellant’s vehicle with a gross weight of 123,600 pounds. Appellant’s special hauling

permit, issued pursuant to R.C. 4513.34, allowed appellant to travel with a gross vehicle

weight of 146,000 pounds. Additionally, it allowed appellant to travel no more than one

mile from the approved route for “food, fuel, rest, or repair.” Mazur’s traffic stop was

initiated within one mile of the last highway intersection identified in the permit’s

approved route. The purpose of appellant’s deviation from the approved route was not

identified at trial.

        {¶ 6} In addition to the one-mile route deviation restriction, appellant was not

permitted to cross any “structures” while traveling away from the approved route. The

permit defines structures as “anything 10 feet wide or greater.” While deviating from the

approved route, appellant crossed over two bridges. The width of either bridge appellant

crossed was not introduced at trial.

        {¶ 7} Based on these facts, and following denial of appellant’s motion for

acquittal, the trial court entered judgment against appellant finding he acted outside his

permit and violated R.C. 5577.04(E) by exceeding the 80,000 pound gross vehicle weight




3.
limit for travel on a highway.1 The trial court ordered appellant to pay a fine and costs

totaling $1,578. Appellant timely appealed and assigns a single assignment of error for

our review:

              The trial court committed prejudicial error by finding the defendant

       guilty without sufficient evidence.

                                  II. Law and Analysis

       {¶ 8} In his sole proposition of law, appellant argues the state failed to provide

sufficient evidence to support his conviction for a violation of R.C. 5577.04(E). “With

respect to sufficiency of the evidence, ‘sufficiency’ is a term of art meaning that legal

standard which is applied to determine whether the * * *evidence is legally sufficient to

support [the verdict] as a matter of law.” State v. Thompkins, 78 Ohio St. 3d 380, 386,

678 N.E.2d 541 (1997). “In essence, sufficiency is a test of adequacy. Whether the

evidence is legally sufficient to sustain a verdict is a question of law.” Id. “In reviewing

a challenge to the sufficiency of evidence, ‘[t]he relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.’”

State v. Walls, 6th Dist. Erie Nos. E-16-027, E-16-028, 2018-Ohio-329, ¶ 69, citing State

v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). “In making that determination,

the appellate court will not weigh the evidence or assess the credibility of the witnesses.”




1
 Neither the denial of appellant’s Crim.R. 29 Motion for Acquittal nor the validity of
asserting the motion during a bench trial are at issue in this appeal.
4.
Id., citing State v. Walker, 55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978). Therefore,

we review the evidence presented by the state at trial to determine only whether that

evidence is sufficient to support appellant’s conviction.

       {¶ 9} R.C. 5577.04(E) provides “the maximum overall gross weight of vehicle and

load imposed upon the road surface shall not exceed eighty thousand pounds.” Operation

of a vehicle “over or upon the improved public streets, highways, bridges, or culverts in

this state” in excess of the maximum weight described in R.C. Chapter 5577 is prohibited

“except upon special permission, granted as provided by section 4513.34 of the Revised

Code.” That section permits the director of transportation, upon written application, to

issue a permit allowing the applicant “to operate or move a vehicle or combination of

vehicles * * * (a) [a]t a size or weight of vehicle or load exceeding the maximum

specified in sections 5577.01 to 5577.09 of the revised code[.]” R.C. 4513.34(A)(1)(a).

       {¶ 10} When granting a special permit under R.C. 4513.34, the director of

transportation “may limit or prescribe conditions of operation for the vehicle[.]” R.C.

4513.34. The failure to comply with a permit’s imposed conditions may result in

criminal penalties for violations of the weight limits established in R.C. 5577.04 despite

the issuance of a permit. See State v. Evans, 89 Ohio App.3d 294, 296-297, 624 N.E.2d

263 (9th Dist.1993) (holding the failure to abide by the terms of a special permit rendered

the permit null and void and subjected defendant to penalties under R.C. 5577.02 to

5577.05); State v. Trinkle, 6th Dist. Lucas No. L-87-266, 1988 WL 76701 (July 22,

1988) (holding compliance with permit conditions precluded a finding of violation of



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weight limitations established in R.C. 5577.04). Here, appellant was convicted of

exceeding the maximum gross vehicle weight limit of 80,000 pounds established in R.C.

5577.04(E). It is undisputed appellant had a special permit issued under R.C. 4513.34 to

exceed that restriction. On appeal, appellant correctly argues that since he was operating

under permit, he could only have been subject to fines and penalties for a violation of

R.C. Chapter 5744 if he violated the conditions for operation of his vehicle as described

in the permit. See Trinkle at 3. Therefore, in order to support a conviction for the

charged violation, the state must have provided sufficient evidence to show appellant did

in fact violate the permit conditions.

       {¶ 11} At trial, the special permit was admitted into evidence without objection.

The relevant language of the permit states:

              The permittee is authorized to exit the permitted route at any State

       Highway intersection for food, fuel, rest, or repair provided that the hauler

       does not travel more than 5,280 feet (1 mile) from the interchange

       (measured as a lane mile from the junction of the off ramp) and does not

       cross under (if permitted height exceeds 13 feet 6 inches) or over any

       structure (structure is defined as anything 10 feet wide or greater). * * *

       By travelling more than 5,280 feet (1 mile) or crossing over or under (if

       permitted height exceeds 13 feet 6 inches) any structure the permittee will

       be considered off route. In the event the permittee travels beyond the one




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       mile limit, crosses a structure within the one mile variance, or violates any

       other provision of the permit, the permittee is in violation and subject to

       applicable fines and penalties.2

It is clear appellant’s special hauling permit conditioned his exemption from R.C.

5577.04 on adherence to these conditions. We turn, then, to the record to determine

whether the state’s evidence at trial was sufficient to support a conclusion that appellant

breached these conditions.

       {¶ 12} A plain reading of the permit reveals three relevant conditions on which

appellant could deviate from the approved route without subjecting himself to applicable

fines and penalties. First, the deviation from the approved route is permissible if it does

not exceed one mile. In his testimony, Mazur conceded appellant’s stop occurred within

one mile of the last highway intersection identified on appellant’s approved route.

Despite this fact, Mazur testified “[t]he permit * * * doesn’t cover movement outside of

your permitted route.” He further testified that once appellant reached the last identified

intersection on the permit, appellant did not have “a permit to go anywhere.” Essentially,

Mazur’s testimony indicates his interpretation of the permit’s language as being any

movement beyond this last identified intersection was not allowed. However, there are

no conditions in the permit that restrict the allowed one-mile deviation from the approved

route only to points along the route but not the ends of the route itself. The state did not


2
  While the permit references violations of other provisions of the permit as subjecting
appellant to applicable fines and penalties, only appellant’s deviation from the approved
route and crossing over a structure were presented at trial as evidence of appellant’s
breach of the permit.
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identify any statute or introduce any other evidence that suggests such a limitation exists.

Without any evidence or testimony indicating the allowed one-mile deviation from the

approved route did not apply to the end of that route, we find no reasonable trier of fact

could find beyond a reasonable doubt that appellant breached the geographic route

deviation condition included in his permit.

       {¶ 13} The second permit condition addressed at trial which appellant could have

violated to subject himself to applicable fines and penalties was deviating from his route

for a reason other than food, fuel, rest, or repairs. The permit clearly establishes these as

the only reasons appellant could have taken the one-mile deviation from his approved

route. The state offered no evidence to show appellant’s deviation was for a reason other

than those specified. When questioned regarding the purpose of appellant’s deviation,

Mazur only testified that he did not know if appellant deviated from his route for

purposes of resting. Not knowing the reason for appellant’s deviation is not sufficient to

show his route deviation breached this condition. Because the state presented no

evidence on this issue, it is clear the state failed to introduce sufficient evidence

supporting this alleged breach.

       {¶ 14} Finally, the permit prohibited appellant, when deviating not more than one

mile from the approved route for a permissible purpose, from crossing any structures.

Mazur testified “structures” as described in the permit included bridges.3 The permit


3
 There is no evidence in the record specifically including bridges as a “structure”
according to the permit. However, the remaining terms of the permit references “going
over” or “passing under” structures on the highway. R.C. Chapter 153 also refers to
bridges as “structures.” Based on this, we conclude the permit’s use of structures
8.
defines a structure as “anything 10 feet wide or greater.” Therefore, in order to show

appellant breached this condition of the permit during his deviation from the approved

route, the state must have provided sufficient evidence he crossed a structure ten feet

wide or greater. Mazur testified he saw appellant cross two bridges during his deviation

from the approved route. However, Mazur offered no testimony regarding the width of

the bridges he observed appellant crossing. As a result, the state offered no evidence

which supports a finding the structures appellant crossed were ten feet or more in width.

Without any such evidence, no reasonable trier of fact could find beyond a reasonable

doubt appellant breached this condition of the permit.

       {¶ 15} In this case, finding a breach of the conditions of operation in appellant’s

permit issued pursuant to R.C. 4513.34 is a necessary element to establish appellant

violated R.C. 5577.04(E). Here, the state failed, even when construing the evidence in a

light most favorable to the state, to present sufficient evidence appellant breached any of

the conditions included in his special hauling permit which would have subjected him to

applicable fines and penalties for any gross vehicle weight violations. As the state failed

to provide sufficient evidence on which appellant’s conviction was based, appellant’s

assignment of error is found well-taken.




includes bridges. This conclusion does not impact our determination on the sufficiency
of the state’s evidence as finding the permit’s use of “structures” did not include bridges
would only further show the state failed to provide sufficient evidence appellant crossed
over a structure as defined in the permit.
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                                  III. CONCLUSION

       {¶ 16} For the foregoing reasons, we find appellant’s assignment of error well-

taken. We therefore reverse the February 8, 2019 judgment entry of the Huron Municipal

Court. When a conviction is reversed for insufficiency of the evidence, further

proceedings for a new determination of guilt or innocence are barred by double jeopardy.

See State v. Lovejoy, 79 Ohio St.3d 440, 450, 683 N.E.2d 1112 (1997); State v. Harris,

6th Dist. Erie No. E-04-034, 2007-Ohio-2397, ¶ 13, citing Burks v. United States, 437

U.S. 1, 14-15, 98 S.Ct. 2141, 57 L.E.2d 1 (1978). Therefore, the judgment of conviction

of the Huron Municipal Court is vacated and the charges against appellant are hereby

dismissed. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.



                                                                      Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.


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