[Cite as State v. Brown, 2010-Ohio-4546.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY



STATE OF OHIO,                                           CASE NO. 9-10-12

   PLAINTIFF-APPELLEE,

  v.

JEFFREY E. BROWN,                                          OPINION

   DEFENDANT-APPELLANT.



                    Appeal from Marion County Municipal Court
                            Trial Court No. TRD 0910285

                                     Judgment Affirmed

                          Date of Decision: September 27, 2010




APPEARANCES:

        Jeffrey E. Brown, Appellant

        Jason D. Warner, for Appellee
Case No. 9-10-12



SHAW, J.

       {¶1} Defendant-Appellant, Jeffrey E. Brown, appeals the judgment of the

Marion Municipal Court convicting him of failure to wear a safety belt pursuant to

R.C. 4513.263, and ordering him to pay a fine of $30 plus costs. On appeal,

Brown argues that the trial court erred by denying his motion to dismiss the

citation on the basis that R.C. 4513.263 was unconstitutional; that the State failed

to present sufficient evidence to support his conviction; that his conviction was

against the manifest weight of the evidence; and, that the trial court failed to

conduct a “meaningful review” of his motion. Based upon the following, we

affirm the judgment of the trial court.

       {¶2} In November 2009, a law enforcement officer cited Brown for

failure to wear a safety belt in violation of R.C. 4513.263, a minor misdemeanor,

after executing a traffic stop of his vehicle. Thereafter, Brown entered a not guilty

plea to the citation.

       {¶3} In December 2009, Brown, acting pro se, moved the trial court to

dismiss the citation on the basis that R.C. 4513.263 was unconstitutional pursuant

to the Fifth and Fourteenth Amendments to the United States Constitution, and the

“comparable” provisions of the Ohio Constitution, because it violated his right to

self-determination and privacy, was wholly arbitrary, and was unsupported by any

rational basis.



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      {¶4} In January 2010, following a hearing, the trial court overruled

Brown’s motion to dismiss, found him guilty of failure to wear a safety belt, and

ordered him to pay a $30 fine plus costs.

      {¶5} It is from the judgment overruling his motion to dismiss that Brown

appeals, presenting the following pro se assignments of error for our review.

                            Assignment of Error No. I

      THE TRIAL COURT ERRED AND ABUSED ITS
      DISCRETION BY DENYING THE DEFENDANTS [SIC]
      MOTION TO DISMISS.

                           Assignment of Error No. II

      THE TRIAL COURT ERRED AND ABUSED ITS
      DISCRETION AS OPPOSING COUNSEL FAILED TO
      ESTABLISH A PROPER LEGAL FRAMEWORK FROM
      WHICH SUCH A DECISION COULD BE MADE. THAT
      [SIC] THE DECISION REACHED BY THE TRIAL COURT
      WAS UNSUPPORTED AND CONTRARY TO THE WEIGHT
      OF THE EVIDENCE.

                           Assignment of Error No. III

      THE TRIAL COURT                 ERRED AND           ABUSED ITS
      DISCRETION AS IT                FAILED TO           CONDUCT A
      MEANINGFUL REVIEW.

      {¶6} Due to the nature of Brown’s arguments, we elect to discuss his

second and third assignments of error together.

                            Assignment of Error No. I

      {¶7} In his first assignment of error, Brown contends that the trial court

abused its discretion by overruling his motion to dismiss. Specifically, he argues


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that R.C. 4513.263 is unconstitutional pursuant to the Fifth and Fourteenth

Amendments to the United States Constitution and the “comparable” provisions of

the Ohio Constitution, because it deprives citizens of their rights to make medical

decisions for themselves; because there is no rational basis for the safety belt

requirement; because the statute is arbitrary and selectively enforced; and, because

the statute is overbroad.     The State and Amicus Curiae, the Ohio Attorney

General, respond to Brown’s first assignment of error that other courts in Ohio

have found that the safety belt statute is constitutional; that no court in the nation

has found a state’s safety belt statute to be unconstitutional; that driving a car is a

privilege and not a fundamental right; and, that the safety belt statute is

constitutional because it is rationally related to a valid legislative purpose and is a

constitutional exercise of the state’s power.

       {¶8} Initially, we note that the State points out that Brown failed to

provide transcripts of the proceedings to this Court and argues that, consequently,

we cannot consider his arguments. App.R. 9 requires an appellant to provide the

appellate court with transcripts of the proceedings that are necessary to review the

merits of his appeal.        App.R. 9(B).       However, a determination of the

constitutionality of a statute is a question of law. See State v. Stallings, 150 Ohio

App.3d 5, 2002-Ohio-5942, ¶6; Akron v. Callaway, 162 Ohio App.3d 781, 2005-

Ohio-4095, ¶23. Questions of law are reviewed de novo, an independent review,

without deference to the lower court’s decision. Ohio Bell Tel. Co. v. Pub. Util.


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Comm. of Ohio (1992), 64 Ohio St.3d 145, 147. Because the only issue before us

in Brown’s first assignment of error is a question of law, and because Brown set

forth his legal argument in his motion to dismiss, which is part of the record, we

find that the transcripts of the proceeding are unnecessary for our review of this

argument. Accordingly, we will address Brown’s first assignment of error.

       {¶9} “An enactment of the General Assembly is presumed to be

constitutional, and before a court may declare it unconstitutional it must appear

beyond a reasonable doubt that the legislation and constitutional provisions are

clearly incompatible.” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St.

142, paragraph one of the syllabus.          “That presumption of validity of such

legislative enactment cannot be overcome unless it appear[s] that there is a clear

conflict between the legislation in question and some particular provision or

provisions of the Constitution.” Xenia v. Schmidt (1920), 101 Ohio St. 437,

paragraph two of the syllabus.

       {¶10} A statute may be challenged on constitutional grounds in two ways:

(1) that the statute is unconstitutional on its face, or (2) that it is unconstitutional as

applied to the facts of the case. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-

5334, ¶37, citing Belden v. Union Central Life Ins. Co. (1944), 143 Ohio St. 329,

paragraph four of the syllabus. To mount a successful facial challenge, the party

challenging the statute must demonstrate that there is no set of facts or

circumstances under which the statute can be upheld. Id., citing United States v.


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Salerno (1987), 481 U.S. 739, 745.          Where it is claimed that a statute is

unconstitutional as applied, the challenger must present clear and convincing

evidence of a presently existing set of facts that make the statute unconstitutional

and void when applied to those facts. Id. at ¶38, citing Belden, 143 Ohio St. 329,

at paragraph six of the syllabus.

       {¶11} Here, Brown has argued that R.C. 4513.263 is unconstitutional under

the Fifth and Fourteenth Amendments to the United States Constitution, as well as

the “comparable” provision of the Ohio Constitution. We interpret this language

to mean Section 1, Article I of the Ohio Constitution. Additionally, it appears that

Brown is arguing that the statute is facially invalid.

       {¶12} The Fourteenth Amendment to the United States Constitution

provides, in pertinent part, that:

       All persons born or naturalized in the United States, and subject
       to the jurisdiction thereof, are citizens of the United States and
       of the State wherein they reside. No State shall make or enforce
       any law which shall abridge the privileges or immunities of
       citizens of the United States; nor shall any State deprive any
       person of life, liberty, or property, without due process of law;
       nor deny to any person within its jurisdiction the equal
       protection of the laws.

       {¶13} Additionally, Section 1, Article I of the Ohio Constitution provides,

in pertinent part:

       All men are, by nature, free and independent, and have certain
       inalienable rights, among which are those of enjoying and
       defending life and liberty, acquiring, possessing, and protecting
       property, and seeking and obtaining happiness and safety.


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       {¶14} Despite these guarantees, however, the Supreme Court of Ohio has

recognized that, “‘[u]nder the decisions of the United States, and of this state, it is

held that the inalienable rights given to the citizens of this state in Article I of the

Ohio Constitution, and the equal protection and benefit guaranteed them in that

document as well as in the federal Constitution, do not render the citizens immune

from the operation of the police power.’” State v. Johnson (July 7, 2000), 4th

Dist. No. 99CA29, 2000 WL 1005804, quoting Holsman v. Thomas (1925), 112

Ohio St. 397, 404. Additionally, the Supreme Court has held that operating a

vehicle is a privilege, and not a fundamental right. Maumee v. Gabriel (1988), 35

Ohio St.3d 60, 62-63.

       {¶15} Multiple courts in Ohio have examined R.C. 4513.263 and have

determined that the statute is a constitutional exercise of the police power and does

not violate the Due Process Clause. See State v. Bigley, 9th Dist. No. 02CA0017-

M, 2002-Ohio-4149, ¶11, fn. 1; Johnson, supra; State v. Bradfield (August 10,

1990), 6th Dist. No. S-89-33; State v. Batsch (1988), 44 Ohio App.3d 81, 82. In

Batsch, the Eleventh Appellate District examined an argument similar to Brown’s

and concluded that R.C. 4513.263 was not an unreasonable extension of the police

power or in violation of the Due Process Clause. In reaching its conclusion, the

Eleventh District reasoned that:

       the wearing of a seat belt secures a driver in his seat making it
       easier for him to retain control of his motor vehicle and thus


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       reducing the chances that sudden emergencies on the road may
       cause him to lose control of his vehicle and collide with other
       vehicles.

Batsch, 44 Ohio App.3d at 82. See, also, State v. Krohn (Oct. 18, 1996), 11th Dist.

No. 96-G-1970, 1996 WL 648735.

       {¶16} We concur with the Fourth, Sixth, Ninth, and Eleventh Appellate

districts and find that R.C. 4513.263 is constitutional for the reasons set forth in

Batsch. In doing so, we find the quotation from the Batsch decision set forth

above to be particularly persuasive in that it demonstrates that the seat-belt law

does not merely implicate the personal freedom and “rights” of the person

choosing not to wear the belt, but also impacts the personal safety and welfare of

other citizens, drivers, and pedestrians who are placed in harm’s way by virtue of

the appellant’s choice not to wear his own safety belt. Consequently, we find that

the trial court did not err in overruling Brown’s motion to dismiss and in

convicting him of failure to wear a safety belt.

       {¶17} Accordingly, we overrule Brown’s first assignment of error.

                        Assignments of Error Nos. II and III

       {¶18} In his second assignment of error, Brown contends that the trial

court abused its discretion by overruling his motion to dismiss because the State

failed to demonstrate the constitutionality of R.C. 4513.263 by use of any legal

authority, making the trial court’s decision unsupported by sufficient evidence and

against the manifest weight of the evidence. In his third assignment of error,


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Brown contends that the trial court erred and abused its discretion because it failed

to conduct a “meaningful review” of his case, as the only response from the bench

was the statement “motion denied” and the corresponding notation on the

judgment entry.

         {¶19} In response to Brown’s second and third assignments of error, the

State again points out that Brown failed to provide transcripts of the proceedings

to this Court, and that, consequently, we cannot consider these assignments of

error. As stated in our analysis of Brown’s first assignment of error, under App.R.

9(B), the appellant bears the burden of furnishing a record to the appellate court

that sufficiently discloses the error of which he complains. See State v. Deal, 3d

Dist. No. 5-08-15, 2008-Ohio-5408, ¶7. In his second and third assignments of

error, Brown has made arguments specifically relating to the hearing on his

motion to dismiss. As he has not provided this Court with a transcript of the

hearing necessary to resolve these assignments of error, we must presume validity

of the lower court’s proceedings and affirm. See App.R. 9(B); Knapp v. Edwards

Laboratories (1980), 61 Ohio St.2d 197, 199.

         {¶20} Accordingly, we overrule Brown’s second and third assignments of

error.

         {¶21} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed


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PRESTON, J., concurs.

/jnc

ROGERS, J., dissents.

       {¶22} I respectfully dissent from the opinion of the majority.

       {¶23} Section 1 of the Fourteenth Amendment to the United States

Constitution guarantees that “[a]ll persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws.”

Additionally, Section 1, Article I of the Ohio Constitution guarantees citizens the

inalienable rights of “enjoying and defending life and liberty, acquiring,

possessing, and protecting property, and seeking and obtaining happiness and

safety.”

       {¶24} The term “liberty,” as used in Section 1, Article I of the Ohio

Constitution, has been defined as “‘the right of man to be free in the enjoyment of

the faculties with which he has been endowed by his Creator, subject only to such

restraints as are necessary for the common welfare.’”        Preterm Cleveland v.

Voinovich (1993), 89 Ohio App.3d 684, 691, quoting Palmer v. Tingle (1896), 55

Ohio St. 423, 441; see, also, State v. Betts (1969), 21 Ohio Misc. 175, 177.


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       {¶25} In Betts, supra, to which Brown refers in his appellate brief, the

Franklin County Municipal Court found unconstitutional R.C. 4511.53, which

required motorcyclists travelling on a highway to wear a helmet and protective

eyewear. The court reasoned that the only discernible risk to the public welfare

was that a motorcyclist could be struck on the bare head by an object, lose control

of his motorcycle, and become a hazard to other users of the highway, 21 Ohio

Misc. at 182-83, and that this risk was, at best, remote. As the public risk was

very remote, the Betts court reasoned that the statute bore no substantial relation to

the public health, safety, morals, or general welfare, and, consequently, was

beyond the police power and in conflict with the Fourteenth Amendment to the

United States Constitution and Section 1, Article I of the Ohio Constitution.

       {¶26} I would find that the statute requiring use of safety belts similarly

bears no substantial relation to the public health, safety, morals, or general

welfare. I do not find that the possibilities that the use of safety belts could save

taxpayer money by preventing long-term care of injured persons at taxpayer

expense, or that it could possibly prevent collisions by making it easier for a driver

to retain control of his vehicle in an emergency are substantial enough reasons to

invoke a proper exercise of the state’s police power at the expense of individual

liberty.

       {¶27} There is no constitutional mandate that the state accept responsibility

for the health care of individuals injured by their own actions or inactions.


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Therefore, to impose a limitation on individual freedom of action that has not and

cannot be scientifically justified is unreasonable.       Further, to accept the

proposition that the use of safety belts might make it easier for the driver to

maintain control of the vehicle during an emergency requires an incredible amount

of speculation in which the courts should not engage.

       {¶28} As quoted in Betts, “‘[t]here is too much nonsensical regulation of

purely personal affairs in to-day’s government. Liberty is almost unknown. You

are permitted to take it in homeopathic doses when administered by some

commission or court, but what that measure of liberty may be you cannot tell until

this court decides. It is high time we were going back to the Constitution, instead

of going back on the Constitution.’” 21 Ohio Misc. at 184, quoting Celina &

Mercer Cty. Telephone Co. v. Union-Center Mut. Telephone Assn. (1921), 102

Ohio St. 487, 523 (Wanamaker, J., dissenting). Interestingly, Judge Riley in 1969

noted the above quote from 1921. What would our predecessors think of our

United States today?

       {¶29} Finally, I would note that the thoughtful and well-written Betts

decision related to the statute mandating use of helmets by the operators of

motorcycles, which was quickly repealed. Surely any danger of physical injury is

much more obvious to motorcyclists than to drivers of automobiles who are

surrounded by tons of metal and safety equipment, which today includes air bags.

This leads me to the conclusion that, if helmets are not required for motorcyclists,


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safety belts should not be required for automobiles; and that such requirements are

politically motivated, not scientifically justified.




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