[Cite as Napoleon v. Green, 2014-Ohio-3192.]




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




CITY OF NAPOLEON,

        PLAINTIFF-APPELLEE,                              CASE NO. 7-13-17

        v.

MARK R. GREEN,                                           OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Napoleon Municipal Court
                             Trial Court No. 13TRD1414

                      Judgment Reversed and Cause Remanded

                             Date of Decision: July 21, 2014




APPEARANCES:

        Alan J. Lehenbauer for Appellant

        Trevor Hayberger for Appellee
Case No. 7-13-17


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 Napoleon Codified

Ordinance 339.02(a). For the reasons that follow, we reverse.

      {¶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 Napoleon Codified Ordinance 339.02(a).


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        {¶3} On July 24, 2013, Green filed a written plea of not guilty to the

charge. (Doc. No. 2).

        {¶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 him

1
  The parties and the trial court refer to the plaintiff as the State of Ohio. However, we note that the
plaintiff is actually the City of Napoleon because Green was charged with violating only a Napoleon
ordinance, not a Revised Code section. (See Doc. No. 1).

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guilty of violating Napoleon Codified Ordinance 339.02(a) without allowing him

to present his case-in-chief. (Id. at 21); (Dec 2, 2013 JE, Doc No. 11). In its

judgment entry, the trial court noted that the “[p]arties stipulated that [Mack] had

the proper education and experience” and that Green “had proper notice of the off

truck route and should have seen the proper signing.” (Dec. 2, 2013 JE, Doc. No.

11). The trial court imposed a $75 fine and $97 in court costs. (Id.); (Dec. 2, 2013

Tr. at 21). Green moved for a stay of execution of his sentence pending an appeal.

(Id.); (Id.). The trial court granted Green’s motion. (Id.); (Id.).

       {¶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 Napoleon

Codified Ordinance 339.02(a)—namely, that Green’s truck was of gross weight of

10,000 pounds or more.

       {¶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

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Green’s motion was made at the close of the City’s presentation of evidence, and

because the trial court weighed the evidence presented by the City before denying

Green’s motion, the motion was framed as, and treated as, a motion for acquittal

under Crim.R. 29. See State v. Stout, 3d Dist. Logan No. 8-06-12, 2006-Ohio-

6089, ¶ 11 (“If a motion to dismiss requires examination of evidence beyond the

face of the complaint, it must be presented as a motion for acquittal under Crim.R.

29 at the close of the state’s case.”), citing State v. Varner, 81 Ohio App.3d 85, 86

(9th Dist.1991).2 Nevertheless, Green’s motion had no application in his bench

trial. See State v. Miller, 3d Dist. Seneca No. 13-12-52, 2013-Ohio-3194, ¶ 27, fn.

3. (“‘The purpose of a motion for judgment of acquittal is to test the sufficiency of

the evidence and, where the evidence is insufficient, to take the case from the jury.

In the non-jury trial, however, the defendant’s plea of not guilty serves as a motion

for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29

motion at the close of all the evidence.’”), quoting City of Dayton v. Rogers, 60

Ohio St.2d 162, 163 (1979). Accordingly, we will treat Green’s assignment of

error as challenging the sufficiency of the evidence. Id., citing State v. Tatum, 3d.

Dist. Seneca No. 13-10-18, 2011-Ohio-3005, ¶ 43 and State v. Miley, 114 Ohio

App.3d 738, 742 (4th Dist.1996).




2
 The City refers to, and analyzes, Green’s motion as a motion for acquittal under Crim.R. 29. (See
Appellee’s Brief at 6-7).

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      {¶9} When reviewing the sufficiency of the 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. Jenks, 61 Ohio St.3d 259

(1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

      {¶10} Here, Green was cited for violating Napoleon Codified Ordinance

339.02(a), which provides:

      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.

Napoleon Codified Ordinance 339.02(a).

      {¶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


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pounds or more and that the City did not provide sufficient evidence that the truck

he was operating was of a gross weight of 10,000 pounds or more. In support of

his argument, Green cites State v. Cox, 5th Dist. Ashland No. CA-973, 1991 WL

42510 (Mar. 21, 1991) and State v. Swinehart, 6th Dist. Fulton No. 90FU000015,

1991 WL 192182 (Sept. 30, 1991). In Cox and Swinehart, the respective courts

held that the State failed to meet its burden of proof because no specific evidence

was presented at trial that the respective vehicles operated by Cox and Swinehart

weighed greater than 8,000 pounds—an essential element of the offense. Id. at *2;

Id. at *2. Green also cites State v. Bardhi, 3d Dist. Paulding No. 11-13-05, 2014-

Ohio-1135. In Bardhi, we held that a law enforcement officer’s testimony that the

vehicle driven by the defendant was a “semi” or a “Fed Ex Truck” was insufficient

to establish that the defendant was operating a vehicle in excess of 8,000 pounds.

Id. at ¶ 12, 15. Third, Green cites Brook Park v. Short, 61 Ohio App.3d 519 (8th

Dist.1989). The defendant in Short was convicted of operating an overweight

vehicle on local streets in violation of Brook Park Codified Ordinances Section

339.02. Id. at 520. Short’s conviction was based, in part, on the law enforcement

officer’s verification of the weight of his truck by checking the registration. Id.

       {¶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


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minimum weight of a truck is far in excess of the 10,000 pounds prescribed by the

ordinance and is sufficient to prove that a defendant was operating a truck being of

a gross weight of 10,000 pounds or more. (Appellee’s Brief at 8). Thus, the City

submits that Mack’s testimony, that, based on his training and experience, the

minimum that a truck similar to Green’s would weigh is in the high 20,000 pounds

to low 30,000 pounds without a load, is sufficient to prove that Green was

operating a truck being of a gross weight of 10,000 pounds or more. (Id.).

      {¶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,


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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

that the State must present evidence on the weight of the vehicle under R.C.

4511.21(D)(3)” because the weight of a semi tractor-trailer is beyond common

knowledge).3

         {¶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).
3
  R.C. 4511.21(D)(3) has been amended and removed from the statute. See Am.Sub.H.B. No. 51, 2013
Ohio Laws File 7 and Am.Sub.H.B. No. 59, 2013 Ohio Laws File 25. The former R.C. 4511.21(D)(3)
stated, “(D) No person shall operate a motor vehicle, trackless trolley, or streetcar upon a street of highway
as follows: * * * (3) If a motor vehicle weighing in excess of eight thousand pounds empty weight or a
noncommercial bus as prescribed in division (B)(10) of this section, at a speed exceeding fifty-five miles
per hour upon a freeway as provided in that division.” R.C. 4511.21(D)(3).

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       {¶16} The City did not lay the foundation that Mack had the proper

specialized knowledge, skill, experience, training, or education regarding the

weight of trucks to testify regarding the weight of Green’s truck. A “witness is

qualified as an expert by specialized knowledge, skill, experience, training, or

education regarding the subject matter of the testimony.” Evid.R. 702(B). A law

enforcement officer may qualify as an expert in the weight of vehicles and render

an opinion regarding the weight of a vehicle. State v. Dietrich, 10th Dist. Franklin

No. 96APC07-941, 1997 WL 84651, *2 (Feb. 27, 1997).               “In order to be

admissible under Evid.R. 702, the prosecution must lay a proper foundation

qualifying the police officer as an expert * * * by way of the officer’s job

experience and any special training the officer may have received.” In re Litterst,

11th Dist. Lake Nos. 97-L-135 and 97-L-136, 1998 WL 556326, *5, fn. 3 (June

26, 1998).

       {¶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?


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          [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


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of trucks. (Dec. 2, 2013 Tr. at 3). Accordingly, the City was required to elicit

testimony from Mack regarding his training and experience with the weight of

trucks. The City failed to elicit such testimony.

       {¶19} A similar issue was presented in Brooks, 1999 WL 547441. The

defendant in Brooks was convicted of speeding in violation of R.C. 4511.21(D)(3).

Brooks appealed his conviction, arguing that there was no evidence establishing

the weight of his vehicle. Id. at *1. The Fifth District concluded that the law

enforcement officer testified regarding his knowledge and experience with the

weight of trucks and sufficiently described the weight of Brooks’ truck. Id. at *2-

3. Specifically, the law enforcement officer testified that he was frequently at a

scale house that weighs commercial vehicles and came to know that a tractor and

trailer are generally over 8,000 pounds. Id. Here, however, there is no indication

how Mack knows, through his training and experience, that the type of truck

operated by Green was of gross weight of 10,000 pounds or more. The City

merely asked Mack if he had the ability to testify whether Green’s truck was of a

gross weight of 10,000 pounds more based on his training and experience. The

City did not elicit testimony from Mack regarding what training and experience he

has had that would lend him such knowledge. Moreover, when asked if he had

training and experience regarding the weight of trucks, Mack did not answer the

question.


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       {¶20} This case is also distinguishable from State v. Swinehart, 5th Dist.

Ashland Nos. CA-999 and CA-1000, 1992 WL 238405 (Aug. 27, 1992). In

Swinehart, the Fifth District concluded that the law enforcement officer’s

testimony that the weight of the vehicles operated by the defendants was based on

his 23 years of experience with commercial vehicles. Id. at *3. Here, Mack

testified that he has worked for the Napoleon City Police Department since 1996,

but did not indicate to what extent, if any, he has had experience with commercial

vehicles.

       {¶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


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Green’s would weigh in the high 20,000 pounds to the low 30,000 pounds without

a load, there is no indication what training and experience he has had for him to

have such knowledge. Therefore, we conclude that Mack’s testimony did not

sufficiently establish Green’s truck was of a gross weight of 10,000 pounds or

more. After viewing the evidence in a light most favorable to the City, we

conclude that no rational trier of fact could have found the essential elements of

Napoleon Codified Ordinance 339.02(a) proven beyond a reasonable doubt.

        {¶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


4
  Although we will not address Green’s third assignment of error, we note that a defendant’s right “‘in a
criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s
accusations.’” State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, ¶ 12, quoting Chambers v.
Mississippi, 410 U.S. 284, 294 (1973). See also the Fourteenth Amendment to the U.S. Constitution and
Ohio Constitution, Article I, Section 16. The U.S. and Ohio Constitutions “guarantee[] criminal defendants
a ‘meaningful opportunity to present a complete defense.’” Swann at ¶ 12, quoting Crane v. Kentucky, 476

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        {¶25} In light of our decision to sustain Green’s first assignment of error,

his second and third assignments of error are rendered moot, and we decline to

address them. App.R. 12(A)(1)(c); State v. Davis, 1st Dist. Hamilton No. C-

110620, 2012-Ohio-2642, ¶ 10 (noting that the court’s holding that the defendant’s

conviction was not supported by sufficient evidence rendered moot his argument

that his conviction was contrary to the manifest weight of the evidence).

        {¶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




U.S. 683, 690 (1986). “Few rights are more fundamental than that of an accused to present witnesses in his
own defense.” Chambers at 302.

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