[Cite as State v. Bardhi, 2014-Ohio-1135.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                          CASE NO. 11-13-05

        v.

ARDJAN BARDHI,                                       OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Paulding County Court
                             Trial Court No. 12-TRD-1926

                       Judgment Reversed and Cause Remanded

                            Date of Decision: March 24, 2014




APPEARANCES:

        Erik G. Chappell for Appellant

        Matthew A. Miller for Appellee
Case No. 11-13-05



SHAW, J.

       {¶1} Defendant-appellant Ardjan Bardhi (“Bardhi”) appeals the April 17,

2013, judgment entry of the Paulding County Court, Traffic Division, finding

Bardhi guilty of speeding in violation of R.C. 4511.21(D)(3), a minor

misdemeanor, and ordering Bardhi to pay a $50 fine and court costs.

       {¶2} The facts relevant to this appeal are as follows. On December 12,

2012, Trooper James Foltz of the Ohio State Highway Patrol initiated a traffic stop

of a “Fed Ex” semi he observed driving 67 mph in a 55 mph zone. That semi was

being driven by Bardhi. Bardhi was subsequently cited for speeding in violation

of R.C. 4511.21(D)(3), which required the State to prove that Bardhi was driving

in excess of 55 mph, and that he was driving a vehicle in excess of 8,000 pounds.

       {¶3} On December 20, 2012, Bardhi pled not guilty to the charge, and the

case proceeded to a bench trial. The trial was held on April 8, 2013. At trial, the

State called Trooper Foltz, who testified that he observed Bardhi driving a semi

eastbound on US 24 in Paulding County. Although Trooper Foltz testified that

Bardhi was driving a “Fed Ex truck” or “semi,” he made no further statements at

trial regarding the vehicle’s weight.

       {¶4} Trooper Foltz testified that he was driving in the opposite direction of

Bardhi when he “visually estimated” Bardhi driving above the posted speed limit

of fifty five miles an hour. (Tr. at 8-9). Trooper Foltz testified that he then

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activated his radar and the radar showed that Bardhi was driving 67 mph. (Tr. at

10). Trooper Foltz testified that he then initiated a traffic stop of Bardhi. (Tr. at

13). According to Trooper Foltz, Bardhi admitted that he was speeding but asked

for a warning, as he had a clean driving record. (Tr. at 14).

       {¶5} Bardhi’s counsel then began cross-examining Trooper Foltz regarding

his radar, the calibration, and whether there were any other cars around Bardhi’s

semi at the time Bardhi was clocked for speeding. During the cross-examination,

the courtroom recording stops, and thus the remaining transcript was unable to be

reproduced.

       {¶6} On April 17, 2013, the trial court filed its judgment entry on the

matter, finding Bardhi guilty of speeding in violation of R.C. 4511.21(D)(3). The

court’s judgment entry mentioned that Bardhi was driving a “Federal Express

delivery truck” but it did not make any findings as to the weight of the vehicle.

Bardhi was sentenced to pay a $50 fine and court costs.

       {¶7} It is from this judgment that Bardhi appeals, asserting the following

assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE TRIAL COURT COMMITTED REVERSIBLE ERROR
       WHEN IT FOUND DEFENDANT, ARDJAN BARDHI,
       GUILTY OF R.C. 4511.21(D) DESPITE THE FACT THAT
       THE STATE FAILED TO PROVE EACH AND EVERY
       ELEMENT OF THE OFFENSE BEYOND A REASONABLE
       DOUBT.

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                    ASSIGNMENT OF ERROR 2
       THE TRIAL COURT VIOLATED DEFENDANT, ARDJAN
       BARDHI’S, DUE PROCESS RIGHTS BY RECORDING ON A
       MALFUNCTIONING TAPE RECORDER AND THEREBY
       OMITTING A SIGNIFICANT PORTION OF THE
       TRANSCRIPT.

       {¶8} Due to the nature of the disposition of this case, we elect to address

the assignments of error together.

                      First and Second Assignments of Error

       {¶9} In Bardhi’s first assignment of error, he contends that there was

insufficient evidence to convict him. Specifically, Bardhi contends that the State

did not introduce any evidence of the weight of his vehicle, an essential element of

the charge. In his second assignment of error, Bardhi contends that his due

process rights were violated by the recording malfunction at his trial.

       {¶10} When an appellate court reviews a record for sufficiency, the

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. Monroe, 105 Ohio St.3d

384, 2005–Ohio–2282, ¶ 47, citing State v. Jenks, 61 Ohio St.3d 259 (1991),

superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89 (1997). Sufficiency is a test of adequacy, and the



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question of whether evidence is sufficient to sustain a verdict is one of law. State

v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶11} In this case, Bardhi was cited with violating R.C. 4511.21(D)(3).

This statute has since been amended. However, at the time Bardhi was cited, the

statute read as follows:

       (D) No person shall operate a motor vehicle, trackless trolley, or
       streetcar upon a street or highway as follows:

       ***

       (3) If a motor vehicle weighing in excess of eight thousand
       pounds empty weight * * * at a speed exceeding fifty-five miles
       per hour upon a freeway as provided in that division[.]

R.C. 4511.21(D)(3). Thus, under the statute, there are two elements that the State

is required to prove: (1) that the vehicle weighed in excess of eight thousand

pounds, and (2) that the vehicle exceeded fifty-five miles per hour. State v.

Adkins, 4th Dist. Washington No. 03CA58, 2004-Ohio-2719, ¶ 7.

       {¶12} In this case, there is clear testimony as to the speed element.

However, the only testimony in the record regarding the first element, the weight

of the vehicle, was that Bardhi was driving a “semi” or a “Fed Ex truck.”

Although the video of the stop corroborates Trooper Foltz’s testimony that Bardhi

was driving a semi, Trooper Foltz provided absolutely no testimony as to how

much that semi weighed.


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       {¶13} In State v. Myers, 10th Dist. Franklin No. 94APC11-1601, 1995 WL

318755 (May 25, 1995), the Tenth District Court of Appeals held that testimony

that a defendant drove a “Semi conventional box trailer truck” was insufficient to

prove a vehicle weighed in excess of eight thousand pounds. Further, the court in

Myers stated, “the 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.” Myers citing Ohio State Patrol v. Hitt,

11th Dist. Lake No. 92-L-081, 1993 WL 76237 (Feb. 12, 1993).

       {¶14} Similarly, in Ohio State Patrol v. Hitt, supra, the Eleventh District

Court of Appeals held that where there was testimony that a defendant was driving

a “semi-truck” but no testimony regarding the weight of the semi, the evidence

was insufficient to convict the defendant of a violation of R.C. 4511.21(D)(3).

And, in State v. Adkins, the Fourth District Court of Appeals held that testimony

that a vehicle was a “commercial vehicle, a semi-tractor and trailer” was

insufficient to establish the weight of the vehicle for the purposes of this statute.

Adkins, supra, at ¶ 11.

       {¶15} In this case, Trooper Foltz provided no testimony beyond a general

description of the vehicle. Based on the established case law, we cannot find that




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this evidence was sufficient to find that the semi weighed more than 8,000

pounds.1 Accordingly, Bardhi’s first assignment of error is sustained.

        {¶16} Our holding in the first assignment of error renders Bardhi’s second

assignment of error moot, and we decline to further address it.

        {¶17} For the foregoing reasons Bardhi’s first assignment of error is

sustained, his second assignment of error is rendered moot, and the judgment of

the Paulding County Court is Reversed and Remanded with instructions to

discharge Bardhi on the claim against him.

                                                                           Judgment Reversed and
                                                                                Cause Remanded

ROGERS and PRESTON, J.J., concur.

/jlr




1
 We would note that an officer’s testimony that “[a] tractor and trailer obviously is generally over 8,000
pounds” was found to be sufficient for the trier of fact to determine beyond a reasonable doubt that the
vehicle weighed over 8,000 pounds where the officer testified he was frequently at the “scale house” in
Ashland and was familiar with the weight of commercial vehicles. State v. Brooks, 5th Dist. Ashland No.
98-COA-01268, 1999 WL 547441 (June 29, 1999). Accord State v. Swinehart, 5th Dist. Ashland No. CA-
999, 1992 WL 238405 (Aug. 27, 1992) (wherein an officer’s estimation that a semi-tractor weighed in
excess of 14,000 pounds was also found to be sufficient to sustain a conviction under this statute where the
officer’s estimate was based on the officer having 23 years of experience with commercial vehicles).
However, no such estimation or statement by Trooper Foltz was made in the case before us.

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