State v. Elder , 65 Ohio App. 3d 463 ( 1989 )

This is an accelerated calendar case.

This is an appeal from the Chardon Municipal Court. On May 17, 1988, appellant, James Elder, who was driving a semi-truck tractor, was stopped in the village of Chardon by Sergeant Thomas T. Dewey. Sergeant Dewey had observed that appellant's truckload appeared to be considerably higher than the sideboards of the truck, which is an indication of overload.

Sergeant Dewey also observed, by checking his speedometer, that appellant was going sixty-two m.p.h. in a fifty-five m.p.h. zone.

After stopping appellant, Sergeant Dewey asked appellant whether or not he had any bills or weigh tickets for his load. Appellant replied "no." After climbing on appellant's truck and ascertaining that appellant was carrying coal, Sergeant Dewey called the Chardon Police Department to find out where he could weigh appellant's truck. After locating a scale vehicle, Sergeant Dewey weighted appellant's truck and concluded that the truck was overloaded. Appellant was then charged with a violation of R.C. 5577.04, load limits on highways. However, appellant was not charged with speeding.

After a bench trial on June 10, 1988, the court found appellant guilty. Judgment was entered on June 22, 1988. Appellant filed a timely notice of appeal on July 22, 1988 with the following assignments of error:

"1. The trial court erred in finding the defendant guilty for the reason that the evidence failed to show specific and articulable facts which would have given the arresting officer reason to believe that the weight of defendant's vehicle and its load was unlawful.

"2. The judgment of the trial court is against the manifest weight of the evidence because the arresting officer did not comply with the requirements of Section 4513.33 of the Ohio Revised Code pertaining to the allowable elevation variances between the axles and wheels of the vehicle being weighed on unlevel terrain."

Initially we must deal with the problem of the record before us. The proceedings at the trial court level were tape recorded. Numerous portions of this tape were inaudible. Those inaudible portions are of unknown length. Appellant has the initial responsibility to present enough of a record to support his case. He has done so here. If portions are omitted or unavailable which support appellee's position, then it is up to appellee to provide the same to this court. Appellee did not do so. Thus, we must accept the record as it is before us and the responsibility for any resulting inaccuracies falls upon appellee.

As to the first assignment of error, R.C. 4513.33 provides:

"Any police officer having reason to believe that the weight of a vehicle and its load is unlawful may require the driver of said vehicle to stop and submit to a weighing of it by means of a compact, self-contained, portable, sealed scale specially adapted to determine the wheel loads of vehicles on highways * * *."

In support of his arguments, appellant cites State v. Ehling (1973), 36 Ohio App.2d 155, 65 O.O.2d 248, 303 N.E.2d 914, syllabus, wherein the court held:

"Where, in a trial of one charged with violating R.C. 5577.04 (load limits on highways), no evidence is produced to show that the arresting officer had a reason to believe a vehicle was being operated in an unlawful manner, as required by R.C.4513.33 (weighing of vehicle), a conviction is invalid."

A review of the facts of Ehling show that the record failed to reveal any evidence that the arresting officer had "reason to believe" that the defendant's truck was overloaded.

In State v. Reiger (1978), 63 Ohio App.2d 135, 138-139, 17 O.O.3d 332, 334, 409 N.E.2d 1037, 1041, the court discussedEhling, supra, as follows:

"* * * Appellants interpret Ehling to mean that a patrolman must have reason to believe that a vehicle is overweight before he stops it. We do not agree. Ehling merely held that in light of the plain language of R.C. 4513.33, a patrolman must have reason to believe that a vehicle is overweight before he weighs it. The initial stopping of a vehicle is lawful, even if there is no reason to believe the vehicle is overweight, provided that such stopping is authorized under another statutory or regulatory provision, such as, for example, the stopping of a speeding vehicle, or, as in the instant case, the stopping of a vehicle to conduct a safety inspection.

"* * *

"We must also note that the ``reason to believe' requirement of R.C. 4513.33 is not to be interpreted to mandate a showing of probable cause, as is required to obtain a search warrant. * * *" (Emphasis sic.)

In State v. Wells (1983), 11 Ohio App.3d 217, 221, 11 OBR 340, 344-345, 464 N.E.2d 596, 600-601, the court discussedReiger, supra, as follows:

"In the Reiger case, we held that the ``reason to believe' language of R.C. 4513.33 ``is not to be interpreted to mandate a showing of probable cause, as is required to obtain a search warrant.' State v. Reiger, supra [63 Ohio App.2d], at 139 [17 O.O.3d at 334-335, 409 N.E.2d at 1041]. Nor would ``reason to believe' justify any seizure of a person that amounts, in effect, to an arrest, since it is well-established that a full-blown arrest cannot be justified on anything less than probable cause. See Dunaway v. New York (1979), 442 U.S. 200, 208-212 [99 S.Ct. 2248, 2254-2256,60 L.Ed.2d 824, 832-836]. The trial court was correct in concluding that the statutory requirement of ``reason to believe' and the constitutional concept of probable cause are not the same.

"However, R.C. 4513.33 would not survive constitutional scrutiny if ``reason to believe' permitted stops to be made on anything less than what the Fourth Amendment to the federal Constitution sets out as a ``minimum standard.' ``Reason to believe' is, therefore, tantamount to ``reasonable suspicion,' as that concept has evolved and come to be understood since its inception in Terry v. Ohio (1968), 392 U.S. 1 [88 S.Ct. 1868,20 L.Ed.2d 889, 44 O.O.2d 383]; see, also, Florida v. Royer (1983) [460 U.S. 491, 103 S.Ct. 1319], 75 L.Ed.2d 229." (Emphasissic.)

In this case, Sergeant Dewey testified that prior to stopping appellant, he had observed that the height of appellant's load appeared to be considerably higher than the sideboards of appellant's truck, which is an indication of overload, that appellant was speeding, and that the truck "wouldn't pull the hill to start."

After stopping appellant, but before weighing, Sergeant Dewey observed that appellant's truck springs were bent, which frequently indicates an overload, and that appellant was hauling coal, a substantial payload. These observations are in accordance with Reiger, supra, which held that the officer must have "reason to believe" only before weighing.

Appellant's first assignment of error is not well taken.

In his second assignment of error, appellant argues that the judgment was against the manifest weight of the evidence. Appellant argues that the arresting officer did not comply with the requirements of R.C. 4513.33 pertaining to the allowable elevation variances between the axles of a vehicle being weighed on unlevel terrain.

R.C. 4513.33 provides in pertinent part:

"During determination of weight by compact, self-contained, portable, sealed scales, specially adapted to determining the wheel loads of vehicles on highways, they shall always be used on terrain of sufficient length and width to accommodate the entire vehicle being weighed. Such terrain shall be level, or ifnot level, it shall be of such elevation that the difference inelevation between the wheels on any one axle does not exceed twoinches and the difference in elevation between axles beingweighed does not exceed one-fourth inch per foot of the distancebetween said axles." (Emphasis added.)

In State v. Dryer (1987), 36 Ohio App.3d 193, 521 N.E.2d 842, syllabus, this court held:

"R.C. 4513.33 mandates that elevation measurements and tolerance calculations be performed individually for every vehicle before the vehicle can be properly weighed with portable scales. (State v. Reiger [1978], 63 Ohio App.2d 135, 141, 17 O.O.3d 332, 336, 409 N.E.2d 1037, 1042, followed.)"

In Dryer, the facts show that although the officer "checked and determined the elevation measurements and tolerance calculations for the entire area within which the trucks were to be weighed" he did not know the precise distance between the axles on the defendant's vehicle. The individual elevation measurements and tolerance calculations were not individually performed for that portion of the roadway between the spots where the axles and/or portable scales were located while the defendant's vehicle was being weighed. Dryer, supra,36 Ohio App.3d at 194, 521 N.E.2d at 843. There the court held that because these measurements had not been taken individually, there was insufficient evidence of the defendant's guilt.

In this case, the court, after an extensive colloquy with Sergeant Dewey, found that "the state established beyond a reasonable doubt that the terrain was within the parameters contained within Section 4513.33 of the Ohio Revised Code, specifically that the difference in elevation between the wheels on any one axle did not exceed two inches, and that the difference in elevation between axles being weighed did not exceed one quarter inch per foot of the distance between said axles."

"A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, at syllabus.

This rule is equally applicable in bench trial proceedings in that judgments of conviction and sentence will withstand a weight-of-the-evidence attack where, "after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, the trier of fact could have found that all the essential elements of the offense had been proven beyond a reasonable doubt." State v. Wardlow (1985), 20 Ohio App.3d 1, 2-3, 20 OBR 1, 2-3, 484 N.E.2d 276,278.

We find that the court's judgment was against the manifest weight of the evidence. Although the court questioned Sergeant Dewey extensively in order to ascertain that the requirements of R.C. 4513.33 had been met, Sergeant Dewey could not testify as to how far apart appellant's truck axles were. In fact, Sergeant Dewey testified that he thought that distance to be irrelevant because he was not testing for an axle overload. Sergeant Dewey testified:

"Q. How far apart were the axles on Defendant's vehicle?

"A. Do you mean between here and here?

"Q. Yes.

"A. Irrelevant because this wasn't for an axle overload.

"* * *

"THE COURT: Can you answer it?

"THE WITNESS: I can't answer it.

"THE COURT: Do you have it on your —

"THE WITNESS: No because, like I said the registered distance is between here and here on the tire and it was worn off his tire. The only time this distance is relevant is in an axle overload."

This is important since R.C. 4513.33 prohibits an elevation variance exceeding one-fourth inch per foot of the total distance between axles. Furthermore, Sergeant Dewey testified that he "just put the level down at different spots checking for levelness * * * at random." Again, Sergeant Dewey testified:

"A. I just put the level down at different spots checking for levelness.

"Q. At random?

"A. Yes, at random."

Finally, Sergeant Dewey never said the area was "level," he said "* * * I could testify to the fact that they were within two inches." This is insufficient to establish compliance with R.C. 4513.33 without some testimony indicating that the eight-foot measurements overlapped or were made end to end.

Since the evidence table did not establish that the state met the requirements of R.C. 4513.33, appellant's second assignment of error is well taken.

The judgment of the trial court is reversed and final judgment is entered for appellant.

Judgment reversed.

FORD, J., concurs.

HOFSTETTER, J., dissents.

EDWIN T. HOFSTETTER, J., retired, of the Eleventh Appellate District, sitting by assignment.