State v. Bardhi , 2014 Ohio 1135 ( 2014 )

[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.
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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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