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State v. Eytcheson

Court of Appeals of Ohio, Second District, Montgomery

May 25, 2018

STATE OF OHIO Plaintiff-Appellee
v.
KELLY W. EYTCHESON Defendant-Appellant

          T.C. NO. 2017-TRD-3894 (Criminal Appeal from Municipal Court)

          NOLAN THOMAS, Atty. Reg. No. 0078255, Attorney for Plaintiff-Appellee

          KELLY W. EYTCHESON, P.O. Box 751893, Defendant-Appellant, pro se

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the July 7, 2017 Notice of Appeal of Kelly Wayne Eytcheson. On May 24, 2017, Eytcheson was cited by City of Kettering patrol officer Shiloh Colon for failure to reinstate a driver's license, in violation of R.C. 4510.21, and failure to wear a seatbelt, in violation of R.C. 4513.263, and he was found guilty following a June 22, 2017 bench trial in Kettering Municipal Court. The court imposed a fine of $150.00 for failure to reinstate, all of which it suspended, and it imposed a fine of $30.00 for the seatbelt violation. After addressing Eytcheson's 15 assignments of error, and reviewing his reply brief, filed April 2, 2018, we hereby affirm the judgment of the Kettering Municipal Court.

         {¶ 2} At the start of the bench trial, the court noted that Eytcheson filed a jury demand, as well as a motion to dismiss. The court advised Eytcheson that "under Ohio law there, and under Federal law, there is no right to a Jury trial in an offense of this nature. Neither of these charges carries the potential for jail time." The court further indicated that it reviewed Eytcheson's motion to dismiss and gave him an opportunity to make additional arguments. Eytcheson responded that "everything that I needed to say was in that motion, " and the court overruled the motion to dismiss. Attached to Eytcheson's motion to dismiss is an invoice for damages he claims were attributable to Officer Colon in the amount of $293, 180.00, and the court noted that "you also have in here what appears to be a demand for damages which is really not before the Court properly so I'm not going to deal with that today."

         {¶ 3} Officer Colon testified that on May 24, 2017, at approximately 1:56 p.m., she observed the driver of a maroon Toyota minivan near the intersection of Woodman Drive and East Dorothy Lane without a seatbelt. She stated that the vehicle "was sitting on Woodman to turn east on Dorothy, " and that as "he followed through the turn he didn't maintain the lane closest to him and went directly into the right lane and then ended up turning into the plaza there." Colon stated that the driver did not signal the right turn into the plaza. She testified that she stopped the vehicle, which was driven by Eytchseon, for the improper turn. Colon stated that in the course of the traffic stop, she learned that the status of Eytcheson's license was "[suspended." Colon stated that she cited him for the seatbelt violation and the failure to reinstate his license, and that she gave him a verbal warning for the improper turn. The officer identified Eytcheson in court as the person she cited, and she identified his certified driving record reflecting the failure to reinstate his license since 1997.

         {¶ 4} The first of Eytcheson's assignments of error is as follows:

THE TRIAL COURT ERRED IN CONTINUING TO ERRONEOUSLY MISIDENTIFY ME, EYTCHESON, KELLY WAYNE [, ] AS A LEGAL FICTION BY UTILIZING AN ALL CAPS MONIKER, EVEN AFTER BEING ADVISED OF THE MISNOMER AB INITIO.

         {¶ 5} Eytcheson asserts that "Officer Shiloh Colon, Prosecutor Nolan C. Thomas, Esq., 'judge' Frederick W[.] Dressel, and Trial Court Recorder one Pamela A. Unger all continued to refer to me as a legal fiction and in all capitals KELLY W EYTCHESON throughout all proceedings, even after being notified by me that it was not my name nor identity." He argues that "since I am not a corporate employee, fictional corporation, liquidated capital, nor any other legal fiction, nor did the prosecution present any evidence to the contrary, reversal with prejudice of the Trial Court's decision is appropriate and requested as a matter of Law since I am not the named defendant." Eytcheson directs our attention to the "Transcript cover page, each filing by the Court and/or it's [sic] officers, and every reference to my comments in the Transcript."

         {¶ 6} As noted above, Officer Colon, in court, properly identified Eytcheson as the driver she observed commit traffic offenses, whom she stopped and cited, and the appearance of Eytcheson's name in capital letters does not constitute trial court error. Identification was definitively established. Whether his name is displayed in lower or upper case is of no legal consequence. This assignment of error is accordingly overruled.

         {¶ 7} Eytcheson's second assignment of error is as follows:

THE TRIAL COURT ERRED IN ERRONEOUSLY BRANDING ME AS A PRO SE LITIGANT AS OPPOSED TO A LITIGANT IN PROPRIA PERSONA.

         {¶ 8} Eytcheson asserts that "[s]ince the Latin Pro Se, indicates that I am advocating on the behalf of a bonded corporate name, and I have never done this, knowingly, intentionally, nor voluntarily, all three [are] required for a bona fide lawful contract to exist." He asserts, "I have always stood in propria persona, Latin for in my proper person. As you know, that means that I am defending myself and not a corporate fiction."

         {¶ 9} According to Black's Law Dictionary, "[p]ro se" means "[o]ne who represents oneself in a court proceeding without the assistance of a lawyer." Black's Law Dictionary 1258 (8th Ed. 2004). "In propria persona" means "in one's own person." Id. at 808. Eytcheson proceeded to trial without the assistance of an attorney. Thus, trial court error is not demonstrated in this assignment of error. Eytcheson's second assignment of error is overruled.

         {¶ 10} Eytcheson's third assignment of error is as follows:

THE TRIAL COURTS MR. DRESSEL ERRED BY DENYING APPELLANT A CONSTITUTIONAL TRIAL BY JURY IN VIOLATION OF CONSTITUTION FOR THESE UNITED STATES.

         {¶ 11} According to Eytcheson, he is "entitled to a Constitutional Trial by Jury according to the Supreme Document of Law of this Land by my birth in this land of the free and home of the brave and not a land of the fee [sic] and home of the slave."

         {¶ 12} R.C. 2945.17(B) provides:

(B) The right to be tried by a jury that is granted under division (A) of this section does not apply to a violation of a statute or ordinance that is any of the following:
(1)A violation that is a minor misdemeanor;
(2) A violation for which the potential penalty does not include the possibility of a prison term or jail term and for which the possible fine does not exceed one thousand dollars.

         {¶ 13} R.C. 4510.21(C)(1) provides that "the offender shall not be sentenced to a jail term, " and "the offender may be fined up to one thousand dollars." R.C. 4513.263 provides that whoever violates R.C. 4513.263(B)(1) "shall be fined thirty dollars, " and the offense is a minor misdemeanor. R.C. 2901.02(G)(2). Eytcheson was not entitled to a trial by jury, and his third assignment of error is accordingly overruled.

         {¶ 14} Eytcheson's fourth assignment of error is as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT[']S FILINGS WHICH DOCUMENTED SUPREME COURT DECISIONS AND POSITIVE LAWS SPECIFICALLY ADDRESSING APPELLANT[']S DEFENSE.

         {¶ 15} Eytcheson asserts that in his fourth assignment of error he "relies on the documentation contained in the identified filings and [sic] are referenced as if fully rewritten and included here." Having determined that Eytcheson was not entitled to a trial by jury, we construe this assignment of error to assert that the trial court erred in overruling Eytcheson's motion to dismiss. Eytcheson asserts that Officer Colon "started the process of penalizing me for the exercise of a Constitutional Right to freely Travel, of which all Justices are keenly aware is unconstitutional especially since no compelling governmental interest was stated nor expressed in evidence at Trial." He further asserts that if "the state converts a right into a privilege and charge [sic] a license and a fee for it the citizen can ignore the license and the fee, and engage in the right with impunity. This means, as you well know, that you cannot punish me for exercising my Constitutional Right, not any of them." (Emphasis sic.) Finally, Eytcheson appears to suggest that Colon violated R.C. 4513.263(D).

         {¶ 16} Eytcheson's arguments are repetitive of those in his motion to dismiss. We note that in overruling Eytcheson's motion to dismiss, the court advised him in part as follows:

* * * And regarding your argument as to the right to the travel that has to be distinguished from the privilege of operating a motor vehicle. Driving a vehicle on a public roadway is only one form of travel. By authorizing states to pass reasonable regulations to control traffic, insure safety that is more [sic] Court cases than you can shake a stick at have held that the State has that authority and it does not violate the Constitutional right of the citizens to travel. * * *

         {¶ 17} "We review de novo a trial court's decision on a motion to dismiss." State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 19 (2d Dist.). "De novo review requires an independent review of the trial court's decision without any deference to the trial court's determination." State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5." State v. Gaines, 2d Dist. Clark No. 2017-CA-67, 2017-Ohio-8906, ¶ 14.

         {¶ 18} In State v. Matthews, 2d Dist. Greene No. 2015-CA-73, 2016-Ohio-5055, ¶ 7, Anthony Matthews asserted that "freedom and movement and travel are 'rights' which cannot be unconstitutionally 'converted' into a governmental privilege by requiring licensure and registration." This Court concluded as follows:

* * * [T]here is no fundamental right to drive a motor vehicle, and a "burden on a single mode of transportation simply does not implicate the right to interstate travel." St. Paris v. Galluzzo [2d Dist. Champaign No. 2014-CA-4, 2014-Ohio-3260] at ¶ 15, quoting State v. Gunnell, 10th Dist. Franklin No 13AP-90, 2013-Ohio-3928, ¶ 13 (which quoted Duncan v. Cone, 6th Cir. No. 00-5705, 2000 WL 1828089 (Dec. 7, 2000)). "The right of a citizen to operate a motor vehicle upon the highways of this state is not a natural or unrestricted right, but a privilege which is subject to reasonable regulation under the police power of the state in the interest of public safety and welfare." State v. Starnes, 21 Ohio St.2d 38, 45, 254 N.E.2d 675 (1970), quoting Blow v. Commr. of Motor Vehicles, 64 N.W.2d 351, 352 (S.D. 1969). Licensure and registration are such reasonable regulations.

Id.

         {¶ 19} Based upon the foregoing, we conclude that the trial court properly distinguished between the right to interstate travel and the privilege of operating a motion vehicle, which is subject to reasonable regulation.

         {¶ 20} Regarding Eytcheson's assertion that Officer Colon violated the seat belt statute, R.C. 4513.263(D) provides:

Notwithstanding any provision of law to the contrary, no law enforcement officer shall cause an operator of an automobile being operated on any street or highway to stop the automobile for the sole purpose of determining whether a violation of division (B) of this section has been or is being committed or for the sole purpose of issuing a ticket, citation, or summons for a violation of that nature or causing the arrest of or commencing a prosecution of a person for a violation of that nature, and no law enforcement officer shall view the interior or visually inspect any automobile being operated on any street or highway for the sole purpose of determining whether a violation of that nature has been or is being committed.

         {¶ 21} Officer Colon did not testify that she made the traffic stop for the observed seatbelt violation. Rather, the following exchange on direct examination by the State establishes Officer Colon's basis for the stop:

Q. *** [S]o if I understand your testimony correctly the left-hand turn instead of continuing left through lane of eastbound Dorothy he turned into the curb lane of eastbound Dorothy?
A. Correct.
Q. Based on what you observed did you believe there had been a moving violation committed under Ohio law?
A. Yes.
Q. And that was for the improper turn correct?
A. Yes.
Q. When you saw that did you make a stop there in the parking lot of that shopping center?
A. Yes I did.

         {¶ 22} Based upon Colon's testimony, we conclude that she did not violate R.C. 4513.263(D). For the foregoing reasons, we conclude that the trial court did not err in overruling Eytcheson's motion to dismiss, and Eytcheson's fourth assignment of error is overruled.

         {¶ 23} Eytcheson's fifth assignment of error is as follows:

THE TRIAL COURT ERRED BY FAILING TO PROVIDE A TRANSCRIPT OF ALL PROCEEDINGS IN THIS INSTANT CASE.

         {¶ 24} Eytcheson argues as follows:

Officer Colon violated her oath of office in looking into my private mode of conveyance to ascertain whether or not I was seatbelted [sic]. She then stopped me for it as she said at the scene. Even though I requested the transcript of all proceedings, the proceedings at the scene were not included, nor was any documentation in the form of audio/video proffered. This prevents me from addressing it precisely to the 2nd District Court of Appeals thereby prejudicing the Appeal against me for lack of proof. * * * [I]f [Officer Colon] is a law enforcement officer, she is presumed to know the law. Instead Mr. Dressel protected her from revealing that she did not know even the statutes she was utilizing to ticket me with. The maxim, Ignorance of the law is no excuse[ ] would be what would undoubtedly have been used against me if I stated that I didn't know some obscure fact of a statute, law, ordinance, etc. However, she was excused and defended by Mr. Dressel not less than 3 times during trial. * * *

         {¶ 25} There is no suggestion in the record that a recording or transcript of Eytcheson's traffic stop exists, and the trial court is only required to provide the transcript of the proceedings that occurred before it for purposes of appeal. See App.R. 9(B). There is also nothing in the record to suggest the State received a written demand for discovery from Eytcheson for any such recording or transcript from the scene, pursuant to Crim.R. 16, which governs discovery. Eytcheson's argument that the trial court failed to provide a transcript lacks merit.

         {¶ 26} Regarding his remaining argument that the trial court "protected" Colon, the record reflects that Eytcheson asked Colon if she was familiar with the definitions provided in R.C. 4501.01, and if they were in conflict with "Bouvier's Law Dictionary in regarding to the definition of driver, " and the court sustained the State's objection, noting, "* * * Her opinions or ability to cite the law off the top of her head or interpret the law, she's not qualified and it's not an issue before the court." The court further indicated, "I dare say very few people know every section of the Ohio Revised Code off the top of their heads without having the code in front of them. So please move along." Eytcheson further asked Colon, "is a [sic] Ohio Revised Code law or is it a statute, " and upon sustaining the State's objection, the court advised Eytcheson that Colon "is not qualified as an expert to testify as to that interpretation of the law."

         {¶ 27} As noted above, Colon clearly testified that she observed Eytcheson commit a traffic violation, namely an improper turn, and that she stopped him for the improper turn and cited him for violations of R.C. 4513.263 and R.C. 4510.21, as reflected on the citation she issued. Eytcheson's argument that the trial court "protected" her lack of familiarity with the law lacks merit. Eytcheson's fifth assignment of error is overruled.

         {¶ 28} Eytcheson's sixth assignment of error is as follows:

THE TRIAL COURT ERRED IN NOT REQUIRING OFFICER COLON TO HAVE PROPERLY "MIRANDIZED" ME IN ACCORDANCE WITH MIRANDA V. ARIZONA 384 U.S. 436 (1966).

         {¶ 29} As this Court has previously noted:

Under the Fifth Amendment of the Constitution, no person can be compelled to testify against himself, and those who are accused have a right to the assistance of counsel. "In light of the inherent coercion involved in custodial interrogation, Miranda established 'a set of prophylactic measures' to safeguard the constitutional privilege against self-incrimination." State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 22, quoting J.D.B. v. North Carolina, 564 U.S. 261, 269, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), which in turn cites Miranda v. Arizona 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
"In broad terms, Miranda held that the state may not use a defendant's statements from custodial interrogation 'unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' " Barker at ¶ 22, quoting Miranda at 444, 86 S.Ct. 1602. "Prior to questioning, the police must warn the suspect 'that he has a right to remain silent, that any statement he does make may be used as evidence against him, ...

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