Court of Appeals of Ohio, Second District, Montgomery
NO. 2017-TRD-3894 (Criminal Appeal from Municipal Court)
THOMAS, Atty. Reg. No. 0078255, Attorney for
W. EYTCHESON, P.O. Box 751893, Defendant-Appellant, pro se
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
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
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
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
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
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)
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
Q. Based on what you observed did you believe there had been
a moving violation committed under Ohio law?
Q. And that was for the improper turn correct?
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
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
28} Eytcheson's sixth assignment of error is as
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, ...