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

I respectfully dissent from the majority opinion both generally as it concerns the duty of the parties in the preparation and filing of the record, and specifically as it concerns Assignment of Error Two.

Assignment of Error Two states the judgment of the trial court is against the manifest weight of the evidence.

My first concern is with the inaudible portions of the record. In closely reviewing the record, the docketing statement by the appellant indicates the appeal will include a weight of evidence challenge which, pursuant to App.R. 9(B), normally requires that a transcript of all relevant evidence be included. It follows then that if the entire transcript is not to be included, then the appellant must serve on the appellee a description of the parts of the transcript which he intends to include in the record as being relevant.

Loc.R. IV of the Eleventh District Court of Appeals requires that the transcript information, pursuant to App.R. 9(B) to be completed by the appellant, shall indicate what portion of the transcript has been ordered from the court reporter, and also that a copy of said order should be attached. This is necessary to alert not only the court, but the appellee as well. The record before us does not show what part of the transcript was to be prepared. It simply indicates that a partial transcript has been ordered. Although it noted that a copy of the order to the reporter is attached, there is no copy. Inasmuch as the acknowledgment of the court reporter was done only by telephone consent, we have no indication what testimony or whose was to be included in the record. With no copy of the order in the court's record, it is at least debatable as to whether the appellee ever learned from the appellant what portion was to be included.

Assuming, arguendo, that the appellee received a copy of the order, as required, the appellee had the right to assume that the portion transcribed was complete and accurate. It would appear that if a completely accurate partial transcript isunavailable, then App.R. 9(C) should come into play and permit the appellant to initiate appropriate action. This would then give both the appellant and appellee the opportunity to correct the record and to allow for its approval by the trial court. I find absolutely no duty on the part of the appellee to complete the inaudible portions of appellant's partial transcript other than by the above procedure.

Within the limitations of the transcript provided by the appellant, with its numerous inaudible sections of unknown length, I find it necessary to assume the regularity of the proceedings, and not to impose on the appellee a duty to provide the inaudible portions of the transcript. This reasoning is especially pertinent when it is not clear from the record (absence of copy of the order to the reporter) whose or what testimony constituted the partial transcript. The burden, in my opinion, is on the appellant to adequately inform both this court and the appellee what the partial transcript consists of.

The appellee, in the absence of being informed by the appellant as to what portion of the testimony is to be transcribed for the record as required by App.R. 9(B), has no basis for requiring the appellant to furnish additional parts, as permitted by that rule.

The reporter, too, has a duty of compliance with App.R. 9(B)(8), which requires that she (as in this case) shall certify, when it involves a partial transcript (as here), as to the parts included and the parts excluded.

The placement by the majority of the burden of completing the record onto the appellee is, in my opinion, totally contrary to the rule and should not be condoned.

Coming now to Assignment of Error Two, I find the majority's reliance on State v. Dryer (1987), 36 Ohio App.3d 193,521 N.E.2d 842, and State v. Reiger (1978), 63 Ohio App.2d 135, 17 O.O.3d 332, 409 N.E.2d 1037, misplaced. The testimony of the officer at pages seven and eight of the partial transcript and the judgment of the trial court clearly indicate full compliance with R.C. 4513.33. The officer used an eight-foot level and found the area within the tolerance required. The majority opinion states Sergeant Dewey could not testify as to how far apart appellant's truck axles were. That has no bearing on the case where the degree of levelness of the area has been ascertained and found to be within the limits and not to exceed 1/4 inch per foot of the distance between the axles. If an area is level within the tolerance of 1/4 inch per foot, it makes no difference that he could not testify as to how far apart appellant's truck axles were. If the degree of levelness (which was established) is within tolerance, distance between axles could be any distance, even the full length of the vehicle, as long as the difference in elevation between axles being weighed does not exceed 1/4 inch per foot of the distance between said axles.

Determination of levelness with an eight-foot level both between the wheels on any one axle, or between axles, although requiring care, is a relatively simple process. If the level, when placed at random places from end to end or from side to side of the vehicle, does not exceed the limitation of 1/4 inch per foot (or two inches total in the length of the eight-foot level), then compliance with the statute has been had.

R.C. 4513.33 does not detail in what manner the issue of levelness or compliance within the allowable deviation must be ascertained. The majority stated that Sergeant Dewey never said the area was "level." He didn't have to, as levelness is not a requirement as long as the deviation is within the 1/4 inch per lineal foot limitation. Neither is there a requirement that either levelness or permissive deviation be determined by overlapping measurements. Nevertheless, the officer did state the following in response to where he laid the level:

"Under, like I say, the tires were here and I was up under here and another one across and another one across and — (inaudible) — periodic slots across, but they were all within, you know, I did them — (inaudible) — foot lengths."

We are unable to fill in the inaudible portions above. However, as noted earlier, in the absence of knowing what was said, and because of appellant's failure to comply with the appellate rules when weight of the evidence is involved, we must assume the regularity of the proceedings. One can only reasonably conclude from the officer's quote above that the degree of levelness or deviation therefrom was determined by overlapping readings within the eight-foot length of the level used to make the determination.

It should be noted that this dissent is not in conflict with any portion of the syllabus in Reiger, supra, on which the majority has so heavily relied. The third paragraph of that syllabus, as it concerns assignment number two, simply mandates that the elevation measurement and tolerance calculations be performed individually for every vehicle at the time of weighing. In my opinion, the mathematical determination of compliance with the elevation requirements, in this case, comports with the third paragraph of that syllabus.

I would affirm the trial court based on the record before us.