State v. Eytcheson , 2018 Ohio 2036 ( 2018 )

[Cite as State v. Eytcheson, 2018-Ohio-2036.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27650
:
v. : T.C. NO. 2017-TRD-3894
:
KELLY W. EYTCHESON : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of May, 2018.
...........
NOLAN THOMAS, Atty. Reg. No. 0078255, 2325 Wilmington Pike, Kettering, Ohio 45420
Attorney for Plaintiff-Appellee
KELLY W. EYTCHESON, P.O. Box 751893, Dayton, Ohio 45475
Defendant-Appellant, pro se
.............
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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
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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 “[s]uspended.” 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
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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
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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 COURT’S 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:
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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
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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),
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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
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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
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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
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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
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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, and that he has a right to the presence of an attorney, either
retained or appointed.’ Id. * * *
State v. Flores-Lopez, 2017-Ohio-690, 85 N.E.3d 534, ¶ 30-31 (2d Dist.).
{¶ 30} As this Court has further noted, “ ‘[a] police officer may lawfully stop a
vehicle, motorized or otherwise, if he has a reasonable, articulable suspicion that the
operator has engaged in criminal activity, including a minor traffic violation.’ State v.
Roberts, 2d Dist. Montgomery No. 23219, 2010-Ohio-300, ¶ 14.” State v. Brown, 2d
Dist. Montgomery No. 25204, 2012-Ohio-5532, ¶ 9. Here, Eytcheson was properly
stopped for an improper turn.
{¶ 31} As this Court further noted in Brown:
The United States Supreme Court has held that the “noncoercive
aspect of ordinary traffic stops prompts us to hold that persons temporarily
detained pursuant to such stops are not ‘in custody for the purposes of
Miranda.” Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82
L.Ed.2d 317 (1984). Therefore, routine roadside questioning of a driver
during an ordinary traffic stop does not constitute a custodial interrogation
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requiring Miranda warnings. Id.; Pennsylvania v. Bruder, 488 U.S. 9, 10,
109 S.Ct. 205, 102 L.Ed.2d 172 (1984).
Id., ¶ 10.
{¶ 32} Eytcheson was not in custody for purposes of Miranda, and Colon was
accordingly not required to advise him of his Miranda rights. Eytcheson’s sixth
assignment of error is overruled.
{¶ 33} Eytcheson’s seventh assignment of error is as follows:
THE TRIAL COURT ERRED IN INFORMING ME NO LESS THAN
10 TIMES THAT I WOULD BE ABLE TO MAKE MY ARGUMENT IN MY
CLOSING. HE THEN GAVE ME A TIME LIMIT SO I COULD NOT FULLY
EXPRESS MY ARGUMENTS.
{¶ 34} According to Eytcheson, “Mr. Dressel exhibited prejudicial damage to me
with respect to my closing arguments.”
{¶ 35} As noted by the Seventh District:
* * * Closing arguments provide the defense with an opportunity to
summarize the evidence and serve as a “basic element of the adversary
factfinding process.” [Herring v. New York, 422 U.S. 853, 858, 95 S.Ct.
2550, 45 L.Ed.2d 593 (1975).] Accordingly, the defendant cannot be
denied the opportunity to make a closing argument even if the matter is a
bench trial that appears “open and shut” at the close of the evidence. Id.
at 862-863. However, although the defendant must be afforded an
opportunity to make a closing argument and is afforded wide latitude in
making such an argument, a trial judge retains discretion to limit the duration
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and scope of closing arguments. Id.; Pang v. Minch (1990), 53 Ohio St.3d
186, 194. Thus, a trial judge’s limitation on closing arguments will not be
reversed absent an abuse of discretion. Pang, 53 Ohio St.3d at 194.
State v. Glasure, 7th Dist. Carroll No. 724, 2000 WL 748137, *2 (May 23, 2000).
{¶ 36} As this Court has noted:
Generally, “ ‘abuse of discretion occurs when a decision is grossly
unsound, unreasonable, illegal, or unsupported by the evidence.’ ” Id.(quoting State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671, 959
N.E.2d 1082, ¶ 16 (2d Dist.)). A “decision is unreasonable if there is no
sound reasoning process that would support that decision.” Id. (citing State
v. Jones, 2d Dist. Montgomery Nos. 25315 & 25316, 2013-Ohio-1925, 2013
WL 1944001, ¶ 32; State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-
Ohio-5803, 2014 WL 7463132, ¶ 7). When “applying [this] standard, an
appellate court may not merely substitute its judgment for that of the trial
court.” Id. (citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d
1301 (1990)).
State v. Keller, 2017-Ohio-2609, 90 N.E.3d 176, ¶ 6 (2d Dist.)
{¶ 37} The following exchange occurred in the course of Eytcheson’s closing
argument:
COURT: * * * All right Mr. Eytcheson. Go ahead and sum up your
case.
EYTCHESON: This case is about those two charges that are listed
on citation number K00059898 but it goes further than that.
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Notwithstanding that you have overruled that entire document you cannot
overrule the Constitution for United States Article VI, Section II; Article I;
Amendment I through X; which are the Bill of Rights an integral [sic]. Our
rights to the Constitution shall remain un-infringed and unrestricted totally
by not only the Constitution by Marbury versus Madison. I have relied upon
those two plus Shapiro versus Thompson 394 U.S. 634 settled in 1969 and
not overturned at any time which specifically states that in moving from
jurisdiction to jurisdiction we exercise a Constitutional right, and any
classification which penalizes the exercise of the right, unless shown to be
necessary to promote a compelling governmental interest, is
unconstitutional. And the burden of showing that compelling governmental
interest is not mine, nor to prove a negative, which is really kind of
impossible. That has not been demonstrated by the Prosecution at all.
Further the Court long ago recognized that the nature of our Federal Union
and our Constitution [sic] concepts of personal liberty unite to require that
all citizens be free to travel through the length and breadth of our land
uninhibited by statues [sic], rules, regulations, policies, procedures and
practices which unreasonably burden or restrict this movement. And while
I don’t have the case citing for you at this time it is well understood that
that’s another Supreme Court decision as stated if there is no injured party
there can be no criminal charges.
COURT: Okay.
EYTCHESON: To me it is blatantly clear that the Constitutional
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rights may not be infringed abridged or abrogated by anyone without
committing an unconstitutional act against one exercising those
Constitutional rights.
COURT: Okay. Thank you.
EYTCHESON: Excuse me?
COURT: Thank you. You’re repeating . . .
EYTCHESON: I’m not finished sir.
COURT: You [sic] repeating everything that I’ve already ruled on.
EYTCHESON: I’m not finished sir.
COURT: Well you’ve got three minutes so get going.
EYTHCHESON: I’m not aware of any time constraint that I have to
have things said by.
COURT: Okay. Well I’ve just put a time constraint on you. You’re
repeating the same arguments over and over. So wind it up.
EYTCHESON: Murdock versus Pennsylvania 319 U.S. 105, settled
in 1943, the Court held a state may not impose a charge for the enjoyment
of a right granted by the Federal Constitution. The Constitution of the
United States. Thus it may not exact a license tax for the privileges of
carrying on interstate commerce. In addition to that Shuttlesworth versus
City of Birmingham Alabama, 373 U.S. 262 and also settled in 1963, the
Court held that if the State converts a right into a privilege, there’s a
distinction there between one and the other, and charge a license and a fee
for it the citizen can ignore the license and the fee, and engage in the right
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with impunity. That means you cannot punish me for engaging in that right.
Black’s Law Dictionary describes willful. And it specifically states that it is,
it is a common understanding that willful also means malicious or with evil
intent. I did nothing willfully or with evil intent. One of the three
requirements that Mr. Thomas the Prosecutor has to do is to prove
willfulness. But since I have relied on the Constitution and previously
settled and shephardized well-established cases from the United States
Supreme Court I have a perfect defense against willfulness since I have not
willfully done an evil or malicious act. I have not been afforded the
opportunity to face my accusers. Officer Colon makes one statement but
she didn’t say in any way that she was an injured party. Not in her[ ]
testimony, not by the Prosecution.
COURT: One minute sir.
EYTCHESON: Am Jur 16, Volume 16, Second Edition, at Sections
97, 114 to 117, Section 165, Section 256, 257, and 260, all basically say
that if there is something that is something [sic] that is repugnant to the
Constitution which I understand that nobody wants to admit; but if there’s
something that is repugnant to the Constitution it is null and void ab initio.
Latin terms for at its inception as I’m sure you’re well ware. Title 18, U.S.
Code, Section 2381, as the Prosecutor brought up and asked me about.
Yes it does states [sic] there that someone who violates the rights of the
American people should be taken to the nearest busy intersection upon
conviction of that, taken to the nearest busy intersection and hung by the
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neck until dead, their body to lie in state there, at there [sic] hung until dusk.
It does say that.
COURT: Okay. Well we’re . . .
EYTCHESON: I do not believe that that is an appropriate action for
what she has done. However that’s what the law says.
COURT: Okay. I’m glad you don’t believe that but we’re, we’re,
you have ten second[s]. So get your last thought out.
EYTCHESON: I was never advised of my rights according to
Miranda versus Arizona settled in 1966. And based on that and that the
Ohio Revised Code she admits to stopping me because of . . .
COURT: Okay.
EYTCHESON: . . . she, her observance in the car, which is a violation
of your own Ohio Revised Code. Fruit of the poisoned tree means that the
fruit born from that tree is also poison. And that is a . . .
COURT: Okay. Well Mr. Thompson any response. You get the
last word?
{¶ 38} We see no abuse of discretion in the municipal court’s limitation of
Eytcheson’s closing argument. The authorities cited by Eytcheson and the arguments
advanced by him were repetitive of those in Eytcheson’s motion to dismiss, which the trial
court previously considered and properly overruled. The trial judge provided Eytcheson
ample leeway during closing, as the court did throughout trial. Eytcheson’s seventh
assignment of error is overruled.
{¶ 39} Eytcheson’s eighth assignment of error is as follows:
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THE TRIAL COURT ERRED WHEN MR. DRESSEL WOULD NOT
ALLOW ONE OF TWO DOCUMENTS WHICH ARE ALLOWED UNDER
YOUR ORC 4513.263 ¶ (C) TO BE USED AS JUSTIFICATION FOR NOT
WEARING A SEATBELT/SHOULDER HARNESS WHILE MANIPULATING
THE CONTROLS OF A MODERN MODE OF CONVEYANCE. MR.
DRESSEL ALSO MADE THE PREJUDICIAL STATEMENT THAT THIS
DOCUMENT WAS NOT RELEVANT TO THE CHARGES WITHOUT EVER
READING THE DOCUMENT AMOUNTING TO VIOLATION OF MY
RIGHTS TO DUE PROCESS.
{¶ 40} According to Eytcheson, in “attempting to provide evidence to the Trial
Court which would aid in my defense of the charges against me, Mr. Dressel prevented
me from doing so due to the Prosecutor’s objection to its admission.”
{¶ 41} The following exchange occurred at trial:
THE COURT: * * * You want to tell me anything more about the
facts that happened? What happened out there?
EYTCHESON: After she gave that to me at some point she had
called for backup and another car arrived. Not a problem or [sic] all.
Whether it’s one or it’s fifty people in there it doesn’t matter. Because I did
not believe in any way shape or form as I have for over twenty plus years
that I was required to have a driver’s license from the State of Ohio,
particularly when I am no longer a resident of the State of Ohio. Because,
you want me to do that later so I will deal with that later. I would also submit
to this Court in accordance with your Ohio Revised Code a document from
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my chiropractor which identifies why I was not wearing a seatbelt. And that
happens to be that when I was in the hospital for my diabetic coma and my,
my surgical amputation the hospital also discovered that I needed a cardiac
ablation and in preparation for that particular procedure they had to get
nuclear pictures and so I was taken down to nuclear medicine. They
transferred me from my hospital bed which has nothing to do with the
citation specifically except that it has to do with why I don’t wear a seatbelt.
Because of that . . .
THE COURT: Okay.
EYTCHESON: Because of that process when they were
transferring me from my hospital over to the nuclear med table to get the
nuclear pictures of what was going on in my heart from a chemical stress
test they were doing, five people picked me up and started to slide me over
even though the slide board was right next to them, they chose not to do it
thinking they had enough people to transfer me over without using that. The
two people that were on the leading edge or pulling me toward them, they
used it as a drag sheet and drug me straight across. The three people on
the trailing end or the side that they would be picking up and pushing it over,
they did their job. But the two that were pulling did not lift me up. The
height of my bed and the height of their table, which was a solid table; not
just a bed with a mattress on it, was about six or eight inches higher. When
they pulled me over they slammed my back, my whole spine into that table.
I instantain [sic] . . . we all heard a big crack and everything went silent
-21-
except me screaming and hollering.
COURT: And when did this happen?
EYTCHESON: This happened on the 25th of August in 2012 sir.
COURT: Okay.
EYTCHESON: Since then other than six times that my chiropractor
has had me numb free which shows that it had to do with the alignment of
the spine, six times since that time I have been numb free completely in my
body. But other than those specific times which lasted only for a few
minutes I have been numb in my hands, in my forearms from somewhere
on my femur on both legs, bilaterally from there to my toes. I don’t have
feeling in my feet at all. So that is the situation. Now in regards to that
when I have any pressure . . .
THOMAS: Judge. Judge I’m gonna object and ask the Court
to . . .
COURT: I think that you’re getting way off on a tangent. I
understand you may have some medical issues. They may feed into
whether or not you’re comfortable wearing a seatbelt. But it’s really far
beyond the scope of the trial. Okay. I mean if you want, if your summary
is you’ve endured this medical issue and as a result you have pain and
numbness and that’s why you don’t wear a seatbelt then that’s fine. But I
don’t think that getting into all the details of, of your medical history is really
relevant other than for that purpose. So . . .
EYTCHESON: Sir I do believe that it’s relevant for the fact that this
-22-
is a statement from my chiropractor which I would like to enter in as
evidence. The Prosecutor has seen this. Not during trial but prior to trial.
Would you like to take a look at it Mr. Thomas?
THOMAS: I have seen it your Honor. I’d object to its admission.
COURT: And, and, and I’m going to sustain the objection sir,
because it’s not relevant to this, to the charges here.
EYTCHESON: When my hands go numb; when I have the slightest
pressure on my chest I don’t think that someone behind the wheel with
numb hands is a good idea particularly.
COURT: Well sir maybe what you’re saying [is] that you shouldn’t
be driving if you have this condition. I don’t know.
{¶ 42} As this Court has previously noted, “[t]rial courts have discretion over the
admission or exclusion of evidence, and we review the court’s decision for abuse of
discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of
the syllabus.” State v. Dyer, 2017-Ohio-8758, __ N.E.3d __, ¶ 24 (2d Dist.).
{¶ 43} R.C. 4513.263 provides in part: “(B) No person shall do any of the
following:
(1) Operate an automobile on any street or highway unless that person is wearing all of
the available elements of a properly adjusted occupant restraining device * * *.”
{¶ 44} R.C. 4513.263(C) provides in part:
Division[ ] (B)(1) of this section [does] not apply to a person who has
an affidavit signed by a physician licensed to practice in this state under
Chapter 4731. of the Revised Code or a chiropractor licensed to practice in
-23-
this state under Chapter 4734. of the Revised Code that states that the
person has a physical impairment that makes use of an occupant restraining
device impossible or impractical.
{¶ 45} Evid. R. 103(A)(2) provides:
(A) Effect of Erroneous Ruling. Error may not be predicated upon
a ruling which admits or excludes evidence unless a substantial right of the
party is affected; and
***
(2) Offer of Proof. In case the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer or was
apparent from the context within which questions were asked. * * *
{¶ 46} “ ‘The purpose of a proffer is to assist the reviewing court in determining,
pursuant to Evid.R. 103, whether the trial court’s exclusion of evidence affected a
substantial right of the appellant.’ In re Walker, 162 Ohio App.3d 303, 2005-Ohio-3773,
833 N.E.2d 362, at ¶ 37.” State v. Mullins, 2d Dist. Montgomery No. 21277, 2007-Ohio-
1051, ¶ 36.
{¶ 47} We see no abuse of discretion in the trial court’s decision to exclude
Eytcheson’s “statement” or “document.” Eytcheson did not proffer, or ask to proffer, the
“statement” or “document,” and R.C. 4513.263(C) requires Eytcheson to have an affidavit,
which is “a written declaration under oath.” R.C. 2319.02. Hearsay, which pursuant to
Evid.R. 801(C) is “a statement, other than one made by the declarant while testifying at
the trial * * * offered in evident to prove the truth of the matter asserted,” is not admissible,
pursuant to Evid.R. 802, absent a specific exception, and Eytcheson did not establish nor
-24-
proffer that he had a sworn affidavit from his chiropractor. Additionally, Eytcheson’s
injury occurred in 2012, and the date of the “statement” or “document” is unknown. For
the foregoing reasons, Eytcheson’s eighth assignment of error is overruled.
{¶ 48} Eytcheson’s ninth assignment of error is as follows:
THE TRIAL COURT ERRED IN ITS DECISION WITHOUT
REQUIRING THE PROSECUTOR BEING REQUIRED TO PROVE
BEYOND A REASONABLE DOUBT THAT I WILLFULLY AND
KNOWINGLY PERFORMED AN [UNLAWFUL] ACT.
{¶ 49} Eytcheson asserts that the prosecutor “presented no argument nor
evidence whatsoever which would show my ‘willfulness’ nor my evil or malicious intent.”
{¶ 50} R.C. 2901.22 sets forth the culpable mental states for criminal offenses,
namely purposely, knowingly, recklessly, and negligently. Willfully is not a culpable
mental state.
{¶ 51} As this Court noted in State v. Finn, 2d Dist. Montgomery No. 22914, 2009-
Ohio-4949, ¶ 23-29:
* * * R.C. 2901.21 states in relevant part:
(A) Except as provided in division (B) of this section, a
person is not guilty of an offense unless both of the
following apply:
(1) The person’s liability is based on conduct that
includes either a voluntary act, or an omission to
perform an act or duty that the person is capable of
performing;
-25-
(2) The person has the requisite degree of culpability
for each element as to which a culpable mental state is
specified by the section defining the offense.
(B) When the section defining an offense does not
specify any degree of culpability, and plainly indicates
a purpose to impose strict criminal liability for the
conduct described in the section, then culpability is not
required for a person to be guilty of the offense. When
the section neither specifies culpability nor plainly
indicates a purpose to impose strict liability,
recklessness is sufficient culpability to commit the
offense.
In State v. Shaffer (1996), 114 Ohio App.3d 97, 102-103, 682 N.E.2d
20140, the Court of Appeals stated:
Generally, strict liability attaches to offenses which are
regulatory in nature and which are designed to protect the
health, safety, and well-being of the community. State v.
Buehler Food Markets, Inc. (1989), 50 Ohio App. 3d 29, 30,
552 N.E.2d 680, 681-682. Furthermore, when a statute
reads ‘no person shall’ engage in proscribed conduct, absent
any reference to a culpable mental state, the statute indicates
a legislative intent to impose strict liability.
{¶ 52} R.C. 44510.21(A) provides: “No person whose driver’s license * * * has
-26-
been suspended shall operate any motor vehicle upon a public road or highway * * *.”
R.C. 4513.263(B) provides that “No person shall do any of the following: (1) Operate an
automobile on any street or highway unless that person is wearing all of the available
elements of a properly adjusted occupant restraining device * * *.” (Emphasis added.)
{¶ 53} We conclude that the traffic laws at issue herein are regulatory in nature
and for the well-being of the community, and that strict liability attaches thereto. The State
was accordingly not required to prove that Eytcheson acted willfully or knowingly, and his
ninth assignment of error is overruled.
{¶ 54} Eytcheson’s tenth assignment of error is as follows:
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR
TO FUNCTION EVEN FOLLOWING THE PROSECUTOR ADMITTING HE
DIDN’T UNDERSTAND THE DISTINCTION BETWEEN TRAVELING AND
DRIVING.
{¶ 55} Eytcheson asserts that “[d]uring his cross-examination of me, the
Prosecutor opened the door for the difference between traveling and driving.” He asserts
that “[d]ue to the no less than 10 times I was instructed by Mr. Dressel to address items
pertaining to the law in my closing, I believed at that moment I was to address his question
during my closing arguments. Therefore, I was not allowed to present the well settled
Supreme Court decisions which clearly establish said differentiation.” Eytcheson argues
that since “Mr. Dressel stopped me from doing so by limiting the time in which I had to
address each item in my closing arguments * * * I was not allowed to present this
information which was crucial to my defense against the charges.”
{¶ 56} Eytcheson directs our attention again to his closing argument set forth
-27-
above and the following exchange in his cross-examination by the prosecutor:
Q. And I don’t think I understand the distinction, the distinction
between traveling and driving. Could you explain it to us?
A. Yes I could.
Q. Go ahead.
A. I don’t believe I’m required to at this point. The [sic] Mr. Dressel
has said that I should those [sic] things in my closing arguments.
{¶ 57} We conclude that this assignment of error is repetitive of Eytcheson’s
seventh assignment of error regarding his closing argument, and it accordingly fails and
is overruled. Further, as noted above in our analysis of Eytcheson’s fourth assignment
of error, the operation of a motor vehicle is a privilege subject to reasonable regulation,
and any purported distinction between traveling and driving is no defense to Eytcheson’s
offenses.
{¶ 58} Eytcheson’s eleventh assignment of error is as follows:
THE TRIAL COURT ERRED IN NOT REQUIRING THE
PROSECUTION TO BRING AN INJURED PARTY AS A RESULT OF MY
ACTIONS.
{¶ 59} Eytcheson asserts that “[n]o injured party made a complaint, nor testified.
This is due to the fact that there was no injured party. Since no injured party, no crime
existed for which I could be found guilty or innocent.” He argues that since “no Corpus
Del[i]cti was identified during entire Trial, there is no crime and all charges are invalid and
moot as is the trial.” He asserts that “in every prosecution for crime it is necessary to
establish the ‘corpus del[i]cti.’ ” According to Eytcheson, Office Colon did not “ever
-28-
express nor represent that she had suffered harm, injury, nor death as a result of my
actions on 24 May 2017.”
{¶ 60} This court previously addressed the corpus delicti rule in State v.
Gabriel, 170 Ohio App.3d 393, 2007–Ohio–794, 867 N.E.2d 474, ¶ 56–57 (2d
Dist.), reversed on other grounds, In re Criminal Sentencing Cases, 116 Ohio St.3d 31,
2007–Ohio–5551, 876 N.E.2d 528, wherein we stated:
The corpus delicti of an offense consists of the act and the criminal
agency of the act. Before a confession of a crime may be admitted at trial,
the state must introduce evidence independent of the confession to
establish the corpus delicti of the offense. The corpus delicti rule is designed
to protect “persons who confess to crimes that they not only did not commit
themselves, but which were never committed by anyone.” Accordingly, “this
rule does not require evidence, other than the confession, showing that the
accused committed the crime but, rather, requires some evidence that a
crime was, in fact, committed.”
“The evidence presented need not be so strong that it is capable of
persuading a factfinder on some element of the crime beyond a reasonable
doubt.” Nor must the evidence be “even enough to make it a prima facie
case.” Rather, “[i]t is sufficient if there is some evidence outside of the
confession that tends to prove some material element of the crime charged.”
The corpus delicti rule does not require evidence related to all elements of
the crime. Furthermore, the evidence need not be direct but, rather, may be
circumstantial. Although the rule remains applicable, the Supreme Court
-29-
has indicated that it need not be applied “with a dogmatic vengeance.”
(Citations omitted.)
{¶ 61} The corpus delicti rule was not violated in the prosecution of Eytcheson’s
traffic offenses. The elements of the traffic offenses were established through the direct
testimony of Officer Colon. No issue regarding a “confession” arose before the elements
of the traffic violation were attested to by the officer. Eytcheson’s eleventh assignment
of error is overruled.
{¶ 62} We will consider Eytcheson’s twelfth, thirteenth and fourteenth
assignments of error together.
THE TRIAL COURT ERRED IN FAILING TO ENSURE THE SEVEN
(7) ELEMENTS OF JURISDICTION.
And,
THE TRIAL COURT ERRED IN PROCESSING
DOCUMENTATION TO THE STATE OF OHIO DEPARTMENT OF
MOTOR VEHICLES TO CAUSE FURTHER ECONOMIC AND
MONETARY DAMAGE TO ME WITHOUT JURISDICTION IN THIS CASE.
And,
THE TRIAL COURT ERRED IN ALLOWING AN INVALID AND/OR
NON BONA FIDE CHARGING INSTRUMENT TO BE UTILIZED TO
INITIATE PROCEEDINGS AGAINST ME.
{¶ 63} In his twelfth assignment of error, Eytcheson asserts that he is “misnamed
in the action in this instant case and this element of jurisdiction is not satisfied.”
{¶ 64} In his thirteenth assignment of error, Eytcheson asserts as follows:
-30-
While normally the Trial Court sends notice to the STATE OF OHIO
Department of Motor Vehicles for processing of suspensions, financial
responsibilities, etc., this is predicated on the fact that the Trial Court has
jurisdiction over the events, in this case of 24 May 2017. By the justification
in the above AoE, it is obvious that they did not have jurisdiction to hear
the case against me due to lack of jurisdictional elements not
accomplished. Further, since the charging document does not rightfully
nor lawfully belong to me or has it been attributed to me but to a legal fiction,
KELLY W EYTCHESON, there is no bona fide lawful charging
instrument against me. Therefore, the damages to me economically and
monetarily need to be reimbursed to me and the decision of the Trial Court
vacated, reversed, overturned with prejudice.
{¶ 65} Finally, Eytcheson argues as follows:
Officer Shiloh Colon admitted that she decided to issue a citation.
She did not say she was issuing a complaint as an injured party nor did she
indicate in her testimony that she was serving a summons to appear. Nor
did she indicate that the complaint portion of K00059898 was being issued
in the name of a legal fiction, Kelly W Eytcheson. The proof for this is the
citation in the Record. Please see it.
{¶ 66} As noted above, Colon testified that she observed Eytcheson commit an
improper turn, that she initiated the traffic stop, and she identified him in court as the
person who committed the cited offenses. The citation she issued is the Ohio Uniform
Traffic Ticket. See Traf.R. 3(A).
-31-
{¶ 67} As this Court noted in Matthews, 2d Dist. Greene No. 2015-CA-73, 2016-
Ohio-5055:
Ohio municipal courts “are created by statute, R.C. 1901.01, and
their subject-matter jurisdiction is also set by statute.” State v. Mbodji, 129
Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 11. An Ohio
municipal court “has jurisdiction over misdemeanors occurring within its
territorial jurisdiction.” Id., citing R.C. 1901.20(A)(1). The filing of a
complaint invokes the jurisdiction of a municipal court. Id. at ¶ 12. See also
State v. Gunnell, 10th Dist. Franklin No. 13AP-90, 2013-Ohio-3928, ¶ 8.
An Ohio Uniform Traffic Ticket serves as the complaint and summons. See
Traf.R. 3(A).
Id. at ¶ 4.
{¶ 68} Thus, the Kettering Municipal Court had subject matter jurisdiction.
Further, Officer Colon served Eytcheson with the complaint and summons, which gave it
personal jurisdiction over him.
See, e.g., Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538(1984)(recognizing that personal jurisdiction may be acquired by service of
process on a defendant); State v. Gunnell, 10th Dist. Franklin No. 13AP–
90, 2013–Ohio–3928, ¶ 10 (observing that service of a complaint and
summons in the form of a traffic ticket gives a municipal
court personal jurisdiction); Cleveland v. Kutash, 8th Dist. Cuyahoga No.
99509, 2013–Ohio–5124, ¶ 11 (“Personal jurisdiction goes to the court's
authority to render judgment against a party to an action. In contrast to
-32-
subject-matter jurisdiction, which is conferred by statute, the court * * *
acquires personal jurisdiction over the defendant when * * * service of
process is completed over the defendant [.]”); State v. Zipfel, 6th Dist. Wood
No. WD–89–45, 1990 WL 71574 (June 1, 1990) (“Appellant was charged
with violations of both state and municipal laws and properly served with
notice of these offenses by the issuance of traffic citations (summons). * * *
Therefore, the municipal court had personal jurisdiction over the person of
the appellant.”).
State v. Eberhart, 2d Dist. Montgomery Nos. 26045, 26046, 2014-Ohio-3259, ¶ 6.
{¶ 69} For the foregoing reasons, Eytcheson’s twelfth, thirteenth and fourteenth
assignments of error are overruled.
{¶ 70} Eytcheson’s fifteenth assignment of error is as follows:
THE TRIAL COURT ERRED WHEN MR. DRESSEL ACTED ON
BEHALF OF THE PROSECUTOR AND PERFORMED WHAT WAS THE
RESPONSIBILITY OF THE PROSECUTOR.
{¶ 71} Eytcheson asserts as follows:
Mr. Dressel on P6, L11-14 stated that it appeared to him that I was
challenging the jurisdiction of the Court. If I was, it is the job of the
Prosecutor/asserter to prove jurisdiction. * * * Instead, Mr. Dressel did this
against the requirements of the 7 elements of jurisdiction. Mr. Dressel
further did this according to the Transcript P16, L4-19 when questioning the
witness which is the job of the Prosecutor who is the trier of the case. Mr.
Dressel purported to be the trier of the facts. Not cool. For these
-33-
instances, this case should be overturned, vacated, and reversed with
prejudice.
{¶ 72} Eytcheson directs our attention to the following, which occurred after
Officer Colon testified that Eytcheson failed to reinstate his driver’s license, and
Eytcheson objected:
COURT: I’ll note your objection but it’s overruled.
Q. After you saw what the status of the Defendant’s license was
what did you decide to do?
A. I decided to issue a citation.
Q. And that citation was for what?
A. It was for the seatbelt violation and for the failure to reinstate
suspension. I gave him a verbal warning for the improper turn.
Q. And when you told the Defendant these things and that you were
gonna be giving him a citation for those offenses did he make any
statements to you?
A. I’m sure he did I just can’t recall.
Q. Okay. Did he acknowledge that his license was suspended or
anything along those lines?
A. I believe he did.
{¶ 73} Eytcheson asserts that the trial court assumed the role of the prosecutor
by asking questions of Colon. It is not established, however, that the above questions
were posed by the trial court. From our reading of the transcript, it is apparent these
questions were asked by the prosecuting attorney, Mr. Thomas.
-34-
{¶ 74} Even if the questions of which Eytcheson complains were posed by the trial
court, “Evid. R. 614(B) expressly authorizes the trial court – the factfinder in a bench trial
– to ‘interrogate witnesses, in an impartial manner, whether called by itself or by a party.’
Consequently, the ability of a factfinder to question witnesses is not inconsistent with the
duty of impartiality.” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d
222, ¶ 26.
{¶ 75} Having reviewed the entire transcript, we conclude that the trial court
assumed the role of a neutral arbiter. Eytcheson’s fifteenth assignment of error is
overruled, and the judgment of the municipal court is affirmed.
.............
WELBAUM, P.J. and HALL, J., concur.
Copies mailed to:
Nolan Thomas
2325 Wilmington Pike.
Kettering, Ohio 45420
Kelly W. Eytcheson
P.O. Box 751893
Dayton, Ohio 45475
Hon. Frederick W. Dressel
Kettering Municipal Court
2325 Wilmington Pike
Kettering, Ohio 45420