State v. Eytcheson

2018 Ohio 2036

• Court: Ohio Court of Appeals
• Decided: May 25, 2018
• Docket: 27650
• Status: Published

Opinion

[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

............. -2-

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 -3-

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 -4-

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 -5-

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: -6-

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 -7-

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), -8-

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 -9-

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?

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

{¶ 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 -10-

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 -11-

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 -12-

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 -13-

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 -14-

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. -15-

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 -16-

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.

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 -17-

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 -18-

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 . . .

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

{¶ 39} Eytcheson’s eighth assignment of error is as follows: -19-

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 -20-

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.

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.

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