[Cite as Napoleon v. Green, 2014-Ohio-3192.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

CITY OF NAPOLEON, 

 PLAINTIFF-APPELLEE, CASE NO. 7-13-17 

 v. 

MARK R. GREEN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Napoleon Municipal Court 

Trial Court No. 13TRD1414 

Judgment Reversed and Cause Remanded 

Date of Decision: July 21, 2014 

 

APPEARANCES: 

 

Alan J. Lehenbauer for Appellant 

Trevor Hayberger for Appellee 

 
Case No. 7-13-17 

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PRESTON, J. 

{¶1} Defendant-appellant, Mark R. Green (“Green”), appeals the Napoleon 

Municipal Court’s December 2, 2013 judgment entry convicting him of operating 

an overweight vehicle on local streets in violation of Napoleon Codified 

Ordinance 339.02(a). For the reasons that follow, we reverse. 

{¶2} On July 18, 2013, Napoleon Police Department Officer David Mack 

(“Mack”) initiated a traffic stop of the commercial truck operated by Green after 

Mack observed the truck turn off of State Route 108 onto Lagrange Street in 

Napoleon. (Doc. No. 1). Green was travelling to the Campbell Soup Supply 

Company. (Dec. 2, 2013 Tr. at 8). Because Green was unfamiliar with the area, 

he was following the route suggested by his GPS unit. (Id. at 7-8). As such, to 

travel to the Campbell Soup Supply Company, Green turned off U.S. Route 24 

onto State Route 108 South. (Id. at 7). However, State Route 108 South was 

closed after it intersected with Lagrange Street. (Id. at 10). Because State Route 

108 was closed by barricade, Green turned his truck right onto Lagrange Street. 

(Id. at 10, 12). Green then turned right again onto the first driveway available to 

him to turn around. (Id. at 12, 14). The driveway Green turned onto is located 

between a BP gas station and Hill’s Restaurant. (Id.) A “no trucks” sign was 

posted just after the Hill’s Restaurant. (Id.) Mack cited Green for operating his 

truck “off route” in violation of Napoleon Codified Ordinance 339.02(a). 
Case No. 7-13-17 

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{¶3} On July 24, 2013, Green filed a written plea of not guilty to the 

charge. (Doc. No. 2). 

{¶4} The trial court held a bench trial on December 2, 2013. (Dec. 2, 2013 

Tr. at 2). Plaintiff-appellee, the City of Napoleon (“City”),1

 presented the 

testimony of Mack. (Id.). Mack testified that he was sitting in a private parking 

lot near Subway on State Route 108 monitoring commercial truck traffic because 

of complaints of trucks driving “off route” in that area. (Id. at 5-6). Mack 

testified that he observed Green exit U.S. Route 24 and proceed down State Route 

108 past all “no trucks, road closed, [and] road closed at certain distances” signs 

up to the portion of State Route 108 that was barricaded. (Id. at 6-7). Mack 

clarified that the “no trucks, road closed, [and] road closed at certain distances” 

signs that Green drove past were indicating that State Route 108 was closed just 

after it intersected with Lagrange Street, not that the portion of State Route 108 

that Green drove his truck on was closed. (Id. at 10). Mack testified that he 

further observed Green turn right onto Lagrange Street because he could not 

proceed any further down State Route 108. (Id. at 10, 12). 

{¶5} After Mack testified, the City rested, and Green made a “motion to 

dismiss.” (Id. at 19). After hearing Green and the City’s arguments regarding 

Green’s motion, the trial court denied Green’s motion and proceeded to find him 

 

1

 The parties and the trial court refer to the plaintiff as the State of Ohio. However, we note that the 

plaintiff is actually the City of Napoleon because Green was charged with violating only a Napoleon 

ordinance, not a Revised Code section. (See Doc. No. 1). 
Case No. 7-13-17 

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guilty of violating Napoleon Codified Ordinance 339.02(a) without allowing him 

to present his case-in-chief. (Id. at 21); (Dec 2, 2013 JE, Doc No. 11). In its 

judgment entry, the trial court noted that the “[p]arties stipulated that [Mack] had 

the proper education and experience” and that Green “had proper notice of the off 

truck route and should have seen the proper signing.” (Dec. 2, 2013 JE, Doc. No. 

11). The trial court imposed a $75 fine and $97 in court costs. (Id.); (Dec. 2, 2013 

Tr. at 21). Green moved for a stay of execution of his sentence pending an appeal. 

(Id.); (Id.). The trial court granted Green’s motion. (Id.); (Id.). 

{¶6} Green filed his notice of appeal on December 24, 2013. (Doc. No. 

13). He raises three assignments of error for our review. Because it is dispositive, 

we address only Green’s first assignment of error. 

Assignment of Error No. I 

The trial court erred by not granting appellant’s motion to 

dismiss. 

{¶7} In his first assignment of error, Green argues that the trial court erred 

in not granting his “motion to dismiss.” Specifically, Green argues that the City 

failed to prove beyond a reasonable doubt an essential element of Napoleon 

Codified Ordinance 339.02(a)—namely, that Green’s truck was of gross weight of 

10,000 pounds or more. 

{¶8} As an initial matter, we note that Green mischaracterized his motion, 

in his trial and in his assignment of error, as a “motion to dismiss.” Because 
Case No. 7-13-17 

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Green’s motion was made at the close of the City’s presentation of evidence, and 

because the trial court weighed the evidence presented by the City before denying 

Green’s motion, the motion was framed as, and treated as, a motion for acquittal 

under Crim.R. 29. See State v. Stout, 3d Dist. Logan No. 8-06-12, 2006-Ohio6089, ¶ 11 (“If a motion to dismiss requires examination of evidence beyond the 

face of the complaint, it must be presented as a motion for acquittal under Crim.R. 

29 at the close of the state’s case.”), citing State v. Varner, 81 Ohio App.3d 85, 86 

(9th Dist.1991).2

 Nevertheless, Green’s motion had no application in his bench 

trial. See State v. Miller, 3d Dist. Seneca No. 13-12-52, 2013-Ohio-3194, ¶ 27, fn. 

3. (“‘The purpose of a motion for judgment of acquittal is to test the sufficiency of 

the evidence and, where the evidence is insufficient, to take the case from the jury. 

In the non-jury trial, however, the defendant’s plea of not guilty serves as a motion 

for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 

motion at the close of all the evidence.’”), quoting City of Dayton v. Rogers, 60 

Ohio St.2d 162, 163 (1979). Accordingly, we will treat Green’s assignment of 

error as challenging the sufficiency of the evidence. Id., citing State v. Tatum, 3d. 

Dist. Seneca No. 13-10-18, 2011-Ohio-3005, ¶ 43 and State v. Miley, 114 Ohio 

App.3d 738, 742 (4th Dist.1996). 

 

2

 The City refers to, and analyzes, Green’s motion as a motion for acquittal under Crim.R. 29. (See 

Appellee’s Brief at 6-7). 
Case No. 7-13-17 

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{¶9} When reviewing the sufficiency of the evidence, “[t]he relevant 

inquiry is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of 

the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 

(1981), paragraph two of the syllabus, superseded by state constitutional 

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997). 

{¶10} Here, Green was cited for violating Napoleon Codified Ordinance 

339.02(a), which provides: 

Except as provided in this section, no person shall operate any truck, 

commercial tractor (with or without a semitrailer attached) or other 

motor vehicle, being a gross weight of 10,000 pounds or more upon 

any street or highway within the City, other than U.S. routes or state 

routes or the intersections thereof, unless the weight limit for any 

particular street or highway is otherwise modified by the City. 

When a semitrailer is attached to another and separate motor vehicle, 

then the gross weight shall include the motor vehicle, semitrailer and 

load for determining gross weight. 

Napoleon Codified Ordinance 339.02(a). 

{¶11} Green argues that the City was required to prove, beyond a 

reasonable doubt, that he was operating a truck being a gross weight of 10,000 
Case No. 7-13-17 

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pounds or more and that the City did not provide sufficient evidence that the truck 

he was operating was of a gross weight of 10,000 pounds or more. In support of 

his argument, Green cites State v. Cox, 5th Dist. Ashland No. CA-973, 1991 WL 

42510 (Mar. 21, 1991) and State v. Swinehart, 6th Dist. Fulton No. 90FU000015, 

1991 WL 192182 (Sept. 30, 1991). In Cox and Swinehart, the respective courts 

held that the State failed to meet its burden of proof because no specific evidence 

was presented at trial that the respective vehicles operated by Cox and Swinehart 

weighed greater than 8,000 pounds—an essential element of the offense. Id. at *2; 

Id. at *2. Green also cites State v. Bardhi, 3d Dist. Paulding No. 11-13-05, 2014-

Ohio-1135. In Bardhi, we held that a law enforcement officer’s testimony that the 

vehicle driven by the defendant was a “semi” or a “Fed Ex Truck” was insufficient 

to establish that the defendant was operating a vehicle in excess of 8,000 pounds. 

Id. at ¶ 12, 15. Third, Green cites Brook Park v. Short, 61 Ohio App.3d 519 (8th 

Dist.1989). The defendant in Short was convicted of operating an overweight 

vehicle on local streets in violation of Brook Park Codified Ordinances Section 

339.02. Id. at 520. Short’s conviction was based, in part, on the law enforcement 

officer’s verification of the weight of his truck by checking the registration. Id.

{¶12} The City concedes that the issue presented by this case may be an 

issue of first impression—that is, whether a veteran law enforcement officer’s 

testimony that he generally knows, through his training and experience, that the 
Case No. 7-13-17 

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minimum weight of a truck is far in excess of the 10,000 pounds prescribed by the 

ordinance and is sufficient to prove that a defendant was operating a truck being of 

a gross weight of 10,000 pounds or more. (Appellee’s Brief at 8). Thus, the City 

submits that Mack’s testimony, that, based on his training and experience, the 

minimum that a truck similar to Green’s would weigh is in the high 20,000 pounds 

to low 30,000 pounds without a load, is sufficient to prove that Green was 

operating a truck being of a gross weight of 10,000 pounds or more. (Id.). 

{¶13} We agree with Green and hold that the City failed to establish 

beyond a reasonable doubt an essential element of the Napoleon Codified 

Ordinance—that Green was operating a truck being of a gross weight of 10,000 

pounds or more. Accordingly, we reject the City’s argument that this court should 

accept the unfounded statement that a veteran law enforcement officer knows, 

through training and experience, that a truck similar to Green’s would weigh at 

least 20,000 to 30,000 pounds with no load as sufficient to establish that Green’s 

truck was of a gross weight of 10,000 pounds or more. 

{¶14} “[T]he general description of the vehicle is insufficient to allow the 

trier of fact to infer the necessary weight, as the weight of a given semi tractortrailer is beyond common knowledge.” State v. Myers, 10th Dist. Franklin No. 

94AP11-1601, 1995 WL 318755, *1 (May 25, 1995), citing Ohio State Patrol v. 

Hitt, 11th Dist. Lake No. 92-L-081, 1993 WL 76237, *2 (Feb. 12, 1993) and Cox, 
Case No. 7-13-17 

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1991 WL 42510, at *1-2. See also State v. Rice, 2d Dist. Clark No. 2000 CA 5, 

2000 WL 1369924, *3 (Sept. 22, 2000) (noting that “Ohio courts have determined 

that the State must present evidence on the weight of the vehicle under R.C. 

4511.21(D)(3)” because the weight of a semi tractor-trailer is beyond common 

knowledge).3

 

{¶15} In this case, the City could have proved the weight of Green’s truck 

by, for instance, having Mack testify that he checked Green’s registration or load 

tickets to verify that the weight of Green’s truck was greater than 10,000 pounds. 

See, e.g., Short, 61 Ohio App.3d at 520. However, because Mack did not verify 

the weight of Green’s truck by checking his registration or load tickets or by any 

other adequate manner, the City, to have Mack testify based on his knowledge of 

the weight of trucks, needed to elicit testimony from Mack that would properly 

qualify him to testify as an expert in the weight of trucks to establish that Green 

operated a truck being of a gross weight of 10,000 pounds or more. (Dec. 2, 2013 

Tr. at 15). Specifically, the City was required to establish that Mack’s training and 

experience provided him the knowledge that the weight of Green’s truck was 

greater than 10,000 pounds. See, e.g., State v. Brooks, 5th Dist. Ashland No. 

98-COA-01268, 1999 WL 547441 (June 29, 1999). 

 

3

 R.C. 4511.21(D)(3) has been amended and removed from the statute. See Am.Sub.H.B. No. 51, 2013 

Ohio Laws File 7 and Am.Sub.H.B. No. 59, 2013 Ohio Laws File 25. The former R.C. 4511.21(D)(3) 

stated, “(D) No person shall operate a motor vehicle, trackless trolley, or streetcar upon a street of highway 

as follows: * * * (3) If a motor vehicle weighing in excess of eight thousand pounds empty weight or a 

noncommercial bus as prescribed in division (B)(10) of this section, at a speed exceeding fifty-five miles 

per hour upon a freeway as provided in that division.” R.C. 4511.21(D)(3). 
Case No. 7-13-17 

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{¶16} The City did not lay the foundation that Mack had the proper 

specialized knowledge, skill, experience, training, or education regarding the 

weight of trucks to testify regarding the weight of Green’s truck. A “witness is 

qualified as an expert by specialized knowledge, skill, experience, training, or 

education regarding the subject matter of the testimony.” Evid.R. 702(B). A law 

enforcement officer may qualify as an expert in the weight of vehicles and render 

an opinion regarding the weight of a vehicle. State v. Dietrich, 10th Dist. Franklin 

No. 96APC07-941, 1997 WL 84651, *2 (Feb. 27, 1997). “In order to be 

admissible under Evid.R. 702, the prosecution must lay a proper foundation 

qualifying the police officer as an expert * * * by way of the officer’s job 

experience and any special training the officer may have received.” In re Litterst, 

11th Dist. Lake Nos. 97-L-135 and 97-L-136, 1998 WL 556326, *5, fn. 3 (June 

26, 1998). 

{¶17} The testimony Mack provided regarding his training and experience 

and the weight of Green’s truck is as follows: 

[City’s Counsel]: In your training and experience would you have 

the ability to testify to whether or not you believe the defendant’s 

truck was over 10,000 pounds of gross weight? 

[Mack]: Yes it was. 

[City’s Counsel]: It was over? 
Case No. 7-13-17 

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[Mack]: Yes, the semi, tractor trailer, yes. 

(Dec. 2, 2013 Tr. at 6-7). And, Mack provided the following additional testimony 

on re-direct examination: 

[City’s Counsel]: In your training and experience would the 

weight issue be close, was his truck even close to 10,000 pounds? 

[Mack]: No sir, it would not have been close. 

[City’s Counsel]: How far off would you estimate? 

[Mack]: Through my experience they are upwards in the 

high 20’s to low 30’s empty with no load. 

[City’s Counsel]: Do you know if his had a load or not? 

[Mack]: I don’t recall. 

(Id. at 15-16). 

{¶18} Mack testified that, based on his training and experience, he knew 

Green’s vehicle was over 10,000 pounds; but, there is no indication what training 

and experience Mack had for him to have such knowledge about the weight of 

trucks. Mack testified that he had worked for the Napoleon City Police 

Department since 1996 and, as noted in the trial court’s judgment entry, the parties 

stipulated to Mack’s training and experience. (Dec. 2, 2013 JE; Doc. No. 11); 

(Dec. 2, 2013 Tr. at 3). However, the parties stipulated to Mack’s training and 

experience to be a patrolman, not his training and experience regarding the weight 
Case No. 7-13-17 

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of trucks. (Dec. 2, 2013 Tr. at 3). Accordingly, the City was required to elicit 

testimony from Mack regarding his training and experience with the weight of 

trucks. The City failed to elicit such testimony. 

{¶19} A similar issue was presented in Brooks, 1999 WL 547441. The 

defendant in Brooks was convicted of speeding in violation of R.C. 4511.21(D)(3). 

Brooks appealed his conviction, arguing that there was no evidence establishing 

the weight of his vehicle. Id. at *1. The Fifth District concluded that the law 

enforcement officer testified regarding his knowledge and experience with the 

weight of trucks and sufficiently described the weight of Brooks’ truck. Id. at *2-

3. Specifically, the law enforcement officer testified that he was frequently at a 

scale house that weighs commercial vehicles and came to know that a tractor and 

trailer are generally over 8,000 pounds. Id. Here, however, there is no indication 

how Mack knows, through his training and experience, that the type of truck 

operated by Green was of gross weight of 10,000 pounds or more. The City 

merely asked Mack if he had the ability to testify whether Green’s truck was of a 

gross weight of 10,000 pounds more based on his training and experience. The 

City did not elicit testimony from Mack regarding what training and experience he 

has had that would lend him such knowledge. Moreover, when asked if he had 

training and experience regarding the weight of trucks, Mack did not answer the 

question. 
Case No. 7-13-17 

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{¶20} This case is also distinguishable from State v. Swinehart, 5th Dist. 

Ashland Nos. CA-999 and CA-1000, 1992 WL 238405 (Aug. 27, 1992). In 

Swinehart, the Fifth District concluded that the law enforcement officer’s 

testimony that the weight of the vehicles operated by the defendants was based on 

his 23 years of experience with commercial vehicles. Id. at *3. Here, Mack 

testified that he has worked for the Napoleon City Police Department since 1996, 

but did not indicate to what extent, if any, he has had experience with commercial 

vehicles. 

{¶21} We note that the Second District concluded that a law enforcement 

officer’s testimony that “it was his knowledge that tractor-trailers generally weigh 

‘well over 8,000 pounds’” and that “he was certain that the ‘truck and trailer 

combination’ weighed over 8,000 pounds was sufficient to establish that the 

vehicle operated by the defendant weighed over 8,000 pounds.” Rice, 2000 WL 

1369924, at *3. However, we conclude that the Second District failed to explain 

how the law enforcement officer gained the knowledge that tractor-trailers 

generally weigh well over 8,000 pounds. Therefore, the Second District’s 

conclusions in Rice are inapplicable to this case. 

{¶22} Thus, even though Mack testified that, through his training and 

experience, Green’s truck was over 10,000 pounds and that trucks similar to 
Case No. 7-13-17 

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Green’s would weigh in the high 20,000 pounds to the low 30,000 pounds without 

a load, there is no indication what training and experience he has had for him to 

have such knowledge. Therefore, we conclude that Mack’s testimony did not 

sufficiently establish Green’s truck was of a gross weight of 10,000 pounds or 

more. After viewing the evidence in a light most favorable to the City, we 

conclude that no rational trier of fact could have found the essential elements of 

Napoleon Codified Ordinance 339.02(a) proven beyond a reasonable doubt. 

{¶23} Therefore, Green’s first assignment of error is sustained. 

Assignment of Error No. II 

It was an error of law for the trial court to find the appellant 

guilty of operating an overweight motor vehicle on a local street 

as the conviction was against the manifest weight of the evidence. 

Assignment of Error No. III 

The trial court case was procedurally defective and violated 

appellant’s due process rights. 

{¶24} In his second assignment of error, Green argues that his conviction 

was against the manifest weight of the evidence. In his third assignment of error, 

Green argues that his case was procedurally defective because he was not 

permitted an opportunity to present a complete defense.4

 

4

 Although we will not address Green’s third assignment of error, we note that a defendant’s right “‘in a 

criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s 

accusations.’” State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, ¶ 12, quoting Chambers v. 

Mississippi, 410 U.S. 284, 294 (1973). See also the Fourteenth Amendment to the U.S. Constitution and 

Ohio Constitution, Article I, Section 16. The U.S. and Ohio Constitutions “guarantee[] criminal defendants 

a ‘meaningful opportunity to present a complete defense.’” Swann at ¶ 12, quoting Crane v. Kentucky, 476 
Case No. 7-13-17 

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{¶25} In light of our decision to sustain Green’s first assignment of error, 

his second and third assignments of error are rendered moot, and we decline to 

address them. App.R. 12(A)(1)(c); State v. Davis, 1st Dist. Hamilton No. C110620, 2012-Ohio-2642, ¶ 10 (noting that the court’s holding that the defendant’s 

conviction was not supported by sufficient evidence rendered moot his argument 

that his conviction was contrary to the manifest weight of the evidence). 

{¶26} Having found error prejudicial to the appellant herein in the 

particulars assigned and argued in his first assignment of error, we reverse the 

judgment of the trial court and remand for further proceedings. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI, P.J. and ROGERS, J., concur. 

/jlr 

 

 U.S. 683, 690 (1986). “Few rights are more fundamental than that of an accused to present witnesses in his 

own defense.” Chambers at 302.