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Date: 07-06-2020

Case Style:


Case Number: 28509

Judge: Jeffrey M. Welbaum


Plaintiff's Attorney: MATTHEW KORTJOHN

Defendant's Attorney:

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{¶ 4} On February 6, 2019, Dayton Police Officer James Luckoski was on patrol at
about 9:15 p.m. when he noticed a white 2010 Dodge Challenger traveling through the
intersection of Free Pike and North Gettysburg in Dayton, Ohio. Luckoski and his partner
noticed that the vehicle’s rear license plate had an obstructed cover and they could not
see the plate. Trial Transcript (“Tr.”), p. 6. The license tag was temporary, and the
officers were having a hard time reading it. Id. According to Luckoski, the officers got
to within 10 to 15 feet from the vehicle and were still struggling to read the tag, stating
that “It wasn’t until we pulled it over and came to a stop that we were actually able to
spotlight it and see.” Id. at p. 7.
{¶ 5} According to Luckoski, the tag had a “plastic tint cover, like a hard plate
covering it,” and this is what was making it difficult to read the tag. Id. Even though
there was overhead street lighting after their cruiser got behind Hill’s car on Salem
Avenue, the officers were still unable to see the tag. Id. at p. 8-9. Luckoski was driving
and neither officer could read it. Based on their inability to read the tag, Luckoski initialed
a stop. Id. at p. 9.
{¶ 6} When the stop was initiated, Luckoski pulled his cruiser close to Hill’s vehicle.
At that time, Hill’s vehicle was less than 10 feet away. When the cruiser came to a stop,
Luckoski’s partner was unable to enter the number into the computer. Id. at p. 8-9. The
tint on the cover had a colored surface that darkened any light coming through. Id. at p.
{¶ 7} When Officer Luckoski got closer to the vehicle, he noticed that the tag had
expired on January 10, 2019. Trial Tr. at p. 11. Once Luckoski finished his initial
contact with Hill, he went back to his cruiser and saw that that tag, indeed, had expired
on January 10, 2019. Id. at p. 12. Hill told Luckoski that “he had a warrant block and
that is why he was unable to take care of it at that time.” Id. Luckoski went on to testify
[Hill] provided me with some paperwork that was dated, I believe, the 22nd
of January that was supposed to be him putting [sic] his warrant block, I
believe, cleared, but when I asked him why he didn’t do anything from the
22nd till the 6th of February, he said he just hadn’t been able to.
Id. at p. 12. Hill’s reasons for not doing anything were “[w]ork and other life issues.” Id.
at p. 13.
{¶ 8} During Luckoski’s testimony, Hill told the trial court that “[w]ith the witness’s
[Luckoski’s] testimony, as far as what he observed with the tinted cover or clear plate
cover or expired tags, I’m not disagreeing with [what] the officer observed. I mean, if he
observed that, that’s what he seen.” Id. at p. 14.
{¶ 9} Hill also testified at trial and explained that a warrant block had been placed
on his registration due to a prior traffic case in which he had not appeared in court.
According to Hill, the court in the prior case did not send the information to the correct
address, and once that was cleared up, the trial court had removed the block. Id. at p.
32-33. The trial court concluded this was irrelevant, and Hill rested shortly thereafter,
without putting on further evidence.
{¶ 10} After closing arguments, the court found Hill guilty of both charges, and
imposed the following sentence: $50 and court costs for the obstructed plate, and $10 for
the expired plate. There is no dispute that these costs and fines have not yet been paid.
{¶ 11} Hill filed an appeal of the judgment, which was docketed as Montgomery
App. No. 28346. We dismissed that case, however, for lack of a final appealable order.
See State v. Hill, 2d Dist. Montgomery 28346 (Decision & Final Judgment Entry, May 21,
2019). After a final appealable order was issued and Hill again appealed, we then
transferred the summary of docket entries and the supplement summary of docket entries
from that case to the current case, Montgomery App. No. 28509 (Order, Sept. 13, 2019).
II. Obstructed Plates
{¶ 12} Hill’s first assignment of error, as far as we can tell, is that there was
insufficient evidence to find him guilty of having an obstructed license plate. Under this
assignment of error, Hill makes two points. One relates to reasonable suspicion for the
detention (which Hill labels as probable cause), and the other relates to the violation itself.
As to probable cause, Hill contends that once Officer Luckoski stopped him and was able
to read the license, no probable cause existed for the stop. In support of this position,
Hill relies on State v. Chatton, 11 Ohio St.3d 59, 463 N.E.2d 1237 (1984).
{¶ 13} In Chatton, a police officer stopped the defendant because he had no rear
or front license plates visible on his car. However, when the officer approached the car,
he was able to see the defendant’s temporary license tag on the deck of the rear window.
Id. at 59. The officer then questioned the defendant, learned his driver’s license was
suspended (although the system erroneously listed it as having been suspended), and
found a gun in the glove compartment. After pleading no contest to the gun charge, the
defendant appealed, contending that the officer lacked probable cause to stop his vehicle
once he was able to see the temporary tag. Id. at 59-60.
{¶ 14} The Supreme Court of Ohio agreed. First, the court concluded that the
officer was justified in stopping the vehicle, because no license plates were visible. The
court noted the firmly established principle that “the detention of an individual by a law
enforcement officer must, at the very least, be justified by ‘specific and articulable facts’
indicating that the detention was reasonable.” Id. at 61, quoting Terry v. Ohio, 392 U.S.
1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, once the officer saw the
temporary tag, he no longer had reasonable suspicion to detain the defendant. The court
based its decision on the fact that the statute in question, R.C. 4503.182, “does not
provide that these temporary license placards, commonly known as ‘temporary tags,’
must be displayed in any particular fashion.” Id. at 60.
{¶ 15} However, “[s]ubsequent to Chatton, the statute that governs the display of
license plates was amended to require operators of vehicles for which a temporary license
tag has been issued to ‘display the temporary license placard in plain view from the rear
of the vehicle either in the rear window or on an external rear surface of the motor
vehicle.’ ” State v. Allen, 2d Dist. Montgomery No. 23738, 2010-Ohio-3336, ¶ 13,
quoting R.C. 4503.21. We noted in Allen that our court “has twice observed that this
amendment supersedes the Ohio Supreme Court's holding in Chatton.” Id. at ¶ 14.
Thus, Chatton provides no support for Hill’s contentions.
{¶ 16} Even if this were otherwise, the case before us differs from the situation in
Chatton. Specifically, even if Officer Luckoski were able to read the temporary tag once
he stopped Hill’s vehicle, he still had reasonable suspicion to believe a violation had
occurred, because he saw that the temporary tag was expired.
{¶ 17} Hill’s second argument is that insufficient evidence existed to support his
conviction because Luckoski was able to see the numbers on the temporary tag once he
stopped his cruiser behind Hill’s car. “In reviewing a claim of insufficient 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. Elmore, 111 Ohio St.3d 515, 2006-Ohio6207, 857 N.E.2d 547, ¶ 43, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
{¶ 18} R.C. 4503.21(A)(3), which governs this issue, provides in pertinent part,
No person to whom a temporary license placard or windshield sticker
has been issued for the use of a motor vehicle under section 4503.182 of
the Revised Code, and no operator of that motor vehicle, shall fail to display
the temporary license placard in plain view from the rear of the vehicle either
in the rear window or on an external rear surface of the motor vehicle, or fail
to display the windshield sticker in plain view on the rear window of the
motor vehicle. No temporary license placard or windshield sticker shall be
covered by any material that obstructs its visibility.
{¶ 19} In support of his claim that the temporary tag was not obscured, Hill relies
on State v. Brooks, 11th Dist. Lake No. 2005-L-200, 2007-Ohio-344. In that case, the
trial court, in granting suppression of evidence obtained during a traffic stop, found that
“the stickers on the license plate were partially obstructed: ‘[l]ess than one-quarter of the
tags were covered by the frame[.]’ ” Id. at ¶ 34. The issue before the court of appeals,
on the State’s appeal, was “whether R.C. 4503.21 strictly prohibits any obstruction.”
(Emphasis sic.) Id. The court of appeals concluded that that statute did not prohibit any
obstruction, stating that:
Even taking appellant's definition of obstruct, “which is defined as to block,
hinder, or cut off from sight[,]” it does not support his proposition that the
statute prohibits any obstruction. We interpret that to mean that if the
visibility is obstructed, then the numbers would be blocked out of sight; i.e.,
one would not be able to read them at all. That is not the case here.
According to the trial court's findings, seventy-five percent of the tags were
visible. As such, we cannot say that the frame obstructed the visibility of
the tags.
Id. at ¶ 36. The court, therefore, rejected the State’s appeal and upheld the trial court’s
decision to suppress evidence.
{¶ 20} In arguing that sufficient evidence exists to support Hill’s conviction, the
State relies on our decision in State v. Phillips, 2d Dist. Montgomery No. 22918, 2009-
Ohio-3519, which distinguished Brooks. In Phillips, a police officer “began following the
[defendant’s] vehicle and could not read its temporary license plate despite approaching
to within no more than three car lengths. [The officer] noticed a tinted cover over the
plate as well as dirt and salt on the cover. He made a traffic stop for an obstructed plate.”
Id. at ¶ 3. However, after stopping the vehicle, the officer approached on foot and was
able to read the plate. Id. at ¶ 4.
{¶ 21} After the trial court overruled a motion to suppress evidence found in the
vehicle, the defendant pled no contest to charges of improperly handling a firearm in a
vehicle and improperly displaying a license plate, and then appealed. Id. at ¶ 1 and 6.
On appeal, the defendant argued that the officer lacked reasonable suspicion to continue
the stop because he was able to read the temporary license plate after he stopped the
car. Id. at ¶ 7. We disagreed, stating that:
Although Phillips' temporary license plate was displayed on the rear
of his vehicle, its visibility was obstructed by a tinted cover, dirt, and road
salt. Caito [the officer] could not read it when viewed from no more than
three car lengths away in his patrol car; therefore, he had reasonable,
articulable suspicion that Phillips was violating R.C. 4503.21. This
suspicion did not abate simply because Caito then approached Phillips'
vehicle on foot and ascertained the plate number. Caito testified that he
was able to read the plate only when he reached the “driver's side rear
corner of the vehicle.” Caito properly concluded that the plate was
obstructed from view, within the meaning of the statute, when he had to
approach within a few feet away to read it.
Phillips at ¶ 10.
{¶ 22} We also distinguished Brooks, commenting that:
The majority [in Brooks] declined to read the statute strictly as prohibiting
any obstruction. It noted the officer's admitted ability to read the characters
on the license plate, and it distinguished cases finding a traffic stop
permissible where the characters were unreadable. In the present case,
of course, the characters on Phillips' temporary plate were unreadable until
officer Caito actually walked right up to the rear of the stopped car.
Therefore, even if we were to agree with the Brooks majority's reading of
the statute, its ruling does not conflict with our conclusion here.
Phillips at ¶ 14.
{¶ 23} The facts in this case are nearly identical to those in Phillips. As noted,
Officer Luckoski was unable to read the license plate due to the tinted cover, even when
he was 10 to 15 feet away, and it was only after he stopped the vehicle that he was able
to read the license plate. Accordingly, there was sufficient evidence to support the
conviction under R.C. 4305.21(A)(3). The first assignment of error, therefore, is
III. Expired License Plates
{¶ 24} Hill’s second assignment of error pertains to his conviction for driving with
expired license plates. There is no dispute that Hill’s temporary license tag was expired
at the time he was stopped. According to Hill, the State was at fault for this violation
because a registration block was placed based on his failure to appear for a prior traffic
citation. Despite his failure to appear, Hill contends that he was not properly notified of
the hearing in the prior traffic case because the notice was sent to the wrong address.
{¶ 25} In his brief, Hill asserts various facts pertaining to the registration block,
including that after the court in the other traffic case removed the block, he went to the
Ohio BMV to register his license plate and was told that the court order had not yet been
received. In another visit, on January 22, 2019, Hill presented a certified copy of the
court order to a local BMV office, but was told it could not be received at that location and
that a block still existed. When the local office offered to fax the court order to the
Department of Public Safety for $10, Hill declined. He was then stopped on February 6,
2019, with the expired temporary tag.
{¶ 26} None of the facts about the Ohio BMV were in evidence in the trial court.
The law is well-settled that “[a] reviewing court cannot add matter to the record before it,
which was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),
paragraph one of the syllabus.
{¶ 27} According to the record, when Officer Luckoski stopped Hill, Hill gave him
information about a warrant block that had been resolved on January 22, 2019. When
Luckoski asked Hill why he hadn’t gotten license plates between then and February 6,
2019, when he was stopped, Hill stated that he was prevented from doing so by “[w]ork
and other life issues.” Tr. at p. 13.
{¶ 28} As the trial court observed, any excuse Hill offered for failing to obtain
license plates was irrelevant. As pertinent here, R.C. 4503.11(A) provides that “no
person who is the owner or chauffeur of a motor vehicle operated or driven upon the
public roads or highways shall fail to file annually the application for registration or to pay
the tax therefor.”
{¶ 29} ”The mental state of the offender is a part of every criminal offense in Ohio
except for those plainly imposing strict liability. R.C. 2901.21(A)(2) requires that, in order
to be found guilty of a criminal offense, a person must have ‘the requisite degree of
culpability for each element as to which a culpable mental state is specified by the section
defining the offense.’ ” State v. Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d
770, ¶ 18, quoting R.C. 2901.21(A)(2).
{¶ 30} As to mental states, R.C. 2901.21(B) provides that “[w]hen the language
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.” R.C. 2901.21(C)(1)
further states that “[w]hen language defining an element of an offense that is related to
knowledge or intent or to which mens rea could fairly be applied neither specifies
culpability nor plainly indicates a purpose to impose strict liability, the element of the
offense is established only if a person acts recklessly.”
{¶ 31} R.C. 4503.11 does not specify any degree of culpability. According to the
State, R.C. 4503.11 is a strict liability offense because no moral condemnation attaches
for its violation and it is merely a regulatory statute designed to assure that all motor
vehicles are registered. The State further notes that we previously held in State v.
Combs, 2d Dist. Greene No. 2006-CA-38, 2006-Ohio-7088, that a similar statute,
obscuring a license plate, is a strict liability offense.
{¶ 32} In Combs, we considered whether R.C. 4503.21 was a strict liability offense.
In evaluating the matter, we noted that “[o]ffenses constituting moral condemnation, or
for which imprisonment may be imposed, should not be strict liability offenses.” Id. at
¶ 17, citing State v. Brewer, 96 Ohio App.3d 413, 645 N.E.2d 120 (2d Dist.1994). We
then said that:
Although the issue is not free from difficulty, we agree with the State
that the evident purpose underlying R.C. 4503.21 militates in favor of
construing it as a strict liability offense. The purpose is evidently to
facilitate the tracing of a vehicle back to its owner. This is important if the
vehicle is stolen, if it is involved in criminal activity, or if it is involved in a
collision, perhaps killing or incapacitating the occupants. In our view, this
purpose would be seriously compromised if, in order to prove a violation of
the statute, the State would have to prove that the driver was reckless in
failing to realize that his license plate was not clearly readable. That the
offense is only a minor misdemeanor, carrying a maximum fine of $150,
R.C. 2901.02(G)(2), is consistent with this view.
Combs at ¶ 18.
{¶ 33} Like R.C. 4503.21, violation of R.C. 4503.11 is a minor misdemeanor and
does not involve imprisonment. See R.C. 4503.11(D) and R.C. 2901.02(G)(2).
Moreover, the purposes of these two sections are similar. Accordingly, the State was
not required to prove intent, and Hill’s reasons for driving with an expired plate were
{¶ 34} Furthermore, even if the State were required to prove recklessness, it did
so. Under R.C. 2901.22(C), “[a] person acts recklessly when, with heedless indifference
to the consequences, the person disregards a substantial and unjustifiable risk that the
person's conduct is likely to cause a certain result or is likely to be of a certain nature.”
According to the evidence, Hill was well aware that his temporary license tags had expired
and drove with expired tags anyway. Regardless of Hill’s excuse for doing so, his actions
were reckless.
{¶ 35} Based on the preceding discussion, the second assignment of error is

Outcome: All of Hill’s assignments of error having been overruled, the judgment of the
trial court is affirmed.

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