State v. Donkers, 2003 P 0135.
| Decision Date | 30 March 2007 |
| Docket Number | No. 2003 P 0135.,No. 2003 P 0136.,2003 P 0135.,2003 P 0136. |
| Citation | 170 Ohio App.3d 509,867 N.E.2d 903,2007 Ohio 1557 |
| Parties | The STATE of Ohio, Appellee, v. DONKERS, Appellant. |
| Court | Ohio Court of Appeals |
Victor Vigluicci, Portage County Prosecuting Attorney, and Pamela Holder, Assistant Prosecuting Attorney, for appellee.
Neil Wilson and Catherine Donkers, pro se, for appellant.
{¶ 1} Defendant-appellant Catherine Donkers appeals from the judgment of the Portage County Municipal Court, Ravenna Division, finding her guilty of driving without a valid license, failure to use a child-restraint system, and failure to comply with an order or signal of a police officer by fleeing or eluding. On appeal, she raises a great many allegations, including the lack of dialogue at her initial appearances, ineffective assistance of counsel, denial of the right to counsel, speedy trial, suppression, insufficient discovery and bill of particulars, tainted trial atmosphere, judicial bias, coverture and freedom of religion, sufficiency of the evidence, weight of the evidence, and consideration of prior arrests in sentencing.
{¶ 2} For the following reasons, appellant's child-restraint conviction is reversed with prejudice due to insufficient evidence on the element requiring that the subject vehicle be registered in the state of Ohio. Appellant's driving-without-a-valid-license charge is modified from a first-degree misdemeanor to a minor misdemeanor due to insufficient evidence that her license had been expired for more than six months. This minor-misdemeanor driving-without-a-valid-license charge and the failure-to-comply charge are reversed and the cause is remanded for a new initial appearance that provides proper discourse on appellant's rights.
{¶ 3} On May 8, 2003, a trucker driving on the Ohio Turnpike in Portage County called 911 to report a woman (appellant) driving with a baby lying in her lap. The Ohio State Highway Patrol dispatched the nearest trooper, who waited in a median crossover and clocked the described vehicle three times as it approached. The lowest speed clocked was 62 miles per hour, but the highest was said to be 68 in a 65-mile-per-hour zone. At the time, the trucker was surpassing the 55-mile-per-hour speed limit for trucks as he tailed behind appellant's vehicle flashing his lights, beeping his horn, and pointing to her car.
{¶ 4} The trooper testified that he viewed the baby in appellant's lap as she passed by his position. The trooper pulled behind appellant into the center of three lanes of traffic with the pursuit lights activated. Appellant moved into the right lane, kept her right turn signal activated, and slowed to 45 miles per hour. She was also seen pointing out of her window. Although the trooper used his lights, siren, air horn, and loudspeaker, appellant did not pull over.
{¶ 5} After traveling like this for three miles, appellant exited the turnpike and entered a line at a tollbooth. The trooper quickly approached the vehicle. He ordered appellant to turn off the vehicle and hand over her keys, which she did only after multiple requests. She voluntarily explained that she had been breastfeeding her six-month-old child, which she urged was lawful based upon legal research she performed before making the trip. She stated that she did not pull over right away because she was looking for a safe, populated place. The trooper's sergeant appeared on the scene to assist.
{¶ 6} At first, appellant would not display identification or reveal her name. She cited United States Supreme Court case law dealing with lack of police authority to demand identification where no criminal investigation was occurring; however, she failed to recognize that although the trooper admitted that he was not conducting a criminal investigation, he was referring to crimes other than the traffic offenses which he believed she committed that day. Finally, she handed over an apparently homemade identification card/affidavit displaying her picture, her name, and a Pennsylvania address.
{¶ 7} In the meantime, the trooper ran the Michigan license plate on the vehicle and found it registered to appellant. He discovered problems with her Michigan driver's license that rendered her ineligible to drive. The trooper issued a traffic citation for driving without a valid license in violation of R.C. 4507.02(A)(1) and for failure to use a child-restraint device in violation of R.C. 4511.81, a minor misdemeanor. The citation also noted an accompanying criminal charge of obstructing official business. The police waited until the child's father, Brad Barnhill, could arrive to pick up the baby before officially arresting appellant. She was then sent to jail for processing and posted bond sometime later.
{¶ 8} The next morning, May 9, 2003, appellant appeared at her initial appearance before Municipal Court Judge Pittman. Appellant attempted to question the court regarding the case numbers, possibly because the court failed to advise her that she was charged with the child-restraint violation. The court interrupted her and asked if she had counsel, at which point it appears that appellant attempted to argue her right to lay counsel. The court threatened to charge appellant with disorderly conduct for presenting her arguments, entered a not-guilty plea on her behalf, and continued the case for a pretrial on June 9, 2003.
{¶ 9} Appellant and Mr. Barnhill (with whom she claims to have a common-law marriage under the laws of Pennsylvania) filed numerous pleadings. One of the main claims was that Mr. Barnhill should be substituted as the defendant because of the doctrine of coverture and their religious belief that he is the head of household who ordered her to commit the offenses. Another major point of contention surrounded the exception in Ohio's child-restraint law for nonresidents whose non-use of the child restraint is in compliance with the law of their state of residence. Her motions pointed out that Michigan's child-restraint law has an exception for a child who is being nursed. See Mich. Comp.Laws 257.710d ().
{¶ 10} On June 5, 2003, a criminal complaint was filed by the assistant prosecutor in the Portage County Municipal Court in Ravenna. The complaint charged appellant with two additional offenses arising out of the May 8, 2003 incident: failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(B), which entails willfully fleeing or eluding; and child endangering in violation of R.C. 2919.22(A), which involves recklessly creating a substantial risk to the health or safety of a child by violating a duty of care, protection, or support. Both offenses are first-degree misdemeanors.
{¶ 11} On June 9, 2003, appellant appeared for the pretrial on the traffic citation. Her initial appearance on the new complaint was also held that day before Municipal Court Judge Martell. He entered a not-guilty plea on her behalf when she advised that she was without counsel, and he advised her how to receive appointed counsel. On June 12, the court set the trial on all charges for August 6, 2003.
{¶ 12} On July 11, 2003, the court appointed the Portage County Public Defender's Office to represent appellant. She apparently had moved from her Pennsylvania address without providing a change of address or making arrangements with her attorney to speak about the case. She finally met with counsel in the days preceding her trial and discovered that he would not agree to raise all the defenses she desired to present.
{¶ 13} On the morning of the August 6, 2003 trial, the court was advised that appellant refused appointed counsel's representation. Maintaining her coverture argument, appellant explained that she was representing her husband's interest and that she would be her husband's first choice of counsel. Before allowing appellant to proceed pro se, the court inquired into her understanding of the case and the situation. Counsel was then permitted to withdraw but ordered to remain as stand-by counsel.
{¶ 14} Before proceeding, the state dismissed the obstructing-official-business charge. (This was probably because the traffic ticket specified there were only two charges, obstructing is not a traffic offense, obstructing was listed as a criminal charge that would be filed later, and no later criminal charge was filed on that offense as the state charged her with fleeing and eluding instead.) The bench trial took two full days plus the morning of the third day for closing arguments. The trucker testified that he looked out of his driver's side window and saw a sleeping baby laying face down in appellant's lap with its head toward the driver's door. He did not see her nursing and noted that he would not have been able to see this since the baby's head was on her left side. The trooper testified to the sequence of events leading up to her arrest, and the video from his dashboard camera was viewed. The sergeant also testified for the state.
{¶ 15} Mr. Barnhill testified for the defense that appellant has a residence in Livonia, Michigan, that is a condominium owned by a trust, with her same name, for which she was the trustee. Mr. Barnhill identified a gas bill for the residence in appellant's name and testified that appellant stays at the Michigan residence very often, approximately two times per month and often for extended stays. He also testified that he instructed appellant to nurse while driving to save time on the drive to Michigan; he explained that he had researched the law to determine the propriety of the action. He also disclosed that when appellant called him to inform him that she was being signaled to stop, he told appellant to proceed to the nearest toll booth before stopping. He explained that she must do...
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