93 N.E.3d 1027
Oh. Ct. App. 7th Dist. Belmont2018Background
- On May 24, 2014 Todd Cleavenger was cited for speeding (67 mph in a 55 mph zone) after an Ohio State Highway Patrol trooper, traveling opposite direction, visually estimated speed and used a BEE III Doppler moving-radar in his cruiser to obtain the reading.
- Trooper testified to device operation, annual and specific training, tuning-fork checks at start/end of shift, an internal self-check at shift start, and semiannual calibration by a radio technician; no daily written logs of tuning-fork checks were kept.
- Trial court took judicial notice that Doppler radar devices are a scientifically accepted means of measuring vehicle speed (citing a prior in-court finding), and admitted the radar reading; Cleavenger did not object to the court’s taking of judicial notice at trial.
- The court found the trooper was properly trained, the device was operating and checked as required, and convicted Cleavenger of speeding; he appealed, arguing inadequate foundation for the radar reading, insufficient operator certification, and that the conviction was against the manifest weight of the evidence.
- The appellate court affirmed, holding judicial notice of Doppler radar reliability acceptable, the officer sufficiently qualified and the particular device shown to be operating accurately, and the conviction was not against the manifest weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial notice of scientific reliability of moving Doppler radar | State: Doppler radar is generally accepted; court may take judicial notice of the scientific principle | Cleavenger: No expert testimony for moving radar; no prior like-circuit precedent for BEE III; judicial notice improper | Court: Judicial notice of Doppler radar reliability is proper; no timely objection waived the point; Ferell supports taking notice |
| Foundation for accuracy of particular device | State: Trooper testified to self-checks, tuning-fork tests, semiannual technician calibration, and cross-checked cruiser speed | Cleavenger: No written daily log of tuning-fork checks; gaps in model-specific foundation | Court: Testimony of device checks and technician calibration sufficed to show the device was working accurately |
| Officer qualifications to use moving radar | State: Trooper had academy training, operator certificates, annual training, and device-specific instruction | Cleavenger: Training on BEE III was limited; later training entries didn’t specify model | Court: Trooper’s training and experience were adequate; he was qualified to operate the device |
| Manifest weight of evidence | State: Radar reading (67 mph) plus trooper testimony supported conviction | Cleavenger: Without the radar reading, only visual estimate conflicts with defense witness asserting 55 mph; conviction against manifest weight | Court: Weight favoring conviction; radar reading properly admitted and trooper credible; conviction affirmed |
Key Cases Cited
- City of E. Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (Ohio 1958) (establishes that Doppler radar readings may be judicially noticed as generally accepted scientific evidence and identifies three foundational questions: general acceptance, device condition, and operator qualifications)
- State v. Shelt, 46 Ohio App.2d 115, 346 N.E.2d 345 (6th Dist. 1976) (holding that upon publication the MR-7 moving radar device could be judicially noticed as acceptable for its purpose)
- State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (Ohio 1997) (sets standard for manifest-weight review and instructs appellate deference to the trier of fact on credibility)
- State v. Brewer, 121 Ohio St.3d 202, 903 N.E.2d 284 (Ohio 2009) (discusses effects of evidentiary rulings and that a sufficiency review considers all evidence presented)
- Barberton v. Jenney, 126 Ohio St.3d 5, 929 N.E.2d 1047 (Ohio 2010) (addressed officer visual-speed estimates and was later limited by statutory amendment requiring "aided" speed measurement for certain offenses)