Lead Opinion
{¶ 3} Mr. Jenney's argument fails because the municipal court correctly allowed the City to amend the citation. Rule 7(D) of the Ohio Rules of Criminal Procedure provides that "[t]he court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged." "[B]ecause traffic citations need not be the product of grand jury action, they `should be amendable to cure defects more readily than felony indictments.'" State v. Dunlap, 9th Dist. No. 97CA006859,
{¶ 4} On the citation, Officer Santimarino identified the correct statutory provision, Section
{¶ 6} Mr. Jenney has argued that the municipal court should have granted his motion because the City failed to establish a proper foundation for admission of the reading from the Python radar device that Officer Santimarino used to determine his speed. "In general, a velocity reading made by a speed detection device is authenticated by evidence of three specific things. *4
First, the device `must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science[.]' . . . Second, the [City] must show that the device used was an accepted type and in good condition for accurate work. . . . Finally, the witness using the device must be qualified to operate the device through training and experience." State v. Jamnicky, 9th Dist. No. 03CA0039,
{¶ 7} Mr. Jenney has argued to this Court that the City failed to present any evidence regarding the dependability of the Python device or of Officer Santimarino's qualifications to use it. At trial, Mr. Jenney objected to Officer Santimarino's testimony, arguing that he was not qualified to operate the Python device. He cross-examined Officer Santimarino about his qualifications to use the Python device and contested whether the device was calibrated properly. He did not, however, contest the scientific reliability of the Python device itself. Accordingly, he has forfeited his challenge to the dependability of the Python device and, therefore, this Court will only consider his argument that the City failed to show that Officer Santimarino was qualified to use the device. Id. at ¶ 13; State v. Brown, 9th Dist. No. 02CA0034-M,
{¶ 8} Although Officer Santimarino testified that he is certified to operate the device, he did not produce any evidence of that fact beyond his testimony. Testimony by a law enforcement officer that "he was trained on the radar unit" is insufficient to establish that he is qualified to operate it. Brown,
{¶ 9} Although the municipal court should not have let Officer Santimarino testify about the speed the radar device indicated Mr. Jenney was traveling, it did not convict Mr. Jenney solely on that evidence. The court explained that "what I'm going to do is take everything as a whole, and I'm going to find Mr. Jenney guilty of traveling over the speed limit. However, what I'm going to do is I'm going to accept the officer's visual estimation, because I think that's where he was strong enough, strongest in his testimony. And his visual estimation . . . was that he believed [Mr. Jenney] was traveling at 70 miles an hour." This Court has held that a conviction may be based solely on an "officer's testimony that he observed [a] defendant traveling in excess of the posted speed limit." State v. Wilson, 9th Dist. No. 95CA006285,
{¶ 11} Mr. Jenney has argued that Officer Santimarino's testimony was not credible because he gave inconsistent answers about how fast the radar device said he was traveling. Officer Santimarino initially testified that the device clocked him traveling "at 73 mile[s] per hour." He later said that the radar device clocked him traveling "at a speed of 82 mile[s] per hour." Shortly thereafter, he said that the device "displayed a speed of . . . 83 [miles per hour]." When the prosecutor asked Officer Santimarino whether Mr. Jenney's speed was 82 or 83 miles per hour, the officer asserted that he had made a mistake and that it was 82 miles per hour. He then indicated that it was what was "written down on the citation." On the citation, Officer Santimarino had written 79 miles per hour.
{¶ 12} On cross-examination, Officer Santimarino repeated that the radar device had clocked Mr. Jenney traveling at 82 miles per hour. He said that he wrote 79 miles per hour on the traffic citation as a courtesy to Mr. Jenney so that Mr. Jenney could avoid a mandatory court appearance. He said that, on the ticket, he had made a small note indicating "the actual speed that [Mr. Jenney] was traveling." When he read his note, he said that Mr. Jenney's speed had been 83 miles per hour.
{¶ 13} Mr. Jenney has also argued that Officer Santimarino was inconsistent about the number of times he had visually estimated the speed of vehicles during his training. The prosecutor asked Officer Santimarino: "And so when you were in this training, how many times did you practice making a visual estimation of a vehicle?" Officer Santimarino answered: "Probably hundreds of times in the training." After Mr. Jenney noted that Officer Santimarino's answer seemed high, the court asked him: "When you were being trained on the visual estimation technique . . . how many visual estimations did you do before you were adjudged to be certified?" Officer Santamarino replied: "Probably five to ten." *7
{¶ 14} Mr. Jenney has further argued that no weight should be given to Officer Santimarino's visual estimate because of how much different it was from what the radar device calculated. Mr. Jenney has noted that Officer Santimarino's estimate was more than 10 miles per hour different than what the radar device indicated. He, therefore, has argued that, even if Officer Santimarino was trained in visually estimating speeds, he miscalculated on this occasion.
{¶ 15} While Officer Santimarino was inconsistent about how fast the radar device said Mr. Jenney was traveling, the municipal court relied on the officer's visual estimate of Mr. Jenney's speed, which it found credible. In addition, Officer Santimarino's answers about the number of times he visually estimated the speed of vehicles are reconcilable. His first answer referred to the number of estimates he made during the course of his training. His second answer referred to the number of estimates he had to make during his certification test. It is logical that Officer Santimarino would practice visually estimating the speed of vehicles many times to ensure that he got the ones during his certification test correct. Furthermore, although Officer Santimarino's visual estimate was different than what the radar device calculated, Mr. Jenney has established that it is unknown whether Officer Santimarino was properly certified to operate the device. Mr. Jenney cannot reasonably argue that the device's reading is not reliable enough to support his conviction because the City failed to lay a proper foundation for its admission but is reliable enough to impeach the officer's ability to do a visual estimation.
{¶ 16} The municipal court did not lose its way and create a manifest miscarriage of justice by accepting Officer Santimarino's testimony that Mr. Jenney was traveling faster than the posted speed limit. Mr. Jenney's third assignment of error is overruled. *8
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Barberton Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to appellant.
CLAIR E. DICKINSON FOR THE COURT
MOORE, P. J. CONCURS *9
Concurrence Opinion
{¶ 18} I concur in judgment only. Although the majority determines Mr. Jenney forfeited any challenge to the reliability of the Python radar device utilized by Officer Santimarino, I note my continued disagreement with the need for trial and appellate courts to address the reliability of every different speed monitoring device utilized by law enforcement, as I believe the science underlying such devices has reached the point of general reliability within the scientific community. See State v.Freitag, 9th Dist. No. 07CA0082,
{¶ 19} And while I agree that the trial court should focus on the calibration and operational status of the particular device being used and the qualifications of the person using it, I disagree with the majority's contention that evidence such as a certificate of training is required to validate an officer's testimony that he or she has been properly trained in the use of the device. At the hearing, Officer Santimarino testified that he has worked in traffic enforcement since 1995. He testified that he was trained at the police academy to operate and calibrate Doppler radar devices and that he received certification of that training. He further stated that, at the beginning of his shift that day, he activated the machine's internal calibration test which indicated the machine was working properly. Additionally, he testified at length as to the external calibration testing he performed utilizing tuning forks, which also indicated that *10 machine was operating properly and accurately calibrated. Officer Santimarino confirmed on cross examination that he received training on the Python unit specifically when his police department began using it, but didn't recall the exact year of that training.
{¶ 20} I consider Officer Santimarino's testimony as providing the court with sufficient evidence that he was qualified to operate the radar device in question. See Brunswick v. Dove, 9th Dist. No. 02CA0059-M,
{¶ 21} While I agree that Mr. Jenney's speeding conviction was not based upon insufficient evidence or against the manifest weight of the evidence and should be affirmed, I disagree with the majority's conclusion that the trial court should not have permitted Officer *11 Santimarino to testify as to the speed he recorded using the Python radar device. Accordingly, I concur in judgment only. *1