CITY OF BARBERTON, APPELLEE, v. JENNEY, APPELLANT.
No. 2009-1069
Supreme Court of Ohio
Submitted February 17, 2010-Decided June 2, 2010
126 Ohio St.3d 5, 2010-Ohio-2420
O‘CONNOR, J.
{11} In this appeal, we determine whether a police officer‘s unaided visual estimation of a vehicle‘s speed, by itself, is sufficient evidence of the vehicle‘s speed to support a conviction for speeding in violation of
{12} A rational trier of fact could find testimony by a police officer who is trained, certified by the Ohio Peace Officer Training Academy (“OPOTA“) or a similar organization, and experienced in visually estimating vehicle speed that he estimated a vehicle‘s speed to be in excess of the posted limit sufficient evidence to establish a violation of
Relevant Background
{13} On July 3, 2008, Officer Christopher R. Santimarino was in a marked patrol car running stationary radar at southbound traffic on State Route 21 in Copley Township, Ohio. The posted speed limit in that location is 60 miles per hour. Santimarino observed Jenney driving a black SUV in the left lane of Route 21 in moderate to heavy traffic. Santimarino determined that Jenney was traveling faster than the posted speed limit, initiated a traffic stop, and issued Jenney a citation for traveling 79 miles per hour in a 60-mile-per-hour zone in violation of
{14} The case proceeded to trial in the Barberton Municipal Court.
{15} At trial, Santimarino testified that he had been employed as a patrolman with the Copley Police Department for 13 years. He testified that he was certified by OPOTA and had been working in traffic enforcement since 1995. Santimarino testified that as part of his OPOTA training, he was trained to visually estimate the speed of a vehicle. In order to be certified by OPOTA, Santimarino was required to show that he could visually estimate a vehicle‘s speed to within three to four miles per hour of the vehicle‘s actual speed, which he did. Further, Santimarino testified that since becoming a police officer in 1995, he had performed hundreds of visual estimations. Santimarino testified that based on his training and experience, he had estimated that Jenney‘s vehicle was traveling 70 miles per hour on July 3, 2008.
{16} Santimarino also testified that in addition to his training and experience in visually estimating vehicle speed, he was trained and certified to use the Python brand Doppler radar unit that he was using on July 3, 2008. Santimarino testified on direct examination that after he visually estimated the speed of Jenney‘s vehicle, he observed that the radar unit indicated that Jenney‘s vehicle
{17} Santimarino also testified that Jenney was traveling at an unreasonable speed for the conditions, given the other traffic in close proximity to his vehicle.
{18} In light of both his visual estimation and the radar reading, Santimarino initiated a traffic stop and issued Jenney a citation for traveling 79 miles per hour in a 60 mile per hour zone in violation of
{19} At the conclusion of the city‘s case, Jenney moved for an acquittal pursuant to
{110} The trial judge found Jenney guilty of traveling over the posted speed limit. Based on Santimarino‘s visual estimation, which the trial court found to be his “strongest” testimony, the court amended the citation to state that Jenney had been traveling 70 miles per hour in a 60-mile-per-hour zone and imposed a $50 fine plus court costs.
{111} Jenney appealed his conviction to the Ninth District Court of Appeals, arguing that the trial court had erroneously permitted the city to amend the traffic citation and that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Jenney argued that the radar results were not admissible because the city had failed to establish a proper foundation for admission. Jenney maintained that without the radar results, the city had failed to present sufficient evidence of his speed and his conviction could not stand. The court of appeals held that because Santimarino could not produce his certificate to operate the radar unit on the day of trial, the state had not proved that he was qualified to operate the radar unit and the trial court had erred in permitting him to testify regarding the radar results.3 Id., 18. Howev-
{112} We accepted review of Jenney‘s discretionary appeal to determine whether a police officer‘s unaided visual estimation of a vehicle‘s speed, by itself, is sufficient to support a conviction for violation of
Analysis
{113} The trial court found appellant guilty of “traveling over the speed limit.” Pursuant to
{114} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541, quoting Black‘s Law Dictionary (6th Ed.1990) 1433. “In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Id. In reviewing a challenge to 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. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, 113, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{115} “Visual observation has long been held a valid means of determining the speed of a moving vehicle as long as the witness has a reliable opportunity to view the vehicle.” State v. Harkins (Aug. 5, 1987), 4th Dist. No. 431, 1987 WL 15492, at *3. A majority of the appellate districts that have considered the issue have held that an officer‘s testimony that in his opinion, a defendant was traveling in excess of the speed limit is sufficient to sustain a conviction for speeding.
{116} Jenney relies on decisions by the Second, Third, and Eighth Districts to support his argument that an officer‘s visual estimation of a vehicle‘s speed, alone, is insufficient to support a conviction pursuant to
{117} The Eighth District held that an officer‘s visual estimation of a vehicle‘s speed, alone, is insufficient to support a conviction for speeding, stating that “the mere educated guess of the arresting officer as to the speed of a vehicle is insufficient to overcome the presumption of innocence and the burden of proof beyond a reasonable doubt for conviction.” Campbell, 2006-Ohio-6582, 2006 WL 3630780, 115.
{118} Although Jenney‘s reliance on the Eighth District‘s decision in Campbell is sound, his reliance on the Second District‘s decisions in Saphire and Meyers and the Third District‘s decision in Westerbeck is misplaced. After its decisions in Saphire and Meyers, the Second District held that testimony regarding an officer‘s visual estimation of speed, alone, may be sufficient to support a conviction for speeding upon an adequate showing of the officer‘s training and ability to accurately visually estimate the speed of vehicles. State v. Konya, 2d Dist. No. 21434, 2006-Ohio-6312, 2006 WL 3462119, 17-8, 14. In Konya, the court held
{119} The Eighth District stands alone in holding that an officer‘s visual estimation of the speed of a vehicle is insufficient to support a finding of guilt, and we agree with the courts that have found the opposite. Rational triers of fact could find a police officer‘s testimony regarding his unaided visual estimation of a vehicle‘s speed, when supported by evidence that the officer is trained, certified by OPOTA or a similar organization, and experienced in making such estimations, sufficient to establish beyond a reasonable doubt the defendant‘s speed. Independent verification of the vehicle‘s speed is not necessary to support a conviction for speeding.
{120} The officer‘s credibility remains an issue for the trier of the facts. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, 120, quoting State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. “Because the trier of fact sees and hears the witnesses and is particularly competent to decide ‘whether, and to what extent, to credit the testimony of particular witnesses,’ we must afford substantial deference to its determinations of credibility.” Konya, 2006-Ohio-6312, 2006 WL 3462119, 16, quoting State v. Lawson (Aug. 22, 1997), 2d Dist. No. 16288, 1997 WL 476684, *4.
{121} At the time of the traffic stop, Santimarino had been employed as a patrolman with the Copley Police Department for 13 years. He is trained to visually estimate vehicle speed to within three to four miles per hour of the vehicle‘s actual speed, he is certified by OPOTA in visually estimating vehicle speed, and he has performed hundreds of visual estimations since becoming a police officer in 1995. Santimarino testified that based on his training and experience, he visually estimated that Jenney was traveling 70 miles per hour at the time of the traffic stop. Santimarino‘s testimony was sufficient to support Jenney‘s conviction for traveling at a speed above the posted limit in violation of
{122} Given Santimarino‘s training, OPOTA certification, and experience in visually estimating vehicle speed, his estimation that Jenney was traveling 70 miles per hour was sufficient to support Jenney‘s conviction for driving over the posted speed limit of 60 miles per hour in violation of
Conclusion
{123} A police officer‘s unaided visual estimation of a vehicle‘s speed is sufficient evidence to support a conviction for speeding in violation of
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, LANZINGER, and CUPP, JJ., concur.
O‘DONNELL, J., dissents.
BROWN, C.J., not participating.
O‘DONNELL, J., dissenting.
{124} I respectfully dissent.
{125} While a police officer who is trained, certified by the Ohio Peace Officer Training Academy, and experienced in estimating a vehicle‘s speed may, as any other expert witness, offer an opinion of the speed of a moving vehicle during testimony in a court proceeding, I do not agree that such testimony per se is sufficient evidence to support a conviction for speeding. Like any other witness, a police officer‘s credibility is to be determined by the jury or other fact-finder. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, 11120, quoting State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus (” [T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts’ “). In fact, jury instructions given regularly by trial judges advise that a jury is privileged to believe all, part, or none of the testimony of any witness. See, e.g., State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, 120 (citing jury
{126} Thus, I would assert that a broad standard as postulated by the majority that a trained, certified, and experienced officer‘s estimate of speed is sufficient evidence to support a conviction for speeding eclipses the role of the fact-finder to reject such testimony, and thus such testimony, if found not to be credible, could, in some instances, be insufficient to support a conviction.
Michelle Banbury, City of Barberton Law Department Assistant Prosecuting Attorney, for appellee.
John Kim, for appellant.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, and Emily S. Schlesinger, Deputy Solicitor, urging affirmance for amicus curiae, Ohio Attorney General.