Kettering v. StachlerKettering v. Stachler
O P I N I O N
Rendered on the 29th day of October, 2010.
John D. Everett, Pros. Attorney, Atty. Reg. No.0069911, 2325 Wilmington Pike, Kettering, OH 45420
Attorney for Plaintiff-Appellee
Herbert G. Stachler, 3157 Leonora Drive, Kettering, OH 45420
Defendant-Appellant, Pro Se
GRADY, J.:
{¶ 1} Defendant, Herbert G. Stachler, appeals from his conviction, following a bench trial, of the offense of speeding, in violation of Section 434.03 of the Kettering Municipal Traffic Code.
{¶ 2} “THE TRIAL COURT ERRED IN FINDING DEFENDANT-APPELLANT “GUILTY” BEYOND A REASONABLE DOUBT.”
SECOND ASSIGNMENT OF ERROR
{¶ 3} “THE TRIAL COURT ERRED IN ACCEPTING INTO EVIDENCE A “READING” FROM AN UNIDENTIFIED SPEED MEASURING DEVICE ABSENT EVIDENCE OF CONSTRUCTION, METHOD OF OPERATION, OR SCIENTIFIC RELIABILITY.”
THIRD ASSIGNMENT OF ERROR
{¶ 4} “THE GUILTY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
FOURTH ASSIGNMENT OF ERROR
{¶ 5} “THE APPELLANT WAS DENIED A FAIR TRIAL AND HIS RIGHT TO DUE PROCESS.”
{¶ 6} On August 6, 2009, Stachler was cited by Kettering Police Officer Ronald Roberts on a charge of driving forty miles per hour in a posted twenty-five mile per hour zone. Officer Roberts was the sole witness who testified at Stachler‘s trial. He testified that the radar device in his cruiser indicated that Stachler‘s speed was forty miles per hour, a speed which the officer also opined was unsafe for the prevailing conditions.
{¶ 7} Officer Roberts testified that he is trained and experienced in using radar devices to determine a vehicle‘s speed.
{¶ 8} Stachler moved to dismiss the speeding charge at the close of the evidence. He argued that Officer Roberts’ testimony was insufficient to prove the speed at which Stachler‘s vehicle was traveling, in reliance on the officer‘s reading of his radar device, for three reasons. First, because the officer had not explained how the device works. Second, because the officer had not testified to the serial number of the device and the tuning forks he used to verify its calibration. And, third, because the prosecution failed to produce “logs” of the calibration checks Officer Roberts performed. The court overruled Stachler‘s motion to dismiss. In these related assignments of error, Stachler argues that the trial court erred in so doing.
{¶ 9} Stachler‘s motion to dismiss, and the error he assigns on appeal, go to the issue of “authentication,” a requirement as a condition precedent to admissibility, which is satisfied by evidence sufficient to support a finding that the matter in question
{¶ 10} In a prosecution for speeding based on a reading from a radar device, “it is sufficient to show that the meter was properly set up and tested by a technician trained by experience to do so, and that at that time it was functioning properly; and it is not essential to the admissibility of such evidence to show, by independent expert testimony, the nature and function of or the scientific principles underlying such speed meter.” City of East Cleveland v. Ferell (1958), 108 Ohio St. 298, syllabus. “Once the dependability of the radar unit is established, its accuracy may be shown by testimony indicating that the unit has been properly calibrated according to the manufacturer‘s instructions.” State v. Doles (1980), 70 Ohio App.2d 35, 40.
{¶ 11} Stachler did not object that the State failed to offer evidence showing that the radar device Officer Roberts used had been properly calibrated by a technician trained and experienced in performing that task. Any error in not excluding the evidence for that reason is therefore waived. Instead, Stachler objected that Officer Roberts failed to support his testimony concerning
{¶ 12} Neither was it necessary for Officer Roberts to testify to the serial number of the radar device that was in Officer Roberts’ cruiser or the serial numbers of the turning forks he said he used to check its calibration. The serial numbers concerned are not probative of any fact in issue. It appears that Stachler wished to have that information in order to challenge Officer Roberts’ testimony concerning the speed his device reported. Stachler could have sought that information through pretrial discovery.
{¶ 13} Finally, it was not necessary for Officer Roberts or any other witness to testify concerning the nature and function or the scientific principles underlying the radar device Officer Roberts used. City of East Cleveland v. Ferell.
{¶ 14} The first, second, third, and fourth assignments of error are overruled.
FIFTH ASSIGNMENT OF ERROR
{¶ 16} “A police officer‘s unaided visual estimation of a vehicle‘s speed is sufficient evidence to support a conviction for speeding in violation of
{¶ 17} Officer Roberts testified that when he saw Stachler‘s vehicle he concluded that it was “traveling . . . at a high rate of speed” (T. 6), and because of that the officer activated his radar device. Officer Roberts also testified that he was trained to determine a vehicle‘s speed through visual observation, but he declined to estimate a specific speed at which Stachler‘s vehicle was traveling, relying instead on the reading his radar device provided.
{¶ 18} Stachler‘s offense was charged and proved on the basis
{¶ 19} The fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 20} “DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.”
{¶ 21} Stachler complains that he was cited on August 6, 2009, but was not tried until September 9, 2009, a difference of thirty-four days. Persons charged with minor misdemeanors must be tried within thirty days following their arrest or citation.
{¶ 22} Stachler failed to move for a discharge pursuant to
{¶ 23} The sixth assignment of error is overruled. The
FAIN, J. And FROELICH, J., concur.
Copies mailed to:
John D. Everett, Esq.
Herbert G. Stachler
Hon. Robert L. Moore