State v. BakerState v. Baker
Rendered on the 11th day of June, 2010.
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BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Prosecuting Attorney, 510 West Main Street, Fairborn, Ohio 45324
Attorney for Plaintiff-Appellee
WILBURN L. BAKER, Atty. Reg. No. 0076844, 1423 Research Park Drive, Beavercreek, Ohio 45432
Defendant-Appellant
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FROELICH, J.
{¶ 1} Wilburn Lee Baker was found guilty after a bench trial in the Fairborn Municipal Court of violating
{¶ 2} Baker, who is an attorney, appeals, pro se, from his conviction, arguing that the trial court should have granted his
I
{¶ 3} State Trooper Jennifer Hildebrandt, a sixteen year veteran of the Ohio State Highway Patrol, was the State‘s sole witness at trial. Her testimony established the following facts.
{¶ 4} During the morning of March 17, 2009, Hildebrandt was patrolling U.S. Route 35 in Beavercreek Township, Greene County, in a marked cruiser. Hildebrandt observed Baker‘s vehicle traveling at a speed of 71 mph in a 55 mph zone, as measured by laser. When Baker passed her, she was able to see inside his vehicle “but not to the point of being able to identify anyone.” Hildebrandt pulled out behind him and initiated a traffic stop.
{¶ 5} Hildebrandt exited her cruiser and approached Baker‘s vehicle. She advised Baker that he had been stopped for speeding. She also told him that his window tint was too dark and that she was going to check the tint with a tint meter. The tint meter indicated that only 7.2 percent of light was being transmitted through the window. Hildebrandt advised Baker that she was going to give a warning on his speed and issue a citation for the window tint. Hildebrandt stated that the tint was on “[t]he front, the rear, and all of side
{¶ 6} Baker moved for a judgment of acquittal pursuant to
{¶ 7} Baker testified on his own behalf and called Hildebrandt as a witness. Baker testified to his education and work experience in electrical systems engineering, and the court qualified him as an expert. Baker testified that Hildebrandt had used a Pocket Detective 2.1, manufactured by Guardco, to measure the tint of the window. The court excluded as hearsay Internet printouts about the device from Guardco‘s website. Baker testified that bandwidth of the visible light spectrum is typically 400 to 800 nanometers. He stated that the State had presented no evidence that the officer measured any visible light within that nanometer range. Baker further testified that the window that Hildebrandt measured was “filthy with grime on the outside” and “with a Coke that had frozen on the inside. It had frozen in Telluride.” Hildebrandt did not clean the window before taking the tint measurement, and she only measured one window.
{¶ 8} On cross-examination, Baker agreed that he was stopped by Hildebrandt on U.S. Route 35. Baker did not know the color of the window tint on his vehicle. He stated that he did not own a tint meter, but had measured the tint with a “low-tech tint meter with basically shades of gray, 100 one-percent degradations, from 1 to 100 percent,” which he had
{¶ 9} Upon questioning by Baker, Hildebrandt clarified that there was no tinting on the windshield. Hildebrandt indicated that she had been trained on how to use the tint meter. Hildebrandt could not explain “the theory of operation of the machine” in terms of physics, but she stated that “I know that putting it on the window, it gives a reading of the light transmittance. We also have a testing glass to be able to do like a calibration check on it before we use it.” Hildebrandt stated that she did not clean the window or look inside the vehicle before using the tint meter, and that she had never been instructed – and the user‘s manual does not advise – to clean the window “unless there was a lot of mud where it could not be readable.” Hildebrandt stated that, according to the manual, the error rate for the tint meter is plus or minus two percent. Hildebrandt had not reviewed the manual “in probably 16 years.” She described Baker‘s windows as “dark” and “closest to black” in color.
{¶ 10} Upon additional questioning by the State, Hildebrandt indicated that the window tint was not yellow or red. Hildebrandt had done the calibration on the tint meter at the beginning of her shift, and the tint meter was working properly at that time. Hildebrandt had tested the passenger‘s window of Baker‘s vehicle. The side windows and the back window were all tinted.
{¶ 11} At the conclusion of the testimony, Baker again moved for a judgment of acquittal, stating: “We have absolutely no information that the device used was, in fact, scientifically reliable.” The court denied the motion, found Baker guilty, and imposed a $20 fine and court costs. Although Baker did not seek a stay of this sentence, we see no
{¶ 12} Baker raises two assignments of error on appeal, which we will address in reverse order.
II
{¶ 13} Baker‘s second assignment of error states:
{¶ 14} “THE TRIAL COURT ERRED IN DENYING APPELLANT‘S CRIM.R. 29 MOTION FOR ACQUITTAL.”
{¶ 15} In his second assignment of error, Baker claims that the trial court should have granted his
{¶ 16} We review the denial of a
{¶ 17}
{¶ 18}
{¶ 19} “(A) No person shall operate, on any highway or other public or private property open to the public for vehicular travel or parking, lease, or rent any motor vehicle that is required to be registered in this state with any sunscreening material, or other product or material which has the effect of making the windshield or windows nontransparent or would alter the windows’ color, increase its reflectivity, or reduce its light transmittance, unless the product or material satisfies one of the following exceptions:
{¶ 20} “***
{¶ 21} “(2) Any sunscreening material or other product or material applied to the
{¶ 22} “(3) Any sunscreening material or other product or material applied to the side windows to the immediate right or left of the driver, so long as such material, when used in conjunction with the safety glazing materials of such windows, has a light transmittance of not less than fifty per cent plus or minus three per cent and is not red or yellow in color.”
{¶ 23} Baker asserts that the State was required to demonstrate that the window tinting was not red or yellow in color. Baker‘s argument is based on a misreading of the Administrative Code.
{¶ 24} In this case, the State asserted that the tint on Baker‘s side windows had a light transmittance of less than 50 percent. Hildebrandt testified that the tint was present on “[t]he front, the rear, and all of side windows” of Baker‘s vehicle and that she used a tint meter to measure the amount of light being transmitted through the window. The tint meter
{¶ 25} Construing the evidence in the State‘s favor, Hildebrandt‘s testimony on direct examination by the State that the tint was present on “[t]he front, the rear, and all of side windows” of Baker‘s vehicle indicated that Baker‘s windshield also was tinted. The exception set forth in
{¶ 26} The State presented sufficient evidence in its case-in-chief to prove a violation of
III
{¶ 27} Baker‘s first assignment of error states:
{¶ 28} “THE TRIAL COURT ERRED IN ADMITTING SCIENTIFIC EVIDENCE WHICH WAS NOT PROVEN TO BE SCIENTIFICALLY RELIABLE OR ACCURATE.”
{¶ 29} Baker claims that the trial court erred in admitting the results of the tint
{¶ 30} Where the reliability and accuracy of a measuring device has not been established by legislative enactment, such as with certain breathalyzer testing devices, or judicially noticed, such as with stationary radar or lasers to measure speed, Ohio courts have adopted three criteria to determine the admissibility of a device‘s test results:
{¶ 31} “A. The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidence by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence.
{¶ 32} “B. The particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidenced by a qualified expert.
{¶ 33} “C. The witness using the apparatus as the source of his testimony must be one qualified for its use by training and experience.” (Emphasis in original) East Cleveland v. Ferell (1958), 168 Ohio St. 298, 301 (holding that expert testimony was no longer required to establish reliability and accuracy of stationary radar guns), quoting Wigmore, The Science of Judicial Proof 3 Ed. 1937, at 450. See, e.g., State v. Everett, Wyandot App. No. 16-09-10, 2009-Ohio-6714, ¶6 (addressing moving radar device).
{¶ 34} The State bears the burden to prove the reliability of the device upon which it
{¶ 35} We have located only one case in Ohio that has addressed the reliability of the Pocket Detective 2.1 Window Tint Meter, the device used by Hildebrandt. In State v. Bailey, Huron App. No. H-07-023, 2008-Ohio-1290, the defendant received a window tinting citation following a state trooper‘s testing of his window with a Pocket Detective 2.1 Window Tint Meter. Bailey filed a motion in limine seeking to prohibit the test results from being introduced at trial on the ground that the device was unreliable and inaccurate. The State presented Donald Scharrer, the general manager of the device‘s manufacturer, as an expert witness. Scharrer “outlined extensive firsthand knowledge of the design, manufacture, workings, processes, and reliability testing of the Pocket Detective. Scharrer‘s testimony established why and how the Pocket Detective accurately and reliably works. Scharrer‘s testimony was based upon independently verifiable and accepted professional standards.” The defendant offered the expert testimony of his son, who had electronics training and had constructed a “makeshift” spectrometer that allegedly demonstrated the device‘s lack of accuracy and reliability. The trial court found the Pocket Detective to be reliable. The appellate court affirmed, finding competent, credible evidence to support the trial court‘s finding. Id. at ¶13.
{¶ 36} In the present case, the State did not present expert testimony to establish the Pocket Detective‘s reliability and accuracy, and it did not ask the court to take judicial notice of that fact. However, Baker did not file a motion in limine or a motion to suppress the tint meter results prior to trial, nor did he object to Hildebrandt‘s testimony during the State‘s case-in-chief regarding her use of the tint meter and the results she obtained. Rather, Baker
{¶ 37} Under
{¶ 38} The admission of tint meter results did not rise to the level of plain error. Hildebrandt had been a State Trooper for sixteen years. Upon questioning by Baker, Hildebrandt testified that she had been trained to use the tint meter and that she had a testing glass in order to perform a calibration check on the meter. Hildebrandt had tested the calibration of the tint meter at the beginning of her shift, and it was working properly at that
{¶ 39} Moreover, even if the tint meter results had been excluded, Hildebrandt testified that, when Baker had driven past her, she could see inside the vehicle, but could not see “to the point of being able to identify anyone.” When Baker asked her to describe the color of his windows, Hildebrandt described them as “dark” and the closest color “would be black.” Although the trial court would not have known the exact light transmittance of the windows absent the tint meter reading, under these specific facts, the court could still have reasonably found that Baker‘s windows violated
{¶ 40} The first assignment of error is overruled.
IV
{¶ 41} The judgment of the trial court will be affirmed.
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FAIN, J. and GRADY, J., concur.
Copies mailed to:
Betsy A. Deeds
Wilburn L. Baker