STATE OF OHIO v. NICHOLAS J. CASTAGNOLA
Case No. 15-COA-026
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 18, 2015
2015-Ohio-4752
Hоn. W. Scott Gwin, P.J.; Hon. Sheila G. Farmer, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court, Case No. 15TRD04620; JUDGMENT: Affirmed
For Plaintiff-Appellee
ANDREW N. BUSH
Assistant Law Director
1213 E. Main Street
Ashland, Ohio 44805
For Defendant-Appellant
NICHOLAS J. CASTAGNOLA, pro se
6751 Forest Glen Avenue
Solon, Ohio 44139
{¶1} Defendant-appellant Nicholas Castagnola appeals from the July 30, 2015 Judgment Order of the Ashland Municipal Court. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 9, 2015 at approximately 1:43 a.m., appellant was cited for driving 97 miles per hour in a 70 mile per hour zone in violation of
{¶3} A bench trial was held on July 24, 2015. As memorialized in a Judgment Order filed on July 30, 2015, the trial court found aрpellant guilty. The trial court, in its Order, found that appellant had endangered others “by his excessive speed and the circumstances surrounding his driving” and that appellant‘s operation of his vehicle was recklеss. The trial court suspended appellant‘s operator‘s license for one year pursuant to
{¶4} Appellant now raises the following assignments of error on appeal:
{¶5} I. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CASTAGNOLA WHEN IT OVERRULED MR. CASTAGNOLA‘S SECOND OBJECTION TO THE ULTRA LYTE LASER SPEED EVIDENCE BASED ON A LACK OF FOUNDATION BECAUSE THE STATE HAD FAILED TO ESTABLISH, INTER ALIA, THAT THE “BLUE LIGHT” ON TOP OF TRP. GREEN‘S ALLEGED “MARKED” PATROL CAR WAS A “FLASHING, OSCILLATING, OR ROTATING” BLUE LIGHT
{¶6} II. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CASTAGNOLA WHEN IT EX POST FACTO DECLARED THAT MR. CASTAGNOLA HAD ACTUALLY COMMITTED “RECKLESS OPERATION“, AND THUS, PURSUANT TO
{¶7} III. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. CASTAGNOLA WHEN IT FIRST STATED THAT A RULE 29 WAS NOT A PROPER MOTION IN A MINOR MISDEMEANOR TRAFFIC TRIAL AND THEN SUBSEQUENTLY OVERRULED MR. CASTAGNOLA‘S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL WHEREIN THE EVIDENCE WAS INSUFFICIENT TO PROVE A VIOLATION OF
I
{¶8} Appellant, in his first assignment of error, argues that the trial court erred when it permitted testimony, over objection, pertaining to the Ultralyte laser in this matter. Appellant specifically contends that the proper foundation for the admission of
{¶9} Initially, we note, the decision to allow a witness to testify rests within the sound discretion of the trial court, and will not be overturned absent an abuse of that discretion. Waganheim v. Alexander Grant & Co., 19 Ohio App.3d 7, 482 N.E.2d 955 (10th Dist. 1993). Abuse of discretion connotes more than an error of law or of judgment; it implies the court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶10}
Any motor vehicle used by a member of the state highway patrol or by any other peace officer, while said officer is on duty for the exclusive or main purposе of
enforcing the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, shall be marked in some distinctive manner or color and shall be equipped with, but need not neсessarily have in operation at all times, at least one flashing, oscillating, or rotating colored light mounted outside on top of the vehicle. The superintendent of the state highway patrol shall speсify what constitutes such a distinctive marking or color for the state highway patrol. (Emphasis added)
{¶11} As noted by appellee,
{¶12} In the case sub judice, Trooper Green testified at the bench trial that he was in a marked cruiser assigned to him by the Ohio State Highway Patrol on July 9, 2015. He testified that the cruiser was a 2014 silver Dodge Charger with a blue light on top and “highway patrol insignia on the sides of the door.” Transcriрt at 26. Trooper Green further testified that there was reflective tape around the sides and a state trooper emblem on the back of the cruiser. He also testified that he was in the uniform of the day thаt was assigned to him by the Ohio State Highway Patrol. We find that the trial court did not abuse its discretion in permitting the Trooper to testify because appellee presented ample evidence to establish thаt the Trooper was in a marked car. The trial court‘s decision was not arbitrary, unconscionable or unreasonable.
{¶13} Appellant‘s first assignment of error is, therefore, overruled.
{¶14} Appellant, in his secоnd assignment of error, argues that the trial court‘s finding of recklessness to support a license suspension under
{¶15} “The ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), quoting Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 325–26, 18 L.Ed. 356 (1866). In order for a statute to violate the Ex Post Facto Clause, “it must be retrospective, that is, it must apply to events occurring before its enactment.” Weaver at 29. We concur with appellee that ex post facto clause is not relevant to the facts of this matter.
{¶16} In essence, appellant argues that a license suspension could not be imposed by the trial court under
{¶17}
Whеnever a person is found guilty under the laws of this state, or under any ordinance of any political subdivision of this state, of operating a motor vehicle in violation of any such law or ordinance relating to reckless operation, the trial court of any court of record, in addition to or independent of all other penalties provided by law, may impose a class five suspension of the offender‘s driver‘s or commercial driver‘s
license or permit or nonresident operating privilege from the range specified in division (A)(5) of section 4510.02 of the Revised Code.
{¶18} “A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.”
{¶19} This Court reviews the trial court‘s decision to suspend a defendant‘s drivеr‘s license under
{¶20} A court‘s authority to suspend a driver‘s license under
{¶21} The trial court, in the case sub judice, stated, in relevant part, as follows:
I‘m also finding, given the testimony that I‘ve heard here today, that by Defendant‘s own admission it was a dark area, not well lit. There was testimony that there was other
traffic, that there was a pass being made. Defendant was operating a 2006 Hyundai on a public highway at 97 miles an hour, 27 miles per hour over the speed limit. I am finding pursuant to section 4510.15 that your driving, given the high speed and all of the surrounding conditions including the hour and the presence of another vehicle, constituted demonstrаtion of reckless indifference to the rights and safety of others. I‘m making that finding, as I mentioned pursuant to 4510.15.
{¶22} Transcript at 47. Based on the foregoing, we cannot say that the trial court abused its discretion in finding that appellant‘s operation of his vehicle was reckless.
{¶23} Appellant‘s second assignment of error is, therefore, overruled.
III
{¶24} Appellant, in his third assignment of error, argues that there was insufficient evidence that he hаd operated his motor vehicle on a “rural freeway” as provided under
{¶25} Appellant initially argues that the trial court erred in overruling his Crim.R. 29 Motion for Judgment of Acquittal. However, as noted by this Court in State v. Massie, 5th Dist. Guernsey No. 05CA000027, 2006-Ohio-1515 at paragraрh 23, “[t]he rule [Crim.R. 29] has no application in a case tried to the court.”
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The 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.
{¶27} Appellant, in the case sub judice, was found guilty of spеeding in violation of
{¶29} Based on the foregoing, we find that therе was sufficient evidence supporting appellant‘s conviction for speeding in violation of
{¶30} Appellant‘s third assignment of error is, therefore, overruled.
{¶31} Accordingly, the judgment of the Ashland Municipal Court is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.