STATE OF OHIO, PLAINTIFF-APPELLEE, v. JEREMY M. EVERETT, DEFENDANT-APPELLANT.
CASE NO. 16-09-10
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
December 21, 2009
2009-Ohio-6714
WILLAMOWSKI, J.
Aрpeal from Upper Sandusky Municipal Court, Trial Court No. TRD-09-725. Judgment Reversed and Cause Remanded.
Jeremy M. Everett Appellant
Richard A. Grafmiller for Appellee
{1} Defendant-Appellant, Jeremy M. Everett (“Everett“) appeals the judgment of the Upper Sandusky Municipal Court finding Everett guilty of speeding in violation of
{2} On February 27, 2009, at approximately 4:58 p.m., Everett was driving eastbound on State Route 15 in Ridge Township. Ohio State Highway Patrol Trooper Todd A. Donnell was traveling westbound on State Route 15, a four lane, divided highway, in his marked patrol car. Trooper Donnell observed Everett pulling away from other traffic and activated his Python II radar device, which indicated Everett was traveling at 81 miles per hour. Trooper Donnell did a U-turn, turned on his overhead lights, and initiated a traffic stop. Trooper Donnell cited Everett for driving 81 miles per hour in a 65 miles per hour zone.
{3} Everett entered a plea of not guilty and a bench trial was held on April 13, 2009. At the trial, Trooper Donnell testified that he activatеd the radar to confirm that Everett was traveling in excess of his “visual estimation” of 80 miles an hour. The trooper testified that the radar unit was in good working order, that it was maintained by technicians, and that he had calibrated it with tuning forks earlier in the day and right after Everett‘s traffic stop. Trooper Donnell further
{4} Everett, who represented himself, questioned Trooper Donnell about: his familiarity and understanding of various aspects of the operations of the radar unit; the extent of his training; his understanding of the unit‘s operating parameters and potential shortcomings; the methods used to maintain and calibrate the radar unit; whether the trooper had maintained visual contact and stopped the correct vehicle; and, whether he understood how the unit might be affected by the high humidity that existed that day. Everett also questioned whether the trial court‘s judiciаl notice as to the operation of radar applied to this particular Python II model.
{5} Everett‘s Criminal Rule 29 motion for acquittal was denied, and the trial court found Everett guilty of traveling 81 miles per hour in a 65 miles per hour zone in violation of
First Assignment of Error
The trial court erred in accepting Judicial Notice of the speed measuring device of the MHP Industries, Inc.‘s Python Series II
Second Assignment of Error
The trial court erred in admitting evidence when the State of Ohio failed in the trial сourt to properly lay the foundation for the particular moving radar device‘s accuracy and reliability, and therefore there was insufficient evidence to convict the defendant of speeding.
Third Assignment of Error
The trial court erred in admitting evidence when the State of Ohio failed in the trial court to properly lay the foundation to prove the MPH Industries Inc.‘s Python Series II moving radar device was used in accordance with its owner‘s operators manual by the police officer, and therefore there was insufficient evidence to convict the defendant of speeding.
{6} More than fifty years ago, the Ohio Supreme Court confirmed that the reliability of the scientific principles underlying the use of stationary radar may be established without the need for expert testimony. East Cleveland v. Ferell (1958), 168 Ohio St. 298, 154 N.E.2d 630, syllabus. However, the MPH Python II model, which was used to clock Everett‘s speed, is a moving radar device. To date, the Ohio Supreme Court has not addressed the standards for the admissibility of evidence from moving radar devices. See Cleveland v. Tisdale, 8th Dist. No. 89877, 2008-Ohio-2807, ¶¶7-18, 24. In order to convict a person for speeding
{7} We will begin by addressing Everett‘s third assignment of error because it is dispositive of the matter. This assignment of error argues that the city failed to properly lay the foundation for Trooper Donnell‘s training and ability to
{8} A defendant is entitled to acquittal on a charge against him under
{9} In most cases, an officer is able to establish that he or she is qualified to operate a particular radar model by testifying as to his or her training and experience on that radar unit and by providing a certification for the training. See, e.g., State v. Kirkland (Mar. 2, 1988), Logan App. No. 8-97-22, 1998 WL 126849 (where the patrolman testified that he was certified to use the K-55 radar unit, and the record contained a copy of his certificate). Several appellate districts have held that a conviction for speeding based solely upon radar will not be upheld where the operator has failed to submit a certificate or a description of the radar operator‘s training. Helke, supra, 2007-Ohio-5483, at ¶9 (because the city did not show the sergeant‘s qualifications and experience, any evidence concerning the radar device‘s readout should have been excluded); State v. Brown, 9th Dist. No.02CA0034-M, 2002-Ohio-6463, ¶12 (explaining that the deputy‘s testimony that he was trained on the specific K-55 radar unit on two separate occasions, absent a certificаte of training, was insufficient to demonstrate that he was qualified to operate the radar unit); Barberton v. Jenney, 9th Dist. No. 24423, 2009-Ohio-1985, ¶8 (where the officer did not present any evidence beyond his testimony that he was certified to operate the device, there was insufficient evidence to establish that he was a qualified operator).
{10} In this case, Trooper Donnell testified that he initially received training in the Patrol Academy in a class for radar, and then every year he was required to have additional training and to take a quiz on the radar. He stated that his training was updated every year, with the last update in May of 2008. Trooper Donnell‘s operator‘s certificate of training was admitted into evidence.
{11} A review of the record shоws that it contained a copy of Trooper Donnell‘s Operator‘s Certificate of Training for “electronic speed measuring devices,” which was issued in 1994. On the back of the certificate, there were signed updates listing his training certification for the years 2003 through 2007. His last certification update was May 9, 2007, not in May of 2008, as Trooper Donnell had testified. Mоreover, the instruments listed on the certification showed training for the “ESMD” in 2003 and 2004, and training for the “K55 Python” and the “LTI Ultralyte” in 2005, 2006, and 2007. The certification did not list any training for the Python II, nor did Trooper‘s Donnell‘s testimony ever
{12} Based on the above, we do not find that the city provided sufficient evidence to prove that Trooper Donnell was trained and qualified to operatе the Python II radar unit. Appellant‘s third assignment of error is sustained. Because the city did not prove Trooper Donnell‘s qualifications to operate the radar, any evidence concerning the Python II radar device‘s readout should have been excluded.
{13} However, many appellate courts have affirmed speeding convictions based upon the officer‘s testimony that the defendant was speeding, even when the readout from the radar device had been excluded. See, e.g., Barberton v. Jenney, supra. Usually, the officer will provide a definite opinion as to how fast the offender‘s vehicle was traveling and/or produce in-depth testimony concerning the officer‘s specific training and expertise in visually estimating the speed of a vehicle. See Helke, 2007-Ohio-5483, at ¶¶10-11.
{14} This Court recently upheld a speeding conviction without the need for admission of the radar-related evidence. See State v. Harris, 3d Dist. No. 9-99-03, 2009-Ohio-2616. In Harris, the defendant admitted that he was going
{15} In the case before us now, Trooper Donnell provides only a brief mention of his “visual estimation” of Everett‘s speed before he activated the radar:
Q. Okay. When you first saw him moving away, was there anything — did you do anything at that point?
A. At that point, I did activate [sic] a radar to confirm the speed of in excess of 80 miles an hour that I first perceived on the Defendant.
Q. Okay. When you first had your initial observation, did you make any note mentally or otherwise or determination as to whаt his speed was without the use of any mechanical device?
A. Correct. I originally had a visualized summation that he was in excess of 80 miles an hour.
***
Q. And after that visual estimation, you did what then?
A. After the visual estimation, then I activated the radar.
(Trial Tr. pp. 7-8).
{16} Trooper Donnell‘s description of his “perception” and “visualized summation” of his estimation of Everett‘s speed is not very definite or convincing. Compare State v. Westerbeck (June 19, 1987), 3d Dist. No. 17-86-18, 1987 WL 13063 (where the court found the direct testimony as to spеeding too vague for a finding of guilt); Harris, 2009-Ohio-2616, at ¶13, fn.3. More importantly, Trooper Donnell did not provide any testimony or evidence concerning his ability, or experience in accurately estimating the speed of a moving vehicle, nor did he testify that he had received any training in visually estimating speeds.
{17} In many cases where courts have affirmed a speeding conviction based upon the officer‘s visual determination, there is often additional evidence verifying the officer‘s specific training and experience in being able to accurately estimate a vehicle‘s speed without relying upon radar. See, e.g., State v. Brown, 9th Dist. No.02CA0034-M, 2002-Ohio-6463, ¶20 (where the deputy testified he received training to estimate the speed of moving vehicles and was required to attain a degree of accuracy of plus or minus five miles an hour per twenty vehicles); Barberton v. Jenney, 2009-Ohio-1985, at ¶13 (the officer received training and certification where he practiced visual estimation of a vehicle hundreds of time); State v. Wilson, 6th Dist. No. F-04-028, 2005-Ohio-2496, ¶17
{18} There was nothing in the record that would substantiate Trooper Donnell‘s ability to accurately estimate the speed of a moving automobile traveling in the opposite direction of his patrol car. “[T]he mere educated guess of the arresting officer as to the speed of a vehicle is insufficient to overcome the presumрtion of innocence and the burden of proof beyond a reasonable doubt for conviction.” Cleveland v. Wilson, 8th Dist. No. 87047, 2006-Ohio-1947, ¶9. We do not find that the record contains sufficient evidence of Trooper Donnell‘s ability to accurately estimate the speed of a moving vehicle to sustain Everett‘s conviction for speeding 81 miles per hour based upon his visual estimation.
{19} For the reasons stated above, the judgment of the Upper Sandusky Municipal Court is reversed and the matter is remanded with instruction for the trial court to discharge appellant.
Judgment Reversed and Cause Remanded
ROGERS, J., concurs in Judgment Only.
SHAW, J., dissents.
{20} Because I believe the majority has fundamentally misconstrued the testimony in this case, and in particular, assigned improper weight to a series of
{21} Contrary to the assertions of the majority, the trooper in this case did specifically testify to an independent visual estimate of the defendant‘s speed “in excess of 80 miles per hour” (Transcript at 7) — and the trooper did specifically testify to his qualifications and training on thе “Python Series 2 radar” when he was asked to describe his experience “specifically with this unit and other radar units” and in response stated that his experience “started with a K-55 and proceeded up to the Series 2 which I have now“. (Transcript at 11 and 17.) Later, in describing the audible tone distortion that signifies “shadowing” and other radar problems, the trooper again states that his testimony is applicable “specifically on the Series 2 radar unit.” (Transcript at 35.) Whether the notations on the back of the certificate showed it or not, the trooper further testified in person that his most recent operators certificate update was in “May of ‘08.” (Transcript at 18.)
{22} The majority makes much of the fact that the trooper was not familiar with certain questions about the radar raised by the defendant on cross-examination. However, there was no showing by the defendant or anyone else that any of these questions had any bearing whatsoever on the accuracy or reliability of the radar operated by the trooper on the date of the offense — bеyond the mere suggestion of the defendant and as allegedly suggested in some of the unsubstantiated “literature” he submitted to the court. (See transcript at 20-29.)
{24} Under these circumstances, I believe it is highly inappropriate for the appellate court to conclude that the trooper was not qualified or properly trained in the operation of this radar simply because he was not familiar with the allegations of the defendant regarding “humidity parameters” — when there is no proper showing in the record by anyone that “humidity parameters” have any bearing whatsoever on the use of this equipment.
{25} In sum, none of the questions оr claims posed by the defendant were properly established in evidence as having any bearing on the accuracy of the equipment used by the trooper to confirm his visual observation of the defendant as travelling at 81 miles per hour on the date of the offense. In contrast, every indication by the trooper was that the redundancy checks and techniques, calibration procedures, and operation of this radar unit all confirmed that a speed of 81 miles per hour was accurately registered on a properly working radar unit, operated by a trained and qualified trooper.
/jnc