2009 Ohio 1731 | Ohio Ct. App. | 2009
{¶ 2} On July 6, 2008, appellant was traveling southbound on Interstate 71 in *2
the center lane; Trooper Mark Wells of the Ohio State Highway Patrol was traveling northbound on Interstate 71. Traffic was light and there were no other cars directly around appellant's vehicle. Trooper Wells visually observed appellant traveling over the posted 65 m.p.h. speed limit and estimated appellant was traveling at 80 m.p.h. Trooper Wells activated his Python radar, which was mounted in his patrol car, and clocked appellant traveling at 83 and 84 m.p.h. Trooper Wells initiated a traffic stop and cited appellant for speeding in violation of R.C.
{¶ 3} On July 21, 2008, the day of his initial arraignment, appellant faxed a written request for a continuance of his arraignment. The arraignment was rescheduled for July 28, 2008. That day, appellant pled not guilty and asked that he be tried within the 30-day time limit under R.C.
{¶ 4} On August 6, 2008, following a bench trial during which appellant offered no evidence on his behalf, and based upon Trooper Wells' visual observation and the Python radar readings, the trial court found appellant guilty of speeding in violation of R.C.
{¶ 5} Assignment of Error No. 1: *3
{¶ 6} "THE TRIAL COURT ERRED BY DENYING THE MOTION FOR DISMISSAL BY THE DEFENDANT-APPELLANT NOTING THAT HIS STATUTORY RIGHT TO A SPEEDY TRIAL HAD BEEN VIOLATED PER O.R.C.
{¶ 7} At the beginning of the bench trial, appellant orally moved to dismiss his speeding charge, alleging a violation of his speedy trial rights. Based on the reasons provided in its August 4, 2008 entry, the trial court denied appellant's motion. On appeal, appellant argues his statutory rights to a speedy trial were violated when he was not brought to trial within the 30-day time limit established in R.C.
{¶ 8} "The right to a speedy trial is guaranteed to all state criminal defendants by the
{¶ 9} Under R.C.
{¶ 10} Appellant was cited, but not arrested, on July 6, 2008 for speeding. As noted by the trial court, the original 30-day time limit for trial under R.C.
{¶ 11} It follows that appellant was brought to trial before the speedy-trial time limit had elapsed. As a result, we need not address appellant's challenge to the trial court's sua sponte continuance because of the trooper's unavailability. Appellant's *5 speedy trial rights were not violated and the trial court did not err by denying his motion to dismiss. Appellant's first assignment of error is overruled.
{¶ 12} Assignment of Error No. 2:
{¶ 13} "THE TRIAL COURT ERRED BY DENYING THE MOTIONS BY THE DEFENDANT-APPELLANT TO SUPPRESS THE TESTIMONY OF OFFICER WELLS REGARDING THE USE, READOUTS, FUNCTION AND ACCURACY OF THE PYTHON MOVING RADAR SYSTEM BEFORE LAYING THE FOUNDATION OF THE DEVICE'S RELIABILITY AND ACCURACY WITH EXPERT TESTIMONY FIRST."
{¶ 14} Assignment of Error No. 3:
{¶ 15} "THE RULING OF THE TRIAL COURT WAS NOT SUFFICIENT AND/OR AGAINST A MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN A CONVICTION."
{¶ 16} Appellant challenges his speeding conviction on the grounds that the trial court improperly relied on Trooper Wells' visual estimation of appellant's speed and the readings of the Python radar.1
{¶ 17} Appellant first asserts that Trooper Wells' testimony regarding his visual observation should have been stricken because the trooper's training and skills in visual observation relied entirely on the reliability and accuracy of a moving radar system.
{¶ 18} The record shows that when Trooper Wells testified the very first time about his visual observation of appellant's speed, appellant's objection to the testimony was sustained. Thereafter, during the trooper's direct examination, appellant did not object to the trooper's testimony regarding his training in visual observation, but did *6 object to and moved to strike the testimony regarding his visual observation of appellant's speed. During direct examination, Trooper Wells briefly stated that he receives ongoing training and annual certification by the Ohio State Highway Patrol in visual speed observation.
{¶ 19} When questioned on cross-examination by appellant, Trooper Wells testified that his training in visual observation and estimation is done as follows: the trooper sits in a patrol car which is either stationary or driven by the trooper; the instructor sits next to the trooper and asks the trooper to estimate the speed of an oncoming car; the trooper's visual estimation is then checked against the readings of a radar used by the instructor; the radar is a laser unit if the patrol car is stationary, or mounted in the car (such as the Python radar) if the patrol car is driven.
{¶ 20} Appellant did not move to strike Trooper Wells' testimony after the state rested its case. Appellant does not cite, and we have not found any cases, supporting his assertion that an officer's visual observation of a driver's speed is inadmissible when a radar is used to train the officer in visual observation. In light of the line of appellate decisions, including from this court, that an officer's visual estimation of speed is sufficient to support a speeding conviction, seeState v. Kline, Warren App. No. CA2004-10-125,
{¶ 21} Appellant also argues that the trial court erred in relying on the Python radar readings because there was no expert testimony as to the reliability and accuracy of the Python radar. The trial court did not take judicial notice of the reliability and accuracy of the Python radar. *7
{¶ 22} The admissibility of readings from stationary radars was considered by the Ohio Supreme Court in East Cleveland v. Ferell (1958),
{¶ 23} There is a difference in the standard of proof required between a stationary radar and a radar mounted in a moving vehicle (moving radar). State v. Wilcox (1974),
{¶ 24} Appellant argues on appeal that relying on the Python radar readings to convict him of speeding was improper because the state failed to establish the scientific reliability and accuracy of the Python radar. After reviewing the transcript of the bench trial, we find that appellant failed to specifically raise the issue of scientific reliability and accuracy of the Python radar. Rather, appellant generally objected to relying on readings from moving radars on the ground that no courts in Ohio had ever taken judicial notice of the scientific reliability and accuracy of moving radars.
{¶ 25} At this juncture, we wish to point out that appellant is mistaken. It is well-established that the scientific reliability of the K-55 radar, a moving radar, has been authoritatively settled in the Twelfth Appellate District as well as in other appellate *8
districts, and is therefore a proper subject of judicial notice. See, e.g., In re Bolender (Dec. 28, 1998), Clermont App. No. CA97-11-104;State v. Bechtel (1985),
{¶ 26} With regard to the Python radar, although there are no cases from this jurisdiction that address or mention Python radars, three municipal courts from other jurisdictions have taken judicial notice of the scientific reliability and accuracy of Python radars. See UpperArlington v. Morse,
{¶ 27} Because appellant failed to specifically raise the issue of scientific reliability and accuracy of the Python radar below, he has waived this issue on appeal. See State v. DeGrey, Warren App. No. CA2004-05-058,
{¶ 28} Trooper Wells testified that from his visual observation, appellant's car was traveling over the speed limit. In light of our prior decisions that an officer's visual estimation of speed is sufficient to support a speeding conviction, the outcome of the trial would not have clearly been different. See Kline,
{¶ 29} We recognize that appellant was acting pro se in the proceedings below. However, the right of self-representation is not a license for failure to comply with the relevant rules of procedure and substantive laws. Palmer,
{¶ 30} After reviewing the record, we find the trial court did not lose its way and create a manifest miscarriage of justice by believing the testimony of Trooper Wells. At trial, Trooper Wells testified in detail about the calibration of the Python radar before and after his shifts; how on July 6, 2008, he calibrated the Python radar three times, before and after his shift and after he pulled appellant over; and the fact that the Python radar was operating properly that day. Trooper Wells' testimony concerning his visual estimation of appellant's speed, his calibration of the Python radar, and the readings from the Python radar, coupled with his years of experience and ongoing training and *10
annual certification by the Ohio State Highway Patrol, constitutes some competent, credible evidence that appellant was traveling at least 80 miles per hour in a 65 mile per hour zone. State v. Eskridge (1988), 38 Ohio St. 3d 56; State v. Combs (Dec. 29, 1989), Warren App. No. CA89-06-040. Thus, appellant's speeding conviction is not against the manifest weight of the evidence. Further, it is supported by sufficient evidence. State v. Wilkins, Clinton App. No. CA2007-03-007,
{¶ 31} Appellant's second and third assignments of error are overruled.
{¶ 32} Judgment affirmed.
BRESSLER, P.J., and POWELL, J., concur.