STATE OF OHIO, Plаintiff-Appellee, vs. TED MCKAY, Defendant-Appellant.
APPEAL NO. C-130657
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 14, 2014
[Cite as State v. McKay, 2014-Ohio-2027.]
TRIAL NO. C-13TRD-24849
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: May 14, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Lyons & Lyons Co., LPA, and Robert Lyons, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} Dеfendant-appellant Ted McKay appeals his conviction, following a bench trial, for speeding in violation of
Facts and Procedural Posture
{¶2} On May 29, 2013, Trooper Westhoven was monitоring traffic on I 275. He was using an Ultralyte laser device to check the speed of cars. The posted speed limit was 65 m.p.h. Trooper Westhoven was sitting in his stationary vehicle between the Kellogg Avenue exit and the New Richmond exit when he observed McKay driving a vehicle at a speed he visually estimated to be 80 m.p.h. Troopеr Westhoven used an Ultralyte laser to clock McKay‘s speed, resulting in three separate measurements of 78, 78, and 79 m.p.h. Trooper Westhoven ordered McKаy to pull over and issued him a ticket for speeding.
{¶3} The case proceeded to a trial before the court. On direct examination, Trooper Westhovеn testified that he had calibrated the laser at the beginning of his shift and it was in good working order. He could not recall if he had testified previously in a Hamilton County court about the results of the Ultralyte device. When asked if he knew what model the laser was, he stated that he was unsure and that he would need to call the patrol post to gеt that information.
{¶5} McKay moved pursuant to Crim.R. 29 for an acquittal. Hе argued that the trial court could not take judicial notice of the scientific accuracy and reliability of the Ultralyte laser device for a number of reаsons. First, the trooper could not testify that the Ultralyte laser was the same device as the LTI 20-20. Second, there were no reported Hamilton County Municipal Court сases or First Appellate District opinions discussing the Ultralyte laser; and third, the Hamilton County Municipal Court had not previously heard expert testimony on the Ultralyte lasеr. The state presented no counterargument. Instead, it submitted the case on the trooper‘s testimony. The trial court stated that it would take the matter under advisemеnt and issue a decision at a later date.
{¶6} On July 31, 2013, the trial court stated that it had reviewed expert testimony from another Hamilton County Municipal Court case and that it wаs taking judicial notice of the reliability of the Ultralyte laser based upon the findings in that case. When McKay‘s counsel inquired about the case, the trial court stated thаt it thought the case was called “Shoemaker,” and that the court‘s bailiff had a copy of the transcript of proceedings in that case for counsel to rеview. The trial court then found McKay guilty of speeding and continued the matter for sentencing.
{¶7} McKay filed a motion for reconsideration. Attached to the motion was a copy of the transcript of the case that the trial court had relied upon to take judicial notice of the Ultralyte laser and the trial court‘s journаl entry in that case. McKay argued that the expert testimony in that case did not address the Ultralyte
Analysis
{¶8} In his first assignment of error, McKay argues that the trial court erred in finding him guilty of speeding because the state failed to prove the scientific reliability of the speed-measuring device. In his second assignment of error, he contends that trial сourt erred when it took judicial notice of the scientific reliability of the speed-measuring device without a proper foundation. Because these assignments are interrelated, we address them together.
{¶9} In reviewing a challenge to the sufficiency of the evidence, this court must determine whether, after viewing the evidenсe in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime had been proved beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶10} To convict an individual of speeding based upon a laser device, the state must produce evidence at trial that the device is scientifically reliable. State v. Palmer, 1st Dist. Hamilton No. C-050750, 2006-Ohio-5456, ¶ 10. Ohio appellate courts, including this court, have held that the scientific accuracy of a laser device used to measure speed is a fact that a trial court may judicially notice. See Palmer at ¶ 11, citing Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613, ¶ 7 (1st Dist.).
{¶11} In this case, the trial court improperly took judicial notice of the sciеntific reliability of the Ultralyte laser device based upon expert testimony in another Hamilton County Municipal Court case—State v. Schumacher, which had
{¶12} Here Trooper Westhoven tеstified that he had used an Ultralyte laser device. He could not testify as to the manufacturer of the device or the model and he could not state whether the Ultrаlyte laser device he had used to measure McKay‘s speed was the same as the LTI 20-20 device. Without this evidence, the Schumacher decision, which addressed only the accuracy and reliability of the LTI 20-20 laser device, could not provide any grounds to support the trial court taking judicial notice of the accuracy and reliability of the Ultralyte laser device used in McKay‘s case. See State v. Zhovner, 2013-Ohio-749, 987 N.E.2d 333, ¶ 24-27 (3d Dist.). As a result, Trooper Westhoven‘s testimony regarding the readings from the Ultralyte laser device was inadmissible to show that McKay had been speeding.
{¶13} In addition to testifying that he had measured McKay‘s speed with the Ultralyte device, Trooper Westhoven also testified that he hаd visually estimated McKay‘s speed at 80 m.p.h. In Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, the Ohio Supreme Court held that a defendant can be convicted of speeding based solely on a police officer‘s visual estimation of speed where the evidence shows the officer has training and experience in such visual estimations. The General Assembly, however, hаs since enacted
{¶14} Thus, Officer Westhoven‘s testimony that he had visually estimated the speed of McKay‘s motor vehicle at 80 m.p.h. is insufficient, by itself, to supрort McKay‘s conviction for speeding. See Beachwood v. Joyner, 2012-Ohio-5884, 984 N.E.2d 388, ¶ 16-17 (8th Dist.); see also State v. Zhovner, 2013-Ohio-749, 987 N.E.2d 333, fn. 3 (3d Dist.).
{¶15} Because the trial court erred in taking judicial notice of the accuracy and reliability of the Ultralyte lasеr device, Trooper Westhoven‘s testimony regarding the readings from the device was inadmissible. And because the trooper‘s visual estimation of McKay‘s speed wаs insufficient evidence to demonstrate that McKay had been speeding, no rational trier of fact could have found that the state had proved each element of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore, McKay‘s conviction for speeding is based upon insufficient evidence and must be reversed. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613, at ¶ 20. As a result, we sustain his two assignments of error, reverse the trial court‘s judgment, and order McKay discharged from further prosecution in this matter.
Judgment reversed and appellant discharged.
CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.
Please note:
The court has recorded its own entry this date.