STATE OF OHIO, Plaintiff-Appellee, - vs - THOMAS E. WILSON, Defendant-Appellant.
CASE NO. CA2017-08-125
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
2/26/2018
[Cite as State v. Wilson, 2018-Ohio-702.]
CRIMINAL APPEAL FROM FRANKLIN MUNICIPAL COURT Case No. 17-05-TRD-3414
Thomas E. Wilson, 1217 Brookside Drive, Beavercreek, Ohio 45434, defendant-appellant, pro se
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Thomas E. Wilson, appeals from his conviction in the Franklin Municipal Court for one count of speeding in violation of
{¶ 3} At his June 2, 2017 arraignment, Wilson entered a not guilty plea to the charge and executed a written “Waiver of Time,” indicating he needed additional time to prepare his defense. Wilson filed a request for discovery with the prosecutor, seeking information relating to the specific laser device used in issuing the speeding ticket and Trooper Bailey‘s certification and training on said device. Wilson‘s request for discovery was filed May 30, 2017.
{¶ 4} A bench trial was scheduled for June 30, 2017. At this time, Wilson appeared before the court and moved for dismissal of the charge on the basis that the speeding citation had not been signed. The court denied Wilson‘s request, finding that the citation was not required to be signed “because it came through electronically to the Court.” Wilson also asked the court to dismiss the case because the prosecutor had not provided the requested discovery. The prosecutor opposed the motion, stating that he had been unable to provide the discovery because Trooper Bailey had been on vacation and had just recently returned. The prosecutor indicated the requested discovery would be provided to Wilson by the end of the following week. The court denied the motion to dismiss and rescheduled Wilson‘s bench
{¶ 5} Prior to the trial commencing on July 11, 2017, Wilson moved for a dismissal on the basis that his statutory speedy trial rights had been violated as he had not been brought to trial within 30 days. The court denied the motion, finding that the speedy-trial time period had been tolled and the time extended by Wilson‘s request for discovery. Thereafter, the trial commenced and the state called Trooper Bailey as its only witness.
{¶ 6} Bailey testified he has been a trooper with the Ohio State Highway Patrol for 24 years and has received training in speed enforcement through the police academy and postgraduate training courses. Annually he undergoes a written and visual estimation training course, and he has been certified in the use of the following speed detection instruments: “laser, radar, ultralight laser, ultralight laser LTI 2020, * * * laser LTI 2020, K Band, [and] X Band radar.”
{¶ 7} Prior to using the UltraLyte LR B laser on May 13, 2017, Bailey stated he made sure the device was in proper working order. At approximately 12:39 p.m., he observed the Chevrolet operated by Wilson traveling above the posted speed limit of 65 m.p.h. and activated his UltraLyte LR B device. Using the device in accordance with his training, he recorded Wilson traveling 82 m.p.h.
{¶ 8} Wilson objected to the “introduction of evidence or testimony based on the use of a[n] electronic measuring device, specifically the ultra light * * * [as it] has not been established as scientifically reliable or accurate in measuring the vehicle speed.” The trial court overruled the objection after the following discussion was held:
THE COURT: To the best of my recollection it‘s been accepted by the Twelfth District Court of Appeals as scientifically accurate. The motion‘s been overruled.
[PROSECUTOR]: Your Honor, this Court has also taken judicial notice of it.
THE COURT: Taken judicial notice of it.
[PROSECUTOR]: Those instruments being scientifically accurate. THE COURT: Correct. Overruled.
WILSON: Your Honor, I have two case studies I have two over [sic] appeals in the Twelfth Appellate Court that were overruled on the basis of the ultra light.
[PROSECUTOR]: And both of those cases proceeded [sic] this Court‘s determination that the ultra light is scientifically reliable.
THE COURT: It was a finding. We had an expert witness come down from Columbus. I did find that it was scientifically reliable and accurate. Overruled.
{¶ 9} On cross-examination, Wilson introduced the user‘s manual for the UltraLyte LR B into evidence and questioned Bailey about the maintenance of the device and whether the device had displayed any error codes or malfunctioned on the day his citation was given. Bailey did not recall receiving an error code on May 13, 2017, and explained that if the device malfunctioned and displayed an error code when it was in use, he would not have been able to measure Wilson‘s speed as the error code would have “blocked” the speed to prevent an erroneous reading. Bailey also testified that on the day the citation was issued, he performed a display integrity test, scope alignment test, reference frequency test, fixed distance test, and Delta distance test using the UltraLyte LR B before using the device to issue citations. Bailey explained that doing these tests is “routine” for law enforcement and that if, in doing the tests, “it doesn‘t match up, [he] would turn the machine in, * * * write it up [to] * * * say what it didn‘t do correctly and [he would] go get another [device] and check it and use it * * * [while] the other one [is] in for repair.”
{¶ 10} Wilson also cross-examined Bailey about his training and certification to use the UltraLyte LR B and introduced Bailey‘s certification logs into evidence. The logs provided that Bailey was most recently certified on “Radar/Laser” by Sergeant R.L. Burd on June 28, 2016, and again on June 2, 2017 by Sergeant Crisafi. The logs further provided certifications
BAILEY: I have to be re-certified on theory. Okay. So whether I use a LTI 2020 and a LL, a UL LTI 2020 or LR B an ultra light laser, whatever one, it‘s still on the theory. It‘s still on the same principle. It doesn‘t change the theory here; the principle doesn‘t differ due to the model of the laser they give me. * * * As far as the laser itself, I was certified, I was re-certified by Sergeant Crisafi who went out with me as I spoke before, made me give him a visual estimation of vehicles before he (A) activated the radar or (B) I was able to pull the trigger on the laser gun and I had to be within the tolerance that he was askin[g] for or else I would have failed and [h]e wouldn‘t have signed off on my training.
{¶ 11} Following Bailey‘s testimony, the state rested and Wilson moved for acquittal pursuant to
WILSON: The only question I have was uh, when expert testimony was provided with respect to this specific unit because I had two cases in the Twelfth Appellate Court that reversed a conviction based on the ultra light and one of them was as recent as last April, 2016.
THE COURT: We took judicial notice of it about two or three years ago.
[PROSECUTOR]: I got a copy of that case (inaudible).
Thereafter, the court rendered its verdict, finding Wilson guilty of the speeding violation. Wilson was ordered to pay a $100 fine and $102 in court costs.
{¶ 12} Subsequent to the court rendering its verdict, Wilson filed a written motion for acquittal pursuant to
{¶ 13} The trial court denied Wilson‘s motion for acquittal, stating that
The argument [made at trial] was that the State failed to produce any expert witness to testify to the scientific reliability and accuracy of the Lidar devices and in particular the Lidar 20/20 Ultralight. At that time, the Court informed Mr. Wilson that the court had taken judicial notice of the scientific accuracy and reliability of all Lidar units in a decision tilted City of Franklin vs. Douglas Brown. Said decision was decided on September 16, 2014 and filed for record.
The court attached a copy of the Brown decision to its denial of Wilson‘s
{¶ 15} Assignment of Error No. 1:
{¶ 16} THE TRIAL COURT ERRED BY TAKING JUDICIAL NOTICE OF A SPECIFIC SPEED MEASUREMENT DEVICE BASED ON PREVIOUS EXPERT TESTIMONY WHERE NO PREVIOUS CASE WAS IDENTIFIED AT TRIAL AND THE PREVIOUS DEVICE WAS NOT IDENTIFIED AS THE SAME DEVICE USED IN THE CURRENT CASE.
{¶ 17} In his first assignment of error, Wilson argues the trial court erred by taking judicial notice of a speed-measuring device “based on expert testimony in a previous case [without] identify[ing] the case and the previous device so noticed.” He further contends that the trial court erred in taking judicial notice as “expert testimony on a laser speed measuring device previously heard in the [t]rial [c]ourt is only applicable to the same device.”
{¶ 18} “In order to be convicted of speeding based on laser-device evidence, there must be evidence introduced at trial that the device is scientifically reliable.” State v. Starks, 196 Ohio App.3d 589, 2011-Ohio-2344, ¶ 21 (12th Dist.), citing State v. Palmer, 1st Dist. Hamilton No. C-050750, 2006-Ohio-5456, ¶ 10. “[T]he scientific reliability of a laser device used to measure speed is a fact that is subject to judicial notice.” Id., citing State v. Dawson, 12th Dist. Madison No. CA98-04-021, 1998 Ohio App. LEXIS 6141 (Dec. 21, 1998).
{¶ 19} As this court has previously recognized, the reliability of a particular speed-measuring device can be established through judicial notice in one of three ways: “(1) a reported municipal court decision, (2) a reported or unreported case from the appellate court; or (3) the previous consideration of expert testimony about a specific device where the trial
{¶ 20} This court has previously noted that a trial court may take judicial notice of the scientific reliability of the LTI 20-20 laser device. Dawson, 1998 Ohio App. LEXIS 6141 at *5-7. However, we have not recognized the reliability of the UltraLyte LR B laser-device. In addition, our survey of the reported municipal court case law in this district has not revealed a decision that considered the scientific reliability of this particular device. Therefore, the only way for the reliability of the UltraLyte LR B device to be established by judicial notice is through the trial court‘s previous consideration of expert testimony, which the trial court must mention on the record.
{¶ 21} When Wilson objected to Trooper Bailey‘s testimony about the UltraLyte LR B on the basis that it had not been established as scientifically reliable or accurate in measuring vehicle speed, the trial court erroneously stated that this appellate court had accepted it as scientifically reliable. However, the court then also took judicial notice that it had found the device scientifically reliable in a prior case it heard, stating, “We had an expert witness come down from Columbus. I did find that it was scientifically reliable and accurate.” When denying Wilson‘s motion for acquittal, the court again referenced its prior case, noting that it took judicial notice of the scientific reliability of the device “about two or three years ago.” The court did not, however, mention the prior case by name at trial. In fact, the case the trial court was referencing was not identified on the record by name by the trial court until the court denied Wilson‘s written
{¶ 22} Although the better practice would have been for the court to mention the case it was taking judicial notice of by name at trial, we find no error in the court‘s actions. See State v. Pellettiere, 2d Dist. Montgomery No. 21070, 2006-Ohio-1606, ¶ 9 (finding it “unnecessary for the trial court to specifically state the case in which it heard expert
{¶ 23} Wilson argues, however, that the expert testimony the trial court previously heard in Franklin v. Brown, Franklin M.C. No. 14-01-TRD-0267, was insufficient to establish the scientific reliability and accuracy of the UltraLyte LR B because the device in Brown was a different laser device model. In Brown, the officer issuing the speeding citation used a “Lidar Ultralight 20/20” laser device. See id. In Brown,
the [expert] witness * * * testified [about] how the Lidar Ultralight 20/20 worked and testified that it had been accepted as scientifically reliable in multiple other courts throughout the State. The witness testified that he had been qualified as an expert witness in more than fifty courts throughout the State of Ohio. He further testified that he had an electrical engineering degree plus thirty years in law enforcement and periodic factory training provided by the major equipment manufacturers. He further testified that he had repaired and tested the Lidar systems. He further testified that it was his opinion and his testimony in courts throughout Ohio, that the Lidar units and the Ultralight 20/20 are scientifically accurate and reliable for both speed and distance. He testified regarding sighting through the Lidar which has a scope in which the officer operating the 20/20 can zero in on a specific vehicle without difficulty.
The expert further testified that * * * in his opinion, the Lidar Ultralight 20/20 and other Lidar laser units are both scientifically accurate and scientifically reliable.
[The expert] testified that the product has been in production and use for a number of years and had demonstrated scientifically based, reliable and accurate operation since its release on the market. Further, that prior generations of the model were found to be similarly reliable and accurate and that the current Lidar 20/20 incorporated production changes that incorporated more use options and conveniences.
[The expert] further testified that the Lidar Ultralight 20/20 had been exhaustively tested and evaluated by the National Institute
of Standards and Technology, a federal agency accountable for technological expertise by federal government, military, and most industrial manufacturing intelicommunications [sic] industries.
Id. Relying on the expert‘s testimony, the trial court in Brown “declared the Lidar Ultralight 20/20 and Lidar laser devices to be scientifically accurate and reliable for purposes of taking judicial notice in the future.” Id.4
{¶ 24} “Although the underlying principles of laser technology may be the same from one device to another, generally judicial notice as to the reliability of a speed-measuring device is device specific. * * * Therefore, expert testimony is necessary, ‘whether it be a new device or an upgrade of an existing device, before the court may take judicial notice of that particular device in future proceedings.‘” Starks, 2011-Ohio-2344 at ¶ 25, quoting State v. Kincaid, 124 Ohio Misc.2d 92, 2003-Ohio-4632, ¶ 15. However, as we noted in a recent opinion, as “the UltraLyte appears to be a newer model or version of the LTI 20/20, and * * * this court has previously taken judicial notice of the scientific reliability of the LTI 20/20 * * * the state would only need to offer expert testimony that the fundamental operation and operating principles are the same so that the two lasers could be ‘deemed different models of the same device.‘” Sweat, 2016-Ohio-2680 at ¶ 9, fn. 1, quoting Starks at ¶ 24.
{¶ 25} We find that the state did offer testimony that the fundamental operation and operating principles of the LTI 20/20 and the UltraLyte LR B are the same, such that the reliability of the UltraLyte LR B was established. Trooper Bailey, an officer with more than 24 years of experience who has received annual training and certification on speed-measuring devices, testified that he has been certified in the use of laser, radar, and ultralight laser speed-measuring devices. In testifying that the UltraLyte LR B device was in proper working
{¶ 26} For the foregoing reasons, we find no merit to Wilson‘s arguments and conclude that the trial court was entitled to take judicial notice of the expert testimony previously heard in Franklin v. Brown, Franklin M.C. No. 14-01-TRD-0267. This prior testimony, combined with Trooper Bailey‘s trial testimony established the scientific reliability of the UltraLyte LR B.5 Wilson‘s first assignment of error is, therefore, overruled.
{¶ 27} Assignment of Error No. 2:
{¶ 28} THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION.
{¶ 29} In his second assignment of error, Wilson contends the trial court erred in denying his motion to dismiss as his statutory speedy-trial rights were violated by the state‘s failure to bring him to trial within the time prescribed by
{¶ 30} The right to a speedy trial is guaranteed by the
{¶ 31}
{¶ 32} Once a defendant demonstrates he was not brought to trial within the permissible time period, the accused presents a prima facie case for dismissal based on a speedy-trial violation. Miller, 2009-Ohio-4831 at ¶ 9, citing State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, ¶ 10 (3d Dist.). The burden then shifts to the state to prove that time was sufficiently tolled and the speedy-trial time period extended. Id.
{¶ 33} Appellate review of speedy-trial issues involves a mixed question of law and fact. State v. Messer, 12th Dist. Clermont No. CA2006-10-084, 2007-Ohio-5899, ¶ 7. An appellate court must give due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence, but will independently review whether the trial court correctly applied the law to the facts of the case. Id.
{¶ 34} Wilson received his speeding citation and summons on May 13, 2017. At the time Wilson‘s trial commenced on July 11, 2017, 59 days had elapsed – 29 days more than that permitted by
{¶ 35} Contrary to Wilson‘s arguments, the 36 days that passed between the filing of his demand for discovery and the state‘s compliance with said demand is properly chargeable to Wilson. ”
{¶ 36} Once the tolling event of Wilson requesting discovery is taken into consideration, the record reveals that Wilson was brought to trial 23 days after the summons
{¶ 37} Assignment of Error No. 3:
{¶ 38} THE TRIAL COURT ERRED BY ACCEPTING AN ELECTRONICALLY SIGNED CITATION WITHOUT ESTABLISHING THE ESSENTIAL ELEMENT OF INTENT TO SIGN.
{¶ 39} In his third assignment of error, Wilson challenges the validity of his speeding citation and his subsequent conviction for speeding on the basis that the state failed to introduce evidence that Trooper Bailey intended to sign the citation.
{¶ 40}
The use and filing of a ticket that is produced by computer or other electronic means is hereby authorized in the Franklin Municipal Court. The electronically produced ticket shall conform in all substantive respects to the Ohio Uniform Traffic Ticket. If an electronically produced ticket is issued at the scene of an alleged offense, the issuing officer shall provide the defendant with a paper copy of the ticket.
{¶ 41} Wilson was issued an electronic speeding citation on May 13, 2017. The citation was generated in compliance with the requirements of
{¶ 42} We find that
{¶ 43} Here, Bailey‘s electronic signature appeared on the citation and was logically associated with the citation. As Bailey explained at trial,
We used to hand write tickets. They came up with a new system that verifies that you logged in, you‘re the you‘re the [sic] issuing citation, issuer, under your prescribed login. I have to go through about five passwords * * *. But once I log in whoever issues a ticket from that computer is me. Nobody else is signed in. * * * So I‘m, I‘m verified through the process of having an electronic signature that I am the person that‘s issuing and charging the person I‘m stopping.
Bailey had to log into the program that issues the citation, fill out the information set forth in the citation regarding Wilson‘s name, address, and driver‘s license number, the make, model, and license plate number associated with Wilson‘s car, and provide a description of the traffic violation Bailey observed Wilson commit before certifying that the information set forth in the complaint was true. As Bailey‘s electronic signature was logically associated with the citation, his electronic signature was valid.
{¶ 44} Accordingly, we find that Wilson‘s argument is without merit and his third assignment of error is overruled.
{¶ 45} Assignment of Error No. 4:
{¶ 46} THE TRIAL COURT ERRED BY DENYING DEFENDANT‘S [CRIM.R.] 29(A) MOTION FOR JUDGMENT OF ACQUITTAL WHEN THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUSTAIN A CONVICTION.
{¶ 47} In his fourth assignment of error, Wilson argues the trial court erred by denying his
{¶ 48}
{¶ 49} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, “[t]he relevant inquiry is whether, after
{¶ 50} Pursuant to
{¶ 51} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.
Notes
We recognize there is a difference between radar speed-measuring devices and laser-speed measuring devices. Our holding in this case in no way suggests that all laser-based speed-measuring devices should be judicially noticed or deemed scientifically reliable. We continue to hold that judicial notice as to the reliability of a speed-measuring device is device specific. See Starks, 2011-Ohio-2344 at ¶ 25. However, as discussed above, Trooper Bailey‘s testimony combined with the expert testimony previously heard by the trial court in Brown established the scientific reliability of the UltraLyte LR B. Under the circumstances presented in the present case, we conclude the state was not required to present independent expert testimony of the nature and function of or the scientific principles underlying the UltraLyte LR B – as it had previously done so in Brown.