[Cite as State v. Everett,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY

STATE OF OHIO, CASE NO. 16-09-10

PLAINTIFF-APPELLEE,

v.

JEREMY M. EVERETT, OPINION

DEFENDANT-APPELLANT.

Appeal from Upper Sandusky Municipal Court Trial Court No. TRD-09-725

Judgment Reversed and Cause Remanded

Date of Decision: December 21, 2009

APPEARANCES:

Jeremy M. Everett Appellant

Richard A. Grafmiller for Appellee Case No. 16-09-10

WILLAMOWSKI, J.,

{¶1} Defendant-Appellant, Jeremy M. Everett (“Everett”) appeals the

judgment of the Upper Sandusky Municipal Court finding Everett guilty of

speeding in violation of R.C. 4511.21(D)(2). On appeal, Everett asserts that the

trial court erred in admitting evidence obtained from the moving radar unit. For

the reasons set forth below, the judgment is reversed.

{¶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 activated 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

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testified that he had been trained in the use of radar and that he had been issued an

operator’s certificate of training. The trial court stated that it had taken judicial

notice on the Doppler principle, which radar uses.

{¶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 judicial 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 R.C. 4511.21(D)(2). The trial court ordered Everett to

pay a $25.00 fine, court costs of $127.50, and assigned two points to his driving

record. It is from this judgment that Everett appeals, presenting the following

three assignments of error for our review.

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

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moving radar unit without any expert witness testimony presented at the trial to its construction, accuracy and reliability, and without the trial court previously hearing any expert witness testimony for the device to its construction, accuracy and reliability, nor a superior court in the State of Ohio previously hearing or accepting any expert witness testimony for the device to its construction, accuracy and reliability.

Second 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 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),

,

, 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,

. In order to convict a person for speeding

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using a moving radar device, the state must prove and the record must contain (1)

expert testimony of the construction of the device and its method of operation in

determining the speed of the approaching vehicle, (2) evidence that the device was

in good condition for accurate work, and (3) evidence that the officer using the

device is one qualified for its correct use by training and experience. State v.

Wilcox (1974),

,

. A court may satisfy

the first prong by hearing expert testimony or by taking judicial notice.1 State v.

Yaun, 3d Dist. No. 8-07-22,

; City of Cincinnati v. Levine,

,

, 658

. Regardless as

to whether the radar unit is stationary or moving, or what method the state uses to

satisfy the first evidentiary prong, the state must always prove the second and third

elements concerning the accuracy of the particular speed meter involved and the

qualifications of the person using it. Ferell, supra, 68 Ohio St. at 303; State v.

Helke, 3d Dist. No. 8-07-04,

.

{¶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

1 Judicial notice establishing the reliability of a speed-measuring device to satisfy the first prong can be accomplished by (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 court notes it on the record. City of Cincinnati v.

But see, Cleveland v. Tisdale, stating that “we believe that expert testimony is no longer required to establish the general reliability of radar or laser devices that are used to determine speed.”

.

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properly operate the Python II radar unit, and therefore, there was insufficient

evidence to convict him of speeding.

{¶8} A defendant is entitled to acquittal on a charge against him under

Crim.R. 29(A) if the evidence is insufficient to sustain a conviction. Whether a

conviction is supported by sufficient evidence is a question of law that this Court

reviews de novo. State v. Thompkins,

,

(1997);

. This Court must determine whether, viewing the

evidence in a light most favorable to the prosecution, it could have convinced an

average juror of the defendant’s guilt beyond a reasonable doubt. See State v.

Jenks (1991),

,

, paragraph two of the syllabus.

{¶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,

(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.

(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.

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No.02CA0034-M,

, ¶12 (explaining that the deputy’s testimony

that he was trained on the specific K-55 radar unit on two separate occasions,

absent a certificate of training, was insufficient to demonstrate that he was

qualified to operate the radar unit); Barberton v. Jenney, 9th Dist. No. 24423,

(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 shows 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. Moreover, 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

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state that he received any specific training on the Python II. During cross-

examination, Trooper Donnell was not able to answer several questions

concerning the parameters of the Python II. When asked if he had ever read the

manual for the Python II, Trooper Donnell responded that he had “briefly looked

through one” two or three years ago.

{¶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 operate 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.

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,

.

{¶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,

. In Harris, the defendant admitted that he was going

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“about 65” in a 55 miles per hour zone in addition to the trooper’s testimony that

he visually estimated the defendant’s speed as approximately 70 miles per hour.

Id. at ¶12. In support of the accuracy of this visual determination, the trooper

testified that he was trained to visually detect the speed of a vehicle within four

miles of its actual speed. Id. at ¶11. He further testified that he was certified in

determining the speed of a vehicle based upon visual observation, and that his

certification in this area was current. Id. And finally, the radar’s specific reading

of 72 miles per hour was not essential to the conviction because the defendant was

convicted only of the “general offense of speeding” and not of violating any

specific speed limit by a particular number of miles per hour. Id. at ¶13.

{¶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 what 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?

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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,

(where the court found the direct testimony as to speeding too vague for a

finding of guilt); Harris,

. 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,

, ¶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,

(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,

, ¶17

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(where the trooper testified he had forty hours training in visually estimating the

speed of vehicles, and his estimates were verified with radar).

{¶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

presumption of innocence and the burden of proof beyond a reasonable doubt for

conviction.” Cleveland v. Wilson, 8th Dist. No. 87047,

. 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

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irrelevant questions and unsubstantiated claims posed by the defendant to the

trooper at trial, I respectfully dissent.

{¶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 the "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 - beyond 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.)

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{¶23} In particular, the defendant made absolutely no showing whatsoever

that the questions about "humidity parameters" posed to the trooper on cross-

examination, had any basis in fact or science for impacting the accuracy or

reliability of the Python II radar in general - or otherwise impacted the trooper's

use of that radar to accurately document the defendant's speeding on the date of

the offense.

{¶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 or 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.

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{¶26} For these reasons, I believe the trial court was well within its

prerogative to reject the claims, comments and questions of the defendant and

accept the testimony of the trooper with regard to both his visual observations and

the use of the radar as accurate evidence in determining the defendant's speed in

this case. I would affirm the judgment of the trial court.

/jnc

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