[Cite as State v. Kincaid,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 2012-C0A-011 TIMOTHY J. KINCAID : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal Court, Case No. 12-TR-D-518

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 5, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID HUNTER TIMOTHY J. KINCAID PRO SE 1058 CR 2826 1910 Mentor Avenue Perrysville, OH 44864 Painesville, OH 44077 [Cite as State v. Kincaid,

.]

Gwin, J.

{¶1} Defendant Timothy J. Kincaid appeals a judgment of the Municipal Court

of Ashland County, Ohio, which found him guilty of driving 80 M.P.H. in a 65 M.P.H.

zone in violation of R.C. 4511.21 (D). Appellant assigns a single error, which he divides

into four issues:

{¶2} “THE RECORD DOES NOT SUPPORT THE CONVICTION OF

DEFENDANT OF TRAVELING AT 80 MILES PER HOUR IN A 65 MILE PER HOUR

ZONE IN VIOLATION OF OHIO REVISED STATUTE SECTION 4511.21 D2 (SIC),

FOR THE FOLLOWING REASONS:

{¶3} (a-1) THE READINGS FROM THE SPEED DETECTION DEVICE

INTRODUCED AT TRIAL WERE NOT ADMISSIBLE AS EVIDENCE BECAUSE THE

RADAR DEVICE WAS NOT APPROVED FOR JUDICIAL NOTICE.

{¶4} (a-2) THE READINGS FROM THE SPEED DETECTION DEVICE

INTRODUCED AT TRIAL WERE NOT ADMISSIBLE BECAUSE THERE WAS NO

EVIDENCE THAT THE DEVICE WAS PROPERLY TESTED IN ACCORDANCE WITH

ESTABLISHED PRINCIPLES.

{¶5} (a-3) THE TESTIMONY OF THE OFFICER REGARDING HIS VISUAL

OBSERVATION OF THE SPEED OF THE VEHICLE DRIVEN BY DEFENDANT WAS

NOT ADMISSIBLE BECAUSE THE OFFICER LACKED TRAINING, CERTIFICATION

AND EXPERIENCE IN VISUAL ESTIMATION OF SPEEDS.

{¶6} (b) THE STATUTE UNDER WHICH DEFENDANT WAS FOUND GUILTY

WAS NOT APPLICABLE TO THE FACTS OF THIS CASE INASMUCH AS THERE

WERE NO FACTS FROM WHICH THE COURT COULD CONCLUDE THAT THE Ashland County, Case No. 2012-CA-11 3

ROAD UPON WHICH THE DEFENDANT WAS DRIVING WAS A ‘FREEWAY’ AS

THAT TERM IS DEFINED IN THE STATUTE UNDER WHICH DEFENDANT WAS

CHARGED.”

{¶7} The record indicates Trooper James Speicher issued a speeding ticket to

appellant on January 4, 2012. At the trial the trooper testified he was stationary on

Interstate 71 when he observed a vehicle which later proved to be appellant’s vehicle

traveling at what he estimated to be at least 80 miles per hour. The trooper testified he

activated the Pro Laser III speed measuring device, for which he had checked the

calibration and the scope alignment at the start of his shift. The trooper established a

tracking history of appellant’s vehicle. He testified the tracking history he observed was

80 miles per hour, dropping to 79, 78, and then rapidly down to 65 miles per hour. The

trooper testified the posted speed limit for the road in question was 65 miles per hour.

{¶8} Appellant objected to the officer’s testimony that he was using a Customs

Signal Pro Laser III device. The court overruled the objection finding the trooper had

personal knowledge of the device.

{¶9} The State then asked the court to take judicial notice of the scientific

reliability of the Pro Laser III, based upon its determination in a prior case. At

appellant’s urging, the court declined to take judicial notice until after cross examination

was complete.

{¶10} Trooper Speicher then testified that at the end of his shift he tested the

Pro Laser III unit again and it was working properly at the end of the shift just as it had

been at the start. Ashland County, Case No. 2012-CA-11 4

{¶11} On cross-examination, appellant questioned the trooper extensively about

his training and experience. On cross, the trooper stated the device was a Pro Laser III

because it was printed on the unit and on the operating manual.

{¶12} Appellant then reviewed the manual with the trooper regarding various

instructions for using speed tracking devices. The trooper testified he used the laser

gun properly according to his training and the manual.

{¶13} On re-direct, the State asked Trooper Speicher to elaborate on his training

and experience including both classroom and hands-on training. Appellant renewed his

objection to the identification of the device, which the court noted but overruled. The

court then took judicial notice that the Pro Laser III is a scientifically accurate and valid

speeding measure device consistent with the court’s prior holdings.

{¶14} Appellant argues the state failed to present sufficient evidence to prove its

case against him. A claim of insufficient evidence invokes a due process concern and

raises the question whether the evidence is legally sufficient to support the verdict as a

matter of law. State v. Diar,

, 2008–Ohio–6266,

, citing State v. Thompkins,

,

(1997). In

reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing the evidence

in a light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks,

,

(1991), paragraph two of the syllabus, following

Jackson v. Virginia,

,

,

(1979). Ashland County, Case No. 2012-CA-11 5

a-1

{¶15} Appellant frames the first issue presented as whether the court can accept

testimony a speed-detection device was of a particular make and model based solely on

the sticker that appeared on the device, given that its placement on the device was not

prescribed by statute, and the circumstances of its placement on the device were

unknown. Appellant argues the trooper did not testify he knew the device was a

Custom Signal Pro Laser III because of his training and experience, but only testified he

believed it was because of the label. We find appellant misstates the evidence that was

presented. The trooper also testified about his training and certification with the device.

{¶16} Appellant characterizes the testimony as hearsay. Ohio R. Evid. 801 (C)

defines hearsay as a statement other than one made by the declarant while testifying at

trial or hearing offered in evidence to prove the truth of the matter asserted. Assuming

arguendo the label qualifies as a statement, we find this was not the only testimony

identifying the device. Even if the statement was hearsay, there was testimony the

trooper had training and was certified on the device, from which the court, if it believed

the trooper’s testimony, could draw the inference the officer was familiar with the Pro

Laser III and could testify from personal knowledge. The issue was the credibility of the

trooper’s testimony.

a-2

{¶17} The second issue appellant raises is whether there was any evidence the

speed measuring device was properly tested in accordance with established principles.

The State points out appellant never offered the manual for the device into evidence at

trial, although he read extensively from it during cross examination. The record only Ashland County, Case No. 2012-CA-11 6

contains the testimony presented at trial, at which the trooper testified at some length

that he tested and operated the device properly.

{¶18} Again we find the issue involves the credibility of the trooper’s testimony.

a-3

{¶19} Appellant argues the testimony of the officer regarding his visual

observation of the speed of the vehicle was not admissible because the officer lacked

training, certification, and experience in visual estimations of speed.

{¶20} Appellant’s argument here hinges on the Supreme Court’s holding in

Barberton v. Jenney,

,

,

, which held

a police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to

convict if the officer demonstrates he is trained, certified, and experienced in visually

estimating vehicles’ speed.

{¶21} On September 30, 2011, subsequent to Jenney, the Legislature amended

R.C. 4511.091 to specify no person shall be arrested, charged, or convicted of a

violation of the statutes governing speeding based solely on a police officer’s visual

unaided estimation of the speed of a motor vehicle, trackless trolley or streetcar.

{¶22} The trial testimony details the trooper’s training, certification, and

experience. We have found supra the trial court did not err in finding the speed

detection device had been accepted by the court as reliable and properly used, and

therefore the trooper’s estimation of appellant’s speed is not the sole evidence

presented. Ashland County, Case No. 2012-CA-11 7

b

{¶23} Finally, appellant argues the statute under which he was convicted was

inapplicable to the case because there were no facts from which the court could

conclude the appellant was driving on a freeway as defined in the statute. R.C. 4511.21

provides the speed limit is 65 mph on interstates as defined as:

(a) Freeways that are part of the interstate system and that had such a

speed limit established prior to October 1, 1995, and freeways that are not

part of the interstate system, but are built to the standards and

specifications that are applicable to freeways that are part of the interstate

system and that had such a speed limit established prior to October 1,

1995;

(b) Freeways that are part of the interstate system and freeways that are

not part of the interstate system but are built to the standards and

specifications that are applicable to freeways that are part of the interstate

system, and that had such a speed limit established under division (L) of

this section;

{¶24} The trooper testified the incident occurred on an interstate highway with a

posted speed limit of 65, but there was no evidence presented the speed limit had been

established prior to October 1, 1995. Again, appellant did not object to the trooper’s

testimony although he raised this issue in closing argument.

{¶25} The trial court did not address this issue directly, but found appellant was

traveling on a roadway where the posted speed limit was 65 miles per hour. We find Ashland County, Case No. 2012-CA-11 8

again the trooper’s testimony, if believed by the trial court as the finder of fact, was

sufficient for the court to draw this conclusion.

{¶26} The assignment of error is overruled in each of its parts.

{¶27} For the foregoing reasons, the judgment of the Municipal Court of Ashland

County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Farmer, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. SHEILA G. FARMER WSG: clw 0906 [Cite as State v. Kincaid,

.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : TIMOTHY J. KINCAID : : : Defendant-Appellant : CASE NO. 2012-CA-11

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Ashland County, Ohio, is affirmed. Costs to

appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. SHEILA G. FARMER