[Cite as State v. Sadeghi,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 14AP0051

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ARDALAN SADEGHI WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. 2014 TR-D 006890

DECISION AND JOURNAL ENTRY

Dated: February 29, 2016

WHITMORE, Judge.

{¶1} Appellant, Ardalan Sadeghi, appeals from his conviction in the Wayne County

Municipal Court for speeding in violation of R.C. 4511.21(C).1 We affirm.

I

{¶2} Appellant was charged with speeding in violation of R.C. 4511.21(C) for driving

83 miles per hour in a 60 miles per hour zone. He pled not guilty at arraignment.

{¶3} A bench trial was held. At trial, Trooper Ondick of the Ohio State Highway

Patrol testified for the State. He testified that he visually estimated Appellant’s speed to be

approximately 80 miles per hour. He used a lidar (laser) speed measuring device to measure

Appellant’s speed at 83 miles per hour.2 Trooper Ondick identified the lidar device as “laser

1 Appellant’s name is spelled multiple different ways in the trial court record. In this decision we have chosen the spelling that Appellant used in his assignments of error.

2 A lidar is a device that is similar in operation to radar, but emits pulsed laser light instead of microwaves. See Merriam-Webster’s Collegiate Dictionary 717 (11th Ed. 2004). 2

number seven”, manufactured by “UltraL[y]t[e]”, but he did not identify the specific model of

the lidar.

{¶4} At trial, the State requested that the court take judicial notice of the scientific

dependability of the lidar device. The court took judicial notice of the device. Appellant did not

object to judicial notice at trial.

{¶5} Trooper Ondick testified that he has been trained by the Ohio State Highway

Patrol in the theoretical and practical aspects of the lidar. He passed a proficiency test as part of

his training that required him to use the lidar to accurately measure vehicular speed.

{¶6} Appellant testified on his own behalf at trial. He generally disputed Trooper

Ondick’s account of the facts.

{¶7} The court found Appellant guilty of violating R.C. 4511.21(C). The court

imposed costs and a $100 fee, and assessed two points to Appellant’s license. Appellant paid the

costs and fee. Appellant now raises four assignments of error for our review.

II

Assignment of Error Number One

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING SADEGHI’S SPEEDY TRIAL.

{¶8} As a threshold matter, we address the State’s claim that this appeal is no longer

ripe for review. The State argues that Appellant satisfied the judgment when he paid the fine and

costs assessed against him, and thus mooted the appeal. We disagree.

{¶9} An appeal from a misdemeanor sentence is moot if the defendant voluntarily

satisfied the judgment, unless the defendant (1) requested a stay of the sentence pending appeal

or (2) would suffer some collateral disability or loss of civil rights if the appeal was not

considered. See State v. Pedraza, 9th Dist. Lorain No. 09CA009706,

, ¶ 25. 3

The Supreme Court of Ohio has held that the “imposition of points on a traffic offender’s driving

record is a statutorily imposed penalty sufficient to create a collateral disability as the result of

the judgment and preserves the justiciability of an appeal even if the offender has voluntarily

satisfied the judgment.” In re S.J.K.,

,

, syllabus.

{¶10} Here, the court assessed two points to Appellant’s license. Thus, Appellant

suffered a collateral disability as result of the sentence. Accordingly, the appeal is not moot,

even though Appellant satisfied the judgment imposed. See

{¶11} Having determined that the appeal is not moot, we turn to Appellant’s first

assignment of error. In this assignment of error, Appellant argues that the trial court violated his

right to a speedy trial. We disagree.

{¶12} Appellant did not raise his speedy trial claim in the trial court. “An appellant

cannot, for the first time, raise the issue of the denial of a speedy trial in the court of appeals.”

State v. Myers, 9th Dist. Lorain No. 89CA004715,

, *4 (Sept. 12, 1990), citing

Worthington v. Ogilby,

(10th Dist. 1982). Because Appellant’s failure to raise

the speedy trial issue before the trial court precludes us from reviewing whether a speedy trial

violation occurred, Appellant’s first assignment of error is overruled.

Assignment of Error Number Two

THE TRIAL COURT ERRED TO SADEGHI’S PREJUDICE IN DENYING CERTAIN RELEVANT DISCOVERY REQUESTS THAT COULD HAVE BEEN USED TO IMPEACH THE CREDIBILITY OF THE OFFICER AND THE RELIABILITY OF THE SPEED MEASURING DEVICE EMPLOYED AS THE BASIS FOR THE TRAFFIC STOP AND CITATION GIVEN TO DEFENDANT.

{¶13} In his second assignment of error, Appellant contends that the trial court

committed error when it “den[ied] certain relevant discovery requests that could have been used

to impeach” Trooper Ondick and challenge the reliability of the lidar. We disagree. 4

{¶14} A trial court’s resolution of discovery issues in criminal matters is reviewed for an

abuse of discretion. State v. Lough, 9th Dist. Summit No. 21547,

. Under

this standard, we determine whether the trial court’s decision was arbitrary, unreasonable, or

unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore,

(1983). When applying this standard, we may not substitute our judgment for that

of the trial court. Berk v. Matthews,

(1990).

{¶15} Appellant appears to argue that the court erred when it did not exclude Trooper

Ondick’s testimony based on the lidar device as a sanction for the State’s failure to produce a

manual and maintenance records for the lidar that Appellant had requested during discovery. At

trial, the State informed the trial court that it did not have any such records. The court overruled

Appellant’s objection to Trooper Ondick’s testimony, stating that “[the] documents that you

requested are not available.”

{¶16} Ohio Crim.R. 16 governs discovery in criminal cases. In part, the rule provides

that “[u]pon receipt of a written demand for discovery by the defendant”, the prosecutor shall

provide, or make available to be copied or photographed, “books, papers, [and] documents” that

are “material to the preparation of a defense.” Crim.R. 16(B)(3). Prosecutorial violations of

Crim.R. 16 are reversible only when there is a showing that: (1) the prosecution’s failure to

disclose was a willful violation of the rule; (2) knowledge of the information would have

benefited the accused in the preparation of the defense; and (3) the accused suffered some

prejudicial effect. State v. Joseph,

(1995).

{¶17} Here, Appellant cannot show a willful violation of Crim.R. 16. The rule “requires

the state to produce only items in the prosecutor’s custody * * *.” See State v. Luskin, 9th Dist.

Lorain No. 90CA004766,

, *2 (Dec. 12, 1990). The trial court found that the 5

discovery materials in question were not within the State’s custody. Appellant has not suggested

that the State actually possessed the discovery, or that it was otherwise available to the State.

Under the circumstances, the trial court did not abuse its discretion when it found that “[the State

is] not required to produce something [it doesn’t] have.” Appellant’s second assignment of error

is overruled.

Assignment of Error Number Three

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING SADEGHI GUILTY OF VIOLATING R.C. 4511.21(C).

{¶18} In his third assignment of error, Appellant argues that the evidence before the trial

court was insufficient to sustain his conviction. This argument lacks merit.

{¶19} Whether a conviction is supported by sufficient evidence is a question of law that

this Court reviews de novo. State v. Thompkins,

(1997). To determine

whether the evidence before the trial court was sufficient to sustain a conviction, this Court

inquires whether any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks,

(1991). A challenge

to the sufficiency of the evidence is a claim that the state did not meet its burden of production

on an essential element of proof. State v. Gulley, 9th Dist. Summit No. CA19600,

, *1 (March 15, 2000), citing Thompkins,

(Cook, J., concurring). In

evaluating sufficiency of the evidence, this Court must review the evidence in a light most

favorable to the prosecution.

.

{¶20} R.C. 4511.21(C) generally prohibits an individual from operating a motor vehicle

in excess of a speed limit. To sustain a conviction for speeding when the officer clocked the

motorist with a speed detection device, the prosecution must prove three things: (1) radar or lidar

devices are scientifically accepted as dependable for their purpose; (2) the particular unit was in 6

good working order; and (3) the officer using the device was qualified to do so. See State v.

Maher, 9th Dist. Medina No. 2416-M,

, *1 (Sept. 20, 1995), citing East

Cleveland v. Ferell,

, 301 (1958); State v. Jamnicky¸ 9th Dist. Wayne No.

03CA0039,

.

{¶21} With respect to proof of scientific acceptance of dependability, Appellant argues

that the evidence was insufficient to sustain a speeding conviction because the trial court took

improper judicial notice of the scientific reliability of the lidar device. Appellant’s argument

appears to be that, without the improper judicial notice, there was no evidence of scientific

reliability.

{¶22} The Supreme Court of Ohio has held that an appellate court must consider all of

the evidence presented by the State in evaluating the sufficiency of the evidence, even if the

evidence was improperly admitted by the trial court. See State v. Brewer,

,

, ¶ 19, citing Lockhart v. Nelson,

(1988). Thus, even assuming

arguendo that the judicial notice was improper, we consider the judicially noticed evidence in

evaluating Appellant’s insufficiency claim. Taking into account that the judicial notice was of

the scientific reliability of the lidar, the State satisfied its duty of production on the element of

scientific reliability. Accordingly, the alleged improper judicial notice does not support

Appellant’s claim of insufficiency of the evidence. We note that, apart from Appellant’s

challenge to the sufficiency of the evidence, Appellant has not brought an assignment of error to

argue that the trial court committed reversible error when it took judicial notice of the lidar

device. Thus, we will not consider whether the judicial notice was improper, or whether reversal

is warranted on that basis. 7

{¶23} Appellant further claims that the evidence was insufficient to sustain a conviction

of speeding because the State failed to produce evidence that Trooper Ondick was qualified to

use the lidar device. Specifically, Appellant argues that evidence of Trooper Ondick’s training

was insufficient because the State did not prove that he was trained on the particular model of

UltraLyte laser that the trooper used.

{¶24} Trooper Ondick testified extensively regarding his training to use lidar technology

to measure vehicular speed. He testified that he completed 22 weeks of military-academy-like

training at the Ohio State Highway Patrol academy. This training included speed enforcement,

and, specifically, training on lidar and radar technology. Trooper Ondick completed classroom

work on the “history and principles” of the lidar and radar. He also completed hours of practical

training, one component of which consisted of riding with a training officer who instructed him

on the use of lidar devices. Trooper Ondick passed a proficiency exam that required him to use

lidar in the presence of a training officer to accurately measure vehicle speed. Trooper Ondick

testified that he was required to renew his training in lidar technology during a week-long course

every year. His training was current at the time of trial.

{¶25} At trial, Appellant cross examined Trooper Ondick regarding the trooper’s

certificate of training, which showed that some of the trooper’s training had been on UltraLyte

lidar devices. Trooper Ondick was uncertain whether any of the UltraLyte devices listed on his

training certificate were the same model as laser number seven. Nonetheless, Appellant does not

argue or cite any authority to support that the underlying technology or method of operation is

significantly different between different models of laser devices, and particularly between

different lidars with the same manufacturer. On the basis of Trooper Ondick’s testimony that he 8

was extensively trained in lidar technology, we find that the State presented sufficient evidence

to demonstrate that Trooper Ondick was qualified to use the lidar device in this case.

{¶26} Appellant also argues that the evidence at trial was insufficient to convict him of

speeding because “[a] visual estimate of speed, by itself, is not legally sufficient to prove a

violation of R.C. 4511.21.” R.C. 4511.091(C)(1) provides that, with exceptions not applicable

here, a conviction for speeding cannot be maintained “based on a peace officer’s unaided visual

estimation of the speed of a motor vehicle * * *.” However, Appellant’s conviction was based

on the lidar reading as corroborated by the trooper’s visual estimation of speed. Thus, contrary to

Appellant’s suggestion, his conviction was not impermissibly based on an “unaided” visual

estimation.

{¶27} Appellant further contends that Trooper Ondick’s “visual observation does not

match the video recording of the incident.” We note that this argument sounds more in manifest

weight of the evidence, rather than sufficiency of the evidence, because it asks the court to

evaluate Trooper Ondick’s credibility and the trial court’s resolution of conflicts in the evidence.

See State v. Otten,

(9th Dist. 1986) (explaining what an appellate court

must do to determine whether a conviction is against the manifest weight of the evidence).

Regardless, there is no video recording in the record, nor was there any reference to a video

recording at trial. This Court cannot find that the trial court committed error on the basis of

video evidence not in the record.

{¶28} Appellant makes cursory reference to other purported deficiencies in the trial

court record, but fails to explain how any of the issues he attempts to raise establish that the

evidence at trial was insufficient to sustain his conviction. When an appellant fails to develop an

argument that is the basis of the appeal, “we will not construct a foundation for [an appellant’s] 9

claims.” (Alterations sic.) See Glenmoore Builders, Inc. v. Smith Family Trust, 9th Dist.

Summit No. 24299,

, ¶ 30, quoting Catanzarite v. Boswell, 9th Dist. Summit No.

24184,

. Because Appellant fails to develop these arguments, we will not

address them. See Glenmoore Builders, Inc. at ¶ 30.

{¶29} Viewing the evidence in a light most favorable to the prosecution, we find that the

evidence presented by the State was sufficient to sustain Appellant’s conviction for speeding.

On this basis, Appellant’s third assignment of error is overruled.

Assignment of Error Number Four

THE JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶30} In his fourth assignment of error, Appellant argues that his conviction is against

the manifest weight of the evidence. We disagree.

{¶31} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

Otten,

. Weight of the evidence concerns whether a greater amount of

credible evidence supports one side of the issue than supports the other. Thompkins,

. Further, when reversing a conviction on the basis that the conviction was against

the manifest weight of the evidence, “the appellate court sits as a ‘thirteenth juror’ and disagrees

with the factfinder’s resolution of the conflicting testimony.”

quoting Tibbs v. Florida,

(1982). Therefore, the Court’s “discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily against the 10

conviction.” State v. Browning, 9th Dist. Summit No. 26687,

, quoting

State v. Martin,

(1st Dist. 1983).

{¶32} In support of his manifest weight argument, Appellant states that:

The trooper [sic] visual estimation is in doubt and not justified for conviction. Trooper has no training specific to ‘Laser number seven.’ The scientific reliability of Laser number seven is questionable.

Appellant fails to undertake a manifest weight of the evidence argument, however. Instead he

cites the standard for evaluating sufficiency of the evidence. He goes on to restate the

sufficiency arguments set forth in his previous assignment of error. We will not develop

Appellant’s manifest weight of the evidence argument for him. See Glenmoore Builders, Inc.,

at ¶ 30.

{¶33} In this case, the trial court heard all of the evidence and found the testimony that

Trooper Ondick gave at trial more credible than Appellant’s testimony. Having reviewed the

record, we find that this is not the exceptional case where the factfinder lost its way and created a

manifest miscarriage of justice. See

. Accordingly, there are no grounds to conclude

that Appellant’s conviction for speeding was against the manifest weight of the evidence.

Appellant’s fourth assignment of error is overruled.

III

{¶34} Appellant’s assignments of error are overruled. The judgment of the Wayne

County Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 11

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

HENSAL, P. J. SCHAFER, J. CONCUR.

APPEARANCES:

ARDALAN SADEGHI, pro se, Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.