City of Brookpark v. Rodojev

117 N.E.3d 175, 2018 Ohio 5028
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedDecember 13, 2018
DocketNo. 106313
StatusPublished
Cited by2 cases

This text of 117 N.E.3d 175 (City of Brookpark v. Rodojev) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Brookpark v. Rodojev, 117 N.E.3d 175, 2018 Ohio 5028 (Ohio Super. Ct. 2018).

Opinion

SEAN C. GALLAGHER, P.J.:

{¶1} Joseph Rodojev appeals his conviction for driving 15 m.p.h. over the posted speed limit. We affirm.

{¶2} A city of Brookpark police officer spotted Rodojev driving faster than the flow of traffic along the eastbound side of Interstate 480. Using an LTI 20/20 Laser Speed Detection device, the officer confirmed that Rodojev was driving 75 m.p.h. in the 60 m.p.h. zone, and the officer relayed that information to Rodojev before issuing a ticket.1 The laser speed detection device was calibrated and working properly at the time of the stop, and the officer was certified to use it. Rodojev claims that he was in the midst of a sneezing fit that caused his nose to bleed right before the officer pulled him over. Following a bench trial, Rodojev was found guilty of speeding.

{¶3} In the first assignment of error, Rodojev claims that the trial court erred in permitting the officer to testify about the results of the laser speed measuring device without expert testimony establishing the scientific reliability of that particular device.

Background and Overview

{¶4} More than 60 years ago, the Ohio Supreme Court confirmed that the reliability of the scientific principles underlying the use of radar could be established without the need for expert testimony or the taking of judicial notice. Cleveland v. Craig , 8th Dist. Cuyahoga No. 99619, 2013-Ohio-5742, 2013 WL 6857990, ¶¶ 14-27 (providing an in-depth review of the history of radar speed measuring devices in the law), citing E. Cleveland v. Ferell , 168 Ohio St. 298, 154 N.E.2d 630 (1958). As the Ferell standard evolved, Ohio courts began considering expert evidence or judicial notice of the scientific reliability of speed measuring devices as required to sustain a conviction. Id. at ¶ 16.

{¶5} In Cleveland v. Tisdale , 8th Dist. Cuyahoga No. 89877, 2008-Ohio-2807, 2008 WL 2346440, it was concluded that Ferell stood for the proposition that the accuracy of the particular device, as it pertained to the sufficiency of the evidence, was established with evidence of the proper calibration and the qualifications of the person *178using the device, but the general reliability of the radar speed measuring device, which pertained to the admissibility of the evidence and not the sufficiency of the evidence, was established by Ferell . The admissibility analysis in Ferell originates with Wigmore's The Science of Judicial Proof . Ferell . That analysis, however, was supplanted by the codification of the Rules of Evidence. The admissibility of scientific evidence in Ohio is governed by Evid.R. 402, 403, and 702. State v. Williams , 4 Ohio St.3d 53, 446 N.E.2d 444 (1983), syllabus; State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 152 (under Evid.R. 702, scientific evidence must be deemed relevant and reliable in order to be admitted into evidence).

{¶6} In addition to admissibility concerns, Evid.R. 103(A)(1) provides that no error may be based on the admission of evidence unless the substantial right of the complaining party is affected and a timely objection or motion to strike appears in the record. Id. ; Ford v. Sunbridge Care Ents. , 2016-Ohio-1122, 62 N.E.3d 609, ¶ 16 (8th Dist.). And, under Crim.R. 12(C)(3), a defendant who does not challenge the admissibility of certain scientific test results through a pretrial motion to suppress waives any requirement for the state to lay a foundation for the scientific reliability of the test results at trial. State v. French , 72 Ohio St.3d 446, 451, 650 N.E.2d 887 (1995). Further, the failure to object to the admissibility of evidence at trial waives all but plain error. Plain error, however, is not to be invoked except in the "utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." (Emphasis sic.) State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23.

{¶7} Despite the advent of the Rules of Evidence, courts default to the common-law analysis developed in Ferell with respect to determining the admissibility of the results of a speed measuring device. Compare State v. Clark , 101 Ohio App.3d 389, 416, 655 N.E.2d 795 (8th Dist.1995) (witness permitted to use computer-generated simulations at trial under Evid.R. 702 because the simulations were reliable and generally accepted). If we applied the Rules of Evidence to this case, the inquiry would be at an end - Rodojev failed to object to the general scientific reliability of the laser speed measuring device. The absence of the foundational evidence in the record is directly a result of his failure to timely object. Nevertheless, we acknowledge that the weight of authority in Ohio is to apply the Ferell principles and analysis with respect to the admissibility of the results from a speed measuring device.

{¶8} In no other context is the legal analysis so outdated. For example, in the early 1990s, courts began considering the admissibility of DNA evidence. State v. Pierce

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Related

Brook Park v. Rodojev (Slip Opinion)
2020 Ohio 3253 (Ohio Supreme Court, 2020)
State v. Freed
2020 Ohio 655 (Ohio Court of Appeals, 2020)

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Bluebook (online)
117 N.E.3d 175, 2018 Ohio 5028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-brookpark-v-rodojev-ohctapp8cuyahog-2018.