[Cite as Greater Cleveland Metroparks v. Ismail, 2017-Ohio-5570.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104412
GREATER CLEVELAND METROPARKS
PLAINTIFF-APPELLEE
vs.
THERESA A. ISMAIL
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Parma Municipal Court Case No. 15 TRD 10936
BEFORE: Jones, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 29, 2017 ATTORNEY FOR APPELLANT
Christina Brueck Brueck Law Firm 333 Babbit Road, Suite 301 Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
Anne Eisenhower Cleveland Metroparks 4600 Valley Parkway Fairview Park, Ohio 44126 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Theresa Ismail appeals her speeding conviction, which
was rendered in the Parma Municipal Court after a bench trial. We affirm.
{¶2} At trial, plaintiff-appellee Greater Cleveland Metroparks (“Metroparks”)
presented the testimony of Julie Dollard (“Ranger Dollard”), the ranger who issued a
speeding ticket to Ismail. Ranger Dollard testified that on the date of the incident she
was pulled over on a “pull off” between State Road and Broadview Road in the
Brecksville Reservation portion of the Metroparks. Her ranger vehicle was stationary
and she was “running the radar,” which was a “Python Series II.” The posted speed
limit in that portion of the Metroparks was 30 m.p.h.
{¶3} Ranger Dollard testified that she saw the car being driven by Ismail and
visually estimated that it was going over 50 m.p.h. She then clocked the speed with the
radar; the car was traveling at 56 m.p.h. The ranger pulled Ismail over and issued her a
speeding ticket. The citation stated that the car was going 47 m.p.h., which Ranger
Dollard testified was the speed Ismail slowed down to.
{¶4} Ranger Dollard testified that she had been trained in running radar, and that
the training entailed classroom course work, field training, and an examination. The
field training included doing visual estimations of a car’s speed, which would then be
compared to the speed as recorded by the radar for accuracy determinations. Upon
completion of the training, the ranger was certified as a radar operator. Her certificate of
completion was entered into evidence. {¶5} Further, the ranger testified that she conducted a “tuning test” prior to the
start of her shift on the day in question, and after each ticket that she issued. The test
confirmed that the radar was calibrated. She also testified as to the last time the radar
was calibrated, and the certificate demonstrating that calibration was entered into
evidence.
{¶6} Ismail also testified. According to Ismail, Ranger Dollard was following her
as she was driving less than 25 m.p.h., and then pulled her over. Ismail asked the ranger
to see her radar device, to which Ranger Dollard responded, “no, I don’t need radar.”
Ismail testified that she was looking at her speedometer the entire time, and so the speeds
the ranger clocked her at and cited her for were “impossible,” because at the most, she
was going approximately 32 m.p.h. She told the court that she drives that way numerous
times a day and never exceeds 32 m.p.h.
{¶7} On this evidence, the trial court found Ismail guilty of speeding. The court
imposed a $100 fine, with $50 suspended, and court costs. The sentence was stayed
pending this appeal, in which Ismail raises the following assignment of error for our
review: “The trial court erred in finding that the evidence presented at trial was
sufficient to find the defendant-appellant guilty of speeding.”
{¶8} Ismail raises two issues in this appeal: (1) the reliability of the radar device
and (2) the admissibility of Ranger Dollard’s visual-estimation testimony, which we
consider in turn.
The Reliability of the Radar Device {¶9} Ismail contends that the radar device measurement was insufficient without
expert testimony establishing its reliability.1 We disagree.
{¶10} In order to convict Ismail of speeding, Metroparks was required to show that
(1) the radar device’s speed measurements were reliable, (2) the specific radar unit was in
good working condition, and (3) Ranger Dollard was qualified to use the radar device.
E. Cleveland v. Ferell, 168 Ohio St. 298, 301, 154 N.E.2d 630 (1958).
{¶11} In Ferell, the Ohio Supreme Court considered whether evidence of speed
obtained from a radar speed meter was insufficient evidence to sustain a speeding
conviction when there was no expert testimony at trial regarding the meter’s construction
and method of operation. The court held no, stating that “readings of a radar speed
meter may be accepted in evidence, just as we accept photographs, x-rays,
electroencephalographs, speedometer readings, and the like, without the necessity of
offering expert testimony as to the scientific principles underlying them.” Id. at 303.
Thus, “[t]here remains, then, only a determination as to the sufficiency of the evidence
concerning the accuracy of the particular speed meter involved * * * and the
qualifications of the person using it.” Id.
{¶12} Some appellate courts, however, have held that Ferell’s holding is limited to
1 In a sufficiency of the evidence inquiry, appellate courts do not assess whether the prosecution’s evidence is to be believed but whether, if believed, the evidence supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence). Further, the “testimony of one witness, if believed by the jury, is enough to support a conviction.” State v. Strong, 10th Dist. Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42. stationary radar devices, as opposed to moving radar devices. For example, in State v.
Wilcox, 40 Ohio App.2d 380, 319 N.E.2d 615 (10th Dist.1974), the Tenth Appellate
District, after acknowledging Ferell, held as follows:
However, we feel that a defendant may not be convicted of speeding solely upon evidence obtained from a radar speed meter device mounted in a moving patrol car in the absence of expert testimony with respect to the construction of the device and its method of operation with respect to its ability to differentiate the speed of a vehicle approaching the moving patrol car from the opposite direction from the combined speed at which they are moving toward each other.
(Emphasis added.) Wilcox at 384.
{¶13} Citing Wilcox, Ismail contends that her conviction was not supported by
sufficient evidence because Metroparks did not present expert testimony to establish the
radar’s reliability. According to Ismail, Ranger Dollard clocked her speed while the
ranger was moving in her vehicle. Ismail further relies on State v. Everett, 3d Dist.
Wyandot No. 16-09-10, 2009-Ohio-6714, in support of her contention. In Everett, a
state trooper used the same radar model — the Python Series II — that Ranger Dollard
used here. Both law enforcement officials in Wilcox and Everett were in moving
vehicles at the time they operated their radar devices.
{¶14} Here, however, Ranger Dollard testified that she was stationary, not moving,
when she clocked Ismail’s speed. Although Ismail testified otherwise, Metroparks
presented evidence that, if believed, was sufficient to support the conviction as to the
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[Cite as Greater Cleveland Metroparks v. Ismail, 2017-Ohio-5570.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104412
GREATER CLEVELAND METROPARKS
PLAINTIFF-APPELLEE
vs.
THERESA A. ISMAIL
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Parma Municipal Court Case No. 15 TRD 10936
BEFORE: Jones, J., Stewart, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 29, 2017 ATTORNEY FOR APPELLANT
Christina Brueck Brueck Law Firm 333 Babbit Road, Suite 301 Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
Anne Eisenhower Cleveland Metroparks 4600 Valley Parkway Fairview Park, Ohio 44126 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Theresa Ismail appeals her speeding conviction, which
was rendered in the Parma Municipal Court after a bench trial. We affirm.
{¶2} At trial, plaintiff-appellee Greater Cleveland Metroparks (“Metroparks”)
presented the testimony of Julie Dollard (“Ranger Dollard”), the ranger who issued a
speeding ticket to Ismail. Ranger Dollard testified that on the date of the incident she
was pulled over on a “pull off” between State Road and Broadview Road in the
Brecksville Reservation portion of the Metroparks. Her ranger vehicle was stationary
and she was “running the radar,” which was a “Python Series II.” The posted speed
limit in that portion of the Metroparks was 30 m.p.h.
{¶3} Ranger Dollard testified that she saw the car being driven by Ismail and
visually estimated that it was going over 50 m.p.h. She then clocked the speed with the
radar; the car was traveling at 56 m.p.h. The ranger pulled Ismail over and issued her a
speeding ticket. The citation stated that the car was going 47 m.p.h., which Ranger
Dollard testified was the speed Ismail slowed down to.
{¶4} Ranger Dollard testified that she had been trained in running radar, and that
the training entailed classroom course work, field training, and an examination. The
field training included doing visual estimations of a car’s speed, which would then be
compared to the speed as recorded by the radar for accuracy determinations. Upon
completion of the training, the ranger was certified as a radar operator. Her certificate of
completion was entered into evidence. {¶5} Further, the ranger testified that she conducted a “tuning test” prior to the
start of her shift on the day in question, and after each ticket that she issued. The test
confirmed that the radar was calibrated. She also testified as to the last time the radar
was calibrated, and the certificate demonstrating that calibration was entered into
evidence.
{¶6} Ismail also testified. According to Ismail, Ranger Dollard was following her
as she was driving less than 25 m.p.h., and then pulled her over. Ismail asked the ranger
to see her radar device, to which Ranger Dollard responded, “no, I don’t need radar.”
Ismail testified that she was looking at her speedometer the entire time, and so the speeds
the ranger clocked her at and cited her for were “impossible,” because at the most, she
was going approximately 32 m.p.h. She told the court that she drives that way numerous
times a day and never exceeds 32 m.p.h.
{¶7} On this evidence, the trial court found Ismail guilty of speeding. The court
imposed a $100 fine, with $50 suspended, and court costs. The sentence was stayed
pending this appeal, in which Ismail raises the following assignment of error for our
review: “The trial court erred in finding that the evidence presented at trial was
sufficient to find the defendant-appellant guilty of speeding.”
{¶8} Ismail raises two issues in this appeal: (1) the reliability of the radar device
and (2) the admissibility of Ranger Dollard’s visual-estimation testimony, which we
consider in turn.
The Reliability of the Radar Device {¶9} Ismail contends that the radar device measurement was insufficient without
expert testimony establishing its reliability.1 We disagree.
{¶10} In order to convict Ismail of speeding, Metroparks was required to show that
(1) the radar device’s speed measurements were reliable, (2) the specific radar unit was in
good working condition, and (3) Ranger Dollard was qualified to use the radar device.
E. Cleveland v. Ferell, 168 Ohio St. 298, 301, 154 N.E.2d 630 (1958).
{¶11} In Ferell, the Ohio Supreme Court considered whether evidence of speed
obtained from a radar speed meter was insufficient evidence to sustain a speeding
conviction when there was no expert testimony at trial regarding the meter’s construction
and method of operation. The court held no, stating that “readings of a radar speed
meter may be accepted in evidence, just as we accept photographs, x-rays,
electroencephalographs, speedometer readings, and the like, without the necessity of
offering expert testimony as to the scientific principles underlying them.” Id. at 303.
Thus, “[t]here remains, then, only a determination as to the sufficiency of the evidence
concerning the accuracy of the particular speed meter involved * * * and the
qualifications of the person using it.” Id.
{¶12} Some appellate courts, however, have held that Ferell’s holding is limited to
1 In a sufficiency of the evidence inquiry, appellate courts do not assess whether the prosecution’s evidence is to be believed but whether, if believed, the evidence supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence). Further, the “testimony of one witness, if believed by the jury, is enough to support a conviction.” State v. Strong, 10th Dist. Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42. stationary radar devices, as opposed to moving radar devices. For example, in State v.
Wilcox, 40 Ohio App.2d 380, 319 N.E.2d 615 (10th Dist.1974), the Tenth Appellate
District, after acknowledging Ferell, held as follows:
However, we feel that a defendant may not be convicted of speeding solely upon evidence obtained from a radar speed meter device mounted in a moving patrol car in the absence of expert testimony with respect to the construction of the device and its method of operation with respect to its ability to differentiate the speed of a vehicle approaching the moving patrol car from the opposite direction from the combined speed at which they are moving toward each other.
(Emphasis added.) Wilcox at 384.
{¶13} Citing Wilcox, Ismail contends that her conviction was not supported by
sufficient evidence because Metroparks did not present expert testimony to establish the
radar’s reliability. According to Ismail, Ranger Dollard clocked her speed while the
ranger was moving in her vehicle. Ismail further relies on State v. Everett, 3d Dist.
Wyandot No. 16-09-10, 2009-Ohio-6714, in support of her contention. In Everett, a
state trooper used the same radar model — the Python Series II — that Ranger Dollard
used here. Both law enforcement officials in Wilcox and Everett were in moving
vehicles at the time they operated their radar devices.
{¶14} Here, however, Ranger Dollard testified that she was stationary, not moving,
when she clocked Ismail’s speed. Although Ismail testified otherwise, Metroparks
presented evidence that, if believed, was sufficient to support the conviction as to the
radar’s reliability needed for a speeding conviction. Thus, Wilcox and Everett are both
distinguishable from this case. {¶15} The “good working condition” requirement was satisfied by Ranger
Dollard’s testimony that she checked the calibration on the device at the beginning of her
shift and after each ticket she wrote to ensure that it was functioning properly.
Metroparks also presented sufficient evidence as to the third element of speeding — that
Ranger Dollard was qualified to use the device. Specifically, the ranger testified that she
was certified to use that particular radar, and her certification was entered into evidence.
{¶16} On this record, Metroparks presented sufficient evidence to sustain Ismail’s
speeding conviction.
Visual-Estimation Testimony
{¶17} Ismail also contends that, because Metroparks did not present sufficient
evidence relative to the radar, and a speeding conviction based on visual estimation is
insufficient, her conviction should be overturned. She is correct that the law in Ohio
currently provides that visual estimation alone is insufficient evidence to sustain a
speeding conviction. See R.C. 4511.091(C)(1).2 But as discussed, this case did not
turn solely on visual estimation. Rather, Metroparks presented sufficient evidence that
Ismail was speeding through testimony relating to the radar that clocked her speed.
{¶18} In light of the above, there is no merit to Ismail’s assignment of error and it
is overruled.
2 “No person shall be arrested, charged, or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a substantially similar municipal ordinance based on a peace officer’s unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar.” R.C. 4511.091(C)(1). {¶19} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Parma
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MELODY J. STEWART, P.J., CONCURS; SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION
SEAN C. GALLAGHER, J., CONCURRING:
{¶20} I concur fully with the majority decision, but write separately to address my
concerns raised nearly ten years ago in Cleveland v. Tisdale, 8th Dist. Cuyahoga No.
89877, 2008-Ohio-2807, that our legal analysis of the reliability of speed-measuring
devices has fallen far short of the current speed-measuring technology. The lead opinion
properly lays out the historical review of reliability and the now decades-old
distinguishing factors between stationary and moving radar systems. At this point, all radar measuring systems have stood the test of time, and the general reliability should be
common knowledge to all. Requiring expert testimony for moving systems is absurd.
The same can be said for laser devices, which have an even greater level of accuracy and
reliability.
{¶21} To think the Supreme Court last weighed in on the reliability question in E.
Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958), nearly 60 years ago is
remarkable.
{¶22} In Tisdale, we noted that
[t]here is a compelling view that the same trust and reliability the Ohio Supreme Court placed in stationary radar devices in Ferell should now, 50 years later, be extended to other speed measuring devices that have arguably withstood the test of time. Authority from other states supports the view that the principles of Ferell should be extended to other radar and laser speed measuring devices that have stood the test of time in terms of their scientific reliability.
Id. at ¶ 15. KEYWORDS #104412
Speed; radar reliability; admissibility of testimony. Appellant’s conviction for speeding was proper. The park ranger established that she was qualified to operate the radar device; that the device had been properly calibrated before operating it; that the device was in good working condition; and its speed measurements were reliable. Expert testimony to the reliability of the radar device was not required.