In re T.K.

2020 Ohio 3084

• Court: Ohio Court of Appeals
• Decided: May 26, 2020
• Docket: 5-19-25
• Status: Published

Opinion

[Cite as In re T.K., 2020-Ohio-3084.]

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

IN RE: CASE NO. 5-19-25 T.K.,

ALLEGED JUVENILE TRAFFIC OPINION OFFENDER.

Appeal from Hancock County Common Pleas Court Juvenile Division Trial Court No. 20191079

Judgment Affirmed

Date of Decision: May 26, 2020

APPEARANCES:

Timothy J. Hoover for Appellant

Heather M. Pendleton for Appellee Case No. 5-19-25

PRESTON, J.

{¶1} Juvenile-appellant, T.K. appeals the July 11, 2019 judgment of

adjudication and disposition of the Hancock County Court of Common Pleas,

Juvenile Division. For the reasons that follow, we affirm.

{¶2} On March 28, 2019, Trooper Zachary Gossard (“Trooper Gossard”) of

the Ohio State Highway Patrol issued a citation to T.K. for operating a motor vehicle

at 75 miles per hour in a 35 mile-per-hour zone in violation of R.C. 4511.21(C).

(Doc. Nos. 1, 2). On April 8, 2019, T.K. entered a written denial to the allegation

in the citation. (Doc. No. 3). The matter came on for trial on July 9, 2019. (Doc.

No. 11). At the conclusion of the trial, the trial court found that T.K. was a juvenile

traffic offender as defined by R.C. 2152.02(N) due to her violation of R.C. 4511.21.

(Id.). The trial court proceeded directly to disposition and suspended T.K.’s driver’s

license for a period of two years. (Id.). The trial court also imposed a fine and

ordered that T.K. attend a driving training course. (Id.). On July 11, 2019, the trial

court filed its judgment entry of adjudication and disposition. (Id.).

{¶3} On July 25, 2019, T.K. filed her notice of appeal. (Doc. No. 12). She

raises one assignment of error.

Assignment of Error

The trial court’s verdict was against the manifest weight of the evidence.

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{¶4} In her assignment of error, T.K. argues that the trial court’s verdict is

against the manifest weight of the evidence. Specifically, T.K. argues that Trooper

Gossard was an incompetent witness because he failed to testify that he was driving

a marked patrol vehicle and wearing a law enforcement uniform at the time of the

traffic stop. (Appellant’s Brief at 7-8). T.K. also argues that the State failed to

prove that Trooper Gossard’s radar instrument was reliable and that he was trained

to use it. (Id. at 8-9).

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

the evidence, a reviewing court must examine 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.’” State v. Thompkins, 78 Ohio St.3d 380,

387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A

reviewing court must, however, allow the trier of fact appropriate discretion on

matters relating to the weight of the evidence and the credibility of the witnesses.

State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-

weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily

against the conviction,’ should an appellate court overturn the trial court’s

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judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,

quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

{¶6} The trial court found that T.K. violated R.C. 4511.21(C), which

provides, in pertinent part, as follows:

It is prima-facie unlawful for any person to exceed any of the speed

limitations in divisions (B)(1)(a), (2), (3), (4), (6), (7), (8), and (9) of

this section, or any declared or established pursuant to this section by

the director or local authorities and it is unlawful for any person to

exceed any of the speed limitations in division (D) of this section.

R.C. 4511.21(B) provides that “[i]t is prima-facie lawful, in the absence of a lower

limit declared or established * * *, for the operator of a motor vehicle * * * to operate

the same at a speed not exceeding” “[t]hirty-five miles per hour on all state routes

or through highways within municipal corporations outside business districts * * *.”

R.C. 4511.21(B)(3).

{¶7} In this case, the evidence overwhelmingly demonstrates that T.K.

operated her motor vehicle in violation of R.C. 4511.21(C). The only witness to

testify at trial was Trooper Gossard. (July 9, 2019 Tr. at 6). Trooper Gossard

testified that on March 28, 2019, he was on duty patrolling the public roads in

Findlay, Ohio and monitoring traffic on Broad Avenue near County Road 95. (Id.

at 6-7). The area is a residential area near a church, and the speed limit in the area

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is 35 miles per hour. (Id. at 9-10). Trooper Gossard stated that while he was

watching traffic, he observed a Jeep traveling toward him at a high rate of speed.

(Id. at 7). Trooper Gossard visually estimated that the Jeep was traveling at a speed

of 75 miles per hour. (Id.). Trooper Gossard testified that he then activated his front

radar instrument, which revealed a speed reading of 74 to 75 miles per hour for

approximately four seconds. (Id. at 7, 10).

{¶8} Trooper Gossard stated that when the Jeep saw him, he observed the

vehicle “dip forward” as the driver hit the brakes. (Id. at 7). Trooper Gossard then

pulled in behind the Jeep and initiated a traffic stop of the vehicle. (Id.). After the

Jeep stopped, Trooper Gossard approached the vehicle and spoke to the driver, who

Trooper Gossard identified as T.K. (Id. at 7-8). When Trooper Gossard asked T.K.

if she knew the reason he stopped her vehicle, T.K. admitted to him that she knew

that she was speeding. (Id. at 8-9). Trooper Gossard testified that T.K. stated that

she knew that the speed limit in the area was 35 miles per hour. (Id. at 9). Trooper

Gossard then issued a citation to T.K. for exceeding the speed limit. (Id.). Trooper

Gossard identified State’s Exhibit 1 as the agency copy of the citation he wrote for

T.K. on March 28, 2019. (Id.). (See State’s Ex. 1).

{¶9} Trooper Gossard testified that as part of his training in law enforcement,

he is trained on the proper use of a radar instrument. (July 9, 2019 Tr. at 6). Trooper

Gossard’s training also included training on checking the calibration of a radar

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device. (Id.). He further testified that the radar instrument he was using was Radar

9k. (Id. at 10). Trooper Gossard stated that on the day of the incident the radar

instrument was confidence checked at 2:00 p.m. and 6:30 p.m. and that he issued

the citation at 6:10 p.m. (Id. at 10-11).

{¶10} On cross-examination, Trooper Gossard clarified that he checked

T.K.’s rate of speed visually and then checked her speed with his radar instrument.

(Id. at 12). He further testified that, as part of his training, he must be able to

accurately identify an individual’s speed within three miles per hour to be certified

for electronic speed measurement devices. (Id.). Trooper Gossard testified that

when he estimated T.K.’s speed, he knew she was going fast because he has “done

it so much.” (Id. at 12-13). Trooper Gossard testified that, through his training and

experience, he knew “about how fast a 35-mile-an-hour vehicle should be looking.”

(Id. at 13). Trooper Gossard testified that he observed T.K.’s relative speed to the

other vehicles and other objects around her. (Id.). He stated that he observed T.K.’s

vehicle pull away “very fast” from the vehicle behind her. (Id.). Trooper Gossard

testified that he also checked the speed of T.K.’s vehicle using his radar instrument.

(Id. at 15). Trooper Gossard briefly described how the radar instrument works, and

stated that he is “not an expert on” the internal calculations that the radar unit

performs. (Id.).

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{¶11} Trooper Gossard testified that Broad Avenue, the street that he was

patrolling, runs alongside Interstate 75. (Id. at 15-16). Trooper Gossard stated that

the speed limit on Interstate 75, at the time, was 55 miles per hour due to

construction. (Id. at 16). Trooper Gossard stated that he did not direct his radar

toward Interstate 75 and reasoned that he could not have inadvertently checked the

speed on Interstate 75 because a sound barrier wall was present that would have

blocked his radar. (Id. at 17).

{¶12} Trooper Gossard testified that electronic technicians calibrate the

radar units. (Id. at 19). Trooper Gossard further explained that he is “not an expert”

on radar calibrations. (Id. at 20). However, Trooper Gossard testified that patrol

officers, including himself, perform confidence checks on the radar units using

tuning forks. (Id. at 19-20).

{¶13} On redirect examination, Trooper Gossard testified that he completed

his “Electronic Speed Measurement Device Certification” with the State of Ohio

from August 11-15, 2014. (Id. at 22). Trooper Gossard identified State’s Exhibit 2

as a copy of the certificate he received upon completion of the training. (Id. at 22-

23). (See State’s Ex. 2). Trooper Gossard also identified State’s Exhibit 3 as the

“Radar Tuning Fork Frequency Measuring Report” for his radar unit. (July 9, 2019

Tr. at 23). (See State’s Ex. 3). Trooper Gossard identified State’s Exhibit 4 as the

Radar Speed Measuring Device Certification for the radar unit in his patrol vehicle.

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(July 9, 2019 Tr. at 23). (See State’s Ex. 4). Trooper Gossard testified that nothing

in the report indicates a radar unit malfunction, and he noted that all of the results

indicate that the radar “pass[ed].” (July 9, 2019 Tr. at 23). (See State’s Ex. 4).

{¶14} Thereafter, the State moved to admit its exhibits and rested. (July 9,

2019 Tr. at 24-25). The State’s exhibits were admitted without objection. (Id. at

24). T.K. rested without presenting evidence. (Id. at 25).

{¶15} In support of her argument that the weight of the evidence does not

support that she violated R.C. 4511.21(C), T.K. argues that Trooper Gossard was

an incompetent witness because the record “is devoid of any indication” that

Trooper Gossard stopped T.K. while he was in a marked patrol vehicle or wearing

any particular uniform, such as the “uniform of the day.” (Appellant’s Brief at 8).

{¶16} R.C. 4549.14 provides the necessary requirements for a law

enforcement officer to testify:

An officer arresting, or participating or assisting in the arrest of, a

person charged with violating the motor vehicle or traffic laws of this

state, provided the offense is punishable as a misdemeanor, such

officer being on duty exclusively or for the main purpose of enforcing

such laws, is incompetent to testify as a witness in any prosecution

against such arrested person if such officer at the time of the arrest

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was using a motor vehicle not marked in accordance with section

4549.13 of the Revised Code.

{¶17} Likewise, Evid.R. 601(C) provides that “[a]n officer, while on duty

for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in

the arrest of a person charged with a traffic violation punishable as a misdemeanor

where the officer at the time of the arrest was not using a properly marked motor

vehicle as defined by statute or was not wearing a legally distinctive uniform as

defined by statute” is not competent to be a witness.

{¶18} R.C. 4549.13 provides:

Any motor vehicle used by a member of the state highway patrol or

by any peace officer, while said officer is on duty for the exclusive or

main purpose of enforcing the motor vehicle or traffic laws of this

state, provided the offense is punishable as a misdemeanor, shall be

marked in some distinctive manner or color and shall be equipped

with, but need not necessarily have in operation at all times, at least

one flashing, oscillating, or rotating colored light mounted outside on

top of the vehicle.

{¶19} “[T]he general rule is that * * * an adult witness is presumed

competent to testify and therefore the burden of demonstrating the incompetency of

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a traffic officer is on the accused.” State v. Rau, 65 Ohio App.3d 478, 480 (3d

Dist.1989).

{¶20} Here, the State did not provide any explicit testimony that Trooper

Gossard was in a marked patrol vehicle or wearing the uniform of the day.

However, T.K. did not provide any evidence suggesting that Trooper Gossard or

any other law enforcement officer arrested her during the encounter or any other

evidence of incompetency sufficient to raise the issue of Trooper Gossard’s

competency at trial. Thus, T.K. did not meet her burden of demonstrating that

Trooper Gossard was not competent to testify. See Rau at 481.

{¶21} T.K. next argues the weight of the evidence does not support that she

violated R.C. 4511.21(C) because the State failed to prove that Trooper Gossard’s

radar unit was reliable and that he was qualified to use it.

{¶22} “To prove a case of speeding based on the reading of a radar gun, the

[State] is required to show the accuracy and reliability of the device; that the unit

was in good condition for accurate work; and the operator’s qualifications by

training and experience to use the device.” State v. Helke, 3d Dist. Logan No. 8-07-

04, 2007-Ohio-5483, ¶ 7, citing State v. Kirkland, 3d Dist. Logan No. 8-97-22, 1998

WL 126849 (Mar. 2, 1998). See State v. Zhovner, 3d Dist. Auglaize No. 2-12-13,

2013-Ohio-749, ¶ 15 (“To convict an individual of speeding based on a laser device,

‘there must be evidence introduced at trial that the device is scientifically

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reliable.’”), quoting State v. Starks, 196 Ohio App.3d 589, 2011-Ohio-2344, ¶ 21

(12th Dist.), citing State v. Palmer, 1st Dist. Hamilton No. C-050750, 2006-Ohio-

5456, ¶ 10. “The scientific reliability of a particular speed-measuring device can be

established via expert testimony or judicial notice.” Zhovner at ¶ 16, citing State v.

Everett, 3d Dist. Wyandot No. 16-09-10, 2009-Ohio-6714, ¶ 6.

{¶23} This court has also held that visual observations of speed standing

alone are not sufficient to support a speeding conviction. Helke at ¶ 10, citing State

v. Westerbeck, 3d Dist. Shelby No. 17-86-18, 1987 WL 13063, *3 (June 19, 1987).

However, this court has acknowledged that courts have affirmed a speeding

conviction based on a law enforcement officer’s visual determination of speed if

there is “additional evidence verifying the officer’s scientific training and

experience in being able to accurately estimate a vehicle’s speed without relying

upon radar.” Everett at ¶ 17.

{¶24} In the present case, Trooper Gossard testified that he confidence

checked his radar unit at 2:00 p.m. and 6:30 p.m. and that the citation was issued at

6:10 p.m. Additionally, Trooper Gossard provided the radar certification for his

unit as well as the radar tuning fork frequency measuring report. However, the trial

court did not take judicial notice of the specific reliability of Trooper Gossard’s

radar unit. Additionally, Trooper Gossard, the State’s only witness, admitted on the

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stand that he was “not an expert” on radar units and calculations. See Zhovner at ¶

16.

{¶25} However, Trooper Gossard testified that he first visually estimated the

speed of T.K.’s vehicle and then confirmed the vehicle’s speed with his radar unit.

Trooper Gossard testified in some detail regarding his training with electronic speed

measurement devices. Specifically, he testified that as part of his training, he had

to be able to identify a vehicle’s speed within three miles per hour. The State also

provided the certificate demonstrating that Trooper Gossard was certified for

electronic speed measurement devices. Thus, the State presented additional

evidence verifying Trooper Gossard’s specific training and experience in being able

to accurately determine a vehicle’s speed without relying on a radar instrument.

State v. Brown, 9th Dist. Medina No. 02CA0034-M, 2002-Ohio-6463, ¶ 20, 22

(holding that appellant’s speeding conviction is not against the manifest weight of

the evidence where the conviction was “not based solely on the evidence derived

from the radar unit” and the law enforcement officer testified that he visually

estimated appellant’s speed and had completed training that required him to attain

a degree of accuracy of “plus or minus five miles an hour per [twenty] vehicles” for

visual estimations of speed). See also, Barberton v. Jenney, 9th Dist. Summit No.

24423, 2009-Ohio-1985, ¶ 13-16. Trooper Gossard’s observation of T.K. traveling

in excess of 40 miles per hour over the speed limit in a residential neighborhood,

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coupled with testimony that T.K. admitted that she knew that she was exceeding the

speed limit further weigh in support of T.K.’s adjudication for operating a motor

vehicle above the posted speed limit. Thus, after weighing the evidence and

evaluating the credibility of the witness, with appropriate deference to the trier of

fact’s credibility determination, we cannot conclude that the trier of fact clearly lost

its way and created a manifest injustice by determining that T.K. violated R.C.

4511.21(C) and concluding that she is a juvenile traffic offender.

{¶26} Accordingly, T.K.’s assignment of error is overruled.

{¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

SHAW, P.J. and ZIMMERMAN, J., concur.

/jlr

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