[Cite as State v. Freed, 2020-Ohio-655.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JONATHAN D. FREED : Case No. 2019 CA 00018 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municpal Court, Case No. TRD1900794
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 21, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH M. SABO JONATHAN D. FREED 136 West Main Street 429 Fallriver Drive P.O. Box 1008 Reynoldsburg, OH 43068 Lancaster, OH 43130 Wise, Earle, J.
{¶ 1} Defendant-Appellant Jonathan D. Freed appeals the May 27, 2019
judgment of conviction and sentence of the Fairfield County Municipal Court, Lancaster,
Ohio. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 28, 2019, Trooper Cummins of the Ohio State Highway Patrol
was parked in a driveway on Columbus-Lancaster Road, also known as Business Route
33A, just north of Coonpath Road. Cummins was monitoring traffic. His attention was
drawn to a Toyota minivan, driven by appellant. Cummins is trained in the visual
estimation of speed and visually estimated appellant was traveling faster than the posted
speed limit of 55 miles per hour, estimating approximately 67 miles per hour. Cummins
then used a laser speed measuring tool to verify appellants speed. Per the laser tool,
appellant was traveling at 68 miles per hour. Cummins initiated a traffic stop and cited
appellant for speeding in violation of R.C. 4511.21(D)(1). Cummins provided appellant
with an arraignment date of February 12, 2018.
{¶ 3} On January 29, 2019, appellant, proceeding pro se, filed a motion to dismiss
arguing the complaint was defective, failing to plead all elements of a violation of R.C.
4511.21(D)(1), and further was not "made upon oath before any person authorized by law
to administer oaths." Appellant argued therefore the complaint was invalid and the trial
court was without jurisdiction over the matter.
{¶ 4} On February 6, 2019, appellant filed an objection pursuant to R.C. 2937.21,
objecting to the trial court's continuance and the delay in ruling on his motion to dismiss.
The same day, he filed a demand for discovery. {¶ 5} Appellant appeared at his arraignment on February 12, 2019 as scheduled
and objected to the proceeding. When appellant asked the magistrate to rule on his
motions, the magistrate explained appellant was present for arraignment, not trial and
entered a not guilty plea on appellant's behalf. A motions hearing was set for March 5,
2019.
{¶ 6} Following his arraignment, appellant filed a "Def's Motion for R.C. 2937.21
Discharge Forthwith," and "Def's Objections and Req For Findings of Fact and
Conclusions of Law."
{¶ 7} At the March 5 motions hearing, the trial court found the magistrate was not
required to rule on appellant's motions, that R.C. 2937.21 was inapplicable to the
proceedings, and the court was not required to address appellant's filings within 10 days.
The trial court further found the balance of the matters raised in appellant's motions
pertained to matters of fact to be decided at trial.
{¶ 8} A trial to the court was held on March 27, 2019. Appellant proceeded pro
se.
{¶ 9} The state presented one witness, Trooper Cummins. Cummins testified that
when he confirmed appellant was traveling over the posted speed limit of 55 miles per
hour, he was using an Ultralyte LTI 20/20 laser, the laser tool of choice for the Ohio State
Highway Patrol. Cummins stated he is trained and certified in the use of the laser and
explained there is no difference between models of laser detectors as far as the
underlying technology is concerned. Although some have advanced features for use in
inclement weather, there is no difference model-to-model as to how speed is detected.
{¶ 10} Cummins also confirmed that he performs a calibration check of his laser
both before and after his shift, each and every shift. He completed the appropriate checks on the day in question, and the laser detector was functioning properly. The state asked
the trial court to take judicial notice of the reliability of the Ultralyte LTI 20/20 per State v.
Michael King, Fairfield County Municipal Court Number 92TRC10101. Appellant objected
stating there was no evidence that Cummins was using the same model and series as
that involved in the King case. The state responded that Cummins testified the underlying
technology has not changed since 1992. The trial court overruled appellant's objection
pursuant to Evid.R. 201(b)(1), finding the accuracy of the Ultralyte LTI 20/20 is a fact
generally known within the territorial jurisdiction of the trial court of fact.
{¶ 11} On cross-examination, Cummins further explained he knew the laser was
accurate that day due to its self-calibration, the fact that it displayed no error messages,
and the additional fact that he conducted his field checks as required both before and
after his shift.
{¶ 12} After the state rested, appellant made a Crim.R 29 motion for acquittal
which the trial court denied. Appellant then made a brief statement on his own behalf and
rested. The trial court found appellant guilty. The trial court fined appellant $100 and
suspended $50.
{¶ 13} Appellant filed an appeal, and the matter is now before this court for
consideration. He raises six assignments of error as follow:
I
{¶ 14} "THE MUNICIPAL COURT JUDGE ERRED TO THE APPELLANT'S
DETRIMENT AND DEMONSTRATED HIS MISUNDERSTANDING OF LAW BY SAYING
HE WOULD DETERMINE "WHETHER OR NOT THE POSTED SPEED LIMIT WAS 55
MILES PER HOUR, WHETHER OR NOT YOU WERE INDEED EXCEEDING THE
POSTED SPEED LIMIT, AND IF YOU WERE, BY HOW MUCH", AND, BY ALL INDICATIONS, DOING EXACTLY THAT AND NO MORE, EVEN THOUGH OHIO'S
LEGISLATIVE SERVICE COMMISSION, LEADING ATTORNEYS, AND COURTS
FROM OUR OHIO SUPREME COURT ON DOWN HAVE AGREED ON
SUBSTANTIALLY SIMILAR VARIATIONS OF THIS: A SPEED LIMIT IS DETERMINED
"NOT BY SPEED LIMIT SIGNAGE", AND A PROSECUTOR'S OFFICE "CANNOT …
CLAIM THAT IT CAN ENFORCE WHATEVER SPEED LIMIT IS POSTED IN THE AREA,
AS OHIO LAW DICTATES THE REQUIRED SPEED LIMIT ON HIGHWAYS"; THIS
FIFTH DISTRICT COURT'S ULTIMATE DECISION IN STATE V. CASS, 2018-OHIO-
4405, APPEARS TO BE CORRECT GIVEN CASS'S SPEED (83-84 MPH), BUT THERE
IS A CONFLICT BETWEEN OTHER COURTS AND THIS COURT'S APPARENT
REASONING, WHICH WAS, APPARENTLY, THE SAME AS THE JUDGE'S: THAT A
POSTED SPEED LIMIT IS SUFFICIENT EVIDENCE BY ITSELF OF THE EXISTENCE
OF CONTROLLING REGULATORY LAW."
II
{¶ 15} "IF, DESPITE ALL INDICATIONS TO THE CONTRARY, THE JUDGE
BASED HIS FINDING OF A 55 MPH SPEED LIMIT ON REGULATORY LAW, THEN HE
ERRED TO THE APPELLANT'S DETRIMENT BECAUSE THE ONLY PERSON WITH
AUTHORITY TO MAKE SUCH LAW WAS THE DIRECTOR THE DEPARTMENT OF
TRANSPORTATION PURSUANT TO R.C. 4511.21(I), AND THE DIRECTOR HAD NOT
MADE SUCH LAW, AS CAN BE SEEN BY THE ABSENCE OF A SPEED LIMIT FOR
THE LOCATION IN THE DIRECTOR'S TRAFFIC RELATIONS DATABASE, AND A
LOCAL AUTHORITY COULD NOT HAVE SET ANY 55 MPH SPEED LIMIT BECAUSE
THE HIGHEST LIMIT COULD HAVE SET IS 50 MPH PURSUANT TO R.C.4511.21(J)." III
{¶ 16} "IF, DESPITE ALL INDICATION TO THE CONTRARY, THE JUDGE DID
NOT BASE HIS FINDING OF A 55 MPH SPEED LIMIT SOLELY ON A POSTED SPEED
LIMIT SIGN AND INSTEAD BASED IT ON THE NATURE AND CHARACTERISTICS OF
THE ROADWAY OR LOCATION, THEN HE ERRED TO THE APPELLANT'S
DETRIMENT BECAUSE HIS FINDING WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE AFTER THE STATE'S OWN WITNESS HELPED CONFIRM THE
UNDISPUTED PRESENCE OF ALL CHARACTERISTICS OF DIVISION R.C.
4511.21(B)(15) 70 MPH RURAL FREEWAY, 2 MPH FASTER THAN THE ALLEGED
SPEED OF THE APPELLANT."
IV
{¶ 17} "THE JUDGE ERRED TO THE APPELLANT'S DETRIMENT BY TAKING
JUDICIAL NOTICE OF THE SCIENTIFIC RELIABILITY OF THE TROOPER'S LTI
ULTRALYTE 20/20 LASER DEVICE FOR MEASURING SPEED BECAUSE THE JUDGE
WAS NOT "SUPPLIED WITH THE NECESSARY INFORMATION"; THE RELIABILITY
WAS NOT "CAPABLE OF ACCURATE AND READY DETERMINATION BY RESORT
TO [THE PURPORTED] SOURCE [] WHOSE ACCURACY CANNOT REASONABLY BE
QUESTIONED" BECAUSE THE MUNICIPAL COURT'S FILE FOR THE CASE THE
STATE CITED AS SOURCE CONTAINED NOTHING RELEVANT BEYOND THE MERE
WORD "LASER", AND, EVEN IF THE STATE'S PURPORTED COPY OF THE CASE
DECISION IS ACCEPTED AS AUTHENTIC DESPITE IT NOT BEING IN THAT FILE THE
DECISION REQUIRES FOUR "SANITY CHECKS" TO BE SUCCESSFULLY COMPLETED BEFORE THERE IS BASIS FOR SUCH JUDICIAL NOTICE, AND THE
TROOPER DID NOT COMPLETE ANY MORE THAN TWO."
V
{¶ 18} "THE MAGISTRATE AND THEN THE JUDGE ERRED TO THE HARMFUL
DETRIMENT OF THE APPELLANT BY FAILING TO GIVE THE APPELLANT A
MEANINGFUL OPPORTUNITY TO BE HEARD AND BY DENYING THE MOTION TO
DISMISS AFTER THE STATE FAILED TO CHARGE AN OFFENSE BECAUSE IT
FAILED TO ALLEGE ALL ESSENTIAL ELEMENTS OF "BASIC FACTS" COMPRISING
AN OFFENSE AND THEREBY FAILED TO PROVIDE AND OHIO ART. I §10
CONSTITUTIONALLY SUFFICIENT "CAUSE", OR REASON, FOR THE ACCUSATION,
BECAUSE THE STATE'S TICKET COMPLAINT LANGUAGE ABOUT WHAT WAS
PRESENT ("55 MPH ZONE") AND NOT PRESENT WAS NOT EQUIVALENT TO THE
STATUTE'S LANGUAGE ABOUT WHAT MUST BE PRESENT AND MUST BE ABSENT,
AND WE KNOW THIS AND IT IS INDISPUTABLE BECAUSE OF ERRORS 1, 2, AND 3,
AND, MOREOVER, BECAUSE "THE TEST FOR DETERMINING THE SUFFICIENCY
OF A CHARGE IS WHETHER THE DEFENDANT COULD BE FOUND GUILTY OF
EVERYTHING IN THE CHARGE AND STILL NOT HAVE VIOLATED THE LAW", STATE
V. BURGUN (Ct. OF APP. CUYAHOGA CO., 1976), 49 OHIO APP. 2D 112 AT 118, AN
THAT IS EXACTLY WHAT HAPPENED; A PERSON MAKING A REASONABLE
ATTEMPT TO UNDERSTAND A COMPLAINT MAY REASONABLY CLAIM HE DOES
NOT UNDERSTAND THE "CAUSE" OF THE ACCUSATION WHEN THERE IS NO
LEGALLY SUFFICIENT CAUSE OR REASON TO CHARGE AN OFFENSE; AND THE
JUDGE CONTINUED AND EXACERBATED THIS ERROR #5 BY PROCEEDING
WITHOUT SUBJECT MATTER JURISDICTION TO DIRECT THE APPELLANT TO APPEAR ON MARCH 27, 2019, WHERE THE JUDGE PROCEEDED TO CONDUCT A
VOID TRIAL, AND THROUGH THAT AND AMONG OTHER COSTS, THE JUDGE COST
THE APPELLANT AND HIS LATE FATHER INVALUABLE HOURS TOGETHER IN THE
FINAL TWO MONTHS OF HIS FATHER’S LIFE."
VI
{¶ 19} "THE MUNICIPAL COURT ERRED TO THE APPELLANT'S DETRIMENT
BY DELAYING ABOUT 14 DAYS IN BOTH ITS PROCEEDINGS AND ITS RULING ON
THE APPELLANT'S MOTION TO DISMISS THE COMPLAINT AND BY BOTH
REFUSING TO GRANT THE APPELLANT'S CORRESPONDING R.C.2937.21 MOTION
AND BY BELIEVING THAT TRAF.R. 11 (E) HAS "SUPERSEDED" THAT SECTION
WHEN, INSTEAD, THE SECTION WAS NOT MADE INEFFECTUAL BY ANY TRAFFIC
RULE AND THE SUPREME COURT'S CORRESPONDING AUTHORITY UNDER OUR
OHIO CONSTITUTION'S ARTICLE IV, SECTION 5(B), BECAUSE THE SUPREME
COURT HAS NOT FILED THE TRAFFIC RULES WITH THE GENERAL ASSEMBLY
PURSUANT TO THAT SECTION 5(B) BUT HAS INSTEAD AS IT HAS EVEN
EXPRESSED IN TRAF.R. 1(B), ONLY "PROMULGATED [THE TRAFFIC RULES]
PURSUANT TO THE AUTHORITY GRANTED THE SUPREME COURT BY R.C.2935.17
AND 2937.46", AND DIVISION (A) OF THAT LETTER SECTIONS, 2937.46
("[U}NIFORM RULES FOR PRACTICE AND PROCEDURE IN TRAFFIC CASES"),
DOES NOT PERMIT RULES TO "SUPERCEDE" STATUTORY LAW BY INSTEAD AND
EXPRESSLY ONLY PERMITS TRAFFIC RULES "NOT INCONSISTENT WITH THE
PROVISIONS OF CHAPTER 2937 OF THE REVISED CODE", AND THE JUDGE
EXACERBATED THIS ERROR BY PROCEEDING THROUGH SUBSEQUENT
PROCEEDINGS." INITIAL MATTERS
{¶ 20} Appellant has filed his appeal pro se. Pro se appellants, however, like
members of the bar, are required to comply with the rules of practice and procedure.
Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9.
Although we will ordinarily indulge a pro se litigant when there is some semblance of
compliance with the appellate rules, we may not consider that which is outside the record.
"A reviewing court cannot add matter to the record before it that was not part of the trial
court's proceedings, and then decide the appeal on the basis of the new matter. See,
State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978). In other words, new material
and factual assertions contained in any brief before this court may not be considered.
Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16. We
therefore decline to consider appellant's references to matters outside the record.
{¶ 21} Moreover, Local Rule 9 (B) states:
{¶ 22} "Length of Briefs. In addition to the requirements of App.R. 16, no brief by
any party in an appeal or original action, excluding appendices, table of contents, table
of cases, statement of assignments of errors, and statement of the issues shall
exceed thirty pages, unless, upon a motion requesting an increase of a specific number
of pages and the showing of good cause, this Court orders otherwise. No reply brief shall
exceed fifteen pages."
{¶ 23} Appellant has exceeded these limits without leave of the court. We therefore
will not consider pages 39 and 40 of appellant's brief, nor pages 16-27 of his reply brief. I, II, III
{¶ 24} We address appellant's first three assignments of error together, as they
are interrelated. Within these assignments of error, appellant argues that the
characteristics of Route 33(A) dictate a speed of 70 miles per hour rather than the posted
55 miles per hour limit, that the Department of Transportation (DOT) has not made the
speed limit on Business Route 33(A) 55 miles per hour, and any finding that the speed
limit on Business Route 33(A) is 55 miles per hour is against the manifest weight of the
evidence. We disagree.
{¶ 25} Appellant was convicted of speeding in violation of R.C. 4511.21(D)(1). That
section states:
(D) No person shall operate a motor vehicle, trackless trolley, or
streetcar upon a street or highway as follows:
(1) At a speed exceeding fifty-five miles per hour, except upon a two-
lane state route as provided in division (B)(10) of this section and
upon a highway, expressway, or freeway as provided in divisions
(B)(12), (13), (14), and (16) of this section;
***
{¶ 26} Sections B(10), B(12)-(14) and B(16) state:
(B) It is prima-facie lawful, in the absence of a lower limit declared or
established pursuant to this section by the director of transportation
or local authorities, for the operator of a motor vehicle, trackless
trolley, or streetcar to operate the same at a speed not exceeding the
following: ***
(10) Sixty miles per hour on two-lane state routes outside municipal
corporations as established by the director under division (H)(2) of
this section;
(12) Sixty miles per hour on rural expressways with traffic control
signals and on all portions of rural divided highways, except as
provided in divisions (B)(13) and (14) of this section;
(13) Sixty-five miles per hour on all rural expressways without traffic
control signals;
(14) Seventy miles per hour on all rural freeways;
(16) Sixty-five miles per hour on all portions of freeways or
expressways without traffic control signals in urbanized areas.
{¶ 27} Here, the posted speed limit was 55 miles per hour. Appellant argues
that proof that the speed limit was posted is not enough to carry the day, and rather,
that the state was required to establish the nature of the roadway or the origin of
the sign. We disagree.
{¶ 28} First, although appellant introduced an exhibit at trial in an attempt to
demonstrate Route 33A was not listed by the DOT as having a revised speed limit
which would differ from that dictated by the characteristics of the road, the trial
court did not admit that exhibit into evidence, finding it irrelevant. T. 105. Further,
appellant did not proffer the document for purposes of appeal, and it is therefore not contained in the record, and not before this court. As noted above, we may not
consider anything outside the record. "When the court's ruling is one excluding
evidence, a party must proffer the evidence at trial to preserve the issue for
appeal." State v. Smith, 9th Dist. Wayne No. 15AP0001, 2017-Ohio-359, ¶ 19.
Moreover, based on the testimony regarding the document, it appears it was
merely a printout from a website. There was no testimony to indicate it was a
certified document, and appellant provided no evidence to support a finding that
the information it contained it was current and reliable.
{¶ 29} Second, at some point, local or state authorities made the decision
that the speed along Business Route 33(A) would be 55 miles per hour, and
Trooper Cummins testified that this was indeed the posted limit in both directions.
Appellant relies on State v. Smith, 12th Dist. Madison No. CA2006-02-006, 2006-
Ohio-4829 for his argument that speed limit is not determined by signage, but
rather by statute. Smith, however, is factually distinguishable from the matter at
hand. Smith involved conflicting signage on the same stretch of State Route 38
approaching and leaving a small municipality. In one direction the posted speed
limit was 55 miles per hour. In the other, 35 miles per hour. The appellant in Smith
was cited for traveling 48 miles per hour in a 35 mile per hour zone heading north,
when at the same spot going south, the posted speed limit was 55 miles per hour.
{¶ 30} There is no such issue here. There is no dispute here that the posted
speed limit on Business Route 33(A) in both directions is 55 miles per hour.
{¶ 31} Although appellant disagrees with our decision in State v. Cass, 5th
Dist. No. 2018CA0003, 2018-Ohio-4405, we stand by our finding in that matter,
resolving a similar challenge by Cass: "In the absence of a posted speed limit, it would seem that the state would be required to establish the nature of the roadway
under R.C. 4511.21(B)(1)-(B)(17) in order to establish the prima facie lawful speed
upon the roadway where the speeding violation is alleged to have occurred;
however, where the speed limit is established by the director of transportation or
local authorities and is posted, such a showing is unnecessary." Cass at ¶ 34,
(Hoffman dissenting on the issue of the trial court taking judicial notice of "rural"
which is not at issue here.)
{¶ 32} We therefore reject appellant's arguments that the speed limit on
Business Route 33(A) is anything other than 55 miles per hour. The state's prima
facie case was established based upon the posted speed limit, and appellant did
not successfully rebut that presumption.
{¶ 33} Turning then to appellant's manifest weight argument, on review for
manifest weight, a reviewing court is to 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 [finder 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. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
in the exceptional case in which the evidence weighs heavily against the
conviction." Martin at 175.
{¶ 34} Given the forgoing discussion, we find the trial court as the finder of
fact did not lose its way in finding appellant guilty of speeding in violation of R.C.
4511.21(D)(1). {¶ 35} The first three assignments of error are overruled.
{¶ 36} In his fourth assignment of error, appellant sets forth three
arguments. First he argues the state committed a Brady violation by failing to
provide him with the King case, and faults the trial court for denying him a
continuance to examine the King case. He further argues the trial court erred in
taking judicial notice of the scientific reliability of the LTI Ultralyte 20/20 laser
through citation to State v. King, Fairfield County Municipal Case No. TRC
9210101 (April 13, 1993). We find no error.
ALLEGED DISCOVERY VIOLATION
{¶ 37} We first address appellant's argument that the state withheld
exculpatory evidence when it failed to provide him with a copy of the entry from the
King case in violation of the rule established in Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). Under Brady, the state violates a defendant's
right to due process if it withholds evidence that is favorable to the defense and
material to the defendant's guilt or punishment. See 373 U.S., at 87. The Supreme
Court has explained, “evidence is ‘material’ within the meaning of Brady when
there is a reasonable probability that, had the evidence been disclosed, the result
of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-470,
129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). "The question is not whether the
defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. A reasonable probability of a different
result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial.” (Internal quotations omitted)
Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), citing
United States v. Bagley 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed. 487 (1985).
{¶ 38} Appellant states the entry in King was exculpatory, but does not
explain how. We find the King entry, which found the technology and scientific
principals involved in the LTI 20/20 laser accurate to a reasonable degree of
scientific certainty was not exculpatory. It merely establishes the reliability of laser
technology. It is unlikely, therefore, that appellant would have received a different
verdict had he been provided with the entry. Appellee was therefore not required
to provide appellant with a copy of the entry per Brady, nor under the discovery
rules.
CONTINUANCE
{¶ 39} “The grant or denial of a continuance is a matter which is entrusted
to the broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65,
67, 423 N.E.2d 1078 (1981). Therefore, an appellate court must not reverse a trial
court's decision to deny a motion for continuance unless it finds that the trial court
abused its discretion. Id.; State v. Wheat, 5th Dist. Licking App. No. 2003-CA-
00057, 2004-Ohio-2088 The term “abuse of discretion” connotes more than an
error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶ 40} We find no abuse of discretion in the trial court's denial of appellant's
request for a continuance. King stood for a simple finding of scientific reliability of a laser speed measuring device, and appellant was in no way prejudiced by the
trial court's decision to deny his motion for a continuance to research the case.
JUDICIAL NOTICE
{¶ 41} Finally, we address the issue of judicial notice of the scientific
reliability of the LTI Ultralyte 20/20 laser, an issue we note is currently before the
Supreme Court of Ohio on a certified conflict. City of Brookpark v. Joseph G.
Rodojev, 2019-0056.
{¶ 42} The trial court in this matter took judicial notice of the scientific
reliability of the LTI Ultralyte 20/20 laser used by Cummins pursuant to Evid.R.
201(B); “A judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court
or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” The trial court further relied upon King
wherein the Fairfield County Municipal Court had heard testimony establishing the
scientific reliability of the LTI 20/20 laser speed-measuring device.
{¶ 43} There are generally three ways for a court to take judicial notice of
the accuracy of a scientific known within the territorial jurisdiction of the court: first,
"a reported municipal court decision" from that jurisdiction; second, a "reported or
unreported case from the appellate district" covering that jurisdiction; or finally, the
previous consideration of expert testimony regarding the device in question where
the trial court notes it on the record. State v. Cleavenger, 2018-Ohio-446, 93
N.E.3d 1027 (7th Dist.) ¶ 18 citing East Liverpool v. Lawson, 7th Dist. No. 13 CO
52 2014-Ohio-5858 at ¶ 10-11; State v. Tulugu, 7th Dist. No. 10-MA-77, 2011-
Ohio-5134 ¶ 66 (upholding the taking of judicial notice on laser device), quoting Columbus v. Bell, 10th Dist. No. 09AP-1012, 2010-Ohio-2908, ¶ 14, citing
Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613 (1st
Dist.). The trial court here employed the third method.
{¶ 44} The issue currently before the Supreme Court of Ohio is whether the
results of either a laser or radar speed measuring device should be admissible
without expert testimony or the taking of judicial notice of the scientific reliability of
the underlying technology. The conflict case of the Eighth District Court of Appeals
in City of Brookpark v. Rodojev, 2018-Ohio-5028, 117 N.E.3d 175 (8th Dist.) found
the reliability of laser and radar speed measuring devices that use the same
underlying scientific principles previously found to be scientifically sound do not
need to be revisited and reestablished in subsequent cases. The Eighth District
noted that the scientific principals underlying these devices has been in existence
for decades, and are broadly accepted as valid, no different than the broad
acceptance of the science underlying DNA testing. Id., ¶ 8-9. The court found that
rather than focusing on the broadly accepted underlying science, the focus instead
should be on the qualifications of the operator of the device, the maintenance of
the device, and how it was operated. Id. ¶ 24 citing City of East Cleveland v. Ferell,
168 Ohio St. 298, 154 N.E.2d 630 (1958).
{¶ 45} Like appellant in the matter at hand, Rodojev argued that each new
model of a speed measuring device must individually be deemed scientifically
reliable before a court can permit the witness to testify regarding the device's
results. Rodojev ¶ 14. In its analysis, however, following an extensive discussion
of the history of laser and radar speed-measuring technology and the evolution of
case law surrounding the same, the Eighth District found a review of individual products unnecessary as "[t]here is no serious contention that the scientific
principles underlying laser speed measuring devices are invalid or born from junk
science." Id. ¶ 24. We agree.
{¶ 46} Here Trooper Cummins testified he is trained in the use of laser
speed detection, passed all of his training, and is certified in the use of lasers to
detect speed. T. 19-20. Cummins further testified he uses his laser training each
workday, multiple times a day. He conducts a daily test of the laser instrument by
doing a calibration check which includes checking scope alignment and distance
accuracy. He performs these checks at the beginning and end of each and every
shift. T. 20-21. Cummins conducted these tests on the day in question, and used
the instrument as recommended by the manufacturer. T. 86. The tool Cummins
used that day is used by no one else; it is issued to him alone. He testified he knew
the laser was functioning properly that day due to its self-calibration, the fact that
it displayed no error messages, and the fact that he had conducted his field
calibrations as required. T. 55, 59. Further, Cummins visually estimated appellant's
speed before confirming the same several times with the laser tool. T. 14, 26.
{¶ 47} We therefore conclude that the trial court did not err in taking judicial
notice of the scientific reliability of the laser tool, and further, that there was no
need for the trial court to revisit the scientific reliability of laser technology before
doing so.
{¶ 48} The fourth assignment of error is overruled. V
{¶ 49} In his fifth assignment of error, appellant argues the ticket issued to
him by Trooper Cummins was insufficient to charge a crime as it did not contain
the essential elements constituting the offense charged. We disagree.
{¶ 50} "Traffic tickets are legally sufficient if they describe the nature of the
offense and refer to the statute or ordinance allegedly violated even though the
description fails to allege all of the essential elements of the offense charged.”
State v. Campbell, 150 Ohio App.3d 90, 2002-Ohio-6064, 779 N.E.2d 811, ¶ 7,
affirmed State v. Campbell, 100 Ohio St.3d 361, 2003-Ohio-6804, 800 N.E.2d 356.
{¶ 51} As discussed above, appellant was charged with a violation of R.C.
violation of R.C. 4511.21(D)(1) which prohibits operating a motor vehicle, upon a
street or highway at a speed exceeding fifty-five miles per hour, except upon a two-
lane state route as provided in division (B)(10) of the section and upon a highway,
expressway, or freeway as provided in divisions (B)(12), (13), (14), and (16) of the
section.
{¶ 52} Our review of appellant's traffic citation indicates he was charged
with speeding pursuant to R.C. 4511.21(D)(1) for traveling 68 miles per hour in a
55 mile per hour zone on Route 33A northbound at or near Coonpath Road, in the
township of Greenfield, in the county of Fairfield. We find that all of the essential
elements of the violation charged were included in the citation. The citation was
sufficient to place appellant on notice that he was being charged with a certain
traffic offense and what the elements of that offense were.
{¶ 53} The fifth assignment of error is overruled. VI
{¶ 54} In his final assignment of error, appellant argues the trial court erred
in failing to rule on his pre-arraignment motions within the 10-day window set forth
in R.C. 2937.21, and by finding that section inapplicable to the proceedings and
the Ohio Traffic Rules applicable. We disagree.
{¶ 55} This is a minor misdemeanor traffic case. Contrary to appellant's
arguments, the Ohio Traffic Rules govern procedure in traffic cases. Traffic Rule
1(A) provides: (A) Applicability. These rules prescribe the procedure to be followed
in all courts of this state in traffic cases and supersede the “Ohio Rules of Practice
and Procedure in Traffic Cases For All Courts Inferior To Common Pleas” effective
January 1, 1969, and as amended on January 4, 1971, and December 7, 1972.
{¶ 56} Ohio Traffic Rule 11(C) addresses pleadings and motions made
before trial and states: (E) Ruling on Motion. A motion made before trial, other than
a motion for change of venue, shall be timely determined before trial. Where factual
issues are involved in determining a motion, the court shall state its essential
findings on the record.
{¶ 57} The trial court complied with the appropriate rule in ruling on
appellant's motions in a timely manner before trial. We therefore reject appellant's
arguments to the contrary.
{¶ 58} The final assignment of error is overruled. {¶ 59} Upon careful consideration of each of appellant's arguments we affirm the
judgment of conviction and sentence of the Fairfield County Municipal Court.
By Wise, Earle, J.
Wise, John, P.J. and
Delaney, J. concur.