State v. Makuch

2012 Ohio 5272

• Court: Ohio Court of Appeals
• Decided: November 6, 2012
• Docket: 11-COA-048
• Status: Published

Opinion

[Cite as State v. Makuch, 2012-Ohio-5272.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. -vs- : : Case No. 11-COA-048 JOHN MAKUCH III : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court, Case No. 11TRD06390

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 6, 2012

APPEARANCES:

For Appellant: For Appellee:

BRENT L. ENGLISH DAVID M. HUNTER M.K. Ferguson Plaza, Ste. 470 ACTING ASSISTANT LAW DIRECTOR 1500 West Third Street Ashland Law Director’s Office Cleveland, OH 44113-1422 1213 East Main St. Ashland, OH 44805 [Cite as State v. Makuch, 2012-Ohio-5272.]

Delaney, J.

{¶1} Appellant John Makuch III appeals from the October 27, 2011 judgment

entry of the Ashland Municipal Court finding him guilty of one count of speeding.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on September 2, 2011 as Sgt. Justin W. Cromer of the

Ohio State Highway Patrol (OSHP) monitored traffic along Interstate 71 in Ashland

County from an aircraft. His attention was drawn to a vehicle that appeared to be

traveling in excess of the posted 65-mile-per-hour speed limit. Cromer clocked the

speed of the vehicle through a specially-marked zone on the highway and determined

its speed to be 82 miles per hour. Cromer radioed another officer on the ground, Lt.

Neff, and advised him of the vehicle’s description and location. Neff then stopped the

vehicle and cited the driver, appellant, for speeding.

The process of monitoring traffic from the air

{¶3} Cromer became a trooper in 2004 and obtained the pilot specialty

position in 2005; he is presently the flight safety officer for the aviation section of the

OSHP. His function as a pilot is traffic enforcement by fixed-wing aircraft. Cromer is

generally the only occupant of the aircraft, which means he is both flying the plane and

monitoring traffic by the procedure described infra. If the pilot becomes distracted by

something drawing his attention inside the plane, he stops monitoring traffic, corrects

the condition, and then starts over with the monitoring process.

{¶4} Cromer testified the Ohio Department of Transportation paints certain

sections of highway with a series of lines which appear as white hash marks on either Ashland County, Case No. 11-COA-048 3

side of the interstate. These marks are spaced 1,320 feet (one quarter mile) apart.

As a vehicle travels through one of these zones, a trooper uses a programmable stop

watch to record the time it takes the vehicle to travel from one set of lines to the next;

this is the elapsed time for the quarter-mile distance.

{¶5} Troopers then use a programmed watch to calculate an average speed

based upon the elapsed time. Cromer described the process as a simple

time/distance equation: “if you take a certain amount of distance and a certain amount

of time over that distance, you end up with an average speed by performing a couple

of simple calculations.”

{¶6} Cromer also described the process of calibrating the watch used for the

calculation. The first procedure verifies the timekeeping function of the watch. Once

a month, two watches are checked against a signal from the atomic clock in Boulder,

Colorado; the watches are started and stopped simultaneously with a two-minute time

period signal. One-tenth of a second is the maximum allowable deviation between the

watches and the signal. If the watch is outside this parameter, it is taken out of

service.

{¶7} The second procedure verifies the mathematical function of the watch.

On a daily check before and after a shift, two watches run for approximately sixteen

seconds and are then compared. One-tenth of a second is the maximum allowable

deviation. The times and speeds displayed on the watches are compared with a

standard mathematical chart to ensure the mathematical function is working properly. Ashland County, Case No. 11-COA-048 4

{¶8} In addition to those checks, inside the airplane, Cromer has three

stopwatches which he progressively compares against each other as another step of

verifying the watches’ accuracy.

{¶9} The watches used by Cromer in this case were checked on August 16,

2011 and September 15, 2011, before and after the traffic enforcement detail

described herein. Both watches were found to be within the required parameters

when measured against the atomic clock. Both watches were subjected to Cromer’s

daily check on September 2, 2011, at 8:16 a.m. and 3:52 p.m. and were found to be

within standards, programmed and operating correctly.

The monitoring and stop of appellant’s vehicle

{¶10} On September 2, 2011, Cromer was operating an OSHP aircraft and

monitoring traffic in a southbound zone on Interstate 71 in Ashland County, near the

188 mile post. This is a four-quarter zone; each hash mark, measured from the front

of each line, is at least 1,320 feet. Cromer personally measured this distance with a

rolling tape and confirmed the measurement with a standard fiberglass tape.

{¶11} The weather was favorable that day for monitoring traffic by aircraft and

Cromer noted no obstructions or impediments between his aircraft and the ground. At

approximately 9:23 a.m. Cromer noticed a vehicle traveling southbound on I-71; his

attention was drawn to the vehicle because it appeared to be traveling in excess of the

posted 65-mile-per-hour speed limit. The vehicle approached the marked zone and

Cromer did not see any vehicle near it traveling faster. He began timing the vehicle

and continued to do so through all four quarters of the zone. Ashland County, Case No. 11-COA-048 5

{¶12} Cromer described the targeted vehicle as a “darker-blue” pickup truck.

In the first quarter of the zone, the average speed checked was 82 miles per hour. In

the second and third quarters, the average speed was 78 miles per hour, and in the

fourth quarter, the average speed was 74 miles per hour. These speeds were

consistent with Cromer’s visual estimation.

{¶13} Cromer radioed Neff, who was positioned on the right berm south of the

speed zone, and described the vehicle and its time and speeds. He tracked the

vehicle as it approached Neff, directing Neff with reference to landmarks and counting

how many vehicles were between the target and Neff’s vehicle.

{¶14} Neff flagged the target vehicle to the right berm, and Cromer confirmed

he had stopped the right vehicle, the same one Cromer clocked traveling 82 miles per

hour in a 65-mile-per-hour zone.

{¶15} Neff flagged down the blue pickup truck and directed it to pull over to the

berm. Neff identified the driver of the pickup truck as appellant, advised him of the

reason for the stop, and cited him for the speed violation.

Citation, bench trial, and conviction

{¶16} Appellant entered a plea of not guilty and the case proceeded to bench

trial. Appellant moved for a judgment of acquittal at the close of appellee’s evidence

and at the close of all the evidence; the motions were overruled. The trial court found

appellant guilty as charged and assessed a fine of $75 plus court costs.

{¶17} Appellant now appeals from the judgment entry of conviction and

sentence.

{¶18} Appellant raises two Assignments of Error: Ashland County, Case No. 11-COA-048 6

{¶19} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

TO DISMISS UNDER CRIM.R. 29(A) AT THE CLOSE OF ALL THE EVIDENCE

BECAUSE (a) THE PROSECUTION FAILED TO PROVE WITH ANY COMPETENT,

CREDIBLE EVIDENCE THAT APPELLANT WAS OPERATING THE VEHICLE IN

QUESTION; AND (b) WHERE THE PROSECUTION FAILED TO PROVE A

PREDICATE FACT NECESSARY TO SHOW THE SPEED OF THE VEHICLE IN ANY

EVENT.”

{¶20} “II. THE JUDGMENT OF CONVICTION FOR SPEEDING WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WARRANTS A NEW

TRIAL BECAUSE (a) THE PROSECUTION FAILED TO PROVE WITH COMPETENT,

CREDIBLE EVIDENCE THAT APPELLANT WAS OPERATING THE VEHICLE IN

PREDICATE FACT NECESSARY TO SHOW THE SPEED OF THE VEHICLE IN ANY

I., II.

{¶21} Appellant asserts his conviction for speeding is not supported by

sufficient evidence and is against the manifest weight of the evidence. Appellant’s two

assignments of error are related and will be considered together.

{¶22} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The

standard of review for a challenge to the sufficiency of the evidence is set forth in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the Ashland County, Case No. 11-COA-048 7

syllabus, in which the Ohio Supreme Court held, “An appellate court’s function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.”

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

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra,

78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of

the evidence and ordering a new trial should be reserved for only the “exceptional

case in which the evidence weighs heavily against the conviction.” Id.

{¶24} Appellant was cited with and convicted of a violation of R.C.

4511.21(D)(2), which states, “No person shall operate a motor vehicle * * * upon a

street or highway as follows: [a]t a speed exceeding sixty-five miles per hour upon a

freeway as provided in divisions (B)(13) and (14) of this section.” Appellant

challenges his conviction on two bases: insufficient evidence to identify him as the

driver of the pickup truck, and insufficient evidence of the accuracy of Cromer’s speed

calculation. These arguments are premised upon appellant’s characterization of the Ashland County, Case No. 11-COA-048 8

OSHP witnesses’ testimony as flawed, but the weight to be given to the evidence and

the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49

Ohio St.3d 182, 552 N.E.2d 180 (1990), certiorari denied, 498 U.S. 881, 111 S.Ct.

228, 112 L.Ed.2d 183 (1990).

{¶25} Appellant cross-examined the OSHP witnesses and argued the identity

of the driver was not proven beyond a reasonable doubt because Neff was somewhat

equivocal in his testimony: he didn’t recall specifically whether anyone else was in

appellant’s vehicle and he only “vaguely” recalled appellant. The trial court cited State

v. Scott, 3 Ohio App.2d 239, 244-245, 210 N.E.2d 289 (7th Dist.1965) for the

proposition that “lack of positiveness” in a witness’ identification of a defendant does

not destroy the value of the identification, but goes to the weight of the testimony. We

note Neff identified appellant in the courtroom, recalled appellant’s face, and

personally filled out the uniform traffic citation containing appellant’s physical

description. Appellee’s evidence sufficiently established appellant as the driver of the

vehicle. See, State v. Calhoun, 5th Dist. No. CA-1060, 1994 WL 66891 (Feb. 17,

1994) [trooper testified vehicle he observed from the air was same vehicle he saw

another trooper stop], affirmed on other grounds by State v. Heins, 72 Ohio St.3d 504,

1995-Ohio-208, 651 N.E.2d 933; State v. Roman, 5th Dist. No. 3373, 1988 WL

119955 (Oct. 21, 1988) [trooper had “no doubt” car stopped by fellow trooper was the

same car he detected speeding]; State v. Henry, 5th Dist. No. 07COA024, 2008-Ohio-

236 [evidence as a whole established speeding vehicle was appellant’s].

{¶26} Appellant also challenges appellee’s evidence as to the spacing of the

hash marks used in Cromer’s calculations, arguing Cromer was unaware whether the Ashland County, Case No. 11-COA-048 9

spacing had changed since he personally measured them in July 2011. We note,

though, Cromer testified he had personally measured the lines with a roll tape

previously and there was no apparent manipulation of the lines or spacing on the date

of appellant’s offense. We find the testimony as to the hash mark spacing and

placement was sufficient and the trial court’s findings were not against the manifest

weight of the evidence. See, State v. Swinehart, 5th Dist. Nos. CA-1000, CA-999,

1992 WL 238405 (Aug. 27, 1992), appeal not allowed, 65 Ohio St.3d 1498, 605

N.E.2d 951 (1993); State v. Rice, 2nd Dist. No. 2000CA5, 2000 WL 1369924 (Sept.

22, 2000); State v. Osting, 3rd Dist. No. 3-86-21, 1988 WL 68698 (Jun. 27, 1988);

State v. Stockinger, 6th Dist. No. C.A.E-87-17, 1987 WL 27589 (Dec. 11, 1987).

{¶27} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the conviction. The trial

court did not create a manifest injustice by concluding that appellant was guilty of

speeding. The trial court heard the witnesses, evaluated the evidence, and was

convinced of appellant's guilt. We conclude the trier of fact, in resolving the conflicts

in the evidence, did not create a manifest injustice requiring a new trial. Appellant’s

conviction is supported by sufficient evidence and is not against the manifest weight of

the evidence. Ashland County, Case No. 11-COA-048 10

{¶28} Appellant’s first and second assignments of error are therefore overruled

and the judgment of the Ashland County Municipal Court is affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. WILLIAM B. HOFFMAN

PAD:kgb [Cite as State v. Makuch, 2012-Ohio-5272.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JOHN MAKUCH III : : : Case No. 11-COA-048 Defendant-Appellant :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Ashland Municipal Court is affirmed. Costs assessed to Appellant.