State v. McHugh

2021 Ohio 1626

• Court: Ohio Court of Appeals
• Decided: May 10, 2021
• Docket: 20COA028
• Status: Published

Opinion

[Cite as State v. McHugh, 2021-Ohio-1626.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 20COA028 JOSEPH MCHUGH : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal Court, Case No. 20TRD00198

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 10, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW N. BUSH JOSEPH P. KEARNS Assistant Law Director Mason, Mason, & Kearns 1213 East Main Street 153 West Main Street Ashland, OH 44805 Ashland, OH 44805 [Cite as State v. McHugh, 2021-Ohio-1626.]

Gwin,J.,

{¶1} Appellant Joseph McHugh appeals the October 9, 2020 judgment entry of

the Ashland Municipal Court overruling his objections to the magistrate’s decision.

Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On January 8, 2020, appellant was pulled over in Ashland County for

speeding, in violation of R.C. 4511.21(D)(1). The ticket issued states appellant was going

76 miles per hour in a 55 mile per hour zone. A bench trial was held in front of a magistrate

on June 8, 2020.

{¶3} Sergeant Benner (“Benner”) of the Ashland County Sheriff’s Office has

worked as a deputy for 29 years. She completed the police academy and training

updates. Some of her training dealt with identifying and apprehending those committing

speed-related offenses. As part of her training, she was certified as proficient in the

operation of electronic speed detection equipment. Benner identified Exhibit 1 as her

training certificate. The certificate from the State of Ohio is dated October of 1994 and

provides that Benner satisfactorily completed the course requirements in the “technical

and theoretical aspects of radar operation.” Benner was current with all of her training

requirements as of January 8, 2020.

{¶4} Benner’s radar is a Stalker Dual. She has received training on this device.

The magistrate took judicial notice of the reliability of the device based upon a reported

municipal court decision.

{¶5} Benner checked the calibration of the radar on January 8, 2020. There are

two tuning forks that have to be checked separately, and then at the same time. Each Ashland County, Case No. 20COA028 3

tuning fork has a miles per hour reading, which shows on the radar unit once Benner

calibrates it. Benner strikes a tuning fork to check the radar as far as speed. The radar

also has an internal tuning fork that checks the speed on its own. Benner testified that

when she is calibrating the radar, she is checking to see if the speed displayed by the

radar matches what it is supposed to be with the tuning fork. This calibration is checked

both at the beginning and end of Benner’s shift. She did these calibrations on January 8,

2020, and the radar device was working properly both at the beginning and end of her

shift.

{¶6} Benner testified that when a radar is checking the speed of a vehicle, it gives

an audible tone. The tone depends upon the speed of the vehicle; a vehicle traveling at

a higher speed will elicit a higher pitched tone than a vehicle traveling at a lower speed.

{¶7} At 5:54 p.m., Benner was in a marked police car, traveling eastbound on

State Route 302 from State Route 511. Appellant was traveling westbound. Benner

noticed appellant appeared to be traveling at a high rate of speed, more than the posted

speed limit of 55 miles per hour. Benner utilized the radar. The radar showed appellant

was traveling at 76 miles per hour. She could be sure it was reading appellant’s car and

not something else because there was no tone and no visual prior to appellant’s vehicle

appearing. Then, a tone and visual appeared. Prior to seeing appellant’s vehicle, there

was no sound coming from the radar. Benner heard the tone when appellant’s vehicle

came into view. Based upon her experience with the radar machine, the level or pitch of

the tone matched the speed she was seeing. After appellant passed her, the tone went

away. Benner testified no vehicles were traveling westbound other than appellant. Ashland County, Case No. 20COA028 4

{¶8} On cross-examination, counsel for appellant questioned Benner again

about the calibration of the radar. Benner did not know how old the Stalker unit was and,

as far as she knows, the unit had never been sent in for repair. At the time of the reading,

Benner made sure the radar was in “moving” mode, rather than “stationary” mode. She

is sure she had it in “moving” mode because it reveals her patrol speed and she always

checks the patrol speed with the speedometer of the vehicle. There is a little dot on the

display of the radar that shows moving or stationary mode.

{¶9} When Benner clocked appellant on the radar, there was a gradual grade of

the roadway as he was coming downhill. Once appellant passed her patrol car, she hit

the overhead lights and siren, and turned around to follow the vehicle. Benner was able

to maintain visual contact with appellant’s vehicle.

{¶10} The magistrate issued a decision on June 8, 2020, finding appellee proved

all elements of the offense beyond a reasonable doubt, and finding appellant guilty. The

magistrate specifically found Sergeant Benner credible. The trial court fined appellant

$50, plus court costs. Appellant filed objections to the magistrate’s decision on June 16,

2020, arguing the magistrate’s conclusion that appellee met its burden of proof was not

supported by the facts.

{¶11} The trial court issued a judgment entry on October 9, 2020. The trial court

noted, “defendant’s objection is essentially that the evidence was insufficient to support

a finding of guilty. No objections were raised to the evidentiary rulings of the Magistrate

or the way in which the Trial was conducted.” The trial court stated it completed an

“exhaustive review” of the record, and found sufficient and credible evidence supported

appellant’s conviction. Ashland County, Case No. 20COA028 5

{¶12} Appellant appeals the judgment entry of the Ashland Municipal Court and

assigns the following as error:

{¶13} “I. THE TRIAL COURT ERRED WHEN IT RULED THAT THE STATE MET

ITS BURDEN OF PROOF IN FINDING THAT THE DEFENDANT HAD EXCEEDED THE

POSTED SPEED LIMIT.”

I.

{¶14} In his assignment of error, appellant challenges the admission of Benner’s

testimony and her qualifications to operate the radar. Appellant contends the trial should

not have admitted Benner’s testimony because she only produced a certificate of training

that was general in nature and was from 1994. Appellant argues the trial court committed

error in relying on the certificate at trial.

{¶15} It is well-established that trial courts exercise broad discretion in the

admission or exclusion of evidence. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987). An appellate court will not disturb evidentiary decisions of the trial court absent a

showing of an abuse of discretion. Id.

{¶16} Once judicial notice of the operation and reliability of a radar or laser device

is taken, the trial court must further determine: (1) whether the operator of the device was

properly qualified to use the device; (2) whether the device was in good operating

condition and properly calibrated at the time of use; and (3) whether the police officer

properly operated and read the device. State v. Leonatti, 5th Dist. Morrow No. 2014 CA

0010, 2015-Ohio-1172.

{¶17} The fact that Benner’s training certificate is from 1994 is not dispositive of

her qualifications. Kent v. Vesel, 11th Dist. Portage No. 2011-P-0069, 2012-Ohio-530 Ashland County, Case No. 20COA028 6

(testimony demonstrating familiarity with the laser device combined with trooper’s

certificate of training from 1991 at the police academy was sufficient to establish he was

qualified to use the radar device).

{¶18} This Court has previously held that the State of Ohio was not required to

introduce into evidence the trooper’s training certificate in the use of the laser when the

trooper testified about his or her certification and training. State v. Leonatti, 5th Dist.

Morrow No. 2014 CA 0010, 2015-Ohio-1172.

{¶19} Appellant contends State v. Riddle, 6th Dist. Ottawa No. OT-10-0040, 2011-

Ohio-1547 supports his position that Benner was not qualified to operate the laser device

and thus the results from the radar should not have been admitted into evidence.

Appellant argues that, based upon Riddle, the trial court’s decision should be reversed.

{¶20} In Riddle, the defendant argued the testimony of the trooper could not be

used as evidence the defendant was speeding because the State of Ohio did not

introduce into evidence a certificate of training for the radar device the trooper used. The

Sixth District agreed with the trial court that a trooper is not required to present a certificate

of training to prove he or she is qualified to administer a radar device, but the Sixth District

found the trooper’s “generalized and vague” testimony to be “insufficient proof of his

qualifications.” Id.

{¶21} However, subsequent to Riddle, the Sixth District held that Riddle was

limited to those particular facts, and held that when there is precise and detailed testimony

from the trooper about his or her qualifications to operate the laser device, about the

propriety of the trooper’s accuracy check of the laser device, and about the propriety of

the trooper’s operation of the device in obtaining the reading on appellant’s vehicle, the Ashland County, Case No. 20COA028 7

laser device results were properly admitted into evidence. State v. Jampani, 6th Dist.

Erie No. E-13-004, 2013-Ohio-5070.

{¶22} We find the facts in the instant case distinguishable from Riddle and

analogous to Jampani. First, unlike in Riddle, Benner identified, and the trial court

admitted into evidence, her training certificate. Further, Benner testified to her years of

experience and training. She stated she is current on her training. She confirmed her

training included being proficient in operating electronic speed detection equipment and

stated she was trained on the Stalker radar. Benner testified in detail regarding the

operational specifics and parameters of the device, including the testing process that

must be performed in order to calibrate the radar at the beginning and end of her shift,

about utilizing the device to monitor appellant’s speed, and about receiving clear audio

results followed by a clear reading establishing the speeding violation by appellant.

Benner detailed her operation of the radar on the day in question in order to accurately

obtain appellant’s rate of speed.

{¶23} We find the trial court did not commit error in admitting and relying upon

Benner’s testimony. Benner’s testimony amply established the reliability, accuracy, and

proper working condition of the laser device. Benner’s testimony and certificate of training

establishes her qualifications to operate the laser device and her proper operation of the

laser device on January 8, 2020, in the course of obtaining a reading on appellant’s speed

prior to issuing the speeding citation.

{¶24} Appellant argues his conviction is against the manifest weight and

sufficiency of the evidence because there was a lack of evidence that the officer was

trained in the use of the radar used. Ashland County, Case No. 20COA028 8

{¶25} 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), 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 guilty 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.”

Id.

{¶26} 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, 78 Ohio St.2d 541, 678

N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the

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

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

{¶27} It is well-established, though, that the weight of the evidence and the

credibility witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d

227, 2002-Ohio-2126, 767 N.E.2d 216. The trier of fact was free to accept or reject any

and all of the evidence offered by the parties and assess the witness’s credibility.” Id. Ashland County, Case No. 20COA028 9

{¶28} There was sufficient evidence of Benner’s qualifications and experience

with the radar. Benner testified she was trained in the operation of electronic speed

detection equipment, including the Stalker radar. Benner demonstrated familiarity with

the actual use of the Stalker through her detailed testimony regarding its calibration, the

functioning of the audio component, and differing between stationary and moving mode

on this particular device. As noted above, this Court has previously held an officer’s

specific testimony with respect to his or her qualifications and experience is sufficient to

establish that the radar device was in good working order and that he or she is qualified

to operate the radar device. State v. Leonatti, 5th Dist. Morrow No. 2014 CA 0010, 2015-

Ohio-1172; Kent v. Vesel, 11th Dist. Portage No. 2011-P-0069, 2012-Ohio-530.

{¶29} Appellant’s arguments concerning the officer’s training and level of

familiarity with the radar do not render the municipal court’s verdict contrary to the

manifest weight of the evidence.

{¶30} Based on the foregoing, appellant’s assignment of error is overruled. Ashland County, Case No. 20COA028 10

{¶31} The October 9, 2020 judgment entry of the Ashland Municipal Court is

affirmed.

By Gwin, J.,

Baldwin, P.J., and

Wise, John, J., concur