State v. Patel

2019 Ohio 4033

• Court: Ohio Court of Appeals
• Decided: September 30, 2019
• Docket: 19-COA-011
• Status: Published

Opinion

[Cite as State v. Patel, 2019-Ohio-4033.]

COURT OF APPEALS ASHLAND 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- : : GITA PATEL : Case No. 19-COA-011 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 18TRD07461

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 30, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW N. BUSH UPENDRA K. PATEL 1213 East Main Street 1000 Whispering Pine Lane Ashland, OH 44805 Dayton, OH 45458 Ashland County, Case No. 19-COA-011 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Gita Patel, appeals the March 27, 2019 judgment

entry of the Municipal Court for Ashland County, Ohio, denying her objections to the

magistrate's decision and finding her guilty of speeding. Plaintiff-Appellee is the state of

Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 19, 2018, Ohio State Highway Patrol Trooper Jesse Brown

stopped appellant for speeding in violation of R.C. 4511.21. A trial before a magistrate

was held on October 10, 2018. By decision filed October 12, 2018, the magistrate found

appellant guilty of speeding. The magistrate filed findings of fact and conclusions of law

on October 25, 2018. Appellant filed objections. By judgment entry filed March 27, 2019,

the trial court overruled the objections and adopted the magistrate's decision.

{¶ 3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 4} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN TAKING

JUDICIAL NOTICE OF THE SCIENTIFIC RELIABILITY OF THE ULTRALYTE LR B

LASER."

II

{¶ 5} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE

DOUBT ALL OF THE ESSENTIAL ELEMENTS UNDER R.C. 4511.21(D)(4)." Ashland County, Case No. 19-COA-011 3

III

{¶ 6} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE COURT'S FINDING THAT THE TROOPER WAS USING

AN LTI 20-20 LASER IN MEASURING THE DEFENDANT'S VEHICLE SPEED IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

IV

{¶ 7} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE COURT, AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, FAILED TO FIND THAT THE TROOPER WAS USING AN ULTRALYTE LR

B LASER IN MEASURING THE DEFENDANT'S VEHICLE SPEED."

V

{¶ 8} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE COURT'S FINDING THAT AN LTI 20-20 LASER WAS

PROPERLY CERTIFIED, CHECKED AND TESTED IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

VI

{¶ 9} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE COURT'S FINDING THAT THE TROOPER ACCURATELY

MEASURED DEFENDANT'S SPEED USING LTI 20-20 LASER IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

VII Ashland County, Case No. 19-COA-011 4

{¶ 10} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE COURT'S FINDING THAT THE TROOPER'S TESTIMONY

REGARDING CALIBRATION OF THE LTI 20-20 LASER IS CREDIBLE AND

ACCURATE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

VIII

{¶ 11} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE COURT'S FINDING THAT THE TROOPER WAS

PROPERLY AND FULLY TRAINED AND A QUALIFIED TROOPER OF THE OHIO

STATE PATROL IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

IX

{¶ 12} "THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF

SPEEDING BECAUSE THE COURT'S FINDING THAT LTI 20-20 LASER WAS

RELIABLE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

{¶ 13} Appellant claims the trial court erred in taking judicial notice of the scientific

reliability of the UltraLyte LR B laser. We disagree.

{¶ 14} Trooper Brown testified on August 19, 2018, he clocked appellant travelling

85 m.p.h. in a 70 m.p.h. posted area. T. at 8, 14-15, 17. In clocking appellant, he used

an UltraLyte LTI 20-20 laser. T. at 9, 15. Trooper Brown is certified in operating the laser

device, and in fact, checked the calibration of the device at the start and end of his shift

on August 19, 2018. T. at 7-8, 11-13, 43-44; State's Exhibit 1. The device was working

properly. T. at 13. Ashland County, Case No. 19-COA-011 5

{¶ 15} On cross-examination, defense counsel questioned Trooper Brown about

the laser device he used. Trooper Brown testified the serial stamp on the device indicated

it was an UltraLyte 20-20 laser. T. at 19. The traffic ticket lists "Laser # 7641." T. at 45.

The certificate of calibration for device serial no. UX027641 indicates the device

calibrated was an UltraLyte LR, REV 2, UltraLyte LR B. T. at 19-20; Defendant's Exhibit

A. Trooper Brown insisted he checked the calibration of an UltraLyte LTI 20-20 that day

and defense counsel argued he could not have because the certificate of calibration

stated the device was an UltraLyte LR B. T. at 40-41. Defense counsel asked Trooper

Brown if he was aware "there's more than one UltraLyte 20-20" and he responded that

he knew there were older models "they look similar and have the same." T. at 18. He

explained he was trained to use the UltraLytes and "models change, I know there's some

UltraLyte LTI 20-20s, but we get new models, new lasers in and out as ones are replaced,

like I said, I'm not exactly sure if it's the LR B or they're just UltraLyte LTI 20-20s is what

they explained to us." T. at 34.

{¶ 16} On redirect, Trooper Brown explained "we say we use" 20-20s, and he had

no reason to believe it was anything other than a 20-20, but he admitted the post receives

newer models, they all look similar, and they are always called 20-20s. T. at 43.

{¶ 17} The certificate of calibration, Defendant's Exhibit A, is composed of two

pages. The first page certifies "that LTI UltraLyte Laser Speed Detection Instrument serial

number UX027641 meets or exceeds all manufacturer's specifications for velocity and

range measurements." The second page indicates the model certified was an UltraLyte

LR, REV 2, UltraLyte LR B. Ashland County, Case No. 19-COA-011 6

{¶ 18} In his decision and findings of fact and conclusions of law filed October 25,

2018, the magistrate took judicial notice "of the accuracy of the LTI 20/20 ultralight laser

pursuant to the case of State of Ohio v. Randy Keller, 06TRD00409, Ashland Municipal

Court."

{¶ 19} In her objections filed October 24, 2018, appellant argued the magistrate

erred in taking judicial notice of the scientific reliability of the LTI 20/20 when the laser

used in the case was an UltraLyte LR B.

{¶ 20} In its March 27, 2019 judgment entry overruling appellant's objection, the

trial court stated the following:

Defendant makes much of the fact that the laser used to check her

speed was a particular sub-model of the LTI Ultralyte. That is a distinction

without a difference. This Court received considerable expert testimony

establishing the scientific reliability of the LTI Ultralyte family of lasers in

State v. Keller, 06 TRD 00409. It is not necessary that the process be

repeated for each iteration of the same device. The Magistrate was justified

and correct in taking judicial notice of the general scientific reliability of the

LTI Ultralyte laser.

{¶ 21} "Establishing the reliability of a speed-measuring device can be

accomplished for future cases by (1) a reported municipal court decision, (2) a reported

or unreported case from the appellate court, or (3) the previous consideration of expert

testimony about a specific device where the trial court notes it on the record." (Footnotes Ashland County, Case No. 19-COA-011 7

omitted.) Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613,

¶ 10 (1st Dist.). Accord State v. Dawson, 5th Dist. Delaware No. 16 CAC 01 0002, 2016-

Ohio-5605, ¶ 10.

{¶ 22} The trial court's decision was based on prong three, "the previous

consideration of expert testimony about a specific device where the trial court notes it on

the record." During the trial, the magistrate took judicial notice of the scientific reliability

of the UltraLyte LTI 20-20 pursuant to State v. Keller, Ashland M.C. No. 06-TR-D-00409

(Feb. 13, 2006). T. at 9-11. In its judgment entry adopting the magistrate's decision, the

trial court noted the UltraLyte LR B laser was a sub-model of the LTI UltraLyte and the

trial court had "received considerable expert testimony establishing the scientific reliability

of the LTI Ultralyte family of lasers" in the Keller case. The trial court noted it was not

"necessary that the process be repeated for each iteration of the same device."

{¶ 23} We agree with the trial court that appellant's argument is a "distinction

without a difference." The trial court noted the UltraLyte LR B was a sub-model of the

UltraLyte LTI 20-20, and the trial court had received considerable testimony on the entire

family of UltraLyte LTI lasers. Trooper Brown acknowledged there are different models

or versions of the LTI 20-20, and everyone refers to them as "UltraLyte LTI 20-20." T. at

43. The certificate of calibration identified the laser as an "LTI UltraLyte Laser Speed

Detection Instrument." The UltraLyte LR B is not new technology e.g., radar to laser

device.

{¶ 24} The laser device was properly calibrated. Defendant's Exhibit A. Trooper

Brown testified he received training on how to operate the laser and was certified. T. at

7-8, 11; State's Exhibit 1. He testified that he tested the device at the beginning and at Ashland County, Case No. 19-COA-011 8

the end of his shift and the device was in proper working order. T. at 11-13, 43-44. At no

time when he was checking appellant's speed did the device register an error. T. at 15-

16, 27, 44.

{¶ 25} Upon review, we find the trial court did not err in taking judicial notice of the

scientific reliability of the laser device.

{¶ 26} Assignment of Error I is denied.

II, III, IV, V, VI, VII, VIII, IX

{¶ 27} In the remaining assignments of error, appellant claims the trial court erred

in finding her guilty of speeding because appellee failed to prove beyond a reasonable

doubt all the essential elements under R.C. 4511.21(D)(4), and the finding was against

the manifest weight of the evidence. We disagree.

{¶ 28} 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 jury 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.

{¶ 29} We note 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). The trier of fact "has the best opportunity to view the demeanor, attitude, and Ashland County, Case No. 19-COA-011 9

credibility of each witness, something that does not translate well on the written page."

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 30} Appellant was convicted of speeding in violation of R.C. 4511.21(D)(4)

which states: "No person shall operate a motor vehicle * * * upon a street or highway as

follows: At a speed exceeding seventy miles per hour upon a freeway as provided in

division (B)(14) of this section." Section (B)(14) states: "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 * * * to operate the

same at a speed not exceeding the following: Seventy miles per hour on all rural

freeways."

{¶ 31} Trooper Brown testified appellant was sitting stationary on Interstate 71

when he observed appellant travelling towards him at a speed he estimated "in excess of

80 miles per hour." T. at 8-9, 13-15. Using the laser device, Trooper Brown clocked

appellant doing "85, 84, 85, 82, 78." T. at 16. The posted speed limit on that portion of

the highway is 70 m.p.h. T. at 15. There were no other vehicles around to interfere with

the laser readings, and he was able to maintain visual contact with appellant the entire

time. T. at 17. Trooper Brown cited appellant for driving "85 in a 70." Id. The

magistrate/trial court found Trooper Brown to be credible. In its March 27, 2019 judgment

entry, the trial court determined the following about Trooper Brown:

His testimony was internally consistent, and wholly devoid of any

indicia of bias or deception. He clearly had the opportunity to observe and

know the things about which he testified from personal observation on the Ashland County, Case No. 19-COA-011 10

date of the speeding offense. His experience and training were adequately

established, and he conducted himself in a professional and competent

manner on the stand.

{¶ 32} The laser device used was properly calibrated and checked before and after

Trooper Brown's shift, and Trooper Brown was trained and certified on how to use the

device. T. at 7-8, 11-13, 43-44; State's Exhibit 1, Defendant's Exhibit A. Appellant's

arguments on the scientific reliability of the laser device have been addressed in

Assignment of Error I.

{¶ 33} Upon review, we find the trial court did not err in finding appellant guilty of

speeding, and we do not find any manifest miscarriage of justice.

{¶ 34} Assignments of Error II, III, IV, V, VI, VII, VIII, and IX are denied.

{¶ 35} The judgment of the Municipal Court of Ashland County, Ohio is hereby

affirmed.

By Wise, Earle, J.

Wise, John, P.J. concurs.

Delaney, J. dissents.

EEW/db Ashland County, Case No. 19-COA-011 11

Delaney, J., dissenting.

{¶36} I respectfully dissent from the majority’s analysis and disposition of

appellant’s assignments of errors and would reverse the trial court’s judgment and

discharge the appellant.

{¶37} The magistrate found, and the trial court confirmed, that Trooper Brown was

credible when he testified he used an LTI 20/20 laser speed measuring device to

determine appellant’s speed. I agree with appellant this finding is against the manifest

weight of the evidence. The state’s certificate of calibration and matching serial number

for the device at issue undisputedly demonstrates it was an Ultralyte LR B. (Exhibit A).

{¶38} The Twelfth Appellate District has noted the Ultralyte LR B is a newer

model or version of the LTI 20/20. State v. Wilson, 2018-Ohio-702, Warran County App.

CA2017-08-125, ¶ 24 (citations omitted). The state’s certificate of calibration indicates

that there are multiple models of the UltraLyte laser. (Exhibit A). The LTI 20/20 is not

listed on Exhibit A.

{¶39} In 2006, the Ashland Municipal Court took judicial notice of the scientific

reliability of the LTI 20/20 in State v. Keller, 06-00409. However, contrary to the trial

court’s finding in the instant case, the Ashland Municipal Court in Keller did not make any

additional findings regarding the scientific reliability of the entire “LTI Ultralyte family”

including other subsequent models of the Ultralyte laser.

{¶40} Both the First and Twelfth Appellate Districts have indicated that it is

improper for a trial court to take judicial notice of the reliability of a different speed

measuring device from the LTI 20/20, without taking additional expert testimony that the

fundamental operation and operating principals are the same so that the two lasers could Ashland County, Case No. 19-COA-011 12

be deemed different models of the same device. State v. Wilson, supra; State v. McKay,

2014-Ohio-2027, Hamilton County App. C-130657.

{¶41} For these reasons, I would sustain appellant’s assignments of error and

reverse the trial court’s conviction.