State v. Kincaid , 2012 Ohio 4669 ( 2012 )

[Cite as State v. Kincaid, 2012-Ohio-4669.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2012-C0A-011
TIMOTHY J. KINCAID :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal
Court, Case No. 12-TR-D-518
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 5, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID HUNTER TIMOTHY J. KINCAID PRO SE
1058 CR 2826 1910 Mentor Avenue
Perrysville, OH 44864 Painesville, OH 44077
[Cite as State v. Kincaid, 2012-Ohio-4669.]
Gwin, J.
{¶1} Defendant Timothy J. Kincaid appeals a judgment of the Municipal Court
of Ashland County, Ohio, which found him guilty of driving 80 M.P.H. in a 65 M.P.H.
zone in violation of R.C. 4511.21 (D). Appellant assigns a single error, which he divides
into four issues:
{¶2} “THE RECORD DOES NOT SUPPORT THE CONVICTION OF
DEFENDANT OF TRAVELING AT 80 MILES PER HOUR IN A 65 MILE PER HOUR
ZONE IN VIOLATION OF OHIO REVISED STATUTE SECTION 4511.21 D2 (SIC),
FOR THE FOLLOWING REASONS:
{¶3} (a-1) THE READINGS FROM THE SPEED DETECTION DEVICE
INTRODUCED AT TRIAL WERE NOT ADMISSIBLE AS EVIDENCE BECAUSE THE
RADAR DEVICE WAS NOT APPROVED FOR JUDICIAL NOTICE.
{¶4} (a-2) THE READINGS FROM THE SPEED DETECTION DEVICE
INTRODUCED AT TRIAL WERE NOT ADMISSIBLE BECAUSE THERE WAS NO
EVIDENCE THAT THE DEVICE WAS PROPERLY TESTED IN ACCORDANCE WITH
ESTABLISHED PRINCIPLES.
{¶5} (a-3) THE TESTIMONY OF THE OFFICER REGARDING HIS VISUAL
OBSERVATION OF THE SPEED OF THE VEHICLE DRIVEN BY DEFENDANT WAS
NOT ADMISSIBLE BECAUSE THE OFFICER LACKED TRAINING, CERTIFICATION
AND EXPERIENCE IN VISUAL ESTIMATION OF SPEEDS.
{¶6} (b) THE STATUTE UNDER WHICH DEFENDANT WAS FOUND GUILTY
WAS NOT APPLICABLE TO THE FACTS OF THIS CASE INASMUCH AS THERE
WERE NO FACTS FROM WHICH THE COURT COULD CONCLUDE THAT THE
Ashland County, Case No. 2012-CA-11 3
ROAD UPON WHICH THE DEFENDANT WAS DRIVING WAS A ‘FREEWAY’ AS
THAT TERM IS DEFINED IN THE STATUTE UNDER WHICH DEFENDANT WAS
CHARGED.”
{¶7} The record indicates Trooper James Speicher issued a speeding ticket to
appellant on January 4, 2012. At the trial the trooper testified he was stationary on
Interstate 71 when he observed a vehicle which later proved to be appellant’s vehicle
traveling at what he estimated to be at least 80 miles per hour. The trooper testified he
activated the Pro Laser III speed measuring device, for which he had checked the
calibration and the scope alignment at the start of his shift. The trooper established a
tracking history of appellant’s vehicle. He testified the tracking history he observed was
80 miles per hour, dropping to 79, 78, and then rapidly down to 65 miles per hour. The
trooper testified the posted speed limit for the road in question was 65 miles per hour.
{¶8} Appellant objected to the officer’s testimony that he was using a Customs
Signal Pro Laser III device. The court overruled the objection finding the trooper had
personal knowledge of the device.
{¶9} The State then asked the court to take judicial notice of the scientific
reliability of the Pro Laser III, based upon its determination in a prior case. At
appellant’s urging, the court declined to take judicial notice until after cross examination
was complete.
{¶10} Trooper Speicher then testified that at the end of his shift he tested the
Pro Laser III unit again and it was working properly at the end of the shift just as it had
been at the start.
Ashland County, Case No. 2012-CA-11 4
{¶11} On cross-examination, appellant questioned the trooper extensively about
his training and experience. On cross, the trooper stated the device was a Pro Laser III
because it was printed on the unit and on the operating manual.
{¶12} Appellant then reviewed the manual with the trooper regarding various
instructions for using speed tracking devices. The trooper testified he used the laser
gun properly according to his training and the manual.
{¶13} On re-direct, the State asked Trooper Speicher to elaborate on his training
and experience including both classroom and hands-on training. Appellant renewed his
objection to the identification of the device, which the court noted but overruled. The
court then took judicial notice that the Pro Laser III is a scientifically accurate and valid
speeding measure device consistent with the court’s prior holdings.
{¶14} Appellant argues the state failed to present sufficient evidence to prove its
case against him. A claim of insufficient evidence invokes a due process concern and
raises the question whether the evidence is legally sufficient to support the verdict as a
matter of law. State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266, 900 N.E.2d 565,
113, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In
reviewing such a challenge, “[t]he 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.” State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Ashland County, Case No. 2012-CA-11 5
a-1
{¶15} Appellant frames the first issue presented as whether the court can accept
testimony a speed-detection device was of a particular make and model based solely on
the sticker that appeared on the device, given that its placement on the device was not
prescribed by statute, and the circumstances of its placement on the device were
unknown. Appellant argues the trooper did not testify he knew the device was a
Custom Signal Pro Laser III because of his training and experience, but only testified he
believed it was because of the label. We find appellant misstates the evidence that was
presented. The trooper also testified about his training and certification with the device.
{¶16} Appellant characterizes the testimony as hearsay. Ohio R. Evid. 801 (C)
defines hearsay as a statement other than one made by the declarant while testifying at
trial or hearing offered in evidence to prove the truth of the matter asserted. Assuming
arguendo the label qualifies as a statement, we find this was not the only testimony
identifying the device. Even if the statement was hearsay, there was testimony the
trooper had training and was certified on the device, from which the court, if it believed
the trooper’s testimony, could draw the inference the officer was familiar with the Pro
Laser III and could testify from personal knowledge. The issue was the credibility of the
trooper’s testimony.
a-2
{¶17} The second issue appellant raises is whether there was any evidence the
speed measuring device was properly tested in accordance with established principles.
The State points out appellant never offered the manual for the device into evidence at
trial, although he read extensively from it during cross examination. The record only
Ashland County, Case No. 2012-CA-11 6
contains the testimony presented at trial, at which the trooper testified at some length
that he tested and operated the device properly.
{¶18} Again we find the issue involves the credibility of the trooper’s testimony.
a-3
{¶19} Appellant argues the testimony of the officer regarding his visual
observation of the speed of the vehicle was not admissible because the officer lacked
training, certification, and experience in visual estimations of speed.
{¶20} Appellant’s argument here hinges on the Supreme Court’s holding in
Barberton v. Jenney, 126 Ohio St. 3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, which held
a police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to
convict if the officer demonstrates he is trained, certified, and experienced in visually
estimating vehicles’ speed.
{¶21} On September 30, 2011, subsequent to Jenney, the Legislature amended
R.C. 4511.091 to specify no person shall be arrested, charged, or convicted of a
violation of the statutes governing speeding based solely on a police officer’s visual
unaided estimation of the speed of a motor vehicle, trackless trolley or streetcar.
{¶22} The trial testimony details the trooper’s training, certification, and
experience. We have found supra the trial court did not err in finding the speed
detection device had been accepted by the court as reliable and properly used, and
therefore the trooper’s estimation of appellant’s speed is not the sole evidence
presented.
Ashland County, Case No. 2012-CA-11 7
b
{¶23} Finally, appellant argues the statute under which he was convicted was
inapplicable to the case because there were no facts from which the court could
conclude the appellant was driving on a freeway as defined in the statute. R.C. 4511.21
provides the speed limit is 65 mph on interstates as defined as:
(a) Freeways that are part of the interstate system and that had such a
speed limit established prior to October 1, 1995, and freeways that are not
part of the interstate system, but are built to the standards and
specifications that are applicable to freeways that are part of the interstate
system and that had such a speed limit established prior to October 1,
1995;
(b) Freeways that are part of the interstate system and freeways that are
not part of the interstate system but are built to the standards and
specifications that are applicable to freeways that are part of the interstate
system, and that had such a speed limit established under division (L) of
this section;
{¶24} The trooper testified the incident occurred on an interstate highway with a
posted speed limit of 65, but there was no evidence presented the speed limit had been
established prior to October 1, 1995. Again, appellant did not object to the trooper’s
testimony although he raised this issue in closing argument.
{¶25} The trial court did not address this issue directly, but found appellant was
traveling on a roadway where the posted speed limit was 65 miles per hour. We find
Ashland County, Case No. 2012-CA-11 8
again the trooper’s testimony, if believed by the trial court as the finder of fact, was
sufficient for the court to draw this conclusion.
{¶26} The assignment of error is overruled in each of its parts.
{¶27} For the foregoing reasons, the judgment of the Municipal Court of Ashland
County, Ohio, is affirmed.
By Gwin, J.,
Delaney, P.J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER
WSG: clw 0906
[Cite as State v. Kincaid, 2012-Ohio-4669.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TIMOTHY J. KINCAID :
:
:
Defendant-Appellant : CASE NO. 2012-CA-11
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Ashland County, Ohio, is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER