State v. McKay , 2014 Ohio 2027 ( 2014 )

[Cite as State v. McKay, 2014-Ohio-2027.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130657
TRIAL NO. C-13TRD-24849
Plaintiff-Appellee, :
vs. : O P I N I O N.
TED MCKAY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: May 14, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Lyons & Lyons Co., LPA, and Robert Lyons, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Defendant-appellant Ted McKay appeals his conviction, following a
bench trial, for speeding in violation of R.C. 4511.21. Because the trial court took
judicial notice of expert testimony in a prior case that did not provide proof of the
accuracy and scientific reliability of the Ultralyte laser device, which had been used
to measure McKay’s speed, and because the state trooper’s testimony that he visually
estimated McKay’s speed at 80 m.p.h in a 65 m.p.h. zone is now statutorily
insufficient to convict McKay of speeding, we reverse his conviction and discharge
him from further prosecution.
Facts and Procedural Posture
{¶2} On May 29, 2013, Trooper Westhoven was monitoring traffic on I-
275. He was using an Ultralyte laser device to check the speed of cars. The posted
speed limit was 65 m.p.h. Trooper Westhoven was sitting in his stationary vehicle
between the Kellogg Avenue exit and the New Richmond exit when he observed
McKay driving a vehicle at a speed he visually estimated to be 80 m.p.h. Trooper
Westhoven used an Ultralyte laser to clock McKay’s speed, resulting in three separate
measurements of 78, 78, and 79 m.p.h. Trooper Westhoven ordered McKay to pull
over and issued him a ticket for speeding.
{¶3} The case proceeded to a trial before the court. On direct
examination, Trooper Westhoven testified that he had calibrated the laser at the
beginning of his shift and it was in good working order. He could not recall if he had
testified previously in a Hamilton County court about the results of the Ultralyte
device. When asked if he knew what model the laser was, he stated that he was
unsure and that he would need to call the patrol post to get that information.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Upon cross-examination by McKay’s counsel, Trooper Westhoven
testified that he was not an expert on speed-measuring devices and he could not
testify as to whether the LTI 20-20 and the Ultralyte were the same speed-measuring
device. The state then rested.
{¶5} McKay moved pursuant to Crim.R. 29 for an acquittal. He argued
that the trial court could not take judicial notice of the scientific accuracy and
reliability of the Ultralyte laser device for a number of reasons. First, the trooper
could not testify that the Ultralyte laser was the same device as the LTI 20-20.
Second, there were no reported Hamilton County Municipal Court cases or First
Appellate District opinions discussing the Ultralyte laser; and third, the Hamilton
County Municipal Court had not previously heard expert testimony on the Ultralyte
laser. The state presented no counterargument. Instead, it submitted the case on the
trooper’s testimony. The trial court stated that it would take the matter under
advisement and issue a decision at a later date.
{¶6} On July 31, 2013, the trial court stated that it had reviewed expert
testimony from another Hamilton County Municipal Court case and that it was
taking judicial notice of the reliability of the Ultralyte laser based upon the findings
in that case. When McKay’s counsel inquired about the case, the trial court stated
that it thought the case was called “Shoemaker,” and that the court’s bailiff had a
copy of the transcript of proceedings in that case for counsel to review. The trial
court then found McKay guilty of speeding and continued the matter for sentencing.
{¶7} McKay filed a motion for reconsideration. Attached to the motion
was a copy of the transcript of the case that the trial court had relied upon to take
judicial notice of the Ultralyte laser and the trial court’s journal entry in that case.
McKay argued that the expert testimony in that case did not address the Ultralyte
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OHIO FIRST DISTRICT COURT OF APPEALS
laser, but only the LTI 20-20 device. The trial court denied the motion. It imposed a
$70 fine plus court costs. The trial court stayed McKay’s sentence pending this
appeal.
Analysis
{¶8} In his first assignment of error, McKay argues that the trial court
erred in finding him guilty of speeding because the state failed to prove the scientific
reliability of the speed-measuring device. In his second assignment of error, he
contends that trial court erred when it took judicial notice of the scientific reliability
of the speed-measuring device without a proper foundation. Because these
assignments are interrelated, we address them together.
{¶9} In reviewing a challenge to the sufficiency of the evidence, this
court must determine 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 had been proved beyond a reasonable doubt. State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶10} To convict an individual of speeding based upon a laser device, the
state must produce evidence at trial that the device is scientifically reliable. State v.
Palmer, 1st Dist. Hamilton No. C-050750, 2006-Ohio-5456, ¶ 10. Ohio appellate
courts, including this court, have held that the scientific accuracy of a laser device
used to measure speed is a fact that a trial court may judicially notice. See Palmer at
¶ 11, citing Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d
613, ¶ 7 (1st Dist.).
{¶11} In this case, the trial court improperly took judicial notice of the
scientific reliability of the Ultralyte laser device based upon expert testimony in
another Hamilton County Municipal Court case―State v. Schumacher, which had
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OHIO FIRST DISTRICT COURT OF APPEALS
been decided in 2006. In that case, the Hamilton County Municipal Court heard
expert testimony on the reliability and accuracy of the LTI 20-20 speed-detection
device.
{¶12} Here Trooper Westhoven testified that he had used an Ultralyte
laser device. He could not testify as to the manufacturer of the device or the model
and he could not state whether the Ultralyte laser device he had used to measure
McKay’s speed was the same as the LTI 20-20 device. Without this evidence, the
Schumacher decision, which addressed only the accuracy and reliability of the LTI
20-20 laser device, could not provide any grounds to support the trial court taking
judicial notice of the accuracy and reliability of the Ultralyte laser device used in
McKay’s case. See State v. Zhovner, 2013-Ohio-749, 987 N.E.2d 333, ¶ 24-27 (3d
Dist.). As a result, Trooper Westhoven’s testimony regarding the readings from the
Ultralyte laser device was inadmissible to show that McKay had been speeding.
{¶13} In addition to testifying that he had measured McKay’s speed with
the Ultralyte device, Trooper Westhoven also testified that he had visually estimated
McKay’s speed at 80 m.p.h. In Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-
2420, 929 N.E.2d 1047, the Ohio Supreme Court held that a defendant can be
convicted of speeding based solely on a police officer’s visual estimation of speed
where the evidence shows the officer has training and experience in such visual
estimations. The General Assembly, however, has since enacted R.C. 4511.091(C) to
negate the Supreme Court’s holding in Barberton. See State v. Kincaid, 5th Dist.
Ashland No. 2012-COA-011, 2012-Ohio-4669, ¶ 19-22. R.C. 4511.091(C)(1), which
became effective September 30, 2011, expressly provides that no person shall be
arrested, charged, or convicted of a violation of the statutes governing speeding
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OHIO FIRST DISTRICT COURT OF APPEALS
based solely on a police officer’s unaided visual estimation of the speed of a motor
vehicle, trackless trolley or streetcar. Id.{¶14} Thus, Officer Westhoven’s testimony that he had visually estimated
the speed of McKay’s motor vehicle at 80 m.p.h. is insufficient, by itself, to support
McKay’s conviction for speeding. See Beachwood v. Joyner, 2012-Ohio-5884, 984
N.E.2d 388, ¶ 16-17 (8th Dist.); see also State v. Zhovner, 2013-Ohio-749, 987
N.E.2d 333, fn. 3 (3d Dist.).
{¶15} Because the trial court erred in taking judicial notice of the
accuracy and reliability of the Ultralyte laser device, Trooper Westhoven’s testimony
regarding the readings from the device was inadmissible. And because the trooper’s
visual estimation of McKay’s speed was insufficient evidence to demonstrate that
McKay had been speeding, no rational trier of fact could have found that the state
had proved each element of the offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore,
McKay’s conviction for speeding is based upon insufficient evidence and must be
reversed. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613, at ¶ 20.
As a result, we sustain his two assignments of error, reverse the trial court’s judgment,
and order McKay discharged from further prosecution in this matter.
Judgment reversed and appellant discharged.
CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.
Please note:
The court has recorded its own entry this date.
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