State v. Zhovner , 2013 Ohio 749 ( 2013 )

[Cite as State v. Zhovner, 2013-Ohio-749.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-12-13
v.
ILYA ZHOVNER, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court
Trial Court No. 2012 TRD 01541
Judgment Reversed
Date of Decision: March 4, 2013
APPEARANCES:
Ilya Naumovich Zhovner, Appellant
Alexander N. Fowler for Appellee
Case No. 2-12-13
ROGERS, J.
{¶1} Defendant-Appellant, Ilya Naumovich Zhovner, appeals the judgment
of the Auglaize County Municipal Court finding him guilty of speeding. On
appeal, Zhovner contends that the following errors occurred throughout the course
of this matter: (1) the trial court erred when it accepted testimony of an unsworn
witness; (2) the trial court erred when it accepted testimony concerning the
officer’s visual estimation of the vehicle’s speed, operation of the laser speed
detector, as well as the calibration and handling of such device; (3) the trial court
erred when it accepted the reliability of the laser speed detector without expert
testimony; and (4) that the evidence presented at trial was insufficient to uphold
his conviction for speeding. Based on the following, we reverse the trial court’s
judgment.
{¶2} On the night of March 19, 2012, Officer Jason Barhorst observed a
vehicle which appeared to be traveling above the posted speed limit of 65 mph.
Officer Barhorst proceeded to take two measurements of the vehicle’s speed with
a laser speed detector. Based on these measurements, Officer Barhorst stopped the
vehicle, which was driven by Zhovner. Officer Barhorst cited Zhovner with
speeding in violation of R.C. 4511.21(D)(2).
{¶3} On June 1, 2012, the matter proceeded to a bench trial. Before the
State presented its case, Zhovner argued that pursuant to State v. Miko, 9th Dist.
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No. 07CA0018-M, 2008-Ohio-1991, the trial court could not take judicial notice
of the scientific reliability of the laser speed-measuring device used by Officer
Barhorst.
{¶4} The State’s first and only witness was Officer Barhorst. Officer
Barhorst testified that he is employed as an officer with the Ohio State Highway
Patrol (“OSHP”), and has been employed as an officer with the OSHP for five
years. On the night of March 19, 2012, Officer Barhorst was sitting stationary in
his patrol vehicle along I-75 near mile marker 114 in Auglaize County. Officer
Barhorst testified that shortly before midnight he observed a vehicle which
appeared to be traveling above the posted speed limit of 65 mph. Officer Barhorst
testified that he proceeded to measure the vehicle’s speed with an “Ultra[lyte]
laser number 11” (“Ultralyte laser”). Trial Tr., p. 5. Officer Barhorst testified that
the first reading returned a measured speed of 80 mph, while the second reading
returned a measured speed of 79 mph. Based on these readings, Officer Barhorst
stopped the vehicle and issued its driver, Zhovner, a citation for speeding.
{¶5} Officer Barhorst testified that he was trained and is currently certified
to operate the Ultralyte laser used to measure the speed of Zhovner’s vehicle.
Officer Barhorst testified that he tested the Ultralyte laser before he began his shift
on March 19, 2012, and that it was operating properly.
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{¶6} During the defense’s case-in-chief, Zhovner again argued, among
other things, that the trial court could not take judicial notice of the scientific
reliability of the Ultralyte laser. In addition to his arguments, Zhovner testified
that he had his cruise control set at 65 mph when he was stopped by Officer
Barhorst.
{¶7} On June 5, 2012, the trial court filed its judgment entry finding
Zhovner guilty of speeding in violation of R.C. 4511.21(D)(2). The trial court
ordered Zhovner to pay a fine of $35.00 and court costs, and assessed two points
to his Ohio driving record.
{¶8} It is from this judgment that Zhovner filed this timely appeal,
presenting the following assignments of error for our review.
Assignment of Error No. I
TO GIVE A TESTIMONY YOU HAVE TO BE SWORN IN,
THEREFORE THE TRIAL COURT ERRED TO THE
PREJUDICE OF THE APPELLANT BY ACCEPTING THE
TESTIMONY OF THE ONLY WITNESS, THE POLICE
OFFICER, WHO WAS NOT SWORN IN, SINCE NO
RECORD OF SUCH EVENT COULD BE FOUND IN THE
COMPLETE TRANSCRIPT OF THE PROCEEDINGS
CONDUCTED IN THAT COURT (TRANSCRIPT, ALL
PAGES).
Assignment of Error No. II
IN ITS DECISION, THE TRIAL COURT ERRED TO THE
PREJUDICE OF THE APPELLANT BY ACCEPTING AS
ADMISSIBLE A TESTIMONY OF THE POLICE OFFICER
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ON HIS ABILITY TO VISUALLY ESTIMATE THE SPEED
OF [sic] MOVING VEHICLE, OPERATION OF A LASER
MEASUREMENT DEVICE, CALIBRATION AND
HANDLING OF SUCH DEVICE, AND FOLLOWING THE
PROPER PROCEDURES REGARDING ACCURACY
TESTING, TAKING MEASUREMENTS, AND
VERIFICATION OF DEVICE’S PERFORMANCE, WHEN
THE WITNESS FAILED TO PRESENT ANY DOCUMENTED
PROOF OF HIS ABILITY TO VISUALLY ESTIMATE OF
[sic] THE SPEED OF THE MOVING VEHICLE IN THE
NIGHT CONDITIONS, BASED SOLELY ON VEHICLE
HEAD LIGHTS [sic], WHO FAILED TO PRESENT ANY
DOCUMENTED PROOF OF RECEIVING PROPER
TRAINING IN THE USE OF THE LASER DEVICE, WHO
FAILED TO PRESENT ANY DOCUMENTED PROOF OF
THAT DEVICE TO BE CERTIFIED AND IN PROPER
WORKING CONDITION, WHO FAILED TO TESTIFY
THAT HE EVER TESTED THE LASER DEVICE ON A
VEHICLE TRAVELING AT A KNOWN SPEED, WHO HAD
NO KNOWLEDGE OF MAINTENANCE LOGS FOR THE
LASER DEVICE IN QUESTION, WHO COULD NOT
FIRMLY TESTIFY ABOUT THE WHEREABOUTS OF A
DEVICE OPERATION MANUAL, IN THE ABSENCE OF
ANY JOURNAL ENTRIES, DEVICE DATA LOGS, DEVICE
CALIBRATION AND MAINTENANCE RECORD LOGS,
ABSENCE OF ANY VIDEO OR PHOTO EVIDENCE, IN
SPITE OF SEVERAL FACTUAL DISCREPANCIES
DISCOVERED DURING CROSS-EXAMINATION, JUST
BASED ON ASSUMPTION THAT A VERBAL TESTIMONY
IS SUFFICIENT TO PROVE THAT HE WAS QUALIFIED BY
TRAINING AND EXPERIENCE TO OPERATE THE LASER
DEVICE AND THAT THE DEVICE ITSELF WAS IN
PROPER WORKING CONDITION BEFORE AND AFTER
THE INCIDENT.
Assignment of Error No. III
IN ITS DECISION, THE TRIAL COURT ERRED TO THE
PREJUDICE OF THE APPELLANT BY RECOGNIZING “AS
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BEING RELIABLE” (JUDGMENT ENTRY, P. 2) THE
DEVICE, IDENTIFIED BY THE WITNESS AS AN “ULTRA
LIGHT LASER NUMBER 11” (TRANSCRIPT, P. 5, LINE 15)
ALLEGEDLY USED FOR MEASURING THE SPEED OF
DEFENDANT’S VEHICLE, IN THE COMPLETE ABSENCE
OF EXPERT TESTIMONY WITH RESPECT TO THE
DESIGN, METHOD OF OPERATION, RELIABILITY,
ACCURACY AND PERFORMANCE TESTING OF THE
ABOVE NAMED DEVICE IN REGARDS TO MEASURING
SPEED OF THE MOVING VEHICLE.
Assignment of Error No. IV
IN ITS DECISION, THE TRIAL COURT ERRED TO THE
PREJUDICE OF THE APPELLANT BY FINDING THAT
THERE WAS SUFFICIENT EVIDENCE TO DECLARE THE
DEFENDANT GUILTY. GIVEN THE ABOVE
ASSIGNMENTS OF ERROR, BOTH THE TESTIMONY OF
THE WITNESS AND THE ALLEGED LASER DEVICE
SPEED MEASUREMENT READINGS SHOULD HAVE NOT
BEEN ACCEPTED AS ADMISSIBLE, AND THEREFORE
THE TESTIMONY FAILED TO PROVE THE DEFENDANT
WAS SPEEDING.1
{¶9} Before we address the merit of Zhovner’s assignments of error, we
note that the State argues that this court may not consider two of the five exhibits
attached to Zhovner’s appellate brief. The first exhibit is a photograph which
purportedly depicts the front of Zhovner’s vehicle. The other exhibit is a copy of a
1
While Zhovner is a pro se litigant, we must nevertheless emphasize the proper form for an assignment of
error. Assignments of error must indicate the purportedly erroneous trial court judgment and provide a
concise statement of the assignment’s basis. Dieringer v. Sawmiller, 3d Dist. No. 2-12-04, 2012-Ohio-
4880, fn. 3, citing Russell v. United Missionary Baptist Church, 92 Ohio App.3d 736, 738 (12th Dist. 1994)
(describing the purposes of assignments of error and issues presented); Loc.R. 11(B) (“Assignments of
error * * * should be specifically applied to the error claimed.”). Zhovner’s four paragraph-long
assignments of error are clearly not concise and provide an extended outline of argument, which is neither
appropriate nor suggested. Future assignments of error should not be presented for our review in this
manner.
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manual for an Ultralyte 100 laser speed detector. The State contends that since
these exhibits were neither proffered nor admitted into evidence during trial this
court is precluded from considering the same.
{¶10} Conversely, Zhovner contends that the photograph and manual are
properly before this court. First, Zhovner argues that the photograph is properly
before this court because Officer Barhorst referred to the front of his vehicle
during trial. Second, Zhovner argues that the manual is properly before this court
because it was presented to Officer Barhorst during trial.
{¶11} App.R. 9 governs the record on appeal, and provides in relevant part:
The original papers and exhibits thereto filed in the trial court, the
transcript of proceedings, if any, including exhibits, and a certified
copy of the docket and journal entries prepared by the clerk of the
trial court shall constitute the record on appeal in all cases. App.R.
9(A)(1).
Evidence not made part of the record that is attached to an appellate brief cannot
be considered by a reviewing court. E.g., Deitz v. Deitz, 3d Dist. No. 14-11-06,
2012-Ohio-130, ¶ 8.
{¶12} Review of the record reveals that the photograph and manual were
not admitted into evidence during trial. The photograph does not become a part of
the record simply because Officer Barhorst referred to the front of Zhovner’s
vehicle during trial. With respect to the manual, mere presentation of the manual
during trial does not make it part of the record. See Prymas v. Byczek, 8th Dist.
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Case No. 2-12-13
No. 93470, 2010-Ohio-1754, ¶ 21 (despite reference to a lease agreement
throughout the hearing, the lease agreement was not part of the record on appeal
because it was not admitted into evidence). Since the manual was neither admitted
into evidence nor otherwise made part of the trial court record, it is, consequently,
not a part of the record on appeal. Accordingly, the photograph and manual
cannot and will not be considered on appeal.
{¶13} Turning our attention to Zhovner’s assignments of error, we elect to
address his third and fourth assignments of error first since we find them to be
dispositive of the matter.
Assignments of Error Nos. III & IV
{¶14} In his third and fourth assignments of error, Zhovner contends that
the trial court erred when it found the Ultralyte laser to be an accurate and reliable
device without hearing expert testimony concerning the accuracy and reliability of
the same. As a result, Zhovner argues that the evidence presented by the State was
insufficient to convict him of speeding. Conversely, the State argues that the trial
court properly took judicial notice of the Ultralyte laser’s accuracy and reliability,
and consequently did not error when it found the same to be an accurate and
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reliable device.2 We agree with Zhovner.
{¶15} To convict an individual of speeding based on a laser device, “there
must be evidence introduced at trial that the device is scientifically reliable.”3
State v. Starks, 196 Ohio App.3d 589, 2011-Ohio-2344, ¶ 21 (12th Dist.), citing
State v. Palmer, 1st Dist. No. C-050750, 2006-Ohio-5456, ¶ 10; see also State v.
Helke, 3d Dist. No. 8-07-04, 2007-Ohio-5483, ¶ 7 (to convict an individual for
speeding based on a radar device, the state must prove, among other things, that
the device was accurate and reliable), citing State v. Kirkland, 3d Dist. No. 8-97-
22 (Mar. 2, 1998).
{¶16} The scientific reliability of a particular speed-measuring device can
be established via expert testimony or judicial notice. State v. Everett, 3d Dist.
No. 16-09-10, 2009-Ohio-6714, ¶ 6, citing State v. Yaun, 3d Dist. No. 8-07-22,
2008-Ohio-1902, ¶ 12. In this matter, the State did not present any expert
testimony concerning the scientific reliability of the Ultralyte laser. Rather, the
trial court explicitly took judicial notice of the Ultralyte laser’s scientific
2
The State contends that we should overrule Zhovner’s fourth assignment of error because it does not
comply with Local Rule 11(A), which provides, in relevant part, that “[e]ach assignment of error must be
separately argued in the briefs unless the same argument, and no other, pertains to more than one
assignment of error.” While Zhovner could certainly have expounded upon his argument, we find, under
the circumstances of this matter, that Zhovner’s argument is sufficient and will be considered. Moreover,
our disposition of Zhovner’s third assignment of error naturally requires us to address the issue raised in his
fourth assignment of error, i.e., the sufficiency of the evidence. Accordingly, we find the State’s argument
unavailing.
3
Pursuant to R.C. 4511.091(C), which was in effect at the time Zhovner was cited for speeding, Officer
Barhorst’s visual estimation of Zhovner’s speed could not form the basis of his conviction.
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reliability. Therefore, we must determine whether the trial court properly took
judicial notice of the Ultralyte laser’s scientific reliability.
{¶17} Evid.R. 201(B) governs the trial court’s ability to take judicial notice
of adjudicative facts, and provides:
A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.
The scientific reliability of a particular speed-measuring device can be established
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.” Yaun at ¶ 12, citing City of Cincinnati v. Levine, 158 Ohio App.3d 657,
2004-Ohio-5992, ¶ 10 (1st Dist.). “However, the fact that a court in one
jurisdiction has taken judicial notice of a device’s accuracy cannot serve as the
basis for a court in another jurisdiction to take judicial notice.” Columbus v. Bell,
10th Dist. No. 09AP-1012, 2010-Ohio-2908, ¶ 14, citing Columbus v. Dawson,
10th Dist. No. 99AP-589 (Mar. 14, 2000); Levine at ¶ 8, citing State v. Doles, 70
Ohio App.2d 35 (10th Dist. 1980); see also State v. Colby, 14 Ohio App.3d 291,
291 (3d Dist. 1984) (judicial notice concerning the reliability of the K-55 radar
device was improper where neither the trial court nor any appellate court with
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jurisdiction over the trial court had previously found the K-55 radar to be
scientifically reliable).
{¶18} In its judgment entry, the trial court relied on three cases in taking
judicial notice of the scientific reliability of the Ultralyte laser, to wit: East
Cleveland v. Ferell, 168 Ohio St. 298 (1958); Cleveland v. Tisdale, 8th Dist. No.
89877, 2008-Ohio-2807; and, Upper Arlington v. Limbert, 138 Ohio Misc.2d 30,
2005-Ohio-7159 (M.C.). None of these cases, however, provide a basis for the
trial court to take judicial notice of the scientific reliability of the Ultralyte laser
used by Trooper Barhorst.
{¶19} In Ferell, the defendant was cited for speeding after a stationary
radar device indicated that he was traveling 17 mph over the posted speed limit.
The radar device measured the vehicle’s speed using the Doppler effect. On
appeal, the Ohio Supreme Court affirmed the defendant’s conviction, stating that
“[w]hile it is agreed that every reasonable doubt about the accuracy of new
developments [in speed-measuring devices] should promptly be resolved against
them in the absence of expert evidence, there is no longer any such doubt
concerning radar.” Ferell at 302. Accordingly, the court held that “readings of a
radar speed meter may be accepted in evidence, * * * without the necessity of
offering expert testimony as to the scientific principles underlying them.” Id. at
303.
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{¶20} Since Ferell, however, appellate courts have repeatedly determined
that Ferell’s holding is limited to stationary radar devices that measure a vehicle’s
speed using the Doppler effect. See State v. Mansour, 12th Dist. No. CA2010-08-
198, 2011-Ohio-4339, ¶ 26 (finding that the holding in Ferell was limited to
stationary radar devices that measure a vehicle’s speed using the Doppler effect);
Yaun, 2008-Ohio-1902, at ¶ 11 (implicitly recognized finding that the holding in
Ferell was limited to stationary radar devices that measure a vehicle’s speed using
the Doppler effect); State v. Wilcox, 40 Ohio App.2d 380, 384 (10th Dist. 1974)
(finding that the holding in Ferell did not extend to moving radar devices that
measure a vehicle’s speed using the Doppler effect). Consequently, we find that
the trial court erred when it relied on Ferell, since Officer Barhorst used a laser
device to measure the speed of Zhovner’s vehicle. As such, Ferell cannot be a
basis to take judicial notice of the scientific reliability of the Ultralyte laser.
{¶21} In Tisdale, the defendant argued that the evidence was insufficient to
support his conviction for speeding because the state did not present any evidence
concerning the scientific reliability of the Genesis radar device used to measure his
vehicle’s speed. Following authority from other state courts, the court disagreed
and concluded that “expert testimony is no longer required to establish the general
reliability of radar or laser devices that are used to determine speed.” Tisdale,
2008-Ohio-2807, at ¶ 18.
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{¶22} Upon consideration, we find that the trial court erred in relying on
Tisdale. First, Tisdale is distinguishable from this matter. The speed
measurement device in Tisdale was a radar device not a laser device. Given this
manifest difference, we decline to follow Tisdale. Furthermore, we question the
propriety of Tisdale’s holding concerning the scientific reliability of radar and
laser speed measurement devices. Particularly, we question whether it was
appropriate to take judicial notice of all laser speed measurement devices when the
device at issue was a radar device. Given this reservation, we are further
disinclined to follow Tisdale.
{¶23} Second, the Eighth District Court of Appeals recently referred to
Tisdale as an “outlier” with respect to its holding concerning the reliability of
radar and laser speed-measuring devices. Beachwood v. Joyner, 8th Dist. No.
98089, 2012-Ohio-5884, ¶ 13. We agree with this assessment, especially in light
of the prevailing case law which still requires expert testimony to establish the
scientific reliability of a particular speed measurement device where judicial
notice of the same is improper. Id. at ¶ 15; Starks, 196 Ohio App.3d 589, 2011-
Ohio-2344, ¶ 21-25; New Middletown v. Yeager, 7th Dist. No. 03 MA 104, 2004-
Ohio-1549, ¶ 9-11; Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, ¶ 10-11;
Dawson, 10th Dist. No. 99AP-589; Colby, 14 Ohio App.3d at 291. For these
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reasons, Tisdale cannot be a basis to take judicial notice of the scientific reliability
of the Ultralyte laser.
{¶24} In Limbert, the trial court heard expert testimony concerning the
scientific reliability of the “Ultralyte LTI 20/20 laser speed detector” and found
the same to be reliable. Id. at ¶ 2, 6. Limbert, however, was decided in a different
jurisdiction, and therefore cannot serve as the basis for the trial court to take
judicial notice of the scientific reliability of the Ultralyte laser. Bell, 2010-Ohio-
2908, at ¶ 14.
{¶25} Even if the trial court could take judicial notice of the finding in
Limbert, doing so would not support the trial court’s determination that the
Ultralyte laser is scientifically reliable. Particularly, there is no evidence that the
Ultralyte laser used in this matter is an “Ultralyte LTI 20/20.” In fact, Officer
Barhorst testified that he used an “Ultra[lyte] laser number 11” to measure the
speed of Zhovner’s vehicle. Trial Tr., p. 5. Without evidence that the laser used
in this matter is the same as or operated similarly to the laser in Limbert, it would
be inappropriate for the trial court to take judicial notice of the finding in Limbert.
Compare Yaun, 2008-Ohio-1902, at ¶ 18-19 (trial court did not err in taking
judicial notice of the scientific reliability of the Python II radar device when it had
previously taken judicial notice of the scientific reliability of the K-55 radar device
and heard testimony that the Python II and K-55 radars operate using the same
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Doppler effect principle) with State v. Freed, 10th Dist. No. 06AP-700, 2006-
Ohio-6746, ¶ 18-19 (previous Franklin County Municipal Court decision finding
the “LTI 20/20 laser speed detector” to be scientifically reliable did not provide
sufficient grounds to support judicial notice of the accuracy and reliability of an
unidentified laser speed detector). Given the foregoing, Limbert cannot be a basis
to take judicial notice of the scientific reliability of the Ultralyte laser.
{¶26} Upon review, we find that the trial court erred when it took judicial
notice of the scientific reliability of the Ultralyte laser used by Officer Barhorst.
First, there are no reported decisions from the Auglaize County Municipal Court
finding the Ultralyte laser or any other laser speed-measuring device that operates
via the same scientific principles to be scientifically reliable. See Yaun at ¶ 18 (“It
is the scientific principle underlying a device’s reliability and not the reliability of
[a] specific model that renders judicial notice proper.”), citing State v. Wiest, 1st
Dist. No. C-070609, 2008-Ohio-1433, ¶ 12. Second, this court has neither found
the Ultralyte laser nor any other laser speed-measuring device that operates via the
same scientific principles to be scientifically reliable. Similarly, the Ohio
Supreme Court has neither found the Ultralyte laser nor any other laser speed-
measuring device that operates via the same scientific principles to be
scientifically reliable. Finally, there is no evidence that the trial court has
previously heard expert testimony concerning the reliability of the Ultralyte laser
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and found the same to be scientifically reliable. In fact, the trial court’s judgment
entry explicitly states that it “has not received expert testimony as to the reliability
of [the Ultralyte laser used by Officer Barhorst].” (Docket No. 18, p. 2). Given
the foregoing, we find that the trial court erred when it took judicial notice of the
scientific reliability of the Ultralyte laser used by Trooper Barhorst .
{¶27} Given the foregoing, we find that the State presented insufficient
evidence to convict Zhovner of speeding. As previously discussed, there must be
evidence introduced at trial that the speed measurement device is scientifically
reliable in order to convict an individual of speeding. The scientific reliability of a
particular speed measurement device may be established via expert testimony or
judicial notice. Here, there was no expert testimony concerning the scientific
reliability of the Ultralyte laser and the trial court, as previously discussed, erred
when it took judicial notice of the scientific reliability of the Ultralyte laser. As a
result, the evidence presented at trial was insufficient to convict Zhovner of
speeding.
{¶28} Accordingly, we sustain Zhovner’s third and fourth assignments of
error.
Assignments of Error Nos. I & II
{¶29} In his first and second assignments, Zhovner contends that the trial
court erred when it accepted Officer Barhorst’s unsworn testimony and when it
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accepted Officer Barhorst’s testimony concerning his ability to operate the
Ultralyte laser, respectively. Given our disposition of Zhovner’s third and fourth
assignments of error, we find his first and second assignments of error to be moot
and we decline to address them. App.R. 12(A)(1)(c).
{¶30} Having found error prejudicial to Zhovner herein, in the particulars
assigned and argued in his third and fourth assignments of error, we reverse the
judgment of the trial court.
Judgment Reversed
PRESTON, P.J. and SHAW, J., concur in Judgment Only.
/jlr
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