State v. Barnes ( 2010 )

[Cite as State v. Barnes, 2010-Ohio-987.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO, CASE NO. 2-09-23
PLAINTIFF-APPELLEE,
v.
JASON BARNES, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court
Trial Court No. 09-TRD-01447
Judgment Affirmed
Date of Decision: March 15, 2010
APPEARANCES:
Jason Barnesfor Appellant
Edwin A. Pierce for Appellee
Case No. 2-09-23
SHAW, J.
{¶1} Defendant-appellant, Jason L. Barnes, appeals the July 10, 2009
judgment of the Auglaize County, Ohio Municipal Court, finding him guilty of
speeding, eighty-four miles per hour in a sixty-five miles per hour zone, in
violation of 4511.21(D)(2), and ordering him to pay a fine of $35.00, to pay court
costs, and to be assessed two points on his driver’s license.
{¶2} The facts relevant to this appeal are as follows. On March 17, 2009,
at approximately 2:52 p.m. Barnes was traveling on Interstate 75 in Auglaize
County, Ohio, near the exit for U.S. Highway 33. At this time, Trooper Pilot
Darwin Justice, Jr., of the Ohio State Highway Patrol (“OSHP”), Aviation
Department, was performing speed enforcement in the area through the use of an
OSHP airplane.
{¶3} Trooper Pilot Justice noticed a white vehicle traveling in a marked
one-mile section of the roadway between mile markers 108 and 109. This marked
one-mile section was further divided into quarters, which were marked by white
epoxy transfer mats. The pilot did not notice the white vehicle until it was
approximately half-way into the first marked quarter. When the white vehicle
entered the second marked quarter, the pilot began timing the vehicle until it
entered the third marked quarter and then also timed the vehicle through the third
and fourth marked quarters. Using the time-speed-distance math formula, the pilot
-2-
Case No. 2-09-23
determined the speed of the white vehicle to be eighty-four miles per hour in both
the second and third quarters of the mile and seventy-seven miles per hour in the
fourth quarter.
{¶4} Upon observing the white vehicle to be speeding, Trooper Pilot
Justice called Trooper Michael Keaton, who was stationary in a marked patrol car
on the berm of the roadway at mile marker 110, to prepare him to stop the white
vehicle. Trooper Keaton exited his vehicle upon being informed by the pilot that
the white car was coming towards him. Trooper Keaton, using hand signals,
ordered the white vehicle to pull over, which it did. The pilot then told Trooper
Keaton that he had stopped the correct vehicle and that the vehicle was traveling at
eighty-four miles per hour at 2:52 p.m. At the time of the stop, Barnes was
driving the white vehicle at issue.
{¶5} Trooper Keaton issued a traffic citation to Barnes for speeding. This
citation was filed in the Auglaize County Municipal Court on March 18, 2009, and
Barnes, pro se, entered a written plea of not guilty that was filed on March 24,
2009. A telephonic pre-trial was conducted on April 7, 2009,1 and the matter was
scheduled for a bench trial to commence on May 8, 2009. On May 8, 2009, a
letter to the court from Barnes, dated May 1, 2009, was filed in the case. This
1
Barnes lives in the State of Kentucky.
-3-
Case No. 2-09-23
letter requested the court’s assistance in obtaining certain items in discovery from
the prosecution. That same date, the court conducted Barnes’ bench trial.
{¶6} No oral motions were made to the court on the record prior to the
commencement of the trial. The prosecution presented the testimony of Trooper
Pilot Justice and Trooper Keaton and introduced one exhibit, the pilot’s aviation
enforcement report that contained his notes about the vehicle speeds he checked
on the day of Barnes’ citation. These witnesses were also subjected to cross-
examination by Barnes.
{¶7} At the conclusion of the State’s evidence, Barnes testified on his
own behalf. During his testimony, Barnes testified that his employer uses a global
positioning system (“GPS”) through his Verizon Wireless cellular phone, which
provides his location and his speeds while traveling for his employer and alerts his
employer if he drives in excess of the posted speed limit. Barnes introduced nine
exhibits in support of this testimony. Specifically, Barnes testified that
Defendant’s Exhibits 1-6 were documents downloaded from the internet from the
GPS provider that reflect the speeds and path of travel for him from 2:46 p.m.-
2:54 p.m.,2 on the day in question, which showed his rate of speed was not in
excess of the posted speed limit as testified to by Trooper Pilot Justice. These
documents show his speeds as follows: 2:46 p.m. – 57 mph; 2:48 p.m. – 50 mph;
2
The actual times on these documents are from 1:46 p.m.-1:54 p.m. However, Barnes testified, and the
documents reflect, that these were times for the Central Time Zone, which is the time zone in which his
employer operates.
-4-
Case No. 2-09-23
2:50 p.m. – 44 mph; and 2:52 p.m. – 50 mph. The other three exhibits introduced
by Barnes were internet downloads from Wikipedia that discussed some aspects of
GPS. Barnes presented no other witnesses.
{¶8} The court asked questions of Barnes regarding the GPS documents,
some of which Barnes could not fully answer and some of which he had to
speculate as to the answer. The court retained Barnes’ exhibits and told him that
the court was desirous of knowing more about the program and was willing to
conduct some research to determine whether he could consider Barnes’ exhibits.
The prosecutor objected to the admission of these exhibits because Barnes did not
present any evidence regarding the accuracy of the information, the
equipment/program used to determine the speeds, the calibration of any equipment
used to determine the speeds, and the scientific reliability of the
equipment/program.
{¶9} The court took the matter under advisement. On May 12, 2009, the
court filed an entry allowing Barnes until May 26, 2009, to submit the manual for
the GPS to help enable the court to interpret Barnes’ exhibits. On May 15, 2009,
Barnes filed a motion to dismiss his case because the prosecutor failed to provide
him with (1) a copy of the video from the ground trooper’s cruiser, which he
maintained would show that there were other cars in the area that matched the
description of his car and would provide the audio of the conversation between the
-5-
Case No. 2-09-23
pilot and the ground patrol, and (2) the ground trooper’s notes/log that would show
the tickets he gave to other motorists that day. This motion was overruled later
that same day.
{¶10} On July 10, 2009, the trial court rendered its decision in writing. In
this entry, the court noted that it had permitted Barnes to submit further
documentary evidence to explain the information contained in his exhibits but that
Barnes did not do so, and the court noted that it was not able to obtain any other
documentary evidence. Thus, the court found that Barnes had failed to support the
technology upon which he was relying to refute that he was speeding.3 The court
then found Barnes guilty of speeding as charged in his citation. This appeal
followed, and Barnes now asserts three assignments of error.
ASSIGNMENT OF ERROR I
TRIAL COURT ERRORED [sic] BY DENYING THE
DEFENDANT THE PROMISED CHANCE TO GIVE
CLOSING ARGUMENTS (SUMMATION), BUT ALLOWED
ONLY THE PROSECUTION THE CHANCE TO GIVE
THEIR CLOSING ARGUMENTS.
ASSIGNMENT OF ERROR II
TRIAL COURT ERRORED [sic] BY MAKING DECISION
BASED ON EXPERIMENTS/OBSERVATIONS NOT
3
The record contains a compact disc, purportedly supplied by Barnes on an unknown date. On this disc are
a letter to the court, with Barnes’ cellular phone account information, and the manual for the GPS. The
court noted in a separate entry on July 17, 2009, that it received this information and considered it in
reaching its decision. The court also noted that it contacted the GPS provider for additional information, as
suggested in Barnes’ letter, but was unable to obtain any further information.
-6-
Case No. 2-09-23
ENTERED INTO EVIDENCE BY EITHER PROSECUTION
OR DEFENSE.
ASSIGNMENT OF ERROR III
CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶11} For ease of discussion, we elect to address these assignments of error
out of the order in which they appear.
Third Assignment of Error
{¶12} In his third assignment of error, Barnes maintains that his conviction
was against the manifest weight of the evidence. Specifically, Barnes asserts that
the prosecution lacked evidence particular to his citation, having only put forth
evidence regarding speeding citations in general. He further contends that it
would have been quite easy for the pilot to have erred because the pilot was
performing a number of tasks simultaneously. He also maintains that his GPS
evidence was easy to understand, did not need an expert to explain it, and
conclusively established he was not speeding.
{¶13} An appellate court’s function when reviewing the weight of the
evidence is to determine whether the greater amount of credible evidence supports
the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 1997-
Ohio-52. In reviewing whether the trial court’s judgment was against the weight
of the evidence, the appellate court sits as a “thirteenth juror” and examines the
-7-
Case No. 2-09-23
conflicting testimony. Id. In doing so, this Court must review the entire record,
weigh the evidence and all of the reasonable inferences, consider the credibility of
witnesses, and determine whether in resolving conflicts in the evidence, the
factfinder “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. Andrews,
3rd Dist. No. 1-05-70, 2006-Ohio-3764, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175, 485 N.E.2d 717; Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541. Further, we must be mindful that the credibility to be afforded the testimony
of the witnesses is to be determined by the trier of fact. State v. Dye, 82 Ohio St.3d
323, 329, 695 N.E.2d 763, 1998-Ohio-234; State v. Frazier, 73 Ohio St.3d 323,
652 N.E.2d 1000, 1995-Ohio-235.
{¶14} In order to prove the allegations contained in the citation, the State
had to show beyond a reasonable doubt that on or about March 17, 2009, Barnes
operated a motor vehicle upon a freeway in Auglaize County, Ohio, “[a]t a speed
exceeding sixty-five miles per hour[.]” See R.C. 4511.21(D)(2). As previously
noted, in its case-in-chief, the State presented the testimony of Trooper Pilot
Justice. He testified that he has been in the aviation department since April of
2005. He then explained in detail how he detects the speed of vehicles from his
aircraft through the use of two calibrated stop watches, a one-mile portion of the
roadway that is marked by white epoxy mats by the Ohio Department of
-8-
Case No. 2-09-23
Transportation through the use of survey equipment and is further divided into
quarters by these same type of mats, and application of the time-speed-distance
math formula. Once the pilot is able to ascertain the unlawful speed of a particular
vehicle, he then contacts law enforcement on the ground to stop the vehicle. He
observes the stopped vehicle to ensure that the ground unit has stopped the correct
vehicle and then informs the ground unit of the speed of the vehicle and the time
the speed was detected. The ground unit then issues the citation to the driver.
{¶15} As for the calibration of his watches, Trooper Pilot Justice testified
that on or about the fifteenth day of each month, his watches are timed for two
minutes using an audible signal from Station WWB in Fort Collins, Colorado, that
is in timing with the atomic clock at the Naval Observatory in Washington, D.C.,
which he stated is the most accurate time keeping device in the world. He then
ensures that the two watches are within 1/10 of one second of each other. He also
performs a comparison calibration check at the beginning and end of each
enforcement day by timing his watches for a certain time frame, giving him a
certain speed, and compares that to a comparison calibration chart to ensure that
the elapsed time shown is the speed that it should be.
{¶16} The pilot testified that in Barnes’ case, on the day in question, he
first observed a white vehicle, later determined to be driven by Barnes, half-way
through the first marked quarter-mile section. As this vehicle entered the second
-9-
Case No. 2-09-23
quarter-mile section, meaning the moment the front bumper/grill portion of the
white vehicle met the second white epoxy mat, he began timing the vehicle with
his two stop watches. At the end of the second section, the pilot noted that 10.68
seconds had elapsed, giving him a speed of eighty-four miles per hour. He also
timed the vehicle through the third and fourth quarters, ascertaining the elapsed
time at 10.66 seconds and 11.61 seconds, respectively, giving him speeds of
eighty-four miles per hour for the third quarter and seventy-seven miles per hour
for the fourth quarter. The pilot also testified that he visually observed that
Barnes’ vehicle was traveling in excess of sixty-five miles per hour. He further
testified that the traffic was light to moderate and that there were no other similar
vehicles in the area, specifically no white vehicles with the exception of the OSHP
cruisers that were assisting him.
{¶17} Once Trooper Keaton stopped Barnes’ vehicle, Trooper Pilot Justice
confirmed that this was the correct vehicle and supplied Trooper Keaton with the
time of the violation and the speed. The pilot also wrote the elapsed times and
speed determinations for each quarter, a description of the vehicle, the lane of
travel of the vehicle, and the time of the violation on his aviation enforcement
report, which was admitted as State’s Exhibit 1. This report also reflects that a
comparison calibration check was performed at 8:00 a.m. and again at 3:30 p.m.
on March 17, 2009. Trooper Pilot Justice also testified that he was positive that
-10-
Case No. 2-09-23
the vehicle he determined was speeding was the vehicle stopped by Trooper
Keaton, which was the vehicle driven by Barnes.
{¶18} Trooper Keaton’s testimony corroborated the pilot’s testimony as to
the communications between the two regarding the stop of Barnes. Trooper
Keaton also identified Barnes as the driver of the white vehicle that Trooper Pilot
Justice stated was traveling eighty-four miles per hour. Trooper Keaton further
testified that the posted speed limit for that portion of the highway was sixty-five
miles per hour and that the offense occurred in Auglaize County, Ohio.
{¶19} To the contrary, Barnes testified that his speed was detected through
his Verizon Wireless cellular phone. He testified that his employer utilizes a GPS
program to detect the location and speed of its employees when traveling through
their cellular phones and that this program actually sends alerts to his employer if
one of its employees is speeding. As previously noted, he submitted downloaded
documents regarding his speed and location when the troopers stopped him on
March 17, 2009. These documents reflected a rate of speed of fifty miles per hour
at the time the troopers purported that he was traveling at eighty-four miles per
hour. However, Barnes did not have an independent recollection of his speed at
that time. In addition, Barnes testified that the GPS provided the average of his
speed over a two-minute time frame. In other words, the GPS did not give his
specific speed at a specific time, but an average speed over two minutes.
-11-
Case No. 2-09-23
{¶20} Further, Barnes presented no evidence from a person with personal
knowledge regarding how the GPS calculates speed, whether there is any type of
calibration of the equipment used to detect speed, whether the methods employed
by his particular company to detect speed are scientifically reliable, or the
accuracy of the GPS’ speed detection. To the contrary, Barnes only offered a
download from Wikipedia about some aspects of GPS and his opinion that the
company providing this service expended a substantial amount of money into
research and development and that those controlling this program have “more
training, more expertise than either of these two (2) officers have.” As for the
compact disc submitted by Barnes after the conclusion of the trial to assist the
court in interpreting his exhibits, the manual contained on the disc provides little
to no helpful information in determining the method by which the speed
calculations are made or the reliability thereof.
{¶21} Given all of the evidence, we find that the credible evidence clearly
supports the trial court’s judgment that Barnes was traveling in excess of sixty-five
miles per hour on Interstate 75, a freeway, on March 17, 2009, in Auglaize
County, Ohio. As such, we cannot find that the trial court, acting as the factfinder
in this case, clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. Therefore, the third
assignment of error is overruled.
-12-
Case No. 2-09-23
Second Assignment of Error
{¶22} Barnes asserts in his second assignment of error that the trial court
impermissibly considered evidence outside of what was presented at trial. More
specifically, Barnes maintains that the following statement in the court’s judgment
entry was an improper attempt to “fill the holes in the prosecution’s lack of
evidence”:
The Court finds that the speeds indicated by the GPS program
do not even match what the testimony of the defendant would
indicate as to his speed while on I 75. The defendant claimed
that he was not speeding due to the fact that he was caught up
with truck traffic on I 75 but it would be highly unusual for
truck traffic in good weather to be traveling at speeds as slow as
those indicated by the GPS system.
Barnes likens this statement to a juror who conducts an experiment to aid in the
deliberation of a case.
{¶23} Barnes is correct that factfinders are not permitted to consider
outside influences, such as communications with others not serving in the same
factfinder capacity and independent experiments, about the matter at trial. See
State v. Kehn (1977), 50 Ohio St.2d 11, 361 N.E.2d 1330; State v. Spencer (1997),
118 Ohio App.3d 871, 873-874, 694 N.E.2d 161; State v. King (1983), 10 Ohio
App.3d 161, 165, 460 N.E.2d 1383. However, not every such instance requires
reversal, as the outside influence must have been prejudicial; i.e. materially
affected a defendant’s substantial rights. King, supra.
-13-
Case No. 2-09-23
{¶24} Here, the statement by the trial court did not reflect that the court
had conducted any outside experiment or improperly considered evidence outside
the record. Rather, the court was addressing Barnes testimony that he believed he
was caught behind truck traffic, which could possibly explain why he was
traveling at a speed of only fifty miles per hour on the interstate. The court did not
indicate that this scenario was impossible but merely that it was highly unlikely
given the weather conditions and the type of roadway. Thus, the court was not
considering “outside evidence.”
{¶25} Furthermore, even assuming arguendo that the court was improperly
considering outside evidence, a reversal of his conviction is not warranted. Given
the testimony of the two troopers and the lack of any evidence as to the reliability
of Barnes’ exhibits, the court’s consideration of the unlikelihood of truck travel at
a low rate of speed for the interstate was harmless. Thus, the second assignment
of error is overruled.
First Assignment of Error
{¶26} In his first assignment of error, Barnes contends that his conviction
should be reversed because the trial court failed to allow him to present a closing
argument. The United States Supreme Court has held that a statute permitting a
trial judge to deny a criminal defendant closing argument denies “the basic right of
the accused to make his defense” in violation of the Sixth Amendment of the
-14-
Case No. 2-09-23
United States Constitution. Herring v. New York (1975), 422 U.S. 853, 859, 95
S.Ct. 2550. Thus, a trial court is not permitted to totally deny a criminal defendant
the opportunity to present a closing argument whether his trial is to a jury or to the
bench. Id., see also, e.g., State v. McCausland, 124 Ohio St.3d 8, 918 N.E.2d 507,
2009-Ohio-5933, at ¶ 6. However, the right to present a closing argument may be
waived. Id. at ¶ 7, citing Yopps v. State (1962), 228 Md. 204, 207, 178 A.2d 879.
Recently, the Ohio Supreme Court held that such a waiver need not be express,
intentional, and voluntary. McCausland, 2009-Ohio-5933, ¶¶ 8-10. Rather, “[a]
criminal defendant waives the Sixth Amendment right to present a closing
argument when he or she neither requests a closing argument nor objects to its
omission.” Id. at syllabus.
{¶27} In the case sub judice, Barnes represented himself and testified on
his own behalf. After the State cross-examined him, Barnes continued his
testimony, in effect conducting a re-direct examination in narrative form. The
court then began asking questions of Barnes concerning his GPS documents.
After answering these questions of the court, the following discussion occurred:
BARNES: Your honor will I have chance to address the court
also as we get down, I mean aside from own testimony or, I do or
[sic]?
BECKETT [the prosecutor]: You have a chance to summarize
in closing arguments.
COURT: Mm huh.
-15-
Case No. 2-09-23
BECKETT: But not through testimony.
COURT: Do you have anything else that you want to testify
here here [sic] to today?
Barnes then proceeded to provide what can only be described as an argument. For
instance, Barnes made statements to discredit the troopers’ testimony, commented
on how the GPS was much more accurate than “the skeptical way” the troopers
testified, discussed his pre-trial conversations with another prosecutor who he
maintained only wanted to offer a plea rather than hearing Barnes’ evidence,
commented on the prosecutor’s motives in this case, and then began to state what
he might do if he were ever to be seated as a juror in the future. This last
statement prompted the trial court to admonish Barnes about implying that he
would act improperly if seated as a juror or refuse to sit on a jury because of his
current case.
{¶28} After this statement by Barnes, the trial court then asked the State:
“Anything the state wants to present as to closing argument, well do you have
rebuttal testimony?” The prosecutor then informed the court that she did not
intend to present rebuttal testimony and proceeded with her closing argument.
After the prosecutor’s summation, the court informed the parties that it would take
the matter under advisement, discussed how it would have to research the issue
concerning the GPS, and then told Barnes that it had been informed that he was
-16-
Case No. 2-09-23
discussing his case on a local radio station and that this was “probably not
appropriate.” The court specifically stated that it did not know what exactly the
conversation was about or what Barnes’ impression of Auglaize County Municipal
Court was but that fines ordered from citations were dispersed to many different
agencies and that the court did not base its decisions on monetary gain to the
county. The court then informed the parties that it would “probably be a couple of
weeks” before a decision was rendered. At this point, Barnes stated: “I’m sorry I
don’t mean to interrupt.” The court then stated that it needed to let some of the
people in the courtroom leave and that it would let everyone know of its decision.
Both the prosecutor and Barnes thanked the court and the matter was adjourned.
{¶29} Barnes contends that his statement, “I’m sorry I don’t mean to
interrupt[,]” was his attempt to request closing argument, having been informed by
the prosecutor and the court that he would have the opportunity to address the
court after his testimony. Thus, he maintains that he did not waive closing
argument. We disagree with Barnes in two respects.
{¶30} First, while Barnes did ask if he would be allowed to address the
court after concluding his testimony, he did not subsequently request to be heard
in summation. Instead, he proceeded to provide the court with his interpretation of
the evidence presented by both the State and himself, to comment on the reliability
of the evidence, and to challenge the motives of the State and its witnesses. As
-17-
Case No. 2-09-23
previously noted, nothing in the “testimony” he provided after being asked if had
any additional testimony could be described as evidence. To the contrary, it was
an argument about the evidence that had been introduced for both parties. Thus,
although Barnes was not specifically told at a certain point that he could be heard
in summation, the trial court actually heard his summation of the evidence.
Accordingly, he was not totally denied of the opportunity for final argument as
Herring prohibits.
{¶31} Second, Barnes’ attempt to interrupt the trial court as it informed the
parties that it was taking the matter under advisement did not evidence his request
to be heard in closing argument. Rather, he could have been attempting to
interject in any number of ways. For instance, in his brief to this Court, Barnes
asserts that during the trial, the court did not permit him to make a motion to
dismiss his case or to address what he perceived to be discovery violations by the
State.4 Thus, he may have intended to move to dismiss the case, to discuss the
evidence he sought from the State, or to otherwise address the motion he filed with
the court the morning of his trial regarding discovery. This Court is not permitted
to simply guess at what objections, requests, and/or statements Barnes may have
4
Barnes maintains that the State did not provide him with a copy of the video from Trooper Keaton’s
cruiser. He asserts that this video shows that there was only one patrol car in the area, as opposed to cars,
plural, as testified to by Trooper Pilot Justice. Thus, he maintains that what the pilot thought was an
additional patrol car was most likely another white vehicle, which would have been the actual vehicle that
was speeding rather than him. The record contains no cruiser video and the transcript of the trial in this
matter does not reflect that a video was introduced. Moreover, Barnes has not shown that a video of the
incident even exists. Therefore, this Court is unable to address this aspect of Barnes’ argument.
-18-
Case No. 2-09-23
intended to make. Therefore, we do not find that this statement amounts to a
request for closing argument or an objection to what he perceived was the trial
court’s omission of his closing argument. By not stating anything specifically on
the record, Barnes waived his right to closing argument.
{¶32} In addition, there is no plain error in this case because, similar to
McCausland, there is no indication that the outcome of this trial would have been
different had a closing argument been made. See McCausland, 2009-Ohio-5933,
at ¶ 15, citing State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, 2002-Ohio-
68; Crim.R.52(B). As previously noted, there were only three witnesses, the
issues were simple, and the trial was brief. Accordingly, even applying a plain-
error analysis, we would find nothing in the record to indicate that the outcome of
Barnes’ bench trial would have been different had he presented a closing argument
when prompted by the court rather than on his own accord. Thus, the first
assignment of error is overruled.
{¶33} For all of these reasons, the judgment of the Municipal Court of
Auglaize County, Ohio, is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J., and ROGERS, J., concur.
/jnc
-19-