Beachwood v. Joyner , 2012 Ohio 5884 ( 2012 )

[Cite as Beachwood v. Joyner, 2012-Ohio-5884.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98089
CITY OF BEACHWOOD
PLAINTIFF-APPELLEE
vs.
BECKY JOYNER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Shaker Heights Municipal Court
Case No. 11 TRD 07641
BEFORE: Boyle, P.J., Jones, J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 13, 2012
FOR APPELLANT
Becky Joyner, pro se
16616 Stockbridge Avenue
Cleveland, Ohio 44128
ATTORNEYS FOR APPELLEE
Thomas Greve
Chief Prosecutor
City of Beachwood
2700 Richmond Road
Beachwood, Ohio 44122
Shana A. Samson
Rademaker, Matty, Henrikson & Greve
55 Public Square
Suite 1775
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Becky Joyner, appeals her traffic conviction for
speeding. In her three assignments of error, Joyner challenges the verdict as not being
supported by sufficient evidence because the state failed to offer (1) expert testimony as
to the reliability of the radar unit used to track her speed, or (2) proof of the officer’s
certification to use the radar device. Finding merit to the appeal, we reverse.
Traffic Citation and Bench Trial
{¶2} On August 16, 2011, Joyner was cited for a violation of Beachwood
Codified Ordinances (“B.C.O.”) 434.03(b)(3) after Beachwood police officer Aaron Lieb
clocked her traveling at 57 m.p.h. in a 35 m.p.h. zone on Harvard Road.
{¶3} Joyner pleaded not guilty to the charge, and the matter proceeded to a bench
trial where the following evidence was presented.
{¶4} Officer Lieb testified that he was patrolling the area from Green Road
southbound onto Harvard Road eastbound when he observed a vehicle that was traveling
westbound at “a high rate of speed” around 1:00 in the afternoon. Office Lieb then
activated his Kustom Pro-1000 radar unit — a unit that allows him to track the speed of a
moving vehicle while his vehicle is moving.
{¶5} Officer Lieb further testified that he determined through his radar unit that
the vehicle was traveling at a rate of 57 m.p.h. According to Officer Lieb, the radar unit
not only displays the speed of the vehicle being tracked but it also emits an audible tone
in response if the vehicle being tracked exceeds 55 m.p.h. Based on the audible tone
and the initial reading, Officer Lieb continued to track the vehicle as it passed his police
car to ensure that “the radar was not picking up some other vehicle speed.” Officer Lieb
testified that, during this time, there were no other vehicles in between Officer Lieb’s
police car and the speeding vehicle. Officer Lieb further testified that he was located
approximately three or four miles away. Officer Lieb then made a U-turn, followed the
vehicle, and ultimately activated his lights, pulling the vehicle over. Officer Lieb further
stated, however, that a second car was next to Joyner’s vehicle at the time that he finally
activated his lights.
{¶6} Upon being pulled over, Joyner denied that she was speeding. Officer
Lieb nevertheless issued Joyner a citation for speeding.
{¶7} The trial court ultimately found that the city met its burden and found
Joyner guilty of the traffic offense. The court fined Joyner $44 and ordered her to pay
court costs.
{¶8} Joyner appeals, raising three assignments of error.
Sufficiency of the Evidence and Expert Testimony
{¶9} To convict Joyner of the underlying offense of speeding, it was required for
the city to prove beyond a reasonable doubt that Joyner was traveling at a speed greater
than 35 m.p.h. See B.C.O. 434.03(b)(3).
{¶10} In her first assignment of error, Joyner argues that there was insufficient
evidence to convict her. Related to this same point, she argues in her second assignment
of error that the trial court erred in finding her guilty of speeding when the city failed to
produce expert testimony as to the accuracy of the radar unit used by Officer Lieb. She
attacks the trial court’s taking judicial notice of the scientific reliability of the Kustom
Pro-1000 radar device without having heard any expert testimony as to its construction
and operation.
A. Judicial Notice of the Scientific Accuracy and Reliability
{¶11} The city counters that the trial court’s taking judicial notice in and of itself is
sufficient to establish the reliability of the moving radar device. Under Evid.R. 201(B),
a judicially noticed fact must not be 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.” Id.{¶12} In support of this proposition, the city relies on Cincinnati v. Levine, 158
Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613 (1st Dist.). But we find the city’s
reliance on this case misplaced. The Levine court recognized only three possible ways
by which a trial court could take judicial notice of the reliability of a speed-measuring
device: “(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.” Id. at ¶ 10. None of those
circumstances exist in this case to support the trial judge’s taking of judicial notice of the
scientific reliability of the Kustom Pro-1000 device at issue.
{¶13} And while we acknowledge that this court in State v. Tisdale, 8th Dist. No.
89877, 2008-Ohio-2807, has previously held that expert testimony was not needed to
establish the general reliability of a radar device, even in the absence of the trial judge
taking judicial notice of a reported municipal court decision or an appellate court
decision, this case appears to be an outlier of the well-established body of law on the
issue. Compare Moreland Hills v. Gazdak, 59 Ohio App.3d 22, 550 N.E.2d 203 (8th
Dist.1988), syllabus at paragraph two (“Judicial notice of the accuracy of a specific model
of radar device cannot automatically be extended to warrant judicial notice of the
accuracy of another model of radar device in another case.”). See also State v. Reavis,
5th Dist. No. 2012-CA-0003, 2012-Ohio-4675, ¶ 3 (“absent expert testimony or judicial
notice, [trial court] could not admit evidence of the construction, reliability, accuracy and
mode of operation of this device”); State v. Freitag, 9th Dist. No. 07CA0082,
2008-Ohio-6573 (trial court could not rely on other case that it heard for purpose of
establishing the scientific reliability of the Genesis radar unit at issue because state failed
to identify at trial what specific version of the Genesis radar was used to record the
defendant’s speed); Levine at ¶ 12 (“Absent expert testimony, the trial court could not
take judicial notice of the LTI 20-20’s accuracy and dependability, as well as hear
testimony concerning any reading obtained from such a device.”); State v. Saphire, 2d
Dist. No. 2000 CA 39, 2000 Ohio App. LEXIS 5767 (Dec. 8, 2000); State v. Kirkland, 3d
Dist. No. 8-97-22, 1998 Ohio App. LEXIS 1100 (Mar. 2, 1998); State v. Schroeder, 11th
Dist. No. 95-G-1907, 1995 Ohio App. LEXIS 3910 (Sept. 8, 1995).
{¶14} We further find Tisdale distinguishable from this case because it involved a
radar unit at least discussed and recognized in other cases. The same cannot be said for
the Kustom Pro-1000 radar unit. Indeed, we fail to find a single case discussing this
model.1 For that very reason, we find it troubling that the trial judge would take judicial
notice of the scientific reliability of the device at issue when it appears that there is no
evidence supporting such a conclusion. Without any evidence that the moving radar
device at issue is at least vetted and functions in the manner presented by the prosecution,
we find that the well-established body of law on the issue precludes a trial judge from
taking judicial notice of its scientific reliability and accuracy.
{¶15} Therefore, in the absence of any case recognizing the scientific reliability of
the Kustom Pro-1000 moving radar device, we find that the trial court erred in admitting
any testimony regarding its reading without the benefit of expert testimony. And while
the prosecution need not present expert testimony every time it presents evidence from a
Kustom Pro-1000 moving radar device, “the prosecution must do it at least once.”
Levine at ¶ 12. Under such circumstances, the trial court may then take judicial notice of
the device’s accuracy and dependability, as well as hear testimony concerning any reading
obtained from such a device. Id.B. Officer’s Visual Estimation
We note that the Seventh District in Columbiana v. Clark, 7th Dist. No. 11CA28,
1
2012-Ohio-4573, recently discussed a trial court’s taking of judicial notice of a Kustom Signals Pro
1000 doppler radar unit. We cannot say definitively if this is the same radar unit at issue in this case
given the slightly different name. But even if it is, we note that the trial court’s taking of judicial
notice in that case is limited solely to that municipal court and provides no support for this case or
district. Id. at ¶ 27.
{¶16} The city next argues that, even if the radar reading was improperly admitted
into evidence, the officer’s testimony as to his visual observation was sufficient evidence
to support the speeding conviction. Although this may have previously been the law in
Ohio, it is no longer. See Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929
N.E.2d 1047 (holding that an officer’s unaided visual estimate of a vehicle’s speed is
legally sufficient to convict a person of speeding if there is evidence the officer has the
appropriate training, certification, and experience). After the Supreme Court decided
Jenney, the Ohio General Assembly enacted R.C. 4511.091(C), effective September 30,
2011, which provides in pertinent part:
No person shall be arrested, charged, or convicted of a violation of any
provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of
the Revised Code or a substantially similar municipal ordinance based on a
peace officer’s unaided visual estimation of the speed of a motor vehicle,
trackless trolley, or streetcar.
Id.{¶17} Thus, contrary to the city’s position, the officer’s visual estimation is
insufficient evidence to convict on the speeding charge. See Reavis, 5th Dist. No.
2012-CA-0003, 2012-Ohio-4675.
{¶18} We further note that the officer’s testimony that he tracked Joyner’s vehicle
speeding while he was approximately “three to four miles away” does not logically make
sense. At oral argument, the city argued that this statement was transcribed incorrectly
and that any confusion could be eliminated by examining the videotape of the traffic stop
offered by the city. We note, however, that the city never offered any videotape of the
traffic stop into evidence, and therefore, is not part of our record on appeal.
{¶19} Accordingly, because we find that the trial court could not take judicial
notice of the Kustom Pro-1000’s accuracy and dependability, Officer Lieb’s testimony
concerning the radar unit’s measurement was inadmissible. Without this testimony, the
city failed to present sufficient evidence to sustain a conviction of B.C.O. 434.03(B)(3).
{¶20} The first and second assignments of error are sustained.
{¶21} Based on our resolution of these assignments of error, we find Joyner’s
remaining assignment of error moot.2
{¶22} Judgment reversed and case remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Shaker
Heights Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_______________________________________
MARY J. BOYLE, PRESIDING JUDGE
In her third assignment of error, Joyner argues that the city failed to present sufficient
2
evidence, including a copy of any certification, to demonstrate that Officer Lieb was qualified to use
the Kustom Pro-1000 radar unit.
LARRY A. JONES, SR., J., and
MARY EILEEN KILBANE, J., CONCUR