State v. Helke , 2015 Ohio 4402 ( 2015 )

[Cite as State v. Helke, 2015-Ohio-4402.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26672
:
v. : Trial Court Case No. 2015-TRD-2656
:
MICHAEL HELKE : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 23rd day of October, 2015.
...........
KENT J. DEPOORTER, Atty. Reg. No. 0058487, City Prosecutor, 7501 Paragon Road,
Dayton, Ohio 45459
Attorney for Plaintiff-Appellee
MICHAEL HELKE, 214 Drake Avenue, New Carlisle, Ohio 45344
Defendant-Appellant-Pro Se
.............
WELBAUM, J.
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{¶ 1} In this case, Defendant-Appellant, Michael Helke, appeals pro se from a
judgment of the Kettering Municipal Court convicting him of speeding in violation of R.C.
4511.21(D)(1). After a bench trial, the court found Helke guilty and imposed a $150 fine
plus costs, with $75 of the fine suspended.
{¶ 2} Helke contends that the trial court erred by accepting testimony about an
officer’s visual estimate of speed and the operation of a laser speed detector. Helke
further contends that the State failed to lay a proper foundation that the laser device was
in good working condition, was calibrated properly, and was scientifically reliable. He
also argues that the trial court could not take judicial notice of the laser device’s scientific
reliability. Helke, therefore, contends that the conviction is not supported by sufficient
evidence.
{¶ 3} We conclude that the State failed to provide a proper foundation for the
scientific reliability of the laser device, and the trial court failed to take judicial notice of
reliability pursuant to recognized methods for doing so. As a result, there was insufficient
evidence to support Helke’s conviction. Accordingly, the judgment of the trial court will
be reversed.
I. Facts and Course of Proceedings
{¶ 4} In April 2015, a complaint was filed against Helke in Kettering Municipal
Court, charging him with driving 83 miles per hour in a 55 mile per hour zone, in violation
of R.C. 4511.21(D)(1). After Helke pled not guilty, the judge held a bench trial, at which
the State presented testimony from the arresting officer, State Trooper Jerod Keyes.
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The trial court found Helke guilty and imposed a fine and court costs. Helke then timely
appealed from the conviction and sentence.
II. Did the Court Err in Accepting the Trooper’s Testimony?
{¶ 5} Helke’s First Assignment of Error (quoted verbatim) states that:
Trial Court Erred When It Accepted Testimony Concerning the
Trooper[’]s Visual Estimation of the Vehicals [sic] Speed and the Operation
of the Laser Speed Detector.
{¶ 6} Under this assignment of error, Helke contends that Trooper Keyes blatantly
refused to bring evidence of his training into court, and that the evidence was insufficient
that Keyes had completed training in the use of a laser device or in visually checking
speeds of moving vehicles.
{¶ 7} As a preliminary matter, we disagree with Helke’s contention that Keyes
blatantly refused to bring evidence of his training into court. Helke was subpoenaed by
the State, not the defense, and the subpoena did not ask Helke to bring any documents
to court. See Doc. #3 and #4. If Helke wished to subpoena Keyes and require that he
bring documents to court, Helke had the ability to do so.
{¶ 8} At trial, Keyes testified that on March 25, 2015, he had been employed as a
State Trooper for eight years, and was on stationary patrol on Interstate 75 at mile post
50, running a laser. Keyes visually estimated that a vehicle (later found to be driven by
Helke), was traveling at 80 to 85 miles per hour, in excess of the 55 mile per hour posted
speed limit. After activating the laser, Keyes found that the vehicle was traveling 83 miles
per hour. Keyes kept his line of sight on the car until it passed him, pulled out, and
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initiated a traffic stop.
{¶ 9} Keyes testified in detail at trial about his certification in the use of lasers and
his training in visual observation of speed. He indicated that he had been initially trained
at the police academy in using the laser. This consisted of 40 hours of training, during
which he was instructed by a certified instructor on the use of radar and the laser. Keyes
was also required to perform visual observations of speed and be correct within two to
three miles an hour on visual observations in order to pass the class. After graduation,
supervisors have ridden with Keyes yearly to ensure that he is properly using the laser
and knows how to calibrate it and verify that it is working. Keyes further testified that he
has had updates on the visual observation class yearly.
{¶ 10} During Helke’s cross-examination of Keyes, the following exchange
occurred:
Q. Okay. You also testified that you have been trained. You have
been to the Academy. You know there’s forty hours of worth of training.
Where’s the certifications? We have not seen the certifications yet.
A. Sir, if they were requested into Court I wouldn’t have brought
them in.
Q. But they’re not here today. Correct?
A. Yes sir.
Transcript of Proceedings, pp. 13-14.
{¶ 11} We do not interpret Keyes’ remarks to mean that he would refuse to bring
in evidence of his certification if he had been asked to do so. From the context of the
above remarks, and from Helke’s use of the word “but” in responding, it appears that an
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error in transcription occurred. In context, what Keyes appears to have said is that he
“would” have brought his certifications in if they had been requested, followed by Helke’s
response – “But they’re not here today.” Otherwise, the exchange makes no sense.
{¶ 12} Accordingly, we disagree that Keyes blatantly refused to bring in evidence
of his certifications. That does not necessarily mean that Keyes’ testimony about the
laser was properly admitted or that the State provided sufficient evidence to support the
conviction.
A. Visual Observations of Police Officers
{¶ 13} In order to convict Helke, the State was required to prove beyond a
reasonable doubt that he violated R.C. 4511.21(D)(1). This statute provides that:
(D) No person shall operate a motor vehicle, trackless trolley, or
streetcar upon a street or highway as follows:
(1) At a speed exceeding fifty-five miles per hour, except upon a two-
lane state route as provided in division (B)(9) of this section and upon a
highway, expressway, or freeway as provided in divisions (B)(12), (13), (14),
and (16) of this section * * *.
{¶ 14} The evidence proving the violation was Keyes’ estimate of the vehicle’s
speed and the laser evidence. It is well-settled that “[t]he admission or exclusion of
relevant evidence rests within the sound discretion of the trial court.” State v. Sage, 31
Ohio St. 3d 173, 180, 510 N.E.2d 343 (1987). As a result, we review the trial court’s
evidentiary rulings for abuse of discretion. Id. An abuse of discretion “ ‘implies that the
court's attitude is unreasonable, arbitrary or unconscionable.’ ” (Citations omitted.)
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
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{¶ 15} In the context of vehicle speed, the Supreme Court of Ohio held in 2010
that:
A police officer's unaided visual estimation of a vehicle's speed is
sufficient evidence to support a conviction for speeding in violation of R.C.
4511.21(D) without independent verification of the vehicle's speed if the
officer is trained, is certified by the Ohio Peace Officer Training Academy or
a similar organization that develops and implements training programs to
meet the needs of law-enforcement professionals and the communities they
serve, and is experienced in visually estimating vehicle speed
Barberton v. Jenney, 126 Ohio St. 3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, syllabus.
{¶ 16} In its brief, the State relies on Barberton. However, after Barberton was
decided, the legislature amended R.C. 4511.091 to add the following language:
(C)(1) 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. This division does not do any of the
following:
(a) Preclude the use by a peace officer of a stopwatch, radar, laser,
or other electrical, mechanical, or digital device to determine the speed of a
motor vehicle;
(b) Apply regarding any violation other than a violation of divisions
(B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a
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substantially similar municipal ordinance;
(c) Preclude a peace officer from testifying that the speed of
operation of a motor vehicle, trackless trolley, or streetcar was at a speed
greater or less than a speed described in division (A) of section 4511.21 of
the Revised Code, the admission into evidence of such testimony, or
preclude a conviction of a violation of that division based in whole or in part
on such testimony.
R.C. 4511.091, as amended by Am. Sub. H.B. 86, 2011 Ohio Laws, Part III, 29.
{¶ 17} R.C. 4511.21(D)(1), which is the crime with which Helke was charged, fits
within R.C. 4511.091(C)(1), and the trial court, therefore, could not have relied solely on
Keyes’ estimate of speed for the conviction. See, e.g., Beachwood v. Joyner, 2012-
Ohio-5884, 984 N.E.2d 388, ¶ 17 (8th Dist.). This does not mean that Keyes’ estimate
was inadmissible; it simply means that the estimate, by itself, was not sufficient to prove
a violation.
B. Whether Laser Evidence of Speed Was Properly Admitted
{¶ 18} Since Keyes’ estimate of speed would not be sufficient, the speed
measured by the laser would have been the only other evidence that could have proven
a violation. For many years, Ohio courts have held that “the scientific accuracy of a laser
device is the type of fact that can be judicially noticed.” City of Columbus v. Dawson,
10th Dist. Franklin No. 99AP-589, 2000 WL 271766, *2 (Mar. 14, 2000), relying on City
of E. Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958). Accord State v.
Saphire, 2d Dist. Greene No. 2000 CA 39, 2000 WL 1803852, *3 (Dec. 8, 2000),
disapproved on other grounds, Barberton, 126 Ohio St. 3d 5, 2010-Ohio-2420, 929 N.E.2d
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1047, at ¶ 16-18.1
{¶ 19} Ohio courts have generally held that “[e]stablishing the reliability of a speed-
measuring device can be accomplished * * * 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.” (Citations and footnotes omitted.) Cincinnati v. Levine, 158 Ohio App. 3d
657, 2004-Ohio-5992, 821 N.E.2d 613, ¶ 10 (1st Dist.) See also E. Liverpool v. Lawson,
7th Dist. Columbiana No. 13 CO 52, 2014-Ohio-5858, ¶ 11. However, this approach has
been questioned in a few recent cases.
{¶ 20} In 2013, the Eighth District Court of Appeals extensively discussed the
evolution of speed-measuring devices, beginning with the development of radar in
England in the 1930’s. See Cleveland v. Craig, 8th Dist. Cuyahoga No. 99619, 2013-
Ohio-5742, ¶ 11-22. The court noted that as “the general accuracy and effectiveness of
the radar speedmeter” became commonly known and accepted, the Supreme Court of
Ohio confirmed more than 50 years ago in Ferell that “the reliability of the scientific
principles underlying the use of stationary radar could be established without the need for
expert testimony.” Id. at ¶ 13-14, citing Ferell at syllabus.
{¶ 21} The court of appeals further observed that Ferell failed to focus on the
specific measuring device involved because all radar devices being used at the time
“were stationary models using the ‘S’ band frequency.” Id. at ¶ 15. However, the
1
In Barberton, the Supreme Court of Ohio disapproved our view in Saphire that an
officer’s visual estimate of speed, alone, is insufficient to support a conviction under
R.C. 4511.21(D). However, based on the amendments to R.C. 4511.091, our holding
in Saphire is a correct statement of law.
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evolution of these devices to other frequencies, and to either stationary or moving modes,
changed the rules for admissibility of the results, such that “testimony or judicial notice of
the construction and accuracy of moving radar devices is required to sustain a conviction
based on a reading from such device.” (Citations omitted). Id. at ¶ 15-16.
{¶ 22} After making these observations, Craig discussed a prior opinion of the
Eighth District Court of Appeals, which had questioned “the need to ‘re-prove’ the science
behind speed measuring devices in every case where an expert did not testify or judicial
notice could not be taken.” Id. at ¶ 17, quoting Cleveland v. Tisdale, 8th Dist. Cuyahoga
No. 89877, 2008-Ohio-2807, ¶ 15. In Tisdale, the Eighth District Court of Appeals noted
that:
In Ferell, the device in use was a stationary radar device operating
on the “Doppler effect.” Ferell set the admissibility requirements until new
technology changed that standard. As stated in State v. Wilcox (1974), 40
Ohio App. 2d 380, 319 N.E.2d 615: “ * * * a radar speed-detection device
using the Doppler principle is recognized scientifically, even in the absence
of expert testimony with respect to its construction and method of operation,
[but] we do not feel that this principle can be extended to a device which not
only measures speed but adjusts such speed measurement for the speed
of the vehicle in which it is mounted. This is especially true in the absence
of any evidence that the device in question can, in fact, accomplish that
purpose. It is only by inference that this conclusion could be reached from
the evidence herein.”
Thus, Ferell had been limited to situations involving the use of
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stationary radar devices. The advent of newer speed measuring devices
transformed the admissibility standard, and Ohio courts once again were
requiring expert testimony.
Tisdale at ¶ 11-12.
{¶ 23} In this regard, the panel in Craig stated that “We felt [in Tisdale that] a
compelling argument could be made that ‘all radar-based speed measuring devices in
use today, and arguably all laser-based units now in use, are reliable, even in the absence
of expert testimony as to their reliability.’ ” Craig, 8th Dist. Cuyahoga No. 99619, 2013-
Ohio-5742, at ¶ 17. Craig noted that Tisdale had been cited by some cases for its
changed approach, but had also been criticized by others, even in the Eighth District, for
moving “away from the traditional method of establishing admissibility of speed measuring
device results.” (Citations omitted.). Id. at ¶ 19.
{¶ 24} The court of appeals went on to state in Craig that:
In any event, virtually all the cases following Ferell acknowledged the
distinction between the use of stationary radar and moving radar or laser
devices. The question today is, how should we apply the principle in Ferell,
over 55 years later, in a changed landscape littered with new technology?
Was the court in Ferell taking judicial notice only of the underlying
principles of radar as an electronic device that scientifically and accurately
measures the speed of a moving object? Or were they only judicially
noticing the accuracy and operating efficiency of the particular radar device
used to measure the speed of Ferell's vehicle in that case before the court?
As noted earlier, the specific device at play in Ferell was not identified,
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suggesting the court was giving its tacit blessing to all stationary radar
devices. What was not addressed, and what was unknown to the justices
at the time, was how the technology would evolve and improve with the
introduction of new, more advanced measuring instruments.
Craig, 8th Dist. Cuyahoga No. 99619, 2013-Ohio-5742, at ¶ 19-20.
{¶ 25} According to the panel in Craig, the problem of focusing on specific devices
is that the movement to include moving and laser-based devices, “ ‘has evolved into a
device- and jurisdiction-specific inquiry, and has returned us to a pre-Ferell state of
“[wasting] the time of experts * * * and [increasing] the expenses of litigation * * * by
compelling such [experts] to appear in court after court telling the same truths over and
over[.]” ’ ” Id. at ¶ 21, quoting State v. Freiteg, 9th Dist. Wayne No. 07CA0082, 2008-
Ohio-6573, ¶ 25 (Whitmore, J., dissenting). (Other citations omitted.)
{¶ 26} The Eighth District Court of Appeals thus concluded in Craig that:
While Ferell has been viewed as an outdated opinion by some, we
view the rationale concerning the general acceptance of the scientific
reliability of radar as a device for measuring speed should continue to be
applied to stationary radar devices in use today. Unless and until the Ohio
Supreme Court states otherwise, at least insofar as stationary devices are
concerned, we shall continue to adhere to Ferell's holding 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.”
Ferell, 168 Ohio St. at 303, 154 N.E.2d 630. Further, in light of the
increasing debate among appellate courts, we would encourage the Ohio
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Supreme Court to consider whether expert testimony should be required to
establish the general reliability of moving-radar and laser speed devices.
Arguably, both radar and laser technology are now commonly accepted and
recognized methods for reliably and accurately measuring the speed of a
moving vehicle. The need to revisit the issue of judicial notice is
compelling.
Craig at ¶ 22.
{¶ 27} A further criticism in both Tisdale and Craig involves how judicial notice is
employed. In particular, these cases “ ‘question the practical limitations of judicial notice
being limited to the territorial jurisdiction of the court and believe the Ohio Supreme Court
may wish to re-examine the standard in terms of cross-jurisdictional judicial notice.’ ”
Craig at ¶ 25, quoting Tisdale, 8th Dist. Cuyahoga No. 89877, 2008-Ohio-2807, at ¶ 14.
The Supreme Court of Ohio has not acted upon these invitations.2
2 An additional suggestion for addressing this issue could be the adoption of legislation
like R.C. 4511.19, which, according to State v. Vega, 12 Ohio St. 3d 185, 465 N.E.2d
1303 (1984), prohibits defendants charged with operating a motor vehicle while under
the influence of alcohol from attacking the general scientific reliability of breath-testing
instruments. Id. at 190. See also Cincinnati v. Ilg, 141 Ohio St. 3d 22, 2014-Ohio-
4258, 21 N.E.3d 278, ¶ 23 (affirming this principle). In Vega, the Supreme Court of
Ohio stated that R.C. 4511.19 represents a legislative determination that breath testing
devices adopted by the Director of the Ohio Department of Health are generally reliable.
Vega at 188-189. The Supreme Court of Ohio also held that “an accused is not denied
his constitutional right to present a defense nor is the state relieved of its burden of
proving guilt beyond a reasonable doubt where a trial judge does not permit expert
testimony to attack the reliability of intoxilyers in general.” Id. at 186. The basis for
this conclusion is that the statute “merely raises the rebuttable presumption that one
was under the influence of alcohol. Under the statute, the accused may introduce any
other competent evidence bearing upon the question of whether he was under the
influence of intoxicating liquor.” Id. at 189. In Ilg, the Supreme Court of Ohio stressed
that “the director's approval of the Intoxilyzer 8000 does not preclude an accused from
challenging the accuracy, competence, admissibility, relevance, authenticity, or
credibility of specific tests results at issue in a pending case.” Ilg at ¶ 29.
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{¶ 28} In Craig, the court of appeals ultimately considered the radar testimony only
on the basis of plain error, since the defendant failed to object at trial. Craig, 8th Dist.
Cuyahoga No. 99619, 2013-Ohio-5742, at ¶ 28. Under circumstances that are similar to
those in the case before us, the court of appeals concluded that the trial court did not err
in admitting the officer’s testimony as to speed or in basing its finding of guilt on the
testimony. Id. at ¶ 10 and 31. While the court agreed that “an officer’s unaided visual
estimation of speed could not form the basis for his conviction,” the court stressed that “in
this case, the officer testified that the stationary radar verified his observation. As a
stationary radar unit was involved, expert testimony was not required.” (Citations
omitted.) Id. at ¶ 31. Of course, the case before us involves a laser device, not
stationary radar, and this is an important distinction, as even Craig and Tisdale
recognized that lasers and moving radar were not included in Ferell. Unlike Craig and
Tisdale, which involved radar, the case before us involves a laser speed measuring
device.
{¶ 29} Craig has not been cited since it was decided in 2013, and another panel of
the Eighth District Court of Appeals had previously criticized Tisdale. See Beachwood,
2012-Ohio-5884, 984 N.E.2d 388, at ¶ 13 (8th Dist.) (describing Tisdale as “an outlier of
the well-established body of law on the issue.”)
{¶ 30} Some courts have taken a somewhat different approach than the dissenting
cases in the Eighth District. For example:
[C]ourts have concluded that expert testimony regarding the reliability of
various models of laser and radar devices is irrelevant for purposes of
judicial notice because “[i]t is the scientific principle underlying a device's
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reliability – and not the reliability of a specific model – that renders judicial
notice proper.” State v. Wiest, Hamilton App. No. C–070609, 2008-Ohio-
1433, ¶ 12; State v. Yaun, Logan App. No. 8-07-22, 2008-Ohio-1902, ¶ 18.
In Yaun, the Third Appellate District determined that the trial court did not
err in taking judicial notice of the Python II radar device when it had
previously taken judicial notice of the K–55 device. Id. at ¶ 19. The police
officer in Yaun testified that the Python II radar operated on the same
principle as other radar devices and that it was “exactly the same radar as
the K–55.” Id. at ¶ 14.
State v. Starks, 196 Ohio App. 3d 589, 2011-Ohio-2344, 964 N.E.2d 1058, ¶ 24 (12th
Dist.).
{¶ 31} Nonetheless, the Twelfth District Court of Appeals concluded in Starks that
the trial court erred in taking judicial notice of an LTI ultra-light laser because there was
no testimony that the LTI 20–20 (which had previously been found reliable) and the LTI
ultra-light “operated under the same scientific principle such that they could be deemed
different models of the same device.” Id. In this regard, the court stressed that
“[a]lthough the underlying principles of laser technology may be the same from one device
to another, generally judicial notice as to the reliability of a speed-measuring device is
device-specific. Therefore, expert testimony is necessary, ‘whether it be a new device
or an upgrade of an existing device, before the court may take judicial notice of that
particular device in future proceedings.’ ” Id. at ¶ 25, quoting State v. Kincaid, 124 Ohio
Misc.2d 92, 2003-Ohio-4632, 796 N.E.2d 89, ¶ 15 (C.C.).
{¶ 32} Our own district has taken judicial notice of the scientific reliability of the K-
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55 radar device, and has held that expert testimony is no longer necessary based on
Ferell. See, e.g., State v. Knife, 2d Dist. Miami No. 88 CA 41, 1989 WL 87572, *2 (Aug.
2, 1989); Xenia v. Boehman, 114 Ohio App. 3d 78, 83, 682 N.E.2d 1029 (2d Dist.1996).
{¶ 33} Our first consideration of lasers appears to have been in 1994, when we
concluded that under the expert testimony presented in that case, a laser device identified
as the “LTI 20/20” was scientifically reliable. State v. Reck, 2d Dist. Darke No. 1352 CA,
1994 WL 718230, *6 (Dec. 21, 1994). Subsequently, in 2000, the issue of the scientific
reliability of a laser device was again before our court. Saphire, 2d Dist. Greene No.
2000 CA 39, 2000 WL 1803852, at *2. In that case, the trial court did not hear expert
evidence on the issue, but took judicial notice of the device’s accuracy and dependability
based on training the trial court had attended. Id. at *3. When the defendant appealed,
we stated that while the scientific accuracy of a laser could be judicially noticed, the type
of laser in question was not clear from the record. Id. at *4. In addition, we stated that:
Although the accurate name of the laser device used by [the officer]
is unclear, it appears that neither our court nor the supreme court has taken
judicial notice of any laser device with one of the names listed supra.
Further, there was no indication in the record or in the trial court's entry that
it had previously heard expert testimony regarding this particular laser
device. Because there is nothing in the record to show that the trial court
has ever received expert evidence on and determined that the laser device
used in this case is dependable and accurate, and because it appears that
no court of binding authority upon the Xenia Municipal Court has ever taken
judicial notice of this laser device, we conclude that Saphire's second
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assignment of error is persuasive.
(Citations omitted.) Id. As a result of the trial court’s error, we reversed the defendant’s
conviction for speeding. Id. at *6.
{¶ 34} Subsequently, in 2006, we again considered whether the trial court had
properly taken judicial notice of a laser speed measurement device. State v. Pellettiere,
2d Dist. Montgomery No. 21070, 2006-Ohio-1606, ¶ 7. The type of laser device was not
identified in our opinion. We overruled the defendant’s objections, stating that:
In the present case Pellettiere, acting pro se, objected to Officer
Stephenson's testimony about the use of a laser speed measurement
device. Specifically, Pellettiere objected by stating “[a]s far as I know the
State has not taken judicial notice on this laser device as of this moment.”
(Emphasis added). The court responded by stating “[t]his Court has.”
That statement indicates that the trial court has taken evidence in the past
which permits the court to take judicial notice of that particular type of laser
speed measurement device. We find it unnecessary for the trial court to
specifically state the case in which it heard expert testimony on the device.
We conclude that it was permissible for the trial court to take judicial
notice that the specific laser speed measurement device in this case was
accurate and reliable. Accordingly, Pellettiere's second assignment of
error is not well taken and is overruled.
Id. at ¶ 9-10.
{¶ 35} We ruled to the same effect in 2008, in a case involving the Fairborn
Municipal Court. See State v. Dixon, 2d Dist. Greene No. 06-CA-0145, 2008-Ohio-415.
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In Dixon, the trial judge noted that she and the court’s magistrate had taken judicial notice
on prior occasions of the reliability of a hand-held, battery-operated laser device that was
used by the officer in Dixon. Id. at ¶ 3 and 7. While the type of laser device that was
being used is not identified in our opinion, the trial court did comply with the requirements
for taking judicial notice.
{¶ 36} In State v. Brooks, 2d Dist. Montgomery Nos. 23386, 23387, 2010-Ohio-
1119, we affirmed the conviction of a defendant where the officer had used a laser
measuring device identified as “LTI 20/20.” Id. at ¶ 27. However, we did not consider
whether the device was reliable or whether the trial court had properly taken judicial
notice. This was because the only issue raised by the defendant related to the third
criterion in Feller, i.e., that “ ‘ “the witness using the apparatus as the source of his
testimony must be one qualified for its use by training and experience.” ’ ” Id. at ¶ 24-25,
quoting Ferell, 168 Ohio St. at 301, 154 N.E.2d 630. (Other citations omitted.) Notably,
our prior opinion in Reck involved the same type of laser, so judicial notice would have
been permitted.
{¶ 37} Brooks is the last decision on this issue from our district that our research
has disclosed. Thus, to date, the LTI 20/20 laser is the only specific laser measuring
device that has been demonstrated as scientifically reliable based on one of the methods
listed in Levine, 158 Ohio App. 3d 657, 2004-Ohio-5992, 821 N.E.2d 613, at ¶ 10. As a
result, we cannot conclude that evidence as to the reliability of the laser involved in this
case was properly admitted.
{¶ 38} In this regard, we must stress three facts: (1) the Ultra Light LiDAR laser
device that Keyes referenced in his testimony has never been held scientifically reliable
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in our district; (2) the specific model was never identified; and (3) the trial court did not
take judicial notice of this model’s reliability based on the court’s own prior findings that
this particular laser was scientifically reliable. In fact, Helke’s objection to the laser being
judicially noticed was overruled on other grounds. In this regard, the trial court made the
following statement:
Okay. Well, um, I’ll note your objection. I’m gonna overrule it at
this point. He [the Trooper] simply is testifying as to clocking you with the
laser and was about to testify, I believe, as to whether or not it had been
calibrated. So, I’m gonna allow him to answer the question. You’re
certainly free, again, in your cross examination of Trooper Keyes, to ask
any questions you want to ask about it.
Transcript of Proceedings, p. 7.
{¶ 39} At the conclusion of the trial, Helke objected to the sufficiency of the
evidence, based on the lack of judicial notice of the laser’s reliability. Instead of
indicating that the laser in question had been found reliable for any of the reasons
permissible under the law, the trial court simply stated that the prosecution had met its
burden of proof. Id. at pp. 16-17.
{¶ 40} However, this was not sufficient to establish that the laser was scientifically
reliable. Compare State v. Coates, 5th Dist. Knox No. 14 CA 2, 2014-Ohio-3875, ¶ 15
(reversing judgment because trial court failed to take notice of reported municipal court
decision or to cite prior consideration involving the laser in question); State v. McKay, 1st
Dist. Hamilton No. C-130657, 2014-Ohio-2027, ¶ 12-15 (judgment reversed where officer
failed to identify which type of Ultralyte laser device he was using, and prior case that
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discussed accuracy and reliability of the LTI 20-20 laser device could not provide grounds
to support taking judicial notice of the device in question); and State v. Zhovner, 2013-
Ohio-749, 987 N.E.2d 333, ¶ 25-26 (3rd Dist.) (reversing judgment where Ultralyte laser
device had not been found reliable in that appellate district, and the trial court had not
previously received scientific testimony about the scientific reliability of this device.)
{¶ 41} Based on the preceding discussion, the trial court erred in failing to sustain
Helke’s objection to judicial notice and the scientific reliability of the laser evidence. The
trial court did not err in admitting Trooper Keyes’ testimony about his own qualifications.
Helke’s First Assignment of Error, therefore, is sustained in part and is overruled in part.
III. Sufficiency of the Evidence
{¶ 42} Because Helke has combined his argument about his Second and Third
Assignments of Error, we will consider them together as well. These assignments of
error, quoted verbatim, state that:
Trial Court Erred by Accepting Testimony that Failed to Produce
Evidence to Support the Defendant[']s Conviction Because the State Failed
to Lay Proper Foundation and Demonstrate (1) the Device Was in Good
Working Condition (2) for the Laser Device Being Calibrated Properly and
Give an Accurate Reading and (3) Is Scientifically Reliability [sic].
In Its Decision, the Trial Court Erred to the Prejudice of the Appellant
By Finding That There Was Sufficient Evidence to Declair [sic] the
Defendant Guilty. Both the Testimony of the Trooper and the Alledged [sic]
Laser Device Speed Measurement Readings Should Not Have Been
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Accepted as Admissible.
{¶ 43} Under these assignments of error, Helke contends, first, that Keyes failed
to testify in sufficient detail about his calibration on the day of the incident; failed to testify
about or show the maintenance logs for the device that day; and failed to sufficiently
identify the specific laser being used. In addition, Helke contends that there was no
evidence that the trial court had previously heard expert testimony about the reliability of
the laser device in question. Helke argues that, as a result, the evidence was insufficient
to support his conviction for speeding.
{¶ 44} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380, 678
N.E.2d 541 (1997). “An appellate court's function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The 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, 259-60, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶ 45} As was noted, in order to convict Helke, the State was required to prove
beyond a reasonable doubt that he violated R.C. 4511.21(D)(1). This would have
required proof that Helke drove his automobile at a speed greater than 55 miles per hour.
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{¶ 46} We have already concluded that a conviction could not rely solely on Keyes’
visual observations of speed. In view of that fact, other evidence, like the laser reading
of Helke’s speed, would have been required. However, since the laser device was not
specifically identified, and its scientific reliability was not established by any permitted
methods, the State failed to prove the essential elements of the crime beyond a
reasonable doubt. Accordingly, the parts of the Second and Third Assignments of Error
that relate to these points will be sustained. The rest of Helke’s argument, pertaining to
Keyes’ calibration of the laser and the maintenance logs, is moot, and will not be
addressed.
IV. Conclusion
{¶ 47} Helke’s First Assignment of Error having been overruled in part and
sustained in part, and his Second and Third Assignments of Error having been sustained
in part and overruled in part as moot, the judgment of the trial court is reversed.
.............
FROELICH, P.J. and DONOVAN, J., concur.
Copies mailed to:
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Kent J. DePoorter
Michael Helke
Hon. Frederick W. Dressel