State v. Castagnola

[Cite as State v. Castagnola, 2015-Ohio-4752.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
NICHOLAS J. CASTAGNOLA : Case No. 15-COA-026
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal
Court, Case No. 15TRD04620
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 18, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW N. BUSH NICHOLAS J. CASTAGNOLA, pro se
Assistant Law Director 6751 Forest Glen Avenue
1213 E. Main Street Solon, Ohio 44139
Ashland, Ohio 44805
Ashland County, Case No. 15-COA-026 2
Baldwin, J.
{¶1} Defendant-appellant Nicholas Castagnola appeals from the July 30, 2015
Judgment Order of the Ashland Municipal Court. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 9, 2015 at approximately 1:43 a.m., appellant was cited for driving
97 miles per hour in a 70 mile per hour zone in violation of R.C. 4511.21(D)(4) by Ohio
State Highway Patrol Trooper Paul Green. Appellant, on July 14, 2015, filed a written
plea of not guilty and, on July 23, 2015, filed a Motion in Limine arguing, in part, that
Trooper Green was not qualified to testify.
{¶3} A bench trial was held on July 24, 2015. As memorialized in a Judgment
Order filed on July 30, 2015, the trial court found appellant guilty. The trial court, in its
Order, found that appellant had endangered others “by his excessive speed and the
circumstances surrounding his driving” and that appellant’s operation of his vehicle was
reckless. The trial court suspended appellant’s operator’s license for one year pursuant
to R.C. 4510.15 and ordered him to pay a fine of $150.00 plus court costs.
{¶4} Appellant now raises the following assignments of error on appeal:
{¶5} I. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
CASTAGNOLA WHEN IT OVERRULED MR. CASTAGNOLA’S SECOND OBJECTION
TO THE ULTRA LYTE LASER SPEED EVIDENCE BASED ON A LACK OF
FOUNDATION BECAUSE THE STATE HAD FAILED TO ESTABLISH, INTER ALIA,
THAT THE “BLUE LIGHT” ON TOP OF TRP. GREEN’S ALLEGED “MARKED”
PATROL CAR WAS A “FLASHING, OSCILLATING, OR ROTATING” BLUE LIGHT
Ashland County, Case No. 15-COA-026 3
PURSUANT TO R.C. § 4549.13 TO MAKE THE TROOPER A COMPETENT WITNESS
TO TESTIFY PURSUANT TO R.C. § 4549.14.
{¶6} II. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
CASTAGNOLA WHEN IT EX POST FACTO DECLARED THAT MR. CASTAGNOLA
HAD ACTUALLY COMMITTED “RECKLESS OPERATION”, AND THUS, PURSUANT
TO R.C. § 4510.15, HIS OPERATOR’S LICENSE SHOULD BE SUSPENDED FOR
ONE YEAR, WITHOUT ANY BASIS TO SUPPORT A FINDING OF “RECKLESSNESS”
PURSUANT TO R.C. § 2901.22(C), IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, WHICH COEXTEND
TO THE OHIO CONSTITUTION.
{¶7} III. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
CASTAGNOLA WHEN IT FIRST STATED THAT A RULE 29 WAS NOT A PROPER
MOTION IN A MINOR MISDEMEANOR TRAFFIC TRIAL AND THEN
SUBSEQUENTLY OVERRULED MR. CASTAGNOLA’S RULE 29 MOTION FOR
JUDGMENT OF ACQUITTAL WHEREIN THE EVIDENCE WAS INSUFFICIENT TO
PROVE A VIOLATION OF R.C. § 4511.21(D)(4) BECAUSE THE STATE HAD FAILED
TO PROVE, INTER ALIA, THE ELEMENT THAT MR. CASTAGNOLA HAD
OPERATED HIS MOTOR VEHICLE ON A “RURAL FREEWAY” AS PROVIDED
UNDER DIVISION (B)(14) OF R.C. § 4511.21.
I
{¶8} Appellant, in his first assignment of error, argues that the trial court erred
when it permitted testimony, over objection, pertaining to the Ultralyte laser in this
matter. Appellant specifically contends that the proper foundation for the admission of
Ashland County, Case No. 15-COA-026 4
such testimony was not laid because appellee failed to establish that the “blue light” on
top on Trooper Paul Green’s patrol car was a “flashing, oscillating, or rotating” blue light
pursuant to R.C. 4549.13. Appellant argues that, for such reason, Trooper Green was
not a competent witness under R.C. 4549.14 and should not have been permitted to
testify that he confirmed the speed of appellant’s vehicle with a laser speed measuring
device.
{¶9} Initially, we note, the decision to allow a witness to testify rests within the
sound discretion of the trial court, and will not be overturned absent an abuse of that
discretion. Waganheim v. Alexander Grant & Co., 19 Ohio App.3d 7, 482 N.E.2d 955(10th Dist. 1993). Abuse of discretion connotes more than an error of law or of
judgment; it implies the court's attitude is unreasonable, arbitrary or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶10} R.C. 4549.14 states as follows: “Any officer arresting, or participating or
assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws
of this state, provided the offense is punishable as a misdemeanor, such officer being
on duty exclusively or for the main purpose of enforcing such laws, is incompetent to
testify as a witness in any prosecution against such arrested person if such officer at the
time of the arrest was using a motor vehicle not marked in accordance with section
4549.13 of the Revised Code.” (Emphasis added). In turn, R.C. 4549.13 states as
follows:
Any motor vehicle used by a member of the state
highway patrol or by any other peace officer, while said
officer is on duty for the exclusive or main purpose of
Ashland County, Case No. 15-COA-026 5
enforcing the motor vehicle or traffic laws of this state,
provided the offense is punishable as a misdemeanor, shall
be marked in some distinctive manner or color and shall be
equipped with, but need not necessarily have in operation at
all times, at least one flashing, oscillating, or rotating colored
light mounted outside on top of the vehicle. The
superintendent of the state highway patrol shall specify what
constitutes such a distinctive marking or color for the state
highway patrol. (Emphasis added)
{¶11} As noted by appellee, R.C. 4549.14 incorporates the mandates of R.C.
4549.13 as such section pertains to marking, but not as it pertains to lighting.
{¶12} In the case sub judice, Trooper Green testified at the bench trial that he
was in a marked cruiser assigned to him by the Ohio State Highway Patrol on July 9,
2015. He testified that the cruiser was a 2014 silver Dodge Charger with a blue light on
top and “highway patrol insignia on the sides of the door.” Transcript at 26. Trooper
Green further testified that there was reflective tape around the sides and a state
trooper emblem on the back of the cruiser. He also testified that he was in the uniform
of the day that was assigned to him by the Ohio State Highway Patrol. We find that the
trial court did not abuse its discretion in permitting the Trooper to testify because
appellee presented ample evidence to establish that the Trooper was in a marked car.
The trial court’s decision was not arbitrary, unconscionable or unreasonable.
{¶13} Appellant’s first assignment of error is, therefore, overruled.
Ashland County, Case No. 15-COA-026 6
II
{¶14} Appellant, in his second assignment of error, argues that the trial court’s
finding of recklessness to support a license suspension under R.C. 4510.15 amounts to
a constitutional ex post facto violation.
{¶15} “The ex post facto prohibition forbids the Congress and the States to enact
any law ‘which imposes a punishment for an act which was not punishable at the time it
was committed; or imposes additional punishment to that then prescribed.’ “ Weaver v.
Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), quoting Cummings v.
Missouri, 4 Wall. 277, 71 U.S. 277, 325–26, 18 L.Ed. 356 (1866). In order for a statute
to violate the Ex Post Facto Clause, “it must be retrospective, that is, it must apply to
events occurring before its enactment.” Weaver at 29. We concur with appellee that ex
post facto clause is not relevant to the facts of this matter.
{¶16} In essence, appellant argues that a license suspension could not be
imposed by the trial court under R.C 4510.15 because his speeding did not constitute
“reckless operation.”
{¶17} R.C. 4510.15 (formerly R.C. 4507.34) states, in relevant part, as follows:
Whenever a person is found guilty under the laws of
this state, or under any ordinance of any political subdivision
of this state, of operating a motor vehicle in violation of any
such law or ordinance relating to reckless operation, the trial
court of any court of record, in addition to or independent of
all other penalties provided by law, may impose a class five
suspension of the offender's driver's or commercial driver's
Ashland County, Case No. 15-COA-026 7
license or permit or nonresident operating privilege from the
range specified in division (A)(5) of section 4510.02 of the
Revised Code.
{¶18} “A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to cause
a certain result or is likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences, he perversely
disregards a known risk that such circumstances are likely to exist.” R.C. 2901.22(C).
{¶19} This Court reviews the trial court's decision to suspend a defendant's
driver's license under R.C. 4510.15 (formerly R.C. 4507.34) for an abuse of discretion.
State v. Tamburin, 145 Ohio App.3d 774, 780, 764 N.E.2d 503 (9th Dist. 2001).
{¶20} A court's authority to suspend a driver's license under R.C. 4510.15 may
arise when a person has been charged with and convicted of speeding under R.C.
4511.21, without any charge of reckless operation being made under R.C. 4511.20,
inasmuch as a law or ordinance prohibiting speeding is a prohibition “relating to reckless
operation” of a motor vehicle within the meaning of R.C. 4507.34, now 4510.15. State v.
Newkirk, 21 Ohio App.2d 160, 255 N.E.2d 851 (5th Dist.1968). See also: State v.
Secrest, 9th Dist. Wayne No. 04CA0023, 2004–Ohio–4585; State v. Short, 2d Dist.
Champaign No.2003CA42, 2004–Ohio–5985.
{¶21} The trial court, in the case sub judice, stated, in relevant part, as follows:
I’m also finding, given the testimony that I’ve heard
here today, that by Defendant’s own admission it was a dark
area, not well lit. There was testimony that there was other
Ashland County, Case No. 15-COA-026 8
traffic, that there was a pass being made. Defendant was
operating a 2006 Hyundai on a public highway at 97 miles
an hour, 27 miles per hour over the speed limit. I am finding
pursuant to section 4510.15 that your driving, given the high
speed and all of the surrounding conditions including the
hour and the presence of another vehicle, constituted
demonstration of reckless indifference to the rights and
safety of others. I’m making that finding, as I mentioned
pursuant to 4510.15.
{¶22} Transcript at 47. Based on the foregoing, we cannot say that the trial
court abused its discretion in finding that appellant’s operation of his vehicle was
reckless.
{¶23} Appellant’s second assignment of error is, therefore, overruled.
III
{¶24} Appellant, in his third assignment of error, argues that there was
insufficient evidence that he had operated his motor vehicle on a “rural freeway” as
provided under R.C. 4511.21(B)(14).
{¶25} Appellant initially argues that the trial court erred in overruling his Crim.R.
29 Motion for Judgment of Acquittal. However, as noted by this Court in State v. Massie,
5th Dist. Guernsey No. 05CA000027, 2006-Ohio-1515 at paragraph 23, “[t]he rule
[Crim.R. 29] has no application in a case tried to the court.”
Ashland County, Case No. 15-COA-026 9
{¶26} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two
of the syllabus, in which the Ohio Supreme Court held as follows:
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.
{¶27} Appellant, in the case sub judice, was found guilty of speeding in violation
of R.C. 4511.21(D)(4). R.C. 4511.21 states, in relevant part, as follows: “(D) No person
shall operate a motor vehicle, trackless trolley, or streetcar upon a street or highway as
follows:….(4) At a speed exceeding seventy miles per hour upon a freeway as provided
in division (B)(14) of this section;..” In turn, R.C. 4511.21(B)(14) states as follows: “It is
prima-facie lawful, in the absence of a lower limit declared or established pursuant to
this section by the director of transportation or local authorities, for the operator of a
motor vehicle, trackless trolley, or streetcar to operate the same at a speed not
exceeding the following: …(14) Seventy miles per hour for operators of any motor
vehicle at all times on all rural freeways;…”
Ashland County, Case No. 15-COA-026 10
{¶28} At the trial in this matter, Trooper Green testified that he was seated at the
183 mile post on Interstate 71 in Ashland County when he observed appellant. He
testified that the posted speed limit on that portion on Interstate 71 was 70 miles per
hour and that that portion of Interstate 71 has three lanes in each direction divided by a
median with a cable. According to him, it was connected to the interstate highway
system in Ohio and other states. The trial court, in overruling appellant’s motion, noted
that the Trooper “gave a specific location of exactly where he was, which happens to be
in a very rural area and testified that the limit was 70 miles per hour.” Transcript at 45.
{¶29} Based on the foregoing, we find that there was sufficient evidence
supporting appellant’s conviction for speeding in violation of R.C. 4511.21(D)(4).
{¶30} Appellant’s third assignment of error is, therefore, overruled.
{¶31} Accordingly, the judgment of the Ashland Municipal Court is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.