State v. White

[Cite as State v. White, 2021-Ohio-4046.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 20AP0037
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JENNIFER WHITE WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 TR-D 004930
DECISION AND JOURNAL ENTRY
Dated: November 15, 2021
CARR, Judge.
{¶1} Defendant-Appellant Jennifer White appeals the judgment of the Wayne County
Municipal Court. This Court affirms.
I.
{¶2} On September 10, 2020, Trooper Andrew Topp, a sergeant with the Ohio State
Highway Patrol with 21 years of experience, was observing traffic on U.S. 30 in Plain Township
in a marked patrol car. His vehicle was equipped with a MPH Python II radar device. He
observed a vehicle traveling westbound in the left lane coming towards him. The speed limit in
the area was 60 m.p.h. Trooper Topp visually estimated that the vehicle was traveling in excess
of 70 m.p.h. He activated his radar device which displayed that the vehicle in question was
traveling at speeds of 78, 77, and 75 m.p.h. He indicated there was a very strong audible tone,
which got louder the closer the vehicle was. As the vehicle passed, the audible tone dropped,
and Trooper Topp pursued the vehicle and initiated a traffic stop. The driver of the vehicle was
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identified as White. Trooper Topp cited White for violating R.C. 4511.21(D)(2) by driving 75
m.p.h. in a 60 m.p.h. zone.
{¶3} The matter proceeded to a bench trial. White admitted to speeding but averred
that she was only traveling 64 m.p.h. The trial court found White guilty, fined her $150.00 plus
court costs, and assessed 2 points to her license.
{¶4} White has appealed, raising three assignments of error for our review. The
second and third assignments of error will be addressed together to facilitate our analysis.
II.
ASSIGNMENT OF ERROR I
APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3 OF THE
OHIO CONSTITUTION.
{¶5} White argues in her first assignment of error that her conviction was against the
manifest weight of the evidence.
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶6} This Court has stated that “[t]o sustain a conviction for speeding when the officer
clocked the motorist with a speed detection device, the prosecution must prove three things: (1)
radar or lidar devices are scientifically accepted as dependable for their purpose; (2) the
particular unit was in good working order; and (3) the officer using the device was qualified to
do so.” State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 20. “A driver
cannot be convicted of speeding based solely upon a peace officer’s unaided visual estimation of
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the speed of a motor vehicle, but testimony related to an officer’s visual estimation can be
offered in support of a speeding charge.” (Internal quotations and citation omitted.) State v.
Upchurch, 9th Dist. Medina No. 20CA0001-M, 2021-Ohio-94, ¶ 12; see also R.C.
4511.091(C)(1).
{¶7} In Brook Park v. Rodojev, 161 Ohio St.3d 58, 2020-Ohio-3253, at syllabus, the
Supreme Court of Ohio held that:
The results of a speed-measuring device using either radar or laser technology are
admissible in court without expert testimony establishing, or the court taking
judicial notice of, the reliability of the scientific principles of that technology.
However, the fact-finder is required to determine whether the evidence presented
concerning the accuracy of the particular speed-measuring device and the
qualifications of the person who used it is sufficient to support a conviction based
on the device’s results.
{¶8} As noted by the dissent in Rodojev, the holding in essence provides “that the state
no longer needs to prove the scientific reliability of a laser [or radar] speed-measuring device
before the results of such a device can be used to convict a driver of a speeding offense.” Id. at
¶20 (Kennedy, J., dissenting). While White argues that the State still had to demonstrate that the
MPH Python II radar device used in this case was scientifically accepted as dependable for its
purpose, we read nothing in Rodojev or Sadeghi that supports that interpretation. Instead,
subsequent to Rodojev, this Court must only determine whether the evidence supports the
accuracy of the radar device used and the qualifications of the person who used it. See id. at
syllabus.
{¶9} At trial, Trooper Topp testified to observing White driving her vehicle in excess
of 70 m.p.h. in a 60 m.p.h. zone. He then used the radar device in his vehicle to verify the speed.
The device displayed readings of 78, 77, and 75 m.p.h. During the traffic stop, Trooper Topp
indicated that White expressed concern over how the citation would impact her job. White also
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testified in her defense. While she admitted to exceeding the posted speed limit, she averred that
she was only going 64 m.p.h.
{¶10} As to his training and experience, Trooper Topp testified that he had been
employed by the Ohio State Highway Patrol for 21 years, that for his initial training he spent 6
months at the Ohio State Highway Patrol Training Academy in 1999. During that training he
was instructed on how to use different radar detection devices. As to the MPH Python II Radar
device in his vehicle, Trooper Topp was trained on it in the Summer of 2000. Trooper Topp
testified that since that time he has had ongoing training with respect to radar devices. Trooper
Topp also explained his training with respect to visually estimating the speed of a vehicle.
{¶11} Trooper Topp further indicated that, on the day of the traffic stop, when he started
his shift, he performed a calibration check using two tuning forks on the radar device. Trooper
Topp then provided a detailed account of the calibration check process. Trooper Topp stated that
the results of that check were that the radar was working properly. Trooper Topp performed a
similar calibration check at the end of the shift, subsequent to stopping White, and the result of
that check was that the radar was working properly at the end of the shift. That testimony was
not objected to at trial.
{¶12} Accordingly, there was evidence before the trial court that Trooper Topp was
qualified to use the radar device at issue and that the device was working properly that day
supporting that the results were accurate. See State v. Bechtel, 24 Ohio App.3d 72, 73 (9th
Dist.1985) (“While generally the accuracy of the radar unit and the accuracy of the testing
apparatus are essential to a speeding conviction based solely on the radar evidence, the weight of
authority holds that when two tuning forks are used to ascertain the accuracy of the radar unit,
additional proof of the accuracy of the tuning forks is not necessary. This is because each tuning
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fork corroborates the accuracy of the other, and it is highly unlikely that the radar unit and each
tuning fork would be inaccurate to the same degree.”); State v. Mansour, 12th Dist. Butler No.
CA2010-08-198, 2011-Ohio-4339, ¶ 28.
{¶13} While testimony and documents detailing the yearly radar unit certifications for
the device were also admitted into evidence, the admission of that evidence is challenged on
appeal. Nonetheless, even assuming that that evidence was admitted in error, the weight of the
evidence still supports the accuracy of the device as discussed above.
{¶14} In support of her argument that the radar device was not accurate, White points to
perceived discrepancies between Trooper Topp’s testimony concerning the calibration check he
performed and the radar unit certification records. However, a careful review of the records
reveals no discrepancy. White also asserts that the State failed to demonstrate that the device
was in good working order because there was a prior issue with the device’s housing in 2013.
However, the trial court stated that it was not considering the evidence related to that issue as it
was hearsay, and that conclusion has not been challenged on appeal.
{¶15} White also maintains that the State failed to demonstrate that Trooper Topp was
qualified because his initial training, both with respect to visually estimating speed and using the
radar device, was too long ago. However, nothing in the record demonstrates that Trooper Topp
was not up-to-date with his training. Further, given how long Trooper Topp has been employed
by the Ohio State Highway Patrol, it could be reasonably inferred that Trooper Topp has
extensive experience using the radar device and visually estimating speed in light of the fact that
his stated job duties included enforcing traffic laws.
{¶16} It is true that White contradicted Trooper Topp’s testimony and that the trial court
stated that it found both witnesses credible; however, that does not require the conclusion that the
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verdict is against the weight of the evidence. The trial court also noted that White did not
establish the accuracy of her speedometer. Therefore, we cannot say that White has
demonstrated that the trial court was unreasonable in giving more weight to Trooper Topp’s
testimony.
{¶17} After a thorough and independent review of the record, we cannot say that White
has demonstrated that trial court’s verdict is against the manifest weight of the evidence.
White’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF RADAR
DEVICE CALIBRATION CHECKS.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF THE
SCIENTIFIC RELIABILITY OF THE MPH PYTHON II RADAR DEVICE.
{¶18} White argues in her second assignment of error that the trial court erred in
admitting evidence of the yearly radar unit certifications. White argues in her third assignment
of error that the trial court erred in taking judicial notice of the scientific reliability of the radar
device. The State appears to concede error with respect to both assignments of error but
maintains any error is harmless.
{¶19} Crim.R. 52(A) provides that “[a]ny error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.” Even assuming that the trial court erred
in admitting the evidence concerning the yearly radar unit certifications or in taking judicial
notice of the scientific reliability of the radar device, we agree that any error would be harmless.
Substantial other evidence supported that the radar device at issue was accurate and in good
working order. This evidence has been discussed in detail above. We cannot say that admission
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of the evidence, even if improper, impacted White’s substantial rights. Further, the Supreme
Court in Rodojev held that “[t]he results of a speed-measuring device using either radar or laser
technology are admissible in court without expert testimony establishing, or the court taking
judicial notice of, the reliability of the scientific principles of that technology.” Rodojev, 161
Ohio St.3d 58, 2020-Ohio-3253, at syllabus. Thus, any error in the trial court taking judicial
notice in this case would be harmless as it was unnecessary for the trial court to take judicial
notice. See id.{¶20} White has failed to demonstrate reversible error with respect to her second and
third assignments of error. White’s second and third assignments of error are overruled.
III.
{¶21} White’s assignments of error are overruled. The judgment of the Wayne County
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
BRIAN A. SMITH, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.