Fairborn v. Flagg

[Cite as Fairborn v. Flagg, 2019-Ohio-3387.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
CITY OF FAIRBORN :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-49
:
v. : Trial Court Case No. TRD1710394
:
RONNIE D. FLAGG : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 23rd day of August, 2019.
...........
BRITTANY A. DOGGETT, Atty. Reg. No. 0090704, 510 West Main Street, Fairborn, Ohio
45324
Attorney for Plaintiff-Appellee
JOHN K. LIMOLI, Atty. Reg. No. 0058551, 1402 Sunset Drive, Fairborn, Ohio 45324
Attorney for Defendant-Appellant
.............
DONOVAN, J.
-2-
{¶ 1} Ronnie D. Flagg appeals from the November 30, 2018 judgment of the
Fairborn Municipal Court finding him guilty of speeding and fining him $85. We hereby
affirm the judgment of the trial court.
{¶ 2} Flagg was cited on August 15, 2017, for operating a vehicle on Sandhill Road
over the 25 miles per hour (mph) speed limit, in violation of City of Fairborn Codified
Ordinance 331.13, a minor misdemeanor. His citation provided that his speed was 52
mph on dry pavement with clear visibility. In the “Comments” section of the citation, it
provided that Flagg “stated that his sandal was stuck on the gas pedal and he did not
intend to go that fast.”
{¶ 3} On August 21, 2017, Flagg entered a plea of not guilty. On November 13,
2017, Flagg filed a motion to dismiss based on “Ohio’s Reasonable for Conditions Speed
Limits.” Flagg asserted that “Ohio is a ‘reasonable for conditions’ State and the
conditions at the time and place of the alleged violation may rebut evidence that a
defendant was exceeding the speed limit. Essentially, with few exceptions, there is no
fixed speed limit in Ohio.” Flagg asserted that speed limits fall into two basic categories:
fixed limits and “reasonable speed with prima facie lawful limits.” He asserted that in
states that use the “reasonable speed with prima facie lawful limits” rule, exceeding the
posted limit constitutes a prima facie showing that the statute was been violated, but that
prima facie showing may be rebutted by the defendant. Flagg asserted that, in order to
rebut the prima facie showing, a defendant must show that his speed was not
unreasonable “for the conditions existing at the time and place of the alleged violation.”
He argued that, at the time of his citation “[v]isibility and road conditions were good. The
street was of normal width, pavement was dry, weather was clear. There were no
-3-
adverse conditions. There were no pedestrians, no bicyclists and no motorcyclists.
There were no critters on the ground and not a bird in the sky.” Flagg asserted that,
since his speed was reasonable for the conditions existing at that time and place, he was
not guilty of violating “an ordinance that contains language specifying that the
determination of speed must consider the reasonableness for conditions.”
{¶ 4} Although the City did not respond to the motion to dismiss, the municipal
court concluded that Flagg’s arguments related to issues of fact which must first be
determined at trial, and it overruled the motion to dismiss.
{¶ 5} Flagg was tried before a magistrate on March 6, 2018. The evidence at trial
was as follows:
{¶ 6} Fairborn police officer William Karolyi testified that he was certified in radar
and laser speed detection. On August 15, 2017, at about 5:50 p.m., he was “running the
stationary radar post” on Sandhill Road; Karolyi had just completed a traffic stop and was
moving back to his position where he was “running stationary radar.” Karolyi testified
that he was traveling eastbound on Sandhill near Eastview, and he saw a vehicle coming
toward him (Flagg’s vehicle) that appeared to be traveling at a speed much greater than
the posted 25 mph limit. Karolyi moved his radar into the “moving mode” and recorded
the car’s speed at 52 mph. According to Karolyi, the calibration of his radar was checked
prior to the start of his shift that day, after each traffic stop he made that day, and again
after he stopped Flagg.
{¶ 7} Karolyi testified that he made U-turn, got behind Flagg’s car, and activated
his emergency lights to effectuate a traffic stop. He “used a couple of short chirps” of his
siren, at which point Flagg pulled into a yard on Sunset. Karolyi explained the reason
-4-
for the stop to Flagg, who “stated that his flip-flop or his sandal had gotten stuck on the
gas pedal, he wasn’t intending going that fast however * * * his footwear caused him to
increase to that speed.” Karolyi issued a citation to Flagg.
{¶ 8} On cross-examination, when shown a copy of Flagg’s citation, Karolyi
testified that the ticket accurately reflected the conditions at the time of the traffic stop.
He testified that “the roadway was dry. It was a clear, sunny day. Wasn’t any adverse
weather. Traffic was moderate. It’s a residential area.” A video of the traffic stop was
played for the magistrate, after which defense counsel observed that there seemed to be
no other cars on the road. Karolyi responded that “in that short seven, eight seconds,
you are correct, there was not any [other car] right then and there. There was one
coming up after I made my U-turn, behind me.”
{¶ 9} The following exchange occurred:
DEFENSE COUNSEL: Officer, I’m going to make a statement and I
want to know whether you agree or disagree with me on this particular
statement. Would you agree that a person whose speed is unsafe for
conditions also has a speed that is unreasonable for conditions?
PROSECUTOR: And I’m going to object. We’re not proceeding
under unsafe conditions. We’re proceeding that he traveled over [a]
posted speed limit. The question is irrelevant.
***
DEFENSE COUNSEL: I believe it is relevant because I have a
motion in this particular matter and both the Revised Code and Codified
Ordinances of Fairborn discuss reasonable * * * in the wording.
-5-
MAGISTRATE: I’m going to agree with [the prosecutor] that that’s
irrelevant.
{¶ 10} The defense did not call any witnesses. At the conclusion of the trial, the
magistrate found that Officer Karolyi’s testimony was credible and found Flagg guilty of
speeding 52 mph in a 25 mph zone. The magistrate imposed a fine of $85 plus court
costs.
{¶ 11} On March 8, 2018, Flagg filed objections to the magistrate’s decision. He
argued:
* * * On the day of trial, defense counsel attempted to raise the issue
of whether the speed was reasonable for conditions. The prosecution
objected arguing that this Court had already addressed the issue when it
overruled the defendant’s motion. The Magistrate agreed with the [City],
held that the issue of whether the speed was reasonable for conditions had
previously been presented in the defendant’s motion and had been
overruled by the Court. The Magistrate sustained the prosecution’s
objection and ordered that the defendant was not permitted to raise that
issue or present evidence on that issue before the trial court.
Flagg argued that the Magistrate erred to his prejudice by prohibiting him from arguing
that his speed was reasonable for the conditions.
{¶ 12} On July 27, 2018, the municipal court sustained Flagg’s objection. The
court determined as follows:
* * * [Fairborn Ordinance 331.13] as applied to the case sub judice is
a prima facie violation, not a per se violation. As such, once the [City] has
-6-
established a prima facie case establishing a rebuttable presumption, the
defendant may present evidence showing that in the circumstance the
speed was neither excessive nor unreasonable. * * *
At the trial, defense counsel began to ask the citing officer whether
a person whose speed is unsafe for conditions is unreasonable for
conditions. The Magistrate granted the objection and did not allow
evidence to be presented on this issue. The Court finds that the Magistrate
erred in not allowing evidence to be submitted by the defendant to rebut or
negate the prima facie case with evidence that the speed was neither
excessive nor unreasonable.
* * * This matter is hereby remanded for trial before the Magistrate to
allow additional evidence consistent with this decision.
{¶ 13} The magistrate held another hearing on August 21, 2018. The following
exchange occurred at the start thereof:
MAGISTRATE: * * * It’s my understanding that the Judge has
remanded the case * * * to allow [Defense Counsel] to ask a question.
[DEFENSE COUNSEL]: Yes.
MAGISTRATE: I think – at the original trial, the prosecutor objected
to a question and I sustained the objection.
The Judge has reviewed [Defense Counsel’s] objection and agreed
with [him] that I should not have sustained the objection. * * *
[DEFENSE COUNSEL]: Yes.
MAGISTRATE: Is that - - are we all on the same page?
-7-
[PROSECUTOR]: It was my understanding that it was remanded
for a new trial unless defense is willing to stipulate to the testimony that’s
already been presented by the officer.
***
MAGISTRATE: A brand new trial?
[DEFENSE COUNSEL]: * * * I - - believe the court is correct, that it
was remanded simply to permit me to put on evidence regarding conditions.
The state has already met its initial burden of establishing a prima
facie case that my client exceeded the speed limit of 25 miles an hour, was
inside the city.
I wanted to put on some evidence regarding the reasonableness for
the conditions, which means I need to discuss the conditions.
***
MAGISTRATE: * * * And so - - [Prosecutor], do you feel like you still
need to redo the whole trial or do you feel like just allowing [Defense
Counsel] to cross-examine the officer would be sufficient?
[PROSECUTOR]: I guess what I - - what I heard [Defense Counsel]
say is that * * * they agree that the defendant was travelling within the city
limits of Fairborn, that the posted speed limit was 25 and he was travelling
52.
And * * * if you’re willing to stipulate to that, I don’t think we need to
redo all of that testimony.
[DEFENSE COUNSEL]: I’ll - -
-8-
***
[DEFENSE COUNSEL]: - - stipulate to the fact that he was
exceeding the speed limit. The speed limit’s 25 in that particular area.
[PROSECUTOR]: In that case, then I think we need to put the
officer back on to do my portion of it. I - - ‘cause I think she remanded it
for a new trial to allow him to ask those questions but I don’t know how you
can remand it just for cross.
MAGISTRATE: * * * We’ll start fresh, new today. * * *
{¶ 14} After Officer Karolyi was put under oath, the following exchange occurred:
[DEFENSE COUNSEL]: May I have a few minutes with the
prosecutor to see if we can iron this out and * * * not waste any of the court’s
additional time?
***
[DEFENSE COUNSEL]: * * * [T]he initial issue is is there a prima
facie showing that my client was exceeding the speed limit, * * * there is a
showing to that extent and the court [sic] has met its burden there. We - -
redo this and the result will be the same, my client was exceeding the posted
speed limit.
We’re not saying Mr. Flagg was doing 35 or 36. We’re just saying
he was exceeding the posted speed limit and with that, and that alone, the
court would be correct in finding him guilty.
However, * * * my client can rebut that initial showing regarding the
reasonableness of the conditions at the time and whether those conditions
-9-
were optimal for (inaudible) speed or horrible, glare ice, demanding * * * a
much lower speed than the posted 25.
MAGISTRATE WOMACK: * * * I didn’t actually speak to the Judge
about this.
I’ve only read her written decision and so if there’s some confusion
about whether it’s remanded for a whole new trial or just remanded to allow
cross-examination, * * * I’m going to just start fresh * * * and it was some
time ago that we had the hearing and so we’ll just start fresh with a whole
new trial * * *.
{¶ 15} Officer Karolyi testified that he was working the day shift from 7:00 a.m. to
7:00 p.m., when he observed Flagg while travelling east on Sandhill Road. Karolyi
testified that, as he was nearing the intersection of Eastview, he saw a maroon vehicle
coming toward him that appeared to be travelling at an excessive rate of speed and over
the 25 mph posted limit. Karolyi stated that he was trained in the visual estimation of
speed. He activated his radar in the “moving mode” upon seeing Flagg, and it gave him
a reading of 52 mph. He testified that his radar device was properly calibrated and that
the area of Sandhill Road with the posted speed limit of 25 mph was within the City of
Fairborn.
{¶ 16} Karolyi testified that he made a U-turn in the intersection of Eastview and
got behind Flagg. Flagg turned onto Sunset as Karolyi activated his lights; Karolyi
explained that Sunset makes a hard turn to the left, at which point Flagg pulled into the
“front tree lawn” of a residence, which was defense counsel’s residence. Karolyi testified
that Flagg apologized and stated that he “didn’t intend to go that fast. There was
-10-
something about his sandal got stuck on the gas pedal.”
{¶ 17} On cross-examination, Karolyi testified about the boundary between the
township and the City of Fairborn on Sandhill. Karolyi also testified that the road was
dry, visibility was clear, there were no adverse conditions, and traffic was moderate.
Karolyi testified that, in addition to his and Flagg’s vehicles, there was traffic “coming off
the side streets.” The dash camera video was played for the magistrate. Thereafter,
the following exchange occurred:
Q [DEFENSE COUNSEL]. * * * The classification of the traffic at the
time, you classified as moderate. Do you still believe that that was
moderate? * * *
A [KAROLYI]. In that short snippet of the video, I would say not but
it - - I was in that area for several minutes prior to that, operating traffic.
It’s kind of like if the sun is out, then it goes behind a cloud, it’s not
cloudy that day. So the exact time that that vehicle was on the roadway,
light to moderate, depending on how you determine how many vehicles
make moderate.
Q. How about none to light?
A. I said at least three vehicles to me could be light to moderate.
Q. * * * We can run through this again. I only saw your car.
A. You are correct.
Q. And his car?
A. That is correct.
***
-11-
Q. * * * The ticket you issued * * * with the exception of what we just
discussed here, you stand by the ticket as far as all the conditions?
A. Yes.
{¶ 18} On redirect examination, Karolyi was asked whether, in his 27 years of
experience, it was safe to travel more than twice the posted limit; he responded that he
had considered charging Flagg with reckless driving rather than speeding, because of the
residential nature of the area and how hast he was driving.
{¶ 19} Flagg testified that, on the day he was cited, the pavement was dry, visibility
was good, it was sunny, and there were no adverse conditions. When asked about the
level of traffic, he testified that it was “[j]ust [him] on the road” and that the road he was
driving on was “just clear all the way through.” Flagg testified that he did not see any
pedestrians or anyone outside in a yard. He also testified that he “really couldn’t drive
because [his] sandals * * * kept slipping.”
{¶ 20} At the start of the prosecutor’s cross-examination, Flagg’s attorney advised
the court that Flagg had been operating his (defense counsel’s) vehicle when he was
stopped; the vehicle was for sale and Flagg had been test-driving it. In his testimony,
Flagg agreed that the speed limit in the area of his stop was 25 mph. He asserted he
had actually slowed the vehicle down and unhooked his seatbelt to grab his sandal, and
then when he looked up, “the officer was looking at [him] like what are you doing,”
whereupon Flagg drove to defense counsel’s house. Flagg testified that, as soon as he
got out of the car, Karolyi “attacked” him.
{¶ 21} Flagg testified that he was travelling between 27 and 30 mph, which he
knew because he was “in second gear” and his down-shifting “would have dropped [his]
-12-
speed down.” Flagg testified that Karolyi’s testimony that he apologized to the officer
and told him that he did not intend to go so fast, but was having trouble with his sandal,
was inaccurate. Flagg testified that he explained that his movements within the car,
which he assumed had been seen by Karolyi, were because he had a problem with his
sandal.
{¶ 22} On redirect examination, Flagg testified that the vehicle was a four-door
Saturn five speed with a stick shift. He testified that he “knew what [he] was doing,” but
he had to get his sandal off to “get the car back home.” Flagg testified that, upon seeing
him, Karolyi turned around, followed him, and drew his gun.
{¶ 23} On recross-examination, Flagg was asked if Karolyi’s gun was visible in the
video, Flagg responded that, when he (Flagg) got out of the vehicle, Karolyi “jumped
behind his vehicle and said free (phonetic), get back in the car.” When defense counsel
approached an explained that Flagg had been test-driving counsel’s car, “then the officer
put his gun back into his holster” and said he was sorry.
{¶ 24} Karolyi was then re-called, and he denied drawing his weapon in the course
of the stop. He stated that, when Flagg got out of the vehicle, Karolyi told him to get back
inside it.
{¶ 25} In a September 6, 2018 decision, the magistrate found that the City had
established a prima facie case of speeding under the ordinance and that Flagg did not
dispute traveling 52 mph, but that Flagg argued that this speed was “reasonable for the
conditions.” The magistrate noted that Flagg pointed to the fact that the road was dry, it
was sunny, and there was no other traffic, but the magistrate concluded that “these facts
alone do not rebut [the] presumption. Although it was dry and sunny, Defendant was
-13-
exceeding the limit by 27 mph in a residential area where there are many driveways,
mailboxes and mature trees” and a nearby park. The magistrate credited Karolyi’s
testimony that Flagg had stated that he had not intended to go so fast, but his sandal got
stuck on the gas pedal and he had to reach down to free it. The magistrate also noted
that Flagg “was distracted when reaching down while traveling without a seatbelt at this
rate of speed.” According to the magistrate, Karolyi’s dash cam video depicted Flagg
speeding past an intersection and quickly approaching another, Sunset Drive, onto which
Flagg made a sharp left turn before pulling onto the front lawn of a residence. The
magistrate concluded that Flagg’s speed was “unreasonable and excessive,” that “the
City’s prima facie case of speeding was not overcome,” and that the evidence supported
a finding of guilt.
{¶ 26} Flagg filed objections to the magistrate’s decision on September 20, 2018.
Flagg argued that the magistrate had erred to the his prejudice by failing to comply with
the previous instructions of the trial court when she conducted a trial de novo instead of
the limited hearing to permit introduction of evidence related to the conditions at the time
of the traffic stop. Flagg also asserted that any “evidence produced by the [City] at the
second hearing was not properly before the Magistrate” and any decision rendered as a
result of that of that evidence was “unwarranted.” Flagg asserted:
While the Magistrate found that “Sandhill Road is a small two lane
road in a residential area with a park nearby,” she failed to acknowledge
that the park is not in the vicinity of the speeding violation. * * * There is
nothing to suggest that Sandhill Road is “small” or is any smaller than similar
roads such as Hyde Road with a 55 mph limit. * * * The Magistrate also
-14-
stated: "Although it was dry and sunny, Defendant was exceeding the limit
by 27 mph in a residential area where there are many driveways, mailboxes
and mature trees. The Officer testified that there was a nearby park as
well.” There was no evidence that there were many driveways, mailboxes
and mature trees. Any testimony regarding a park was inappropriate
because the park was not in the area of the violation. There was testimony
that there was not another car in sight, that there were no pedestrians, that
there were no stray animals and that there were no cyclists. A review of the
dash cam video shows that, prior to seeing the defendant’s car, the police
car was traveling at 35 mph and, it follows, the officer either believed that
the speed limit should be greater than 25 mph or that he was simply
speeding. The Officer admitted that he did not mark the ticket as “unsafe
for conditions.” The Officer agreed that if speed is not unsafe for
conditions, it is reasonable for conditions. When asked whether he would
change anything on the ticket, the officer stated “No.” The defendant
testified that, while he had an issue with one of his sandals, it did not impair
his driving, that he had his eyes on the road at all times and that he was in
full control of the vehicle at all times. The Officer did not suggest, and the
record does not support, any allegation of distracted driving, erratic driving
or failure to maintain the lane of travel.
{¶ 27} On November 30, 2018, the court sustained in part and overruled in part
Flagg’s objections. The court found that the magistrate did not err by holding a new trial
and that the new trial did not prejudice Flagg, because even if the magistrate had only
-15-
held a limited hearing, as Flagg wanted, the City would still have been able “to cross-
examine witnesses and ask questions on redirect, and call witnesses in rebuttal, just as
it did in the new trial.” According to the court, “it was a difference without a distinction.”
The court noted that the area where Flagg’s vehicle was clocked travelling 52 mph was
a residential area, with a dog park and recreational park shortly down the road, while
acknowledging that it was “a clear and sunny day with clear visibility and no adverse
conditions.”
{¶ 28} The court found Flagg’s objection to the magistrate’s finding that “the road
was small and there were many driveways, mailboxes, and mature trees” to be
meritorious. According to the court, there was no evidence of the size of the road or the
location of driveways, mailboxes, or mature trees. Thus, the magistrate’s finding in this
respect was incorrect. The court also noted, however, that Flagg suggestion that the
park on Sandhill Road was not near the location of the speeding violation would “also
fabricate evidence, as that information was not produced as evidence at trial.” The court
noted that, although defense counsel tried to suggest during his closing remarks that the
park was not close to the stop, closing remarks are not testimony.
{¶ 29} The court concluded as follows:
Defendant argued at trial that because dogs and children were not
present at the time of the violation, that Defendant’s speed was safe for
conditions. The Court finds that the State met its burden in proving the
prima facie case that Defendant was speeding when operating the Saturn
at 52 miles per hour in a 25 mile per hour zone. The Court further finds
that Defendant failed to establish a rebuttable presumption that the speed
-16-
was neither excessive nor unreasonable. The evidence established that
the area of the violation was residential with a dog park and recreational
park down the road. The Court finds that travelling 52 miles per hour in a
residential area with a dog park and a recreational park just down the road
is unreasonable as well as excessive.
{¶ 30} The court found Flagg guilty of violating Fairborn Codified Ordinance
331.13, and it imposed a fine of $85 plus court costs. Flagg filed a motion for a stay
pending appeal, which the municipal court granted.
{¶ 31} Flagg asserts two assignments of error herein which we will consider
together. They are as follows:
A TRIAL COURT ERRS, AS A MATTER OF LAW, WHEN IT
PRESUMES WHAT EVIDENCE A PARTY WOULD PRESENT AND
PROCEEDS TO REACH A JUDGMENT BASED ON THAT
PRESUMPTION.
THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT BY CONSIDERING EVIDENCE OUTSIDE
THE AREA OF THE SPEEDING OFFENSE WHEN DETERMINING
WHETHER THE SPEED WAS REASONABLE FOR CONDITIONS.
{¶ 32} We initially note that both parties erroneously captioned their briefs “State
of Ohio v. Ronnie Flagg,” and that the proper case name is “City of Fairborn v. Ronnie
Flagg.” Despite the repeated references in the briefs to “the State,” the State of Ohio is
not a party herein.
-17-
{¶ 33} Flagg directs our attention to Crim.R. 191 and asserts that the case was
remanded to the magistrate “with limiting instructions” that afforded Flagg the opportunity
to present evidence regarding the conditions at the time of the stop. He argues that there
had been a previous determination that the City met its prima facie burden of proof, and
therefore “the evidence to be presented should have been in the sole discretion of
defense counsel.” Flagg asserts that the “trial court presumed that the prosecution
would be able to present the same evidence it did present based on the evidence defense
counsel might present. This presumes that defense counsel would have called Officer
Karolyi and that defense counsel would have covered the same evidentiary areas as the
State did in its direct.” Flagg argues that these presumptions were “unwarranted.”
According to Flagg, the main area of contention related to Karolyi’s characterization of
the traffic at the time of the stop as “moderate.” The defense believed that
characterization to be inaccurate and in direct conflict with the dash cam video, which
showed two cars on the road, one belonging to the police department and the other driven
by Flagg. He asserts that there was “nothing to show that Flagg would have called any
witnesses much less Officer Karolyi. It is unlikely that Flagg would have introduced
evidence related to a dog park or a park because such evidence was irrelevant.” Flagg
argues that, if “the parks had any significance, the State would have elicited testimony
regarding them at the earlier hearing.” Flagg asserts that the magistrate chose to ignore
1 “Crim.R. 19 governs the authority of magistrates in criminal cases. * * * [M]agistrate’s
sitting in misdemeanor cases are authorized to ‘determine guilt or innocence, receive
statements in explanation and in mitigation of sentence, and recommend a penalty to be
imposed.’ ” State v. Pennington, 2d Dist. Montgomery No. 23367, 2010-Ohio-2139, ¶ 12.
“A magistrate’s decision is not effective unless it has been adopted by the court. Crim.R.
19(D)(4)(a).” Id. at ¶ 14.
-18-
the trial court’s order “and grant a new trial to the prosecution.”
{¶ 34} In his second assignment of error, Flagg asserts that the trial court erred by
considering irrelevant evidence, because when a trial court determines whether an
alleged speeder has met his burden of establishing that the speed was reasonable for the
conditions, the court is limited to considering only those conditions present “at [the]
immediate time and place of the alleged violation.” Based on his argument that “Ohio is
a ‘reasonable conditions’ State,” Flagg argues that the conditions at the time and place
of an alleged violation may rebut evidence that a defendant was exceeding the speed
limit. “Essentially, with few exceptions, there is no fixed speed limit in Ohio.”
{¶ 35} According to Flagg, whether a driver’s speed is excessive or unreasonable
under the circumstances is a question of fact. He argues that Officer Karolyi did not
check the box on the citation for “Unsafe for conditions,” so there was nothing to suggest
that he found Flagg’s speed unsafe or unreasonable for conditions. Flagg also argues
that the dash cam video of the incident showed there were only two cars on the road, the
patrol car and Flagg’s car. According to Flagg, “Sandhill is capable of sustaining 55 mile
per hour traffic and two portions of the road are in the township and are subject to a 55
mile per hour speed limit.” Flagg also asserts that there was no evidence in the record
“to show that either [he] or the police car drove past” a dog park or a recreational park or
that any person or dog was in danger.
{¶ 36} According to Flagg, the “central issue is: what were the conditions at the
time and place of the violation? There is a dog park down the road. There is a
recreational park down the road. Neither car passed either park. * * * The State did not
introduce any evidence to show the proximity of the parks to the speeding violation.”
-19-
Flagg asserts that his speed was reasonable considering the conditions existing at the
time, and that “preceding conditions or subsequent conditions [were] irrelevant for
determining the reasonableness” of his speed. He argues that conditions and traffic
levels at other times were irrelevant. Flagg argues that the trial court erred by
considering the parks “when the evidence shows that the parks were not in the immediate
vicinity of the incident.” Flagg asserts that, while the evidence showed that he exceeded
the speed limit, the evidence also showed that “the conditions at the time of the incident
were optimal and that, under those conditions, the defendant’s speed was not
unreasonable.”
{¶ 37} Finally, Flagg asserts as follows:
This matter was returned to the magistrate with specific limiting
instructions to permit the introduction of evidence regarding the conditions
existing at the time of the incident. Although the State had not complied
with the rules covering objections to a magistrate’s decision, the magistrate,
nevertheless, granted a new trial to the State. When Flagg objected, the
trial court determined that any evidence presented at the second hearing
would have to have been presented anyway because the State could cross-
examine defense witnesses and could offer rebuttal testimony. It follows
that the trial court would have to presume what evidence, if any, the defense
would offer. The trial court would also have to presume that the defense
objections regarding the scope would automatically be overruled. A trial
court errs when it presumes what evidence the defendant would have
offered.
-20-
{¶ 38} The City responds that the trial court did not err by holding a new trial when
the matter was remanded for the purpose of allowing Flagg to present evidence that his
speed was neither excessive nor unreasonable. According to the City, a new trial was
held, rather than a limited trial, because Flagg “would not stipulate to the testimony that
had already been presented by the officer.” The City asserts that Flagg was given ample
opportunity to present evidence, such as “the conditions at the time of the arrest, including
visibility, pavement conditions, and weather.” According to the City, Flagg “believes that
if the trial had been limited, Officer Karolyi would not have mentioned the parks down the
road on Sandhill. However, as the court held, the State would still have been able to
cross-examine witnesses, ask questions on redirect, and call witnesses in rebuttal.” The
City asserts that Flagg could have questioned the officer regarding the proximity of the
park or put on his own testimony about the closeness of the park, but he chose not to do
so. According to the City, the new trial did not prejudice Flagg; it afforded him the same
opportunities he would have had if the trial had been limited to cross-examination. “The
court did not presume what evidence Flagg would have presented because the new trial
allowed him to present his evidence in whatever way he chose.”
{¶ 39} Regarding Flagg’s second assignment of error, the City argues that Flagg
failed to present evidence necessary to overcome the rebuttable presumption created by
the prima facie speeding. “Under Ohio Rev. Code § 4511.21, it is prima facie unlawful
for any person to exceed any of the speed limitations established by statute.” The City
asserts that, while a court may find sufficient evidence to rebut this presumption, it is not
required to do so “just because a defendant presents supporting evidence.” The City
argues that it proved its prima facie case, and Flagg failed to overcome the rebuttable
-21-
presumption by showing that his speed was neither excessive nor unreasonable. The
City asserts that the location of the parks merely showed the character of the surrounding
area. Although Officer Karolyi did not check the box marked “unsafe for conditions,” “in
other cases, the courts have found that ‘unsafe for conditions’ does not need to be marked
to sustain a conviction under the prima facie provision of the statute.” The City argues
that the primary focus of the trial court’s decision was that Flagg was speeding at 52 mph
in a residential area.
{¶ 40} In reply, Flagg asserts that he testified that “the sandal issue did not impair
his driving and did not distract his attention from the road.” According to Flagg, although
Karolyi stated that the area was “residential,” counsel could not find Karolyi’s statement
that there were many driveways in the area and there was nothing to show that there
were many driveways.
{¶ 41} Flagg asserts that he does not suggest that a new trial prevented him from
offering testimony or evidence in support of his theory of the case, but rather that there
was “no legal reason for ignoring the trial judge’s clear orders that limited the hearing to
such evidence that the defendant chose to present” in support of his theory of the case
and, instead, affording a new trial, when the City had not complied with the requirements
necessary to merit a trial de novo. Flagg argues that he had admitted that the City had
already met its prima facie burden necessary to establish the offense of speeding.
{¶ 42} Flagg argues that the citation and Karolyi’s testimony established that there
were no adverse conditions. The only controversy involved the traffic conditions at the
time and place of the stop. The officer characterized the traffic conditions as “moderate,”
but the dash cam video did not support that characterization. He argues that the trial
-22-
court’s presumptions about what evidence he would have introduced and about the
resolution of any objections he may have made regarding material outside of the scope
of direct were unwarranted. He notes that there was no mention of either a park or a
dog park at the first hearing. According to Flagg, if the parks were important, the City
would have presented evidence about them at the first hearing rather than presenting
such evidence “as innuendo” at the second hearing. Flagg asserts that if he had been
permitted to present his evidence under the limited order on remand, evidence about the
parks may never had been admitted, “because the parks would have been outside of the
scope of direct and improper on cross.” He claims prejudice because the trial court
mentioned both parks in its decision, although neither park was in the immediate area of
the violation.
{¶ 43} Flagg argues that questions regarding whether a speed is reasonable for
conditions “must, of necessity, consider the immediate vicinity of the violation.” He
argues that, while Karolyi testified that a park and dog park were “down the road,” he “did
not testify as to how far down the road meant.” Flagg asserts that there was testimony
that portions of Sandhill were located in the township with a 55 mph speed limit; “[t]here
was nothing to suggest that the road was not uniform throughout and the reasonable
presumption is that the road is capable of supporting a vehicle travelling at 55 miles per
hour.” According to Flagg, the dash cam video shows “nothing on the road,” and if “the
purpose of a speed limit is to prevent one car from striking either another or another object
or person, the defendant’s speed was reasonable for that purpose. Simply stated, you
can’t hit something when there is nothing to hit.”
{¶ 44} City of Fairborn Codified Ordinance 331.13 governs speed limits and
-23-
provides:
(a) No person all operate a motor vehicle at a speed greater or less
than is reasonable or proper, having due regard to the traffic, surface and
width of the street or highway and any other conditions, and no person shall
drive any motor vehicle, in and upon any street or highway at a greater
speed that will permit him to bring it to a stop within the assured clear
distance ahead.
(b) It is prima-facie lawful, in the absence of a lower limit declared
pursuant to this section by the Ohio Director of Transportation or local
authorities, for the operator of a motor vehicle, to operate the same at a
speed not exceeding the following:
***
(3) Twenty-five miles per hour in all other portions of the City, except
on State routes, through streets and through highways outside business
district and alleys;
***
(c) It is prima-facie unlawful for any person to exceed any of the
speed limitations in any section of this Traffic Code, or any declared by the
Ohio Director of Transportation or local authorities.
“Where a municipal ordinance makes it prima facie unlawful for a motor vehicle to exceed
a certain speed limit in a described locality, a speed greater than that specified does not
establish the commission of an offense or constitute unlawful conduct per se, but
establishes only a prima facie case under the ordinance. * * *.” Village of St. Paris v.
-24-
Malikov, 2d Dist. Champaign No. 2007 CA 6, 2007-Ohio-6260, ¶ 22, quoting Cleveland
v. Keaha, 157 Ohio St. 331, 105 N.E.2d 402 (1952) and Village of Bellville v. Keiffaber,
114 Ohio St.3d 124, 2007-Ohio-3763, 870 N.E.2d 697, ¶ 17.
{¶ 45} As noted by the Twelfth District:
* * * A prima facie case is one in which the evidence introduced is
sufficient to support, but not to compel a certain conclusion. * * * The trier
of fact may determine that prima facie evidence alone is sufficient to
establish a fact, but is not required to do so. * * * Instead, the trier of fact
may be swayed by other evidence or by the facts and circumstances of the
case. * * * Id. Such a provision creates “a rule of evidence raising a
rebuttable presumption which may be overcome by evidence that in the
circumstances the speed was neither excessive nor unreasonable. * * *
State v. Rimedio, 12th Dist. Butler No. CA2002-04-084, 2003-Ohio-79, ¶ 8, citing Keaha
at 336 and others.
{¶ 46} As this Court has noted:
* * * [W]hat is reasonable and proper under the circumstances is a
question of fact. A question of fact is always for the lower court to decide.
The only reason a lower court’s decision on an issue of fact would be
overturned by a higher court would be if the decision was against the
manifest weight of the evidence. Judgments supported by some
competent, credible evidence going to all the elements of the case will not
be reversed by a reviewing court as being against the manifest weight of
the evidence. * * *
-25-
State v. Winkler, 2d Dist. Champaign No. 98-CA-18, 1999 WL 55720, *2 (Feb. 5, 1999).
{¶ 47} Officer Karolyi testified that his radar device detected Flagg’s speed at 52
mph. As the trial court correctly determined, Flagg was entitled to present evidence to
overcome the rebuttable presumption that arose from the evidence that he exceeded the
25 mph limit. We have reviewed the video of the stop, and we agree with Flagg that the
Saturn and Karolyi’s cruiser were the only vehicles visible on Sandhill Road at the time of
the stop. We conclude, however, even without considering any testimony about
“moderate” traffic and nearby parks,2 that Flagg failed to rebut the prima facie evidence
of unreasonable speed with evidence that his speed was not excessive or unreasonable
under the circumstances. We also note that, contrary to the trial court’s conclusion,
several driveways, mature trees, and mailboxes were plainly visible in the video along the
edge of Sandhill Road. We further note that Flagg passed a 25 mph speed limit sign on
Sandhill Road, which was observable in the video.
{¶ 48} Flagg’s speed was more than twice the posted limit, and Karolyi wrote on
Flagg’s citation that Flagg told him that “his sandal was stuck on the gas pedal and he did
not intend to go that fast.” Karolyi’s testimony at the second hearing was consistent with
his comment on the ticket. Flagg himself testified that he “really couldn’t drive” because
of his sandals. While Flagg asserts that Sandhill was “capable of sustaining” 55 mph
traffic and that two portions of the road in the township were subject to a 55 mph speed
limit, the fact that the speed limit was reduced to 25 mph in the residential area of Flagg’s
2
We note that Flagg attached a Google Maps printout of Sandhill Road to his motion to
dismiss. It depicted Sandhill Road Park, and according to the legend of the map, the
park was approximately 200 feet from Sunset Drive. However, the map was not admitted
as an exhibit at either trial.
-26-
offense, where there were side streets, mailboxes, and multiple driveways perpendicular
to Sandhill Road, further supported the conclusion that 52 mph was excessive and
unreasonable there, regardless of dry pavement, clear visibility and a lack of adverse
conditions. For the foregoing reasons, Flagg’s assigned errors are overruled.
{¶ 49} The judgment of the trial court is affirmed.
.............
WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Brittany A. Doggett
John K. Limoli
Hon. Beth W. Cappelli