State v. Reavis

[Cite as State v. Reavis, 2012-Ohio-4675.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2012-CA-0003
JESSICA REAVIS AKA REVIS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Morrow County
Municipal Court, Case No. 5911-2011-TRD-
4967
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: October 9, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEVEN PHILLIPS JESSICA FORREST
312 North Main Street JOHN KIM
Mt. Gilead, OH 43338-9789 6233 Michael Glen Lane
Wadsworth, OH 44281-8005
[Cite as State v. Reavis, 2012-Ohio-4675.]
Gwin, J.,
{¶1} Defendant Jessica Reavis aka, Revis, appeals a judgment of the
Municipal Court of Morrow County, Ohio, which convicted her for speeding in violation
of R.C. 4511.21 (D). Appellant assigns a single error to the trial court:
{¶2} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT
APPLYING R.C. 4511.091 (C) AND, IN SO FAILING TO APPLY IT, FINDING
DEFENDANT-APPELLANT GUILTY OF SPEEDING BASED SOLELY ON AN
OFFICER’S UNAIDED VISUAL ESTIMATION OF THE SPEED OF DEFENDANT-
APPELLANT’S MOTOR VEHICLE.”
{¶3} The State’s evidence consisted of the testimony of State Highway Patrol
Trooper Striker regarding his visual estimate of her speed and his use of the UltraLyte
20/20 Laser device to measure it. The court correctly found absent expert testimony or
judicial notice, it could not admit evidence of the construction, reliability, accuracy and
mode of operation of this device. Thus the court correctly found only the evidence of
the speed of appellant’s vehicle was the trooper’s visual estimate.
{¶4} R.C. 4511.091 (C) provides in pertinent part:
No person shall be arrested, charged, or convicted of a violation of any
provisions 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.
{¶5} The statute became effective on September 30, 2011.
Morrow County, Case No. 2012-CA-0003 3
{¶6} Appellant was stopped on August 25, 2011, prior to the effective date of
R.C. 4511.091. She was convicted on December 11, 2011, after the statute was
effective. The court found R.C.4511.091 was not retroactive to the date she was
charged and therefore does not apply to appellant. Instead, the court applied the
holding in Barberton v. Jenney, 126 Ohio St. 3d 5, 2010-Ohio-2420. In Jenney,
decided before the effective date of R.C.4511.091, the Supreme Court found an
officer’s unaided visual estimate of a vehicle’s speed is legally sufficient to convict if
there is evidence the officer has the appropriate training, certification, and experience.
{¶7} If R.C. 4111.091 provided only that no person shall be arrested or
charged, then it would clearly not apply to appellant. However, the Ohio Legislature
chose to include the phrase “or convicted” in the statute. The Supreme Court has
instructed us that where the language used in a statute is clear and unambiguous, we
must apply it as written, so as to give effect to the plain meaning of the words the
legislature chose. In Re: Adoption of M.B., 131 Ohio St. 3d 186, 2012-Ohio-236, 963
N.E. 2d 142 ¶ 19, citing In Re: Estate of Centorbi, 129 Ohio St. 3d 78, 2011-Ohio-2267,
950 N.E. 2d 505, ¶ 14. The Supreme Court found we must construe a statute as a
whole and give it the interpretation that will give effect to every word and clause. We
must not treat any part as superfluous unless it is manifestly so, and we must avoid
any construction which renders a provision meaningless. Id., citing State ex rel. Myers
v. Spencer Township Rural School District Board of Education, 95 Ohio St. 367, 377,
116 N.E. 516 (1917); and R.C. 1.47(B).
Morrow County, Case No. 2012-CA-0003 4
{¶8} In light of the above, we need not analyze R.C. 4511.091 to determine
whether it applies retroactively. The statute applies prospectively to appellant’s
conviction.
{¶9} We find the court erred in finding the statute inapplicable. The assignment
of error is sustained.
{¶10} For the foregoing reasons, the judgment of the Municipal Court of Morrow
County, Ohio, is reversed.
By Gwin, J.,
Delaney, P.J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0906
[Cite as State v. Reavis, 2012-Ohio-4675.]
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JESSICA REAVIS AKA REVIS :
:
:
Defendant-Appellant: CASE NO. 2012-CA-3
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Morrow County, Ohio, is reversed. Costs to
appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. SHEILA G. FARMER