City Of Barberton v. Jenney

• Decision Date: 02 June 2010
• Docket Number: No. 2009-1069.,2009-1069.
• Citation: 929 N.E.2d 1047,2010 Ohio 2420,126 Ohio St.3d 5
• Parties: CITY OF BARBERTON, Appellee,v.JENNEY, Appellant.
• Court: Ohio Supreme Court

126 Ohio St.3d 5

929 N.E.2d 1047

2010 Ohio 2420

CITY OF BARBERTON, Appellee,v.JENNEY, Appellant.

No. 2009-1069.

Supreme Court of Ohio.

Submitted Feb. 17, 2010.

Decided June 2, 2010.

Syllabus of the Court

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.

Michelle Banbury, City of Barberton Law Department Assistant Prosecuting Attorney, for appellee.

John Kim, Akron, for appellant.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, and Emily S. Schlesinger, Deputy Solicitor, urging affirmance for amicus curiae, Ohio Attorney General.

O'CONNOR, J.

{¶ 1} In this appeal, we determine whether a police officer's unaided visual estimation of a vehicle's speed, by itself, is sufficient evidence of the vehicle's speed to support a conviction for speeding in violation of R.C. 4511.21(D). Appellant, Mark Jenney, argues that it is impossible for a police officer to visually estimate the exact speed of a moving object. He asks the court to establish a bright-line rule that an officer's visual estimation of speed, without other evidence to support it, is insufficient to sustain a conviction for speeding.

{¶ 2} A rational trier of fact could find testimony by a police officer who is trained, certified by the Ohio Peace Officer Training Academy (“OPOTA”) or a similar organization, and experienced in visually estimating vehicle speed that he estimated a vehicle's speed to be in excess of the posted limit sufficient evidence to establish a violation of R.C. 4511.21(D) beyond a reasonable doubt. We therefore hold 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.

Relevant Background

{¶ 3} On July 3, 2008, Officer Christopher R. Santimarino was in a marked patrol car running stationary radar at southbound traffic on State Route 21 in Copley Township, Ohio. The posted speed limit in that location is 60 miles per hour. Santimarino observed Jenney driving a black SUV in the left lane of Route 21 in moderate to heavy traffic. Santimarino determined that Jenney was traveling faster than the posted speed limit, initiated a traffic stop, and issued Jenney a citation for traveling 79 miles per hour in a 60-mile-per-hour zone in violation of R.C. 4511.21.¹

{¶ 4} The case proceeded to trial in the Barberton Municipal Court.

{¶ 5} At trial, Santimarino testified that he had been employed as a patrolman with the Copley Police Department for 13 years. He testified that he was certified by OPOTA and had been working in traffic enforcement since 1995. Santimarino testified that as part of his OPOTA training, he was trained to visually estimate the speed of a vehicle. In order to be certified by OPOTA, Santimarino was required to show that he could visually estimate a vehicle's speed to within three to four miles per hour of the vehicle's actual speed, which he did. Further, Santimarino testified that since becoming a police officer in 1995, he had performed hundreds of visual estimations. Santimarino testified that based on his training and experience, he had estimated that Jenney's vehicle was traveling 70 miles per hour on July 3, 2008.

{¶ 6} Santimarino also testified that in addition to his training and experience in visually estimating vehicle speed, he was trained and certified to use the Python brand Doppler radar unit that he was using on July 3, 2008. Santimarino testified on direct examination that after he visually estimated the speed of Jenney's vehicle, he observed that the radar unit indicated that Jenney's vehicle was traveling at 82 miles per hour.² Santimarino could not produce a copy of his radar-training certification when defense counsel requested he do so on the day of trial.

{¶ 7} Santimarino also testified that Jenney was traveling at an unreasonable speed for the conditions, given the other traffic in close proximity to his vehicle.

{¶ 8} In light of both his visual estimation and the radar reading, Santimarino initiated a traffic stop and issued Jenney a citation for traveling 79 miles per hour in a 60 mile per hour zone in violation of R.C. 4511.21. Santimarino testified that he reduced the rate of speed to 79 miles per hour to “give [Jenney] a break on the personal appearance in court,” which is required for speeds 20 miles per hour or more over the speed limit.

{¶ 9} At the conclusion of the city's case, Jenney moved for an acquittal pursuant to Crim.R. 29, arguing that the city had failed to meet its burden of proof. The trial court overruled Jenney's motion. Jenney then testified that before he was pulled over, he had been traveling in the right lane of traffic, not the left lane as Santimarino had testified, and that he had been traveling at the speed limit, 60 miles per hour.

{¶ 10} The trial judge found Jenney guilty of traveling over the posted speed limit. Based on Santimarino's visual estimation, which the trial court found to be his “strongest” testimony, the court amended the citation to state that Jenney had been traveling 70 miles per hour in a 60-mile-per-hour zone and imposed a $50 fine plus court costs.

{¶ 11} Jenney appealed his conviction to the Ninth District Court of Appeals, arguing that the trial court had erroneously permitted the city to amend the traffic citation and that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Jenney argued that the radar results were not admissible because the city had failed to establish a proper foundation for admission. Jenney maintained that without the radar results, the city had failed to present sufficient evidence of his speed and his conviction could not stand. The court of appeals held that because Santimarino could not produce his certificate to operate the radar unit on the day of trial, the state had not proved that he was qualified to operate the radar unit and the trial court had erred in permitting him to testify regarding the radar results.³ Id., ¶ 8. However the Ninth District held that the admission of Santimarino's testimony regarding the radar results was harmless error because his visual estimation of the vehicle's speed was sufficient to support Jenney's conviction. Id., ¶ 9.

{¶ 12} We accepted review of Jenney's discretionary appeal to determine whether a police officer's unaided visual estimation of a vehicle's speed, by itself, is sufficient to support a conviction for violation of R.C. 4511.21(D). Barberton v. Jenney, 123 Ohio St.3d 1406, 2009-Ohio-5031, 914 N.E.2d 204. We hold 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.

Analysis

{¶ 13} The trial court found appellant guilty of “traveling over the speed limit.” Pursuant to R.C. 4511.21(D)(6), “[n]o person shall operate a motor vehicle * * * upon a street or highway * * * [a]t a speed exceeding the posted speed limit * * *.” Jenney does not dispute that he was operating a motor vehicle on a street or highway and that the posted speed limit was 60 miles per hour. The only element of the offense that Jenney challenges as not supported by sufficient evidence is the speed at which he was driving.

{¶ 14} “ ‘ “[S]ufficiency” is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.’ ” State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed.1990) 1433. “In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Id. In reviewing a challenge to the sufficiency of the evidence, “ ‘[t]he 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. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

{¶ 15} “Visual observation has long been held a valid means of determining the speed of a moving vehicle as long as the witness has a reliable opportunity to view the vehicle.” State v. Harkins (Aug. 5, 1987), 4th Dist. No. 431, 1987 WL 15492, at *3. A majority of the appellate districts that have considered the issue have held that an officer's testimony that in his opinion, a defendant was traveling in excess of the speed limit is sufficient to sustain a conviction for speeding. Kirtland Hills v. Logan (11th Dist.1984), 21 Ohio App.3d 67, 69, 21 OBR 71, 486 N.E.2d 231; State v. Dawson, 5th Dist. No. 03-COA-061, 2004-...