City of Brook Park v. Rodojev

Decision Date10 June 2020
Docket NumberNo. 2019-0056,2019-0056
Citation161 Ohio St.3d 58,2020 Ohio 3253,161 N.E.3d 511
Parties The CITY OF BROOK PARK, Appellee, v. RODOJEV, Appellant.
CourtOhio Supreme Court

Peter A. Sackett, Cleveland, for appellee.

Mayle, L.L.C., Andrew R. Mayle, and Ronald J. Mayle, Fremont, for appellant.

Zach Klein, Columbus City Attorney, and Lara Baker-Morrish, Solicitor General, Columbus Department of Law; Lisa Okolish Miller, Barberton Director of Law; Anthony L. Geiger, Lima Director of Law; Jeanine Hummer, Upper Arlington City Attorney; Mitchell H. Banchefsky, New Albany Director of Law; Darren Shulman, Delaware City Attorney; and Tracy W. Meek, Athens Chief City Prosecuting Attorney, urging affirmance for amici curiae city of Columbus, city of Barberton, city of Lima, city of Upper Arlington, city of New Albany, city of Delaware, and city of Athens.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Thomas Edward Rovito and Frank Romeo Zeleznikar, Assistant Prosecuting Attorneys, urging affirmance for amicus curiae Cuyahoga County Prosecuting Attorney.

Stewart, J. {¶ 1} In this certified-conflict case following a judgment of the Eighth District Court of Appeals, we consider whether 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 underlying that technology. We answer that question in the affirmative, but we hold that the fact-finder is required to determine whether the evidence presented concerning the accuracy of the particular speed-measuring device used and the qualifications of the person who used it is sufficient to support a conviction based on the device's results.

Facts and Procedural History

{¶ 2} On May 17, 2017, a city of Brook Park police officer issued appellant, Joseph G. Rodojev, a traffic citation for driving his vehicle 15 miles per hour over the posted speed limit in violation of Brook Park Code of Ordinances 333.03. The officer calculated Rodojev's speed using the LTI 20/20 TruSpeed S laser speed-detection device. Rodojev pleaded not guilty in the Brook Park Mayor's Court and his case was transferred to the Berea Municipal Court.1 During Rodojev's bench trial, the trial court admitted into evidence and considered the results of the laser speed-measuring device without expert testimony establishing the reliability of the scientific principles underlying the device's technology. The trial court did not specifically take judicial notice of the device's reliability. The court convicted Rodojev of the charged offense.

{¶ 3} Rodojev appealed his conviction to the Eighth District Court of Appeals and raised an assignment of error challenging the trial court's admission of the results of the laser speed-measuring device without expert testimony establishing the scientific reliability of the technology.

{¶ 4} After reviewing Rodojev's argument under the plain-error standard of review, because Rodojev did not make an objection in the trial court based on the reliability of the device, the Eighth District affirmed Rodojev's conviction. 2018-Ohio-5028, 117 N.E.3d 175, ¶ 1, 10, 25. Citing this court's decision in E. Cleveland v. Ferell , 168 Ohio St. 298, 154 N.E.2d 630 (1958), the Eighth District determined that expert testimony establishing the reliability of the scientific principles underlying laser-speed-measuring-device technology is not required for a court to admit into evidence the results indicated by such a device. Id. at ¶ 23. The court reasoned that laser speed detection works on the same scientific principles as radar speed detection, which we deemed scientifically established in Ferell . Id. And challenges based on whether the device involved in a particular case had been properly maintained or used, and challenges based on the qualifications of the person who used the device, involve the sufficiency and weight of the evidence, not its admissibility. Id. at ¶ 10, 24.

{¶ 5} Recognizing that this court had not yet determined whether the results of a laser speed-measuring device are admissible without expert testimony establishing, or the court taking judicial notice of, the reliability of the scientific principles underlying the technology, the Eighth District certified that a conflict existed between its judgment in this case and the judgments of the courts of appeals in State v. Cleavenger , 2018-Ohio-446, 93 N.E.3d 1027, ¶ 34 (7th Dist.), and In re Z.E.N. , 2018-Ohio-2208, 114 N.E.3d 594, ¶ 19-24 (9th Dist.). Id. at ¶ 27.

{¶ 6} This court determined that a conflict existed and ordered the parties to brief the following issue:

"[W]hether the results of any speed measuring device, using either radar or laser technology, [are] admissible without expert testimony establishing, or the taking of judicial notice of, the scientific reliability of the principles underlying that technology."

154 Ohio St.3d 1520, 2019-Ohio-768, 118 N.E.3d 257, quoting 2018-Ohio-5028, 117 N.E.3d 175, at ¶ 27.

Analysis

{¶ 7} Rodojev urges this court to answer the certified question in the negative, reverse the judgment of the court of appeals, and hold that sufficient proof of the reliability of the scientific principles underlying laser speed-measuring devices is required in each case, either through expert testimony or judicial notice under Evid.R. 201. He argues that if we permit the admission of the results of a laser speed-measuring device into evidence without that foundation, no proof of reliability will be required respecting the most vital evidence in speeding-offense cases.

{¶ 8} We disagree with Rodojev and note from the outset that other than his challenge to the admissibility of the test results, he has not argued or presented any evidence suggesting that the reliability of the scientific principles underlying laser speed-measuring devices is invalid or even suspect. However, as the Eighth District noted in its decision, this court has not addressed the reliability of the scientific principles underlying radar speed-measuring devices since 1958, when we decided Ferell . See 2018-Ohio-5028, 117 N.E.3d 175, at ¶ 26. We additionally note that we have not addressed the admissibility of the results of laser speed-measuring devices based on the reliability of the scientific principles underlying the technology.

Radar Speed Devices

{¶ 9} In Ferell , this court took judicial notice of the reliability of the scientific principles underlying stationary radar speed-measuring devices. 168 Ohio St. at 303, 154 N.E.2d 630. British physicist James Clark Maxwell began experimenting with radar, the letters of which stand for "radio detection and ranging," in the 1860s. Ryan V. Cox & Carl Fors, Admitting Light Detection and Ranging (LIDAR) Evidence in Texas: A Call for Statewide Judicial Notice , 42 St. Mary's L.J. 837, 842-843 (2011). Radar works on the principle of bouncing radio waves traveling at the speed of light off a reflective object at a fixed frequency. Id. at 842. Radar uses long wavelength light from the radio portion of the electromagnetic spectrum. Daniel Y. Gezari, Use of Lasers in Speed Measurement, in 1 Campbell, Defense of Speeding, Reckless Driving and Vehicular Homicide , Section 9a.02 (2020). Radar speed-measuring devices send out a continuous beam of waves at a fixed frequency.2 Ferell at 300, 154 N.E.2d 630. When the waves are intercepted by a moving object, the frequency of the waves changes "in such a ratio to the speed of the intercepted object that, by measuring the change of frequency, the speed may be determined." Id. This is known as the "Doppler effect"—a common example of which is the change in pitch that can be heard when a vehicle with its horn or siren sounding passes the listener. See id.

{¶ 10} By the time this court decided Ferell , the Doppler effect had been used for nearly a century to calculate the speed of moving objects. Id. Thus, we held in Ferell that the results of radar speed-measuring devices are admissible without expert testimony, just as photographs, X-rays, electroencephalographs

, and speedometer readings had been deemed admissible without expert testimony. Id. at 303, 154 N.E.2d 630. However, we determined that the sufficiency of the evidence regarding the accuracy of the device and the qualifications of the person who used the device remained matters to be considered by the fact-finder on a case-by-case basis. Id.

{¶ 11} Sometime after this court's decision in Ferell , law-enforcement officers began using moving radar speed-measuring devices. Cleavenger , 2018-Ohio-446, 93 N.E.3d 1027, at ¶ 13. In Cleavenger , the Seventh District held that pursuant to this court's decision in Ferell , the results of radar speed-measuring devices (Doppler devices

), whether the device was stationary or moving, are admissible without expert testimony on the reliability of the scientific principles involved in the technology. Id. at ¶ 34.

{¶ 12} Like stationary radar speed-measuring devices, moving radar speed-measuring devices also operate using the Doppler effect, but moving radar speed-measuring devices are usually mounted inside of the police vehicle and can be used while the police vehicle is moving. Cox & Fors, 42 St. Mary's L.J. at 842-843, 846 ; see also Cleveland v. Tisdale , 8th Dist. Cuyahoga No. 89877, 2008-Ohio-2807, 2008 WL 2346440, ¶ 16. Differences in the devices include that a moving radar speed-measuring device must compensate for the speed of the police vehicle in relation to the vehicle it is tracking. See State v. Wilcox , 40 Ohio App.2d 380, 383-384, 319 N.E.2d 615 (10th Dist.1974). And rather than tracking an individual vehicle, a moving radar speed-measuring device usually tracks the fastest moving object within its range. Cox & Fors, 42 St. Mary's L.J. at 846. Because of this, the officer must visually determine which vehicle within the device's range is traveling the fastest. Id...

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