City of Brookpark v. Rodojev

• Decision Date: 13 December 2018
• Docket Number: No. 106313,106313
• Citation: 117 N.E.3d 175,2018 Ohio 5028
• Parties: CITY OF BROOKPARK, Plaintiff-Appellee v. Joseph G. RODOJEV, Defendant-Appellant
• Court: Ohio Court of Appeals

117 N.E.3d 175

2018 Ohio 5028

CITY OF BROOKPARK, Plaintiff-Appellee

v.Joseph G. RODOJEV, Defendant-Appellant

No. 106313

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: December 13, 2018

Joseph G. Rodojev, pro se, 916 Euclid Street, S.W., Massillon, Ohio 44647, FOR APPELLANT.

Peter A. Sackett, P.O. Box 771306, Lakewood, Ohio 44107, ATTORNEY FOR APPELLEE.

BEFORE: S. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, P.J.:

{¶1} Joseph Rodojev appeals his conviction for driving 15 m.p.h. over the posted speed limit. We affirm.

{¶2} A city of Brookpark police officer spotted Rodojev driving faster than the flow of traffic along the eastbound side of Interstate 480. Using an LTI 20/20 Laser Speed Detection device, the officer confirmed that Rodojev was driving 75 m.p.h. in the 60 m.p.h. zone, and the officer relayed that information to Rodojev before issuing a ticket.¹ The laser speed detection device was calibrated and working properly at the time of the stop, and the officer was certified to use it. Rodojev claims that he was in the midst of a sneezing fit that caused his nose to bleed right before the officer pulled him over. Following a bench trial, Rodojev was found guilty of speeding.

{¶3} In the first assignment of error, Rodojev claims that the trial court erred in permitting the officer to testify about the results of the laser speed measuring device without expert testimony establishing the scientific reliability of that particular device.

Background and Overview

{¶4} More than 60 years ago, the Ohio Supreme Court confirmed that the reliability of the scientific principles underlying the use of radar could be established without the need for expert testimony or the taking of judicial notice. Cleveland v. Craig , 8th Dist. Cuyahoga No. 99619, 2013-Ohio-5742, 2013 WL 6857990, ¶¶ 14-27 (providing an in-depth review of the history of radar speed measuring devices in the law), citing E. Cleveland v. Ferell , 168 Ohio St. 298, 154 N.E.2d 630 (1958). As the Ferell standard evolved, Ohio courts began considering expert evidence or judicial notice of the scientific reliability of speed measuring devices as required to sustain a conviction. Id. at ¶ 16.

{¶5} In Cleveland v. Tisdale , 8th Dist. Cuyahoga No. 89877, 2008-Ohio-2807, 2008 WL 2346440, it was concluded that Ferell stood for the proposition that the accuracy of the particular device, as it pertained to the sufficiency of the evidence, was established with evidence of the proper calibration and the qualifications of the person using the device, but the general reliability of the radar speed measuring device, which pertained to the admissibility of the evidence and not the sufficiency of the evidence, was established by Ferell . The admissibility analysis in Ferell originates with Wigmore's The Science of Judicial Proof . Ferell . That analysis, however, was supplanted by the codification of the Rules of Evidence. The admissibility of scientific evidence in Ohio is governed by Evid.R. 402, 403, and 702. State v. Williams , 4 Ohio St.3d 53, 446 N.E.2d 444 (1983), syllabus; State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 152 (under Evid.R. 702, scientific evidence must be deemed relevant and reliable in order to be admitted into evidence).

{¶6} In addition to admissibility concerns, Evid.R. 103(A)(1) provides that no error may be based on the admission of evidence unless the substantial right of the complaining party is affected and a timely objection or motion to strike appears in the record. Id. ; Ford v. Sunbridge Care Ents. , 2016-Ohio-1122, 62 N.E.3d 609, ¶ 16 (8th Dist.). And, under Crim.R. 12(C)(3), a defendant who does not challenge the admissibility of certain scientific test results through a pretrial motion to suppress waives any requirement for the state to lay a foundation for the scientific reliability of the test results at trial. State v. French , 72 Ohio St.3d 446, 451, 650 N.E.2d 887 (1995). Further, the failure to object to the admissibility of evidence at trial waives all but plain error. Plain error, however, is not to be invoked except in the "utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." (Emphasis sic.) State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23.

{¶7} Despite the advent of the Rules of Evidence, courts default to the common-law analysis developed in Ferell with respect to determining the admissibility of the results of a speed measuring device. Compare State v. Clark , 101 Ohio App.3d 389, 416, 655 N.E.2d 795 (8th Dist.1995) (witness permitted to use computer-generated simulations at trial under Evid.R. 702 because the simulations were reliable and generally accepted). If we applied the Rules of Evidence to this case, the inquiry would be at an end — Rodojev failed to object to the general scientific reliability of the laser speed measuring device. The absence of the foundational evidence in the record is directly a result of his failure to timely object. Nevertheless, we acknowledge that the weight of authority in Ohio is to apply the Ferell principles and analysis with respect to the admissibility of the results from a speed measuring device.

{¶8} In no other context is the legal analysis so outdated. For example, in the early 1990s, courts began considering the admissibility of DNA evidence. State v. Pierce , 64 Ohio St.3d 490, 597 N.E.2d 107 (1992). The admissibility of DNA evidence hinged not on Wigmore's trial guide, but upon the framework provided by the Rules of Evidence. Id. Within a decade after the first decision permitting the admission of DNA evidence, the scientific principles became so widely accepted that the proponent no longer needed expert testimony to establish the reliability of the scientific principles underlying the DNA testing procedures or devices used in the process in order to deem the results of the testing admissible for trial. State v. Adams , 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 80 ; State v. Luckett , 144 Ohio App.3d 648, 651, 761 N.E.2d 105 (8th Dist.2001), fn. 3.

{¶9} We cannot help but compare the judiciary's quick acceptance of DNA testing under the Rules of Evidence with the decades-long refusal to recognize the reliability of the scientific principles underlying a laser or radar speed measuring device. At some point, courts need to recognize what the general public commonly accepts: the scientific process underlying radar and laser speed measuring devices is scientifically reliable and accurate.

Plain Error: Foundation for Admissibility vs. Sufficiency of the Evidence

{¶10} Rodojev did not object to the officer's reliance on the laser speed measuring device during the trial court proceedings. Rodojev instead argued that the device was improperly used, but that is a different issue that goes to the weight of the evidence, not its admissibility. Adams at ¶ 80. As such, the trial court was not required to sua sponte conduct a preliminary hearing under Evid.R. 104 to accept the scientific reliability of mechanical or electronic instruments upon which witnesses may rely. Shaker Hts. v. Coustillac , 141 Ohio App.3d 349, 351, 750 N.E.2d 1229 (8th Dist.2001) (defendant waived any error with respect to the reliability and accuracy of the laser speed measuring device by failing to file a motion to suppress or objecting to the testimony); Craig , 8th Dist. Cuyahoga No. 99619, 2013-Ohio-5742, at ¶ 28. Rodojev forfeited all but plain error by failing to object to the admissibility of the officer's testimony. Id. Rodojev has not demonstrated, let alone argued, that a manifest miscarriage of justice occurred. App.R. 16(A)(7).

{¶11} We acknowledge that some appellate panels, including ones in this district, have concluded that the lack of expert foundation for a speed measuring device constitutes plain error implicating the sufficiency of the evidence. See, e.g., In re Z.E.N. , 4th Dist. Scioto, 2018-Ohio-2208, 114 N.E.3d 594, ¶ 22, citing State v. Cleavenger , 2018-Ohio-446, 93 N.E.3d 1027, ¶ 2 (2d Dist.) ; see also Beachwood v. Joyner , 2012-Ohio-5884, 984 N.E.2d 388, ¶ 19 (8th Dist.) ; but see Coustillac . This conclusion is contrary to the generally accepted proposition that if evidence at trial is deemed inadmissible upon appeal, the remedy is to remand for a new trial. See, e.g., State v. Curry , 43 Ohio St.2d 66, 74, 330 N.E.2d 720 (1975) (the admission of evidence was prejudicial error and defendant was entitled to a new trial). Further, the decisions finding that the lack of the foundation goes to the sufficiency of the evidence is contrary to Ferell .

{¶12} In reviewing the requirement to present expert testimony regarding the reliability of a speed measuring device, the Ohio Supreme Court held that "readings of a radar speed meter may be accepted in evidence * * * without the necessity of offering expert testimony as to the scientific principles underlying them." Ferell , 168 Ohio St. at 303, 154 N.E.2d 630. If there is no need to offer expert testimony regarding the scientific reliability of the speed measuring device, then it stands to follow that there is no need for a court to take judicial notice of the same. Notwithstanding the obviation of the expert or judicial notice requirement, the Ohio Supreme Court recognized that a determination still needed to be made "as to the sufficiency of the evidence concerning the accuracy of the particular speed meter involved in the instant case and the qualifications of the person using it." Id. In Ferell , it was concluded that the state presented sufficient evidence of the accuracy of the particular device by presenting evidence that the device was calibrated on the day of its use and the officer was qualified to use the device. Id. at 303, 154 N.E.2d 630.

{¶13} Thus, the Ohio Supreme Court separated the scientific reliability of the technology from the sufficiency...