State v. Cass, Case No. 2018CA0003
| Decision Date | 22 October 2018 |
| Docket Number | Case No. 2018CA0003 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. NICHOLAS J. CASS Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.
For Plaintiff-Appellee
AMY INZINA
60 East High Street
Mt. Gilead, OH 43338
For Defendant-Appellant
NICHOLAS J. CASS, PRO SE
6751 Forest Glen Avenue
Solon, OH 44139
{¶1} Defendant-appellant Nicholas J. Cass ["Cass"] appeals the February 8, 2018 Judgment Entry of the Morrow County Municipal Court finding him guilty after a bench trial of speeding, a minor misdemeanor.
{¶2} On January 16, 2018, Trooper David Flanagan of the Ohio State Highway Patrol was on duty enforcing the traffic laws. He was parked on the median around Mile Marker 152 on I-71 South when he noticed a "gold or tan" SUV that he visually estimated over the posted speed limit of 70 mph. Trooper Flanagan proceeded to use his Ultra Lyte LTI 20/20 laser device to clock the speed of this "gold or tan" SUV at 83 and then 84 mph. Trooper Flanagan checked the rate of speed of the vehicle Cass was driving several times with the laser device. Trooper Flanagan testified that he was trained and certified to use the laser speed detector known as an LTI 20/20 and that he had been recertified to use that speed-measuring device yearly since 1997. Trooper Flanagan further testified that he had calibrated the laser device to ensure that it was accurate and working properly on the day in question before going on the road. He further testified that he calibrated the device again on the next day and it was still properly calibrated. Trooper Flanagan testified that the tracking history of the laser showed that the vehicle Cass was driving going between 83 and 84 mph at the time. Trooper Flanagan testified that he never lost sight of the vehicle that he was tracking.
{¶3} Trooper Flanagan testified that he followed the vehicle finding it was parked at a pump of a gas station just off the Exit 151 ramp of I-71 South. Trooper Flanagan pulled in to detain and cite Cass for speeding in violation of R.C. 4511.21(D)(4).
{¶4} On cross-examination, Trooper Flanagan backtracked from his earlier testimony that the vehicle was "gold," averring that he may not have correctly remembered the color of the SUV whose speed he had clocked that day. He also stated that, regardless of the color of the SUV, he had never lost sight of Mr. Cass' vehicle. Trooper Flanagan explained that the citation in the case at bar was an E-ticket. The color of the vehicle on the ticket was completed by selecting a color from a drop-down menu. Trooper Flanagan testified that he might have incorrectly selected the color because of hitting the wrong button in the menu.
{¶5} Matthew Basch testified that he was sitting in the passenger's seat of his "brownish grey" SUV, which Mr. Cass was driving southbound on I-71. Basch testified that he is the owner of the vehicle that Cass was driving at the time of the traffic stop. Basch testified that he had been continually monitoring the speedometer that day, including just minutes before Trooper Flanagan approached him and Cass. Each time, the speedometer showed that they were travelling around 70 mph. There were also approximately ten other vehicles around them—a few of which were SUVs. He testified that a few of the vehicles around them had passed up their "brownish grey" SUV, but that they had not passed up any other vehicles that were around them at that time.
{¶6} On cross-examination, Basch testified that he was not aware of Trooper Flanagan's presence on the highway before Cass exited off the highway and parked at a gas station near the exit ramp. Basch further testified that the speedometer in his vehicle was not certified for accuracy. T. at 42-43. Basch agreed that for all he knew, his vehicle could have been going 84 mph while the speedometer read 70 mph. T. at 43. From his position in the front passenger seat, the analog reading of the speedometer needle could read far differently from the driver's perspective in the driver's seat directly behind the speedometer gauge. T. at 44. Accordingly, Basch agreed that his memory of Cass driving "around 70" could have "been a different number entirely from the driver's perspective." T. at 44.
{¶7} The trial judge overruled Cass' Criminal Rule 29 motion and found him guilty.
Pro se Appellants
{¶14} We understand that Appellant has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶15} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in the parties' briefs that are outside of the record.
{¶16} In his First Assignment of Error, Cass maintains the state was required to lay a foundation that Trooper Flanagan had been using a vehicle that comports with R.C. 4549.13 before he could have been deemed a competent witness to testify to the Ultra Lyte laser evidence pursuant to R.C. 4549.14 and Evid.R. 601(C).
STANDARD OF APPELLATE REVIEW.
{¶17} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006-CA-41, 2006-Ohio-5823, ¶54.
ISSUE FOR APPEAL.
Whether the party offering the witness has the burden of offering proof on the subject of the qualification of the witness to testify.
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