State v. Cleavenger
| Decision Date | 25 January 2018 |
| Docket Number | NO. 17 BE 0003,17 BE 0003 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Todd M. CLEAVENGER, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Atty. Daniel P. Fry, Belmont County Prosecutor, Atty. Helen Yonak, Assistant Prosecuting Attorney, 147 West Main Street, St. Clairsville, Ohio 43950, For Plaintiff–Appellee.
Atty. Robert Campbell, 2800 West Market Street, Akron, Ohio 44333, For Defendant–Appellant.
{¶ 1} Defendant–Appellant Todd Cleavenger appeals the decision of the Belmont County Court, Western Division, finding him guilty of speeding. Appellant contends the court erred in taking judicial notice and admitting the speed measurement obtained by the trooper from the radar device installed in his cruiser as there was an inadequate foundation on the scientific reliability of the device. Appellant also argues the state failed to show the device was operated by a properly certified user and claims his conviction was contrary to the manifest weight of the evidence. For the following reasons, the trial court's judgment is affirmed.
{¶ 2} On May 24, 2014 at 3:20 p.m., Appellant was issued a speeding citation by a trooper with the Ohio State Highway Patrol while traveling on State Route 800 in Belmont County. Appellant did not appear in court on the date listed on the citation. Instead, he faxed a request to set the matter for trial. The court set the matter for trial, but entries sent to Appellant at the Texas address he provided to the trooper were returned by the postal service. The court issued a non-resident violator compact notice of suspension in August 2014. In July 2016, Appellant contacted the court seeking a trial.
{¶ 3} Trial to the court proceeded on October 18, 2016. The trooper testified he was travelling in the opposite direction of Appellant whose vehicle was approaching him on State Route 800. The speed limit was 55 miles per hour. The trooper visually estimated Appellant's vehicle to be travelling in excess of the speed limit and activated his radar device, which measured Appellant's speed at 67 miles per hour. (Tr. 23, 33, 40). The trooper testified his cruiser had a BEE III radar device installed, which operated on Doppler principles. (Tr. 25, 38). He testified about his training, certification, and experience with radar devices and with this type of device. He also explained how the device takes the "closing speed" and subtracts the cruiser's speed to obtain the target's speed; he checks his cruiser's speedometer to ensure it matches the speed the device provides as the cruiser's speed. (Tr. 38, 45, 67). The court took judicial notice of a past finding by the court that a radar device using this Doppler effect was a scientifically accepted method of determining the speed of a motor vehicle, citing its Cuiksa case. (Tr. 31–33).
{¶ 4} As for accuracy of the specific device, the trooper testified he activated the radar device causing it to internally check itself at the start of his shift. He also used tuning forks to check the calibration of the device at the beginning of his shift at 2:00 p.m. and at the end of his shift at 10:00 p.m. (Tr. 25–26, 41–42). The troopers do not keep a daily log of these checks. (Tr. 41, 46). He explained that this is not the calibration of the device but is the test to ensure the device is maintaining an accurate calibration. (Tr. 47, 68). A radio technician checks the calibration every six months and performs any necessary recalibration. (Tr. 26, 28–29); (State Ex. 4–6). For instance, a "radar and tuning fork frequency measurement report" was issued by a radio technician who checked the device on March 11, 2014 and on November 18, 2014. (State Ex. 4). The trooper attested the radar device was working properly and correctly calibrated on the day in question. (Tr. 26, 31, 101).
{¶ 5} The owner's manual for the radar device was admitted into evidence by Appellant, who represented himself. (Def. Ex. 4). Appellant questioned the trooper on his knowledge of various scenarios that could potentially cause interference and asked him to read excerpts from the owner's manual. Appellant presented a witness in his defense, who said she was the front seat passenger on the day Appellant received the citation. She testified Appellant was travelling at 55 miles per hour and was using his cruise control at the time in question. (Tr. 111–113).
{¶ 6} The court issued a judgment entry concluding the trooper was properly trained to operate the radar device and properly operated it in a manner consistent with his training. The court credited the officer's testimony that he used the tuning forks to check calibration before and after his shift, concluding his testimony on frequent measurement checks is enough to show the device was working. Upon researching law cited by Appellant, the trial court found no support for his suggestion that a written log must be kept on the use of tuning forks. Citing its Cuiksa case, the court reiterated its prior recognition of Doppler radar as a commonly accepted scientific method for measuring the speed of a motor vehicle. The court noted that Appellant elicited from the trooper possible items that can affect a scientific instrument such as the radar device but this did not indicate any error occurred that day.
{¶ 7} Appellant was found guilty of speeding in violation of R.C. 4511.21(D). A fine of $100 was imposed (plus costs of $139.50). Appellant filed a timely notice of appeal from the December 28, 2016 sentencing entry.
{¶ 8} In 1958, the Ohio Supreme Court was presented with the question: "May a defendant be convicted of speeding solely upon evidence obtained from a radar speed meter, in the absence of expert testimony with respect to the construction of the meter and its method of operation?" City of E. Cleveland v. Ferell , 168 Ohio St. 298, 299, 154 N.E.2d 630, 631 (1958). In answering this question in the affirmative, the Court explained:
The radar speed-detecting devices commonly used in traffic control operate on what is known as the Doppler effect and utilize a continuous beam of microwaves sent out at a fixed frequency. The operation depends upon the physical law that when such waves are intercepted by a moving object the frequency changes in such a ratio to the speed of the intercepted object that, by measuring the change of frequency, the speed may be determined. * * * In operation, the radar device * * * is set up along the side of a road or street, usually in or upon a parked police car, with the beam being played along the highway. When a moving vehicle crosses that beam, the speed of the vehicle is registered * * *.
Id. at 300, 154 N.E.2d 630 ().
{¶ 9} When a witness testifies as to information from an instrument constructed on knowledge of scientific laws, "three fundamental propositions apply":
Id. at 301, 154 N.E.2d 630, quoting Wigmore, The Science of Judicial Proof , 450.
{¶ 10} Focusing on the first prong of this test, the Court pointed to a "developing realization" that expert testimony on the electronic principles involved in radar speed detection is no longer required, i.e., a court need not hear expert testimony in each speeding ticket case "as to the nature, function or scientific principles underlying" the radar detector. Ferell , 168 Ohio St. at 301–303, 154 N.E.2d 630. After reviewing decisions of other state courts, the Ohio Supreme Court stated, "We are in accord with the trend of the most recent decisions that readings of a radar speed meter may be accepted in evidence, just as we accept photographs, X rays, electroencephalographs, speedometer readings, and the like, without the necessity of offering expert testimony as to the scientific principles underlying them." Id. at 303, 154 N.E.2d 630, 631. (There was no indication the trial court had taken judicial notice in any manner aside from allowing the officer to testify, just as a court does not announce it is taking judicial notice that an x-ray or camera works on established scientific principles.)
{¶ 11} The remaining issues for the Ferell Court concerned the second and third prongs of the test, which were described as questions involving: "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 finding compliance with the second proposition, the Court said the city electrician explained how he checked the calibration of this particular device on the morning of the violation and found it was in proper working order. Id. On the third proposition, the Court concluded, Id. at 303–304, 154 N.E.2d 630, 631.
{¶ 12} Accordingly, upon finding Doppler radar devices for ascertaining the speed of a vehicle need no longer be...
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