State v. Freed

• Decision Date: 21 February 2020
• Docket Number: Case No. 2019 CA 00018
• Citation: 2020 Ohio 655
• Parties: STATE OF OHIO Plaintiff-Appellee v. JONATHAN D. FREED Defendant-Appellant
• Court: Ohio Court of Appeals

2020 Ohio 655

STATE OF OHIO Plaintiff-Appellee v. JONATHAN D. FREED Defendant-Appellant

Case No. 2019 CA 00018

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

February 21, 2020

JUDGES: Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Municpal Court, Case No. TRD1900794

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

JOSEPH M. SABO

136 West Main Street

P.O. Box 1008

Lancaster, OH 43130

For Defendant-Appellant

JONATHAN D. FREED

429 Fallriver Drive

Reynoldsburg, OH 43068

Wise, Earle, J.

{¶ 1} Defendant-Appellant Jonathan D. Freed appeals the May 27, 2019 judgment of conviction and sentence of the Fairfield County Municipal Court, Lancaster, Ohio. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On January 28, 2019, Trooper Cummins of the Ohio State Highway Patrol was parked in a driveway on Columbus-Lancaster Road, also known as Business Route 33A, just north of Coonpath Road. Cummins was monitoring traffic. His attention was drawn to a Toyota minivan, driven by appellant. Cummins is trained in the visual estimation of speed and visually estimated appellant was traveling faster than the posted speed limit of 55 miles per hour, estimating approximately 67 miles per hour. Cummins then used a laser speed measuring tool to verify appellants speed. Per the laser tool, appellant was traveling at 68 miles per hour. Cummins initiated a traffic stop and cited appellant for speeding in violation of R.C. 4511.21(D)(1). Cummins provided appellant with an arraignment date of February 12, 2018.

{¶ 3} On January 29, 2019, appellant, proceeding pro se, filed a motion to dismiss arguing the complaint was defective, failing to plead all elements of a violation of R.C. 4511.21(D)(1), and further was not "made upon oath before any person authorized by law to administer oaths." Appellant argued therefore the complaint was invalid and the trial court was without jurisdiction over the matter.

{¶ 4} On February 6, 2019, appellant filed an objection pursuant to R.C. 2937.21, objecting to the trial court's continuance and the delay in ruling on his motion to dismiss. The same day, he filed a demand for discovery.

{¶ 5} Appellant appeared at his arraignment on February 12, 2019 as scheduled and objected to the proceeding. When appellant asked the magistrate to rule on his motions, the magistrate explained appellant was present for arraignment, not trial and entered a not guilty plea on appellant's behalf. A motions hearing was set for March 5, 2019.

{¶ 6} Following his arraignment, appellant filed a "Def's Motion for R.C. 2937.21 Discharge Forthwith," and "Def's Objections and Req For Findings of Fact and Conclusions of Law."

{¶ 7} At the March 5 motions hearing, the trial court found the magistrate was not required to rule on appellant's motions, that R.C. 2937.21 was inapplicable to the proceedings, and the court was not required to address appellant's filings within 10 days. The trial court further found the balance of the matters raised in appellant's motions pertained to matters of fact to be decided at trial.

{¶ 8} A trial to the court was held on March 27, 2019. Appellant proceeded pro se.

{¶ 9} The state presented one witness, Trooper Cummins. Cummins testified that when he confirmed appellant was traveling over the posted speed limit of 55 miles per hour, he was using an Ultralyte LTI 20/20 laser, the laser tool of choice for the Ohio State Highway Patrol. Cummins stated he is trained and certified in the use of the laser and explained there is no difference between models of laser detectors as far as the underlying technology is concerned. Although some have advanced features for use in inclement weather, there is no difference model-to-model as to how speed is detected.

{¶ 10} Cummins also confirmed that he performs a calibration check of his laser both before and after his shift, each and every shift. He completed the appropriate checks on the day in question, and the laser detector was functioning properly. The state asked the trial court to take judicial notice of the reliability of the Ultralyte LTI 20/20 per State v. Michael King, Fairfield County Municipal Court Number 92TRC10101. Appellant objected stating there was no evidence that Cummins was using the same model and series as that involved in the King case. The state responded that Cummins testified the underlying technology has not changed since 1992. The trial court overruled appellant's objection pursuant to Evid.R. 201(b)(1), finding the accuracy of the Ultralyte LTI 20/20 is a fact generally known within the territorial jurisdiction of the trial court of fact.

{¶ 11} On cross-examination, Cummins further explained he knew the laser was accurate that day due to its self-calibration, the fact that it displayed no error messages, and the additional fact that he conducted his field checks as required both before and after his shift.

{¶ 12} After the state rested, appellant made a Crim.R 29 motion for acquittal which the trial court denied. Appellant then made a brief statement on his own behalf and rested. The trial court found appellant guilty. The trial court fined appellant $100 and suspended $50.

{¶ 13} Appellant filed an appeal, and the matter is now before this court for consideration. He raises six assignments of error as follow:

I

{¶ 14} "THE MUNICIPAL COURT JUDGE ERRED TO THE APPELLANT'S DETRIMENT AND DEMONSTRATED HIS MISUNDERSTANDING OF LAW BY SAYING HE WOULD DETERMINE "WHETHER OR NOT THE POSTED SPEED LIMIT WAS 55 MILES PER HOUR, WHETHER OR NOT YOU WERE INDEED EXCEEDING THE POSTED SPEED LIMIT, AND IF YOU WERE, BY HOW MUCH", AND, BY ALL

INDICATIONS, DOING EXACTLY THAT AND NO MORE, EVEN THOUGH OHIO'S LEGISLATIVE SERVICE COMMISSION, LEADING ATTORNEYS, AND COURTS FROM OUR OHIO SUPREME COURT ON DOWN HAVE AGREED ON SUBSTANTIALLY SIMILAR VARIATIONS OF THIS: A SPEED LIMIT IS DETERMINED "NOT BY SPEED LIMIT SIGNAGE", AND A PROSECUTOR'S OFFICE "CANNOT ... CLAIM THAT IT CAN ENFORCE WHATEVER SPEED LIMIT IS POSTED IN THE AREA, AS OHIO LAW DICTATES THE REQUIRED SPEED LIMIT ON HIGHWAYS"; THIS FIFTH DISTRICT COURT'S ULTIMATE DECISION IN STATE V. CASS, 2018-OHIO-4405, APPEARS TO BE CORRECT GIVEN CASS'S SPEED (83-84 MPH), BUT THERE IS A CONFLICT BETWEEN OTHER COURTS AND THIS COURT'S APPARENT REASONING, WHICH WAS, APPARENTLY, THE SAME AS THE JUDGE'S: THAT A POSTED SPEED LIMIT IS SUFFICIENT EVIDENCE BY ITSELF OF THE EXISTENCE OF CONTROLLING REGULATORY LAW."

II

{¶ 15} "IF, DESPITE ALL INDICATIONS TO THE CONTRARY, THE JUDGE BASED HIS FINDING OF A 55 MPH SPEED LIMIT ON REGULATORY LAW, THEN HE ERRED TO THE APPELLANT'S DETRIMENT BECAUSE THE ONLY PERSON WITH AUTHORITY TO MAKE SUCH LAW WAS THE DIRECTOR THE DEPARTMENT OF TRANSPORTATION PURSUANT TO R.C. 4511.21(I), AND THE DIRECTOR HAD NOT MADE SUCH LAW, AS CAN BE SEEN BY THE ABSENCE OF A SPEED LIMIT FOR THE LOCATION IN THE DIRECTOR'S TRAFFIC RELATIONS DATABASE, AND A LOCAL AUTHORITY COULD NOT HAVE SET ANY 55 MPH SPEED LIMIT BECAUSE THE HIGHEST LIMIT COULD HAVE SET IS 50 MPH PURSUANT TO R.C.4511.21(J)."

III

{¶ 16} "IF, DESPITE ALL INDICATION TO THE CONTRARY, THE JUDGE DID NOT BASE HIS FINDING OF A 55 MPH SPEED LIMIT SOLELY ON A POSTED SPEED LIMIT SIGN AND INSTEAD BASED IT ON THE NATURE AND CHARACTERISTICS OF THE ROADWAY OR LOCATION, THEN HE ERRED TO THE APPELLANT'S DETRIMENT BECAUSE HIS FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AFTER THE STATE'S OWN WITNESS HELPED CONFIRM THE UNDISPUTED PRESENCE OF ALL CHARACTERISTICS OF DIVISION R.C. 4511.21(B)(15) 70 MPH RURAL FREEWAY, 2 MPH FASTER THAN THE ALLEGED SPEED OF THE APPELLANT."

IV

{¶ 17} "THE JUDGE ERRED TO THE APPELLANT'S DETRIMENT BY TAKING JUDICIAL NOTICE OF THE SCIENTIFIC RELIABILITY OF THE TROOPER'S LTI ULTRALYTE 20/20 LASER DEVICE FOR MEASURING SPEED BECAUSE THE JUDGE WAS NOT "SUPPLIED WITH THE NECESSARY INFORMATION"; THE RELIABILITY WAS NOT "CAPABLE OF ACCURATE AND READY DETERMINATION BY RESORT TO [THE PURPORTED] SOURCE [] WHOSE ACCURACY CANNOT REASONABLY BE QUESTIONED" BECAUSE THE MUNICIPAL COURT'S FILE FOR THE CASE THE STATE CITED AS SOURCE CONTAINED NOTHING RELEVANT BEYOND THE MERE WORD "LASER", AND, EVEN IF THE STATE'S PURPORTED COPY OF THE CASE DECISION IS ACCEPTED AS AUTHENTIC DESPITE IT NOT BEING IN THAT FILE THE DECISION REQUIRES FOUR "SANITY CHECKS" TO BE SUCCESSFULLY

COMPLETED BEFORE THERE IS BASIS FOR SUCH JUDICIAL NOTICE, AND THE TROOPER DID NOT COMPLETE ANY MORE THAN TWO."

V

{¶ 18} "THE MAGISTRATE AND THEN THE JUDGE ERRED TO THE HARMFUL DETRIMENT OF THE APPELLANT BY FAILING TO GIVE THE APPELLANT A MEANINGFUL OPPORTUNITY TO BE HEARD AND BY DENYING THE MOTION TO DISMISS AFTER THE STATE FAILED TO CHARGE AN OFFENSE BECAUSE IT FAILED TO ALLEGE ALL ESSENTIAL ELEMENTS OF "BASIC FACTS" COMPRISING AN OFFENSE AND THEREBY FAILED TO PROVIDE AND OHIO ART. I §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t. OF APP. CUYAHOGA CO., 1976), 49 OHIO APP. 2D 112 AT 118, AN THAT IS EXACTLY WHAT HAPPENED; A PERSON MAKING A REASONABLE ATTEMPT TO UNDERSTAND A COMPLAINT MAY REASONABLY CLAIM HE DOES NOT UNDERSTAND THE "CAUSE" OF THE ACCUSATION WHEN THERE IS NO LEGALLY SUFFICIENT CAUSE OR REASON TO CHARGE AN OFFENSE; AND THE JUDGE CONTINUED AND EXACERBATED THIS ERROR #5 BY PROCEEDING WITHOUT SUBJECT MATTER JURISDICTION TO DIRECT THE APPELLANT TO

APPEAR ON MARCH 27, 2019, WHERE THE JUDGE PROCEEDED TO CONDUCT A VOID TRIAL, AND THROUGH THAT AND AMONG OTHER COSTS, THE JUDGE COST THE...