State v. Hunziker, WD
| Citation | 638 S.W.2d 793 |
| Decision Date | 24 August 1982 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Melvin Lewis HUNZIKER, Appellant. 33130. |
| Court | Court of Appeal of Missouri (US) |
Lawrence R. Magee, Hines & Magee, Kansas City, for appellant.
Wm. N. Marshall, Harrisonville, for respondent.
Before KENNEDY, P. J., and WASSERSTROM and MANFORD, JJ.
This is a direct appeal from a judgment of conviction and imposition of a $15 fine for violation of § 304.010 R.S.Mo.1978. The judgment is affirmed.
Two points are presented which in summary charge the trial court erred in overruling appellant's motion for acquittal because (1) respondent failed to prove beyond a reasonable doubt all the elements of § 304.010 R.S.Mo.1978, and (2) respondent failed to prove appellant operated his motor vehicle in excess of the posted speed limit.
The record reveals a highway trooper was driving his patrol vehicle southbound on Missouri Route 7 at about 12:55 p. m., January 13, 1981. Near the intersection of Route 7 and Route TT, the trooper had occasion to check (by radar) the speed of an oncoming Lincoln automobile. The trooper testified he made a mental observation that the Lincoln was exceeding 55 m. p. h., but was proceeding at less than 70 m. p. h. The trooper then checked the speed of the Lincoln with his radar unit (described as a Speedgun 6) which registered an initial speed of 72 m. p. h. As the Lincoln slowed, the radar unit locked "in at a speed of 68".
In addition to the trooper, a technical shop engineer with the Missouri Highway Patrol testified. In summary, he stated he was trained and experienced to repair and certify radar units for accuracy. His qualification went unchallenged by appellant. This witness testified he certified as accurate the particular unit used by the trooper. These certifications are conducted on an annual basis. The witness testified the unit was accurate at the time of both tests. In addition to the unit, two tuning forks accompany the unit (one 35 m. p. h. and one 70 m. p. h.) and this witness testified he tested these two forks (the same ones used by the trooper) with a machine called a frequency counter. He testified both forks were accurate. The witness then explained that two forks are used in the field by the trooper the date he makes use of the radar unit to insure the unit is working properly. This is the field test he referred to as a secondary accuracy standard.
Under cross-examination this expert stated he did not personally know the condition of the unit operated by the trooper the day of the offense, but added he had checked the accuracy of the unit a few months before the offense and a few months after the offense. On both occasions, the unit was accurate. In response to inquiry, he stated that varied temperatures from below freezing to 130? -140? F would affect or change the unit less than one mile per hour. As to the tuning forks, the expert stated that unless their physical condition was changed (i.e., a part was ground away, etc.) their condition would not change. He testified the tuning forks were in identical condition as when manufactured. This witness also testified concerning the variation factor of the tuning forks (frequency) and stated it could be 15 plus or 15 minus per second. He further testified the radar unit allows for a variation of 31 before it would vary one mile in its readout.
Appellant testified he was northbound on Route 7. He was aware of the presence of the trooper because of CB reports and his radar detector. He stated the trooper showed him the 68 m. p. h. digital readout. In response to his counsel's question, "What did your speedometer show?" appellant responded "Probably around 56 to 57, no higher than that". Appellant denied traveling at 68 m. p. h. or 72 m. p. h. Through a series of questions and answers appellant intimated his speedometer was in proper working order but he offered no additional evidence to support this contention.
The evidence closed, the trial court found appellant guilty and assessed a fine of $15. This appeal followed.
there is another rule (Rule 23.11), which prescribes:
"No indictment or information shall be invalid, nor shall the trial, judgment or other proceedings thereon be stayed because of any defect therein which does not prejudice the substantial rights of the defendant."
Appellant's suggestion that the information referenced § 304.010(2) instead of § 304.010.1 is a suggestion without substance and there is no showing of prejudice to appellant, Rule 23.11, supra.
In addition, appellant asserts that the language of § 304.010 has been drawn in the conjunctive and as a result, respondent was required to prove not only that his speed exceeded the posted speed limit, but that there must be proof appellant operated his vehicle in such a manner as to endanger the property and/or person of another. This argument was rejected in State v. McNail, 389 S.W.2d 214, 219 (Mo.App.1965), wherein the court ruled:
While McNail dealt specifically with a driver who was observed weaving his...
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State v. Calvert
...a speeding conviction based on a speed reading registered by a Speedgun Six, the predecessor of the unit used here. State v. Hunziker, 638 S.W.2d 793 (Mo.App.1982). See Wojtkowiak, supra, 405 A.2d at 487 (affirming speeding conviction based on moving radar reading); Donohoo, supra, 369 N.E.......
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City of Jackson v. Langford, 45377
...submissible case against the defendant. Reversed. All Judges concur. 1 State v. Dahlgren, 627 S.W.2d 53 (Mo. banc 1982); State v. Hunziker, 638 S.W.2d 793 (Mo.App.1982); State v. Weatherwax, 635 S.W.2d 34 (Mo.App.1982); City of Kansas City v. Tennill, 630 S.W.2d 173 (Mo.App.1982); State v. ......