[Cite as Ohio State Patrol v. Tisdale, 2012-Ohio-3694.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98029
OHIO STATE PATROL [sic]
PLAINTIFF-APPELLEE
vs.
VENIS TISDALE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Bedford Municipal Court
Case No. 11 TRD-06875
BEFORE: Blackmon, A.J., Cooney, J., and Rocco, J.
RELEASED AND JOURNALIZED: August 16, 2012
-i-
ATTORNEY FOR APPELLANT
Michael E. Stinn
Britton, Smith, Peters & Kalail Co., LPA
3 Summit Park Drive, Suite 400
Cleveland, Ohio 44131
ATTORNEY FOR APPELLEE
Kenneth A. Schuman
5306 Transportation Blvd.
Garfield Heights, Ohio 44125
PATRICIA ANN BLACKMON, A.J.:
{¶1} In this accelerated appeal, appellant Venis Tisdale appeals his speeding
conviction following a bench trial in the Bedford Municipal Court, and assigns the
following error for our review:
I. The trial court’s verdict of guilty is not supported by sufficient
evidence and must be vacated.
{¶2} Having reviewed the record and pertinent law, we affirm Tisdale’s
conviction. The apposite facts follow.
{¶3} On November 24, 2011, Tisdale was issued a citation for traveling
southbound on Interstate 271, near the Forbes Road exit, at a speed of 75 m.p.h. in a 60
m.p.h. zone. On December 7, 2011, Tisdale pleaded not guilty at his arraignment and
subsequently waived his right to a speedy trial, as well as to a jury trial. On January 30,
2012, a bench trial was conducted.
Bench Trial
{¶4} Trooper Larry Roberts, a 13-year veteran of the Ohio State Highway Patrol,
testified that around midday on November 24, 2011, he was conducting a laser detail on
Interstate 271 that has a speed limit of 60 m.p.h., when he observed a 1997 Oldsmobile
traveling at a high rate of speed along Interstate 271 South. Trooper Roberts testified
that he pointed his LTI 20/20 Ultralyte Laser radar gun at the vehicle and received a
reading indicating that Tisdale was traveling at 76 m.p.h. at approximately 1,300 feet
away, and decreased to 75 m.p.h. as Tisdale’s car came closer. Thereafter, Trooper
Roberts initiated a traffic stop and issued Tisdale a citation.
{¶5} Trooper Roberts testified that he was certified in operating the LTI 20/20
Ultralyte laser unit, is recertified each year, and that prior to embarking on the laser detail
on November 24, 2011, he properly calibrated the laser unit to determine it was working
properly.
{¶6} Tisdale testified in his own behalf and stated that he was traveling in the far
left or high speed lane, in the flow of traffic of about seven vehicles, and between 50 and
55 m.p.h., according to his vehicle’s speedometer. Tisdale testified that it was not
possible for his car to travel at the speed Trooper Roberts alleged, because his car
vibrated at speeds in excess of 55 m.p.h. Tisdale testified that he later discovered that
the vibration was caused by a cracked rim.
{¶7} The trial court found Tisdale guilty and fined him $150, plus court costs.
Tisdale now appeals.
Sufficiency of the Evidence
{¶8} In the sole assigned error, Tisdale argues there was insufficient evidence to
sustain his conviction.
{¶9} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the state’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A)
and sufficiency of evidence review require the same analysis. State v. Mitchell, 8th Dist.
No. 95095, 2011-Ohio-1241, citing State v. Tenace, 109 Ohio St.3d 255,
2006-Ohio-2417, 847 N.E.2d 386.
{¶10} In analyzing the sufficiency issue, the reviewing court must view the
evidence “in the light most favorable to the prosecution” and ask whether “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus;
State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965 (1995).
{¶11} Initially, we note that Tisdale never made a motion for acquittal at trial.
Generally, a defendant’s failure to raise an alleged error with the lower court acts to
waive the error on appeal. However, the Ohio Supreme Court has held that a defendant’s
not guilty plea preserves an argument relating to the sufficiency of the evidence for
appeal. State v. Jones, 91 Ohio St.3d 335, 2001-Ohio-57, 744 N.E.2d 1163 (2001).
{¶12} Tisdale now argues that there was no evidence presented as to the manner
in which Trooper Roberts checked the calibration of the laser radar unit, nor any
testimony about how the device is supposed to work. However, we note that Tisdale
never sought to suppress the laser device due to its unreliability and never objected to the
laser unit on these grounds in the trial court. Because Tisdale did not raise this issue in
the trial court, it is, therefore, waived on appeal. Cleveland Hts. v. Katz, 8th Dist.
No.79568, 2002-Ohio-4241.
{¶13} In the instant case, Trooper Roberts, a 13-year veteran of the Ohio
Highway Patrol, stated that he was certified to use the laser unit, it was calibrated before
and after he used it to clock Tisdale, and that the unit was working properly. Although
Tisdale contends he was only traveling between 50-55 m.p.h., he admitted that he was
traveling in the far left lane or the high speed lane.
{¶14} Thus, in viewing this evidence in the light most favorable to the prosecution,
we find any rational trier of fact could have found the essential elements of the instant
charge proven beyond a reasonable doubt. Accordingly, we overrule the sole assigned
error.
{¶15} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. The defendant’s conviction having been affirmed, any bail pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR