[Cite as Campbell v. Rosario, 2018-Ohio-337.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THE CITY OF CAMPBELL ) CASE NO. 16 MA 0063
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
HERNAN ROSARIO, JR. )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Campbell
Municipal Court of Mahoning County,
Ohio
Case No. TRD 1600134
JUDGMENT: Reversed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Brian Macala
Prosecutor/Law Director
351 Tenney Avenue
Campbell, Ohio 44505
No Brief Filed
For Defendant-Appellant: Hernan Rosario, Jr., Pro se
2271 Fifth Avenue
Youngstown, Ohio 44504
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: January 26, 2018
[Cite as Campbell v. Rosario, 2018-Ohio-337.]
WAITE, J.
{¶1} Appellant Hernan Rosario, Jr., appeals an April 8, 2016 Campbell
Municipal Court decision. Appellant argues that the trial court erroneously denied his
motion to dismiss the charges based on the state’s failure to provide discovery and
the failure of the citing officer to indicate how Appellant’s speed was tracked.
Appellant also argues that his conviction is not supported by sufficient evidence.
Because the state failed to introduce any evidence to demonstrate that the radar
device was scientifically reliable, Appellant’s conviction is not supported by sufficient
evidence. Accordingly, Appellant’s argument regarding sufficiency of the evidence
has merit and the judgment of the trial court is reversed.
Factual and Procedural History
{¶2} On January 19, 2016, Sergeant Charles Butch (“Sgt. Butch”) initiated a
traffic stop after observing Appellant driving 39 mph in a 25 mph zone and issued a
traffic citation. Sgt. Butch tracked Appellant’s speed through radar. On February 2,
2016, Appellant pleaded not guilty. On February 11, 2016, Appellant served the
Campbell Municipal Court and Campbell Police Department with a request for
discovery. In response, the city prosecutor provided a copy of the front and back of
Appellant’s citation. Appellant moved for dismissal of the charges based on the
state’s failure to provide adequate discovery and the citing officer’s failure to indicate
how Appellant’s speed was measured. The trial court denied Appellant’s motion.
{¶3} On April 8, 2016, the case was tried before a judge. Appellant renewed
his motion for dismissal which the trial court again denied. The state presented one
witness, Sgt. Butch. Appellant testified on his own behalf. The trial court found
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Appellant guilty and ordered him to pay a $125 fine within thirty days. This timely
appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE CAMPBELL CITY MUNICIPAL COURT DENIED THE
APPELLANT'S MOTION FOR THIS CASE TO BE DISMISSED ON
THE GROUNDS OF THE CAMPBELL CITY POLICE DEPARTMENT
IGNORING HIS REQUEST FOR DISCOVERY WHICH IS A
VIOLATION OF THE APPELLANT'S DUE PROCESS RIGHTS.
{¶4} Appellant argues that the trial court erroneously denied his motion to
dismiss the charges. Appellant argues that the state failed to provide adequate
discovery. Without proper discovery, Appellant argues that it was impossible to
defend himself in court. The state did not file a response brief.
{¶5} Pursuant to Crim.R. 16(B):
Upon receipt of a written demand for discovery by the defendant, and
except as provided in division (C), (D), (E), (F), or (J) of this rule, the
prosecuting attorney shall provide copies or photographs, or permit
counsel for the defendant to copy or photograph, the following items
related to the particular case indictment, information, or complaint, and
which are material to the preparation of a defense, or are intended for
use by the prosecuting attorney as evidence at the trial, or were
obtained from or belong to the defendant, within the possession of, or
reasonably available to the state, subject to the provisions of this rule:
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(1) Any written or recorded statement by the defendant or a co-
defendant, including police summaries of such statements, and
including grand jury testimony by either the defendant or co-defendant;
(2) Criminal records of the defendant, a co-defendant, and the record
of prior convictions that could be admissible under Rule 609 of the Ohio
Rules of Evidence of a witness in the state’s case-in-chief, or that it
reasonably anticipates calling as a witness in rebuttal;
(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory or
hospital reports, books, papers, documents, photographs, tangible
objects, buildings, or places;
(4) Subject to division (D)(4) and (E) of this rule, results of physical or
mental examinations, experiments or scientific tests;
(5) Any evidence favorable to the defendant and material to guilt or
punishment;
(6) All reports from peace officers, the Ohio State Highway Patrol, and
federal law enforcement agents, provided however, that a document
prepared by a person other than the witness testifying will not be
considered to be the witness’s prior statement for purposes of the cross
examination of that particular witness under the Rules of Evidence
unless explicitly adopted by the witness;
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(7) Any written or recorded statement by a witness in the state’s case-
in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
{¶6} As noted by the trial court, the sole evidence presented at trial was the
traffic citation, which the prosecutor provided to Appellant. Appellant appears to
assume that the state possessed additional evidence. Specifically, Appellant
requested “copies of any and all relevant written or recorded statements of
witnesses, including any statements, diagrams, or drawings made by the citing officer
on any piece of paper ─ including the reverse of his/her copy of the citation ─ or
other medium of information storage.” (2/11/16 Request for Discovery.) However,
there is nothing within the record to indicate that such evidence exists beyond the
citation. As to the request that was sent to the Campbell Police Department, the
record is devoid of any evidence that the police department possessed discoverable
evidence. As the state provided the sole evidence it intended to use at trial, it
complied with Crim.R. 12. Appellant’s first assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 2
THE CAMPBELL CITY MUNICIPAL COURT DENIED THE
APPELLANT'S MOTION FOR THIS CASE TO BE DISMISSED ON
THE GROUNDS THAT THE CITING OFFICER NEGLECTED TO
RECORD ON THE TRAFFIC CITATION HOW HE RECORDED THE
APPELLANT’S SPEED MAKING IT IMPOSSIBLE FOR THE
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APPELLANT TO DEFEND HIMSELF IN COURT. THIS IS ALSO A
VIOLATION OF THE APPELLANT'S DUE PROCESS RIGHTS.
{¶7} Appellant argues that the trial court erroneously denied his motion to
dismiss based on the failure of the citing officer to indicate how his speed was
measured.
{¶8} Appellant is correct in his assertion that Sgt. Butch did not indicate on
the ticket how Appellant’s speed was measured. However, this failure is not fatal to
the state’s case. “[A] traffic ticket ‘will satisfy legal requirements, if it apprises a
defendant of the nature of the charge together with a citation of the statute or
ordinance involved.’ ” State v. Brown, 11th Dist. No. 2017–L–038, 2017-Ohio-7963,
¶ 20, citing North Olmstead v. Greiner, 9 Ohio App.3d 158, 159, 458 N.E.2d 1284
(8th Dist.1983); Cleveland v. Austin, 55 Ohio App.2d 215, 220, 380 N.E.2d 1357 (8th
Dist.1978). The traffic citation here satisfied those requirements. Accordingly,
Appellant’s second assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
THE CAMPBELL CITY PROSECUTOR AND THE CAMPBELL CITY
POLICE DEPARTMENT DID NOT PRESENT ENOUGH EVIDENCE
TO FIND THE APPELLANT GUILTY. THIS IS A VIOLATION OF THE
LAW OF EVIDENCE, ALSO KNOWN AS THE RULES OF EVIDENCE.
{¶9} While Appellant argues that his conviction is not supported by sufficient
evidence, he does not provide a specific argument. However, it appears that he
takes issue with the manner in which his speed was measured by Sgt. Butch.
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{¶10} “Sufficiency of the evidence is a legal question dealing with adequacy.”
State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476,
¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.3d 541
(1997). “Sufficiency is a term of art meaning that legal standard which is applied to
determine whether a case may go to the jury or whether evidence is legally sufficient
to support the jury verdict as a matter of law.” State v. Draper, 7th Dist. No. 07 JE
45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d
148 (1955). When reviewing a conviction for sufficiency of the evidence, a reviewing
court does not determine “whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.”
State v. Rucci, 7th Dist. No. 13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt,
7th Dist. No. 09-JE-26, 2011-Ohio-1468, ¶ 34.
{¶11} In reviewing a sufficiency of the evidence argument, the evidence and
all rational inferences are evaluated in the light most favorable to the prosecution.
State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot
be reversed on the grounds of sufficiency unless the reviewing court determines no
rational juror could have found the elements of the offense proven beyond a
reasonable doubt. Id.
{¶12} Preliminarily, the record demonstrates that Appellant failed to object to
the accuracy of the device, thus he is limited to a review for plain error. A three-part
test is employed to determine whether plain error exists. State v. Billman, 7th Dist.
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Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774, ¶ 25, citing State v. Barnes, 94 Ohio St.3d
21, 27, 759 N.E.2d 1240 (2002).
First, there must be an error, i.e. a deviation from a legal rule. Second,
the error must be plain. To be “plain” within the meaning of Crim.R.
52(B), an error must be an “obvious” defect in the trial proceedings.
Third, the error must have affected “substantial rights.” We have
interpreted this aspect of the rule to mean that the trial court's error
must have affected the outcome of the trial.
Billman at ¶ 25.
{¶13} In order for a person to be convicted of speeding based on the use of a
laser device, a two-part test must be satisfied. First, evidence must be introduced to
show that the device is in proper working condition to make accurate readings and
that the officer is qualified to administer the laser device. East Liverpool v. Lawson,
7th Dist. No. 13 CO 52, 2014-Ohio-5858. Second, evidence must be introduced to
show that the device is scientifically reliable. Id.
{¶14} As to the first part of the test, “it is sufficient to show that the meter was
properly set up and tested by a technician trained by experience to do so, and that at
the time it was functioning properly.” City of Lyndhurst v. Danvers, 8th Dist. No.
55537, 1988 WL 124999, *1 (Nov. 23, 1988), citing East Cleveland v. Ferell, 168
Ohio St. 298, 154 N.E.2d 630 (1958), syllabus.
{¶15} In the instant case, evidence was presented to demonstrate that the
device was accurate and in proper working order. Sgt. Butch testified that there are
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three methods used to test a device to ensure that it is working properly. First, the
device itself automatically completes an audible and display test. Second, a manual
test is performed. Third, tuning forks are used. Sgt. Butch testified that he did not
use the tuning forks, but that the automatic and manual tests were completed. Sgt.
Butch also testified that he did not recall any malfunction with his device on that date.
There is also substantial evidence that Sgt. Butch, who is a radar instructor, was
qualified to operate the device. Applying Danvers, this record reflects that the device
was set up by a technician trained by experience to do so and was functioning
properly at the time.
{¶16} As to the second part of the test, however, this record is devoid of any
evidence that the device was scientifically reliable. The scientific reliability of a
speed-measuring device can be established through expert testimony or judicial
notice. City of New Middletown v. Yeager, 7th Dist. No. 03 MA 104, 2004-Ohio-1549,
¶ 9. Here, the state failed to introduce testimony to demonstrate the scientific
reliability of the device or even provide a description of the type of device used.
Additionally, the trial court failed to take judicial notice of the device’s reliability. As
such, the state has failed to meet its burden. Accordingly, Appellant’s third
assignment of error has merit and is sustained.
Conclusion
{¶17} Appellant argues that the trial court erroneously denied his motion to
dismiss the charges based on the state’s failure to provide discovery and the failure
of the citing officer to indicate how Appellant’s speed was tracked. The record
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demonstrates that the state complied with Crim.R. 16. Further, the failure of the
citing officer to indicate how the defendant’s speed was measured is not grounds for
dismissal. Appellant also argues that his conviction is not supported by sufficient
evidence. As the state failed to produce evidence that the radar device was
scientifically reliable, Appellant’s conviction is not supported by sufficient evidence.
Accordingly, the judgment of the trial court is reversed.
Donofrio, J., concurs; see concurring opinion.
DeGenaro, J., concurs.
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Donofrio, J., concurring.
{¶18} I concur with the majority’s opinion that appellant’s conviction was not
supported by sufficient evidence. I write separately, however, because I respectfully
disagree with that part of the majority’s opinion that finds that the radar detection
device in question was functioning properly at the time. I concur with the balance of
the majority’s opinion.
{¶19} Butch explained the testing procedure for the radar equipment, i.e., how
there is a self-test button and turning forks. Regarding calibration, the following
exchange occurred with Sgt. Butch on the stand.
Q: Now, when you go out on traffic enforcement, let’s say, specifically
as relates to speeding offenses, what is that you use to calibrate
speed? How do you determine how fast a vehicle’s going?
A: First, you observe the vehicle traveling at what you believe to be an
excessive speed. Then you activate the radar. You have an audible
tone and a visual display of the target speed.
Q: Now, is there any sort of testing of that device before you start a
shift or anything to ensure it’s working properly?
A: Yes.
Q: And what is that?
A: The radar itself automatically does an audible test and a display
test, and when that’s completed, there’s a manual test button to press
and then the use of tuning forks.
Q: And on this particular day, January 19, 2016, did you perform such
performance tests on the radar device that you would have been using
that day?
A: I did not use the tuning forks.
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Q: Okay. And is there any reason why you would not have used
those?
A: I don’t recall.
Q: Okay. Do you recall any malfunction with your radar device on that
particular day?
A: No, sir.
(Tr. 7-8).
{¶20} In the case at bar, the state did not provide evidence that the radar
equipment was in working order on the day in question. As can be seen from Sgt.
Butch’s testimony, set out above, he did not conduct the performance tests
necessary to calibrate the radar equipment used. Specifically, Sgt. Butch testified
that he “did not use the tuning forks” on that day. In this case, appellant’s conviction
was based on an unreliable radar reading, and thus the evidence was insufficient to
find him guilty of speeding.
{¶21} In order for a speed detection device to be properly calibrated, an
internal and an external test must be completed to determine that the device was
accurate and in working order. See City of Lyndhurst v. Danvers, 8th Dist. No.
55537, 1988 WL 124999 (Nov. 23, 1988). In this case, the trial court’s statement at
the conclusion of the hearing that the radar had been properly tuned was not
supported by the evidence. I would find that the evidence on which appellant’s
conviction was based was legally insufficient for this reason as well as for the reason
set forth by the majority.
{¶22} I further agree with the majority opinion that evidence, whether by
stipulation, judicial notice, or expert testimony, regarding the scientific reliability of
speed detection devices is required in order to convict a defendant for speeding. But
equally important to evidence of the science being reliable is evidence that the
machine at issue, in any prosecution for speeding, must be proven to be properly
calibrated and in working order.