[Cite as State v. Jones,
2016-Ohio-7413.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26999
:
v. : T.C. NO. 15TRD8708
:
MORGAN C. JONES : (Criminal appeal from
: Kettering Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___21st___ day of _____October_____, 2016.
...........
JOHN D. EVERETT, Atty. Reg. No. 0069911, Prosecuting Attorney, 2325 Wilmington
Pike, Kettering, Ohio 45420
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the January 22, 2016 Notice of Appeal of
Morgan C. Jones. Jones was convicted on December 23, 2015, following a bench trial
in Kettering Municipal Court, on one charge of speeding, in violation of section 434.03 of
the Codified Ordinances of the City of Kettering, and one charge of improper display of a
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license plate, in violation of section 436.09 of the Codified Ordinances of the City of
Kettering, both minor misdemeanors. Jones was fined $150.00 for each offense, and
his license was suspended for 30 days, with the exception of driving privileges for work.
We hereby affirm the judgment of the municipal court.
{¶ 2} Jones was stopped and cited on Wilmington Pike on November 5, 2015, by
City of Kettering police officer Eric Rustad. On November 9, 2015, Jones, acting pro se,
filed “Defendant’s Discovery Request Pursuant to Rule 16 of the Ohio Rules, for Criminal
Procedure.” On November 12, 2015, Jones pled not guilty, and the court set the matter
for trial on December 3, 2015. The next day, Jones filed “Defendant’s Motion for Brady
Material.” Two days later, Jones filed “Defendant’s Motion for Jury Trial.” On
November 19, 2015, Jones filed “Defendant’s Motion in Limine to Exclude Law
Enforcement Records.” The next day, Jones filed two “Defendant’s Request for
Praecipe for Subpoena,” seeking the subpoena of “Richard B. McCreary aka ‘Certification
Engineer,’ ” as well as “Kettering Police Department employees Michael Walker aka
‘Custodian of Records’ and Larry Warren.”
{¶ 3} On November 25, 2015, the court issued a decision overruling Jones’ motion
for a trial by jury, noting that the charges “herein being minor misdemeanor offenses, and
neither charge carrying the potential of any jail time or fines in excess of one thousand
dollars, Defendant is not entitled to a Jury Trial,” pursuant to R.C. 2945.17.
{¶ 4} On November 30, 2015, Jones filed “Defendant’s Motion to Dismiss,”
asserting in part that minor misdemeanors are “serious enough to permit defendants the
right to a jury trial,” and that his right to due process was violated by the State’s failure to
respond to his discovery request and produce Brady material. Jones further asserted
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that the absence of a front license plate on his vehicle calls into question the accuracy of
the speed detection device used to record his speed, and that Rustad “has not been
certified in the operation of the specific LTI UltraLyte device he used to allegedly detect
defendant’s speed.” Attached to the motion are copies of Jones’ request for discovery;
correspondence from Jones to the Kettering Police Department Custodian of Records
requesting information pursuant to the Ohio Public Record Act; Jones’ citation; a portion
of “LTI’s UltraLyte LR B User’s Manual”; an “Affidavit of LIDAR Device Certification,”
signed by Richard B. McCreary, Certification Engineer; and a July 19, 1996 Certificate of
Training issued to Rustad for the use of electronic speed measuring devices.
{¶ 5} On December 1, 2015, the City of Kettering filed a “Motion to Quash
Defendant’s Subpoena” that provides that Richard McCreary resides in Franklin County
and that Jones “has not tendered to Mr. McCreary his fees or mileage.” Jones then filed
“Defendant’s Motion to Strike Plaintiff’s Motion to Quash Defendant’s Subpoena and
Request for Sanctions against the Prosecutor,” as well as “Defendant’s Motion for Court
to Order State to Certify They Have Complied with Request for Brady Material.”
{¶ 6} On December 3, 2015, at the start of trial, Jones indicated that he received
nothing from the prosecutor in response to his requests for discovery and Brady material.
The following exchange occurred:
COURT: Uh, Mr. Everett do you have anything that you want to say
in response to the Motion for Brady Material?
EVERETT: Well let me start with the discovery request, your Honor.
That was never served on the Prosecutor’s Office so I have no knowledge
of a discovery request.
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JONES: Your Honor if you look on the docket it’s, it’s time-stamped
on the docket. …
EVERETT: The rules say very clearly your Honor, it must be served
upon the prosecuting attorney.
…
JONES: Well, your Honor, at that time I asked to go speak to him.
They said that he is not, he wasn’t there at that time. As you know, there’s
um, the trial date was set uh, I mean there hasn’t been a lotta time since the
tic-ticket was issued. So there’s a lot of constraints on time.
COURT: … Do you have any specific thing that you’re indicating
has been denied you other than just a general failure to respond to the
discovery request? …
JONES: Yes.
COURT: I’d like you to make a record of what you think that that
may be so that that we can address that, if in fact there is something.
JONES: Okay.
COURT: He can’t respond to a general request with . . .
JONES: … Um, as a result of the Prosecutor, and I knew he would
do this. It’s common strategy used by the State …, Rule 16’s you know,
used by the defense. So I um, utilized the, the public records request
process and I submitted four public records requests. Three to the police
department in Kettering. And then um, another one um, that the Law
Department with the City of Kettering provided a huge stack of documents.
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Um, there are a lot of documents that they provided that the Prosecutor . . .
and this is a separate activity. This has nothing to do with this case. Um,
it’s, it’s a separate process. It’s independent of the Court and any motions
I filed. Um, and I received a lot of documentation. I received
documentation regarding the type of device that was used. Uh, the training
certificates for the officer, which I requested in that. There was also an
admission by multiple people I spoke to uh, regarding um, repair efforts and
were they possessed. [Sic] And that these things do break. Um, um,
there was, you know information provided me that identified a business in
Columbus, Ohio. Richard McCreary is a person that uh, on one of the
certifications for calibration. He was identified as a technician that …
signed off on that. Um, I filed a subpoena and for some reason Richard
McCreary was um, contacted and said there’s a scheduling conflict and he’s
been released. But the, the State files a motion stating that uh, he wants
it quashed because Mr. McCreary’s been begging for me to contact him to
uh, arrange for reimbursement. Which was totally false. … *Um, so uh,
you know, there’s a lot of motions here that have been filed uh, regarding
discovery. My ability to get … an expert in here. Even the Court
recognizes as a credible person. … *I’ve just had one road block after
another. And I, I don’t feel like at this point um, I can fairly, receive a fair
trial based on the State’s um, inability or unwillingness to cooperate with
discovery.
COURT: Mr. Everett do you care to respond to that? And uh,
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specifically maybe to the Motion to Quash. And indicate for the record why
that was filed.
EVERETT: Well let’s go back to the Brady Motion, your Honor.
None of the evidence that he has talked about is exculpatory so it is not
Brady material. Further, your Honor, I am part of the Kettering Law
Department. All of the stuff that was provided to him was provided through
my office. So he’s actually received all of the material that he needs. And
he just admitted he received all the material he needs. Uh, at this point
he’s playing games. Lastly, your Honor, there’s a Ohio Supreme Court
opinion that says a request for public records is a discovery request when
it involves a traffic matter. Thus a response to that would be a response
from the State with regards to discovery. Again, I was never served with
Discovery. Let’s go to the Brady Motion. I was never served with the
Brady Motion. … Uh, but none of the material he has talked about is
exculpatory. It must be denied.
JONES: Your Honor, maintenance records that reflect the
dependability and the reliability of a device that’s used to detect the speed
of any person uh, should be … considered … very valuable to … either
side. … I was pulled over. Detained. I’m in Court. If I didn’t show up
here today you would have issued a bench warrant for my arrest. So there
are residual effects associated with these minor cases. …
…
JONES: So that is exculpatory evidence.
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COURT: … Is there any material that you feel that you do not have
that compromises your ability to represent yourself today. And if you
would, say what that is.
JONES: Yes, your Honor. Um, the, the maintenance record of the
speed detection device. The LTI Ultra Light um, everything associated with
that. Once it goes in record, all maintenance that’s been, been done on
that. It’s no different than Car Fax.
COURT: Alright.
JONES: it’s a multibillion dollar industry. Before people buy a car,
they buy a house, there are data bases out there that educate people on
the reliability of them. Whether or not they’re dependable.
COURT: Let’s move forward then to the next matter that you filed.
{¶ 7} Regarding Jones’ motion for a jury trial, the court noted that it overruled the
motion in a written decision, and that Jones “then filed a Motion to Dismiss. In large part
the grounds asserted in that motion are the denial of your right, what you claim to be your
right to a jury trial in this case.” Jones then asserted that the law denying a jury trial for
a minor misdemeanor is unconstitutional. The court overruled the motion “to the extent
that [it is] predicated on the denial of a jury trial.”
{¶ 8} The following exchange occurred:
COURT: Now you’ve indicated that you want the expert witness to
testify for you, is that correct?
JONES: Yes. Yes. And he communicated to me he’d be more
than happy and willing to do that.
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COURT: … So in essence are you asking me to continue the trial
to have an opportunity . . .
JONES: No. I want this tried today. It’s my constitutional rights to
have a fast and speedy trial. So.
COURT: Well you filed the motions that have put us where we are
today. Um, what I am going to do, I am going to reschedule the trial
because I am not going to create an error. I’m going to give you the
opportunity to subpoena … your expert witness. …
JONES: Well, you Honor, I don’t need the witness at this point.
…
JONES: So I withdraw that subpoena.
COURT: You’ve indicated that you’ve been denied that right. And,
and I don’t want you to be denied that right. You’ve seemed to indicate
that you don’t have everything that you need from the Prosecutor to go
forward. So I’m going to continue the trial … for a couple more weeks in
order to make sure that you have everything that you need and you get the
fairest trial possible.
JONES: Well, your Honor, I … want to urge you to continue today.
I said verbally right now, I don’t need that expert witness at all. Okay.
…
JONES: Um, I have enough evidence in other, other, in my case to,
to present to the Court. The police officer that was, hasn’t even showed
up. So, by default this should be dismissed.
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COURT: Okay.
JONES: Um, the other two uh, police officers . . .
EVERETT: Sir.
JONES: I don’t know who he is.
EVERETT: This is the police officer who cited you and stopped you.
JONES: Okay. Okay. So, so there are other activities that I want
to be able to question him now.
COURT: Okay.
JONES: And I, I think based on that we, you could make a decision
today and uh, there are other expert witnesses I can get, you know later.
COURT: No. We’re going to deal with it all at the same time.
JONES: Well I’m telling you I’m . . .
COURT: I’m dealing with the motions today and I’m going to, you’re
going to get everything that you’re entitled to.
JONES: I know what you’re trying to do, your Honor.
COURT: I’m not trying to do anything sir.
JONES: Yeah you are.
COURT: I’m trying to avoid creating a situation. And I don’t know
whether the evidence is there to convict you or not. If it is I do not want an
appeal based on the fact that you’re in Court indicating that you haven’t
been provided discovery. That a witness that you subpoenaed … was
denied you. The Court did nothing to deny you that witness. If you
properly subpoenaed the witness. Tender the fees. The witness will be
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here. …
JONES: Well, your Honor, I object to that. I want to be on the
record. I verbally said right now that could [sic], subpoena that I requested
and that expert is not needed to continue ‘cause I have other affirmative
defenses that I’ve [sic] clearly feel are strong enough to present to the Court
today and defend myself.
COURT: … Well, we’re going to reset this to allow at a time when
the Court’s docket permits sufficient time for you to present your entire case
and to give you the opportunity, and if you choose not to call your expert
witness that is your decision. But I’m not going to deny you that ability. …
*
JONES: … I want to file a verbal motion for dismissal based on the
fact that my Constitutional rights to a fast and speedy trial have been
denied.
COURT: I will overrule your motion to dismiss on speedy trial
grounds.
…
COURT: … Now, as I’ve indicated before Mr. Everett committed
no wrongdoing in filing a Motion to Quash to avoid a witness having to come
from Columbus, Ohio who has not been properly tendered fees at the time
that you filed the subpoena.
…
COURT: If you’ve worked out a financial agreement . . . I understand
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everything that you said in your motion. I’m overruling your Motion for
Sanctions. I’m overruling your Motion to Strike the Motion to Quash. We’re
setting a new court date. You have an opportunity to have the witness that
you subpoenaed that was, the subpoena was quashed. You may re-
subpoena him. And you will have the ability to have that witness here in
your defense. So you have been prejudiced in no way. …
{¶ 9} On December 4, 2015, Jones filed “Defendant’s Motion to disqualify
Prosecutor John D. Everett and the Office of the Kettering Prosecutor and Appointment
of a Special Prosecutor.” Jones subsequently filed “Defendant’s Notice to the Court that
the Speedy Trial Period has Expired and Defendant still has not Waived his Rights to a
Speedy Trial.” Jones then filed a “Motion for Hearing” on his request for a special
prosecutor. Jones also caused subpoenaes to be issued to the Custodian of Records
of Kettering Police Department, the Custodian of Records of Ohio Calibration
Laboratories, and the Custodian of Records of Google, Inc. On December 18, 2015, the
City of Kettering filed a “Motion to Compel Discovery.”
{¶ 10} On December 22, 2015, “Defendant’s Response to Plaintiff’s Motion to
Compel Discovery” was filed. The court subsequently issued an “Entry Granting State’s
Motion to Compel Discovery.” On December 23, 2015, Jones filed a “Notice of Service of
Defendant’s Answers and Trial Period has Expired and Responses to Plaintiff’s Discovery
Request.”
{¶ 11} Trial commenced on December 23, 2015. At the start thereof, Jones
indicated to the court that a video of a portion of the traffic stop taken by him in his vehicle
is “a part of my evidence” and that he intended to present it at trial. After the prosecutor
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indicated that he had not viewed the video, Jones indicated that the prosecutor never
responded to his discovery requests, and that Jones “has to use the subpoena process
and also public records request[s] to get anything from anyone.” Jones stated that he
provided the video to the prosecutor on the morning of trial.
{¶ 12} After the trial court granted the prosecutor time to view the video, the
prosecutor indicated that the video appeared to be altered and objected to its admission.
Jones advised the court that he blurred the logo on the shirt he wore on the date of the
stop which reflected the name of his employer, but that he also had an unaltered copy of
the video. The prosecutor objected to the unaltered video on the basis of relevance, and
the court deferred ruling on the objection.
{¶ 13} The court next addressed Jones’ motion for Brady material as follows:
COURT: … You’ve got a Motion for Brady Material. Have you
provided him everything that is relevant to him on the issues of guilt and/or
punishment … Mr. Everett?
EVERETT: Yes, your Honor.
COURT: … We’ll consider that motion disposed of then.
JONES: … Can I have a response to that?
COURT: Sure.
JONES: … There, there was Brady material that wasn’t disclosed.
Um, I submitted three uh, actually four public records requests uh, for the
maintenance records of the speed detection device.
COURT: Um huh.
JONES: And every time I was told that it’s never been, never an
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issue since 2002. Never an issue with this device. It’s like engineers from
space must have created this thing for it never to have any issues. It wasn’t
until I … submitted a subpoena to the Ohio Calibration Laboratories in
Columbus that they actually provided me documentation that it, there had
been issues with it. It has been repaired. I think a device that, that’s used
to detect the speed of people that results in uh, the collection of fines ….
COURT: Well then you got that information. But, but you now
have that information so you’re not prejudiced by his uh, his not giving it to
you.
JONES: Well it should have been provided by the Prosecutor and
even the . . .
COURT: Were you aware … of such an issue that he’s talking
about? Are you aware of any such thing?
EVERETT: No your Honor.
COURT: … Well if he doesn’t know about it he can’t give it to you.
JONES: Well your Honor, in the documentation I received from the
Prosecution yesterday it was included.
…
COURT: Well uh, he … said that he’s complied, he’s provided you all
Brady materials so that motion is, unless something pops up during the trial, that
motion is disposed of.
JONES: Okay.
{¶ 14} The court next denied Jones’ motion to exclude law enforcement records,
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noting that such a motion in limine in a bench trial is “not really appropriate.” Regarding
Jones’ motion to dismiss the matter, the following exchange occurred:
EVERETT: The Motion to Dismiss the case I believe is based on
speedy trial your Honor. All speedy trial was told [sic] based on the
motions filed by Mr. Jones and for the fact that this Court in the interests of
justice continued this case to give Mr. Jones a chance to bring in his
witnesses. So I ask that be overruled.
…
JONES: … There are multiple reason [sic] that I asked for a
motion to dismiss. One, it would have been a violation of my rights,
constitutional uh, federal and state constitutional rights to have a jury. …
The second one involved, um, through the, the public records request that,
that device that’s being utilized by the officer um, no, the information
provided me at that time shows that he was not actually trained in the
device. …
COURT: Well you’re correct that the Constitution doesn’t carve out
an, an exception on your right to a jury trial for speeding cases. …
…
COURT: So I’m gonna overrule that part. And your questions
about the officer, those go, those doesn’t go to a motion to dismiss at this
point. Those may go to his credibility or his ability to offer certain testimony
at trial.
JONES: Right.
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COURT: But it doesn’t get you, it doesn’t get a motion to dismiss.
So I’m gonna overrule that motion.
{¶ 15} Regarding “Defendant’s Motion to Strike Plaintiff’s Motion to Quash
Defendant’s Subpoena and Request for Sanctions,” the following exchange occurred:
EVERETT: … The Defendant subpoenaed Dick McCreary who is
an expert at Calibration Labs. He’s filed that subpoena without sending the
necessary money to the uh, subpoenaed witness. Mr. McCreary called me
up and asked if I would file a Motion to Quash on his behalf and I did uh,
requesting that the subpoena be quashed. That was for the original trial.
…
THE COURT: Has he been re-subpoenaed for this trial?
JONES: Yes, and he’s not shown up.
COURT: … Did you give him mileage and the other requirements?
JONES: Yeah. I gave him all that. He wanted $2,000.00.
…
COURT: I’m gonna overrule that motion also.
{¶ 16} Regarding Jones’ motion to disqualify the prosecutor, the following
exchange occurred in part:
COURT: … [W]hat’s your grounds for this Mr. Jones?
JONES: … Uh, your Honor, in the trial session. This is a
continuation of that trial. This isn’t a new trial. Um, the prosecutor said
that he is a member of the … Kettering Law Department. Which also
represents the Kettering Police Department. Those are two different roles
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that should … involve independent activities. … He’s never responded
… to my discovery requests. … I think there is a conflict of interest
there. …
COURT: What would the conflict of interest be?
JONES: Well a public servant who knowingly or intentionally
commits an offense in the performance of public servants’ official duties. *
… His … efforts in not participating in discovery as a prosecutor. …
COURT: And if, because he didn’t give you your discovery in the
way you wanted it quickly enough or what you wanted, is that the gist of
your complaint against him?
JONES: Well I was forced to use subpoenas and the public records
request. …
…
COURT: Uh, the police and the prosecutor’s office are part of the
executive branch of government.
JONES: Yep.
COURT: I’m part of the judicial branch as I sit here. They’re
separate. And the executive branch encompasses both the police, law
enforcement function and the prosecutorial function. And so … him
representing the police department and the City of Kettering as an entity are
wholly proper because … that falls under the powers and authorities of
the executive branch. There’s no conflict there. …
JONES: Yep.
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COURT: So that’s the normal function of the prosecutor. … I’m
not gonna remove him. So that motion’s overruled.
{¶ 17} Finally, the court indicated, “you’ve got a motion on speedy trial. I’m
gonna overrule that.” After the court ruled on the motions, Jones moved the court for a
separation of witnesses, and the court granted the motion, indicating, “Anybody who’s
gonna testify has to remain outside of the courtroom. You’re not to talk to each other
although you may talk to counsel.”
{¶ 18} Eric Rustad testified that he is a City of Kettering police officer with over 20
years of experience, and that for the last six years, his sole responsibility has been to
enforce traffic laws. He stated that on November 5, 2015, at about 8:43 a.m., he was in
the uniform of the day on a motorcycle at the 4300 block of Wilmington Pike, directly
across from Glenmina Avenue. Rustad stated that he observed a vehicle later confirmed
to be driven by Jones traveling northbound at a high rate of speed. Rustad stated that
his partner, Officer Tischler, was to his left on a motorcycle as well and observed Jones’
vehicle. Rustad stated that he estimated Jones’ vehicle to be travelling at “at least fifty-
three miles an hour.” Rustad stated that he “activated the speed measurement device
on the front portion of the vehicle and received a … speed reading of fifty-four miles an
hour.”
{¶ 19} Rustad stated that the weather was sunny, he had a clear line of sight, and
Jones’ vehicle was the only one travelling northbound at the time. Rustad stated that he
utilized his LTI Ultra Light LRB to determine Jones’ speed. He identified a copy of a
certification from a 40-hour course he completed that was issued by the Highway Patrol
Academy in speed measurement “for not only LIDAR laser … but for radar as well.” He
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further identified certification from the Highway Patrol Academy for another 40-hour
course he completed “to give me the Instructor Certification for Speed-measuring.”
{¶ 20} Rustad testified that every morning that he intends to use his speed
measuring device he performs “accuracy checks. I do a two-point method based on
distance which is the science behind speed measurement. The time of flight from the
device to a fixed object and back. I do that within the police department.” Rustad testified
that he tested the device on the morning that he stopped Jones, and that it was accurate
in terms of distance. He stated that he checked the LEDs and confirmed that they were
functional. He testified that there were no problems with the device. Rustad testified
that he also verifies the accuracy of the device in the course of his day based upon “known
distances,” such as “a school zone that I patrol nearly daily.” Rustad stated that every
year the device is sent to Ohio Calibration Laboratories for a “gambit” of accuracy and
function tests.
{¶ 21} In determining Jones’ speed, Rustad stated that he depressed the trigger
on the device with the “illuminated dot on the front license plate area of the vehicle” and
obtained the speed reading. He stated that Jones’ vehicle “was 793 feet away if I’m not
mistaken” from where he was seated on his motorcycle. Rustad stated that he has been
trained in the use of the specific device he used that day, and that he uses it every day in
the course of his work. He stated that he used the device according to his training and
experience. Rustad stated that Jones was travelling 54 miles an hour in a posted 40
mile per hour zone. Rustad stated that while he aims the device in the area of the license
plate, “you only need … a surface.” He stated that “any object that is, that is a solid
object you can get a reading from.” Rustad stated that Jones was driving a Porsche
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Boxster without a front license plate.
{¶ 22} Rustad stated that if he is unable to obtain a reading, the device displays
an error number. In this instance, he stated “I literally shot the vehicle one time with this
measurement device. Had absolutely no problem picking it up.” Rustad described the
particular area of Wilmington Pike as “a relatively flat wide portion of the roadway with …
* no obstructions from … trees or … guide wires or any other traffic at that time.” He
stated that the stop was in a residential area with “some businesses.”
{¶ 23} Rustad stated that upon obtaining Jones’ speed, he placed the device in his
scabbard, started his motorcycle and effected the stop. He stated that he “called the
plate in” and approached the vehicle. According to Rustad, he introduced himself to
Jones, advised him that he clocked him at 54 miles an hour in a 40 mile-per-hour zone,
and asked for his license and insurance card. Rustad stated that he asked Jones if the
address on his license was current, and that Jones responded, “Sure.” He stated that
he asked Jones for his phone number, and that Jones responded, “000000.” Rustad
stated that he advised Jones that he failed to display a front license plate as required by
law, and that Jones responded, “[G]o ahead and cite me. I’m gonna get out of this
anyways.” Rustad stated that he cited Jones for speeding and failure to display a front
license plate. In response to questions from the court, Rustad indicated that the device
he uses is “issued to me and the motorcycle. … Vehicle number is 441. … It is
always in my … care.”
{¶ 24} When asked by Jones on cross-examination about his familiarity with the
manual associated with the device at issue and the specific instructions provided therein
regarding the area at which to aim the device, Rustad testified that the manual “asks for
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the front license plate area of the vehicle.” He testified that the device “doesn’t need a
license plate … to get a reading.” According to Rustad, “You aim at the front license
portion of the vehicle and it either will or will not give you a reading. Which, in fact, with
your vehicle it immediately did.” Rustad stated that his training certifications presented on
direct examination are from 1996 and 1998. Rustad stated that the device he uses was
manufactured in January of 2006. He stated that he obtained the device in May of 2009.
Rustad stated that the training he received “was based on the science behind … speed
measurement. Not with specific devices as devices obviously will change over the
years.”
{¶ 25} The following exchange occurred:
Q. Um, when you determined the speed of the … Defendant were
you standing or were you sitting on your motorcycle?
A. I was seated.
Q. You were seated. Are you familiar with the section of the
manual where it tells you not to sit on your motorcycle?
A. No.
…
COURT: Was your motorcycle running or the engine off?
A. No. Engine’s off. I’m in a … comfortable seated braced
position when using it.
COURT: Now was your motorcycle pointed which way?
A. Towards the roadway. Wilmington Pike. So I was seated in
accordance with its use.
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…
Q. So, if the manual states that you should not be … sitting on
your motorcycle while you’re using the device, would one, would you believe
that you’re not following the procedures of the user’s manual for that
device?
EVERETT: Objection. That’s a hypothetical, your Honor. He said
he does not that it was in the manual. [Sic].
COURT: I’ll sustain it. If we get some testimony … that it’s in the
manual then we’ll talk about it. We can talk about that later.
JONES: Okay.
Have you ever read the manual?
A. Yes I have.
Q. So … you’re familiar with, are you familiar with the section in
the manual where it instructs you, an officer you know, trying to determine
the, the speed of … a person, not to sit on their motorcycle?
A. No. If you have it, I’d like to read it.
Q. I actually don’t have it with me right here.
COURT: Oh. Well then you’re not gonna present evidence to that
effect?
JONES: No.
COURT: Well then move on.
{¶ 26} The following exchange occurred regarding a document purportedly
responsive to Jones’ subpoena to Google, Inc.:
-22-
Q. … Your Honor, I want to present the, the officer a document
that I received through a subpoena through Google regarding, it’s a Waze
application.
COURT: Did … *you print something out or did you subpoena
something from Google?
JONES: I subpoenaed something from Google.
COURT: Oh really. Let me see what that was. You issued a
subpoena to them and they sent you this?
JONES: Yeah.
COURT: No kidding.
…
COURT: I can tell you that the Court’s … fairly familiar with the
area.
JONES: Yeah.
COURT: So if you want to talk about it … I know the area
reasonably well.
JONES: … May I approach the witness?
COURT: Absolutely.
Q. This is … *actually an application that’s used on my phone . . .
COURT: Well just ask him questions about the drawing. We don’t
need, you don’t need to authenticate it.
JONES: Okay.
COURT: I recognize it.
-23-
…
Q. Um, can you identify … the shopping center and your position
that was identified by the Waze application in this depiction?
A. I cannot.
EVERETT: Your Honor, I’m gonna object. He can’t identify
something . . .
COURT: Yeah. He doesn’t, he doesn’t know what a Waze
application or Google or where it came from. It’s a map of the Wilmington
Pike area of Kettering. Ask him questions about what’s depicted on the
map.
…
Q. On the map, where do you see the police symbol located at?
COURT: Well that’s a, now, you put that on there. Ask him if that’s
where he was? Ask him if that symbol indicates where he was accurately
or whether it’s inaccurate.
…
Q. Is that an accurate depiction of where your location was when
you um, detected the speed of the Defendant?
A. Well, ultimately no because there are no … visual signs of, of.
[Sic] I don’t know what street this is. I don’t know what area this is. Uh,
Woodner is much, much, … farther to the north as is Lisbon. … I can’t
really see what this is stating. But uh, no it is not.
Q. … Do you, do you see uh, does it depict the speed?
-24-
A. I see an icon that says ‘37 mph’.
Q. Would you, the acronym would, do you have a particular
understanding of what that … acronym might be?
A. Yes.
Q. What is that?
A. Miles per hour.
Q. … What is the date . . .
EVERETT: Your Honor, again . . .
COURT: What, what’s it say? 37 miles an hour. What … are
you talking about?
JONES: Well the Waze application uses global positioning
satellites to determine your location and the speed of your vehicle. This is
an application that I use on my IPhone.
COURT: Yeah, we’re not. Now I let you use that for the purposes
of it being a map of the area. We’re not using Google or what you did with
your phone to have any testimony about speeds being above or below
certain numbers.
JONES: Well this technology actually . . .
COURT: I don’t want to hear about.
JONES: Your Honor . . .
COURT: You, you’re, if you want to get up here and qualify it and
testify about it fine.
JONES: I’m an expert with this application.
-25-
COURT: Well, we don’t know that. You may be or you may not
be. But you haven’t been qualified as one yet.
JONES: … I’ve been using it for two years. … I’m an expert at
using this application.
COURT: You ask him a question and he’s probably gonna object
and I’ll rule on his objection. Go ahead.
…
Q. What is … the date listed on this?
EVERETT: Objection, your Honor.
COURT: I’ll let him answer what the date is. Overruled.
A. Uh, it … states on that piece of paper, ‘November 5, 2015’.
Q. And then what’s the time?
EVERETT: Your Honor, again, I object. This is stuff . . .
COURT: … I don’t know where he’s going with this. I’m gonna
let him say what the time is stated on the piece of paper. Overruled. Go
ahead.
A. It says uh, ‘Family, friendly or Family Mode LTE 8:42 am’[.]
Q. So is the date and time uh, similar to the time and date that you
detected the Defendant’s speed?
…
JONES: Your Honor, may I provide him with the citation itself that
was issue? [Sic.]
COURT: That’s up to you.
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…
JONES: Okay.
Q. So here’s a copy of the citation. Is, is there a specific time listed
on citation?
A. … I put 08:43 which is 8:43 am.
Q. … And the date on the ticket?
A. Uh, the 5th of November.
{¶ 27} After re-direct and re-cross examination, the following exchange occurred:
EVERETT: Your Honor, I ask the Court take Judicial Notice as to
the scientific reliability of the device used in this case. This Court heard
testimony on December 8th in fact, in a case involving this officer and this
specific machine in which you heard an expert from LTI as to the scientific
reliability and the underlying science of the machine. And I ask the Court to
take Judicial Notice of that.
…
JONES: Well I object to that. I wasn’t, didn’t participate in that. I
have no idea what … that person testified to. Nor did I have the ability to
question or cross examine.
COURT: That’s absolutely correct. However, what was the date
again that I did that?
EVERETT: December 8th, your Honor. It was in the City versus Pitts
case.
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COURT: Uh, Nathaniel Pitts. That was, and the case was, City
versus Nathaniel Pitts. 15TRD08241. The … prosecutor for the City of
Kettering did produce … expert testimony. Uh, the witness whose name
I don’t recall was qualified as an expert and testified as to the … inherent
reliability and accuracy specifically of the LTI … Ultra Light device. Same
one that was used in this case. And we recognized it and took Judicial
Notice of it. Subject to being properly operated and appearing to be in
good working order and meeting all that … foundational criteria. That …
* the device itself … is inherently accurately [sic] and fit for the purpose *
… it’s intended. So we will take Judicial Notice of the inherent accuracy of
the device when it’s properly operated and when it’s working properly.
{¶ 28} The following exchange occurred in part regarding the admission of
Jones’ exhibits:
COURT: Yeah. We’re gonna admit, uh, we’ll admit his exhibits.
You don’t have any objection to his exhibit, do you? Or do you?
EVERETT: No, you Honor. Except for the one that was from
Waze.
…
COURT: I don’t think it was marked either. We’re gonna, I’m
gonna keep it because there was testimony about it. But it’s not gonna be
admitted as an exhibit. I’m just gonna put it in here for what it’s worth.
…
JONES: Your Honor, it’s from my application that I use on my
-28-
phone. …
COURT: No. I’m not gonna admit that. …
{¶ 29} The record reflects that on December 23, 2015, Jones filed a “Motion for
New Trial.” The municipal court overruled the motion on December 31, 2015.
{¶ 30} Jones asserts six assignments of error herein. His first assignment of
error is as follows:
THE COURT IMPROPERLY TOOK JUDICIAL NOTICE OF THE
ACCURACY OF A LASER DEVICE BASED UPON EVIDEDNCE OF AN
UNRELATED HEARING.
{¶ 31} Jones asserts as follows:
Obviously the accuracy of a specific device on a specific day cannot
be generally known in the entire City of Kettering. Nor can the reference
to an unrelated trial suffice to meet the second criterion. Nathanial Pitts,
whose case was used as the basis for the judicial notice request had a
complaint that was entered on October 23, 2015. Any testimony that the
device was accurately functioning on or about that date could have no
bearing or relevance to the present matter which had an offense date of
November 5. Thus the accuracy of a device on an unrelated earlier date
does not meet either requirement of Evid. R. 201.
{¶ 32} This Court, in State v. Helke, 2015-Ohio-4402,
46 N.E.3d 188 (2d Dist.)
considered at length the circumstances under which a court may properly take judicial
notice of a specific laser device’s scientific reliability. This Court noted as follows:
Ohio courts have generally held that “[e]stablishing the reliability of a
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speed-measuring device can be accomplished … by (1) a reported
municipal court decision, (2) a reported or unreported case from the
appellate court, or (3) the previous consideration of expert testimony about
a specific device where the trial court notes it on the record.” (Citations
and footnote omitted). Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-
Ohio-5992, 821 N.E. 2d 613, ¶ 10 (1st Dist.) ….
Id., ¶ 19.
{¶ 33} After a thorough review of cases from other districts, this Court further noted
as follows:
Subsequently, in 2006, we again considered whether the trial court
had properly taken judicial notice of a laser speed measurement device.
State v. Pellettiere, 2d Dist. Montgomery No. 21070, 2006-Ohio-1606, ¶ 7.
The type of laser was not identified in our opinion. We overruled the
defendant’s objections, stating that:
In the present case Pellettiere, acting pro se, objected
to Officer Stephenson’s testimony about the use of a laser
speed measurement device. Specifically, Pellettiere objected
by stating “[a]s far as I know the State has not taken judicial
notice of this device as of this moment.” (Emphasis added).
The court responded by stating, “[t]his Court has.” That
statement indicates that the trial court has taken evidence in
the past which permits the court to take judicial notice of that
particular type of laser speed measurement device. We find
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it unnecessary for the trial court to specifically state the case
in which it heard expert testimony on the device.
We conclude that it was permissible for the trial court
to take judicial notice that the specific laser speed
measurement device in this case was accurate and reliable.
Accordingly, Pellettiere’s second assignment of error is not
well taken and is overruled. Id., ¶ 9-10
We ruled to the same effect in 2008, in a case involving the Fairborn
Municipal Court. See State v. Dixon, 2d Dist. Greene No. 06-CA-0145,
2008-Ohio-415. In Dixon, the trial judge noted that she and the court’s
magistrate had taken judicial notice on prior occasions of the reliability of a
hand-held, battery-operated laser device that was used by the officer in
Dixon. Id. at ¶ 3 and 7. While the type of laser device that was being used
is not identified in our opinion, the trial court did comply with the
requirements for taking judicial notice.
Helke, ¶ 34-35.
{¶ 34} The Twelfth District, in State v. Sweat, 12th Dist. Butler No. CA2015-10-
184, 2016-Ohio-2680, ¶ 14, summarized this Court’s holding in Helke as follows:
… [T]he Second District determined that the trial court erred by
taking judicial notice of a speed-measuring device that had not been proven
to be scientifically reliable. The court reasoned that the testimony
regarding the speed determination was not admissible because of the lack
of scientific reliability of the device, and the only remaining evidence of guilt
-31-
was the officer’s visual estimation of speed. The Helke court concluded,
“since the laser device was not specifically identified, and its scientific
reliability was not established by any permitted methods, the State failed to
prove the essential elements beyond a reasonable doubt” because the
visual estimation alone could not provide sufficient evidence to convict.
[Helke] at ¶ 46.
{¶ 35} Here, the device utilized by Rustad was specifically identified as an LTI
Ultra Light LRB, and the municipal court took judicial notice of this model’s reliability based
upon the court’s own prior findings that this particular laser was scientifically reliable, in
Kettering Municipal Court Case No. 15TRD08241, “when it’s properly operated and when
it’s working properly.” While Jones argued that the manual for the device requires the
officer to stand in the course of its operation if on a motorcycle, he failed to present
evidence of the manual’s contents. Rustad testified that the device was properly
maintained, that he had tested its accuracy on the morning of its use, and that he operated
the device in a manner consistent with his training and experience. Jones’ first
assignment of error lacks merit and is overruled.
{¶ 36} Jones’ second assignment of error is as follows:
THE VERDICT IN THIS MATTER WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 37} Jones asserts as follows:
… [T]he only evidence of Appellant’s speed was based upon an
estimate of the officer, which estimate is an astoundingly specific 53 mph,
not 50, not 55, not 60, but precisely 53 mph. The evidence also showed
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that the officer improperly used the device. In contrast, the Court admitted
computer evidence presented by the Appellant that his speed was 37 mph.
In accepting the unsupported evidence of a human estimate that purports
to pinpoint an exact speed over a computer generated real-time recording
of the Appellant’s speed, the Court clearly lost its way and the decision of
the Trial Court must be reversed.
{¶ 38} As this Court has previously noted:
A weight-of-the-evidence argument “challenges the believability of
the evidence and asks which of the competing inferences suggested by the
evidence is more believable or persuasive.” State v. Wilson, 2d Dist.
Montgomery No. 22581, 2009–Ohio–525, ¶ 12; see Eastley v. Volkman,
132 Ohio St.3d 328, 2012–Ohio–2179,
972 N.E.2d 517, ¶ 19 (“ ‘manifest
weight of the evidence’ refers to a greater amount of credible evidence and
relates to persuasion”). When evaluating whether a conviction is against the
manifest weight of the evidence, the appellate court must review the entire
record, weigh the evidence and all reasonable inferences, consider witness
credibility, and determine whether, in resolving conflicts in the evidence, the
trier of fact “clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.” State
v. Thompkins,
78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997), citing State
v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
Because the trier of fact sees and hears the witnesses at trial, we
must defer to the factfinder's decisions whether, and to what extent, to credit
-33-
the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery
No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the evidence is
subject to different interpretations does not render the conviction against
the manifest weight of the evidence. Wilson at ¶ 14. A judgment of
conviction should be reversed as being against the manifest weight of the
evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175,
485 N.E.2d 717.
State v. Quarles, 2015–Ohio–3050,
35 N.E.3d 616, ¶ 4–5 (2d Dist.).
{¶ 39} As noted above, the municipal court properly took judicial notice of the
reliability of the device used by Rustad, and Rustad’s estimate of Jones’ speed was not
the only evidence of his vehicle’s speed before the court. There was also no evidence
that Rustad used the device improperly. Although the court allowed Jones to question
Rustad on cross examination about the location of the stop as purportedly represented
by the “Waze” document, contrary to Jones’ assertion, the court did not admit Jones’
“Waze” document as evidence of Jones’ speed. Finally, the trial court clearly deferred to
Rustad’s testimony about the condition of the laser device and his use thereof as
consistent with his training and experience. Having thoroughly reviewed the record, we
cannot conclude that Jones’ conviction for speeding is against the manifest weight of the
evidence. Jones’ second assignment of error is overruled.
{¶ 40} Jones’ third assignment of error is as follows:
THE COURT ERRED IN FAILING TO DISQUALIFY THE
PROSECUTOR AND THE KETTERING PROSECUTOR’S OFFICE DUE
TO A CONFLICT OF INTEREST.
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{¶ 41} The parties direct our attention to the exchange that occurred on
December 3, 2015. Jones asserts that there is a conflict of interest between the role of
the Kettering Prosecutor’s Office “as a public office serving the public” and its role “as an
attorney for the Kettering Police Department.” Jones asserts as follows:
In the present matter, the prosecutor indicated only that he was
employed by the Kettering Law Department. Further, at the December 3,
2015 original trial date, the prosecutor indicated that the Freedom of
Information requests of the Appellant were handled through his office. The
prosecutor was blurring these functions to claim that he had complied with
a Crim.R. 16 discovery request. … Civil and criminal functions were thus
combined. Accordingly, the Court should have inquired into the duties of
this prosecutor, whether they included duties in both divisions of the Law
Department and whether the personnel of the Law Department routinely
blur their roles.
{¶ 42} The State responds in part as follows:
… It was not error for the trial judge to overrule the motion to
disqualify the prosecutor. No actual or apparent conflict existed between
the two roles. In fact the Appellant received a “huge stack” of discovery for
a minor misdemeanor trial as a result of the dual role of the Kettering Law
Department. Therefore, the City of Kettering requests the court overrule
this argument and uphold the decision of the trial court.
{¶ 43} R.C. 705.11 provides that the “city director of law shall act as the legal
advisor to and attorney for the municipal corporation in matters relating to their official
-35-
duties. … He or his assistants shall be the prosecutor in any police or municipal court *
….” R.C. 1901.34 provides that the “city director of law … for each municipal
corporation within the territory of a municipal court shall prosecute all cases brought
before the municipal court for criminal offenses occurring within the municipal corporation
for which that person is the … director or law ….” The State correctly directs our
attention to State v. Athon, 136 Ohio St.3d 43,
2013-Ohio-1956,
989 N.E.2d 1006, ¶ 19,
which noted that when “an accused directly or indirectly makes a public records request
for information that could be obtained through the prosecutor through discovery, the
request is the equivalent of a demand for discovery and triggers a duty to provide
reciprocal discovery as contemplated by Crim.R. 16.” As the trial court correctly noted
and for the reasons set forth above, we conclude that the trial court did not err in failing
to disqualify the prosecutor.
{¶ 44} Jones’ fourth assignment of error is as follows:
THE TRIAL COURT ERRED IN CONTINUING THE TRIAL DATE
OVER OBJECTION OF THE APPELLANT.
{¶ 45} Jones asserts as follows:
The Appellant had filed Brady motions and subpoenas for expert
witnesses. The trial was set for this matter on December 3, 2015. On
December 3, 2015, the Court sua sponte continued the trial based on the
motions and subpoenas of the Appellant. However, the Appellant withdrew
his motions and subpoenas at this hearing and repeatedly demanded to
have his trial as scheduled.
What makes the Court’s conduct suspect is the fact that the
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Complaining Witness, police officers failed to appear for trial. The
prosecution made no request for a continuance. Accordingly, the
Appellant was denied due process of law.
{¶ 46} We initially note that the record of the December 3, 2015 hearing does not
establish, as Jones suggests, that Rustad was not present, but rather suggests that Jones
did not recognize him until the prosecutor indicated, “This is the police officer who cited
you and stopped you.” We further note that in the course of the December 3, 2015
hearing, Jones indicated that “I’ve just had one road block after another. And I don’t feel
like at this point … I can … receive a fair trial based on the State’s … inability or
unwillingness to cooperate with discovery.” (Emphasis added.) Jones further asserted
that he wanted an absent expert witness to testify, and the court indicated that it would
grant Jones additional time to secure the appearance of the witness and all the material
he sought in discovery, so that Jones would have “adequate time to have anybody you
want here. And adequate time in this Court to present anything that you would like the
Court to consider regarding your defense.” Crim. R. 16 governs discovery, and Crim.
R.16(L) provides: “If at any time during the course of the proceedings it is brought to the
attention of the court that a party has failed to comply with this rule …, the court may
grant a continuance ….” (Emphasis added). Jones’ fourth assignment of error lacks
merit, and it is accordingly overruled.
{¶ 47} Jones’ fifth assignment of error is as follows:
THIS MATTER MUST BE REVERSED DUE TO FAILURE TO
PROVIDE DISCOVERY.
{¶ 48} Jones asserts that despite an order from the trial court on December 3, 2015
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“to comply with the discovery request including requested Brady material,” as of the
December 23, 2015 trial date, he still had not received Brady material from the prosecutor.
Jones argues that “[s]pecifically, the device used in this incident was represented as
having no maintenance issue. Appellant was forced to file a subpoena with the Ohio
Calibration Laboratories and discovered that this machine did in fact have maintenance
issues.” Jones argues as follows:
The Court dismissed this matter by stating that since the Appellant
had independently gotten this information he was not prejudiced by its
withholding by the prosecution. However, this is not the case. Due to this
failure to supply Brady material, the Appellant was forced to attempt to
contact and arrange for expert witnesses at the last moment. Naturally,
these witnesses were unable to appear. The Appellant was indeed
prejudiced thereby.
{¶ 49} As this Court has previously noted:
In Brady [v. Maryland, 373 U.S. 83,
83 S.Ct. 1194,
10 L.Ed.2d 215
(1963)], the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. See
also, State v. Johnston, 39 Ohio St.3d 48,
529 N.E.2d 898 (1988),
paragraph four of the syllabus; State v. Aldridge, 120 Ohio App.3d 122, 145,
697 N.E.2d 228 (2d Dist.1997). Evidence is considered material “if there is
a reasonable probability that, had the evidence been disclosed to the
-38-
defense, the result of the proceeding would have been different.” United
States v. Bagley, 473 U.S. 667, 682,
105 S.Ct. 3375,
87 L.Ed.2d 481 (1985).
The rule in Brady only applies to evidence unknown to the defendant
at the time of the trial. See United States v. Clark, 928 F.2d 733, 738 (6th
Cir.1991) (no Brady violation exists where a defendant knows of essential
facts permitting him to take advantage of exculpatory information or where
evidence is available from another source); State v. LaMar, 95 Ohio St.3d
181, 2002–Ohio–2128,
767 N.E.2d 166, fn. 2; State v. Buhrman, 2d Dist.
Greene No. 96 CA 145, 1997 WL 566154, *7 (Sept. 12, 1997) (“Brady's Due
Process disclosure requirement only applies to evidence discovered after
trial that had been known to the prosecution, but unknown to the defense”).
State v. Royster, 2d Dist. Montgomery No. 26378, 2015-Ohio-625, ¶ 16-17.
{¶ 50} Jones fails to identify any evidence unknown to him at the time of trial, but
rather he identifies available evidence that he was able to obtain from multiple sources.
Absent documentation regarding this particular device, a mere oral assertion by Jones
that a laser device had been repaired is insufficient to establish prejudice. We note
Jones made no proffer. Jones argues that his ability to prepare for trial was impaired (an
assertion belied by our analysis of his fourth assignment of error), and he does not direct
our attention to material evidence suppressed by the prosecution. “ ‘Materiality pertains
to the issue of guilt or innocence, and not to the defendant's ability to prepare for trial.’
United States v. Bencs, 28 F.3d 555, 560 (6th Cir.1994), citing United States v. Agurs,
427 U.S. 97, 112,
96 S.Ct. 2392,
49 L.Ed.2d 342 (1976), fn. 20.” State v. Osie,
140 Ohio
St. 3d 131,
2014-Ohio-2966,
16 N.E.3d 588, ¶ 154. Jones’ fifth assignment of error is
-39-
overruled.
{¶ 51} Jones’ final assignment or error is as follows:
CUMULATIVE ERRORS DEPRIVED THE APPELLANT OF A FAIR
TRIAL.
{¶ 52} As this Court has previously noted:
Under the doctrine of cumulative error, “[s]eparately harmless errors
may violate a defendant's right to a fair trial when the errors are considered
together. … In order to find cumulative error, we first must find that multiple
errors were committed at trial.” State v. Harris, 2d Dist. Montgomery No.
19796, 2004-Ohio-3570, ¶ 40. “A conviction will be reversed when the
cumulative effect of errors in a trial deprives a defendant of a fair trial even
though each of the numerous instances of trial-court error does not
individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d
233,
2012-Ohio-2577,
971 N.E.2d 865, ¶ 223, citing State v. DeMarco,
31
Ohio St.3d 191,
509 N.E.2d 1256 (1987), paragraph two of the syllabus.
State v. Griffith,
2015-Ohio-4112,
43 N.E.3d 821, ¶ 49 (2d Dist.)
{¶ 53} Having found no errors, we conclude that Jones’ sixth assignment of error
lacks merit, and it is accordingly overruled. The judgment of the trial court is affirmed.
..........
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
John D. Everett
George A. Katchmer
Hon. Jay Newberry,
Acting Judge
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