[Cite as State v. Smead,
2024-Ohio-2222.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-23-23
PLAINTIFF-APPELLEE,
v.
RICHARD B. SMEAD, OPINION
DEFENDANT-APPELLANT.
Appeal from Bellefontaine Municipal Court
Trial Court No. 23 TRD 2188
Judgment Affirmed
Date of Decision: June 10, 2024
APPEARANCES:
John K. Limoli for Appellant
Crystal K. Welsh for Appellee
Case 8-23-23
WALDICK, J.
{¶1} Defendant-appellant, Richard Smead (“Smead”), brings this appeal
from the October 6, 2023 judgment of the Bellefontaine Municipal Court finding
him guilty of Speeding. On appeal, Smead argues that the trial court erred by
determining that he had not “successfully rebutted the prima facie evidence that he
was speeding,” and that the trial court erred by “assuming facts not in evidence.”
For the reasons that follow, we affirm the judgment of the trial court.
Background
{¶2} On September June 18, 2023, Smead was charged with speeding in
violation of R.C. 4511.21. It was alleged that he was traveling 80 mph in a 55 mph
zone. Smead pled not guilty to the charge.
{¶3} On August 1, 2023, Smead filed a motion to dismiss the charge against
him arguing, inter alia, that traveling at a speed greater than the specified limit does
not establish an offense per se; rather, it establishes a prima facie case, which can
be rebutted. See Cleveland v. Keah, 157 Ohio St. 331 (1952). Smead contended that
in his case the traffic ticket conditions showed dry pavement, clear visibility, and
no adverse weather conditions. He argued that when considering the totality of the
circumstances, he did not violate R.C. 4511.21(A) because his speed was reasonable
for the conditions.
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{¶4} On August 16, 2023, the trial court filed a written entry denying
Smead’s motion to dismiss. The trial court noted that Smead was making an
argument to dismiss a charge pursuant to R.C. 4511.21(A) when that was not the
relevant subsection he was charged with. The trial court indicated that Smead had
been charged with a violation of R.C. 4511.21(D), which is a per se offense for an
individual traveling in excess of fifty-five miles per hour. Further, the trial court
noted that a reasonable speed for the conditions was not a defense to a per se speed
violation under R.C. 4511.21(D). See State v. Minne, 2d Dist. Montgomery No.
23390, 2010-Ohio-2269. The trial court thus denied Smead’s motion to dismiss.
{¶5} On October 6, 2023, Smead proceeded to a bench trial. At trial, Officer
Logan Miller of the Washington Township Police Department testified that he was
doing road patrol at 12:20 in the afternoon on June 18, 2023. Officer Miller testified
that he had his radar activated as he was driving southbound on State Route 235.
Officer Miller testified that he observed a truck traveling northbound on State Route
235 in the officer’s lane of travel. The white truck was in the midst of passing a
dump truck. Officer Miller testified that he initially observed the dump truck
traveling at 53 mph, and he observed the truck passing it traveling 88 mph. Officer
Miller testified:
Initially I did observe 88 miles an hour. I then went to lock in the
speed. He had slowed down. He was coming towards me. It was
slowed down to 84 is what I locked it in at. Just to double-check, I
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then hit my rear antenna as he went behind me and observed 80 miles
an hour.
(Tr. at 7).
{¶6} Officer Miller’s dash camera footage was introduced into evidence and
the video showed Officer Miller slowing down to avoid a head-on collision with
Smead. Officer Miller testified that he gave Smead a break by only writing the
speeding ticket for 80 mph so that Smead would not have to go to court.
{¶7} Smead testified in his own defense that he did not know how fast he
was going but he had to pass the dump truck because it was knocking rocks into his
vehicle. He testified that the dump truck had been varying its speed and the dump
truck sped up when Smead went to pass. Smead testified that when he observed the
officer’s vehicle, it was coming at him pretty fast so he “floored it” to safely get
around the dump truck.
{¶8} At the conclusion of the testimony, the trial court found Smead guilty
of Speeding as charged. Smead was fined $75 and ordered to pay court costs. A
judgment entry memorializing his conviction was filed October 6, 2023. It is from
this judgment that Smead appeals, asserting the following assignments of error for
our review.
First Assignment of Error
The trial court erred to the prejudice of the defendant appellant
when it found that the defendant had not successfully rebutted the
prima facie evidence that he was speeding.
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Second Assignment of Error
The trial court erred to the prejudice of the defendant appellant
by assuming facts not in evidence and by substituting its personal
values for R.C. 4511.21.
First Assignment of Error
{¶9} In his first assignment of error, Smead argues that the trial court erred
by determining that he had not successfully rebutted the prima facie evidence that
he was speeding. Smead contends that the speeding statute in Ohio, R.C. 4511.21,
only creates a rebuttable presumption that his speed was unlawful. He argues that
he established that given the conditions, his speed was reasonable, and he thus
rebutted the presumption. Smead’s arguments are based on a fundamental
misunderstanding of his charge.
{¶10} Similar to Smead’s motion to dismiss, Smead is making arguments to
validly attack a charge under R.C. 4511.21(A), which is not what he was convicted
of. Smead was convicted of a per se speeding offense under R.C. 4511.21(D), which
reads:
(D) No person shall operate a motor vehicle, trackless trolley, or
streetcar upon a street or highway as follows:
(1) At a speed exceeding fifty-five miles per hour, except upon a twolane state route as provided in division (B)(10) of this section and
upon a highway, expressway, or freeway as provided in divisions
(B)(12), (13), (14), and (16) of this section[.]
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Unlike R.C. 4511.21(A)1, Revised Code 4511.21(D) does not contain any language
related to traveling at a speed that is reasonable and proper with due regard to traffic
conditions.
{¶11} Simply put, “where a defendant is charged under the provisions of
R.C. 4511.21(D), the issue of whether the defendant’s speed was unreasonable
under the circumstances is not relevant” because R.C. 4511.21(D) violations are a
per se offense. State v. Melin, 3d Dist. Seneca No. 13-15-29, 2016-Ohio-1427, ¶ 11,
citing Columbus v. Conley, 10th Dist. Franklin No. 05AP-1332,
2006-Ohio-4625, ¶
12.
{¶12} Here, the State established that Smead was speeding well in excess of
the posted limit of 55 mph. Smead’s ticket alleged that he was traveling 80 mph in
a 55 mph zone.2 Even if Smead was traveling at a reasonable speed for the
conditions, it is not a defense to the charge Smead was convicted of. Smead’s
1
Revised Code 4511.21(A) reads:
(A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater
or less than is reasonable or proper, having due regard to the traffic, surface, and width of
the street or highway and any other conditions, and no person shall drive any motor vehicle,
trackless trolley, or streetcar in and upon any street or highway at a greater speed than will
permit the person to bring it to a stop within the assured clear distance ahead.
2
Smead’s confusion with the statutory subsection he was charged under may have originated with the traffic
ticket, because the ticket only generally listed a violation of R.C. 4511.21 without specifically designating a
subsection. However, the ticket specifically listed that his speed was 80 in a 55 mph zone, implicating R.C.
4511.21(D)(1). Moreover, if Smead was confused as to what subsection he was charged under, that issue was
resolved on August 16, 2023, almost two months before trial, when the trial court rendered its decision on
the motion to dismiss. At that time, the trial court affirmatively indicated the charge was under R.C.
4511.21(D)(1). Regardless, we note that Smead never challenged his traffic ticket at the trial court level, and
he similarly does not challenge it here. However, even if he did make this argument, it has been rejected by
other Ohio Appellate courts. See Conley, supra, at ¶ 14, citing Lyndhurst v. Collins, 8th Dist. Cuyahoga No.
60042,
1992 WL 47120.
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arguments are simply irrelevant and do not undermine the conviction in this case.3
Therefore, his first assignment of error is overruled.
Second Assignment of Error
{¶13} In his second assignment of error, Smead argues that the trial court
erred “by assuming facts not in evidence and by substituting its personal values for
R.C. 4511.21.” (Appt.’s Br. at 7). More specifically, Smead takes issue with some
of the statements the trial court made before finding him guilty.
{¶14} Contrary to Smead’s arguments, pursuant to Crim.R. 23(C), in a trial
without a jury, the court shall “make a general finding.” This Court has repeatedly
expressed, in varying circumstances, that anything stated beyond the required
“general finding” of guilt or innocence in a criminal bench trial is “ ‘mere surplusage
without legal significance.’ ” State v. Ham, 2009-Ohio-3822, ¶ 37 (3d Dist.),
quoting State v. Crawford,
1986 WL 1715 at *7 (10th Dist.); State v. Warner, 2021-
Ohio-4183, ¶ 47 (3d Dist.). Here, the trial court determined that Smead was “guilty
of speeding 80 miles an hour in a 55 mile-an-hour zone.” Anything beyond the trial
court’s statement is surplussage, has no legal significance, and cannot form the basis
for a reversal.
3
Even if Smead’s arguments were relevant, it was entirely within the trial court’s discretion as factfinder to
determine that his speed was not reasonable under the circumstances.
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{¶15} Nevertheless, as there is facially no merit to Smead’s claims, we will
review the trial court’s statement at the conclusion of the trial. After the case was
submitted to the trial court, the trial court stated as follows:
Well, I do a lot of speeding cases and so I pay a lot of attention when
I’m on the highway about how fast I go if I’m passing a vehicle. If the
speed limit’s 55 and I’m going to pass them, how high do I have to
get to safely pass that truck. And it’s not 80 miles an hour. It might –
might be 62 miles an hour, but it’s not 80 or 88 miles an hour. And
that’s what the officer first clocked him at was 88 miles an hour.
I—you made an argument about gravel on the highway, but
there was no – that wasn’t on the – there was no show of gravel as he
passed or coming like that would have – if there was gravel, it would
have hit the officer’s car too. It didn’t. And when the officer passed
him again there was no sign of any gravel. I mean, you had a lot of
discussion here about whether it was safe to pass, and, you know, I
don’t think it was a safe situation to pass. But he wasn’t charged with
reckless operation, he was charged with speeding. And I don’t think
it was safe under the conditions. I don’t think it’s reasonable under the
conditions because I don’t know if he already passed those two other
vehicles and then was passing the truck, but I know that the officer
had to pass the two vehicles and then the truck. I’m guessing – we just
have to guess because of how close they were that Mr. Smead passed
more than just a truck.
Anyway, so, overall, I find that – I find that the defendant was
guilty of speeding 80 miles an hour in a 55 mile-an-hour zone.
(Tr. at 26-27).
{¶16} Smead takes issue with the trial court’s statements regarding him
possibly passing multiple vehicles because there was no evidence to support that
statement. He argues that there was no need to “guess” based on the testimony. He
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also argues that it seemed the trial court may have been confused as to whether this
was a speeding case, a reckless operation case, or an improper passing case.
{¶17} After reviewing the trial court’s statement in its entirety, we find no
error here. The trial court specifically reiterated that it was a speeding case.
Moreover, while the trial court conducts some analysis on the record, it seems it is
primarily directed at discounting any arguments Smead made regarding
reasonableness of the speed, irrelevant as those arguments may have been. In the
end, the trial court found that Smead was guilty of speeding, and that finding is
supported by the record. For these reasons, Smead’s second assignment of error is
overruled.
Conclusion
{¶18} Having found no error prejudicial to Smead in the particulars assigned
and argued, his assignments of error are overruled and the judgment of the
Bellefontaine Municipal Court is affirmed.
Judgment Affirmed
ZIMMERMAN, and MILLER, J.J. concur.
/tmm
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