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State v. Wilson

Court of Appeals of Ohio, Twelfth District, Warren

February 26, 2018

STATE OF OHIO, Plaintiff-Appellee,
THOMAS E. WILSON, Defendant-Appellant.


          Steven M. Runge, Franklin City Prosecutor, for plaintiff-appellee

          Thomas E. Wilson, defendant-appellant, pro se


          HENDRICKSON, P.J.

         {¶ 1} Defendant-appellant, Thomas E. Wilson, appeals from his conviction in the Franklin Municipal Court for one count of speeding in violation of R.C. 4511.21(D)(3), a minor misdemeanor. [1] For the reasons set forth below, we affirm Wilson's conviction.

         {¶ 2} On May 13, 2017, Trooper Robert Todd Bailey of the Ohio State Highway Patrol was operating an UltraLyte LR B laser device while doing routine traffic enforcement on Interstate 75 in Franklin Township, Warren County, Ohio.[2] At approximately 12:39 p.m., Bailey observed a blue Chevrolet operated by Wilson traveling above the posted speed limit of 65 m.p.h. Bailey activated his UltraLyte LR B device and received a reading that Wilson's vehicle was traveling 82 m.p.h. Bailey initiated a traffic stop and issued Wilson a citation for speeding in violation of R.C. 4511.21(D)(3).

         {¶ 3} At his June 2, 2017 arraignment, Wilson entered a not guilty plea to the charge and executed a written "Waiver of Time, " indicating he needed additional time to prepare his defense. Wilson filed a request for discovery with the prosecutor, seeking information relating to the specific laser device used in issuing the speeding ticket and Trooper Bailey's certification and training on said device. Wilson's request for discovery was filed May 30, 2017.

         {¶ 4} A bench trial was scheduled for June 30, 2017. At this time, Wilson appeared before the court and moved for dismissal of the charge on the basis that the speeding citation had not been signed. The court denied Wilson's request, finding that the citation was not required to be signed "because it came through electronically to the Court." Wilson also asked the court to dismiss the case because the prosecutor had not provided the requested discovery. The prosecutor opposed the motion, stating that he had been unable to provide the discovery because Trooper Bailey had been on vacation and had just recently returned. The prosecutor indicated the requested discovery would be provided to Wilson by the end of the following week. The court denied the motion to dismiss and rescheduled Wilson's bench trial for July 11, 2017.

         {¶ 5} Prior to the trial commencing on July 11, 2017, Wilson moved for a dismissal on the basis that his statutory speedy trial rights had been violated as he had not been brought to trial within 30 days. The court denied the motion, finding that the speedy-trial time period had been tolled and the time extended by Wilson's request for discovery. Thereafter, the trial commenced and the state called Trooper Bailey as its only witness.

         {¶ 6} Bailey testified he has been a trooper with the Ohio State Highway Patrol for 24 years and has received training in speed enforcement through the police academy and postgraduate training courses. Annually he undergoes a written and visual estimation training course, and he has been certified in the use of the following speed detection instruments: "laser, radar, ultralight laser, ultralight laser LTI 2020, * * * laser LTI 2020, K Band, [and] X Band radar."

         {¶ 7} Prior to using the UltraLyte LR B laser on May 13, 2017, Bailey stated he made sure the device was in proper working order. At approximately 12:39 p.m., he observed the Chevrolet operated by Wilson traveling above the posted speed limit of 65 m.p.h. and activated his UltraLyte LR B device. Using the device in accordance with his training, he recorded Wilson traveling 82 m.p.h.

         {¶ 8} Wilson objected to the "introduction of evidence or testimony based on the use of a[n] electronic measuring device, specifically the ultra light * * * [as it] has not been established as scientifically reliable or accurate in measuring the vehicle speed." The trial court overruled the objection after the following discussion was held:

THE COURT: To the best of my recollection it's been accepted by the Twelfth District Court of Appeals as scientifically accurate. The motion's been overruled.
[PROSECUTOR]: Your Honor, this Court has also taken judicial notice of it.
THE COURT: Taken judicial notice of it.
[PROSECUTOR]: Those instruments being scientifically accurate.
THE COURT: Correct. Overruled.
WILSON: Your Honor, I have two case studies I have two over [sic] appeals in the Twelfth Appellate Court that were overruled on the basis of the ultra light.
[PROSECUTOR]: And both of those cases proceeded [sic] this Court's determination that the ultra light is scientifically reliable.
THE COURT: It was a finding. We had an expert witness come down from Columbus. I did find that it was scientifically reliable and accurate. Overruled.

         {¶ 9} On cross-examination, Wilson introduced the user's manual for the UltraLyte LR B into evidence and questioned Bailey about the maintenance of the device and whether the device had displayed any error codes or malfunctioned on the day his citation was given. Bailey did not recall receiving an error code on May 13, 2017, and explained that if the device malfunctioned and displayed an error code when it was in use, he would not have been able to measure Wilson's speed as the error code would have "blocked" the speed to prevent an erroneous reading. Bailey also testified that on the day the citation was issued, he performed a display integrity test, scope alignment test, reference frequency test, fixed distance test, and Delta distance test using the UltraLyte LR B before using the device to issue citations. Bailey explained that doing these tests is "routine" for law enforcement and that if, in doing the tests, "it doesn't match up, [he] would turn the machine in, * * * write it up [to] * * * say what it didn't do correctly and [he would] go get another [device] and check it and use it * * * [while] the other one [is] in for repair."

         {¶ 10} Wilson also cross-examined Bailey about his training and certification to use the UltraLyte LR B and introduced Bailey's certification logs into evidence. The logs provided that Bailey was most recently certified on "Radar/Laser" by Sergeant R.L. Burd on June 28, 2016, and again on June 2, 2017 by Sergeant Crisafi. The logs further provided certifications by the sergeants that Bailey "has demonstrated a satisfactory level of proficiency in the operation of the Ohio State Highway Patrol's Electronic Speed Measuring Devices" and "has a knowledge and understands the policies and procedures set forth to govern the operation of the devices." When questioned about whether he was certified specifically on the UltraLyte LR B model that he used in issuing Wilson's speeding citation, Bailey testified as follows:

BAILEY: I have to be re-certified on theory. Okay. So whether I use a LTI 2020 and a LL, a UL LTI 2020 or LR B an ultra light laser, whatever one, it's still on the theory. It's still on the same principle. It doesn't change the theory here; the principle doesn't differ due to the model of the laser they give me. * * * As far as the laser itself, I was certified, I was re-certified by Sergeant Crisafi who went out with me as I spoke before, made me give him a visual estimation of vehicles before he (A) activated the radar or (B) I was able to pull the trigger on the laser gun and I had to be within the tolerance that he was askin[g] for or else I would have failed and [h]e wouldn't have signed off on my training.

         {¶ 11} Following Bailey's testimony, the state rested and Wilson moved for acquittal pursuant to Crim.R. 29(A). His motion was overruled. Wilson then rested his defense after the trial court accepted the UltraLyte LR B's user manual into evidence, along with Bailey's certification logs, and emails exchanged by Wilson and the prosecutor. Prior to the court rendering judgment, Wilson and the trial court engaged in the following discussion:

WILSON: The only question I have was uh, when expert testimony was provided with respect to this specific unit because I had two cases in the Twelfth Appellate Court that reversed a conviction based on the ultra light ...

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