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State v. Allenbaugh

Court of Appeals of Ohio, Eleventh District, Ashtabula

January 13, 2020

STATE OF OHIO, Plaintiff-Appellee,
v.
MARK H. ALLENBAUGH, Defendant-Appellant.

          Criminal Appeal from the Ashtabula Municipal Court, Case No. 2017 TRD 04031.

         Judgment: Reversed and remanded.

          Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, (For Plaintiff-Appellee).

          Mark H. Allenbaugh, pro se, (Defendant-Appellant).

          OPINION

          MATT LYNCH, J.

         {¶1} On December 1, 2017, Mark H. Allenbaugh was issued a traffic ticket, charging him with a violation of R.C. 4511.21(B)(1)(a) ("[i]t is prima-facie lawful * * * for the operator of a motor vehicle * * * to operate the same at a speed not exceeding * * * [t]wenty miles per hour in school zones during school recess and while children are going to or leaving school during the opening or closing hours"). Allenbaugh was arraigned the same day and entered a plea of not guilty.

         {¶2} On February 23, 2018, a pre-trial hearing was held at which Allenbaugh asked "that the State * * * identify any expert testimony it intends to introduce into evidence." The State responded that "the only witness that the State would call would be Trooper Balcomb." A status hearing was scheduled for June 15 and trial was scheduled for June 21, 2018.

         {¶3} On May 4, 2018, Allenbaugh filed a Motion in limine to Exclude All Evidence Pertaining to Laser Speed Detection Device. In part, Allenbaugh argued: "The State has not identified any expert it intends to call to establish the accuracy and scientific reliability of the [LTI 20/20 TruSpeed Laser Speed Gun] thereby precluding its admissibility or any testimony based thereon. Should the State timely identify such an expert, Mr. Allenbaugh requests a Daubert hearing on said expert."

         {¶4} On May 25, 2018, the State submitted a Response which contained the following: "[T]he State has just learned that an expert is available to provide testimony on the subject speed measuring device but does not have a name, address or CV to provide to the Court or Defendant. The State anticipates supplementing its discovery as soon as this information is provided."

         {¶5} On May 29, 2018, the municipal court denied the Motion in limine.

         {¶6} On June 1, 2018, Allenbaugh filed a Motion in limine to Preclude Any Expert Testimony on the grounds that "the State neither has named any expert witness, nor provided Mr. Allenbaugh with any written report of any potential expert witness as required by the Rules of Criminal Procedure."

         {¶7} On June 4, 2018, the State filed a Motion for Continuance of the June 21 trial date on the grounds that, inter alia, "the expert who is expected to testify in this matter will be out of the country on that date and thus is unavailable" and "the State has yet to receive the information from the manufacturer regarding the expert's name and CV so that it may be furnished to the Defendant in discovery."

         {¶8} On the same date, the municipal court granted the State's Motion, rescheduled trial for July 19, 2018, and ordered the State to produce the expert's name and CV to Allenbaugh by the June 15 status hearing. The court denied Allenbaugh's Motion in limine as moot as it was "granting the State's request for a continuance of trial."

         {¶9} On June 15, 2018, the State filed a Supplement to Discovery, advising Allenbaugh that it anticipated calling Wyatt Kilgallin as a witness at trial and providing him a copy of Kilgallin's resume. The status hearing was continued sua sponte by the municipal court.

         {¶10} On June 29, 2018, Allenbaugh filed a Third Motion in limine to Exclude Any Expert Testimony on the grounds that "the State has not provided Mr. Allenbaugh with any written report of any potential expert witness as required by the Rules of Criminal Procedure."

         {¶11} On July 5, 2018, a hearing was held on the Third Motion in limine.

         {¶12} On July 6, 2018, the municipal court issued its ruling, which denied the Motion:

In the instant case, any report submitted by the expert would not apply to the specific facts of the Defendant's case, or the ultimate issue as to guilt or innocence, but whether or not the LTI 20/20 TruSpeed Laser is a scientifically reliable measure of speed in general. The Defendant, by his own admission, was well aware of the fact that an expert was needed in order for the Court to take judicial notice of the scientific reliability of the LTI 20/20 TruSpeed Laser. Defendant is not surprised, nor is he prejudiced, as Defendant is well aware that the State's expert opinion will be along the lines that the LTI 20/20 TruSpeed Laser is a scientifically reliable measure of speed. Defendant will have the opportunity to challenge the expert's opinion prior to trial, through cross-examination and presentation of his own expert if he so chooses.

         The court scheduled a "Judicial Notice" hearing for July 19, 2018, "with a trial to follow."

         {¶13} On July 12, 2018, Allenbaugh filed a Motion for Continuance of trial on the grounds that an essential fact witness for the defense was unavailable on ...


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