[Cite as State v. Zhovner, 2013-Ohio-749.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 2-12-13

        v.

ILYA ZHOVNER,                                             OPINION

        DEFENDANT-APPELLANT.




                    Appeal from Auglaize County Municipal Court
                          Trial Court No. 2012 TRD 01541

                                      Judgment Reversed

                             Date of Decision: March 4, 2013




APPEARANCES:

        Ilya Naumovich Zhovner, Appellant

        Alexander N. Fowler for Appellee
Case No. 2-12-13



ROGERS, J.

       {¶1} Defendant-Appellant, Ilya Naumovich Zhovner, appeals the judgment

of the Auglaize County Municipal Court finding him guilty of speeding. On

appeal, Zhovner contends that the following errors occurred throughout the course

of this matter: (1) the trial court erred when it accepted testimony of an unsworn

witness; (2) the trial court erred when it accepted testimony concerning the

officer’s visual estimation of the vehicle’s speed, operation of the laser speed

detector, as well as the calibration and handling of such device; (3) the trial court

erred when it accepted the reliability of the laser speed detector without expert

testimony; and (4) that the evidence presented at trial was insufficient to uphold

his conviction for speeding. Based on the following, we reverse the trial court’s

judgment.

       {¶2} On the night of March 19, 2012, Officer Jason Barhorst observed a

vehicle which appeared to be traveling above the posted speed limit of 65 mph.

Officer Barhorst proceeded to take two measurements of the vehicle’s speed with

a laser speed detector. Based on these measurements, Officer Barhorst stopped the

vehicle, which was driven by Zhovner.          Officer Barhorst cited Zhovner with

speeding in violation of R.C. 4511.21(D)(2).

       {¶3} On June 1, 2012, the matter proceeded to a bench trial. Before the

State presented its case, Zhovner argued that pursuant to State v. Miko, 9th Dist.

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No. 07CA0018-M, 2008-Ohio-1991, the trial court could not take judicial notice

of the scientific reliability of the laser speed-measuring device used by Officer

Barhorst.

       {¶4} The State’s first and only witness was Officer Barhorst.           Officer

Barhorst testified that he is employed as an officer with the Ohio State Highway

Patrol (“OSHP”), and has been employed as an officer with the OSHP for five

years. On the night of March 19, 2012, Officer Barhorst was sitting stationary in

his patrol vehicle along I-75 near mile marker 114 in Auglaize County. Officer

Barhorst testified that shortly before midnight he observed a vehicle which

appeared to be traveling above the posted speed limit of 65 mph. Officer Barhorst

testified that he proceeded to measure the vehicle’s speed with an “Ultra[lyte]

laser number 11” (“Ultralyte laser”). Trial Tr., p. 5. Officer Barhorst testified that

the first reading returned a measured speed of 80 mph, while the second reading

returned a measured speed of 79 mph. Based on these readings, Officer Barhorst

stopped the vehicle and issued its driver, Zhovner, a citation for speeding.

       {¶5} Officer Barhorst testified that he was trained and is currently certified

to operate the Ultralyte laser used to measure the speed of Zhovner’s vehicle.

Officer Barhorst testified that he tested the Ultralyte laser before he began his shift

on March 19, 2012, and that it was operating properly.



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       {¶6} During the defense’s case-in-chief, Zhovner again argued, among

other things, that the trial court could not take judicial notice of the scientific

reliability of the Ultralyte laser. In addition to his arguments, Zhovner testified

that he had his cruise control set at 65 mph when he was stopped by Officer

Barhorst.

       {¶7} On June 5, 2012, the trial court filed its judgment entry finding

Zhovner guilty of speeding in violation of R.C. 4511.21(D)(2). The trial court

ordered Zhovner to pay a fine of $35.00 and court costs, and assessed two points

to his Ohio driving record.

       {¶8} It is from this judgment that Zhovner filed this timely appeal,

presenting the following assignments of error for our review.

                              Assignment of Error No. I

       TO GIVE A TESTIMONY YOU HAVE TO BE SWORN IN,
       THEREFORE THE TRIAL COURT ERRED TO THE
       PREJUDICE OF THE APPELLANT BY ACCEPTING THE
       TESTIMONY OF THE ONLY WITNESS, THE POLICE
       OFFICER, WHO WAS NOT SWORN IN, SINCE NO
       RECORD OF SUCH EVENT COULD BE FOUND IN THE
       COMPLETE TRANSCRIPT OF THE PROCEEDINGS
       CONDUCTED IN THAT COURT (TRANSCRIPT, ALL
       PAGES).

                              Assignment of Error No. II

       IN ITS DECISION, THE TRIAL COURT ERRED TO THE
       PREJUDICE OF THE APPELLANT BY ACCEPTING AS
       ADMISSIBLE A TESTIMONY OF THE POLICE OFFICER

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      ON HIS ABILITY TO VISUALLY ESTIMATE THE SPEED
      OF [sic] MOVING VEHICLE, OPERATION OF A LASER
      MEASUREMENT       DEVICE,   CALIBRATION    AND
      HANDLING OF SUCH DEVICE, AND FOLLOWING THE
      PROPER     PROCEDURES    REGARDING   ACCURACY
      TESTING,      TAKING    MEASUREMENTS,      AND
      VERIFICATION OF DEVICE’S PERFORMANCE, WHEN
      THE WITNESS FAILED TO PRESENT ANY DOCUMENTED
      PROOF OF HIS ABILITY TO VISUALLY ESTIMATE OF
      [sic] THE SPEED OF THE MOVING VEHICLE IN THE
      NIGHT CONDITIONS, BASED SOLELY ON VEHICLE
      HEAD LIGHTS [sic], WHO FAILED TO PRESENT ANY
      DOCUMENTED PROOF OF RECEIVING PROPER
      TRAINING IN THE USE OF THE LASER DEVICE, WHO
      FAILED TO PRESENT ANY DOCUMENTED PROOF OF
      THAT DEVICE TO BE CERTIFIED AND IN PROPER
      WORKING CONDITION, WHO FAILED TO TESTIFY
      THAT HE EVER TESTED THE LASER DEVICE ON A
      VEHICLE TRAVELING AT A KNOWN SPEED, WHO HAD
      NO KNOWLEDGE OF MAINTENANCE LOGS FOR THE
      LASER DEVICE IN QUESTION, WHO COULD NOT
      FIRMLY TESTIFY ABOUT THE WHEREABOUTS OF A
      DEVICE OPERATION MANUAL, IN THE ABSENCE OF
      ANY JOURNAL ENTRIES, DEVICE DATA LOGS, DEVICE
      CALIBRATION AND MAINTENANCE RECORD LOGS,
      ABSENCE OF ANY VIDEO OR PHOTO EVIDENCE, IN
      SPITE OF SEVERAL FACTUAL DISCREPANCIES
      DISCOVERED DURING CROSS-EXAMINATION, JUST
      BASED ON ASSUMPTION THAT A VERBAL TESTIMONY
      IS SUFFICIENT TO PROVE THAT HE WAS QUALIFIED BY
      TRAINING AND EXPERIENCE TO OPERATE THE LASER
      DEVICE AND THAT THE DEVICE ITSELF WAS IN
      PROPER WORKING CONDITION BEFORE AND AFTER
      THE INCIDENT.

                   Assignment of Error No. III

      IN ITS DECISION, THE TRIAL COURT ERRED TO THE
      PREJUDICE OF THE APPELLANT BY RECOGNIZING “AS

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Case No. 2-12-13



        BEING RELIABLE” (JUDGMENT ENTRY, P. 2) THE
        DEVICE, IDENTIFIED BY THE WITNESS AS AN “ULTRA
        LIGHT LASER NUMBER 11” (TRANSCRIPT, P. 5, LINE 15)
        ALLEGEDLY USED FOR MEASURING THE SPEED OF
        DEFENDANT’S VEHICLE, IN THE COMPLETE ABSENCE
        OF EXPERT TESTIMONY WITH RESPECT TO THE
        DESIGN, METHOD OF OPERATION, RELIABILITY,
        ACCURACY AND PERFORMANCE TESTING OF THE
        ABOVE NAMED DEVICE IN REGARDS TO MEASURING
        SPEED OF THE MOVING VEHICLE.

                                  Assignment of Error No. IV

        IN ITS DECISION, THE TRIAL COURT ERRED TO THE
        PREJUDICE OF THE APPELLANT BY FINDING THAT
        THERE WAS SUFFICIENT EVIDENCE TO DECLARE THE
        DEFENDANT     GUILTY.      GIVEN  THE   ABOVE
        ASSIGNMENTS OF ERROR, BOTH THE TESTIMONY OF
        THE WITNESS AND THE ALLEGED LASER DEVICE
        SPEED MEASUREMENT READINGS SHOULD HAVE NOT
        BEEN ACCEPTED AS ADMISSIBLE, AND THEREFORE
        THE TESTIMONY FAILED TO PROVE THE DEFENDANT
        WAS SPEEDING.1

        {¶9} Before we address the merit of Zhovner’s assignments of error, we

note that the State argues that this court may not consider two of the five exhibits

attached to Zhovner’s appellate brief. The first exhibit is a photograph which

purportedly depicts the front of Zhovner’s vehicle. The other exhibit is a copy of a

1
  While Zhovner is a pro se litigant, we must nevertheless emphasize the proper form for an assignment of
error. Assignments of error must indicate the purportedly erroneous trial court judgment and provide a
concise statement of the assignment’s basis. Dieringer v. Sawmiller, 3d Dist. No. 2-12-04, 2012-Ohio-
4880, fn. 3, citing Russell v. United Missionary Baptist Church, 92 Ohio App.3d 736, 738 (12th Dist. 1994)
(describing the purposes of assignments of error and issues presented); Loc.R. 11(B) (“Assignments of
error * * * should be specifically applied to the error claimed.”). Zhovner’s four paragraph-long
assignments of error are clearly not concise and provide an extended outline of argument, which is neither
appropriate nor suggested. Future assignments of error should not be presented for our review in this
manner.

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manual for an Ultralyte 100 laser speed detector. The State contends that since

these exhibits were neither proffered nor admitted into evidence during trial this

court is precluded from considering the same.

       {¶10} Conversely, Zhovner contends that the photograph and manual are

properly before this court. First, Zhovner argues that the photograph is properly

before this court because Officer Barhorst referred to the front of his vehicle

during trial. Second, Zhovner argues that the manual is properly before this court

because it was presented to Officer Barhorst during trial.

       {¶11} App.R. 9 governs the record on appeal, and provides in relevant part:

       The original papers and exhibits thereto filed in the trial court, the
       transcript of proceedings, if any, including exhibits, and a certified
       copy of the docket and journal entries prepared by the clerk of the
       trial court shall constitute the record on appeal in all cases. App.R.
       9(A)(1).

Evidence not made part of the record that is attached to an appellate brief cannot

be considered by a reviewing court. E.g., Deitz v. Deitz, 3d Dist. No. 14-11-06,

2012-Ohio-130, ¶ 8.

       {¶12} Review of the record reveals that the photograph and manual were

not admitted into evidence during trial. The photograph does not become a part of

the record simply because Officer Barhorst referred to the front of Zhovner’s

vehicle during trial. With respect to the manual, mere presentation of the manual

during trial does not make it part of the record. See Prymas v. Byczek, 8th Dist.

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No. 93470, 2010-Ohio-1754, ¶ 21 (despite reference to a lease agreement

throughout the hearing, the lease agreement was not part of the record on appeal

because it was not admitted into evidence). Since the manual was neither admitted

into evidence nor otherwise made part of the trial court record, it is, consequently,

not a part of the record on appeal. Accordingly, the photograph and manual

cannot and will not be considered on appeal.

       {¶13} Turning our attention to Zhovner’s assignments of error, we elect to

address his third and fourth assignments of error first since we find them to be

dispositive of the matter.

                         Assignments of Error Nos. III & IV

       {¶14} In his third and fourth assignments of error, Zhovner contends that

the trial court erred when it found the Ultralyte laser to be an accurate and reliable

device without hearing expert testimony concerning the accuracy and reliability of

the same. As a result, Zhovner argues that the evidence presented by the State was

insufficient to convict him of speeding. Conversely, the State argues that the trial

court properly took judicial notice of the Ultralyte laser’s accuracy and reliability,

and consequently did not error when it found the same to be an accurate and




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reliable device.2 We agree with Zhovner.

         {¶15} To convict an individual of speeding based on a laser device, “there

must be evidence introduced at trial that the device is scientifically reliable.”3

State v. Starks, 196 Ohio App.3d 589, 2011-Ohio-2344, ¶ 21 (12th Dist.), citing

State v. Palmer, 1st Dist. No. C-050750, 2006-Ohio-5456, ¶ 10; see also State v.

Helke, 3d Dist. No. 8-07-04, 2007-Ohio-5483, ¶ 7 (to convict an individual for

speeding based on a radar device, the state must prove, among other things, that

the device was accurate and reliable), citing State v. Kirkland, 3d Dist. No. 8-97-

22 (Mar. 2, 1998).

         {¶16} The scientific reliability of a particular speed-measuring device can

be established via expert testimony or judicial notice. State v. Everett, 3d Dist.

No. 16-09-10, 2009-Ohio-6714, ¶ 6, citing State v. Yaun, 3d Dist. No. 8-07-22,

2008-Ohio-1902, ¶ 12.              In this matter, the State did not present any expert

testimony concerning the scientific reliability of the Ultralyte laser. Rather, the

trial court explicitly took judicial notice of the Ultralyte laser’s scientific



2
  The State contends that we should overrule Zhovner’s fourth assignment of error because it does not
comply with Local Rule 11(A), which provides, in relevant part, that “[e]ach assignment of error must be
separately argued in the briefs unless the same argument, and no other, pertains to more than one
assignment of error.” While Zhovner could certainly have expounded upon his argument, we find, under
the circumstances of this matter, that Zhovner’s argument is sufficient and will be considered. Moreover,
our disposition of Zhovner’s third assignment of error naturally requires us to address the issue raised in his
fourth assignment of error, i.e., the sufficiency of the evidence. Accordingly, we find the State’s argument
unavailing.
3
  Pursuant to R.C. 4511.091(C), which was in effect at the time Zhovner was cited for speeding, Officer
Barhorst’s visual estimation of Zhovner’s speed could not form the basis of his conviction.

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reliability. Therefore, we must determine whether the trial court properly took

judicial notice of the Ultralyte laser’s scientific reliability.

       {¶17} Evid.R. 201(B) governs the trial court’s ability to take judicial notice

of adjudicative facts, and provides:

       A judicially noticed fact must be one not subject to reasonable
       dispute in that it is either (1) generally known within the territorial
       jurisdiction of the trial court or (2) capable of accurate and ready
       determination by resort to sources whose accuracy cannot
       reasonably be questioned.

The scientific reliability of a particular speed-measuring device can be established

for future cases 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.” Yaun at ¶ 12, citing City of Cincinnati v. Levine, 158 Ohio App.3d 657,

2004-Ohio-5992, ¶ 10 (1st Dist.).          “However, the fact that a court in one

jurisdiction has taken judicial notice of a device’s accuracy cannot serve as the

basis for a court in another jurisdiction to take judicial notice.” Columbus v. Bell,

10th Dist. No. 09AP-1012, 2010-Ohio-2908, ¶ 14, citing Columbus v. Dawson,

10th Dist. No. 99AP-589 (Mar. 14, 2000); Levine at ¶ 8, citing State v. Doles, 70

Ohio App.2d 35 (10th Dist. 1980); see also State v. Colby, 14 Ohio App.3d 291,

291 (3d Dist. 1984) (judicial notice concerning the reliability of the K-55 radar

device was improper where neither the trial court nor any appellate court with

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jurisdiction over the trial court had previously found the K-55 radar to be

scientifically reliable).

       {¶18} In its judgment entry, the trial court relied on three cases in taking

judicial notice of the scientific reliability of the Ultralyte laser, to wit: East

Cleveland v. Ferell, 168 Ohio St. 298 (1958); Cleveland v. Tisdale, 8th Dist. No.

89877, 2008-Ohio-2807; and, Upper Arlington v. Limbert, 138 Ohio Misc.2d 30,

2005-Ohio-7159 (M.C.). None of these cases, however, provide a basis for the

trial court to take judicial notice of the scientific reliability of the Ultralyte laser

used by Trooper Barhorst.

       {¶19} In Ferell, the defendant was cited for speeding after a stationary

radar device indicated that he was traveling 17 mph over the posted speed limit.

The radar device measured the vehicle’s speed using the Doppler effect. On

appeal, the Ohio Supreme Court affirmed the defendant’s conviction, stating that

“[w]hile it is agreed that every reasonable doubt about the accuracy of new

developments [in speed-measuring devices] should promptly be resolved against

them in the absence of expert evidence, there is no longer any such doubt

concerning radar.” Ferell at 302. Accordingly, the court held that “readings of a

radar speed meter may be accepted in evidence, * * * without the necessity of

offering expert testimony as to the scientific principles underlying them.” Id. at

303.

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       {¶20} Since Ferell, however, appellate courts have repeatedly determined

that Ferell’s holding is limited to stationary radar devices that measure a vehicle’s

speed using the Doppler effect. See State v. Mansour, 12th Dist. No. CA2010-08-

198, 2011-Ohio-4339, ¶ 26 (finding that the holding in Ferell was limited to

stationary radar devices that measure a vehicle’s speed using the Doppler effect);

Yaun, 2008-Ohio-1902, at ¶ 11 (implicitly recognized finding that the holding in

Ferell was limited to stationary radar devices that measure a vehicle’s speed using

the Doppler effect); State v. Wilcox, 40 Ohio App.2d 380, 384 (10th Dist. 1974)

(finding that the holding in Ferell did not extend to moving radar devices that

measure a vehicle’s speed using the Doppler effect). Consequently, we find that

the trial court erred when it relied on Ferell, since Officer Barhorst used a laser

device to measure the speed of Zhovner’s vehicle.          As such, Ferell cannot be a

basis to take judicial notice of the scientific reliability of the Ultralyte laser.

       {¶21} In Tisdale, the defendant argued that the evidence was insufficient to

support his conviction for speeding because the state did not present any evidence

concerning the scientific reliability of the Genesis radar device used to measure his

vehicle’s speed. Following authority from other state courts, the court disagreed

and concluded that “expert testimony is no longer required to establish the general

reliability of radar or laser devices that are used to determine speed.” Tisdale,

2008-Ohio-2807, at ¶ 18.

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       {¶22} Upon consideration, we find that the trial court erred in relying on

Tisdale.    First, Tisdale is distinguishable from this matter.        The speed

measurement device in Tisdale was a radar device not a laser device. Given this

manifest difference, we decline to follow Tisdale. Furthermore, we question the

propriety of Tisdale’s holding concerning the scientific reliability of radar and

laser speed measurement devices.      Particularly, we question whether it was

appropriate to take judicial notice of all laser speed measurement devices when the

device at issue was a radar device.      Given this reservation, we are further

disinclined to follow Tisdale.

       {¶23} Second, the Eighth District Court of Appeals recently referred to

Tisdale as an “outlier” with respect to its holding concerning the reliability of

radar and laser speed-measuring devices. Beachwood v. Joyner, 8th Dist. No.

98089, 2012-Ohio-5884, ¶ 13. We agree with this assessment, especially in light

of the prevailing case law which still requires expert testimony to establish the

scientific reliability of a particular speed measurement device where judicial

notice of the same is improper. Id. at ¶ 15; Starks, 196 Ohio App.3d 589, 2011-

Ohio-2344, ¶ 21-25; New Middletown v. Yeager, 7th Dist. No. 03 MA 104, 2004-

Ohio-1549, ¶ 9-11; Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, ¶ 10-11;

Dawson, 10th Dist. No. 99AP-589; Colby, 14 Ohio App.3d at 291. For these



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reasons, Tisdale cannot be a basis to take judicial notice of the scientific reliability

of the Ultralyte laser.

       {¶24} In Limbert, the trial court heard expert testimony concerning the

scientific reliability of the “Ultralyte LTI 20/20 laser speed detector” and found

the same to be reliable. Id. at ¶ 2, 6. Limbert, however, was decided in a different

jurisdiction, and therefore cannot serve as the basis for the trial court to take

judicial notice of the scientific reliability of the Ultralyte laser. Bell, 2010-Ohio-

2908, at ¶ 14.

       {¶25} Even if the trial court could take judicial notice of the finding in

Limbert, doing so would not support the trial court’s determination that the

Ultralyte laser is scientifically reliable. Particularly, there is no evidence that the

Ultralyte laser used in this matter is an “Ultralyte LTI 20/20.” In fact, Officer

Barhorst testified that he used an “Ultra[lyte] laser number 11” to measure the

speed of Zhovner’s vehicle. Trial Tr., p. 5. Without evidence that the laser used

in this matter is the same as or operated similarly to the laser in Limbert, it would

be inappropriate for the trial court to take judicial notice of the finding in Limbert.

Compare Yaun, 2008-Ohio-1902, at ¶ 18-19 (trial court did not err in taking

judicial notice of the scientific reliability of the Python II radar device when it had

previously taken judicial notice of the scientific reliability of the K-55 radar device

and heard testimony that the Python II and K-55 radars operate using the same

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Doppler effect principle) with State v. Freed, 10th Dist. No. 06AP-700, 2006-

Ohio-6746, ¶ 18-19 (previous Franklin County Municipal Court decision finding

the “LTI 20/20 laser speed detector” to be scientifically reliable did not provide

sufficient grounds to support judicial notice of the accuracy and reliability of an

unidentified laser speed detector). Given the foregoing, Limbert cannot be a basis

to take judicial notice of the scientific reliability of the Ultralyte laser.

       {¶26} Upon review, we find that the trial court erred when it took judicial

notice of the scientific reliability of the Ultralyte laser used by Officer Barhorst.

First, there are no reported decisions from the Auglaize County Municipal Court

finding the Ultralyte laser or any other laser speed-measuring device that operates

via the same scientific principles to be scientifically reliable. See Yaun at ¶ 18 (“It

is the scientific principle underlying a device’s reliability and not the reliability of

[a] specific model that renders judicial notice proper.”), citing State v. Wiest, 1st

Dist. No. C-070609, 2008-Ohio-1433, ¶ 12. Second, this court has neither found

the Ultralyte laser nor any other laser speed-measuring device that operates via the

same scientific principles to be scientifically reliable.           Similarly, the Ohio

Supreme Court has neither found the Ultralyte laser nor any other laser speed-

measuring device that operates via the same scientific principles to be

scientifically reliable.   Finally, there is no evidence that the trial court has

previously heard expert testimony concerning the reliability of the Ultralyte laser

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Case No. 2-12-13



and found the same to be scientifically reliable. In fact, the trial court’s judgment

entry explicitly states that it “has not received expert testimony as to the reliability

of [the Ultralyte laser used by Officer Barhorst].” (Docket No. 18, p. 2). Given

the foregoing, we find that the trial court erred when it took judicial notice of the

scientific reliability of the Ultralyte laser used by Trooper Barhorst .

         {¶27} Given the foregoing, we find that the State presented insufficient

evidence to convict Zhovner of speeding. As previously discussed, there must be

evidence introduced at trial that the speed measurement device is scientifically

reliable in order to convict an individual of speeding. The scientific reliability of a

particular speed measurement device may be established via expert testimony or

judicial notice. Here, there was no expert testimony concerning the scientific

reliability of the Ultralyte laser and the trial court, as previously discussed, erred

when it took judicial notice of the scientific reliability of the Ultralyte laser. As a

result, the evidence presented at trial was insufficient to convict Zhovner of

speeding.

         {¶28} Accordingly, we sustain Zhovner’s third and fourth assignments of

error.

                          Assignments of Error Nos. I & II

         {¶29} In his first and second assignments, Zhovner contends that the trial

court erred when it accepted Officer Barhorst’s unsworn testimony and when it

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accepted Officer Barhorst’s testimony concerning his ability to operate the

Ultralyte laser, respectively. Given our disposition of Zhovner’s third and fourth

assignments of error, we find his first and second assignments of error to be moot

and we decline to address them. App.R. 12(A)(1)(c).

       {¶30} Having found error prejudicial to Zhovner herein, in the particulars

assigned and argued in his third and fourth assignments of error, we reverse the

judgment of the trial court.

                                                              Judgment Reversed

PRESTON, P.J. and SHAW, J., concur in Judgment Only.

/jlr




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