[Cite as State v. Coates, 2014-Ohio-3875.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 14 CA 2
ALAN M. COATES

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Mount Vernon
                                               Municipal Court, Case No. 13 TRD 3430


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                         September 5, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHARLES T. MCCONVILLE                          MICHAEL J. YEMC, JR.
LAW DIRECTOR                                   YEMC LAW OFFICE
5 North Gay Street, Suite 222                  Post Office Box 468
Mount Vernon, Ohio 43050                       Delaware, Ohio 43015
Knox County, Case No. 14 CA 2                                                            2

Wise, J.

       {¶1}   Appellant Alan Coates appeals his conviction for speeding entered in the

Mount Vernon Municipal Court following a trial to the court.

       {¶2}   Appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶3}   At approximately 7:59 a.m. on August 23, 2013, Defendant-Appellant Alan

M. Coates was traveling on State Route 3 (Columbus Road) in the Village of

Centerburg, Knox County, Ohio. (T. at 6.) Simultaneously, Knox County Sheriff's Deputy

J.P. Paul was stationary, just off of State Route 3, running traffic in the Centerburg High

School school zone. (T. at 6.) According to his testimony, Deputy Paul activated his LTI

UltraLyte laser device and clocked Defendant-Appellant traveling at 40 mph in a 20 mph

zone (T. at 11.)

       {¶4}   Deputy Paul cited Appellant with a traffic violation in the Village of

Centerburg for traveling 40 mph in a 20 mph zone under Codified Ordinance of

Centerburg §333.03(B)(l).

       {¶5}   Defendant-Appellant entered a not guilty plea with the Mount Vernon

Municipal Court.

       {¶6}   Following a few continuances, the case went to trial on January 8, 2014.

At the conclusion of the trial, the trial court found Appellant guilty of a 40/20 mph

speeding violation.

       {¶7}   It is from this conviction Appellant now appeals, assigning the following

errors for review:
Knox County, Case No. 14 CA 2                                                              3


                                  ASSIGNMENTS OF ERROR

       {¶8}   “I. TRIAL COURT ERRED IN FINDING DEFENDANT-APPELLANT

GUILTY OF VIOLATING CODIFIED ORDINANCE OF CENTERBURG §333.03(B)(1)

WHERE THE COURT HAS NOT HEARD EXPERT TESTIMONY REGARDING THE

SCIENTIFIC ACCURACY OF THE LTI ULTRALYTE LASER AND THE COURT DID

NOT HAVE A PROPER BASIS FOR TAKING JUDICIAL NOTICE OF THE DEVICE'S

ACCURACY.

       {¶9}   II. THE TRIAL COURT ERRED IN FINDING DEFENDANT-APPELLATE

(SIC) GUILTY WHEN THE STATE FAILED TO PRESENT A COPY OF THE

OFFICER’S CERTIFICATE ON THE USE OF RADAR DEVICE.”

                                                 I.

       {¶10} In his First Assignment of Error, Appellant claims, and the State concedes,

the trial court erred in taking judicial notice of the accuracy of the LTI UltraLyte Laser.

We agree.

       {¶11} At the trial in this matter, the trial court took judicial notice of the LTI

UltraLyte Laser, a laser speed measuring device. In doing so, the trial court cited this

Court’s decision in State v. Lapso, 5th Dist. Ashland App. No. 2007-COA-045, 2008-

Ohio-4489.

       {¶12} In State v. Lapso, this Court held:

       {¶13} “The taking of judicial notice is governed by Evid.R. 201. Under Evid.R.

201(B), “[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
Knox County, Case No. 14 CA 2                                                             4


cannot reasonably be questioned.” The scientific reliability of a laser device is the type

of fact that a trial court may judicially notice. Cincinnati v. Levine, 158 Ohio App.3d 657,

2004-Ohio-5992, at ¶ 8, citing Columbus v. Dawson (Mar. 14, 2000), 10th Dist. No.

99AP-589.

       {¶14} “Establishing the reliability of a speed-measuring device can be

accomplished 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.” Levine,

supra, at ¶ 10. (Citations omitted.). State v. Kress, Trumbull App. No. 2007-T-0075,

2008-Ohio-1658 at ¶ 11-12.

       {¶15} In the case before us, the trial court did not take notice of a reported

municipal decision or cite to any previous consideration of expert testimony regarding

the LTI UltraLyte Laser.

       {¶16} While the trial court did cite to this Appellate Court’s decision in Lapso,

such case did not establish the reliability of the LTI UltraLyte Laser. The Lapso case

dealt only with radar devices which operated on the Doppler principle. (T. at 9).

       {¶17} Based on the foregoing, we find that the trial court erred in taking judicial

notice of the LTI UltraLyte Laser device in this case.

       {¶18} Appellant’s First Assignment of Error is sustained.

                                             II.

       {¶19} Based on our disposition of Appellant’s First Assignment of Error,

Appellant’s Second Assignment of Error is moot.
Knox County, Case No. 14 CA 2                                                  5


      {¶20} For the foregoing reasons, the judgment of the Mount Vernon Municipal

Court, Knox County, Ohio, is reversed and this case is remanded for further

proceedings in accordance with our opinion and the law.


By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.




JWW/d 0821
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