               IN THE MISSOURI COURT OF APPEALS
                       WESTERN DISTRICT

STATE OF MISSOURI,                               )
                                                 )
                                  Respondent,    )
                                                 )    WD77182
v.                                               )
                                                 )    OPINION FILED:
                                                 )    March 3, 2015
ROGER LEE PARSHALL,                              )
                                                 )
                                    Appellant.   )


                    Appeal from the Circuit Court of Holt County, Missouri
                         The Honorable William S. Richards, Judge

                    Before Division I: Cynthia L. Martin, Presiding Judge, and
                         Thomas H. Newton and Mark D. Pfeiffer, Judges

          Roger Lee Parshall (“Parshall”) appeals the judgment of the Circuit Court of Holt

County, Missouri (“trial court”), finding him guilty, after a jury trial, of misdemeanor speeding

under section 304.010. On appeal, Parshall claims that the trial court abused its discretion in

admitting radar testimony and that his conviction is not supported by substantial evidence. We

affirm.

                              Factual and Procedural Background

          On July 17, 2013, Trooper Joshua Zach (“Trooper Zach”) of the Missouri State Highway

Patrol was conducting construction zone speed limit enforcement on I-29 in Holt County.
Trooper Zach had been a trooper for over nine years. Trooper Zach utilizes a Stalker DSR 2X

radar gun unit, which he has been trained to operate, and he possesses a certification establishing

his expertise in the use and proper function of the radar unit. Pursuant to his training, at the

beginning and end of each of his shifts, Trooper Zach performs tests to ensure the proper

functioning of the radar unit; additionally, as soon as practicable after each radar enforcement

use of the Stalker DSR 2X, he performs an interim test to again ensure that the radar unit is

functioning properly at the site and time of each radar enforcement stop.                                        The

beginning-and-end-of-shift testing process involves both an “internal test” and a “tuning fork

test.” The in-shift interim testing after each enforcement use of the radar unit utilizes the

“internal test” only.

         The “internal test” consists of data retrieval that is programmed by the manufacturer into

the Stalker DSR 2X and is conducted by pressing a button on the radar unit that then internally

identifies a machine search of the proper functioning of the separate radar components of the

radar unit and issues a reading that must show “pass” in both of two separate screens on the radar

unit. The “tuning fork test,” as described by Trooper Zach, is “just basically two metallic-like

forks that when you strike them against something and hold them in front of a radar antenna the

frequency that’s given off these forks will present a certain number on the radar. So we go

through that on each antenna [rear and front].” Thus, of the two tests, the “internal test” is less

subjective or dependent upon human interaction than the “tuning fork test.”

         At the beginning (morning) and the end of his shift (later that day) on July 17, 2013,

Trooper Zach conducted both an internal test and a tuning fork test1 on his Stalker DSR 2X radar


         1
          The tuning forks that Trooper Zach used to test his radar unit were also current on their own calibration
testing. Thus, the tuning forks themselves were tested for accuracy, and the tuning forks served as a test of the
accuracy of the internal calibration equipment of the radar unit. Consequently, unlike City of Ballwin v. Collins, 534
S.W.2d 280 (Mo. App. 1976), there was evidence that the measuring devices used to test the radar unit at relevant


                                                          2
unit; these tests indicated that his radar unit was functioning properly. Trooper Zach then drove

to the enforcement area, made sure the construction zone speed limit signs were posted and

visible, set up on the shoulder, and began observing traffic.

         At approximately 8:55 a.m., Trooper Zach observed a pickup truck that was, based upon

Trooper Zach’s experience and estimation, traveling at around seventy-five miles per hour, well

in excess of the posted fifty-five miles per hour speed limit for the construction zone. Trooper

Zach checked the pickup’s speed with his radar unit, which indicated that the truck was traveling

at a speed of seventy-six miles per hour. As the pickup passed the patrol car, its brake lights

were activated. Trooper Zach stopped the pickup and wrote Parshall, the driver, a speeding

ticket. Immediately thereafter, Trooper Zach—as he had been trained to do—performed a

separate internal test to ensure that the radar unit was then and there still functioning properly;

the internal test verified the proper functioning of the radar unit.

         At Parshall’s trial, Trooper Zach testified to the above facts.                      After Trooper Zach

testified, the jury saw the footage from Trooper Zach’s patrol car’s dashboard camera. The

video showed Parshall’s pickup truck passing the patrol car traveling noticeably faster than the

rest of the traffic and braking after it passes Trooper Zach’s patrol car. After the pickup was

stopped, the audio captures several statements by Parshall, including:

        “Oh crap.”

        “I’ve got one bad habit.”

        “I’ve got concrete going.”


times on July 17, 2013, were themselves tested for accuracy. Though Parshall attempted to interject the “testing of
the measuring devices” foundation argument for the first time at oral argument of this appeal, the record refutes this
belated argument; additionally, this court does not consider arguments made for the first time “in argument” on
appeal. See Burg v. Dampier, 346 S.W.3d 343, 354 (Mo. App. W.D. 2011). Instead, “[w]here the objection [at
trial] is that an inadequate foundation has been laid it is ‘particularly important’ that the objection made be specific
because foundation deficiencies can frequently be remedied.” State v. Brown, 949 S.W.2d 639, 642 (Mo. App. E.D.
1997).


                                                           3
        “You don’t know how bad it is. This will probably be my license.”

        “I’m a good guy, I just drive too fast.”

         Parshall did not testify or present any evidence. The jury found Parshall guilty, and he

appeals.

                                         Standard of Review

         “Where a criminal defendant challenges the sufficiency of the evidence to support [his]

conviction, this Court’s review is limited to determining whether sufficient evidence was

admitted at trial from which a reasonable trier of fact could have found each element of the

offense to have been established beyond a reasonable doubt.” State v. Burrell, 160 S.W.3d 798,

801 (Mo. banc 2005) (citing State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998)). “This Court

accepts as true all evidence favorable to the verdict and disregards all evidence and inferences to

the contrary.” Id. (citing State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993)). We review

evidentiary rulings for an abuse of discretion. State v. Davis, 318 S.W.3d 618, 630 (Mo. banc

2010).

                                               Analysis

         Parshall’s first point on appeal is that the trial court erred in admitting Trooper Zach’s

testimony that his radar unit reported Parshall’s vehicle’s speed at seventy-six miles per hour

because there was insufficient foundation for the testimony.         Specifically, Parshall claims

because Trooper Zach did not conduct “a tuning fork test” at the site of and reasonably close to

the time of the alleged Parshall speeding violation, there is not sufficient foundation for Trooper

Zach’s testimony as to the results of his radar unit.




                                                    4
         Parshall primarily relies upon City of St. Louis v. Boecker, 370 S.W.2d 731 (Mo. App.

1963), and subsequent cases that cite to Boecker. This court has previously summarized the

holding of the identical cases Parshall now relies upon:

         [Appellant] argues that her conviction should be reversed because this case is
         controlled by City of St. Louis v. Boecker, 370 S.W.2d 731, 737 (Mo. App. 1963);
         State v. Weatherwax, 635 S.W.2d 34, 35 (Mo. App. 1982), and City of Jackson v.
         Langford, 648 S.W.2d 927, 929 (Mo. App. 1983), which hold that a speeding
         conviction cannot be based upon a radar device reading without proof that the
         device was tested and found to be functioning properly at the site of the alleged
         violation and reasonably close to the time it occurred.

         In Boecker, the officer tested the radar device with a tuning fork before he left the
         police station to go on duty. 370 S.W.2d at 734. In Weatherwax, the officer
         tested the radar device with tuning forks while parked in the driveway of his home
         prior to going on duty. 635 S.W.2d at 34-35. In Langford, there was no evidence
         of the time and place of testing. 648 S.W.2d at 929. In these cases, the courts
         held the evidence to be insufficient to support a conviction.

State v. Rawlins, 932 S.W.2d 449, 451 (Mo. App. W.D. 1996) (emphasis added).2

         As was identified in Rawlins, the key focus of Boecker, Langford, and Weatherwax was

not on what testing was performed to ensure that the stationary radar unit was functioning

properly; rather, each of the cases cited focused on when and where the testing was performed.

For example, the court in Boecker questioned whether testing with a tuning fork is sufficient to

establish the accuracy of the stationary radar device, noting that the leading expert in 1963 (a Dr.

Kopper) does not mention tuning fork tests in his liturgy on reliability testing of stationary radar

devices. Boecker, 370 S.W.2d at 736. In fact, the Boecker court goes on to comment that the

         2
            In Rawlins, we noted that this precedent is only relevant to cases “involv[ing] a stationary radar device,
not moving radar.” State v. Rawlins, 932 S.W.2d 449, 451 (Mo. App. W.D. 1996). We cited to the Missouri
Supreme Court’s analysis in State v. Calvert, 682 S.W.2d 474, 478 (Mo. banc 1984), and noted that “a site test is of
questionable utility in the case of a moving radar device” and proceeded to apply the test for reliability of evidence
relating to a moving radar device. Rawlins, 932 S.W.2d at 451-52. Given the focus on “device,” we question if our
Supreme Court would apply a similar evidentiary admission standard to radar devices that are hybrid—in other
words, a radar device that is capable of both moving and stationary radar detection use. Frankly, the radar device
used in this case—the Stalker DSR 2X—is just such a device. We anticipate that most, if not all, radar devices used
by law enforcement today have advanced far beyond the 1963 version referenced in City of St. Louis v. Boecker, 370
S.W.2d 731 (Mo. App. 1963). Irrespective, given the factual posture of the present case, we need not and do not
substantively discuss that issue in our ruling today.


                                                          5
city’s expert witness at trial, while testifying as to the science of radar device circuitry, never

once testified about the reliability or accuracy of a tuning fork test. Id. Instead, the Boecker

court noted that even if the police officer had performed any form of testing on the stationary

radar device in question, the problem was that there was no testimony that any such testing—

whatever it may have been—was performed “at the site of and reasonably close to the time of an

arrest” for speeding. Id. at 737.

         The same is true of the precedential import of Weatherwax and Langford. There is no

declaration in any of these cases concluding that, specifically, a tuning fork test (to the exclusion

of any other testing) must be used at the site of and reasonably close to the time of an arrest for

speeding; rather, the only requirement is that testing sufficient to establish reliability3 of the

stationary radar device be performed at the site of and reasonably close to the time of an arrest

for speeding.

         Here, the stationary radar device in question “was tested [by Trooper Zach] and found to

be functioning properly at the site of the alleged violation and reasonably close to the time it

occurred.” Rawlins, 932 S.W.2d at 451. Trooper Zach had been trained to check for the proper

functioning of the Stalker DSR 2X by performing an internal test and a tuning fork test at the

beginning and end of each shift, and he was further trained to perform an internal test as soon as

practicable after each radar enforcement use of the Stalker DSR 2X radar device. This training

and Trooper Zach’s certification for use of the Stalker DSR 2X radar device were designed to

ensure that the radar device was functioning properly at the beginning of his shift, at the end of

his shift, and at all times in between when the radar device was actually used as a law

enforcement tool for speed enforcement. Trooper Zach testified that on July 17, 2013, he

         3
           At trial, Parshall never specifically objected to the “internal test” as a valid or scientifically accepted radar
device accuracy performance test and, likewise, did not request a Frye hearing on the topic. See Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923).


                                                             6
performed all of these performance tests, specifically including testing of the Stalker DSR 2X

radar device immediately after his speed enforcement stop of Parshall, which, viewing the

evidence favorably to the verdict, was at the site of the speeding enforcement use of radar device

related to the Parshall stop. The trial court accepted this testimony as evidence of reliability—

that the radar device in question “was tested and found to be functioning properly at the site of

the alleged violation and reasonably close to the time it occurred.”

       We find no abuse of discretion in the trial court’s ruling admitting the radar device results

evidencing Parshall’s speeding.

       Point I is denied.

       Parshall’s second point on appeal is that the trial court erred in entering judgment against

him in that there was not sufficient evidence to support his conviction. Given our ruling on

Point I, the evidence of the results of Trooper Zach’s radar device certainly constituted

substantial evidence supporting Parshall’s conviction. In addition, Trooper Zach testified that,

based upon his over nine years of experience with the highway patrol enforcing speed limits, he

observed Parshall traveling at a speed that he estimated to be about seventy-five miles per hour.

Further, the jury saw Trooper Zach’s patrol car’s dashcam video showing Parshall’s vehicle

traveling at a rate of speed that appears noticeably faster than the rest of the traffic, and the

vehicle is seen braking as soon as it passes the patrol car. Finally, the audio from the dashcam

reveals Parshall making several incriminating statements. While Parshall argues that his remarks

on the audio do not amount to a confession, and we agree, they are still incriminating statements

evidencing consciousness of his guilt. See State v. Gilmore, 22 S.W.3d 712, 718 (Mo. App.

W.D. 1999) (“The defendant need not expressly acknowledge his or her guilt for the statement to




                                                 7
qualify as an admission.”). In this case, Parshall can be heard making what sounds like the

following statements:

      “Oh, crap.”

      “I’ve got one bad habit.”

      “I’ve got concrete going.”

      “You don’t know how bad it is. This will probably be my license.”

      “I’m a good guy, I just drive too fast.”

These statements, accompanied by the video, Trooper Zach’s testimony that he observed Parshall

to be driving in what he estimated to be twenty miles per hour in excess of the posted speed in a

construction zone, and Trooper Zach’s testimony regarding the radar device reading, collectively

constitute substantial evidence sufficient to support Parshall’s conviction.

       Point II is denied.

                                            Conclusion

       Finding no error, we affirm the judgment of the trial court.




                                              Mark D. Pfeiffer, Judge

Cynthia L. Martin, Presiding Judge, and
Thomas H. Newton, Judge, concur.




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