[Cite as State v. Delong, 2016-Ohio-4871.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 16CA003
AARON P. DELONG

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Morrow County Municipal
                                               Court, Case No. 2016TRD1062


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        July 5, 2016


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CHARLES HOWLAND                                AARON P. DELONG, PRO SE
Prosecuting Attorney                           2837 Lee Rd.
60 E. High St.                                 Shaker Heights, OH 44120
Mount Gilead, OH 43338
Morrow County, Case No. 16CA003                                                              2

Hoffman, J.


       {¶1}   Defendant-appellant Aaron P. DeLong appeals his conviction on one count

of speeding, a minor misdemeanor, entered by the Morrow County Municipal Court.

Plaintiff-appellee is the state of Ohio.

                         STATEMENT OF THE FACTS AND THE CASE

       {¶2}   On February 15, 2016, Appellant was cited for speeding, in violation of R.C.

4511.21(D)(4), a minor misdemeanor offense. Appellant elected to proceed to a bench

trial, pro se, to challenge his citation in the Morrow County Municipal Court.

       {¶3}   At trial on March 24, 2016, the State called Ohio State Highway Patrol

Trooper Kamal Nelson as the prosecution’s only witness. Trooper Nelson testified that on

February 15, 2016, he utilized a Series II Python Radar speed measuring device on

Interstate 71 in Morrow County, Ohio and recorded Appellant’s speed at 83 mph in a 70

mph speed zone. He further testified, prior to the radar measurement, he had visually

estimated Appellant’s speed at 85 mph. Tr. at 11-15.

       {¶4}   Trooper Nelson testified as to his training, operation and calibration of the

Series II Python Radar device prior to and during operation on the date in question. The

state then rested its case.

       {¶5}   Appellant did not object to or cross-examine Trooper Nelson. Appellant did

not offer any evidence at trial. Rather, at the close of the State’s case, Appellant moved

the trial court for a Criminal Rule 29 motion for acquittal. The trial court denied the motion.

       {¶6}   Appellant then moved the trial court for a Rule 201(e) hearing. Again, the

trial court denied the motion.

       {¶7}   Appellant filed this appeal, assigning as error,
Morrow County, Case No. 16CA003                                                           3


       {¶8}    “I. THE TRIAL COURT ERRED IN ACCEPTING JUDICIAL NOTICE OF

MPH INDUSTRIES, INC.’S PYTHON SERIES II MOVING RADAR UNIT WITHOUT:

EXPERT        WITNESS    TESTIMONY        PRESENTED            AT    THE    TRIAL   TO   ITS

CONSTRUCTION, ACCURACY, AND RELIABILITY; THE TRIAL COURT PREVIOUSLY

HEARING       EXPERT     WITNESS       TESTIMONY             FOR    THE    DEVICE   TO   ITS

CONSTRUCTION, ACCURACY, AND RELIABILITY; A SUPERIOR COURT IN THE

STATE OF OHIO PREVIOUSLY HEARING OR ACCEPTING EXPERT WITNESS

TESTIMONY FOR THE DEVICE TO ITS CONSTRUCTION, ACCURACY AND

RELIABILITY.

       {¶9}    “II. THE TRIAL COURT ERRED IN ACCEPTING NEW EVIDENCE FROM

THE PROSECUTION AFTER THE STATE RESTED ITS CASE IN CHIEF.

       {¶10} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR AN EVIDENCE RULE 201(E) HEARING ON THE JUDICIAL NOTICE

REFERENCED IN THE FIRST ASSIGNMENT OF ERROR.”

                                           I, II, and III.

       {¶11} We find Appellant’s assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

       {¶12} Initially, we note, this case has been assigned to the Court’s accelerated

calendar docket according to Ohio Appellate Rule 11 and this Court’s Local Rule 6(B);

therefore, pursuant to Ohio App. Rule 11 governing accelerated calendar cases, “It shall

be sufficient compliance with Appellate Rule 12(A) for the statement of the reason for the

court’s decision as to each error to be in brief conclusionary form.”
Morrow County, Case No. 16CA003                                                               4


       {¶13} Appellant did not object to or rebut the testimony offered by Trooper Nelson

at trial. Rather, Appellant waited until after the state rested its case to move the trial court

for a Criminal Rule 29 motion for acquittal.

       {¶14} A motion for acquittal at the close of the state's case tests the sufficiency of

the evidence. Pursuant to Crim.R. 29(A), a trial court must construe the evidence in a

light most favorable to the state and determine whether reasonable minds could reach

different conclusions concerning whether the evidence proves each element of the crime

beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, 263, 9 O.O.3d

401, 401–402, 381 N.E.2d 184, 185. An appellate court undertakes a de novo review and

will not reverse the trial court's judgment unless reasonable minds could only reach the

conclusion that the evidence failed to prove all elements of the crime beyond a reasonable

doubt. State v. White (1989), 65 Ohio App.3d 564, 568, 584 N.E.2d 1255, 1258. See,

also, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus.

       {¶15} A Criminal Rule 29 motion is not a substitute for failing to object during the

state’s presentation of evidence. We find Appellant waived any argument with regard to

judicial notice by failing to timely object. Accordingly, the trial court did not err in denying

Appellant’s motion for acquittal or motion for judicial notice. The trial court also did not

err in denying Appellant’s motion for a Rule 201 hearing as the Rule pertains to

adjudicative facts or facts of the case, not evidentiary issues.

       {¶16} Appellant’s first, second and third assigned errors are overruled.
Morrow County, Case No. 16CA003                                                        5


      {¶17} Appellant’s conviction in the Morrow County Municipal Court is affirmed.



By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
