[Cite as State v. Helke, 2015-Ohio-4402.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 26672
                                                  :
 v.                                               :   Trial Court Case No. 2015-TRD-2656
                                                  :
 MICHAEL HELKE                                    :   (Criminal Appeal from
                                                  :    Municipal Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 23rd day of October, 2015.

                                             ...........

KENT J. DEPOORTER, Atty. Reg. No. 0058487, City Prosecutor, 7501 Paragon Road,
Dayton, Ohio 45459
      Attorney for Plaintiff-Appellee

MICHAEL HELKE, 214 Drake Avenue, New Carlisle, Ohio 45344
     Defendant-Appellant-Pro Se

                                            .............




WELBAUM, J.
                                                                                              -2-




       {¶ 1} In this case, Defendant-Appellant, Michael Helke, appeals pro se from a

judgment of the Kettering Municipal Court convicting him of speeding in violation of R.C.

4511.21(D)(1). After a bench trial, the court found Helke guilty and imposed a $150 fine

plus costs, with $75 of the fine suspended.

       {¶ 2} Helke contends that the trial court erred by accepting testimony about an

officer’s visual estimate of speed and the operation of a laser speed detector. Helke

further contends that the State failed to lay a proper foundation that the laser device was

in good working condition, was calibrated properly, and was scientifically reliable. He

also argues that the trial court could not take judicial notice of the laser device’s scientific

reliability. Helke, therefore, contends that the conviction is not supported by sufficient

evidence.

       {¶ 3} We conclude that the State failed to provide a proper foundation for the

scientific reliability of the laser device, and the trial court failed to take judicial notice of

reliability pursuant to recognized methods for doing so. As a result, there was insufficient

evidence to support Helke’s conviction. Accordingly, the judgment of the trial court will

be reversed.



                               I. Facts and Course of Proceedings

       {¶ 4} In April 2015, a complaint was filed against Helke in Kettering Municipal

Court, charging him with driving 83 miles per hour in a 55 mile per hour zone, in violation

of R.C. 4511.21(D)(1). After Helke pled not guilty, the judge held a bench trial, at which

the State presented testimony from the arresting officer, State Trooper Jerod Keyes.
                                                                                         -3-


The trial court found Helke guilty and imposed a fine and court costs. Helke then timely

appealed from the conviction and sentence.



                  II. Did the Court Err in Accepting the Trooper’s Testimony?

       {¶ 5} Helke’s First Assignment of Error (quoted verbatim) states that:

              Trial Court Erred When It Accepted Testimony Concerning the

       Trooper[’]s Visual Estimation of the Vehicals [sic] Speed and the Operation

       of the Laser Speed Detector.

       {¶ 6} Under this assignment of error, Helke contends that Trooper Keyes blatantly

refused to bring evidence of his training into court, and that the evidence was insufficient

that Keyes had completed training in the use of a laser device or in visually checking

speeds of moving vehicles.

       {¶ 7} As a preliminary matter, we disagree with Helke’s contention that Keyes

blatantly refused to bring evidence of his training into court. Helke was subpoenaed by

the State, not the defense, and the subpoena did not ask Helke to bring any documents

to court. See Doc. #3 and #4. If Helke wished to subpoena Keyes and require that he

bring documents to court, Helke had the ability to do so.

       {¶ 8} At trial, Keyes testified that on March 25, 2015, he had been employed as a

State Trooper for eight years, and was on stationary patrol on Interstate 75 at mile post

50, running a laser. Keyes visually estimated that a vehicle (later found to be driven by

Helke), was traveling at 80 to 85 miles per hour, in excess of the 55 mile per hour posted

speed limit. After activating the laser, Keyes found that the vehicle was traveling 83 miles

per hour. Keyes kept his line of sight on the car until it passed him, pulled out, and
                                                                                             -4-


initiated a traffic stop.

       {¶ 9} Keyes testified in detail at trial about his certification in the use of lasers and

his training in visual observation of speed. He indicated that he had been initially trained

at the police academy in using the laser. This consisted of 40 hours of training, during

which he was instructed by a certified instructor on the use of radar and the laser. Keyes

was also required to perform visual observations of speed and be correct within two to

three miles an hour on visual observations in order to pass the class. After graduation,

supervisors have ridden with Keyes yearly to ensure that he is properly using the laser

and knows how to calibrate it and verify that it is working. Keyes further testified that he

has had updates on the visual observation class yearly.

       {¶ 10} During Helke’s cross-examination of Keyes, the following exchange

occurred:

               Q. Okay. You also testified that you have been trained. You have

       been to the Academy. You know there’s forty hours of worth of training.

       Where’s the certifications? We have not seen the certifications yet.

               A. Sir, if they were requested into Court I wouldn’t have brought

       them in.

               Q. But they’re not here today. Correct?

               A. Yes sir.

Transcript of Proceedings, pp. 13-14.

       {¶ 11} We do not interpret Keyes’ remarks to mean that he would refuse to bring

in evidence of his certification if he had been asked to do so. From the context of the

above remarks, and from Helke’s use of the word “but” in responding, it appears that an
                                                                                        -5-


error in transcription occurred. In context, what Keyes appears to have said is that he

“would” have brought his certifications in if they had been requested, followed by Helke’s

response – “But they’re not here today.” Otherwise, the exchange makes no sense.

      {¶ 12} Accordingly, we disagree that Keyes blatantly refused to bring in evidence

of his certifications. That does not necessarily mean that Keyes’ testimony about the

laser was properly admitted or that the State provided sufficient evidence to support the

conviction.

                           A. Visual Observations of Police Officers

      {¶ 13} In order to convict Helke, the State was required to prove beyond a

reasonable doubt that he violated R.C. 4511.21(D)(1). This statute provides that:

              (D) No person shall operate a motor vehicle, trackless trolley, or

      streetcar upon a street or highway as follows:

              (1) At a speed exceeding fifty-five miles per hour, except upon a two-

      lane state route as provided in division (B)(9) of this section and upon a

      highway, expressway, or freeway as provided in divisions (B)(12), (13), (14),

      and (16) of this section * * *.

      {¶ 14} The evidence proving the violation was Keyes’ estimate of the vehicle’s

speed and the laser evidence. It is well-settled that “[t]he admission or exclusion of

relevant evidence rests within the sound discretion of the trial court.” State v. Sage, 31

Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). As a result, we review the trial court’s

evidentiary rulings for abuse of discretion. Id. An abuse of discretion “ ‘implies that the

court's attitude is unreasonable, arbitrary or unconscionable.’ ”      (Citations omitted.)

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
                                                                                           -6-


        {¶ 15} In the context of vehicle speed, the Supreme Court of Ohio held in 2010

that:

               A police officer's unaided visual estimation of a vehicle's speed is

        sufficient evidence to support a conviction for speeding in violation of R.C.

        4511.21(D) without independent verification of the vehicle's speed if the

        officer is trained, is certified by the Ohio Peace Officer Training Academy or

        a similar organization that develops and implements training programs to

        meet the needs of law-enforcement professionals and the communities they

        serve, and is experienced in visually estimating vehicle speed

Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, syllabus.

        {¶ 16} In its brief, the State relies on Barberton. However, after Barberton was

decided, the legislature amended R.C. 4511.091 to add the following language:

               (C)(1) No person shall be arrested, charged, or convicted of a

        violation of any provision of divisions (B) to (O) of section 4511.21 or section

        4511.211 of the Revised Code or a substantially similar municipal ordinance

        based on a peace officer's unaided visual estimation of the speed of a motor

        vehicle, trackless trolley, or streetcar. This division does not do any of the

        following:

               (a) Preclude the use by a peace officer of a stopwatch, radar, laser,

        or other electrical, mechanical, or digital device to determine the speed of a

        motor vehicle;

               (b) Apply regarding any violation other than a violation of divisions

        (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a
                                                                                         -7-


       substantially similar municipal ordinance;

               (c) Preclude a peace officer from testifying that the speed of

       operation of a motor vehicle, trackless trolley, or streetcar was at a speed

       greater or less than a speed described in division (A) of section 4511.21 of

       the Revised Code, the admission into evidence of such testimony, or

       preclude a conviction of a violation of that division based in whole or in part

       on such testimony.

R.C. 4511.091, as amended by Am. Sub. H.B. 86, 2011 Ohio Laws, Part III, 29.

       {¶ 17} R.C. 4511.21(D)(1), which is the crime with which Helke was charged, fits

within R.C. 4511.091(C)(1), and the trial court, therefore, could not have relied solely on

Keyes’ estimate of speed for the conviction. See, e.g., Beachwood v. Joyner, 2012-

Ohio-5884, 984 N.E.2d 388, ¶ 17 (8th Dist.). This does not mean that Keyes’ estimate

was inadmissible; it simply means that the estimate, by itself, was not sufficient to prove

a violation.

                 B. Whether Laser Evidence of Speed Was Properly Admitted

       {¶ 18} Since Keyes’ estimate of speed would not be sufficient, the speed

measured by the laser would have been the only other evidence that could have proven

a violation. For many years, Ohio courts have held that “the scientific accuracy of a laser

device is the type of fact that can be judicially noticed.” City of Columbus v. Dawson,

10th Dist. Franklin No. 99AP-589, 2000 WL 271766, *2 (Mar. 14, 2000), relying on City

of E. Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958). Accord State v.

Saphire, 2d Dist. Greene No. 2000 CA 39, 2000 WL 1803852, *3 (Dec. 8, 2000),

disapproved on other grounds, Barberton, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d
                                                                                           -8-


1047, at ¶ 16-18.1

       {¶ 19} Ohio courts have generally held that “[e]stablishing the reliability of a speed-

measuring device can be accomplished * * * 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.” (Citations and footnotes omitted.) Cincinnati v. Levine, 158 Ohio App.3d

657, 2004-Ohio-5992, 821 N.E.2d 613, ¶ 10 (1st Dist.) See also E. Liverpool v. Lawson,

7th Dist. Columbiana No. 13 CO 52, 2014-Ohio-5858, ¶ 11. However, this approach has

been questioned in a few recent cases.

       {¶ 20} In 2013, the Eighth District Court of Appeals extensively discussed the

evolution of speed-measuring devices, beginning with the development of radar in

England in the 1930’s. See Cleveland v. Craig, 8th Dist. Cuyahoga No. 99619, 2013-

Ohio-5742, ¶ 11-22. The court noted that as “the general accuracy and effectiveness of

the radar speedmeter” became commonly known and accepted, the Supreme Court of

Ohio confirmed more than 50 years ago in Ferell that “the reliability of the scientific

principles underlying the use of stationary radar could be established without the need for

expert testimony.” Id. at ¶ 13-14, citing Ferell at syllabus.

       {¶ 21} The court of appeals further observed that Ferell failed to focus on the

specific measuring device involved because all radar devices being used at the time

“were stationary models using the ‘S’ band frequency.”          Id. at ¶ 15.   However, the



1
  In Barberton, the Supreme Court of Ohio disapproved our view in Saphire that an
officer’s visual estimate of speed, alone, is insufficient to support a conviction under
R.C. 4511.21(D). However, based on the amendments to R.C. 4511.091, our holding
in Saphire is a correct statement of law.
                                                                                           -9-


evolution of these devices to other frequencies, and to either stationary or moving modes,

changed the rules for admissibility of the results, such that “testimony or judicial notice of

the construction and accuracy of moving radar devices is required to sustain a conviction

based on a reading from such device.” (Citations omitted). Id. at ¶ 15-16.

        {¶ 22} After making these observations, Craig discussed a prior opinion of the

Eighth District Court of Appeals, which had questioned “the need to ‘re-prove’ the science

behind speed measuring devices in every case where an expert did not testify or judicial

notice could not be taken.” Id. at ¶ 17, quoting Cleveland v. Tisdale, 8th Dist. Cuyahoga

No. 89877, 2008-Ohio-2807, ¶ 15. In Tisdale, the Eighth District Court of Appeals noted

that:

               In Ferell, the device in use was a stationary radar device operating

        on the “Doppler effect.” Ferell set the admissibility requirements until new

        technology changed that standard. As stated in State v. Wilcox (1974), 40

        Ohio App.2d 380, 319 N.E.2d 615: “ * * * a radar speed-detection device

        using the Doppler principle is recognized scientifically, even in the absence

        of expert testimony with respect to its construction and method of operation,

        [but] we do not feel that this principle can be extended to a device which not

        only measures speed but adjusts such speed measurement for the speed

        of the vehicle in which it is mounted. This is especially true in the absence

        of any evidence that the device in question can, in fact, accomplish that

        purpose. It is only by inference that this conclusion could be reached from

        the evidence herein.”

               Thus, Ferell had been limited to situations involving the use of
                                                                                        -10-


      stationary radar devices. The advent of newer speed measuring devices

      transformed the admissibility standard, and Ohio courts once again were

      requiring expert testimony.

Tisdale at ¶ 11-12.

      {¶ 23} In this regard, the panel in Craig stated that “We felt [in Tisdale that] a

compelling argument could be made that ‘all radar-based speed measuring devices in

use today, and arguably all laser-based units now in use, are reliable, even in the absence

of expert testimony as to their reliability.’ ” Craig, 8th Dist. Cuyahoga No. 99619, 2013-

Ohio-5742, at ¶ 17. Craig noted that Tisdale had been cited by some cases for its

changed approach, but had also been criticized by others, even in the Eighth District, for

moving “away from the traditional method of establishing admissibility of speed measuring

device results.” (Citations omitted.). Id. at ¶ 19.

      {¶ 24} The court of appeals went on to state in Craig that:

             In any event, virtually all the cases following Ferell acknowledged the

      distinction between the use of stationary radar and moving radar or laser

      devices. The question today is, how should we apply the principle in Ferell,

      over 55 years later, in a changed landscape littered with new technology?

             Was the court in Ferell taking judicial notice only of the underlying

      principles of radar as an electronic device that scientifically and accurately

      measures the speed of a moving object?          Or were they only judicially

      noticing the accuracy and operating efficiency of the particular radar device

      used to measure the speed of Ferell's vehicle in that case before the court?

      As noted earlier, the specific device at play in Ferell was not identified,
                                                                                       -11-


      suggesting the court was giving its tacit blessing to all stationary radar

      devices. What was not addressed, and what was unknown to the justices

      at the time, was how the technology would evolve and improve with the

      introduction of new, more advanced measuring instruments.

Craig, 8th Dist. Cuyahoga No. 99619, 2013-Ohio-5742, at ¶ 19-20.

      {¶ 25} According to the panel in Craig, the problem of focusing on specific devices

is that the movement to include moving and laser-based devices, “ ‘has evolved into a

device- and jurisdiction-specific inquiry, and has returned us to a pre-Ferell state of

“[wasting] the time of experts * * * and [increasing] the expenses of litigation * * * by

compelling such [experts] to appear in court after court telling the same truths over and

over[.]” ’ ” Id. at ¶ 21, quoting State v. Freiteg, 9th Dist. Wayne No. 07CA0082, 2008-

Ohio-6573, ¶ 25 (Whitmore, J., dissenting). (Other citations omitted.)

      {¶ 26} The Eighth District Court of Appeals thus concluded in Craig that:

             While Ferell has been viewed as an outdated opinion by some, we

      view the rationale concerning the general acceptance of the scientific

      reliability of radar as a device for measuring speed should continue to be

      applied to stationary radar devices in use today. Unless and until the Ohio

      Supreme Court states otherwise, at least insofar as stationary devices are

      concerned, we shall continue to adhere to Ferell's holding 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.”

      Ferell, 168 Ohio St. at 303, 154 N.E.2d 630.         Further, in light of the

      increasing debate among appellate courts, we would encourage the Ohio
                                                                                          -12-


       Supreme Court to consider whether expert testimony should be required to

       establish the general reliability of moving-radar and laser speed devices.

       Arguably, both radar and laser technology are now commonly accepted and

       recognized methods for reliably and accurately measuring the speed of a

       moving vehicle.     The need to revisit the issue of judicial notice is

       compelling.

Craig at ¶ 22.

       {¶ 27} A further criticism in both Tisdale and Craig involves how judicial notice is

employed. In particular, these cases “ ‘question the practical limitations of judicial notice

being limited to the territorial jurisdiction of the court and believe the Ohio Supreme Court

may wish to re-examine the standard in terms of cross-jurisdictional judicial notice.’ ”

Craig at ¶ 25, quoting Tisdale, 8th Dist. Cuyahoga No. 89877, 2008-Ohio-2807, at ¶ 14.

The Supreme Court of Ohio has not acted upon these invitations.2


2  An additional suggestion for addressing this issue could be the adoption of legislation
like R.C. 4511.19, which, according to State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d
1303 (1984), prohibits defendants charged with operating a motor vehicle while under
the influence of alcohol from attacking the general scientific reliability of breath-testing
instruments. Id. at 190. See also Cincinnati v. Ilg, 141 Ohio St.3d 22, 2014-Ohio-
4258, 21 N.E.3d 278, ¶ 23 (affirming this principle). In Vega, the Supreme Court of
Ohio stated that R.C. 4511.19 represents a legislative determination that breath testing
devices adopted by the Director of the Ohio Department of Health are generally reliable.
Vega at 188-189. The Supreme Court of Ohio also held that “an accused is not denied
his constitutional right to present a defense nor is the state relieved of its burden of
proving guilt beyond a reasonable doubt where a trial judge does not permit expert
testimony to attack the reliability of intoxilyers in general.” Id. at 186. The basis for
this conclusion is that the statute “merely raises the rebuttable presumption that one
was under the influence of alcohol. Under the statute, the accused may introduce any
other competent evidence bearing upon the question of whether he was under the
influence of intoxicating liquor.” Id. at 189. In Ilg, the Supreme Court of Ohio stressed
that “the director's approval of the Intoxilyzer 8000 does not preclude an accused from
challenging the accuracy, competence, admissibility, relevance, authenticity, or
credibility of specific tests results at issue in a pending case.” Ilg at ¶ 29.
                                                                                          -13-

       {¶ 28} In Craig, the court of appeals ultimately considered the radar testimony only

on the basis of plain error, since the defendant failed to object at trial. Craig, 8th Dist.

Cuyahoga No. 99619, 2013-Ohio-5742, at ¶ 28. Under circumstances that are similar to

those in the case before us, the court of appeals concluded that the trial court did not err

in admitting the officer’s testimony as to speed or in basing its finding of guilt on the

testimony. Id. at ¶ 10 and 31. While the court agreed that “an officer’s unaided visual

estimation of speed could not form the basis for his conviction,” the court stressed that “in

this case, the officer testified that the stationary radar verified his observation. As a

stationary radar unit was involved, expert testimony was not required.”            (Citations

omitted.)   Id. at ¶ 31.   Of course, the case before us involves a laser device, not

stationary radar, and this is an important distinction, as even Craig and Tisdale

recognized that lasers and moving radar were not included in Ferell. Unlike Craig and

Tisdale, which involved radar, the case before us involves a laser speed measuring

device.

       {¶ 29} Craig has not been cited since it was decided in 2013, and another panel of

the Eighth District Court of Appeals had previously criticized Tisdale. See Beachwood,

2012-Ohio-5884, 984 N.E.2d 388, at ¶ 13 (8th Dist.) (describing Tisdale as “an outlier of

the well-established body of law on the issue.”)

       {¶ 30} Some courts have taken a somewhat different approach than the dissenting

cases in the Eighth District. For example:

       [C]ourts have concluded that expert testimony regarding the reliability of

       various models of laser and radar devices is irrelevant for purposes of

       judicial notice because “[i]t is the scientific principle underlying a device's
                                                                                               -14-


          reliability – and not the reliability of a specific model – that renders judicial

          notice proper.” State v. Wiest, Hamilton App. No. C–070609, 2008-Ohio-

          1433, ¶ 12; State v. Yaun, Logan App. No. 8-07-22, 2008-Ohio-1902, ¶ 18.

          In Yaun, the Third Appellate District determined that the trial court did not

          err in taking judicial notice of the Python II radar device when it had

          previously taken judicial notice of the K–55 device. Id. at ¶ 19. The police

          officer in Yaun testified that the Python II radar operated on the same

          principle as other radar devices and that it was “exactly the same radar as

          the K–55.” Id. at ¶ 14.

State v. Starks, 196 Ohio App.3d 589, 2011-Ohio-2344, 964 N.E.2d 1058, ¶ 24 (12th

Dist.).

          {¶ 31} Nonetheless, the Twelfth District Court of Appeals concluded in Starks that

the trial court erred in taking judicial notice of an LTI ultra-light laser because there was

no testimony that the LTI 20–20 (which had previously been found reliable) and the LTI

ultra-light “operated under the same scientific principle such that they could be deemed

different models of the same device.”            Id. In this regard, the court stressed that

“[a]lthough the underlying principles of laser technology may be the same from one device

to another, generally judicial notice as to the reliability of a speed-measuring device is

device-specific. Therefore, expert testimony is necessary, ‘whether it be a new device

or an upgrade of an existing device, before the court may take judicial notice of that

particular device in future proceedings.’ ” Id. at ¶ 25, quoting State v. Kincaid, 124 Ohio

Misc.2d 92, 2003-Ohio-4632, 796 N.E.2d 89, ¶ 15 (C.C.).

          {¶ 32} Our own district has taken judicial notice of the scientific reliability of the K-
                                                                                           -15-


55 radar device, and has held that expert testimony is no longer necessary based on

Ferell. See, e.g., State v. Knife, 2d Dist. Miami No. 88 CA 41, 1989 WL 87572, *2 (Aug.

2, 1989); Xenia v. Boehman, 114 Ohio App.3d 78, 83, 682 N.E.2d 1029 (2d Dist.1996).

       {¶ 33} Our first consideration of lasers appears to have been in 1994, when we

concluded that under the expert testimony presented in that case, a laser device identified

as the “LTI 20/20” was scientifically reliable. State v. Reck, 2d Dist. Darke No. 1352 CA,

1994 WL 718230, *6 (Dec. 21, 1994). Subsequently, in 2000, the issue of the scientific

reliability of a laser device was again before our court. Saphire, 2d Dist. Greene No.

2000 CA 39, 2000 WL 1803852, at *2. In that case, the trial court did not hear expert

evidence on the issue, but took judicial notice of the device’s accuracy and dependability

based on training the trial court had attended. Id. at *3. When the defendant appealed,

we stated that while the scientific accuracy of a laser could be judicially noticed, the type

of laser in question was not clear from the record. Id. at *4. In addition, we stated that:

              Although the accurate name of the laser device used by [the officer]

       is unclear, it appears that neither our court nor the supreme court has taken

       judicial notice of any laser device with one of the names listed supra.

       Further, there was no indication in the record or in the trial court's entry that

       it had previously heard expert testimony regarding this particular laser

       device. Because there is nothing in the record to show that the trial court

       has ever received expert evidence on and determined that the laser device

       used in this case is dependable and accurate, and because it appears that

       no court of binding authority upon the Xenia Municipal Court has ever taken

       judicial notice of this laser device, we conclude that Saphire's second
                                                                                            -16-


       assignment of error is persuasive.

(Citations omitted.) Id. As a result of the trial court’s error, we reversed the defendant’s

conviction for speeding. Id. at *6.

       {¶ 34} Subsequently, in 2006, we again considered whether the trial court had

properly taken judicial notice of a laser speed measurement device. State v. Pellettiere,

2d Dist. Montgomery No. 21070, 2006-Ohio-1606, ¶ 7. The type of laser device was not

identified in our opinion. We overruled the defendant’s objections, stating that:

                 In the present case Pellettiere, acting pro se, objected to Officer

       Stephenson's testimony about the use of a laser speed measurement

       device. Specifically, Pellettiere objected by stating “[a]s far as I know the

       State has not taken judicial notice on this laser device as of this moment.”

       (Emphasis added).         The court responded by stating “[t]his Court has.”

       That statement indicates that the trial court has taken evidence in the past

       which permits the court to take judicial notice of that particular type of laser

       speed measurement device. We find it unnecessary for the trial court to

       specifically state the case in which it heard expert testimony on the device.

                 We conclude that it was permissible for the trial court to take judicial

       notice that the specific laser speed measurement device in this case was

       accurate and reliable.       Accordingly, Pellettiere's second assignment of

       error is not well taken and is overruled.

Id. at ¶ 9-10.

       {¶ 35} We ruled to the same effect in 2008, in a case involving the Fairborn

Municipal Court. See State v. Dixon, 2d Dist. Greene No. 06-CA-0145, 2008-Ohio-415.
                                                                                          -17-

In Dixon, the trial judge noted that she and the court’s magistrate had taken judicial notice

on prior occasions of the reliability of a hand-held, battery-operated laser device that was

used by the officer in Dixon. Id. at ¶ 3 and 7. While the type of laser device that was

being used is not identified in our opinion, the trial court did comply with the requirements

for taking judicial notice.

       {¶ 36} In State v. Brooks, 2d Dist. Montgomery Nos. 23386, 23387, 2010-Ohio-

1119, we affirmed the conviction of a defendant where the officer had used a laser

measuring device identified as “LTI 20/20.” Id. at ¶ 27. However, we did not consider

whether the device was reliable or whether the trial court had properly taken judicial

notice. This was because the only issue raised by the defendant related to the third

criterion in Feller, i.e., that “ ‘ “the witness using the apparatus as the source of his

testimony must be one qualified for its use by training and experience.” ’ ” Id. at ¶ 24-25,

quoting Ferell, 168 Ohio St. at 301, 154 N.E.2d 630. (Other citations omitted.) Notably,

our prior opinion in Reck involved the same type of laser, so judicial notice would have

been permitted.

       {¶ 37} Brooks is the last decision on this issue from our district that our research

has disclosed. Thus, to date, the LTI 20/20 laser is the only specific laser measuring

device that has been demonstrated as scientifically reliable based on one of the methods

listed in Levine, 158 Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613, at ¶ 10. As a

result, we cannot conclude that evidence as to the reliability of the laser involved in this

case was properly admitted.

       {¶ 38} In this regard, we must stress three facts: (1) the Ultra Light LiDAR laser

device that Keyes referenced in his testimony has never been held scientifically reliable
                                                                                            -18-


in our district; (2) the specific model was never identified; and (3) the trial court did not

take judicial notice of this model’s reliability based on the court’s own prior findings that

this particular laser was scientifically reliable. In fact, Helke’s objection to the laser being

judicially noticed was overruled on other grounds. In this regard, the trial court made the

following statement:

              Okay. Well, um, I’ll note your objection. I’m gonna overrule it at

       this point. He [the Trooper] simply is testifying as to clocking you with the

       laser and was about to testify, I believe, as to whether or not it had been

       calibrated.   So, I’m gonna allow him to answer the question.             You’re

       certainly free, again, in your cross examination of Trooper Keyes, to ask

       any questions you want to ask about it.

Transcript of Proceedings, p. 7.

       {¶ 39} At the conclusion of the trial, Helke objected to the sufficiency of the

evidence, based on the lack of judicial notice of the laser’s reliability.          Instead of

indicating that the laser in question had been found reliable for any of the reasons

permissible under the law, the trial court simply stated that the prosecution had met its

burden of proof. Id. at pp. 16-17.

       {¶ 40} However, this was not sufficient to establish that the laser was scientifically

reliable. Compare State v. Coates, 5th Dist. Knox No. 14 CA 2, 2014-Ohio-3875, ¶ 15

(reversing judgment because trial court failed to take notice of reported municipal court

decision or to cite prior consideration involving the laser in question); State v. McKay, 1st

Dist. Hamilton No. C-130657, 2014-Ohio-2027, ¶ 12-15 (judgment reversed where officer

failed to identify which type of Ultralyte laser device he was using, and prior case that
                                                                                             -19-


discussed accuracy and reliability of the LTI 20-20 laser device could not provide grounds

to support taking judicial notice of the device in question); and State v. Zhovner, 2013-

Ohio-749, 987 N.E.2d 333, ¶ 25-26 (3rd Dist.) (reversing judgment where Ultralyte laser

device had not been found reliable in that appellate district, and the trial court had not

previously received scientific testimony about the scientific reliability of this device.)

       {¶ 41} Based on the preceding discussion, the trial court erred in failing to sustain

Helke’s objection to judicial notice and the scientific reliability of the laser evidence. The

trial court did not err in admitting Trooper Keyes’ testimony about his own qualifications.

Helke’s First Assignment of Error, therefore, is sustained in part and is overruled in part.



                                  III. Sufficiency of the Evidence

       {¶ 42} Because Helke has combined his argument about his Second and Third

Assignments of Error, we will consider them together as well. These assignments of

error, quoted verbatim, state that:

              Trial Court Erred by Accepting Testimony that Failed to Produce

       Evidence to Support the Defendant[']s Conviction Because the State Failed

       to Lay Proper Foundation and Demonstrate (1) the Device Was in Good

       Working Condition (2) for the Laser Device Being Calibrated Properly and

       Give an Accurate Reading and (3) Is Scientifically Reliability [sic].

              In Its Decision, the Trial Court Erred to the Prejudice of the Appellant

       By Finding That There Was Sufficient Evidence to Declair [sic] the

       Defendant Guilty. Both the Testimony of the Trooper and the Alledged [sic]

       Laser Device Speed Measurement Readings Should Not Have Been
                                                                                               -20-


       Accepted as Admissible.

       {¶ 43} Under these assignments of error, Helke contends, first, that Keyes failed

to testify in sufficient detail about his calibration on the day of the incident; failed to testify

about or show the maintenance logs for the device that day; and failed to sufficiently

identify the specific laser being used. In addition, Helke contends that there was no

evidence that the trial court had previously heard expert testimony about the reliability of

the laser device in question. Helke argues that, as a result, the evidence was insufficient

to support his conviction for speeding.

       {¶ 44} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). “An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks, 61 Ohio St.3d 259, 259-60, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

       {¶ 45} As was noted, in order to convict Helke, the State was required to prove

beyond a reasonable doubt that he violated R.C. 4511.21(D)(1).                 This would have

required proof that Helke drove his automobile at a speed greater than 55 miles per hour.
                                                                                         -21-


       {¶ 46} We have already concluded that a conviction could not rely solely on Keyes’

visual observations of speed. In view of that fact, other evidence, like the laser reading

of Helke’s speed, would have been required. However, since the laser device was not

specifically identified, and its scientific reliability was not established by any permitted

methods, the State failed to prove the essential elements of the crime beyond a

reasonable doubt. Accordingly, the parts of the Second and Third Assignments of Error

that relate to these points will be sustained. The rest of Helke’s argument, pertaining to

Keyes’ calibration of the laser and the maintenance logs, is moot, and will not be

addressed.



                                         IV. Conclusion

       {¶ 47} Helke’s First Assignment of Error having been overruled in part and

sustained in part, and his Second and Third Assignments of Error having been sustained

in part and overruled in part as moot, the judgment of the trial court is reversed.




                                     .............



FROELICH, P.J. and DONOVAN, J., concur.




Copies mailed to:
                            -22-


Kent J. DePoorter
Michael Helke
Hon. Frederick W. Dressel
