[Cite as Greater Cleveland Metroparks v. Ismail, 2017-Ohio-5570.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104412




               GREATER CLEVELAND METROPARKS

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                 THERESA A. ISMAIL

                                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                       Criminal Appeal from the
                                        Parma Municipal Court
                                       Case No. 15 TRD 10936

        BEFORE:          Jones, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: June 29, 2017
ATTORNEY FOR APPELLANT

Christina Brueck
Brueck Law Firm
333 Babbit Road, Suite 301
Euclid, Ohio 44123


ATTORNEYS FOR APPELLEE

Anne Eisenhower
Cleveland Metroparks
4600 Valley Parkway
Fairview Park, Ohio 44126
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant Theresa Ismail appeals her speeding conviction, which

was rendered in the Parma Municipal Court after a bench trial.     We affirm.

       {¶2} At trial, plaintiff-appellee Greater Cleveland Metroparks (“Metroparks”)

presented the testimony of Julie Dollard (“Ranger Dollard”), the ranger who issued a

speeding ticket to Ismail. Ranger Dollard testified that on the date of the incident she

was pulled over on a “pull off” between State Road and Broadview Road in the

Brecksville Reservation portion of the Metroparks.       Her ranger vehicle was stationary

and she was “running the radar,” which was a “Python Series II.”            The posted speed

limit in that portion of the Metroparks was 30 m.p.h.

       {¶3} Ranger Dollard testified that she saw the car being driven by Ismail and

visually estimated that it was going over 50 m.p.h. She then clocked the speed with the

radar; the car was traveling at 56 m.p.h.   The ranger pulled Ismail over and issued her a

speeding ticket.   The citation stated that the car was going 47 m.p.h., which Ranger

Dollard testified was the speed Ismail slowed down to.

       {¶4} Ranger Dollard testified that she had been trained in running radar, and that

the training entailed classroom course work, field training, and an examination.         The

field training included doing visual estimations of a car’s speed, which would then be

compared to the speed as recorded by the radar for accuracy determinations.             Upon

completion of the training, the ranger was certified as a radar operator.   Her certificate of

completion was entered into evidence.
       {¶5} Further, the ranger testified that she conducted a “tuning test” prior to the

start of her shift on the day in question, and after each ticket that she issued.    The test

confirmed that the radar was calibrated.    She also testified as to the last time the radar

was calibrated, and the certificate demonstrating that calibration was entered into

evidence.

       {¶6} Ismail also testified. According to Ismail, Ranger Dollard was following her

as she was driving less than 25 m.p.h., and then pulled her over. Ismail asked the ranger

to see her radar device, to which Ranger Dollard responded, “no, I don’t need radar.”

Ismail testified that she was looking at her speedometer the entire time, and so the speeds

the ranger clocked her at and cited her for were “impossible,” because at the most, she

was going approximately 32 m.p.h. She told the court that she drives that way numerous

times a day and never exceeds 32 m.p.h.

       {¶7} On this evidence, the trial court found Ismail guilty of speeding. The court

imposed a $100 fine, with $50 suspended, and court costs. The sentence was stayed

pending this appeal, in which Ismail raises the following assignment of error for our

review:     “The trial court erred in finding that the evidence presented at trial was

sufficient to find the defendant-appellant guilty of speeding.”

       {¶8} Ismail raises two issues in this appeal:   (1) the reliability of the radar device

and (2) the admissibility of Ranger Dollard’s visual-estimation testimony, which we

consider in turn.

The Reliability of the Radar Device
       {¶9} Ismail contends that the radar device measurement was insufficient without

expert testimony establishing its reliability.1 We disagree.

       {¶10} In order to convict Ismail of speeding, Metroparks was required to show that

(1) the radar device’s speed measurements were reliable, (2) the specific radar unit was in

good working condition, and (3) Ranger Dollard was qualified to use the radar device.

E. Cleveland v. Ferell, 168 Ohio St. 298, 301, 154 N.E.2d 630 (1958).

       {¶11} In Ferell, the Ohio Supreme Court considered whether evidence of speed

obtained from a radar speed meter was insufficient evidence to sustain a speeding

conviction when there was no expert testimony at trial regarding the meter’s construction

and method of operation.         The court held no, stating that “readings of a radar speed

meter may be accepted in evidence, just as we accept photographs, x-rays,

electroencephalographs, speedometer readings, and the like, without the necessity of

offering expert testimony as to the scientific principles underlying them.” Id. at 303.

Thus, “[t]here remains, then, only a determination as to the sufficiency of the evidence

concerning the accuracy of the particular speed meter involved * * * and the

qualifications of the person using it.” Id.

       {¶12} Some appellate courts, however, have held that Ferell’s holding is limited to


       1
         In a sufficiency of the evidence inquiry, appellate courts do not assess whether the
prosecution’s evidence is to be believed but whether, if believed, the evidence supports the
conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80
(evaluation of witness credibility not proper on review for sufficiency of evidence). Further, the
“testimony of one witness, if believed by the jury, is enough to support a conviction.” State v. Strong,
10th Dist. Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42.
stationary radar devices, as opposed to moving radar devices.      For example, in State v.

Wilcox, 40 Ohio App.2d 380, 319 N.E.2d 615 (10th Dist.1974), the Tenth Appellate

District, after acknowledging Ferell, held as follows:

       However, we feel that a defendant may not be convicted of speeding solely
       upon evidence obtained from a radar speed meter device mounted in a
       moving patrol car in the absence of expert testimony with respect to the
       construction of the device and its method of operation with respect to its
       ability to differentiate the speed of a vehicle approaching the moving patrol
       car from the opposite direction from the combined speed at which they are
       moving toward each other.

(Emphasis added.) Wilcox at 384.

       {¶13} Citing Wilcox, Ismail contends that her conviction was not supported by

sufficient evidence because Metroparks did not present expert testimony to establish the

radar’s reliability.   According to Ismail, Ranger Dollard clocked her speed while the

ranger was moving in her vehicle.       Ismail further relies on State v. Everett, 3d Dist.

Wyandot No. 16-09-10, 2009-Ohio-6714, in support of her contention. In Everett, a

state trooper used the same radar model — the Python Series II — that Ranger Dollard

used here.    Both law enforcement officials in Wilcox and Everett were in moving

vehicles at the time they operated their radar devices.

       {¶14} Here, however, Ranger Dollard testified that she was stationary, not moving,

when she clocked Ismail’s speed.        Although Ismail testified otherwise, Metroparks

presented evidence that, if believed, was sufficient to support the conviction as to the

radar’s reliability needed for a speeding conviction.     Thus, Wilcox and Everett are both

distinguishable from this case.
       {¶15} The “good working condition” requirement was satisfied by Ranger

Dollard’s testimony that she checked the calibration on the device at the beginning of her

shift and after each ticket she wrote to ensure that it was functioning properly.

Metroparks also presented sufficient evidence as to the third element of speeding — that

Ranger Dollard was qualified to use the device.       Specifically, the ranger testified that she

was certified to use that particular radar, and her certification was entered into evidence.

       {¶16} On this record, Metroparks presented sufficient evidence to sustain Ismail’s

speeding conviction.

Visual-Estimation Testimony

       {¶17} Ismail also contends that, because Metroparks did not present sufficient

evidence relative to the radar, and a speeding conviction based on visual estimation is

insufficient, her conviction should be overturned. She is correct that the law in Ohio

currently provides that visual estimation alone is insufficient evidence to sustain a

speeding conviction. See R.C. 4511.091(C)(1).2 But as discussed, this case did not

turn solely on visual estimation. Rather, Metroparks presented sufficient evidence that

Ismail was speeding through testimony relating to the radar that clocked her speed.

       {¶18} In light of the above, there is no merit to Ismail’s assignment of error and it

is overruled.


       2
        “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.” R.C. 4511.091(C)(1).
      {¶19} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Parma

Municipal Court to carry this judgment into execution.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MELODY J. STEWART, P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH
SEPARATE OPINION


SEAN C. GALLAGHER, J., CONCURRING:

      {¶20} I concur fully with the majority decision, but write separately to address my

concerns raised nearly ten years ago in Cleveland v. Tisdale, 8th Dist. Cuyahoga No.

89877, 2008-Ohio-2807, that our legal analysis of the reliability of speed-measuring

devices has fallen far short of the current speed-measuring technology. The lead opinion

properly lays out the historical review of reliability and the now decades-old

distinguishing factors between stationary and moving radar systems. At this point, all
radar measuring systems have stood the test of time, and the general reliability should be

common knowledge to all. Requiring expert testimony for moving systems is absurd.

The same can be said for laser devices, which have an even greater level of accuracy and

reliability.

        {¶21} To think the Supreme Court last weighed in on the reliability question in E.

Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958), nearly 60 years ago is

remarkable.

        {¶22} In Tisdale, we noted that

        [t]here is a compelling view that the same trust and reliability the Ohio
        Supreme Court placed in stationary radar devices in Ferell should now, 50
        years later, be extended to other speed measuring devices that have arguably
        withstood the test of time. Authority from other states supports the view
        that the principles of Ferell should be extended to other radar and laser
        speed measuring devices that have stood the test of time in terms of their
        scientific reliability.

Id. at ¶ 15.
KEYWORDS
#104412


Speed; radar reliability; admissibility of testimony. Appellant’s conviction for speeding
was proper. The park ranger established that she was qualified to operate the radar
device; that the device had been properly calibrated before operating it; that the device
was in good working condition; and its speed measurements were reliable. Expert
testimony to the reliability of the radar device was not required.
