[Cite as Beachwood v. Joyner, 2012-Ohio-5884.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 98089



                              CITY OF BEACHWOOD
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     BECKY JOYNER
                                                       DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED



                                     Criminal Appeal from the
                                  Shaker Heights Municipal Court
                                     Case No. 11 TRD 07641

        BEFORE: Boyle, P.J., Jones, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                        December 13, 2012
FOR APPELLANT

Becky Joyner, pro se
16616 Stockbridge Avenue
Cleveland, Ohio 44128


ATTORNEYS FOR APPELLEE

Thomas Greve
Chief Prosecutor
City of Beachwood
2700 Richmond Road
Beachwood, Ohio 44122

Shana A. Samson
Rademaker, Matty, Henrikson & Greve
55 Public Square
Suite 1775
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Defendant-appellant, Becky Joyner, appeals her traffic conviction for

speeding.   In her three assignments of error, Joyner challenges the verdict as     not being

supported by sufficient evidence because the state failed to offer (1) expert testimony as

to the reliability of the radar unit used to track her speed, or (2) proof of the officer’s

certification to use the radar device.   Finding merit to the appeal, we reverse.

                              Traffic Citation and Bench Trial

       {¶2} On August 16, 2011, Joyner was cited for a violation of Beachwood

Codified Ordinances (“B.C.O.”) 434.03(b)(3) after Beachwood police officer Aaron Lieb

clocked her traveling at 57 m.p.h. in a 35 m.p.h. zone on Harvard Road.

       {¶3} Joyner pleaded not guilty to the charge, and the matter proceeded to a bench

trial where the following evidence was presented.

       {¶4} Officer Lieb testified that he was patrolling the area from Green Road

southbound onto Harvard Road eastbound when he observed a vehicle that was traveling

westbound at “a high rate of speed” around 1:00 in the afternoon.          Office Lieb then

activated his Kustom Pro-1000 radar unit — a unit that allows him to track the speed of a

moving vehicle while his vehicle is moving.

       {¶5} Officer Lieb further testified that he determined through his radar unit that

the vehicle was traveling at a rate of 57 m.p.h.   According to Officer Lieb, the radar unit

not only displays the speed of the vehicle being tracked but it also emits an audible tone

in response if the vehicle being tracked exceeds 55 m.p.h.       Based on the audible tone
and the initial reading, Officer Lieb continued to track the vehicle as it passed his police

car to ensure that “the radar was not picking up some other vehicle speed.”      Officer Lieb

testified that, during this time, there were no other vehicles in between Officer Lieb’s

police car and the speeding vehicle.       Officer Lieb further testified that he was located

approximately three or four miles away.       Officer Lieb then made a U-turn, followed the

vehicle, and ultimately activated his lights, pulling the vehicle over.   Officer Lieb further

stated, however, that a second car was next to Joyner’s vehicle at the time that he finally

activated his lights.

       {¶6} Upon being pulled over, Joyner denied that she was speeding.              Officer

Lieb nevertheless issued Joyner a citation for speeding.

       {¶7} The trial court ultimately found that the city met its burden and found

Joyner guilty of the traffic offense.    The court fined Joyner $44 and ordered her to pay

court costs.

       {¶8} Joyner appeals, raising three assignments of error.

                        Sufficiency of the Evidence and Expert Testimony

       {¶9} To convict Joyner of the underlying offense of speeding, it was required for

the city to prove beyond a reasonable doubt that Joyner was traveling at a speed greater

than 35 m.p.h. See B.C.O. 434.03(b)(3).

       {¶10} In her first assignment of error, Joyner argues that there was insufficient

evidence to convict her.      Related to this same point, she argues in her second assignment

of error that the trial court erred in finding her guilty of speeding when the city failed to
produce expert testimony as to the accuracy of the radar unit used by Officer Lieb.        She

attacks the trial court’s taking judicial notice of the scientific reliability of the Kustom

Pro-1000 radar device without having heard any expert testimony as to its construction

and operation.

       A.     Judicial Notice of the Scientific Accuracy and Reliability

       {¶11} The city counters that the trial court’s taking judicial notice in and of itself is

sufficient to establish the reliability of the moving radar device. Under Evid.R. 201(B),

a judicially noticed fact must not be 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 cannot reasonably

be questioned.” Id.

       {¶12} In support of this proposition, the city relies on Cincinnati v. Levine, 158

Ohio App.3d 657, 2004-Ohio-5992, 821 N.E.2d 613 (1st Dist.). But we find the city’s

reliance on this case misplaced.    The Levine court recognized only three possible ways

by which a trial court could take judicial notice of the reliability of a speed-measuring

device: “(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.”          Id. at ¶ 10.    None of those

circumstances exist in this case to support the trial judge’s taking of judicial notice of the

scientific reliability of the Kustom Pro-1000 device at issue.

       {¶13} And while we acknowledge that this court in State v. Tisdale, 8th Dist. No.
89877, 2008-Ohio-2807, has previously held that expert testimony was not needed to

establish the general reliability of a radar device, even in the absence of the trial judge

taking judicial notice of a reported municipal court decision or an appellate court

decision, this case appears to be an outlier of the well-established body of law on the

issue.    Compare Moreland Hills v. Gazdak, 59 Ohio App.3d 22, 550 N.E.2d 203 (8th

Dist.1988), syllabus at paragraph two (“Judicial notice of the accuracy of a specific model

of radar device cannot automatically be extended to warrant judicial notice of the

accuracy of another model of radar device in another case.”). See also State v. Reavis,

5th Dist. No. 2012-CA-0003, 2012-Ohio-4675, ¶ 3 (“absent expert testimony or judicial

notice, [trial court] could not admit evidence of the construction, reliability, accuracy and

mode of operation of this device”); State v. Freitag, 9th Dist. No. 07CA0082,

2008-Ohio-6573 (trial court could not rely on other case that it heard for purpose of

establishing the scientific reliability of the Genesis radar unit at issue because state failed

to identify at trial what specific version of the Genesis radar was used to record the

defendant’s speed); Levine at ¶ 12 (“Absent expert testimony, the trial court could not

take judicial notice of the LTI 20-20’s accuracy and dependability, as well as hear

testimony concerning any reading obtained from such a device.”); State v. Saphire, 2d

Dist. No. 2000 CA 39, 2000 Ohio App. LEXIS 5767 (Dec. 8, 2000); State v. Kirkland, 3d

Dist. No. 8-97-22, 1998 Ohio App. LEXIS 1100 (Mar. 2, 1998); State v. Schroeder, 11th

Dist. No. 95-G-1907, 1995 Ohio App. LEXIS 3910 (Sept. 8, 1995).

         {¶14} We further find Tisdale distinguishable from this case because it involved a
radar unit at least discussed and recognized in other cases.          The same cannot be said for

the Kustom Pro-1000 radar unit. Indeed, we fail to find a single case discussing this

model.1 For that very reason, we find it troubling that the trial judge would take judicial

notice of the scientific reliability of the device at issue when it appears that there is no

evidence supporting such a conclusion.            Without any evidence that the moving radar

device at issue is at least vetted and functions in the manner presented by the prosecution,

we find that the well-established body of law on the issue precludes a trial judge from

taking judicial notice of its scientific reliability and accuracy.

       {¶15} Therefore, in the absence of any case recognizing the scientific reliability of

the Kustom Pro-1000 moving radar device, we find that the trial court erred in admitting

any testimony regarding its reading without the benefit of expert testimony. And while

the prosecution need not present expert testimony every time it presents evidence from a

Kustom Pro-1000 moving radar device, “the prosecution must do it at least once.”

Levine at ¶ 12.    Under such circumstances, the trial court may then take judicial notice of

the device’s accuracy and dependability, as well as hear testimony concerning any reading

obtained from such a device. Id.

       B.      Officer’s Visual Estimation



            We note that the Seventh District in Columbiana v. Clark, 7th Dist. No. 11CA28,
       1


2012-Ohio-4573, recently discussed a trial court’s taking of judicial notice of a Kustom Signals Pro
1000 doppler radar unit. We cannot say definitively if this is the same radar unit at issue in this case
given the slightly different name. But even if it is, we note that the trial court’s taking of judicial
notice in that case is limited solely to that municipal court and provides no support for this case or
district. Id. at ¶ 27.
         {¶16} The city next argues that, even if the radar reading was improperly admitted

into evidence, the officer’s testimony as to his visual observation was sufficient evidence

to support the speeding conviction. Although this may have previously been the law in

Ohio, it is no longer. See Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929

N.E.2d 1047 (holding that an officer’s unaided visual estimate of a vehicle’s speed is

legally sufficient to convict a person of speeding if there is evidence the officer has the

appropriate training, certification, and experience).    After the Supreme Court decided

Jenney, the Ohio General Assembly enacted R.C. 4511.091(C), effective September 30,

2011, which provides in pertinent part:

         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.

Id.

         {¶17} Thus, contrary to the city’s position, the officer’s visual estimation is

insufficient evidence to convict on the speeding charge.        See Reavis, 5th Dist. No.

2012-CA-0003, 2012-Ohio-4675.

         {¶18} We further note that the officer’s testimony that he tracked Joyner’s vehicle

speeding while he was approximately “three to four miles away” does not logically make

sense.    At oral argument, the city argued that this statement was transcribed incorrectly

and that any confusion could be eliminated by examining the videotape of the traffic stop

offered by the city.   We note, however, that the city never offered any videotape of the
traffic stop into evidence, and therefore, is not part of our record on appeal.

       {¶19} Accordingly, because we find that the trial court could not take judicial

notice of the Kustom Pro-1000’s accuracy and dependability, Officer Lieb’s testimony

concerning the radar unit’s measurement was inadmissible. Without this testimony, the

city failed to present sufficient evidence to sustain a conviction of B.C.O. 434.03(B)(3).

       {¶20} The first and second assignments of error are sustained.

       {¶21} Based on our resolution of these assignments of error, we find Joyner’s

remaining assignment of error moot.2

       {¶22} Judgment reversed and case remanded to the lower court for further

proceedings consistent with this opinion.

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

       The court finds that there were reasonable grounds for this appeal.

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

Heights 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.



_______________________________________
MARY J. BOYLE, PRESIDING JUDGE



           In her third assignment of error, Joyner argues that the city failed to present sufficient
       2


evidence, including a copy of any certification, to demonstrate that Officer Lieb was qualified to use
the Kustom Pro-1000 radar unit.
LARRY A. JONES, SR., J., and
MARY EILEEN KILBANE, J., CONCUR
