[Cite as State v. Lester, 2018-Ohio-458.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 11-17-05

        v.

STEPHEN LESTER,                                            OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Paulding County Court
                             Trial Court No. 17-TRD-3293

                                       Judgment Affirmed

                            Date of Decision: February 5, 2018




APPEARANCES:

        Stephen Lester, Appellant

        Matthew A. Miller for Appellee
Case No. 11-17-05


SHAW, J.

           {¶1} Defendant-appellant, Stephen Lester (“Lester”), brings this appeal from

the August 30, 2017, judgment of the Paulding County Court finding Lester guilty

of Speeding in violation of R.C. 4511.21(D)(3). On appeal Lester argues that there

was insufficient evidence presented to convict him and that the trial court committed

plain error by permitting certain testimony he claims was hearsay.

                                Relevant Facts and Procedural History

           {¶2} On July 31, 2017, Lester was cited for Speeding in violation of R.C.

4511.21(D)(3). It was alleged that a pilot with the Ohio State Highway Patrol

clocked Lester traveling 82 mph in a 65 mph speed zone. Lester pled not guilty to

the charge and his case proceeded to a bench trial.1

           {¶3} At trial the State first called Trooper Andrew Ettinger of the Ohio State

Highway Patrol. Trooper Ettinger testified that he had attended and completed the

police academy and that he also had his pilot license. Trooper Ettinger testified that

he had been employed with the Ohio State Highway Patrol since 2003 and that he

was a “Trooper Pilot,” meaning that for the highway patrol he utilized an aircraft to

conduct searches for missing persons, manhunts for criminals, surveillance

missions, and speed enforcement.




1
    Lester represented himself at trial.

                                                 -2-
Case No. 11-17-05


       {¶4} Trooper Ettinger explained how determining speed via aircraft was

done, which included the installation of a mile-long speed zone on a road with

markings identifying each quarter-mile. Trooper Ettinger testified that he would

track vehicles that entered into the speed zone using a properly calibrated stopwatch

to obtain average speed in miles per hour as well as the time in seconds that it took

the vehicle to travel each quarter mile. Trooper Ettinger testified that during his

observations in the air he was in direct radio communication with a ground officer.

       {¶5} Trooper Ettinger testified as to the procedure he used to calibrate the

stopwatches used in measuring speed, which included a monthly check against the

atomic clock and a daily check performed before and after equipment use. Trooper

Ettinger testified that the stopwatch was operating appropriately during the monthly

checks and during the daily checks on July 31, 2017.

       {¶6} Trooper Ettinger testified that on July 31, 2017, he was flying over

Paulding County over US24, near mile post 17. Trooper Ettinger testified that he

was working with Sergeant Chavez who was on the ground in a marked patrol

vehicle. Trooper Ettinger testified that at approximately 3:48 p.m. he observed a

dark-colored vehicle in the left lane in the speed zone going approximately 79 mph

for the first three quarters of the mile-long speed zone and 82 mph in the fourth

quarter-mile of the speed zone. Trooper Ettinger testified as to how the math was




                                         -3-
Case No. 11-17-05


calculated to determine the speed of the vehicle, though he indicated that the

stopwatch itself calculated the speed.

        {¶7} After observing the vehicle speeding, Trooper Ettinger testified that he

radioed to Sergeant Chavez regarding the vehicle in question. Sergeant Chavez

stopped the identified vehicle, which Trooper Ettinger confirmed was correct as he

had an “unbroken” view of it.

        {¶8} On cross-examination, Trooper Ettinger testified that there was no

video of the alleged speeding as seen from the airplane. Trooper Ettinger was then

asked if he was a “certified” operator of the stopwatch, and he replied that he had

3-4 months of training and that he had completed the training satisfactorily, but he

had no official “certification” specifically for operating the stopwatch.

        {¶9} The State next called Sergeant Chavez of the Ohio State Highway

Patrol. Sergeant Chavez testified that, as to the incident in question, Trooper

Ettinger radioed him and told him that a dark-colored vehicle had been traveling 82

mph in the speed zone.2 Sergeant Chavez testified that he identified the vehicle that

Trooper Ettinger had indicated, that he confirmed it was the correct vehicle, and that

he then initiated a traffic stop. Sergeant Chavez ultimately issued a ticket to the




2
 The ticket issued to Lester marked his vehicle as “blue.” However, it was described as dark-colored by
Trooper Ettinger. When viewed on the video from Sergeant Chavez’s cruiser, Lester’s vehicle was a very
dark blue.

                                                 -4-
Case No. 11-17-05


driver, which was Lester. Video of the stop from Sergeant Chavez’s cruiser was

entered into evidence.

       {¶10} At the conclusion of Sergeant Chavez’s testimony, the State rested.

Lester did not present any evidence, relying on his argument that the State failed to

present sufficient evidence to convict him. The trial court took the matter under

advisement and indicated it would issue a written ruling.

       {¶11} On August 30, 2017, the trial court filed a judgment entry finding

Lester guilty of Speeding in violation of R.C. 4511.21(D)(3). The trial court

summarized the evidence, cited the pertinent statute, and determined that the State

had proven its case beyond a reasonable doubt.

       {¶12} It is from this judgment that Lester appeals, asserting the following

assignments of error for our review.

                           Assignment of Error No. 1
       Appellant’s conviction of speeding was based upon insufficient
       evidence as to one element of the offense: speed exceeding sixty-
       five miles per hour.

                          Assignment of Error No. 2
       The trial court committed prejudicial error in accepting hearsay
       testimony of the Trooper Pilot[’]s credentials.

                             First Assignment of Error

       {¶13} In Lester’s first assignment of error he argues that there was

insufficient evidence presented to convict him. Specifically, he argues that the State



                                         -5-
Case No. 11-17-05


failed to establish that Trooper Ettinger was “certified” to operate the stopwatch

used to determine Lester’s speed.

                                 Standard of Review

       {¶14} Whether there is legally sufficient evidence to sustain a conviction is

a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency

is a test of adequacy. Id. When an appellate court reviews a record upon a

sufficiency challenge, “ ‘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. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶ 77, quoting State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

                                      Analysis

       {¶15} In this case Lester was convicted of Speeding in violation of R.C.

4511.21(D)(3), which reads, “No person shall operate a motor vehicle * * * upon a

street or highway * * * [a]t a speed exceeding sixty-five miles per hour[.]”

       {¶16} In convicting Lester, the State called two witnesses, both from the

Ohio State Highway Patrol. The pilot from the State Highway Patrol, Trooper

Ettinger, testified as to detecting a dark-colored vehicle exceeding the speed limit at

a rate of 82 mph in a 65 mph zone. He testified as to how speeding was detected

from the air and how it was done in this instance. He testified that he kept a visual


                                         -6-
Case No. 11-17-05


on the vehicle at all times and that the vehicle that was stopped by Sergeant Chavez

was the vehicle that he had observed speeding.

       {¶17} Sergeant Chavez testified that he stopped the vehicle he was directed

to by Trooper Ettinger, which turned out to be Lester’s, and issued him a citation.

       {¶18} On appeal, Lester argues that there was insufficient evidence

presented to convict him, claiming that the State failed to present evidence that

Trooper Ettinger was “certified” to use the stopwatch that was used to determine his

speed. Contrary to Lester’s arguments, there is no indication that such a certification

exists or that such a certification was required. It is required that the stopwatch be

functioning properly and Trooper Ettinger did testify that the stopwatch in question

was properly calibrated, detailing how that was done.

       {¶19} Moreover, the State presented testimony that Trooper Ettinger was

trained in how to use the stopwatch. While Trooper Ettinger did not testify that he

was “certified” specifically in using a stopwatch, we cannot find that the State failed

to establish the offense of Speeding in this instance beyond a reasonable doubt.

Based on the evidence in the record, Lester’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶20} In Lester’s second assignment of error, he argues that the trial court

committed plain error by permitting certain testimony that Lester solicited on cross-

examination of Trooper Ettinger.


                                         -7-
Case No. 11-17-05


                                 Standard of Review

       {¶21} Generally, we review a trial court’s decision to admit or exclude

evidence under an abuse of discretion standard. State v. Lauf, 3d Dist. Putnam No.

12–16–06, 2017–Ohio–608, ¶ 54, citing State v. Cassel, 2d Dist. Montgomery No.

26708, 2016–Ohio–3479, ¶ 13, citing State v. Graham, 58 Ohio St.2d 350 (1979),

and State v. Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, ¶ 19. An abuse of

discretion constitutes a decision that is arbitrary, capricious, or grossly

unsound. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶22} However, where there was no objection to an evidentiary issue before

the trial court, we review the matter on appeal for plain error. State v. Holton, 3d

Dist. Logan No. 2017-Ohio-6934, ¶ 18. We take notice of plain error “with the

utmost caution, under exceptional circumstances and only to prevent a miscarriage

of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

To prevail under plain error, Lester must show that an error occurred, that the error

was plain, and that but for the error, the outcome of the trial clearly would have been

otherwise. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, ¶ 69,

citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002).




                                         -8-
Case No. 11-17-05


                                     Analysis

       {¶23} In Lester’s second assignment of error, he argues that the trial court

erred by permitting the following testimony during Lester’s own cross-examination

of Trooper Ettinger.

       LESTER: * * * [W]as your stop watch an analog or digital
       device?

       TROOPER ETTINGER: It’s digital.

       LESTER: Digital?

       TROOPER ETTINGER: Yes sir.

       LESTER: Ok, um as you know he did ask, um [the] prosecutor
       asked some questions, now you are certified as a competent
       operator of such device; you have training, a certificate of any sort
       to validate that?

       TROOPER ETTINGER: Ah, no certificate I did receive training,
       ah the training period was ah, about four (4) months, so that was
       coming into the aviation section um, about four (4) month, three
       (3) or four (4) months training period.

       LESTER: Ok, so they provide you nothing to establish how you
       completed it, um license or certificate of training er? [sic]

       TROOPER ETTINGER: No certificate, ah there was a um,
       basically a final checkoff from the section commander showing
       that the, the section commander rode along with me showing that
       the ah, satisfactorily [sic] completion of the ah training.

(Tr. at 20-21).

       {¶24} On appeal, Lester argues that the preceding testimony from Trooper

Ettinger on cross-examination constituted hearsay and that absent the “section

                                        -9-
Case No. 11-17-05


commander’s” testimony “verifying the completion of training” the trial court erred

in permitting Trooper Ettinger’s testimony as to the completion of his training.

(Appt’s Br. at 9).

       {¶25} Lester’s arguments on appeal fail for a number of reasons. First, the

testimony that he argues is objectionable he actually elicited on cross-examination

of Trooper Ettinger. Second, Lester did not object to the purportedly objectionable

testimony and he now seems to be arguing that he was “ineffective” as his own

counsel for failing to do so, which is a wholly spurious claim. Third, Lester points

to no actual “hearsay” testimony that could be objectionable even if he did object.

Fourth, even assuming the testimony was objectionable, there is no indication that

it altered the outcome of the entire trial such that it would constitute plain error.

Thus for all of these reasons Lester’s argument is not well-taken, and his second

assignment of error is overruled.

                                    Conclusion

       {¶26} For the foregoing reasons Lester’s assignments of error are overruled

and the judgment of the Paulding County Court is affirmed.

                                                                Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/jlr




                                        -10-
