Ohio Case Law Summaries Part II (June 8, 2009 to December 29, 2009, and other missed cases)

Ohio Case Law Summaries Part II (June 8, 2009 to December 29, 2009, and other missed cases):

Please note the newer cases generally have more weight when used during an appeal unless a conflicting ruling exists from a higher court, and the district court of appeals basically holds their rulings in line with their previous rulings rather than taking other districts decisions when they occur within a short period of time.

1. 9th District Court of Appeals, State of Ohio v. Freitag, (2009-Ohio-6370) – 12/7/2009:
• The Ohio Supreme Court emphasized that the interest in the administration of justice dictates that the appellate court review the issue of sufficiency in consideration of all evidence presented by the State in its case in chief, whether such evidence was properly admitted or not.
• In the absence of any testimony regarding the specifics of Ptl. Roth’s training, and that his audible and visual determinations of the speed of Freitag’s vehicle under these specific circumstances were based on reliable scientific, technical, or other specialized information, the officer was not qualified to offer expert testimony; rather, his testimony was presented in the nature of lay witness testimony. A thorough review of the record compels this Court to conclude that the trier of fact lost its way and committed a manifest miscarriage of justice in convicting Freitag of speeding. We emphasize that we have not weighed Ptl. Roth’s testimony as an expert because the State failed to demonstrate that he was qualified as such. Instead, this Court has considered his testimony that Freitag was speeding based on the enunciated criteria which we conclude is incredible. Moreover, we recognize that the State prosecuted this case as a radar case and not an observation case.
• While a witness’ lay testimony that he determined a defendant was speeding based on his observations may support a conviction, State v. Auerbach (1923), 108 Ohio St. 96, the evidence in this case does not weigh in favor of the State. Accordingly, the conviction is against the manifest weight of the evidence.

2. 10th District Court of Appeals, Columbus v. Josephson, (2009-Ohio-244) – 1/22/2009:
• The court thereafter took judicial notice of the accuracy of the recorded speed [measurement device of the LTI 20-20 UltraLyte [laser] pursuant to City of Columbus v. Barton (1994), 106 Ohio Misc.2d 17. [in the Franklin County Municipal Court]

3. Ohio Supreme Court, Middleburg Hts. v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811) – 12/31/2008:
• R.C. 2947.23(A)(1) specifies that in all criminal cases, judges are to include the costs of prosecution in the sentence and render a judgment for such costs; however, R.C. 1901.26(B) authorizes municipal courts by rule to charge a special-projects fee in addition to all other court costs on the filing of each criminal cause.

4. 9th District Court of Appeals, State of Ohio v. Kim, (2008-Ohio-6928) – 12/31/2008:
• The Akron Municipal Court decision in State v. Campbell (1992), Case No. 92TRD203588, that found the LTI 20/20 to be reliable granting judicial notice.
• The Supreme Court held that it was “free to take judicial notice of the [other] trial court’s finding of bad faith. . . .” Id. Accordingly, this Court takes judicial notice of the Akron Municipal Court’s decision in State v. Campbell.
• Courts within the Ninth District Court of Appeals may rely on this decision to conclude that the LTI 20/20 laser speed measuring device is scientifically accurate.

5. 5th District Court of Appeals, State of Ohio v. Lapso, (2008-Ohio-4489) – 9/5/2008:
• The court previously took judicial notice of the speed measuring device of the Custom Pro-Signal Pro Laser II in the case of the State of Ohio versus Bradley A. Walker.

6. 10th District Court of Appeals, Dublin v. Streb, (2008-Ohio-3766) – 7/29/2008:
• While Crim.R. 16(B)(1)(c) references a court ordering a prosecuting attorney to comply with a discovery request, the Supreme Court of Ohio has emphasized that the discovery rules under Crim.R. 16 do not allow a party to wait until a court orders compliance. Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 4. Rather, Crim.R. 16(A) states that "[u]pon written request each party shall forthwith provide the discovery * * * allowed." Thus, the mandate of Crim.R. 16 is clear. "Lawyers should not expect that the routine, mandatory duty of 'forthwith' providing discovery is dependent upon prodding by a court." State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374.
• Appellee contends that the laser, operation manual, and calibration records were not discoverable under Crim.R. 16. However, appellee has forfeited that argument because it failed to utilize the proper channels to object to the discovery request, e.g., through a Crim.R. 16(E)(1) protective order. See State v. Mabry, Montgomery App. No. 21569, 2007-Ohio-1895, ¶31, citing State v. Parks (Aug. 15, 1990), Montgomery App. No. 12067 (stating that, "[p]ursuant to Crim.R. 16[E][1], either party may move the court for a protective order restricting or limiting discovery in any manner the court may deem appropriate to serve the ends of justice." However, neither party is authorized to ignore a discovery request in contravention of discovery rules "for reasons the party alone deems sufficient").

7. Ohio Supreme Court, Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270) – 1/31/2008:
• An Ohio municipality does not exceed its home-rule authority when it creates an automated system for enforcement of traffic laws that imposes civil liability upon violators, provided that the municipality does not alter statewide traffic regulations. This covers red light cameras and speed cameras.

8. Ohio Supreme Court, Bellville v. Kieffaber, 114 Ohio St.3d 124, 2007-Ohio-3763) – 8/8/2007:
• Citation for speeding that contains notice of both the prima facie offense and the basic facts supporting that charge includes all the necessary elements of the offense even if the citation does not also allege that the speed is unreasonable for existing condition — Driver may rebut or negate the prima facie case with evidence that the speed was neither excessive nor unreasonable.

9. 3rd District Court of Appeals, Bowling Green v. Chasteen, (110 Ohio St.3d 179, 2006-Ohio-4093) – 7/8/2006:
• The certified question is answered in the affirmative and the judgment of the court of appeals is reversed on the authority of Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, and the cause is remanded to the trial court for further proceedings consistent therewith.

10. 9th District Court of Appeals, State of Ohio v. Jamnicky, (2004-Ohio-324) – 1/24/2004:
• In order to preserve error regarding admission of evidence on appeal, defense counsel must have objected at trial and stated the specific grounds for that objection. See Evid.R. 103(A)(1). Mr. Jamnicky failed to object at trial. He has waived this particular error on appeal.
• An abuse of discretion amounts to more than an error of judgment, but instead equates to “perversity of will, passion, prejudice, partiality, or moral delinquency.” When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court.
• “That a driver’s operation of a motor vehicle was reckless is a conclusion reached by examining both the driving in issue and all the circumstances under which it took place. Foremost among these circumstances is the threat this manner of operation poses to others.” The court need not make any special finding of recklessness.

11. 3rd District Court of Appeals, State of Ohio v. Heins (1995), (Ohio St.3d No. 1995-Ohio-208) – 7/19/1995:
• State Highway Patrol officer who conducts speed checks for purpose of monitoring compliance with traffic laws is competent to testify under Evid.R. 601(C) and R.C. 4549.14 and 4549.16.
• A State Highway Patrol aircraft that is operated for the purpose of conducting speed checks is not a "motor vehicle," and therefore does not fall within the purview of Evid. R. 601(C) and its companion statutes, R.C. 454 9.14 and 4549.16.

12. 3rd District Court of Appeals, State of Ohio v. Shindler (1994), (Ohio St.3d No. 1994-Ohio-452) – 8/10/1994:
• Motion to suppress -- Accused must state the motion's legal and factual basis with sufficient particularity to place prosecutor and court on notice of issues to be decided.
• In harmony with Crim.R. 12(B)(3), (C) and (G), which generally require that a motion to suppress evidence be filed within thirty-five days after arraignment or seven days before trial, whichever is earlier, and that if the motion is not so filed the issue of the constitutionality of a search and seizure is waived.

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