[Cite as State v. Willis, 2015-Ohio-3739.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMATTHEW WILLIS 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 14 CA 103 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, 

Case No. 14TRC04033 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: September 14, 2015 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

ROBERT E. CALESARIC AMY DAVISON 

35 South Park Place, Suite 150 40 West Main Street 

Newark, Ohio 43055 Newark, Ohio 43055 
Licking County, Case No. 14 CA 103 2

Wise, J. 

{¶1}. Appellant Matthew Willis appeals the decision of the Licking County 

Municipal Court, which denied his motion to suppress evidence in an OMVI case. 

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows. 

{¶2}. On April 27, 2014, at about 2:30 AM, Officer Alex Colles of the Pataskala 

Police Department was patrolling in a marked police cruiser in the area of Havens 

Corners. His cruiser was equipped with a MPH Python III model radar device utilizing 

the "Ka" band. Tr. at 6. Colles testified that this model can be used in stationary or 

moving mode. Tr. at 8 - 9. 

{¶3}. According to Officer Colles, an eastbound vehicle passed by him while he 

was traveling in the westbound lane on Havens Corners Road. Said vehicle, a truck, 

appeared to increase speed as soon as it passed by. Tr. at 9. The officer stated he 

didn't immediately have a place to turn around; however, once he did reverse direction 

and began proceeding eastbound, he lost visual on the truck. Tr. at 9. However, as he 

continued traveling in the eastbound lane on Havens Corners, he came into contact with 

appellant's car, a Honda Accord, traveling westbound in the opposite lane. Tr. at 10. 

This time the officer was able to turn around quickly. Colles later told the court the 

speed limit in the area is 35 MPH, and his speed reading on the radar unit recorded 

appellant’s Honda going 50 MPH in moving mode. Tr. at 11. Colles is trained in 

estimating speeds and the use of speed-measuring devices. Tr. at 12. The officer 

thereupon effectuated a traffic stop for a speeding violation. 

{¶4}. It is undisputed that after appellant was stopped on April 27, 2014, Officer 

Colles proceeded to charge him with speeding and one count of OMVI. Appellant 
Licking County, Case No. 14 CA 103 3

entered a plea of not guilty, and on June 20, 2014, appellant filed a motion to suppress 

the results of his traffic stop. The matter of suppression was heard by the trial court on 

October 9, 2014. 

{¶5}. Officer Colles did not testify at the suppression hearing about what 

happened after the initial traffic stop; rather, the focus was on the use of the radar, as 

further discussed infra. 

{¶6}. After hearing the testimony and arguments of counsel, the trial court 

ultimately found that the officer acted in good faith reliance upon the admissibility or 

legitimacy of the use of the particular device to detect appellant's speed, which gave the 

officer probable cause to conduct a stop. See Tr. at 25. 

{¶7}. On November 10, 2014, appellant entered a plea of no contest to the 

OMVI charge, following which appellant was sentenced inter alia to 180 days in jail. 

{¶8}. On November 20, 2014, appellant filed a notice of appeal. He herein 

raises the following sole Assignment of Error: 

{¶9}. “I. THE TRIAL COURT COMMITTED HARMFUL ERROR BY 

OVERRULING APPELLANT'S MOTION TO SUPPRESS THE TRAFFIC STOP.” 

I. 

{¶10}. In his sole Assignment of Error, appellant argues that the trial court erred 

in denying his motion to suppress. We disagree. 

{¶11}. The Fourth Amendment to the United States Constitution and Section 14, 

Article I, Ohio Constitution, prohibit the government from conducting unreasonable 

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S. 
Licking County, Case No. 14 CA 103 4

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 

N.E.2d 1271. 

{¶12}. There are three methods of challenging on appeal a trial court's ruling on a 

motion to suppress. First, an appellant may challenge the trial court's finding of fact. 

Second, an appellant may argue the trial court failed to apply the appropriate test or 

correct law to the findings of fact. Finally, an appellant may argue the trial court has 

incorrectly decided the ultimate or final issue raised in the motion to suppress. When 

reviewing this third type of claim, an appellate court must independently determine, 

without deference to the trial court's conclusion, whether the facts meet the appropriate 

legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 

57, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; 

State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 

85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 

592, 621 N.E.2d 726. The United States Supreme Court has held that “... as a general 

matter determinations of reasonable suspicion and probable cause should be reviewed 

de novo on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 

L.Ed.2d 911. 

{¶13}. As an initial matter, we must briefly address appellant's assertion that the 

validity of the traffic stop was not fully adjudicated at the suppression hearing, as 

virtually all of the testimony focused on the use of a radar device to detect appellant's 

rate of speed during the incident in question. We note the following exchange at the 

beginning of the suppression hearing: 
Licking County, Case No. 14 CA 103 5

{¶14}. "THE COURT: I know that [the motion to suppress] encompasses a great 

number of issues but my understanding from our pretrial conference was that the only 

issue to be litigated here is the validity of the initial traffic stop. Is that correct Mr. 

Calesaric? 

{¶15}. "[DEFENSE COUNSEL] MR. CALESARIC: Yes sir. For the record I'll 

stipulate that I am narrowing my motion down drastically to just that issue. * * *. 

{¶16}. "THE COURT: Ok. Alright, so the only thing I'm going to decide is whether 

or not the initial traffic stop itself was valid and is the State ready to go? 

{¶17}. "[ASSISTANT LAW DIRECTOR] MR. KING: We are." 

{¶18}. Our review of the record does not indicate that the officer initially stopped 

appellant for anything other than speeding, such as non-functioning vehicle equipment 

or a marked lane violation. Given the above oral stipulations, we find no merit in 

appellant's proposal that more issues required resolution by the court at the suppression 

hearing. 

{¶19}. Turning to the issue at hand, appellant first directs us to our decision in 

State v. Miller, 5th Dist. Fairfield No. 2012-CA-25, 2012-Ohio-6147, which likewise 

entailed the question of suppression in an OMVI case. In Miller, we analyzed R.C. 

4511.091(C), which provides in pertinent part: "No person shall be arrested, charged, or 

convicted of a violation of any provisions of divisions (B) to (O) of Section 4511.21 or 

Section 4511.211 of the Revised Code or a substantially similar municipal ordinance 
Licking County, Case No. 14 CA 103 6

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

trackless trolley, or streetcar. ***."1 

{¶20}. The State herein concedes that a police officer's visual estimation is 

insufficient to support a speeding conviction. See, e.g., Beachwood v. Joyner, 8th Dist. 

Cuyahoga No. 98089, 2012–Ohio–5884, ¶ 17. However, we went even further in Miller, 

stating as follows: "Allowing an officer to stop a vehicle on their subjective impressions 

that a vehicle is traveling in slight excess of the legal speed limit may permit officers to 

do just what the legislature had abolished. In other words, permitting an investigative 

stop when the officer cannot arrest or charge based upon his unaided visual estimate of 

speed in slight excess of the speed limit effectively eliminates any protection against 

profiling and arbitrary detentions." Id. at ¶ 12 (emphasis in original). 

{¶21}. Appellant also points us to, inter alia, State v. McKay, 1st Dist. Hamilton 

No. C–130657, 2014-Ohio-2027, in which the First District Court of Appeals concluded 

that a trial court cannot use judicial notice from another case regarding a similar speed 

measuring device for a different device. See id. at ¶11- ¶ 12. 

{¶22}. We note Evid.R. 201(B) governs the trial court's ability to take judicial 

notice of adjudicative facts: “A judicially noticed fact must be one not 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.” The scientific reliability of a speed-

 

1

 The General Assembly enacted R.C. 4511.091(C) in 2011 in response to the Ohio 

Supreme Court's holding in Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 

929 N.E.2d 1047, which held that a defendant can be convicted of speeding based 

solely on a police officer's visual estimation of speed where the evidence shows the 

officer has the proper training and experience. See State v. Kincaid, 5th Dist. Ashland 

No. 2012–COA–011, 2012–Ohio–4669, ¶ 19 - ¶ 22. 
Licking County, Case No. 14 CA 103 7

measuring device can be established 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. 

See State v. Yaun, 3rd Dist. Logan No. 8–07–22, 2008–Ohio–1902, ¶ 12. 

{¶23}. In the case sub judice, during Officer Colles' testimony at the suppression 

hearing, appellant objected to the testimony for the speed measuring device. Appellant 

maintained that without the trial court having taken previous testimony on the device, 

the court could not take judicial notice that the device is capable of an accurate and 

ready determination of speed. See Tr. at 12. The trial court overruled counsel's 

objection, relying on State v. Vernon v. Meyers, 5th Dist. Knox No. 87-CA-4, 1987 WL 

15347, concluding that because this Court had therein ruled that K-55 radar is reliable, 

such reliability would extend to the entire K-band regardless of the model type. The 

court went on to find that the Meyers ruling authorized taking judicial notice of the 

reliability of the radar. Tr. at 13. 

{¶24}. During the ensuing cross-examination, Colles stated he believed the 

device he was using was a Ka-band frequency, not K-band. Tr. at 13. He followed up by 

stating: "I know it's a K-band or a Ka-band [that] are the most common for the radar 

device ***." He further stated that a MPH Industries "Python III" was the product he used 

and that it comes with an X, K, and a Ka-band frequency. Tr. at 14. He added that MPH 

additionally sold other models like the "BEE3" and the "Enforcer" that also use a Kaband. Id. The officer could not articulate the difference between the Python III Ka-band 

model and these other two. Id. He also could not describe the differences between the 

electronics of these devices. Tr. at 15. In any case, Officer Colles agreed that he did not 
Licking County, Case No. 14 CA 103 8

record in his police report a visual estimation of appellant's speed, although he recalled 

he had estimated it was greater than the posted limit at the area in question. Tr. at 15-

16. 

{¶25}. The essence of appellant's argument herein is that based on the officer's 

aforesaid testimony, the trial court erroneously reached a conclusion that judicial notice 

was appropriate, and therefore the speeding violation could not form the basis of a 

constitutional OMVI stop under Miller, supra. However, notwithstanding that Miller

involved only a visual estimation and no measuring device at all, it is well-established 

that an officer's reasonable articulable suspicion does not require proof beyond a 

reasonable doubt that the defendant's conduct has satisfied the elements of the offense. 

See, e.g., Westlake v. Kaplysh, 118 Ohio App.3d 18, 20, 691 N.E.2d 1074 (8th Dist. 

1997). Thus, "the fact that [the arresting officer] may have relied upon a radar device 

known to him, but improperly identified at the suppression hearing, to determine 

whether a motorist was driving in excess of the posted speed limit is immaterial to 

whether he had a proper basis for effectuating an investigatory stop." State v. 

Reddington, 9th Dist. Medina No. 14CA0064–M, 2015-Ohio-2890, ¶ 16. 

{¶26}. Accordingly, we find no reversible error in the trial court's denial of 

suppression under the facts and circumstances presented. Appellant's sole Assignment 

of Error is overruled. 

 
Licking County, Case No. 14 CA 103 9

{¶27}. For the reasons stated in the foregoing opinion, the judgment of the 

Municipal Court of Licking County, Ohio, is hereby affirmed. 

By: Wise, J. 

Hoffman, P. J., and 

Farmer, J., concur. 

JWW/d 0819