[Cite as State v. Everett, 2009-Ohio-6714.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

STATE OF OHIO, CASE NO. 16-09-10 

 PLAINTIFF-APPELLEE, 

 v. 

JEREMY M. EVERETT, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Upper Sandusky Municipal Court 

Trial Court No. TRD-09-725 

Judgment Reversed and Cause Remanded 

Date of Decision: December 21, 2009 

 

APPEARANCES: 

Jeremy M. Everett Appellant 

Richard A. Grafmiller for Appellee 
Case No. 16-09-10 

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WILLAMOWSKI, J., 

{¶1} Defendant-Appellant, Jeremy M. Everett (“Everett”) appeals the 

judgment of the Upper Sandusky Municipal Court finding Everett guilty of 

speeding in violation of R.C. 4511.21(D)(2). On appeal, Everett asserts that the 

trial court erred in admitting evidence obtained from the moving radar unit. For 

the reasons set forth below, the judgment is reversed. 

{¶2} On February 27, 2009, at approximately 4:58 p.m., Everett was 

driving eastbound on State Route 15 in Ridge Township. Ohio State Highway 

Patrol Trooper Todd A. Donnell was traveling westbound on State Route 15, a 

four lane, divided highway, in his marked patrol car. Trooper Donnell observed 

Everett pulling away from other traffic and activated his Python II radar device, 

which indicated Everett was traveling at 81 miles per hour. Trooper Donnell did a 

U-turn, turned on his overhead lights, and initiated a traffic stop. Trooper Donnell 

cited Everett for driving 81 miles per hour in a 65 miles per hour zone. 

{¶3} Everett entered a plea of not guilty and a bench trial was held on 

April 13, 2009. At the trial, Trooper Donnell testified that he activated the radar to 

confirm that Everett was traveling in excess of his “visual estimation” of 80 miles 

an hour. The trooper testified that the radar unit was in good working order, that it 

was maintained by technicians, and that he had calibrated it with tuning forks 

earlier in the day and right after Everett’s traffic stop. Trooper Donnell further 
Case No. 16-09-10 

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testified that he had been trained in the use of radar and that he had been issued an 

operator’s certificate of training. The trial court stated that it had taken judicial 

notice on the Doppler principle, which radar uses. 

{¶4} Everett, who represented himself, questioned Trooper Donnell 

about: his familiarity and understanding of various aspects of the operations of the 

radar unit; the extent of his training; his understanding of the unit’s operating 

parameters and potential shortcomings; the methods used to maintain and calibrate 

the radar unit; whether the trooper had maintained visual contact and stopped the 

correct vehicle; and, whether he understood how the unit might be affected by the 

high humidity that existed that day. Everett also questioned whether the trial 

court’s judicial notice as to the operation of radar applied to this particular Python 

II model. 

{¶5} Everett’s Criminal Rule 29 motion for acquittal was denied, and the 

trial court found Everett guilty of traveling 81 miles per hour in a 65 miles per 

hour zone in violation of R.C. 4511.21(D)(2). The trial court ordered Everett to 

pay a $25.00 fine, court costs of $127.50, and assigned two points to his driving 

record. It is from this judgment that Everett appeals, presenting the following 

three assignments of error for our review. 

First Assignment of Error 

The trial court erred in accepting Judicial Notice of the speed 

measuring device of the MHP Industries, Inc.’s Python Series II 
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moving radar unit without any expert witness testimony 

presented at the trial to its construction, accuracy and reliability, 

and without the trial court previously hearing any expert 

witness testimony for the device to its construction, accuracy and 

reliability, nor a superior court in the State of Ohio previously 

hearing or accepting any expert witness testimony for the device 

to its construction, accuracy and reliability. 

Second Assignment of Error 

The trial court erred in admitting evidence when the State of 

Ohio failed in the trial court to properly lay the foundation for 

the particular moving radar device’s accuracy and reliability, 

and therefore there was insufficient evidence to convict the 

defendant of speeding. 

Third Assignment of Error 

The trial court erred in admitting evidence when the State of 

Ohio failed in the trial court to properly lay the foundation to 

prove the MPH Industries Inc.’s Python Series II moving radar 

device was used in accordance with its owner’s operators 

manual by the police officer, and therefore there was insufficient 

evidence to convict the defendant of speeding. 

{¶6} More than fifty years ago, the Ohio Supreme Court confirmed that 

the reliability of the scientific principles underlying the use of stationary radar may 

be established without the need for expert testimony. East Cleveland v. Ferell

(1958), 168 Ohio St. 298, 154 N.E.2d 630, syllabus. However, the MPH Python II 

model, which was used to clock Everett’s speed, is a moving radar device. To 

date, the Ohio Supreme Court has not addressed the standards for the admissibility 

of evidence from moving radar devices. See Cleveland v. Tisdale, 8th Dist. No. 

89877, 2008-Ohio-2807, ¶¶7-18, 24. In order to convict a person for speeding 
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using a moving radar device, the state must prove and the record must contain (1) 

expert testimony of the construction of the device and its method of operation in 

determining the speed of the approaching vehicle, (2) evidence that the device was 

in good condition for accurate work, and (3) evidence that the officer using the 

device is one qualified for its correct use by training and experience. State v. 

Wilcox (1974), 40 Ohio App.2d 380, 386, 319 N.E.2d 615. A court may satisfy 

the first prong by hearing expert testimony or by taking judicial notice.1

 State v. 

Yaun, 3d Dist. No. 8-07-22, 2008-Ohio-1902, ¶12; City of Cincinnati v. Levine, 

158 Ohio App.3d 657, 2004-Ohio-5992, 658 821 N.E.2d 613, ¶10. Regardless as 

to whether the radar unit is stationary or moving, or what method the state uses to 

satisfy the first evidentiary prong, the state must always prove the second and third 

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

qualifications of the person using it. Ferell, supra, 68 Ohio St. at 303; State v. 

Helke, 3d Dist. No. 8-07-04, 2007-Ohio-5483, ¶7. 

{¶7} We will begin by addressing Everett’s third assignment of error 

because it is dispositive of the matter. This assignment of error argues that the city 

failed to properly lay the foundation for Trooper Donnell’s training and ability to 

 

1

 Judicial notice establishing the reliability of a speed-measuring device to satisfy the first prong can be 

accomplished 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. City of Cincinnati v. Levine, supra. But see, Cleveland v. Tisdale, stating that 

“we believe that expert testimony is no longer required to establish the general reliability of radar or laser 

devices that are used to determine speed.” 2008-Ohio-2807, at ¶18. 
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properly operate the Python II radar unit, and therefore, there was insufficient 

evidence to convict him of speeding. 

{¶8} A defendant is entitled to acquittal on a charge against him under 

Crim.R. 29(A) if the evidence is insufficient to sustain a conviction. Whether a 

conviction is supported by sufficient evidence is a question of law that this Court 

reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 

(1997); Helke, supra, at ¶5. This Court must determine whether, viewing the 

evidence in a light most favorable to the prosecution, it could have convinced an 

average juror of the defendant’s guilt beyond a reasonable doubt. See State v. 

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. 

{¶9} In most cases, an officer is able to establish that he or she is qualified 

to operate a particular radar model by testifying as to his or her training and 

experience on that radar unit and by providing a certification for the training. See, 

e.g., State v. Kirkland (Mar. 2, 1988), Logan App. No. 8-97-22, 1998 WL 126849 

(where the patrolman testified that he was certified to use the K-55 radar unit, and 

the record contained a copy of his certificate). Several appellate districts have 

held that a conviction for speeding based solely upon radar will not be upheld 

where the operator has failed to submit a certificate or a description of the radar 

operator’s training. Helke, supra, 2007-Ohio-5483, at ¶9 (because the city did not 

show the sergeant’s qualifications and experience, any evidence concerning the 

radar device’s readout should have been excluded); State v. Brown, 9th Dist. 
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No.02CA0034-M, 2002-Ohio-6463, ¶12 (explaining that the deputy’s testimony 

that he was trained on the specific K-55 radar unit on two separate occasions, 

absent a certificate of training, was insufficient to demonstrate that he was 

qualified to operate the radar unit); Barberton v. Jenney, 9th Dist. No. 24423, 

2009-Ohio-1985, ¶8 (where the officer did not present any evidence beyond his 

testimony that he was certified to operate the device, there was insufficient 

evidence to establish that he was a qualified operator). 

{¶10} In this case, Trooper Donnell testified that he initially received 

training in the Patrol Academy in a class for radar, and then every year he was 

required to have additional training and to take a quiz on the radar. He stated that 

his training was updated every year, with the last update in May of 2008. Trooper 

Donnell’s operator’s certificate of training was admitted into evidence. 

{¶11} A review of the record shows that it contained a copy of Trooper 

Donnell’s Operator’s Certificate of Training for “electronic speed measuring 

devices,” which was issued in 1994. On the back of the certificate, there were 

signed updates listing his training certification for the years 2003 through 2007. 

His last certification update was May 9, 2007, not in May of 2008, as Trooper 

Donnell had testified. Moreover, the instruments listed on the certification 

showed training for the “ESMD” in 2003 and 2004, and training for the “K55 

Python” and the “LTI Ultralyte” in 2005, 2006, and 2007. The certification did 

not list any training for the Python II, nor did Trooper’s Donnell’s testimony ever 
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state that he received any specific training on the Python II. During crossexamination, Trooper Donnell was not able to answer several questions 

concerning the parameters of the Python II. When asked if he had ever read the 

manual for the Python II, Trooper Donnell responded that he had “briefly looked 

through one” two or three years ago. 

{¶12} Based on the above, we do not find that the city provided sufficient 

evidence to prove that Trooper Donnell was trained and qualified to operate the 

Python II radar unit. Appellant’s third assignment of error is sustained. Because 

the city did not prove Trooper Donnell’s qualifications to operate the radar, any 

evidence concerning the Python II radar device’s readout should have been 

excluded. 

{¶13} However, many appellate courts have affirmed speeding convictions 

based upon the officer’s testimony that the defendant was speeding, even when the 

readout from the radar device had been excluded. See, e.g., Barberton v. Jenney, 

supra. Usually, the officer will provide a definite opinion as to how fast the 

offender’s vehicle was traveling and/or produce in-depth testimony concerning the 

officer’s specific training and expertise in visually estimating the speed of a 

vehicle. See Helke, 2007-Ohio-5483, at ¶¶10-11. 

{¶14} This Court recently upheld a speeding conviction without the need 

for admission of the radar-related evidence. See State v. Harris, 3d Dist. No. 9-

99-03, 2009-Ohio-2616. In Harris, the defendant admitted that he was going 
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“about 65” in a 55 miles per hour zone in addition to the trooper’s testimony that 

he visually estimated the defendant’s speed as approximately 70 miles per hour. 

Id. at ¶12. In support of the accuracy of this visual determination, the trooper 

testified that he was trained to visually detect the speed of a vehicle within four 

miles of its actual speed. Id. at ¶11. He further testified that he was certified in 

determining the speed of a vehicle based upon visual observation, and that his 

certification in this area was current. Id. And finally, the radar’s specific reading 

of 72 miles per hour was not essential to the conviction because the defendant was 

convicted only of the “general offense of speeding” and not of violating any 

specific speed limit by a particular number of miles per hour. Id. at ¶13. 

{¶15} In the case before us now, Trooper Donnell provides only a brief 

mention of his “visual estimation” of Everett’s speed before he activated the radar: 

Q. Okay. When you first saw him moving away, was there 

anything – did you do anything at that point? 

A. At that point, I did activate [sic] a radar to confirm the 

speed of in excess of 80 miles an hour that I first perceived on 

the Defendant. 

Q. Okay. When you first had your initial observation, did 

you make any note mentally or otherwise or determination as to 

what his speed was without the use of any mechanical device? 

A. Correct. I originally had a visualized summation that he 

was in excess of 80 miles an hour. 

*** 

Q. And after that visual estimation, you did what then? 
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A. After the visual estimation, then I activated the radar. 

(Trial Tr. pp. 7-8). 

{¶16} Trooper Donnell’s description of his “perception” and “visualized 

summation” of his estimation of Everett’s speed is not very definite or convincing. 

Compare State v. Westerbeck (June 19, 1987), 3d Dist. No. 17-86-18, 1987 WL 

13063 (where the court found the direct testimony as to speeding too vague for a 

finding of guilt); Harris, 2009-Ohio-2616, at ¶13, fn.3. More importantly, 

Trooper Donnell did not provide any testimony or evidence concerning his ability, 

or experience in accurately estimating the speed of a moving vehicle, nor did he 

testify that he had received any training in visually estimating speeds. 

{¶17} In many cases where courts have affirmed a speeding conviction 

based upon the officer’s visual determination, there is often additional evidence 

verifying the officer’s specific training and experience in being able to accurately 

estimate a vehicle’s speed without relying upon radar. See, e.g., State v. Brown, 

9th Dist. No.02CA0034-M, 2002-Ohio-6463, ¶20 (where the deputy testified he 

received training to estimate the speed of moving vehicles and was required to 

attain a degree of accuracy of plus or minus five miles an hour per twenty 

vehicles); Barberton v. Jenney, 2009-Ohio-1985, at ¶13 (the officer received 

training and certification where he practiced visual estimation of a vehicle 

hundreds of time); State v. Wilson, 6th Dist. No. F-04-028, 2005-Ohio-2496, ¶17 
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(where the trooper testified he had forty hours training in visually estimating the 

speed of vehicles, and his estimates were verified with radar). 

{¶18} There was nothing in the record that would substantiate Trooper 

Donnell’s ability to accurately estimate the speed of a moving automobile 

traveling in the opposite direction of his patrol car. “[T]he mere educated guess of 

the arresting officer as to the speed of a vehicle is insufficient to overcome the 

presumption of innocence and the burden of proof beyond a reasonable doubt for 

conviction.” Cleveland v. Wilson, 8th Dist. No. 87047, 2006-Ohio-1947, ¶9. We 

do not find that the record contains sufficient evidence of Trooper Donnell’s 

ability to accurately estimate the speed of a moving vehicle to sustain Everett’s 

conviction for speeding 81 miles per hour based upon his visual estimation. 

{¶19} For the reasons stated above, the judgment of the Upper Sandusky 

Municipal Court is reversed and the matter is remanded with instruction for the 

trial court to discharge appellant. 

Judgment Reversed and Cause Remanded 

ROGERS, J., concurs in Judgment Only. 

SHAW, J., dissents. 

{¶20} Because I believe the majority has fundamentally misconstrued the 

testimony in this case, and in particular, assigned improper weight to a series of 
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irrelevant questions and unsubstantiated claims posed by the defendant to the 

trooper at trial, I respectfully dissent. 

{¶21} Contrary to the assertions of the majority, the trooper in this case did 

specifically testify to an independent visual estimate of the defendant's speed "in 

excess of 80 miles per hour" (Transcript at 7) - and the trooper did specifically 

testify to his qualifications and training on the "Python Series 2 radar" when he 

was asked to describe his experience "specifically with this unit and other radar 

units" and in response stated that his experience "started with a K-55 and 

proceeded up to the Series 2 which I have now". (Transcript at 11 and 17.) Later, 

in describing the audible tone distortion that signifies "shadowing" and other radar 

problems, the trooper again states that his testimony is applicable "specifically on 

the Series 2 radar unit." (Transcript at 35.) Whether the notations on the back of 

the certificate showed it or not, the trooper further testified in person that his most 

recent operators certificate update was in "May of '08." (Transcript at 18.) 

{¶22} The majority makes much of the fact that the trooper was not 

familiar with certain questions about the radar raised by the defendant on crossexamination. However, there was no showing by the defendant or anyone else that 

any of these questions had any bearing whatsoever on the accuracy or reliability of 

the radar operated by the trooper on the date of the offense - beyond the mere 

suggestion of the defendant and as allegedly suggested in some of the 

unsubstantiated "literature" he submitted to the court. (See transcript at 20-29.) 
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{¶23} In particular, the defendant made absolutely no showing whatsoever 

that the questions about "humidity parameters" posed to the trooper on crossexamination, had any basis in fact or science for impacting the accuracy or 

reliability of the Python II radar in general - or otherwise impacted the trooper's 

use of that radar to accurately document the defendant's speeding on the date of 

the offense. 

{¶24} Under these circumstances, I believe it is highly inappropriate for the 

appellate court to conclude that the trooper was not qualified or properly trained in 

the operation of this radar simply because he was not familiar with the allegations 

of the defendant regarding "humidity parameters” - when there is no proper 

showing in the record by anyone that "humidity parameters" have any bearing 

whatsoever on the use of this equipment. 

{¶25} In sum, none of the questions or claims posed by the defendant were 

properly established in evidence as having any bearing on the accuracy of the 

equipment used by the trooper to confirm his visual observation of the defendant 

as travelling at 81 miles per hour on the date of the offense. In contrast, every 

indication by the trooper was that the redundancy checks and techniques, 

calibration procedures, and operation of this radar unit all confirmed that a speed 

of 81 miles per hour was accurately registered on a properly working radar unit, 

operated by a trained and qualified trooper. 
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{¶26} For these reasons, I believe the trial court was well within its 

prerogative to reject the claims, comments and questions of the defendant and 

accept the testimony of the trooper with regard to both his visual observations and 

the use of the radar as accurate evidence in determining the defendant's speed in 

this case. I would affirm the judgment of the trial court. 

/jnc