[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

 1

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

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 

 2

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

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