State v. Allenbaugh

151 N.E.3d 50

2020 Ohio 68

STATE of Ohio, Plaintiff-Appellee,

v.Mark H. ALLENBAUGH, Defendant-Appellant.

NO. 2019-A-0017

Court of Appeals of Ohio, Eleventh District, Ashtabula County.

Decided January 13, 2020

Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).

Mark H. Allenbaugh, pro se, 2934 Shirley Street, Ashtabula, OH 44004 (Defendant-Appellant).

MATT LYNCH, J.

{¶1} On December 1, 2017, Mark H. Allenbaugh was issued a traffic ticket, charging him with a violation of R.C. 4511.21(B)(1)(a) ("[i]t is prima-facie lawful * * * for the operator of a motor vehicle * * * to operate the same at a speed not exceeding * * * [t]wenty miles per hour in school zones during school recess and while children are going to or leaving school during the opening or closing hours"). Allenbaugh was arraigned the same day and entered a plea of not guilty.

{¶2} On February 23, 2018, a pre-trial hearing was held at which Allenbaugh asked "that the State * * * identify any expert testimony it intends to introduce into evidence." The State responded that "the only witness that the State would call would be Trooper Balcomb." A status hearing was scheduled for June 15 and trial was scheduled for June 21, 2018.

{¶3} On May 4, 2018, Allenbaugh filed a Motion in limine to Exclude All Evidence Pertaining to Laser Speed Detection Device. In part, Allenbaugh argued: "The State has not identified any expert it intends to call to establish the accuracy and scientific reliability of the [LTI 20/20 TruSpeed Laser Speed Gun] thereby precluding its admissibility or any testimony based thereon. Should the State timely identify such an expert, Mr. Allenbaugh requests a Daubert hearing on said expert."

{¶4} On May 25, 2018, the State submitted a Response which contained the following: "[T]he State has just learned that an expert is available to provide testimony on the subject speed measuring device but does not have a name, address or CV to provide to the Court or Defendant. The State anticipates supplementing its discovery as soon as this information is provided."

{¶5} On May 29, 2018, the municipal court denied the Motion in limine.

{¶6} On June 1, 2018, Allenbaugh filed a Motion in limine to Preclude Any Expert Testimony on the grounds that "the State neither has named any expert witness, nor provided Mr. Allenbaugh with any written report of any potential expert witness as required by the Rules of Criminal Procedure."

{¶7} On June 4, 2018, the State filed a Motion for Continuance of the June 21 trial date on the grounds that, inter alia, "the expert who is expected to testify in this matter will be out of the country on that date and thus is unavailable" and "the State has yet to receive the information from the manufacturer regarding the expert's name and CV so that it may be furnished to the Defendant in discovery."

{¶8} On the same date, the municipal court granted the State's Motion, rescheduled trial for July 19, 2018, and ordered the State to produce the expert's name and CV to Allenbaugh by the June 15 status hearing. The court denied Allenbaugh's Motion in limine as moot as it was "granting the State's request for a continuance of trial."

{¶9} On June 15, 2018, the State filed a Supplement to Discovery, advising Allenbaugh that it anticipated calling Wyatt Kilgallin as a witness at trial and providing him a copy of Kilgallin's resume. The status hearing was continued sua sponte by the municipal court.

{¶10} On June 29, 2018, Allenbaugh filed a Third Motion in limine to Exclude Any Expert Testimony on the grounds that "the State has not provided Mr. Allenbaugh with any written report of any potential expert witness as required by the Rules of Criminal Procedure."

{¶11} On July 5, 2018, a hearing was held on the Third Motion in limine.

{¶12} On July 6, 2018, the municipal court issued its ruling, which denied the Motion:

In the instant case, any report submitted by the expert would not apply to the specific facts of the Defendant's case, or the ultimate issue as to guilt or innocence, but whether or not the LTI 20/20 TruSpeed Laser is a scientifically reliable measure of speed in general. The Defendant, by his own admission, was well aware of the fact that an expert was needed in order for the Court to take judicial notice of the scientific reliability of the LTI 20/20 TruSpeed Laser. Defendant is not surprised, nor is he prejudiced, as Defendant is well aware that the State's expert opinion will be along the lines that the LTI 20/20 TruSpeed Laser is a scientifically reliable measure of speed. Defendant will have the opportunity to challenge the expert's opinion prior to trial, through cross-examination and presentation of his own expert if he so chooses.

The court scheduled a "Judicial Notice" hearing for July 19, 2018, "with a trial to follow."

{¶13} On July 12, 2018, Allenbaugh filed a Motion for Continuance of trial on the grounds that an essential fact witness for the defense was unavailable on July 19, which Motion the municipal court denied.

{¶14} On July 19, 2018, the municipal court did grant a continuance after it was learned that the State had provided Allenbaugh with the User's Manual for the LTI 20/20 TruSpeed Laser. The Judicial Notice hearing was rescheduled for November 1, 2018, and trial for December 6, 2018.

{¶15} On November 1, 2018, the municipal court held the Daubert or judicial notice hearing. Allenbaugh did not appear. Wyatt Kilgallin, an electronics professor at the University of Akron and sometime contractor for Laser Technology Incorporated, testified regarding the operation and reliability of the LTI 20/20 TruSpeed Laser: "It sends out [a] pulse of light and waits for the echo back, and it will determine how far away something is and how long it took for that pulse of light to get out and come back. * * * Pulse number one goes back out, comes back, says * * * something's 500 feet away. Well, then pulse number two goes out, comes back, okay, 499 [feet]. Then, pulse three, pulse four, pulse five and * * * then pulse 40 comes back and says * * * 460 feet away. And so, from that set of data, then it can calculate a speed and the history of where the target was at time number one, time number two, time number three, time number four, and it basically does * * * a computation of distance versus time * * * over this history, and then calculates a velocity of the vehicle based on that."

{¶16} On November 7, 2018, the municipal court took judicial notice "of the fact that the LTI 20/20 TruSpeed Laser device is an accurate device to determine the speed of a vehicle pursuant to Evid.R. 201(B)."

{¶17} On December 6, 2018, Allenbaugh's case was tried before the municipal court judge.

{¶18} Trooper Scotty Balcomb of the Ohio State Patrol in Ashtabula County testified on behalf of the State. On December 1, 2017, at approximately 7:40 a.m., Balcomb was on the east side of Dairy Queen on U.S. Route 20 (East Prospect Road) in Ashtabula Township, Ohio. This location is within a "20 mile-an-hour school zone between the hours of 7:00 a.m. and 8:00 a.m." because of the proximity of Wallace H. Braden MIddle School. Balcomb observed Allenbaugh travelling westbound on Route 20 in excess of the posted speed limit. He visually estimated Allenbaugh's speed at 38 to 40 miles per hour and, using a TruSpeed Laser, obtained speed readings of 40, 40, and 41 miles per hour. The laser reading of Allenbaugh's speed was taken at a distance of approximately 387 feet.

{¶19} Dennis Mitchell, a teacher at Braden Middle School, testified on Allenbaugh's behalf. On December 1, 2017, Mitchell was standing at the rear entrance of the school when Allenbaugh dropped off his children. Mitchell was about to return to his classroom as the 7:39 a.m. bell had rung to warn students that school was about to begin.

{¶20} The distance from the point at which Allenbaugh dropped his children off to the point at which Trooper Balcomb read his speed was approximately 1,635 feet.

{¶21} William Billington, the former principal of Braden Middle School, testified on Allenbaugh's behalf. Billington testified that students have three minutes following the warning bell to arrive at their classrooms for attendance at 7:42 a.m.

{¶22} On December 10, 2018, the municipal court found Allenbaugh guilty of speeding in a school zone and imposed a fine of fifty dollars, stayed pending appeal.

{¶23} On January 28, 2019, Allenbaugh filed a Notice of Appeal. On appeal, he raises the following assignments of error:

{¶24} "[1.] The trial court committed prejudicial error in allowing the State to name its expert after the expiration of the deadline mandated by the Rule of Criminal Procedure 16(K), which required a showing of both good cause and lack of prejudice to defendant."

{¶25} "[2.] The trial court committed prejudicial error by proceeding with the Daubert hearing without the presence of the defendant as required by Rule of Criminal Procedure 10(B) and the Sixth Amendment of the U.S. Constitution."

{¶26} "[3.] The verdict was against the weight of the evidence."

{¶27} In his first assignment of error, Allenbaugh challenges the municipal court's decision to allow the State's expert, Kilgallin, to testify in violation of Criminal Rule 16, which provides in relevant part:

(K) Expert Witnesses; Reports. An expert witness for either side shall prepare a written report summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the expert's qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert's testimony at trial.

(L) Regulation of

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