State v. Heins

[This opinion has been published in Ohio Official Reports at 72 Ohio St.3d 504.]

THE STATE OF OHIO, APPELLEE, v. HEINS, APPELLANT.

THE STATE OF OHIO, APPELLEE, v. CALHOUN, APPELLANT.

[Cite as State v. Heins, 1995-Ohio-208.]

Evidence—Witnesses—Competency—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. 4549.14 and

4549.16.

(Nos. 94-686 and 94-747—Submitted April 26, 1995—Decided July 19, 1995.)

APPEALS from the Court of Appeals for Ashland County, Nos.

CA-1058 and CA-1060.

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Case No. 94-686

{¶ 1} On May 20, 1993, at approximately 12:46 p.m., appellant, Kenneth J.

Heins, was charged with speeding. The offense occurred in Ashland County while

Heins was driving a commercial tractor-trailer north on Interstate 71. William R.

Watkins, a trooper pilot assigned to the Aviation Section of the Ohio State Highway

Patrol, had been conducting routine speed checks from the air over Interstate 71

when he observed appellant's vehicle. Using a stopwatch and a standard

mathematical formula to compute a driver's speed based upon the time it takes the

driver to travel between a series of white lines painted on the highway, Watkins

determined that Heins was driving sixty-six miles per hour in a fifty-five mile per

hour zone. Watkins radioed this information to Trooper Carl L. Buris, who was

positioned on the ground. Buris thereafter stopped Heins and issued him a citation

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for traveling at a speed in excess of the posted limit in violation of R.C.

4511.21(D)(3).

{¶ 2} Heins entered a plea of not guilty to the charge of speeding. Prior to

trial, Heins filed a motion in limine to exclude the testimony of Watkins, on the

grounds that the latter was incompetent to testify under Evid. R. 601(C). The trial

judge overruled the motion, and the case proceeded to a bench trial. Heins again

objected to Watkins' testimony during the course of the trial, but the trial judge

rejected Heins' argument. After considering all of the admitted evidence, the trial

court found Heins guilty of speeding and assessed him a twenty-five dollar fine

plus costs. The court of appeals affirmed the conviction.

Case No. 94-747

{¶ 3} On May 20, 1993, approximately twelve minutes after Heins was

cited for speeding, appellant, William C. Calhoun, was similarly stopped. Trooper

Watkins, continuing to conduct speed checks above Interstate 71, observed

Calhoun traveling north through Ashland County in a commercial tractor-trailer.

Employing the same technique he had used to determine Heins' speed, Watkins

calculated that Calhoun was driving seventy-five miles per hour. This information

was radioed to Trooper Buris on the ground, who then stopped Calhoun's vehicle

and issued a citation for traveling at a speed in excess of the fifty-five miles per

hour limit in violation of R C. 4511.21(D)(3).

{¶ 4} Calhoun entered a plea of not guilty to the charge of speeding. Prior

to trial, Calhoun filed a motion in limine to exclude the testimony of Watkins on

the grounds that the officer was incompetent to testify under Evid. R. 601(C). The

trial judge overruled the motion, and a trial to the bench ensued. Calhoun again

objected to Watkins' testimony during trial, but the trial judge rejected his

argument. After considering all of the admitted evidence, the trial court found

Calhoun guilty of speeding and assessed him a fifty-dollar fine plus costs. The

court of appeals affirmed the conviction.

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January Term, 1995

{¶ 5} The cause is now before this court pursuant to the allowance of

discretionary appeals. These cases have been consolidated for purposes of final

determination.

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W. David Montague, Assistant Director of Law, for appellee.

Mason, Mason, Sullivan & Mason and Thomas L. Mason, for appellants.

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ALICE ROBIE RESNICK, J.

{¶ 6} The sole proposition raised for our review is whether a State Highway

Patrol officer who conducts speed checks from an aircraft for the purpose of

monitoring compliance with traffic laws is competent to testify under the dictates

of Evid. R. 601(C) and various sections of R.C. Chapter 4549. For the reasons

which follow, we hold that such an officer is competent to testify.

{¶ 7} Evid. R. 601 provides in pertinent part:

"Every person is competent to be a witness except:

"***

"(C) An officer, while on duty for the exclusive or main purpose of

enforcing traffic laws, arresting or assisting in the arrest of a person charged with a

traffic violation punishable as a misdemeanor where the officer at the time of the

arrest was not using a properly marked motor vehicle as defined by statute or was

not wearing a legally distinctive uniform as defined by statute."

{¶ 8} The Staff Note to Evid. R. 601(C) indicates that this court adopted the

rule simply as a restatement of R.C. 4549.14 and 4549.16, and that the rule

preserves the provisions of each statute. R.C. 4549.14 states that: "Any officer

arresting, or participating or assisting in the arrest of, a person charged with

violating the motor vehicle or traffic laws of this state, provided the offense is

punishable as a misdemeanor, such officer being on duty exclusively or for the main

purpose of enforcing such laws, is incompetent to testify as a witness in any

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prosecution against such arrested person if such officer at the time of the arrest was

using a motor vehicle not marked in accordance with section 4549.13 of the

Revised Code."

{¶ 9} R.C. 4549.13, in turn, provides that: "Any motor vehicle used by a

member of the state highway patrol or by any other peace officer, while said officer

is on duty for the exclusive or main purpose of enforcing the motor vehicle or traffic

laws of this state, provided the offense is punishable as a misdemeanor, shall be

marked in some distinctive manner or color and shall be equipped with, but need

not necessarily have in operation at all times, at least one flashing, oscillating, or

rotating colored light mounted outside on top of the vehicle. The superintendent of

the state highway patrol shall specify what constitutes such a distinctive marking

or color for the state highway patrol." The interplay between the two statutes is

such that R.C. 4549.14 essentially creates the sanction to be imposed for a failure

to comply with R.C. 4549.13.

{¶ 10} R.C. 4549.15 and 4549.16 are similarly related. The provisions of

R.C. 4549.15 and 4549.16 require that an officer whose primary duty is to arrest or

assist with the arrest of individuals who violate traffic laws must wear a distinctive

uniform as prescribed by the State Highway Patrol. An officer who fails to comply

with R.C. 4549.15 will be deemed incompetent to testify as a witness in any

prosecution against an arrested person pursuant to R.C. 4549.16.

{¶ 11} Through the enactment of these statutes, the legislature

demonstrated an intent to provide uniformity in traffic control and regulation in an

effort to make driving safer within Ohio's political subdivisions. Dayton v. Adams

(1967), 9 Ohio St.2d 89, 38 O.O.2d 223, 223 N.E.2d 822. "It requires little

imagination to contemplate the unfortunate consequences should a frightened

motorist believe that he [or she] was being forced off the road by a stranger. The

General Assembly sought to avoid such mischief by requiring police officers on

traffic duty to be identified clearly." Columbus v. Murchison (1984), 21 Ohio

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App.3d 75, 76, 21 OBR 79, 81, 486 N.E.2d 236, 238. In addition to issues of safety

and public welfare, the legislature also adopted R.C. 4549.13 through 4549.16 in

an attempt to curb the use of speed traps within municipalities. See Adams, 9 Ohio

St.2d at 90, 38 O.O.2d at 224, 223 N.E.2d at 824.

{¶ 12} Appellants in the case sub judice assert that the use of speed checks

by the highway patrol clearly violates the legislature's intended ban on speed traps,

and therefore such practice is impermissible. In reaching this conclusion,

appellants contend that a plain reading of Evid. R. 601(C) indicates that in order for

an officer, whose primary responsibility is the enforcement of traffic laws, to be

competent to testify in connection with a traffic violation, the officer must have

operated a properly marked motor vehicle at the time he or she issued the citation.

An airplane, appellants argue, does not qualify as a motor vehicle under the rule.

Therefore, Watkins was incompetent to testify in this case.

{¶ 13} The interpretation of Evid. R. 601(C) that appellants urge this court

to adopt would lead to an absurd application of the rule. Appellants' position

essentially means that to be deemed competent to testify, every officer who is

assigned to traffic enforcement must use a motor vehicle when issuing citations.

As such, an officer assigned to traffic duty who patrols on foot or on horseback

would be precluded from testifying in connection with the citations the officer

issues. Embracing this view would effectively ignore the plain meaning of R.C.

4549.14 and the fact that this court adopted Evid. R. 601(C) as a restatement of

R.C. 4549.14 and 4549.16. Staff Note to Evid. R. 601(C). Neither statute supports

the result suggested by appellants.

{¶ 14} The better course of reasoning in this case is to read Evid. R. 601(C)

in light of its companion statutes and to determine whether airplanes fall under the

purview of each. Both Evid.R. 601(C) and R.C. 4549.14 refer to the use of "motor

vehicles," but neither includes a definition of the phrase. We therefore turn our

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consideration to other sections in R.C. Title 45 in order to ascertain whether aircraft

should be included in the general definition of "motor vehicle."

{¶ 15} As a starting point, R.C. 4501.011 provides: "As used in this chapter

and Chapters 4503., 4505., 4507., 4511., 4513., 4515., and 4517. of the Revised

Code, and in the penal laws, except as otherwise provided:

"(A) 'Vehicles' means everything on wheels or runners, including motorized

bicycles *** [with certain exceptions which are not relevant to this case].

"(B) 'Motor vehicle' means any vehicle, including manufactured homes and

recreational vehicles, that is propelled or drawn by power other than muscular

power or power collected from overhead electric trolley wires *** [with numerous

exceptions which are not relevant to this case]."

{¶ 16} Another definition appears in R.C. 4511.01, which states: "As used

in this chapter and in Chapter 4513. of the Revised Code:

"(A) 'Vehicle' means every device, including a motorized bicycle, in, upon,

or by which any person or property may be transported or drawn upon a highway

*** [with certain exceptions which are not relevant to this case].

"(B) 'Motor vehicle' means every vehicle propelled or drawn by power other

than muscular power or power collected from overhead electric trolley wires ***

[with certain exceptions which are not relevant to this case]."

{¶ 17} R.C. 4549.41 states: "As used in sections 4549.41 to 4549.51 of the

Revised Code:

"***

"(B) 'Motor vehicle' means any vehicle driven or drawn by mechanical

power for use on the public streets, roads, or highways."

1. The amendment to R.C. 4501.01, Am. Sub. S. B. No. 191, effective October 20, 1994, is not

relevant to our discussion herein.

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January Term, 1995

{¶ 18} Finally, R.C. Chapter 4561 includes numerous statutes which apply

to aeronautics. R.C. 4561.01 provides: "As used in sections 4561.01 to 4561.16,

inclusive, of the Revised Code,

"(A) 'Aviation' means transportation by aircraft; operation of aircraft; the

establishment, operation, maintenance, repair, and improvement of airports,

landing fields, and other air navigation facilities; and all other activities connected

therewith or incidental thereto.

"(B) 'Aircraft' means any contrivance used or designated for navigation or

flight in the air, excepting a parachute or other contrivance for such navigation used

primarily as safety equipment."

{¶ 19} After closely reviewing the above definitional sections, we conclude

that while no section in R.C. Title 45 specifically defines "motor vehicle," as it

appears in R.C. 4549.13 and 4549.14, that phrase is generally meant to refer to land-

operated vehicles. The enactment of R.C. Chapter 4561 to specifically deal with

aeronautics indicates an intent by the legislature to separate aircraft from other

vehicles. Furthermore, we find that the context in which the phrase appears in R.C.

4549.13 indicates that the statute is meant to apply to land-operated vehicles.

"Besides requiring a police vehicle to be distinctively marked or of a distinctive

color, the statute also requires at least one flashing, oscillating or rotating colored

light mounted outside on top of the vehicle. It would not make sense to make such

a requirement of an aircraft. Even if an aircraft should mount such a light, there is

no way anyone on the ground could see it during the daylight hours. The same

would apply if the aircraft had been marked. A person who is driving on a highway

has an obligation to keep his or her eyes on the roadway, the traffic, pedestrians,

and the surroundings, but certainly not on the sky in search of flying aircraft." State

v. Osting (June 27, 1988), Crawford App. No. 3-86-21, unreported, 1988 WL

68698; see, also, State v. Foster (1992), 84 Ohio App.3d 214, 616 N.E.2d 595.

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{¶ 20} Based upon the foregoing, we hold that 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. 4549.14 and 4549.16. As such, we find that Watkins was

competent to testify concerning the events surrounding appellants' speeding

citations.

{¶ 21} The judgments of the court of appeals are affirmed.

Judgments affirmed.

MOYER, C.J., DOUGLAS, WRIGHT, F.E. SWEENEY, PFEIFER and COOK, JJ.,

concur.

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