COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68409 : ACCELERATED DOCKET CITY OF SOUTH EUCLID : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CARLA VARASSO-BURGESS : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 12, 1995 CHARACTER OF PROCEEDING: Criminal appeal from South Euclid Municipal Court Case No. 05093 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: LEE KOOSED, ESQ. T. DAVID BURGESS, ESQ. City Solicitor for the JASON B. SIMS, ESQ. City of South Euclid T. DAVID BURGESS CO., L.P.A. 1349 South Green Road 110 North Third Street South Euclid, Ohio 44121 Williamsburg, OH 45176-1322 - 2 - PER CURIAM: Defendant-appellant Carla Varasso-Burgess appeals from her conviction for speeding following a bench trial in the South Euclid Municipal Court. Defendant was charged in the municipal court on August 24, 1994, with violating South Euclid Codified Ordinance Section 333.03 by driving thirty-six miles per hour in a twenty-five mile per hour zone. Defendant pleaded not guilty to the charge and the case ultimately proceeded to a bench trial on December 13, 1994. The prosecution presented testimony from South Euclid Police Officer Edward Montgomery. Officer Montgomery testified he was assigned to "traffic radar detail" in the afternoon of August 24, 1994. Montgomery stated he was illegally parked facing east on Telhurst Road and observed defendant speeding westbound toward him. (Tr. 6-8, 23.) Montgomery confirmed by radar that defendant was driving at thirty-six miles per hour, which exceeded the twenty- five mile per hour posted speed limit, and issued defendant a ticket. During cross-examination of Montgomery, counsel for defendant presented several photographs of Telhurst Road and of the vehicle used by Montgomery for traffic detail. Three photographs of the vehicle, taken prior to trial during daylight hours from a distance of several feet, depict a one-tone, light grey, standard four door Ford passenger sedan with a small blue light mounted on the roof. The light grey passenger car contains, in white letters, the word - 3 - "police" on the right front quarter panel. (Exhibit 1.) Montgomery testified that the front doors of the vehicle contain the following inscription: "City of South Euclid." In photograph Exhibit 3 Montgomery circled the inscription containing letters which are either so small or so light, or both, that they are invisible or at least undecipherable to the naked eye. The body of the vehicle contains no insignia or other markings of any kind. The front license plate bears four letters "SEPD" and the rear plate "1-800-GRAB-DUI." Montgomery testified the vehicle used for traffic detail was not like the City's seven or eight squad cars which are painted in sharply contrasting black and white colors. These squad cars have red, white, and blue lights on top and a colorful red, white, blue, and black South Euclid Police badge on the front doors. The municipal court admitted the photographs into evidence at the conclusion of Montgomery's testimony. Defendant thereafter made a motion to strike the testimony of Officer Montgomery on the grounds that he was incompetent to testify as a witness because the vehicle he was operating was not distinctively marked as required by statute. (Tr. 35-43.) The municipal court denied defendant's motion to strike Officer Montgomery's testimony. (Tr. 43-46.) Defendant testified that she was driving at a reasonable rate of speed under the circumstances and rested her case. The municipal court found defendant guilty of driving thirty-six miles per hour in a twenty-five mile per hour zone in violation of South - 4 - Euclid Municipal Ordinance Section 333.03 and imposed a $150 fine in an order journalized December 13, 1994. The municipal court stayed execution of defendant's sentence pending this accelerated appeal. Defendant's sole assignment of error follows: THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANTS [SIC] MOTION TO STRIKE THE TESTIMONY OF OFFICER EDWARD MONTGOMERY. Defendant's sole assignment of error is well taken. Defendant argues the municipal court improperly denied her motion to strike the testimony of Officer Montgomery because the record demonstrates the officer was not using a distinctively marked vehicle while conducting traffic radar detail. Defendant argues that traffic officers are not competent to testify at trial in misdemeanor cases when their vehicle is not distinctively marked. Evid.R. 601 governs the competency of witnesses to testify and provides in pertinent part as follows: 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 vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute. (Emphasis added.) R.C. 4549.14 likewise provides that unidentified traffic officers are not competent to testify as follows: Incompetency of officer as witness. - 5 - 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 prosecution against s u c h arrested person if such officer at the time of t h e arrest was using a motor vehicle not marked in accordance with section 4549.13 of the Revised Code. (Emphasis added.) R.C. 4549.13 establishes the following requirements for identifying vehicles used by traffic officers: Motor vehicles used by traffic officers. 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, 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. (Emphasis added.) The purpose of these requirements is to promote uniform traffic control in political subdivisions of the state and to prevent speed traps and other similar abuses in the enforcement of traffic laws. Dayton v. Adams (1967), 9 Ohio St.2d 89, 90; State v. Clark (1983), 10 Ohio App.3d 308, 311. It is well established that testimony of law enforcement officers is not admissible when the officer was not using a vehicle properly marked in accordance with these requirements. Id. R.C. 4549.13 requires that traffic control vehicles have a light mounted on the top and be marked either in a distinctive - 6 - manner or color. There is no dispute in this case that the vehicle had a light mounted outside on top and, as the municipal court found, the vehicle was not marked in a distinctive color. As a result, Montgomery's competency to testify in this case depends on whether the vehicle was "marked in some distinctive manner." Based on our review of the record, the municipal court erred by concluding that the vehicle satisfied this requirement. As noted above, the vehicle used for traffic detail in this case was a standard Ford passenger sedan painted in subdued neutral colors -- the vehicle is light grey and bears similarly colored white letters, which blend together with little or no discernible difference. The size and positioning of the letters further detract from their visibility. The letters below the front door handle, which purportedly spell "City of South Euclid," are less distinct and smaller than the letters on the name plate on the vehicle. The municipal judge stated she could read the letters on the photographs although they are not discernible to this Court. The letters used to spell "police" above the left front wheel well are also approximately the same size as the letters on the front license plate. A fair application of R.C. 4549.13 in this case reveals that the traffic detail vehicle was not "marked in some distinctive manner." The photographs, taken from a close-up distance of several feet during daylight hours, demonstrate the markings do not distinguish the vehicle from an ordinary passenger car. The appearance of a light grey vehicle, marked with only similarly - 7 - colored small white letters for identification, does not provide fair notice that the passenger car is a police vehicle. The light on top of the vehicle does not help satisfy the distinctive marking requirement because the light is independently mandated by statute. We note that even if an observer discerned the law enforcement character of the vehicle from the light on top, the vehicle appears at most to belong to a private security guard rather than a public law enforcement officer acting under color of law. Unlike the standard police squad cars used by the City for routine patrol, the traffic detail vehicle bears no prominent police badge -- an immediately recognizable public law enforcement symbol that citizens do not need to decipher or read. By prohibiting unauthorized individuals from displaying police emblems on motor vehicles, the General Assembly has specifically recognized that such law enforcement emblems are distinctive markings. R.C. 2913.44.1. Although not all public law enforcement vehicles are required to bear such symbols, without such an emblem the remaining markings on the vehicle do not serve to distinguish the vehicle from an ordinary passenger car in this case. R.C. 4945.13 was enacted by the General Assembly to prevent precisely such camouflage of traffic control vehicles. Accordingly, defendant's sole assignment of error is well taken. Judgment reversed. - 8 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said 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. JOHN T. PATTON, CHIEF JUSTICE DISSENTS (See Dissenting Opinion) PATRICIA ANN BLACKMON, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68409 CITY OF SOUTH EUCLID : : DISSENTING Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CARLA VARASSO-BURGESS : : Defendant-appellant : : DATE OCTOBER 12, 1995 PATTON, C.J., DISSENTING: I must respectfully dissent because I find the trial judge did not clearly abuse her discretion in finding the city of South Euclid police vehicle marked in a distinctive manner as required by R.C. 4549.13. I differ with the decision the majority reaches concerning the policy supporting R.C. 4549.13. In a recent interpretation of R.C. 4549.13, the supreme court stated, "`[i]t 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.'" State v. Heins (1995), 72 Ohio St.3d 504, 506, quoting Columbus v. Murchison (1984), 21 Ohio App.3d 75, 76. See, also, State v. Butler (1991), 77 Ohio App.3d 143. Thus, - 2 - requiring police officers engaged exclusively in traffic control to use distinctively marked police cars (as well as full uniform), effectuates, "[t]he intent of the Legislature *** to provide uniformity in traffic control and regulation in an effort to make driving safer in all political subdivision within the state." Dayton v. Adams (1967), 9 Ohio St.2d 89, 90 (emphasis added). As with other evidentiary matters, the trial judge has wide discretion in determining preliminary questions of a person's qualifications to be a witness. See Evid.R. 104(A). The scope of our review is narrow. We cannot reverse a trial judge's determination of a witness' competency absent a clear abuse of discretion. Columbus v. Robbins (1989), 61 Ohio App.3d 324, 327; Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, 18. Thus, the precise issue is whether the trial court clearly abused its discretion by finding the vehicle was marked in some distinctive manner as required by R.C. 4549.13. I believe it self-evident the use of the word "police" on a vehicle is a sufficiently distinctive marking, in itself, to alert the citizenry that the vehicle is being operated by a law enforcement officer. The purpose of the law is to inform drivers the vehicle stopping them for a traffic offense is operated by a law enforcement official. Because the criminal code makes it a crime to impersonate a peace officer, see R.C. 2921.51, the average driver can be reasonably assured a uniformed police officer driving - 3 - a vehicle marked with the words "police" is a law enforcement official. Other facts demonstrate the vehicle bore the general characteristics of a police vehicle. The testimony and exhibits admitted at trial shows the vehicle has a large, permanently affixed, oscillating blue light mounted on top of the car--not a small portable light of the kind used by plain clothed officers. The words "City of South Euclid" are printed on the front doors. A large search light is mounted on the driver's side of the vehicle. The front license plate reads "S.E.P.D.," while the back license plate bears a public service message on drunk driving. Although all these facts tend to show the vehicle was marked in a distinctive manner, the court concludes the police car is not marked in a distinctive manner because the words "police" do not stand out on the car. I believe we should recognize the fact that many municipalities dedicate vehicles painted and marked in a manner consistent with the vehicle in question for traffic control purposes. While the typical "black and white" vehicle has a two- tone paint scheme and a municipal emblem on the front doors, it is common practice for police departments using special traffic control vehicles to omit the emblem and paint the identifying words "police" on the front quarter panels of their vehicles. I must emphasize the issue is not whether the driver can see the police vehicle before speeding by, but whether the driver can - 4 - identify the car as a police vehicle when being pulled over to stop. Municipalities commonly conduct covert radar surveillance because overt surveillance merely alerts a speeder to the presence of the officer and gives the speeder time to slow briefly before resuming an unlawful speed. In the present case, defendant not only failed to express any concern as to the identity of the arresting officer, she testified she clearly recognized both the police officer and the vehicle in question at the time of her offense as having a law enforcement function. When analyzing whether the vehicle was marked in a distinctive manner, I believe it important to note the exhibits do not accurately portray the condition of the vehicle on the day the officer issued the citation. Importantly, although the traffic offense occurred on a sunny August day, the photographs, taken some four months later, show the police car in the low light of a snowy December afternoon. The markings of the police car are difficult to see because they are obscured by snow, dirt and slush on the doors of the vehicle, not because they are undistinctive. The arresting officer noted this difference when he testified and mentioned the vehicle had been washed just before he began his tour of duty on the day he issued the citation in question. The markings are "not discernable" in the exhibits because the vehicle is covered with snow and slush; hence, the exhibits cannot be fairly compared to the actual condition of the vehicle on a bright August day. - 5 - Defendant freely admitted she had been speeding and she expressed no doubts that she had been stopped by a police officer driving a police vehicle. The arresting officer gave uncontroverted testimony as to the markings on the vehicle, and the exhibits, support that testimony. Under these circumstances, I would find the trial judge did not clearly abuse her discretion by finding the city of South Euclid police vehicle marked in a distinctive manner as required by R.C. 4549.13 and permitting the .