COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69875 : CITY OF SHAKER HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION DANIEL M. KATZ : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Shaker Heights Municipal Court Case No. 95-TRD-07822 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: LISA M. GALE, ESQ. DANIEL M. KATZ, pro se Assistant Prosecutor 19615 Shelburne Road City of Shaker Heights Shaker Heights, Ohio 44118 3400 Lee Road Shaker Heights, Ohio 44120 - 2 - KARPINSKI, J.: Defendant-appellant Daniel M. Katz appeals from an order of the Shaker Heights Municipal Court finding him guilty of speeding and ordering him to pay a $35 fine and court costs. Defendant was charged with operating his motor vehicle at an excessive rate of speed of 50 miles per hour in a 35-mile-per- hour zone in violation of Shaker Heights Codified Ordinance Section 1133.03. Defendant pleaded not guilty and the case proceeded to a bench trial on October 16, 1995. Shaker Heights police officer Charles Muckley testified that he was assigned to perform routine traffic detail on Saturday, September 2, 1995. Officer Muckley had twenty-five years experience as a police officer in the City of Shaker Heights and had performed traffic detail for the last eight years. Officer Muckley was parked in a standard marked police cruiser facing east observing traffic in the two westbound lanes of Shaker Boulevard while operating a KR10SP radar device. At approximately 4:05 p.m., defendant's 1986 Jaguar approached Muckley's police cruiser heading westbound in the leftmost of two westbound lanes. Officer Muckley observed defendant's vehicle pass three residential lots over a distance of approximately 300 hundred feet and concluded that defendant was speeding in excess of the posted speed limit. The radar unit measured the rate of speed of defendant's vehicle at 50 miles per hour in the 35-mile-per-hour zone. Officer Muckley pulled - 3 - defendant over before the intersection of Shaker Boulevard and Warrensville Center Road and issued him a speeding ticket. Defendant testified that he operated his vehicle at between 40 and 45 miles per hour. Defendant maintained, however, that his speed was not excessive or unreasonable under the circumstances. The municipal judge found defendant guilty, ordered him to pay a thirty-five-dollar fine and court costs, and suspended five dollars of the fine. Defendant appeals raising three assignments of error. I Defendant's first and second assignments of error challenge the sufficiency and manifest weight of the evidence as follows: THE FINDING AND JUDGMENT OF THE TRIAL COURT RELATIVE TO THE CHARGE OF EXCESSIVE SPEEDING ON SHAKER BOULEVARD IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. THE FINDING AND JUDGMENT OF THE TRIAL COURT RELATIVE TO THE CHARGE OF EXCESSIVE SPEEDING ON SHAKER BOULEVARD WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO LAW. These assignments lack merit. Defendant argues the prosecution did not present sufficient evidence that he was operating his vehicle at an unreasonable or improper speed and that the trial judge's verdict finding him guilty of the offense is against the manifest weight of the evidence. Defendant argues that, although he admittedly exceeded the posted speed limit, his speed was not unlawful under the circumstances because the evidence showed the pavement was dry, visibility was clear, and traffic only light. - 4 - The First District Court of Appeals summarized the standard governing these two claims in the frequently cited case of State v. Martin (1983), 20 Ohio App.3d 172. The Martin Court first discussed the insufficiency of the evidence claim as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any reasonable trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Id. at 175. Defendant's brief concedes the prosecution made a prima facie showing that he violated the ordinance by exceeding the speed limit. Defendant argues, however, that speed in excess of the posted limit is only presumptively unlawful and that the remainder of the evidence rebutted this presumption by showing his speed was reasonable under the circumstances. This argument ignores that, when determining the sufficiency of the evidence, a court must view the evidence in the light most favorable to the prosecution. Defendant's recitation of the evidence inadequately considers, moreover, Officer Muckley's testimony that defendant's speed of 50 miles per hour was excessive, there was traffic, albeit light, on the road, and the area through which defendant was speeding was a residential neighborhood. When viewed in the light most favorable to the prosecution, the evidence was sufficient for the municipal court to find defendant guilty of the offense of speeding beyond a reasonable doubt. State v. Neff (1975), 41 Ohio St.2d 17; Cleveland v. Joseph (Apr. - 5 - 25, 1991), Cuyahoga App. No. 60227, unreported at 2; Cleveland Heights v. Redmond (May 19, 1983), Cuyahoga App. No. 45590, unreported 3-4. Defendant cites the same authorities cited by the dissent in Neff. However, the majority in Neff necessarily rejected the reasoning of those cases by rejecting the dissenting opinion. The majority opinion states the law of the case. More importantly, defendant's argument in this case is weaker than the defendants' in Neff because defendant was speeding in a residential neighborhood. In contrast, one defendant in Neff was driving on a rural roadway and the other in an undeveloped area where the roadway on both sides was separated from adjacent areas by a fence. Speeding statutes and ordinances are promulgated, in part, to protect against the risk that excessive speeding creates to people in the vicinity. Defendant's claim that his conviction is against the manifest weight of the evidence likewise lacks merit. The Martin Court summarized the standard governing the manifest weight of the evidence claim as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. - 6 - Id. at 175. Defendant has failed to show that his conviction is against the manifest weight of the evidence in this case. Warrensville Heights v. Eckhart (Nov. 30, 1995), Cuyahoga App. No. 68911, unreported; Cleveland v. Joseph (Apr. 25, 1991), Cuyahoga App. No. 60227, unreported. Contrary to the tenor of defendant's argument, this case did not involve "optimal" speeding conditions. The area defendant was admittedly speeding through was a residential area with driveways every 75 to 100 feet. It was in the middle of a Saturday afternoon, there was at least light vehicular traffic, and Officer Muckley had not clocked any other vehicles around defendant driving so fast. Under these circumstances, the trial court could properly conclude that exceeding the posted 35-mile-per-hour speed limit by 15 miles per hour as shown by the radar device, or even by 5 to 10 miles per hour as defendant claimed, was unreasonable and improper. Accordingly, defendant's first and second assignments of error are overruled. II Defendant's third assignment of error follows: THE FINDING AND JUDGMENT OF THE TRIAL COURT WAS DETERMINED BASED ON PURPORTED FACTS THAT WERE NOT ENTERED INTO EVIDENCE, IN PART CONSTITUTING PLAIN ERROR, AND IS CONTRARY TO LAW. This assignment lacks merit. Defendant argues for the first time on appeal the trial court erred by commenting on the condition of Shaker Boulevard where the offense occurred. The court stated that the road was - 7 - "not entirely straight," had a "curve," and had a "stop" near the intersection with Warrensville Center Road. Defendant complains no evidence was presented to support these statements and that he was denied an opportunity to rebut them. By invoking the doctrine of plain error, defendant seeks to overcome the fact that he made no objection in the municipal court. However, the Ohio Supreme Court has held that "[n]otice of plain error under Crim.R. 52(B) is to taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, syllabus paragraph three. Defendant has failed to show plain error in this case. As noted above, defendant admitted to driving in excess of the posted speed limit. The trial judge explained that it found defendant's speed unreasonable under the circumstances because the offense occurred in a crowded residential area. The remaining comments were not necessary to support the judgment. Moreover, defendant has not shown any exceptional circumstances or a manifest miscarriage of justice. Accordingly, defendant's third assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .