City of Dublin v. Streb

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

City of Dublin,

Plaintiff-Appellee,

No. 07AP-995

(M.C. No. 2007-TRD-179965)

Joseph S. Streb,

(REGULAR CALENDAR)

Defendant-Appellant.

O P I N I O N

Rendered on July 29, 2008

Schottenstein, Zox & Dunn Co., LPA

, and

Matthew T. Green

for appellee.

Joseph S. Streb

, pro se.

APPEAL from the Franklin County Municipal Court.

FRENCH, J.

{¶1}

Defendant-appellant, Joseph S. Streb, appeals the judgment of the

Franklin County Municipal Court, which convicted appellant of speed, a minor

misdemeanor, in violation of Section 73.15 of the Dublin City Code of Ordinances.

{¶2}

On August 8, 2007, appellant received a speed citation in Dublin, Ohio.

The citation indicated that a city of Dublin police officer used a laser speed reading

device to measure appellant's speed as 70 m.p.h. in a 55 m.p.h. zone. On the citation,

No. 07AP-995

the officer referred to the laser as "LIDAR#UX008692." The citation also issued a

summons for appellant to appear in court if appellant chose to contest it.

{¶3}

Appellant contested the citation, and his case was scheduled for

proceedings in the Dublin Mayor's Court. Meanwhile, on August 11, 2007, appellant

requested discovery from plaintiff-appellee, the City of Dublin. Appellant requested, in

part, operation manuals and calibration records for the laser. Appellant also made a

general reference to wanting "any [and] all documents and things."

{¶4}

On August 21, 2007, at appellant's request, the Dublin Mayor's Court

transferred the speed case to the trial court. That same day, appellant pleaded not

guilty through an arraignment with the trial court. While doing so, appellant asserted his

right to speedy trial, which, under R.C. 2945.71 et seq., generally requires that a trial for

minor misdemeanors be held within 30 days from summons or arrest.

{¶5}

Appellant's case was set for trial on September 6, 2007. However, a

September 7, 2007 journal entry indicates that the trial had been continued to

October 25, 2007. The parties did not submit on appeal a transcript of proceedings

covering the trial court's decision to grant the continuance, but the September 7, 2007

journal entry states that appellant requested the continuance.

{¶6}

Also, on September 7, 2007, appellant filed a motion to compel discovery

and a motion for sanctions because, according to appellant, appellee had not complied

with appellant's discovery request. Appellant noted:

On September 6, 2007, the action came on for trial before

this Court. Prior to commencement of trial, [appellant] made

several motions relating to failure of [appellee] to provide

discovery. [Appellant] moved to dismiss the action because

[appellee] had not complied with his Rule 16 Demand For

No. 07AP-995

Disclosure, particularly with respect to the requests for

information about the speed measuring device and its

calibration. The Court ordered [appellee] to produce these

items of information. [Appellee] did produce some of the

information; however, there were questions, including

without limitation, as to whether the information produced

applied to the actual speed measuring device utilized.

The court granted a continuance to [appellee] to comply with

[appellant's] Demand for Discovery, and the trial was re-set

for October 24, 2007.

Appellant then reiterated his request for "operation manuals * * * regarding the speed

recording device" and "records of * * * calibration of the speed recording device." Thus,

appellant asked the trial court to order appellee "to produce * * * the information

requested * * * and the case should be dismissed if this is not done."

{¶7}

On October 25, 2007, appellant filed a motion to dismiss the case

because, according to appellant, the trial court violated appellant's speedy trial rights,

and appellee failed to comply with appellant's discovery request. The trial court did not

rule on the motion to dismiss, but continued the trial to November 1, 2007, over

appellant's objection. The parties did not submit a transcript covering the trial court's

decision to continue the trial, but appellant noted in his motion to dismiss that "it has

come to the attention of the defense that * * * the officer who issued the citation may not

be available to testify on October 25, 2007."

{¶8}

On November 1, 2007, appellant again filed a motion to dismiss for

reasons stated in his previous dismissal motion. In this motion to dismiss, appellant

contended that, although he filed a motion to dismiss on October 25, 2007, he withdrew

the motion that same day.

No. 07AP-995

{¶9}

On November 1, 2007, the trial court held proceedings that were

transcribed and made part of the appellate record. During the proceedings, the parties

discussed appellant's motion to dismiss. Appellant first reiterated that appellee failed to

comply with the discovery request. The parties acknowledged that appellee had

previously brought discovery on the original trial date, September 6, but appellant

argued that the discovery was incomplete. In particular, appellant contended that

appellee brought the wrong manual for the laser device used to measure his speed.

Appellant stated that the citation referenced a "LIDAR" speed reading device, but the

manual pertained to the "Ultra[L]ight speed reading device." (Tr. 2.)

{¶10}

In response, appellee explained that "LIDAR" simply refers to the laser

technology used with all speed measuring devices, including the UltraLite. Appellee

stated that the citing officer used the UltraLite unit to measure appellant's speed and

that the officer brought the UltraLite unit and its corresponding manual on the first trial

date.

{¶11}

Appellee also noted its objection to appellant's motion to dismiss.

Appellee argued that it had provided discovery to appellant by making all discovery

available to him "at the courthouse now" and at the Dublin Police Department. (Tr. 8.)

{¶12}

The trial court overruled appellant's motion to dismiss, concluding that

appellee "provided [appellant] with all discoverable evidence" and concluding that

appellant's speedy trial rights were not violated, given that speedy trial time was tolled

for a period after the September 2007 continuance, which the court granted at

appellant's request. (Tr. 9.) Thereafter, appellant pleaded no contest to the speeding

violation. Appellee then recited the complaint and circumstances of the speed offense.

No. 07AP-995

Specifically, appellee stated that, when the Dublin police officer first noticed appellant,

the officer visually estimated appellant's "speed to be over and above the posted speed

limit of 55 miles per hour." (Tr. 12.) The police officer "activated the laser unit in his

cruiser, and the laser unit informed [the police officer] that [appellant's] speed was 70

miles per hour in that 55 mile per hour zone." (Tr. 12.) The trial court accepted the

facts and convicted appellant of speed.

{¶13}

Appellant appeals, raising three assignments of error:

I. THE

TRIAL

COURT

ERRED

VIOLATING

APPELLANT'S SPEEDY TRIAL RIGHTS.

II. THE TRIAL COURT ERRED IN PROCEEDING TO

TRIAL WHEN THE PROSECUTION HAD NOT PRODUCED

REQUESTED INFORMATION.

III. THE TRIAL COURT COMMITTED PLAIN ERROR BY

RECEIVING EX PARTE OFF RECORD EVIDENCE

REGARDING THE SPEED READING DEVICE FROM THE

CITING

POLICE

OFFICER

JUST

PRIOR

COMMENCING THE TRIAL.

{¶14}

Initially, we recognize that appellant has filed two motions concerning his

appeal. First, appellant filed a motion to strike the following from the appendix to

appellee's brief: (1) handwritten notes from the citing officer; and (2) an affidavit

certifying the calibration of the laser. Appellant contends that these items were not

made part of the trial court record. As appellant asserts, we cannot consider items not

properly made part of the record. App.R. 9;

Paulin v. Midland Mut. Life Ins. Co.

(1974),

37 Ohio St.2d 109, 112;

Wassenaar v. Ohio Dept. of Rehab. & Corr.

, Franklin App. No.

07AP-712, 2008-Ohio-1220, ¶20.

No. 07AP-995

{¶15}

In response, appellee moves that we supplement the record with the

above items. Appellee contends that the officer made the notes at the traffic stop. In

addition, appellee argues that it introduced the calibration affidavit into evidence at the

November 1, 2007 proceedings.

{¶16}

In regard to the officer's notes, we deny appellant's motion to strike, and

we deem moot appellee's motion to supplement, because the notes are in the trial court

file. In regard to the calibration affidavit, we grant appellant's motion to strike, and we

deny appellee's motion to supplement, because, while appellee may have referenced

the affidavit at the November 1, 2007 court proceedings, there are no indications that

the trial court admitted the affidavit into evidence.

{¶17}

Appellant's next motion concerns a statement of evidence he submitted,

pursuant to App.R. 9(C), which provides:

If no report of the evidence or proceedings at a hearing or

trial was made, or if a transcript is unavailable, the appellant

may prepare a statement of the evidence or proceedings

from the best available means, including the appellant's

recollection. The statement shall be served on the appellee

no later than twenty days prior to the time for transmission of

the record pursuant to App.R. 10, who may serve objections

or propose amendments to the statement within ten days

after service. The statement and any objections or proposed

amendments shall be forthwith submitted to the trial court for

settlement and approval. The trial court shall act prior to the

time for transmission of the record pursuant to App.R. 10,

and, as settled and approved, the statement shall be

included by the clerk of the trial court in the record on

appeal.

{¶18}

Appellant's App.R. 9(C) statement provides:

Prior to the commencement of the trial set for November 1,

2007, the citing police officer gave the trial judge an off-

No. 07AP-995

record demonstration of the speed-reading device alleged to

have been used with respect to this case.

Appellant asserts this is contrary to his rights and unduly

prejudiced the court.

Appellant served a copy of the statement on appellee, and appellee has filed no

objections to the statement. At oral argument, appellee clarified that, while it did not

object to appellant's statement that an ex parte communication occurred between the

trial court and the officer, it did not agree that the communication resulted in prejudice to

appellant.

{¶19}

In providing the App.R. 9(C) statement, appellant has moved that we

"determine the record and matters related" to the proposed statement. Appellant filed

the motion, pursuant to App.R. 9(E), which states:

If any difference arises as to whether the record truly

discloses what occurred in the trial court, the difference shall

be submitted to and settled by that court and the record

made to conform to the truth. If anything material to either

party is omitted from the record by error or accident or is

misstated therein, the parties by stipulation, or the trial court,

either before or after the record is transmitted to the court of

appeals, or the court of appeals, on proper suggestion or of

its own initiative, may direct that the omission or

misstatement be corrected, and if necessary that a

supplemental record be certified and transmitted. All other

questions as to the form and content of the record shall be

presented to the court of appeals.

{¶20}

As appellant acknowledges, the trial court has not approved appellant's

statement as App.R. 9(C) requires. Approval may be lacking because the judge who

heard appellant's case vacated the bench thereafter. In

Brooklyn v. Seiber

(Dec. 22,

1994), Cuyahoga App. No. 65212, the defendant submitted on appeal an App.R. 9

statement not approved by the trial court. The appellate court noted that the trial court

No. 07AP-995

presumably did not approve the statement because the judge had retired from the

bench. Nevertheless, the appellate court accepted the statement for consideration,

recognizing that the prosecution did not object to the statement and citing "the interests

of justice and the fundamental tenet of judicial review in this state that cases should be

decided on their merits."

{¶21}

Here, we similarly recognize interests of justice and the desire to decide

cases on their merits. We acknowledge that the trial court could not have considered

appellant's statement because the trial judge was no longer on the bench. We also

recognize that appellee does not object to the statement being used on appeal as

evidence that an ex parte communication concerning the laser device occurred between

the trial court and the citing officer. We leave for our determination, however, whether

the communication resulted in prejudice to appellant. With this limitation, we accept

appellant's App.R. 9(C) statement for purposes of appeal.

{¶22}

We now examine the merits of appellant's assignments of error. In his first

assignment of error, appellant argues that the trial court violated appellant's speedy trial

rights under Ohio's speedy trial statutes, R.C. 2945.71 et seq. We disagree.

{¶23}

Under Ohio's speedy trial statutes, a trial court shall discharge a defendant

if the trial court and prosecution fail to bring the defendant to trial within the time

required by R.C. 2945.71 and 2945.72. See R.C. 2945.73(B). The Supreme Court of

Ohio has "imposed upon the prosecution and the trial courts the mandatory duty of

complying with" the speedy trial statutes.

State v. Singer

(1977), 50 Ohio St.2d 103,

105. Thus, courts must strictly construe these statutes against the state.

Brecksville v.

Cook

, 75 Ohio St.3d 53, 57, 1996-Ohio-171. Additionally, speedy trial issues present

No. 07AP-995

mixed questions of law and fact.

State v. Hiatt

(1997), 120 Ohio App.3d 247, 261.

Therefore, we "accept the facts as found by the trial court on some competent, credible

evidence, but freely review the application of the law to the facts."

Hiatt

at 261, citing

State v. Howard

(Mar. 4, 1994), Scioto App. No. 93CA2136.

{¶24}

"[W]hen a defendant moves for discharge on the basis that he has not

been brought to trial within the time limits set forth in [the speedy trial statutes], and he

presents a prima facie case that he is entitled to discharge, the burden of production of

evidence shifts to the state."

State v. Price

(1997), 122 Ohio App.3d 65, 68, citing

State

v. Butcher

(1986), 27 Ohio St.3d 28, 30-31;

State v. Elliott,

Franklin App. No. 03AP-605,

2004-Ohio-2134, ¶9. The state must then prove that the speedy trial statutes

sufficiently extended the time for which a defendant could be brought to trial.

Price

68;

Elliott

at ¶9.

{¶25}

Generally, under R.C. 2945.71(A), a trial court must try a defendant

charged with a minor misdemeanor within 30 days from the summons or arrest. Here,

appellant entered a no contest plea and did not take his case to trial. Thus, to comply

with the speedy trial statutes, the trial court needed to determine appellant's guilt or

innocence on the no contest plea within 30 days after appellant's summons, unless

circumstances existed to extend time under the speedy trial statutes. See

State v.

Mintz

(1991), 74 Ohio App.3d 62, 69;

State v. Madden

, Franklin App. No. 04AP-1228,

2005-Ohio-4281, ¶28.

{¶26}

Here, the date of the summons was August 8, 2007. Speedy trial time

was initially extended from August 8, 2007 to August 21, 2007, when the mayor's court

transferred appellant's case to the trial court. See

Brecksville

at 59. Thus, the 30-day

No. 07AP-995

speedy trial time period actually began to run on August 21, 2007. See

Village of

Woodmere v. Di Fiore

, Cuyahoga App. No. 89026, 2007-Ohio-5327, ¶2.

{¶27}

By entry dated September 7, 2007, the trial court continued appellant's

trial until October 25, 2007. Appellant argues that this continuance did not toll speedy

trial time because it resulted from appellee's failure to comply with appellant's discovery

request. If the trial court grants a motion compelling the prosecution to comply with a

discovery request or if the trial court grants a continuance due to the prosecution's delay

in complying with a discovery request, the resulting continuance is charged against the

prosecution, and, thus, does not toll speedy trial time, if the prosecution willfully delayed

in complying with the discovery request and if the delay prejudiced the defense.

State

v. Wiest

, Hamilton App. No. C-030674, 2004-Ohio-2577, ¶22. If, as appellant argues,

the September 2007 continuance did not toll speedy trial time, appellant's rights under

R.C. 2945.71(A) are implicated because the time of that continuance alone, from

September 6, 2007 to October 25, 2007, exceeds the requisite 30 days. Thus, we

consider whether the September 2007 continuance tolled the speedy trial time.

{¶28}

Appellant argued at the November 1, 2007 proceeding that appellee

ignored his discovery request for operation manuals and calibration records for the

laser. Appellant argued that these documents were necessary for trial preparation.

Appellant also complained that appellee produced the laser for the first time at the

November 1, 2007 proceeding.

{¶29}

Crim.R. 16 governs discovery and applies to proceedings for traffic

violations. See Traf.R. 11(B)(2)(b). Crim.R. 16(B) states, in pertinent part:

No. 07AP-995

(B) Disclosure of evidence by the prosecuting attorney

(1) Information subject to disclosure

* * *

defendant the court shall order the prosecuting attorney to

permit the defendant to inspect and copy or photograph

books, papers, documents, photographs, tangible objects,

buildings or places, or copies or portions thereof, available to

or within the possession, custody or control of the state, and

which are material to the preparation of his defense * * *.

(Emphasis sic.)

{¶30}

While Crim.R. 16(B)(1)(c) references a court ordering a prosecuting

attorney to comply with a discovery request, the Supreme Court of Ohio has

emphasized that the discovery rules under Crim.R. 16 do not allow a party to wait until a

court orders compliance.

Lakewood v. Papadelis

(1987), 32 Ohio St.3d 1, 4. Rather,

Crim.R. 16(A) states that "[u]pon written request each party shall forthwith provide the

discovery * * * allowed." Thus, the mandate of Crim.R. 16 is clear. "Lawyers should not

expect that the routine, mandatory duty of 'forthwith' providing discovery is dependent

upon prodding by a court."

State v. Palmer

, 112 Ohio St.3d 457, 2007-Ohio-374, ¶20.

{¶31}

Appellee contends that the laser, operation manual, and calibration

records were not discoverable under Crim.R. 16. However, appellee has forfeited that

argument because it failed to utilize the proper channels to object to the discovery

request, e.g., through a Crim.R. 16(E)(1) protective order. See

State v. Mabry

Montgomery App. No. 21569, 2007-Ohio-1895, ¶31, citing

State v. Parks

(Aug. 15,

1990), Montgomery App. No. 12067 (stating that, "[p]ursuant to Crim.R. 16[E][1], either

party may move the court for a protective order restricting or limiting discovery in any

No. 07AP-995

manner the court may deem appropriate to serve the ends of justice." However, neither

party is authorized to ignore a discovery request in contravention of discovery rules "for

reasons the party alone deems sufficient").

{¶32}

Appellee also contends that "[a]ppellant could have obtained this

information at any time prior to trial through the Dublin Police Department."

State v.

Thurman

(June 28, 1995), Montgomery App. No. 14741, is in accord. In

Thurman

, a

defendant was convicted of operating a vehicle under the influence of alcohol after the

defendant took a breathalyzer test that demonstrated he was driving with a prohibitive

amount of alcohol in his system. The defendant filed a motion to compel discovery of

documents from the prosecution. At a hearing on the motion, the prosecution indicated

that some of the requested documents were available for inspection at the highway

patrol post where the breath test was administered. The trial court denied the motion to

compel, indicating that the defendant was made aware that some of the discovery was

available for inspection.

{¶33}

On appeal, the defendant argued that the trial court's decision to deny the

motion to compel contravened Crim.R. 16 and denied the defendant an opportunity to

present a complete defense. The appellate court rejected the defendant's arguments.

The appellate court noted that Crim.R. 16(B)(1)(c) applied because appellant requested

documents from appellee. Crim.R. 16(B)(1)(c) states, in pertinent part, that the

prosecuting attorney must permit the defendant to inspect or copy documents and

tangible objects, available to or within the possession, custody or control of the state,

that are material to the presentation of his defense. The appellate court found that,

even though the defense did not attempt to inspect the records, they were available for

No. 07AP-995

inspection. In short, "[t]he prosecution was not required to physically deliver the

documents to defense counsel."

Thurman

{¶34}

As in

Thurman

, the issue here is whether appellant had been given the

opportunity to inspect the laser, calibration logs, and operation manual. Like the

defendant in

Thurman

, appellant had the opportunity to inspect the items at the Dublin

Police Department, but did not avail himself of the opportunity before the September 6,

2007 trial date. At oral argument on appeal, appellant briefly indicated that he tried to

inspect the items at the police department, but that he was unsuccessful because the

police department was unresponsive. However, the record before the trial court

contains no such information, and we cannot consider it. App.R. 9;

Paulin

at 112;

Wassenaar

at ¶20; see, also,

State v. Jones

, Cuyahoga App. No. 83601, 2004-Ohio-

3868, ¶6, citing

State v. Smith

(1985), 17 Ohio St.3d 98, 101, fn. 1 (recognizing that in a

direct appeal, an appellate court can only consider matters contained in the record).

{¶35}

On these grounds, we reject appellant's contention that appellee's failure

to produce discovery precluded his speedy trial time from tolling. In so concluding, we

note that, in his reply brief, appellant raises for the first time on appeal the issue of the

prosecution's duty under Crim.R. 16(B)(1)(b) and (e) to actually furnish, respectively, a

defendant's prior criminal record and the names, addresses, and prior convictions of the

prosecution witnesses. However, this argument is not properly before us. Appellant's

merit brief only specifically mentioned appellee not complying with discovery "with

respect to the requests for information about the speed measuring device and its

calibration." Thus, we need not consider appellant's additional arguments. See

State v.

Peagler

(1996), 76 Ohio St.3d 496, 499 (recognizing an appellate court's authority

No. 07AP-995

under App.R. 12[A][2] to address or disregard issues that an appellant has not properly

briefed or assigned). Additionally, the issue of discovery violations under Crim.R.

16(B)(1)(b) and (e) is not properly before us because the record contains no evidence of

these violations. See App.R. 9;

Paulin

at 112;

Wassenaar

at ¶20;

Jones

at ¶6.

Accordingly, we limit our analysis to issues relating to the laser, calibration logs, and

operation manual.

{¶36}

Returning to the trial court's September 7, 2007 journal entry, we note that

the entry states that appellant requested the continuance. Under R.C. 2945.72(H), the

time within which a defendant must be brought to trial is extended by "[t]he period of any

continuance granted on the accused's own motion." To the extent that appellant may

argue that the journal entry does not accurately reflect what occurred when the trial

court ordered the September 2007 continuance, we note the absence of a transcript of

those proceedings. Thus, we must presume the regularity of proceedings surrounding

the trial court's decision to issue the continuance. See

Knapp v. Edwards Laboratories

(1980), 61 Ohio St.2d 197, 199.

{¶37}

State v. Willis

(Mar. 22, 2002), Wood App. No. WD-01-009, a

defendant, on appeal, argued that a trial court's journal entry inaccurately indicated that

the defense requested a continuance and, thus, the defendant argued that the trial court

improperly tolled speedy trial time during the period of the continuance. The appellate

court noted the absence of a record on the proceedings resulting in the continuance.

Presuming the regularity of the proceedings, the appellate court concluded that the trial

court properly tolled speedy trial time during the period of the continuance. See, also,

State v. Robinson

, Franklin App. No. 01AP-1005, 2002-Ohio-2090, ¶16 (holding that,

No. 07AP-995

because "no transcripts were provided for the hearings when continuances were

granted, we presume the trial court was correct in its findings that appellant waived his

right to a speedy trial for each of the continuances"). Here, as in

Willis

and

Robinson

and in accordance with

Knapp

, we must conclude that the trial court's September 2007

journal entry accurately depicts appellant's request for a continuance. Therefore,

pursuant to R.C. 2945.72(H), we conclude that appellant's request for a continuance

tolled the time between September 6, 2007 and October 25, 2007.

{¶38}

The trial court also granted a continuance from October 25, 2007 to

November 1, 2007, at appellee's request. Appellant's trial court filings suggested that

the citing officer was unavailable for the October 25, 2007 trial. The unavailability of a

prosecution's witness may be an appropriate ground for a continuance that tolls speedy

trial time under R.C. 2945.72(H) as a "period of any reasonable continuance granted

other than upon the accused's own motion." See, also,

State v. Staffin

, Ross App. No.

07CA2967, 2008-Ohio-338, ¶12. However, for a prosecution's continuance to trigger

the R.C. 2945.72(H) "reasonable continuance" tolling provision, the journal entry, or at a

minimum, the record, must specify the reasons for the continuance. See

Staffin

at ¶11.

Here, we have no record documents, transcripts or journal entries confirming why the

trial court granted the continuance for appellee. Thus, the asserted lack of availability

does not apply to toll speedy trial time on appellee's October 2007 request. See

Staffin

at ¶11.

{¶39}

Pursuant to R.C. 2945.72(E), discovery requests may also constitute

tolling events. However, a discovery request tolls the speedy trial period only for the

No. 07AP-995

time it would reasonably take the prosecution to respond to that request.

Staffin

at ¶14;

State v. Lair

, Franklin App. No. 05AP-1083, 2006-Ohio-4109, ¶19.

{¶40}

Here, appellant made a discovery request on August 11, 2007. We

attribute no tolling time to this request, however, as appellant made the request ten

days prior to the start of the statutory 30-day period.

{¶41}

Motions to dismiss may also constitute tolling events under R.C.

2945.72(E). However, a motion to dismiss tolls the speedy trial period only for the time

it takes the court to rule on the motion. See

State v. Bickerstaff

(1984), 10 Ohio St.3d

62, 67

(holding that a defendant's motion to dismiss tolls speedy trial time under R.C.

2945.72[E] for the period it takes the trial court to rule on the motion). Here, appellant

filed motions to dismiss on October 25, 2007 and November 1, 2007. The court denied

appellant's motions on November 2, 2007. However, we need not determine whether

one or both of these motions applies to toll the speedy trial time. Assuming, for

purposes of argument, that

time tolled as a result of appellant's motions to dismiss,

the court met the 30-day deadline, as follows.

{¶42}

Appellant's speedy trial time began to run on August 21, 2007, when the

Dublin Mayor's Court transferred his case to the trial court and appellant entered his no-

contest plea. Thereafter, 16 days passed to the originally scheduled September 6,

2007 trial date. Because appellant requested a continuance on September 6, speedy

trial time tolled between September 6, 2007 and October 25, 2007. Eight days passed

from October 25, 2007 to November 1, 2007, when the trial court determined appellant's

guilt. Thus, calculating speedy trial time that did not toll under R.C. 2945.72, at most, it

took the trial court 24 days to determine appellant's guilt from the no-contest plea.

No. 07AP-995

Because the trial court concluded the matter within 30 days, we hold that the trial court

did not violate appellant's speedy trial rights, and we overrule appellant's first

assignment of error.

{¶43}

In his second assignment of error, appellant argues that the trial court

erred by not dismissing his speed case for appellee's discovery violations. Because we

have found no discovery violations, we overrule appellant's second assignment of error.

{¶44}

In his third assignment of error, appellant argues that we must reverse his

conviction because the trial court had an ex parte conversation with the officer who

issued the speeding citation against appellant. We disagree.

{¶45}

Again, to support his third assignment of error, appellant has supplied an

App.R. 9(C) statement, which states:

Prior to the commencement of the trial set for November 1,

2007, the citing police officer gave the trial judge an off-

record demonstration of the speed-reading device alleged to

have been used with respect to this case.

Appellant asserts this is contrary to his rights and unduly

prejudiced the court.

{¶46}

Appellant concedes that the plain error standard applies because he did

not object to the ex parte conversation. According to the plain error doctrine,

enunciated in Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court." "By its very terms,

the rule places three limitations on a reviewing court's decision to correct an error

despite the absence of a timely objection at trial."

State v. Barnes

(2002), 94 Ohio St.3d

21, 27. Under the plain error standard:

No. 07AP-995

* * * First, there must be an error,

i.e.,

a deviation from a

legal rule. * * *

United States v. Olano

(1993), 507 U.S. 725,

732 * * * (interpreting Crim.R. 52[B]'s identical federal

counterpart, Fed.R.Crim.P. 52[b]). Second, the error must

be plain. To be "plain" within the meaning of Crim.R. 52(B),

an error must be an "obvious" defect in the trial proceedings.

* * * [S]ee, also,

Olano,

507 U.S. at 734 * * * (a plain error

under Fed.R.Crim.P. 52[b] is " 'clear' or, equivalently,

'obvious' " under current law). Third, the error must have

affected "substantial rights." We have interpreted this aspect

of the rule to mean that the trial court's error must have

affected the outcome of the trial. * * *

Id.

{¶47}

The Supreme Court has also stated that, even if a forfeited error satisfies

the three prongs of the plain error doctrine, "Crim.R. 52(B) does not demand that an

appellate court correct it. Crim.R. 52(B) states only that a reviewing court 'may' notice

plain forfeited errors; a court is not obliged to correct them." Id. See, also,

State v.

Martin,

103 Ohio St.3d 385, 2004-Ohio-5471, ¶52 (Moyer, C.J., concurring) (recognizing

that, "[e]ven if the defendant establishes that plain error affected his substantial rights,

the appellate court need not necessarily reverse the judgment of the trial court"). Thus,

the Supreme Court has "admonish[ed] courts to notice plain error 'with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.' "

Barnes

at 27, quoting

State v. Long

(1978), 53 Ohio St.2d 91, paragraph

three of the syllabus. Reversing on plain error without considering such exceptional

circumstances " 'encourages litigants to abuse the judicial process and bestirs the

public to ridicule it.' " See

Johnson v. United States

(1997), 520 U.S. 461, 470, quoting

R. Traynor, The Riddle of Harmless Error 50 (1970).

No. 07AP-995

{¶48}

State v. Hamm

(Oct. 8, 1992), Franklin App. No. 92AP-216, a

prosecutor, outside the presence of the defendant and his counsel, presented the trial

court with evidence for its review. The evidence was not admitted at trial. We held that

"[w]here the court privately reviews evidence material to a pending case * * * outside the

presence of both the accused and his counsel, prejudice will be presumed especially

where, as here, such evidence is not presented at trial." We then held that, under the

specific facts in

Hamm

, because neither the evidence nor the ex parte communication

was available for review, the state had failed to counter the prima facie showing of

prejudice that attaches to the trial court's improper conduct. Id. Thus, we reversed the

defendant's conviction, noting that "[t]his court is required to reverse criminal or civil

judgments where the trial court's conduct or remarks created the appearance of

probable bias or prejudice." Id.

{¶49}

It is unclear from

Hamm

whether if, unlike here, the defendant objected to

the trial court's ex parte conduct. Again, here, appellant's failure to object triggered the

plain error doctrine. Similarly, in

Herring v. Ruhl

(Mar. 13, 1992), Shelby App. No. 17-

91-16, the appellate court concluded that the plain error doctrine applied to a judge's ex

parte communication with the jury during jury deliberations. The appellate court stated:

Because appellants were informed of the ex parte

communication during the jury's deliberations and failed to

object or otherwise call such error to the trial court's attention

by timely objection, or other appropriate action, we do not

find exceptional circumstances nor a manifest miscarriage of

justice that warrants the invocation of the plain error

doctrine. * * *

(Emphasis omitted.) Id.

No. 07AP-995

{¶50}

First, from appellant's 9(C) statement, we only know that some kind of

informal demonstration occurred. We do not know how long this demonstration lasted

or the substance of any communication that accompanied it. While we do not condone

the trial court's actions, we have no reason to believe that the court and the officer

engaged in any discussion about appellant or his case, or that the demonstration biased

the court for or against appellant. In addition, the ex parte communication between the

trial court and the citing officer did not affect the outcome of the speed case because,

pursuant to Crim.R. 11(B)(2), when appellant pleaded no contest, he admitted to the

truth of the facts alleged in the complaint, i.e., that the laser measured his speed at 70

m.p.h. in a 55 m.p.h. zone. For these reasons, we find no plain error from the ex parte

communication, and we overrule appellant's third assignment of error.

{¶51}

In summary, we overrule appellant's first, second, and third assignments

of error. We also grant appellant's App.R. 9(E) motion, subject to the noted limitation.

We deny in part and grant in part appellant's motion to strike items from the appendix to

appellee's brief. And we deem moot in part, and we deny in part, appellee's motion to

supplement the record. Having overruled appellant's three assignments of error, we

affirm the judgment of the Franklin County Municipal Court.

Judgment affirmed.

BRYANT and KLATT, JJ., concur.