author: DONOVAN, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Christopher RUSSELL, Defendant-Appellant
    NO. 2017-CA-56
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered on February 9, 2018
    ANDREW PICKERING, Atty. Reg. No. 68770, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee
    CHRISTOPHER RUSSELL, Inmate No. 646718, 670 Marion Williamsport Road, P.O. Box 1812, Marion, Ohio 43301, Defendant-Appellant, Pro se
   DONOVAN, J.

{¶ 1} This matter is before the Court on the June 9, 2017 pro se Notice of Appeal of Christopher Russell. Russell appeals from the May 17, 2017 "Entry" issued by the Clark County Court of Common Pleas denying the release of personal property removed from Russell's home by investigators of the Clark County Sheriff's Office. The trial court determined that the items were "identified and admitted as exhibits during defendant's trial and are now part of the trial record * * * and not returnable." We hereby affirm the judgment of the trial court.

{¶ 2} Russell was convicted, after a jury trial, of rape, gross sexual imposition, pandering obscenity involving a minor, and sexual battery. This Court affirmed his conviction and 75-year sentence on September 21, 2012. State v. Russell , 2d Dist. Clark No. 2011-CA-10, 2012-Ohio-4316, 2012 WL 4328657.

{¶ 3} Russell and his family members have filed various motions regarding the personal property that was seized from his home. For example, Russell's wife, Armelita Russell, filed a pro se "Motion for Return of Personal Property" on January 23, 2013. The State responded on January 24, 2013, asserting that the "majority of the property seized as part of this case (computers, computer components, etc.), contained child pornography and other evidence of criminal acts." The State further asserted that Armelita "fails to specifically state what property she seeks to recover that is not evidence or contraband."

{¶ 4} On June 18, 2014, Russell himself filed a pro se "Motion for Return of Property," seeking "all property ceased [sic] during the execution of the warrant on October 5, 2009 at * * * Weinland, New Carlisle, Ohio during the initiation of the action beginning this case." The State responded on July 1, 2014. On July 7, 2014, the trial court issued an "Entry" ordering the State to provide, no later than July 17, 2014, a copy of the property receipts listing the items in its possession taken from Russell's residence on October 5, 2009. On July 24, 2014, Russell filed a response to the "Entry," asserting that no property receipts were received.

{¶ 5} On August 5, 2014, Russell filed a pro se "MOTION Continuing Effort of Return of Property," which lists multiple "articles" of property. The court scheduled a hearing on February 12, 2015 regarding the property. On April 14, 2015, the court issued an "Entry" that provides in part as follows:

Following a hearing and subsequent information provided by the Clark County prosecutor's office indicating that the property stone [sic] in possession of the Clark County Sheriff's Department does not contain any contraband material, the court finds that the defendant's motion is well taken.
IT IS ORDERED that the personal property listed in the defendant's motion and currently in the possession of the Clark County Sheriff's Department be released to the defendant or his authorized designee.

{¶ 6} On January 20, 2017, Russell's mother, Ellen Russell, filed correspondence dated December 11, 2016 which provides: "This is concerning the notarized letter dated February 17, 2016 and the list that is attached to it. The letter is still true and correct; the articles in the mentioned letter have not been returned as ordered on February 12, 2015." Ellen's affidavit provides:

* * *
Of Articles 1 through 20, numbers 11, 12, and 20 were returned to me, Ellen Russell, on February 12, 2015, from the Clark Co[.] Courthouse[.] Remaining items kept for further examination at prosecutor's request[.]
On May 7, 2015 remaining articles, except 6, 8, 10 and 19, were returned to me, Ellen Russell, from the evidence room of Clark Co Sheriff's office[.] A list of articles is attached to this statement with articles 6, 8, 10, and 19 circled and initialed. The whereabouts of these articles is unknown to me, Ellen Russell.

{¶ 7} The attached list of 20 articles has the following items circled and initialed "ER.":

Article 6: Kodak CW330 Easyshare Digital Camera, SN KCGFU54200209 Item not shown as instrumentality of a count of a charge
* * *
Article 8: Dell B-130 Inspiron Laptop PC, SN: 00043-705-517-037 Item not shown as instrumentality of a count of charge. First 0 in SN may be a 6.
* * *
Article 10: Homebuilt PC with Mercury Eros Sticker. Item not shown as instrumentality of a count of charge.
* * *
Article 19: Box of thee [sic] Trojan Condoms and Rite Aid Lubricant. Item not shown as instrumentality of a count of charge.

{¶ 8} The trial court's May 17, 2017 "Entry" provides as follows:

This matter is before the Court on the pro se motion of the defendant, the defendant's wife, Armelita Russell, and the defendant's mother, Ellen Russell for the return of personal property removed from the defendant's residence by investigators of the Clark County Sheriff's Department. The prosecuting attorney originally filed a response objecting to the return of property used as evidence in the prosecution of the case.
Subsequently, it was determined that a number of items had been seized as part of the investigation which were not used as evidence during the trial and which were not in themselves contraband. An entry was filed ordering those items to be returned and they were turned over to the defendant's family.
The defendant's mother is now demanding the return of five specific items which she alleges should have been returned pursuant to the order filed on February 12, 2015, but were not returned. She seeks the return of the following:
1) Kodak digital camera
2) Dell B-130 Inspiron Laptop computer
3) Homebuilt PC with Mercury Eros Sticker
4) Box of Trojan condoms
5) Rite Aid Lubricant
Upon review of the court's record, the Court finds that each of these items were identified and admitted as exhibits during the defendant's trial and are now part of the trial record. As such, they are now part of the public record of this case and not returnable.
Therefore, the Court finds the motion for the return of these items is not well taken and the same is DENIED.

{¶ 9} Russell asserts two assignment of error herein, which we will consider together. They are as follows:

THE CLARK COUNTY COURT OF COMMON PLEAS HAD NO SUBJECT MATTER JURISDICTION OVER THE ITEM FILED WHICH BECAME THE RULING OF 17 MAY 2017 CONCERNING THE PROPERTY ISSUES OF 2009-CR-0873.
And,
THE CLARK COUNTY COURT OF COMMON PLEAS IS IGNORING THE SPIRIT AND LETTER OF THE LAW CONCERNING CRIMINAL RULE 26.

{¶ 10} Russell presents the following "Issues":

Issue 1: When a court lacks jurisdiction over an issue, it has no authority to make a ruling in that issue. A ruling derived from an affidavit mistakenly filed outside its attached case and construed as a motion must be subsequently considered void. Issue is core to Error 1.
Issue 2: Items taken in the course of an investigation should be returned to the owner or party with interest in the property at the earliest convenience. Any record of the items used as exhibits not forfeited as an instrumentality should also be returned with photographs substituted as proof of the existence of the items. Only items relevant to an element of the offense will be retained either as physical property or as a photographic record. Issue is core to Error 2.

{¶ 11} Russell asserts as follows:

In the course of filing the appellate brief which became State v. Russell , 2d Dist. Clark No. 16-CA-48, 2017-Ohio-7198 [95 N.E.3d 1142], documents were filed requesting a Writ of Mandamus concerning the property in question in this issue. A necessary affidavit to support this issue was delivered to the court separately to be filed with the motion requesting the writ. Due to an error with the filing, the motion requesting the writ was filed with the appellate brief and was passed along with that brief (16-CA-48 ¶ 18). The affidavit, delivered by Ellen Russell, was misfiled with 2009-CR-0873 and construed as a motion to return property filed by an individual with interest in the property. The Request for Writ of Mandamus related to that affidavit is still pending as 17-CA-0052.
Mr. Russell simultaneously filed a request for a Writ of Prohibition (2d Dist. Clark No. 17-CA-0057, denied) and a protective Notice of Appeal which became this case.

{¶ 12} Russell asserts that "the property used as an exhibit are not supportive of any element of a charged offense and therefore should be returned with photographs retained as exhibits to show the item's existence." Russell asserts as follows:

Criminal Rule 26 stipulates that physical property under the control of the Prosecuting Attorney should be returned to the owner at the earliest possible time. This includes the time prior to trial. Property used and kept must meet the relevancy requirements of the Ohio Evidence Rules. All the items still in the possession of the State were used simply as a means of proving the existence of the items. No where [sic] does the State link the property itself directly to a charged act and they in no way raise the chance of a charged act being committed from possible to probable; a threshold necessity for any evidence to be admissible.
The Prosecutor, via a[n] OBCII computer specialist, introduced items from the "unallocated space" and "browser cache" of the tower computer and laptop. This space consists of items that were deleted or automatically moved to the computer via visits to a website. At no time were their dates of use or evidence of attempts to access this data introduced as evidence (in fact the deleted items contained no date information whatsoever.) These items therefore cannot be said to be knowingly or actively possessed by the owner of the computer and therefore are inadmissible as evidence ( United States v. Flyer , 663 [633] F.3d 911 [ (9th Cir. 2011) ], United States v. Dobbs , 629 F.3d 1199 [ (10th Cir. 2011) ] ).
The digital camera introduced as evidence was not shown to have produced any obscene images (in fact no obscene images were introduced as evidence), therefore it was not relevant to any charged offense and only proved to show that the defendant had the ability to create digital images (though the camera itself belonged to his spouse, a fact not mentioned in the record).
The box of condoms and lubricant were never fingerprinted to show who may have handled them and no effort to show they existed at the time of a charged offense was made (contrary to any order by the bench to only introduce evidence relevant to the time charged).
As these items were only introduced to demonstrate the existence of items mentioned during testimony, the same logic applied to the defendant's house would have permitted the State to seize that house as evidence and send the jury on a tour of the house to show its existence (and then never let the defendant re-enter). Counsel for the State did not do this, instead showing the jury photographs of the house. In any case, the existence of the house in general (like the other property) was not supportive of any actual act and therefore did not contribute any weight or sufficiency of evidence to the State's case.

{¶ 13} Russell asserts that he "has been attempting to have property taken from his residence returned now for over five years." He asserts that the "original reason for the non-return of property upon Mr. Russell's request was the definite claim of contraband. This claim was never demonstrated to be factual and all subsequent rulings by the court are absent any statements affirming this claim." According to Russell, "the claim that Mr. Russell's property contained contraband constitutes perjury as it was likely a deliberate lie." He argues that his property "has never been subject to a forfeiture hearing. Therefore they have been retained by the State without due process." Russell asserts that any "member of the Bar participating in the effort to retain the property is complicit with this deprivation of civil right." Finally, Russell argues that the "above questions of ethics demonstrate clear evidence which question the fitness of members of the Clark County Prosecutor's Office to function as legal professionals."

{¶ 14} Regarding Russell's first assignment of error, the State responds that Russell "claims that the letter/affidavit was not intended to be filed in the criminal case, but does not show in the record how he can determine the intent of his mother, who actually filed the letter/affidavit." According to the State, the "letter/affidavit was filed in a criminal case, over which the trial court possessed subject matter jurisdiction. The trial court's ruling was not 'void.' "

{¶ 15} In response to Russell's second assignment of error, the State asserts that Crim.R. 26 does not apply. According to the State, the "five items in question are not under the control of the Clark County Prosecuting Attorney-they were admitted as exhibits at trial, and are now under the control of the trial court. Moreover, the use of photographs is conditioned on being under 'appropriate' circumstances, and only 'by court order.' " The state argues that there "is no court order regarding photographs of the five items being admitted as exhibits in lieu of the actual items."

{¶ 16} The State further asserts that a "trial court has the power to decide how to construe 'no-name' motions," and the trial court "properly construed the letter/affidavit as a motion for the return of property." The State asserts that the "five items have been admitted into evidence, and are no longer under the control of the Clark County Prosecuting Attorney or any other law enforcement agency. This difference makes cases like State v. Bolton , 2d Dist., 2017-Ohio-7263, 97 N.E.3d 37, inapposite." According to the State, "[f]orfeiture is not the issue; rather, the real issue is the power of a trial court to control exhibits admitted into evidence."

{¶ 17} The State directs our attention to Sup.R. 26(F). The State asserts that given "the continued efforts by Defendant to re-litigate his case * * * release of the five items would be premature. Thus, the trial court's decision not to release the five items from the custody of the court/the clerk of court was not an abuse of discretion."

{¶ 18} Attached to the State's brief is a copy of the trial court's decision of May 17, 2017. Also attached is a Decision and Final Judgment Entry issued July 16, 2015, by this Court that provides as follows:

Relator, Christopher Russell, has filed a petition for a writ of mandamus and/or procedendo. In the first paragraph of his petition, Russell asks this court to compel respondent, Judge Richard J. O'Neill of the Clark County Common Pleas Court, to "resolve the issue of property pertaining to Case 2009-CR-0873 or direct [Respondent] to rule upon the same." In the final paragraph, Russell asks the court to grant his petition and "issue a Writ of Mandamus and/or Procendo [sic] instructing the Honorable Richard J. O'Neill to immediately release the property and contact the individuals listed in the attached motions concerning the availability of the property for retrieval."

{¶ 19} This Court noted that the trial court held the February 12, 2015 hearing regarding Russell's property and quoted from the April 14, 2015 "Entry" ordering the release of the property. This Court then determined as follows:

On May 7, 2015, this court ordered Russell to show cause why his petition for a writ of mandamus and/or procedendo should not be dismissed as moot, where, to the extent mandamus relief was available to Russell to compel respondent to rule upon the pending motion(s) for the return of Russell's personal property, it appeared respondent had provided the relief sought.
Russell filed a response to the court's order to show cause on May 22, 2015. There, he argues that the April 14, 2015 entry "appears incomplete as to the disposition of four items of property which were not returned." Russell states that the prosecution argued during the February hearing that these four items contained contraband and should not be returned. According to Russell, however, respondent's April 14, 2015 Entry does not address the prosecution's argument but "indicates on its face that all property should be returned." Ultimately, Russell argues that respondent has not conducted a lawful forfeiture hearing related to any property taken in relation to case no. 2009-CR-0873.
Upon consideration, this court does not find Russell's response well-taken. It is well-established that mandamus or procedendo may be used to compel an inferior tribunal to exercise its judgment or to proceed to the discharge of its function, but they cannot control judicial discretion. State ex rel. Ney v. Niehaus , 33 Ohio St.3d 118, 119, 515 N.E.2d 914 (1987) ; R.C. 2731.03. Here, respondent has ruled upon the pending motion(s) for the return of Russell's personal property, thereby exercising his judgment. If Russell seeks to challenge respondent's ruling, the proper vehicle is an appeal. Neither mandamus nor procedendo will issue when the relator has an adequate legal remedy. State ex rel. Mace v. Lanzo , 7th Dist. Mahoning No. 09 MA 153, 2010-Ohio-611 [2010 WL 598648], ¶ 6.
Russell's petition for a writ of mandamus and/or procedendo is DENIED, and this matter is DISMISSED.

{¶ 20} In Reply to the State's brief, Russell asserts that he "has requested Ellen Russell, the individual who submitted the affidavit the court has construed as a request for property, to submit an additional affidavit to the court clarifying her intentions. Therefore, this should satisfy the question of law as to whether the Common Pleas court had initial subject matter jurisdiction."

{¶ 21} Russell further asserts as follows:

As to the second assignment of error, the State may be technically correct that once an item is an exhibit, Crim.R. 26 may not apply. However, Crim.R. 26 is to be applied before the items become exhibits. Consideration under Crim.R. 26 is to be done before trial and images taken of any item who's [sic] existence is relevant to the case but not an instrumentality of any element of a charged offense. As to the point of [there] being no court order to have the items photographed, there was no need as the Clark County Sheriff photographed the items and these same photographs were submitted as evidence * * *. The State has not detailed why the physical items are still needed as evidence as the only issues they can argue in further litigation of the case on appeal is what is in the record at the time. * * *

{¶ 22} Russell asserts as follows:

The State cannot use the discretion inherent to Criminal Rule 26 to avoid addressing the issues of relevance inherent to the rule. The tower computer, laptop computer, the digital camera, the condoms and lubricant were never linked to an element of any offense and were only used to demonstrate their existence. Under the spirit-of-the-law doctrine, Sup.R. 26(2) would indicate holding unnecessary physical property while having pictures in the record would be contrary to that spirit as the goal is "efficiency" and the "[simplification of] the maintenance, preservation, and destruction of court records."
The purpose of Appellant's effort to have this property returned has been to have it independently examined for the information requested in 17-CA-0052 and the only logical reason for the State not to return the property is to avoid the discovery that the information retrieved from the tower and laptop computer was outside the boundaries of the temporal limits set by the Court of Common Pleas for the admissibility of evidence. The tower was built after the last alleged incident and the laptop had drive cleaning software installed and run after the last alleged incident. Additionally, as the required image for the pandering charge was never found, the camera cannot be said to have produced any offensive images. Lastly, the condoms and lubricant were never fingerprinted and, as the product was still either in a wrapper or the tube, could not have been used in any act of any charged offense.

{¶ 23} Russell asserts that the State's initial response to his effort to reclaim his property by claiming that the items were contraband "has proven incorrect." He argues that "the retention of the property serves no purpose as far as any continued investigation and prevents the presentation of potentially exculpatory information. The State is not harmed by the release of this property, yet the Appellant is."

{¶ 24} On November 9, 2017, correspondence from Ellen Russell addressed to this Court was filed. It provides:

To the 2nd Dist. Court of appeals concerning case number 17-CA-0056; the item I filed was an attachment to a motion by Christopher M[.] Russell intended for the appellate court and not an attempt by me to obtain the property. The item was a supportive affidavit and at no time have I filed to obtain property from the Court of Common Pleas.

{¶ 25} We note that on May 26, 2017, Russell filed in this Court a "Request for Writ of Mandamus," asserting that the property at issue "was ordered returned in the Judgment Entry of April 14."

{¶ 26} We initially conclude that the trial court had subject matter jurisdiction over Russell's case. R.C. 2931.03. Further, "[c]ourts may recast irregular motions into whatever category necessary to identify and establish the criteria by which the motion should be judged. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, citing State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131." State v. Schlee , 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. We further find that the trial court properly categorized Ellen Russell's filing as a demand for the return of the five items and ruled upon it. Ellen's November 9, 2017 filing is of no effect. Russell's first assignment of error is accordingly overruled.

{¶ 27} Regarding Russell's second assignment of error, Crim.R. 26, upon which Russell relies, provides as follows:

Physical property, other than contraband, as defined by statute, under the control of a Prosecuting Attorney for use as evidence in a hearing or trial should be returned to the owner at the earliest possible time. To facilitate the early return of such property, where appropriate, and by court order, photographs, as defined in Evid. R. 1001(2), may be taken of the property and introduced as evidence in the hearing or trial. * * *

{¶ 28} We agree with the State that Crim.R. 26 does not apply to the items identified in Ellen Russell's motion (as Russell concedes in his reply brief). There was never a court order to facilitate the early return of the property by means of photographs to be used at trial. Trial herein occurred in January of 2011, seven years ago, and the items are no longer in the control of the prosecutor.

{¶ 29} It is well settled that "[t]he admission or exclusion of evidence rests soundly within the trial court's discretion." State v. Black , 181 Ohio App.3d 821, 2009-Ohio-1629, 911 N.E.2d 309, ¶ 13. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid. R. 401. The record reflects that the box of condoms was admitted as State's Exhibit 16-A; the lubricant was admitted as State's Exhibit 16-B; the laptop computer was admitted as State's Exhibit 21-A; the Mercury Eros computer tower was admitted as State's Exhibit 22; and the Kodak camera was admitted at State's Exhibit 30-A. The court's order of April 14, 2015 clearly applied to the property that was not contraband and that was still in the possession of the sheriff's department. Russell is not entitled to the return of the exhibits used to support his convictions. Further, it "is well settled that 'any issue that could have been raised on direct appeal and was not is res judicata and not subject to review in subsequent proceedings.' * * *." State v. Woullard , 2d Dist. Montgomery No. 27216, 2017-Ohio-2614, 2017 WL 1592719, ¶ 12. Finally, we note that to the extent that Russell may be suggesting that the computer tower and laptop computer were inadmissible, the record reflects that Russell did not object to their admission, and any such argument is waived. For the foregoing reasons, Russell's second assignment of error is overruled, and the judgment of the trial court is affirmed.

WELBAUM, P.J. and FROELICH, J., concur.


source: Caselaw Access Project

author: MAYLE, P.J.

license: Public Domain

text:
    STATE of Ohio, Appellee v. Marcus L. CLARK, Sr., Appellant
    No. L-17-1044
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: February 9, 2018
    Julia R. Bates, Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorneys, for appellee.
    Laurel A. Kendall, for appellant.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} Defendant-Appellant, Marcus Clark Sr., appeals the February 21, 2017 judgment of the Lucas County Court of Common Pleas sentencing him for a conviction of menacing by stalking. For the following reasons, we affirm.

I. Background and Facts

{¶ 2} On November 8, 2016, Clark was indicted on one count of menacing by stalking, a violation of R.C. 2903.211(A)(1). The indictment included a penalty enhancement under R.C. 2903.211(B)(2)(e) that raised the menacing by stalking charge from a first-degree misdemeanor to a fourth-degree felony and required the state to prove that "[t]he offender has a history of violence toward the victim or any other person or a history of other violent acts toward the victim or any other person." During discovery, the state told Clark's attorney that it intended to rely on two of Clark's prior convictions to prove the history-of-violence element. The state later learned that the prior convictions did not involve B.P., the victim in this case. At a pretrial on January 10, 2017, the state told the defense that the prior convictions involved different victims and that it would not use the convictions to prove the history-of-violence element. Instead, the state intended to rely only on B.P.'s testimony to show that Clark had a history of violence with B.P.

{¶ 3} On January 17, 2017, Clark filed three motions: a request for a bill of particulars, a "motion for notice of intent to use evidence," and a discovery demand. All three motions sought information from the state regarding its ability to prove the history-of-violence element. Clark claimed that he had not been provided with any discovery relating to B.P.'s allegations of past violence. In response, the state asked Detective Mary Jo Jaggers of the Toledo Police Department, who was the detective assigned to the case, to conduct a follow up interview with B.P. Detective Jaggers interviewed B.P. on January 19, 2017, and filed her supplemental report memorializing the interview on January 20, 2017. The state provided the report to Clark on January 23, 2017.

{¶ 4} The court held another pretrial on January 24, 2017, at which Clark moved to dismiss the indictment because of the state's Crim.R. 16 violations, or alternatively, for exclusion of B.P.'s testimony regarding Clark's history of violence with her. The state moved for a continuance of the trial scheduled to begin later that day, which the court granted over Clark's objection. The court also ordered the parties to brief the dismissal issue by January 26, 2017.

{¶ 5} On January 25, 2017, the state filed its responses to Clark's January 17 motions, including a notice of intent to use evidence that outlined B.P.'s anticipated trial testimony. The same day, Clark filed a motion to dismiss that expanded upon the arguments he made at the January 24 pretrial. He argued that the state's failure to provide him with evidence to support the history-of-violence element until the day before trial violated Crim.R. 16 and that the appropriate sanction was either dismissal of the indictment, dismissal of the history-of-violence element of the indictment, or exclusion of B.P.'s testimony regarding the history of violence between her and Clark.

{¶ 6} The state responded on January 26, 2017, arguing that dismissal was not an appropriate sanction because any Crim.R. 16 violation it might have committed was not willful, Clark suffered only minor prejudice, and a continuance of the trial was the least severe remedy for any discovery violation.

{¶ 7} Also on January 26, the court held a hearing on the motion to dismiss. At the hearing, the court tentatively set a new trial date for January 31, 2017. The court did not rule on Clark's January 25 motion, prompting Clark to file a second motion to dismiss on January 30, 2017. The January 30 motion alleged additional discovery violations by the state. Clark again sought sanctions in the form of dismissal of the indictment or exclusion of B.P.'s testimony regarding the history of violence between her and Clark.

{¶ 8} The court held another hearing on January 30 (the day before the scheduled jury trial) at which it addressed the new motion to dismiss. The court took the issues of dismissal and sanctions under advisement and confirmed the January 31 trial date.

{¶ 9} Prior to trial on January 31, 2017, the court ruled that the state's conduct was not sufficient to justify dismissing the indictment. After confirming with defense counsel that he was ready to proceed with trial, the court decided not to issue any sanctions against the state. The court also noted its continuance of the January 24 trial date to January 31, which provided the defense with additional time to prepare to defend against the evidence in the January 20 police report and therefore remedied any prejudice Clark might have suffered.

{¶ 10} At trial, B.P. was the state's first witness. She testified that she and Clark had lived together and had an eight-year relationship that she ended in August 2016. She described the relationship as "very violent, abusive. A lot of putdowns, a lot of mental abuse." This included death threats, beatings, and abuse of B.P.'s dogs. B.P. said that she stayed in her relationship with Clark for more than eight years because she was scared of him and afraid that he would harm her if she left. Although B.P. testified that there were numerous incidents of abuse that happened during her relationship with Clark, she addressed only four of them in depth.

{¶ 11} The first incident happened approximately one month into her relationship with Clark. She said that he strangled her, which left a scar on her neck. B.P. did not call the police or seek medical care because of this incident because she was afraid and did not know what to do.

{¶ 12} The next incident of violence that she detailed was a beating in July 2007, during which Clark gave her a black eye. She also said that she received so many black eyes during her relationship with Clark that her left eye looks permanently blackened. Once again, B.P. did not report the incident to police or seek medical attention.

{¶ 13} The third incident happened in April 2009. B.P. testified that Clark "stomped my face out" and cut her hand and leg with a knife. B.P.'s injuries were so severe that Clark permitted her to go to the hospital for treatment. B.P. claimed that Clark told her to report that she was injured when a group of men attacked her as she was walking to the store, which she reported to hospital staff. When police officers came to the hospital to investigate, B.P. told them the same story. She testified that there was no follow-up investigation or prosecution based on her police report. She claimed that she did not tell the hospital staff or the police what really happened because Clark had threatened to kill her before and she was afraid of him.

{¶ 14} The final incident B.P. detailed happened later in 2009, shortly after B.P.'s mother died. She testified that Clark caused extensive damage to their house one night while he was angry. This included destroying some flowers that had belonged to B.P.'s mother and throwing her mother's picture in the dumpster.

{¶ 15} After B.P. left Clark in August 2016, she testified that he "continuously" made unwanted calls to her work cellphone and sent her unwanted text messages, to the point that she obtained a civil protection order ("CPO") against him to prevent him from contacting her. She also blocked his cellphone number so that she would not receive any phone calls or text messages sent from his number. She took the threats in the text messages very seriously and was "in hiding for months." Clark repeatedly threatened to kill B.P., and she believed that he would follow through on his threats.

{¶ 16} In the afternoon of October 17, 2016, B.P.'s tires were slashed while her car was parked at her office. Her car was the only one in the parking lot that was vandalized. There were no witnesses or video that documented who slashed B.P.'s tires, but B.P. believed that Clark did it in retaliation for her blocking his cellphone number earlier that day. B.P. called the Sylvania Township Police Department ("STPD") to report the damage. Officers responded and took a report, but no charges were filed. B.P. testified that she told police when they responded that she was afraid of Clark and that he was going to get more violent as a result of her involving police.

{¶ 17} Beginning the evening of October 17 and continuing through October 31, 2016, B.P. received multiple text messages on her work cellphone from phone numbers that she did not recognize. Despite the messages coming from unknown numbers, B.P. attributed them to Clark because she knew his speech patterns and he had made similar threats to her before. The messages B.P. received on October 17 included the statements "You are so dead bitch" and "The police can't help you hoe? ?! [sic]." There was also a message telling B.P. not to go to her office because "you are gonna [sic] have it bad * * *" and a message that B.P. interpreted as threatening her daughter, grandchildren, and ex-husband. B.P. reported the threatening messages to the police around 11:00 p.m. that night. She said that she never received threatening text messages before she left Clark and has not received any threatening messages since the criminal case against Clark was filed.

{¶ 18} Later, on a Sunday, B.P. received more threatening text messages from the unknown phone number. The messages called her a "Dead bitch," accused her of cheating, and threatened death to B.P. and her daughter.

{¶ 19} The next morning, on Monday, B.P. received messages from the same unknown number that said "Thanks for not being there you will get found [sic]" and "We goin together you my bitch mine [sic]." She testified that Clark came to her office that day, but someone told him that B.P. was not there. She believed that the second message meant that Clark was going to kill her and himself. B.P. said she was "petrified" when she received the messages because Clark "was off in crazy land again."

{¶ 20} On Monday evening, B.P. received six messages from a second phone number that she did not recognize. Among other things, the messages said "Call marcus or dont go to work tomorrow. u cheating on me. [sic];" "Im already dead im not going alone [sic];" and "U wont call so I guess ill c u tomorrow [sic]." She interpreted the messages to mean that Clark intended to look for her if she did not call him and that he intended to kill her and himself the next day.

{¶ 21} The final message that B.P. testified about came from a third phone number that B.P. did not recognize. It said, "Police can't help you bitch. Don't go on Reynolds. we both dead soon. End of story. In dead now both of us dead. this is sam bitch 8to5 [sic]." B.P. thought that Clark was threatening to come to her office, which is on Reynolds Road, to kill her and himself. B.P. testified that Clark knew that her work schedule was 8:00 a.m. to 5:00 p.m. She also said that she knows one person named Sam-her son-in-law-but she did not believe that the message came from him because he was respectful to her and had never spoken to her using threatening language.

{¶ 22} B.P. testified that the text messages made her fear for her life. She believed that Clark was going to cause her physical harm. As a result of the abuse inflicted by Clark, B.P. now attends personal and group counseling sessions. She still feared Clark at the time of trial and believed that he would kill her if he ever had the opportunity.

{¶ 23} On cross-examination, B.P. testified that, prior to the day her tires were slashed, she never called 911, filed a police report or pressed charges against Clark, or sought help from a domestic violence agency or shelter. She said that she reported the text messages because she "had the strength" and thought that Clark would kill her for leaving him. She admitted that Clark did not commit any acts of physical violence against her from October 17 to 31. She also admitted that she left Clark twice, but returned to the relationship because she was not strong enough and did not have the support she needed to stay out of the relationship. She confirmed that she lied to hospital staff and police regarding the source of her injuries in April 2009 even though she was away from Clark and in the safety of the hospital at the time.

{¶ 24} Regarding the incident where her tires were slashed, B.P. testified that she wanted to file charges against Clark, but the STPD did not pursue the case because the police were investigating the text messages and B.P. had already obtained a CPO against Clark.

{¶ 25} Defense counsel also asked B.P. about the text messages that she received from unfamiliar phone numbers. She testified that she reported the messages to police because of their content and because she thought that 22 messages sent over 15 days was an excessive amount of contact. B.P. again said that she believed that Clark sent the messages based on her prior communication with him. She also said that Clark occasionally referred to himself in the third person while speaking, so B.P. did not find it odd that he would refer to himself as "Marcus" in one of the text messages.

{¶ 26} On cross, B.P. said that she showed Detective Jaggers the text messages that were on her phone during Detective Jaggers's investigation. At the detective's request, B.P. said that she took screenshots of all of the messages she received from October 17 to 31 and emailed them to Detective Jaggers. She said that Detective Jaggers did not, however, ask her to have her phone forensically examined by the TPD. B.P. clarified on redirect that Detective Jaggers looked at the messages on B.P.'s phone and made the screenshots of the messages; B.P. just emailed the screenshots to Detective Jaggers.

{¶ 27} Detective Jaggers was the state's other witness. She testified that she is a domestic violence detective with the TPD. She first received a report about the text messages on October 17. The report noted that there was a history of violence between the parties and that B.P. started receiving the messages after she broke up with Clark. Detective Jaggers did not initially interview B.P. After both the TPD and the STPD received more reports from B.P. about threatening text messages, Detective Jaggers conducted an investigation. She interviewed B.P. on October 28, 2016, during which B.P. was very emotional. B.P. told Detective Jaggers about the incidents of violence that B.P. testified to at trial, but Detective Jaggers did not include a description of the events in her report. B.P. also showed Detective Jaggers the text messages on her work phone. Detective Jaggers took screenshots of the messages to preserve them and had B.P. email the screenshots to her; the screenshots that arrived in Detective Jaggers's email (and were admitted into evidence at the trial) were the same screenshots that Detective Jaggers made on B.P.'s phone. Detective Jaggers did not ask B.P. to submit the phone for forensic testing.

{¶ 28} Detective Jaggers testified that TPD uses a method of retrieving data from cellphones that she referred to as a "phone dump." The process requires the officer conducting the retrieval to download all of the data on the phone; the officer cannot download only the data that might have evidentiary value. TPD does not have a policy about retrieving cellphone data from victims. Rather, a phone dump is conducted at the investigating detective's discretion and requires the victim to consent to the process. Detective Jaggers chose not to ask B.P. to consent to a phone dump.

{¶ 29} Detective Jaggers also testified that she requested phone records from the cellphone service providers for B.P.'s work phone and the three unknown numbers that the text messages came from, but she was not able to obtain them. She said that neither phone records nor phone dump data could tell her who was holding the phone that sent the messages to B.P.

{¶ 30} Finally, Detective Jaggers said that, based on her knowledge of and experience with domestic violence victims, she did not find it unusual that B.P. did not contact police about the abusive behavior or call 911 when she was injured, stayed with Clark for many years and returned to the relationship after leaving, and lied about the cause of her April 2009 injuries.

{¶ 31} Clark's cross-examination mainly focused on the deficiencies that he perceived in Detective Jaggers's investigation. Detective Jaggers admitted that speaking to B.P. was the extent of her investigation. She did not interview Clark about the text messages either before filing the charges or after Clark was arrested and held in jail, nor did she interview B.P.'s daughter, friends, or neighbors.

{¶ 32} Detective Jaggers confirmed that she learned about the incidents of violence to which B.P. testified during her interview with B.P., but she did not put the incidents in a written report at that time. Detective Jaggers said that she conducted another interview with B.P. on January 19, 2017-11 days before trial-in order to get a comprehensive list of violent incidents between Clark and B.P. She confirmed that B.P.'s failure to report the abuse or leave Clark was not unusual behavior in a domestic violence victim. She also confirmed that her supplemental report did not note any incidents of violence after 2009 and that Clark did not commit any acts of violence against B.P. from October 17 to 31, 2016. B.P. did not report receiving any threatening text messages between the time she left Clark in August 2016 and the time she received the first threatening message on October 17, 2016.

{¶ 33} Regarding her choice not to collect the data from B.P.'s work cellphone, Detective Jaggers testified that she opted not to request a phone dump because of concerns about the business information on the phone. She believed that preserving the text messages in photographs and subpoenaing phone records would be sufficient evidence. She also admitted that she did not receive any of the phone records that she subpoenaed from the cellphone companies. To follow up on the subpoenas, Detective Jaggers called one of the companies to ask about the records and told prosecutors that she had not received the records. Detective Jaggers was not called into court for a hearing about enforcing the subpoenas. Detective Jaggers said that she did not apply for search warrants for B.P.'s work cellphone or for the cellphones associated with the three unidentified telephone numbers. Without the phone records, Detective Jaggers was not able to identify the people to whom the unknown phone numbers belonged.

{¶ 34} Detective Jaggers testified that there are programs available that allow users to "spoof" phone calls and text messages-i.e., make the calls and messages appear to be coming from a phone number different from the number that was actually calling or sending the messages. She admitted that there was a possibility that the messages B.P. received had been sent from a spoofed number. Although Detective Jaggers said that calling the phone numbers may have provided insight on who they belonged to and whether the text messages were from spoofed numbers, she did not call any of them during her investigation.

{¶ 35} After hearing the evidence, the jury found Clark guilty of menacing by stalking, including the history-of-violence element. On February 17, 2017, the trial court sentenced Clark to 17 months in prison. Clark now appeals the trial court's judgment, raising three assignments of error:

I. The court committed reversible error when it denied Defendant's Motion to Dismiss or order sanctions against the State for failure to timely provide evidence to be used in the State's case in chief.
II. The state failed to provide legally sufficient evidence to sustain an indictment or conviction for the enhanced offense of menacing by stalking, a felony of the fourth degree.
III. Appellant's conviction for menacing by stalking, a felony of the fourth degree, was against the manifest weight of the evidence.

II. Law and Analysis

A. The State did not Commit a Discovery Violation

{¶ 36} In his first assignment of error, Clark contends that the trial court erred when it failed to dismiss the indictment or otherwise sanction the state for discovery violations. Clark claims that the state violated Crim.R. 16 when it decided to rely on evidence to support its case that was different from the evidence it initially disclosed without also providing Clark with the new evidence it intended to use. The state, on the other hand, argues that (1) it did not commit any discovery violations and (2) if it did, the trial court's continuance of the jury trial from January 24 to January 31 was the appropriate sanction. We agree with the state that no discovery violations occurred.

{¶ 37} "The trial court may make orders regulating discovery not inconsistent with [ Crim.R. 16 ]." Crim.R. 16(L)(1). Generally speaking, when the trial court becomes aware that a party has violated Crim.R. 16, the court can order the party to produce the evidence, grant a continuance, exclude the undisclosed evidence from trial, or "make such other order as it deems just under the circumstances." Id. Imposition of discovery sanctions is discretionary, and we review the trial court's decision for an abuse of discretion. State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 20, 33. Abuse of discretion means that the trial court's decision was unreasonable, arbitrary, or unconscionable. State ex rel. Askew v. Goldhart , 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996).

{¶ 38} Under Crim.R. 16(B), the state has a duty to provide the defendant with certain items related to the defendant's case that are "within the possession of, or reasonably available to the state * * *." Crim.R. 16(B). Among the items the state must disclose are "[a]ll reports from peace officers * * *" and "[a]ny written or recorded statement by a witness in the state's case-in-chief * * *." Crim.R. 16(B)(6), (7). A writing or recording is a "statement" for purposes of Crim.R. 16 if it is prepared, signed, or adopted by the witness, or is a substantially verbatim recital of the witness's statement that is written in narrative form. State v. Inman , 4th Dist. Hocking No. 12CA16, 2013-Ohio-3351, 2013 WL 3964645, ¶ 26. Although the rule requires the state to disclose witnesses' statements, it does not require the state to reduce interviews with potential witnesses to writing. State v. Jackson , 2017-Ohio-278, 81 N.E.3d 942, ¶ 11.

{¶ 39} Here, it is undisputed that the state provided Clark with Detective Jaggers's initial police report from her October 28, 2016 interview with B.P. and that the report does not contain descriptions of any incidents of violence between B.P. and Clark. It is also undisputed that Clark knew B.P.'s identity and knew that the state planned to call her as a witness. Additionally, Detective Jaggers testified that one of the police reports from STPD (that is not in the record) noted a history of violence between the parties, albeit without detailed descriptions of violent incidents.

{¶ 40} The state initially-and mistakenly-told Clark that B.P. was the victim of Clark's prior violent crimes and that it intended to use the prior convictions to prove a history of violence between him and B.P. The prosecutor disclosed his mistake to Clark when he realized that B.P. was not the victim of the prior crimes. Clark takes issue with the state's failure to provide him with any more discovery information at that time. But it appears from the record that the state did not have anything else to give Clark; there is no evidence that a written or recorded statement by B.P. existed before January 19. When Clark made a discovery request for more specific information about B.P.'s testimony, the state obtained a statement from B.P. and promptly disclosed it to Clark.

{¶ 41} In State v. Nelson , 2d Dist. Montgomery No. 25026, 2012-Ohio-5797, 2012 WL 6094188, a case that involved the state's late disclosure of recently-obtained statements from two codefendants, the Second District Court of Appeals found that the state did not commit a discovery violation because "the State could not have disclosed the supplemental [police] report prior to [the day before trial], when it was completed * * *." Id. at ¶ 46. The court also noted that the defense attorney did not ask for a continuance, but "indicated that he 'absorbed' the materials provided by the State before [the codefendants] testified, and counsel could and did thoroughly cross-examine those witnesses." Id.

{¶ 42} Like the Second District in Nelson , we find in this case that the state could not have provided Clark with discovery that did not exist when he first asked for it. Clark does not provide any case law-and we could not find any-supporting the idea that the state had a duty to create a witness statement in this case. We also note that the trial court continued the trial for a week, which gave Clark's attorney time to investigate the statements and prepare for trial. Moreover, Clark's attorney said before the trial began that he had all of the information that he needed to proceed, and Clark's attorney was able to thoroughly cross-examine B.P. about the incidents of violence, and Detective Jaggers about the timing and completeness of her investigation. Under these circumstances, we find that the state did not violate Crim.R. 16, and consequently, the trial court did not abuse its discretion in failing to sanction the state. Accordingly, Clark's first assignment of error is not well-taken.

B. Clark's Conviction is Supported by Sufficient Evidence

{¶ 43} In his second assignment of error, Clark argues that his conviction of the history-of-violence element is not supported by sufficient evidence because B.P.'s testimony about the history of violence should have been excluded and there is no other evidence supporting a fourth-degree felony conviction. The state counters that B.P.'s testimony was properly admitted and that Clark's conviction was supported by sufficient evidence.

{¶ 44} In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and determine whether "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (Internal citations omitted.) State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

{¶ 45} To prove that Clark committed menacing by stalking, the state was required to prove that Clark engaged in a pattern of conduct by which he knowingly caused B.P. to believe that Clark would cause physical harm to her or her family member or he knowingly caused mental distress to B.P. or her family member. R.C. 2903.211(A)(1). Clark does not argue that the state failed to prove these elements of menacing by stalking. Rather, he claims that the state did not prove that he "has a history of violence toward the victim or any other person or a history of other violent acts toward the victim or any other person," as required by R.C. 2903.211(B)(2)(e) to make the crime a fourth-degree felony. The history-of-violence element can be proven by testimony alone. See, e.g., State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 177 (a single witness's testimony is sufficient to prove a fact even if the testimony is contradicted); State v. Neal , 6th Dist. Lucas No. L-14-1221, 2016-Ohio-332, 2016 WL 530776 (victim's "uncorroborated" testimony provided sufficient evidence to support history-of-violence element).

{¶ 46} We find that the state presented sufficient evidence to prove that Clark has a history of violence and violent acts toward B.P. B.P. testified to four separate incidents where Clark was violent with her: one where he strangled her, one where he blackened her eye, one where he beat her and cut her with a knife, and one where he damaged property in their home. Despite Clark's claims, a victim's testimony-alone-is enough to support a jury's finding that there is a history of violence or history of violent acts. The jury found B.P.'s testimony about the parties' past history credible, and we will not disturb that finding. Further, because we found that the trial court did not abuse its discretion by not striking B.P.'s testimony about the violent incidents, Clark's argument that the state lacked sufficient evidence to obtain a conviction without B.P.'s testimony is moot. We find, therefore, that Clark's second assignment of error not well-taken.

C. Clark's Conviction is not Against the Manifest Weight of the Evidence

{¶ 47} In his final assignment of error, Clark contends that his conviction is against the manifest weight of the evidence. We disagree.

{¶ 48} When reviewing a claim that a verdict is against the manifest weight of the evidence, the appellate court must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether the jury clearly lost its way in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. We do not view the evidence in a light most favorable to the state. "Instead, we sit as a 'thirteenth juror' and scrutinize 'the factfinder's resolution of the conflicting testimony.' " State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, 2012 WL 6681919, ¶ 15, citing Thompkins at 388, 678 N.E.2d 541. Reversal on manifest weight grounds is reserved for "the exceptional case in which the evidence weighs heavily against the conviction." Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Although under a manifest weight standard we consider the credibility of witnesses, we extend special deference to the jury's credibility determinations given that it is the jury that has the benefit of seeing the witnesses testify, observing their facial expressions and body language, hearing their voice inflections, and discerning qualities such as hesitancy, equivocation, and candor. State v. Fell , 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, 2012 WL 525517, ¶ 14.

{¶ 49} After reviewing the evidence and the credibility of the witnesses, we are not convinced that the evidence weighs heavily against Clark's conviction. Nor can we say that the jury lost its way or created a manifest miscarriage of justice by convicting Clark of felony menacing by stalking. We find, therefore, that Clark's conviction is not against the manifest weight of the evidence. Accordingly, Clark's third assignment of error is not well-taken.

III. Conclusion

{¶ 50} The February 21, 2017 judgment of the Lucas County Court of Common Pleas is affirmed. Clark is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Thomas J. Osowik, J.

CONCUR.

      Other than the October 17, 2016 messages, the text messages that the state admitted into evidence are undated (aside from the labels of "Sunday," "Monday," and "Yesterday") and the state did not ask either B.P. or Detective Jaggers to clarify the dates on which B.P. received the messages.


author: Hoffman, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Derrell L. DUNCAN, Defendant-Appellant
    No. 17-CA-48
    Court of Appeals of Ohio, Fifth District, Licking County.
    DATE OF JUDGMENT ENTRY: February 13, 2018
    BRIAN M. ZETS, DAVID C. MOSER, Isaac Wiles Burkholder & Teetor, LLC, 2 Miranova Place, Ste. 700, Columbus, Ohio 43215, for Plaintiff-Appellee
    MICHAEL S. PROBST, Probst Law Office, Inc., 1207 Grandview Avenue, Suite 205, Grandview, Ohio 43212, for Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. William B. Hoffman, J., Hon. Craig R. Baldwin, J.
   Hoffman, J.

{¶ 1} Defendant-appellant Derrell L. Duncan appeals the March 23, 2017 Judgment Entry entered by the Licking County Municipal Court, which denied his motion to dismiss. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On March 13, 2012, Appellant was arrested and subsequently charged with operating a motor vehicle while intoxicated, in violation of R.C. 4511.19 ; driving under suspension-license forfeiture, in violation of R.C. 4510.111 ; and a tail light and illumination of rear license plate offense, in violation of R.C. 4513.05, in Licking County Municipal Court Case No. 12 TRC 2817 ("Case No. 12 TRC 2817"). Appellant appeared for arraignment on March 20, 2012, and entered a plea of not guilty to the charge. The trial court scheduled a bench trial for April 17, 2012. On April 5, 2012, Appellant executed an Affidavit of Indigency and filed a motion requesting the appointment of counsel. The trial court granted Appellant's request and appointed Attorney Adrienne Larimer on April 9, 2012.

{¶ 3} On April 12, 2012, Appellant filed a demand for discovery, a request for a bill of particulars, and a jury demand. Thereafter, on April 16, 2012, Appellant filed a motion requesting a continuance of the bench trial. The trial court granted the continuance, and scheduled a final pre-trial for June 1, 2012, and a bench trial on June 4, 2012. On May 15, 2012, the state filed a motion to continue due to the unavailability of the prosecutor. The trial court granted the continuance, and scheduled a jury trial for June 18, 2012.

{¶ 4} The state responded to Appellant's request for discovery on June 7, 2012. On June 15, 2017, the state filed a motion to dismiss after realizing the citation failed to include a punishable offense due to a scrivener's error. The trial court granted the motion, and dismissed the case on June 18, 2012.

{¶ 5} After an agreement with Appellant's counsel, the state filed a new citation, correctly citing Appellant with OVI, in violation of R.C. 4511.19(A)(1)(a), in Licking Municipal Court Case No. 12 TRC 7283 ("Case No. 12 TRC 7283"). Appellant requested a continuance of his June 27, 2012 arraignment. Appellant failed to appear on the rescheduled arraignment date of July 11, 2012. The trial court issued a bench warrant.

{¶ 6} Appellant appeared before the trial court over four years later on August 12, 2016, and entered a plea of not guilty. The trial court scheduled the matter for trial on October 17, 2016. Appellant filed a demand for discovery and a motion to continue on October 5, 2016. Appellant filed a waiver of his right to a speedy trial on the same date. The trial court scheduled the matter for November 17, 2016. On October 24, 2016, the state filed a response to Appellant's discovery and a reciprocal demand for discovery. The trial court continued the trial until January 5, 2017.

{¶ 7} Upon Appellant's motion, the trial court again continued the trial and indicated it would reschedule the matter for a change of plea hearing and sentencing at a future date. On February 10, 2017, Appellant filed a motion for work release. Appellant filed a motion to dismiss on speedy trial grounds on March 1, 2017, which the trial court denied via Judgment Entry filed March 23, 2017.

{¶ 8} The trial court granted Appellant's request for work release on April 19, 2017. On the same day, the trial court scheduled a change of plea hearing for May 3, 2017. Appellant filed a motion for continuance on May 8, 2017. On June 9, 2017, Appellant appeared before the trial court and changed his original plea of not guilty to a plea of no contest. The trial court accepted Appellant's plea, found him guilty, and sentenced him to 180 days in jail with 170 days suspended. The trial court also suspended Appellant's driver's license for 2 years. Appellant requested a stay of sentence pending his appeal of the March 23, 2017 Judgment Entry. The trial court granted the request and stayed Appellant's sentence pending this Court's disposition of the instant appeal.

{¶ 9} It is from the March 23, 2017 Judgment Entry Appellant appeals, raising as his sole assignment of error:

I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS THE CHARGES AGAINST HIM FOR A VIOLATION OF HIS STATUTORY SPEEDY TRIAL RIGHTS UNDER OHIO REVISED CODE SECTION 2945.71 et seq.

I

{¶ 10} Speedy trial provisions are mandatory and are encompassed within the Sixth Amendment to the United States Constitution. The availability of a speedy trial to a person accused of a crime is a fundamental right made obligatory on the states through the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579 (1978) ; State v. Pachay, 64 Ohio St.2d 218, 219, 416 N.E.2d 589 (1980).

{¶ 11} Our review of a trial court's decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixed question of law and fact. State v. Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122, 2005 WL 1463255, ¶ 11. Due deference must be given to the trial court's findings of fact if supported by competent, credible evidence. Id. However, we must independently review whether the trial court properly applied the law to the facts of the case. Id. Furthermore, when reviewing the legal issues presented in a speedy trial claim, an appellate court must strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996).

{¶ 12} The most serious offense with which Appellant was charged was a misdemeanor of the first degree. A person charged with a first degree misdemeanor must be brought to trial within 90 days of the date of his arrest or service of summons. R.C. 2945.71(B)(2).

{¶ 13} A defendant establishes a prima facie case for discharge once he demonstrates that he has not been brought for trial within the time limits set forth in R.C. 2945.71. State v. Ashbrook , 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, 2007 WL 2582869, ¶ 49, citing State v. Butcher , 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). When a defendant has established he was tried outside speedy-trial time limits, the burden shifts to the state to show that the time limit was extended under R.C. 2945.72. Id. at ¶ 31. If the state fails to produce evidence in rebuttal under R.C. 2945.72, then discharge pursuant to R.C. 2945.73(B) is required. Id. "When reviewing a speedy-trial issue, an appellate court must calculate the number of days chargeable to either party and determine whether the appellant was properly brought to trial within the time limits set forth in R.C. 2945.71." State v. Riley , 162 Ohio App.3d 730, 2005-Ohio-4337, 834 N.E.2d 887, ¶ 19 (12th Dist.).

{¶ 14} The time requirements within which an accused must be brought to trial may be tolled by certain events listed in R.C. 2945.72. Specifically, the speedy trial period may be tolled for "[a]ny period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused[.]" R.C. 2945.72(E). R.C. 2945.72(H) provides the time within which an accused must be brought to trial may be extended by the period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion. "[A] demand for discovery or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E)." State v. Brown, 98 Ohio St.3d 121, 781 N.E.2d 159, 2002-Ohio-7040, syllabus.

{¶ 15} Additionally, an accused may waive his rights to a speedy trial, so long as the waiver is knowingly and voluntarily made. State v. O'Brien , 34 Ohio St.3d 7, 9, 516 N.E.2d 218 (1987), citing Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Such a waiver must be in writing or expressly made on the record in open court. State v. King , 70 Ohio St.3d 158, 637 N.E.2d 903 (1994), syllabus, citing O'Brien, supra, and State v. Mincy , 2 Ohio St.3d 6, 441 N.E.2d 571 (1982).

{¶ 16} A time waiver may be limited or unlimited in duration. "[A] waiver that expressly waives the accused's right to a speedy trial under the statute without mentioning a specific time period is unlimited in duration." State v. Kovacek , 9th Dist. Lorain No. 00CA007713, 2001 WL 577664, *4 (May 30, 2001), citing O'Brien, supra, 34 Ohio St.3d 7, 516 N.E.2d 218, at paragraph two of the syllabus. Once an accused has executed an express, written waiver of unlimited duration, "the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state must bring the accused to trial within a reasonable time." O'Brien, supra, 34 Ohio St.3d 7, 516 N.E.2d 218 at paragraph two of the syllabus. (Emphasis added.); State v. Battle , 5th Dist. Morgan No. 09 AP 0001, 2010-Ohio-4327, 2010 WL 3554870, ¶ 77, appeal not allowed, 127 Ohio St.3d 1533, 2011-Ohio-376, 940 N.E.2d 987, and cert. denied, 565 U.S. 861, 132 S.Ct. 200, 181 L.Ed.2d 106 (2011).

{¶ 17} In the instant action, the trial court found the following dates pertinent to its resolution of Appellant's motion to dismiss:

{¶ 18} Case No. 12 TRC 2817

March 13, 2012-Date of arrest
April 5, 2012-Request for court-appointed counsel April 9, 2012-Request for counsel granted
April 12, 2012-Defendant's demand for discovery
April 16, 2012-Defendant files a motion to continue
May 17, 2012-State's motion to continue due to prosecutor's unavailability
June 18, 2012-Next trial date after states motion to continue
June 18, 2012-State's motion to dismiss granted

{¶ 19} Case No. 12 TRC 7283

June 27, 2012-Arraignment date; defendant moves to continue the arraignment
July 11, 2012-Next arraignment date; defendant fails to appear
August 12, 2016-Defendant appears and enters "not guilty" pleas
October 5, 2016-Defendant files discovery demand and motion to continue
October 5, 2016-Defendant files waiver of his right to a speedy trial

{¶ 20} In his Brief to this Court, Appellant asserts the trial court erred in finding only 26 days counted against his speedy trial time in Case No. 12 TRC 2817. Appellant submits the trial court's determination the discovery motion he filed as well as the respective motions for continuances filed by both parties tolled a significant period of time was erroneous. Appellant argues the state should not "benefit" from the tolling of the speedy trial time as it took the state 56 days to respond to his demand for discovery, and the delay was prejudicial.

{¶ 21} Appellant further maintains the trial court erred in determining only 54 days counted against his speedy trial time in Case No 12 TRC 7283, which represented the number of days between August 12, 2016, the date on which he appeared for arraignment, and October 5, 2016, the date on which he filed a demand for discovery, a motion for continuance of trial, and a waiver of his speedy trial rights. The trial court concluded a total of 80 days of his speedy trial time had elapsed. Appellant asserts, once he filed his motion to dismiss on March 1, 2017, his speedy trial waiver was revoked, and his speedy trial time should have begun to run again. Alternatively, his speedy trial time should have begun to run again once the trial court denied his motion to dismiss on March 23, 2017. Appellant adds the trial court took no action on the matter from March 23, 2017, until April 19, 2017, when it scheduled a plea hearing for May 3, 2017, and those 27 days should be counted against the speedy trial time, for a total of 107 days.

{¶ 22} In order to provide a clear analysis, we will examine the relevant time periods separately.

{¶ 23} The first period is that between Appellant's March 13, 2012 arrest on the original OVI charge and the trial court's June 18, 2012 Entry, dismissing the same without prejudice. The trial court found 26 days attributable to the state in Case No. 12 TRC 2817, apply to the speedy trial calculation in Case No. 12 TRC 7283. At oral arguments in this matter, Appellant agreed with the trial court's determination only 26 days of speedy trial time had accrued against the state.

{¶ 24} The next time period encompasses August 12, 2016, the date on which Appellant was arraigned in Case No. 12 TRC 7283, through October 5, 2016, the date on which Appellant filed a demand for discovery, a motion for continuance, and a waiver of his right to a speedy trial. We find the trial court properly found this period counted against the state, and accurately charged the state with 54 days for speedy trial purposes.

{¶ 25} Time was tolled from October 5, 2016, until March 1, 2017, when Appellant filed his motion to dismiss based upon Appellant's waiver of his speedy trial right. Upon the filing of the motion to dismiss, Appellant's October 5, 2016 speedy trial waiver was revoked. State v. Battle , 5th Dist. Morgan No. 09 AP 0001, 2010-Ohio-4327, 2010 WL 3554870, ¶ 79, citing State v. Masters, Crawford App. No. 3-06-20, 172 Ohio App.3d 666, 2007-Ohio-4229, 876 N.E.2d 1007, ¶ 26. However, despite the revocation of his time waiver, Appellant's speedy trial time continued to toll. The filing of Appellant's motion to dismiss tolled the speedy trial period from March 1, 2017, until March 23, 2017, the date on which the trial court denied the motion. See, State v. Szorady, 9th Dist. No. 02CA008159, 2003-Ohio-2716, 2003 WL 21222139 (speedy trial time tolled from date defendant filed motion to dismiss to date trial court denied motion).

{¶ 26} The final time period we must consider is March 23, 2017, the date on which the trial court denied Appellant's motion to dismiss, and April 19, 2017, the date on which the trial court scheduled the change of plea hearing.

{¶ 27} Following the denial of Appellant's motion to dismiss, the trial court had a reasonable time in which to schedule further action. In its March 23, 2017 Judgment Entry, the trial court noted, "This case shall be set for an oral hearing for the purpose of a change of plea and imposition of sentence on a date and time to be set." Id. at 4, unpaginated. As of that date, we agree with the trial court 80 days were chargeable against the state. On April 19, 2017, the trial court issued an order scheduling a change of plea hearing on May 3, 2017. Appellant asserts the 27 days between March 23, 2017, and April 19, 2017, should be charged against the state, which would exceed the 90 days in which the state was required to bring him to trial. We find the delay of less than 30 days after Appellant's revocation of his time waiver was not unreasonable.

{¶ 28} In its Brief to this Court, the state cites State v. Bauer, 61 Ohio St.2d 83, 85, 399 N.E.2d 555 (1980) (per curiam), in support of its position, the 26 days originally calculated against the speedy trial time from Case No. 12 TRC 2817, should not have counted because Appellant waived the protections afforded by R.C. 2945.71 through R.C. 2945.73, by failing to appear for arraignment in Case No. 17 TRC 7283. We find Bauer to be factually distinguishable from the instant action.

{¶ 29} In Bauer , the Ohio Supreme Court held: "[A] defendant who fails to appear at a scheduled trial, and whose trial must therefore be rescheduled for a later date, waives his right to assert the provisions of R.C. 2945.71 through 2945.73 for that period of time which elapses from his initial arrest to the date he is subsequently rearrested." Id. at 85, 399 N.E.2d 555.

{¶ 30} Bauer, supra, involved a defendant who failed to appear for his trial which was scheduled for a date within the statutory time period set forth in R.C. 2945.71. Id. at 83, 399 N.E.2d 555. The trial court issued a bench warrant for his arrest. Id. After the defendant's subsequent apprehension, the trial court rescheduled the trial. Id. The defendant filed a motion to discharge under the provisions of R.C. 2945.71, et seq. , which the trial court denied. Id. The Court of Appeals reversed the judgment of the trial court. Id. The Ohio Supreme Court reversed the Court of Appeals. Id. In reaching its conclusion, the Bauer Court noted, "the proper focus of a court in circumstances such as these is upon the underlying source of the delay." Id. at 84, 399 N.E.2d 555.

{¶ 31} Bauer did not involve the refiling of a case such as occurred herein. Accordingly, we find the trial court properly charged the state with 26 days from Case No. 12 TRC 2817.

{¶ 32} Based upon the foregoing, Appellant's sole assignment of error is overruled.

{¶ 33} The judgment of the Licking County Municipal Court is affirmed.

Wise, John, P.J. and Baldwin, J., concur