author: LARRY A. JONES, SR., J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Walter HARRIS, Defendant-Appellant
    No. 105284
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 15, 2018
    Joseph V. Pagano, P.O. Box 16869, Rocky River, Ohio 44116, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Jeffrey Schnatter, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Jones, J., Keough, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant, Walter Harris ("Harris"), appeals his convictions on multiple counts related to the sexual assault of H.S. We affirm.

I. Procedural History and Facts

{¶ 2} In 2015, Harris was charged with 28 counts as follows: nine counts of rape, eight counts of kidnapping, six counts of sexual battery, four counts of gross sexual imposition, and one count of attempted rape. The counts were accompanied by various repeat violent offender and sexual motivation specifications. The date of Harris's offenses ranged from March 1, 2012 to June 2014, and the victim was his girlfriend's minor daughter.

{¶ 3} The matter proceeded to trial in April 2016, but the jury was unable to reach a verdict. The case proceeded to a second jury trial in May 2016 on 27 counts because the state dismissed one count of rape prior to the second trial. The repeat violent offender and sexual motivation specifications were tried to the court.

{¶ 4} The following pertinent evidence was presented at trial.

{¶ 5} Harris dated H.S.'s mother. H.S. did not have a stable home life. At first, H.S. and her brother, "E.S.," lived out of state with their mother. Because Harris lived in Cleveland, H.S. would visit with her mother and brother on the weekends. H.S. subsequently lived with her grandmother, her mother in a homeless shelter, and finally with Harris and E.S.

{¶ 6} Harris eventually became the legal guardian of H.S. and E.S. H.S. testified that she thought of Harris as her "father." From 2005 through 2012, H.S. lived with Harris, E.S., and Joanna Wilcox ("Wilcox"), who was dating Harris. Harris and Wilcox's relationship ended in September 2012 and Wilcox moved out. H.S. and Wilcox remained friends.

{¶ 7} When H.S. was in the eighth grade, she discovered she was attracted to girls. Harris found out and was mad. H.S. testified that Harris first assaulted her when she was in the eighth grade and after Harris found out she was gay. One night, Harris called H.S. downstairs. According to H.S., there was a pornographic movie playing on the television, depicting two females. Harris grabbed H.S.'s arm, threw her down onto his bed, and touched her. H.S. testified that although she did not want Harris to be touching her in that way, she was frightened and did not feel that she was able to get away.

{¶ 8} H.S. testified that the next instance occurred toward the beginning of her ninth grade school year. E.S. was at school and H.S. was on the couch. Harris approached her with his pants off and touched her. Again, H.S. was frightened but did not feel like she could leave.

{¶ 9} H.S. testified that after Wilcox moved out, Harris was "lonely" and wanted H.S. and E.S. to sleep in his bedroom. The siblings slept on couch cushions on the bedroom floor. During one of these nights, H.S. remembered she was at a friend's house for the evening. She returned home, fell asleep on the couch cushions, and woke up in Harris's bed without pants. Harris touched her.

{¶ 10} H.S. testified that eventually Harris's assaults escalated to sexual intercourse. H.S. testified that one such occurrence took place when she was in the tenth grade, before Harris moved them from their house on East 64th Street to a house on Homer Avenue. H.S. remembered she had been sleeping on the couch because she was sick. During the night, she got up to get a drink of water; when she returned, Harris was sitting on the couch waiting for her. Harris told H.S. to come to his bedroom, where he had sex with her.

{¶ 11} The sexual abuse continued after they moved to the new house. H.S. testified to another instance that occurred shortly after the move, sometime between the Thanksgiving and Christmas holidays. Harris called H.S. into his bedroom and told her that they needed to "mess around." H.S. testified that Harris grabbed her, took off her pants, turned her around, and made her have sex with him.

{¶ 12} According to H.S., the last time Harris assaulted her was toward the end of 2014. She testified that Harris continuously and repeatedly raped and sexually assaulted her until the end of 2014 and would never wear a condom. Instead, Harris bought H.S. the "morning after pill." The state entered into evidence a receipt from Discount Drug Mart, dated September 12, 2014, that detailed the purchase of emergency contraceptive. The state also entered into evidence video surveillance from September 12, 2014, at the same Discount Drug Mart, that showed Harris making a purchase in the pharmacy.

{¶ 13} Veronique White, a Discount Drug Mart pharmacy technician, testified that Harris was a regular customer at the pharmacy. White stated that she personally sold Harris the emergency contraceptive on two or three occasions, and that he told her that he was buying the pills for his daughter.

{¶ 14} According to H.S., Harris gave her these contraceptive pills "too many times to count"; in fact, at one point Harris told H.S. that she needed to go on birth control because he was "tired" of buying her the expensive pills. H.S. told Harris that she did not want to go on birth control because she wanted to date only girls and wanted him to stop.

{¶ 15} H.S. testified she was scared to tell anyone about Harris. At one point, she asked E.S. what he would do if she told him that someone was hurting her. Both H.S. and E.S. testified that E.S. got angry and told H.S. that he would "kill" anyone who hurt her. Because of this response, H.S. decided not to tell her brother about Harris.

{¶ 16} H.S. finally told her girlfriend, C.R., about Harris. H.S. called C.R. after one instance of abuse. C.R. heard H.S. crying on the phone and H.S. confided in C.R. about what Harris had been doing to her. H.S. asked C.R. to keep the abuse a secret, but C.R.'s mother found out and C.R. and her mother reported the abuse to the police.

{¶ 17} Cleveland Police Detective Alan Strickler was assigned to the case. H.S. told the detective that the allegations were false and to throw the case out. H.S. testified that she was scared that if she divulged the abuse, E.S. would be placed in foster care.

{¶ 18} H.S. then confided in Harris's former girlfriend, Wilcox. Wilcox testified that H.S. texted her on October 15, 2014, and asked if she would make H.S. tell if someone was hurting her. Wilcox met with H.S. the next day. H.S. told Wilcox that Harris was forcing her to have sex with him. Wilcox told H.S. that she needed to tell someone right away but H.S. said she did not want to go to the police because she was afraid of Harris. According to Wilcox, H.S. thought people would believe Harris over her and feared for her brother's future.

{¶ 19} Towards the end of December 2014, Harris and H.S. got into an argument over H.S.'s music. H.S. left the house and went to stay with her girlfriend, C.R., without telling Harris where she was going. H.S. called Wilcox and told her that she was finally ready to go to the police and file a report. Wilcox took H.S. to the police station.

{¶ 20} Detective Cindy Bazilius ("Detective Bazilius") interviewed H.S. Detective Bazilius testified that H.S. indicated that the abuse had been going on for several years. According to Detective Bazilius, when she interviews a child victim that has been subjected to frequent abuse, she will try to get the child to focus on a few detailed incidents, rather than trying to remember every single incident. During her interview, H.S. was able to relate specific incidents of abuse to specific years in school and other major life events, rather than specific dates.

{¶ 21} The police secured a search warrant for Harris's house. Detective Bazilius testified that she conducted the search with the knowledge that it was important to look for old towels and clothing in the home and particularly in Harris's bedroom, because H.S. had stated that Harris would often use towels and clothing to clean up after they had sex. Forensic testing conducted on a blue towel taken from the top of Harris's bedroom dresser contained seminal material with a DNA profile that matched Harris's. The police also took Harris's bedding into evidence and forensic testing confirmed that the bedding contained DNA from both Harris and H.S.

{¶ 22} Cuyahoga County Department of Children and Family Services social worker Hope Gula ("Gula") interviewed H.S. Gula testified that in her experience as a social worker in the sex abuse unit, child sex abuse victims often delay disclosure of their abuse. Gula noted that it is common for children to be mistaken about the time elements of the abuse, especially when the abuse occurred frequently over a long period of time. Gula testified that while interviewing H.S., H.S. disclosed to her certain behaviors that Harris possessed that are typically known as "grooming behaviors" in which the level of sexual activity he subjected H.S. to was slowly increased. Gula explained that these activities were consistent with her experience with other victims of sexual abuse.

{¶ 23} The jury found Harris guilty on all counts and the sexual motivation specifications. The court convicted Harris of the repeat violent offender specifications, acquitted him of the sexually violent offender specifications, and sentenced him to a total of 11 years in prison.

{¶ 24} Harris now appeals, raising the following six assignments of error for our review:

I. The trial court erred by denying appellant's motion to suppress evidence in violation of his fourth and fourteenth amendment rights to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
II. Appellant's constitutional rights were violated because social worker Gula was permitted to give expert testimony in violation of Evid.R. 702 and testimony that improperly bolstered H.S.'s credibility.
III. Appellant's convictions were not supported by sufficient evidence and the trial court erred by denying his motion for acquittal.
IV. The convictions were against the manifest weight of the evidence.
V. Appellant's federal and state constitutional right to a speedy trial and due process were violated and his conviction should be vacated and dismissed.
VI. The trial court erred by granting the state's oral motion to amend counts 12-15 [of] the indictment after the close of the state's case in chief which deprived appellant of a fair trial and violated his due process rights.

II. Law and Analysis

A. Trial court did not err in denying motion to suppress

{¶ 25} In the first assignment of error, Harris contends that the trial court erred in denying his motion to suppress.

{¶ 26} This court reviews a decision on a suppression motion under a mixed standard of review. "In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility." State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The reviewing court must accept the trial court's findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 27} Harris argues that the seizure of the towel from his house was unconstitutional because, although the term "towel" was included in the search warrant affidavit, the term was not included in the actual search warrant.

{¶ 28} R.C. 2933.24(A) provides that a search warrant "shall * * * particularly name or describe the property to be searched for and seized, the place to be searched, and the person to be searched." In determining whether a warrant is specific enough, courts have determined that the specificity required varies with the nature of the items to be seized. State v. McGettrick , 40 Ohio App.3d 25, 29, 531 N.E.2d 755 (8th Dist.1988). The key inquiry is whether the warrant could reasonably have described the items more precisely. State v. Benner , 40 Ohio St.3d 301, 307, 533 N.E.2d 701 (1988).

{¶ 29} In this case, the warrant stated that the following could be searched and seized:

photographs of the interior and exterior of the premises and any objects therein, said premises being crime scene; any and all bedding including sheets, pillowcases and blankets; Vaseline; DVDs, VHS tapes and/or movies; Pain pills and/or packaging; any and all biological and/or forensic material and/or items that might have such materials including that visible only by an alternate light source; and any and other evidence tending to establish violation of the criminal laws of the State of Ohio, including but not limited to: Rape, R.C. 2907.02.

{¶ 30} Detective Bazilius testified that when she executed the search warrant, she was looking for any towels that could contain evidence of Harris's DNA. She further testified that H.S. had previously disclosed that Harris would use a towel to clean up after ejaculating on the floor when he abused her. Thus, the detective was aware that there may be a towel in Harris's house that had biological fluids on it that would connect him to the rape allegations. The warrant specifically stated that police would search for "items that might have" "biological and/or forensic material" "and any and other evidence tending to establish" "[r]ape." Clearly, the seized towel falls under the purview of the search warrant as it was an item that could contain biological and/or forensic material or could be other evidence tending to establish the crime of rape. We do not find that the omission of the specific word "towel" sanctioned an impermissible general exploratory search in this case.

{¶ 31} The common pleas court case Harris relies on, State v. Simpson , 64 Ohio Misc. 42, 412 N.E.2d 956 (C.P.1980), is easily distinguishable. In Simpson, the search warrant affidavit listed that officers were requesting to search Apts. 204 and 304. However, Apt. 304 was omitted from the command section of the warrant. Despite the omission, the officers searched both apartments. The court suppressed the items found in Apt. 304, reasoning that because Apt. 304 was missing from the command section, meant the executing court considered the request to search Apt. 304 and rejected the request. Id. at 43-44, 412 N.E.2d 956. In this case, there is no suggestion that the executing court rejected the request to seize towels, because it allowed the broader search and seizure of "any and all biological and/or forensic material and/or items that might have such material."

{¶ 32} In Benner , 40 Ohio St.3d 301, 533 N.E.2d 701, the Ohio Supreme Court upheld a search warrant that authorized a search of the defendant's houses and truck for "fibers and hairs and other trace evidence for comparison," but that did not specifically identify the items to be seized. The court found that the "fibers and hairs" language used in the warrant "placed a meaningful restriction on the executing officers, viz., they could only seize those items that could be sources of fibers and hairs." Id. at 307, 533 N.E.2d 701. "While the 'fibers and hairs' clause in the warrants was undoubtedly broad, we believe that it did not permit the officers to simply take any item they wanted." Id.

{¶ 33} Likewise, in this case, the language used in the warrant, while broad, still identified many items with particularity and did not permit the officers to take any item they wanted from Harris's house.

{¶ 34} In light of the above, the trial court did not err in denying Harris's motion to suppress.

{¶ 35} The first assignment of error is overruled.

B. Social worker's testimony did not violate Evid.R. 702

{¶ 36} In the second assignment of error, Harris contends that the social worker's testimony was in contravention of Evid.R. 702.

{¶ 37} During trial and on appeal, Harris raised several objections to social worker Gula's testimony, specifically as it related to: (1) children who recant sexual abuse allegations; (2) delayed disclosure of sexual abuse; (3) grooming behavior; (4) absence of physical injuries in cases of sexual abuse; and (5) H.S.'s credibility.

{¶ 38} "The determination of the admissibility of expert testimony is within the discretion of the trial court." State v. Cook , 11th Dist. Lake No. 2016-L-079, 2017-Ohio-7953, 2017 WL 4337090, ¶ 40, citing Evid.R. 104(A). Such decisions will not be disturbed absent abuse of discretion. An abuse of discretion suggests unreasonableness, arbitrariness, or unconscionability. State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When applying the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).

{¶ 39} Evid.R. 702 provides that "a witness may testify as an expert" if the witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; and his or her testimony is based on reliable scientific, technical, or other specialized information.

{¶ 40} The Ohio Supreme Court has held that professional experience and training in a particular field may be sufficient to qualify one as an expert. State v. Hughes , 10th Dist. Franklin No. 14AP-360, 2015-Ohio-151, 2015 WL 233484, ¶ 63, citing State v. Mack , 73 Ohio St.3d 502, 511, 653 N.E.2d 329 (1995). In State v. Stowers , 81 Ohio St.3d 260, 261, 690 N.E.2d 881 (1998), the Ohio Supreme Court held that " 'an expert witness' testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence." The Stowers court found that the expert possessed specialized knowledge of the kind recognized under Evid. R. 702 that the average person lacks about behavioral characteristics of minor victims of sexual abuse through that expert's psychological training and professional experience:

Most jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse. Incest is prohibited in all or almost all cultures and the common experience of a juror may represent a less-than-adequate foundation for assessing whether a child has been sexually abused.

Stowers at 262, 690 N.E.2d 881, quoting State v. Boston , 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989).

{¶ 41} In this case, the trial court determined that Gula qualified as an expert witness in the area of child sex abuse. Gula testified she has a master's degree in social work, has worked for the Cuyahoga County Department of Children and Family Services for over 18 years in the sex abuse department, and has received specialized training in the area of children who have suffered sex abuse. This testimony was sufficient for the trial court to declare Gula an expert under Evid.R. 702.

{¶ 42} Harris contends that Gula improperly vouched and unfairly bolstered H.S.'s otherwise inconsistent testimony and vouched for H.S.; in other words, according to Harris, Gula told the jury that what H.S. said was true. We disagree.

{¶ 43} Gula testified that she "did not have any concerns" with H.S. being "untruthful" with her, that H.S. disclosed information to her that "is a grooming kind of activity," and that typically a child abuser is someone that is known to the child. None of these statements rise to the level of reversible error.

{¶ 44} In Boston , the Ohio Supreme Court held that it was more than harmless error to allow an expert witness to testify as to the veracity of the child victim's statements. Id. at 129, 545 N.E.2d 1220. In other words, it is impermissible for an expert witness to offer his or her opinion as to the truth of a child's statements. What is not prohibited, however, is testimony "which is additional support for the truth of the facts testified to by the child, or which assists the fact finder in assessing the child's veracity." (Emphasis sic.) Stowers at 263, 690 N.E.2d 881.

{¶ 45} In Boston , the child victim did not testify. In Stowers, as in this case, the child victim testified and was subject to cross-examination. As such, the trier of fact was able to ascertain the credibility of the victim. See State v. Benjamin , 8th Dist. Cuyahoga No. 87364, 2006-Ohio-5330, 2006 WL 2900036 (distinguishing Boston and finding harmless error when child victim testifies and is subject to cross-examination).

{¶ 46} Therefore, the trial court did not abuse its discretion by qualifying Gula as an expert or in admitting her testimony. The second assignment of error is overruled.

C. Sufficiency and manifest weight of the evidence

{¶ 47} In the third and fourth assignments of error, Harris argues that his convictions were not supported by the evidence and were against the manifest weight of the evidence.

{¶ 48} A sufficiency-of-the-evidence challenge questions whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1992), paragraph two of the syllabus.

{¶ 49} When a conviction is challenged as being against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thompkins at id. In a manifest-weight analysis, the credibility of the witnesses and the weight to be given to their testimony are primarily for the trier of facts to resolve. State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that a substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witnesses.

State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, 1997 Ohio App. LEXIS 3709, 5 (Aug. 22, 1997).

{¶ 50} The evidence presented in this case supports a finding that Harris engaged in vaginal intercourse with H.S. as charged in Counts 1-3, which meets the elements of the offense of rape as defined in R.C. 2907.02(A)(1)(b), sexual battery as defined in R.C. 2907.03, and kidnapping as defined in R.C. 2905.01. The date of the offense was September 11, 2014. Although H.S. did not testify that she was raped on the specific date of September 11, 2014, she testified that she was sexually assaulted by Harris numerous times and Harris would buy emergency contraception from the drugstore the day after he had unprotected sex with her. The state introduced evidence that Harris bought emergency contraception, or the "morning-after pill," from Discount Drug Mart on September 12, 2014.

{¶ 51} The evidence also supports a finding that Harris committed rape as charged in Count 9 of the indictment. Harris argues that the evidence did not support the conviction because the indictment stated that the date was between September 1, 2012, and May 30, 2013, and H.S. testified that she believed that this event occurred in the fall of 2014, right after Harris and Wilcox ended their relationship. But other evidence showed that Harris and Wilcox ended their relationship in the fall of 2012. H.S. testified that this incident of rape occurred right after the couple broke up; she associated the incidence with that timeframe. While H.S. testified as to the wrong year, the social worker testified that (1) child sex abuse victims are often mistaken about the time elements of the abuse, especially when the abuse has occurred frequently over a long period of time and (2) child sex abuse victims will often associate incidents with landmark events that occurred around the same time rather than remember specific dates. Based on this, we find sufficient evidence to support a conviction on Count 9.

{¶ 52} The evidence also supports convictions for Count 16, gross sexual imposition as defined in R.C. 2907.05(A)(4) ; Counts 17 and 23, kidnapping; Count 21, rape; and Count 22, sexual battery. Counts 16 and 17 related to an incident that H.S. testified about where Harris assaulted her on the couch. Counts 21-23 related to an incident that occurred in the fall of 2014. H.S. testified specifically as to this incident and that it was one of the last times that Harris raped her.

{¶ 53} Harris claims that the record does not support his convictions because E.S. never saw Harris abuse H.S., Wilcox never noticed any inappropriate behavior, and H.S. delayed in reporting the abuse. None of these assertions, however, mean that there was insufficient evidence to support his convictions. Nor does it mean that a reasonable trier of fact lost its way in finding that Harris was guilty beyond a reasonable doubt. H.S. testified that E.S. was often not home when the abuse occurred and H.S. explained why she delayed disclosing the abuse; she was trying to protect her brother and she did not think anyone would believe her word over Harris's. Social worker Gula, an expert in child sex abuse, explained why children often delay in reporting their abuse.

{¶ 54} Harris further argues that H.S. fabricated the allegations in retaliation for wanting to be emancipated, because Harris filed a missing persons report on her, and because he would not let her attend a party. H.S.'s credibility, however, is a judgment that was left to the trier of fact, who clearly believed H.S.

{¶ 55} Harris also asserts that there is no forensic or DNA evidence that substantiates the charges, arguing that H.S.'s DNA in Harris's bedroom on his bedding is only indicative that H.S. lived in the same house and that Harris's DNA found on the blue towel is unremarkable. We disagree. This evidence does not go against H.S.'s allegations; the discovery of H.S.'s DNA in Harris's bedroom and his seminal fluid on the blue towel is consistent with the facts H.S. testified to at trial.

{¶ 56} Having reviewed the record, and deferring to the jurors' decisions regarding whether and to what extent to credit the testimony of the witnesses, we conclude that the evidence is sufficient to support Harris's convictions and the convictions are not against the manifest weight of the evidence.

{¶ 57} Therefore, the third and fourth assignments of error are overruled.

D. Harris's speedy trial rights not violated

{¶ 58} In the fifth assignment of error, Harris contends his speedy trial rights were violated.

{¶ 59} As an initial matter, we note that Harris filed a pro se motion to dismiss on speedy trial grounds. The record reflects that Harris was represented by counsel when he filed his pro se motion. Hybrid representation is not allowed; therefore, the trial court was unable to consider his motion. State v. Davis , 8th Dist. Cuyahoga No. 105129, 2017-Ohio-8479, 2017 WL 5197252, ¶ 18 (a defendant has the right to counsel or the right to act pro se; however, a defendant does not have the right to both, simultaneously). Thus, Harris's failure to properly file a motion to dismiss on speedy trial grounds prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue on appeal. State v. Taylor , 98 Ohio St.3d 27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 37 ; State v. Simms , 10th Dist. Franklin Nos. 05-AP-806 and 05AP807, 2006-Ohio-2960, 2006 WL 1628969, ¶ 10 (by not raising his speedy-trial claim in the trial court, "appellant waived all but plain error on his statutory claims").

{¶ 60} Moreover, Harris does not allege plain error on appeal; thus, we need not consider his argument even for plain error. State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17-20 (appellate court need not consider plain error where appellant fails to timely raise plain-error claim);

Wright v. Ohio Dept. of Jobs & Family Servs. , 9th Dist. Lorain No. 12CA010264, 2013-Ohio-2260, 2013 WL 2407158, ¶ 22 (when a claim is forfeited on appeal and the appellant does not raise plain error, the appellate court will not create an argument on the appellant's behalf).

{¶ 61} Assuming, however, the speedy trial issue was properly before us, Harris's argument would still fail. R.C. 2945.71(C) requires the state to bring a felony defendant to trial within 270 days of arrest. Each day during which the accused is held in jail in lieu of bail on the pending charge is counted as three pursuant to the triple-count provision of R.C. 2945.71(E). This "triple-count" provision reduces to 90 days the time for bringing to trial an accused who is incarcerated the entire time preceding trial. State v. Dankworth , 172 Ohio App.3d 159, 2007-Ohio-2588, 873 N.E.2d 902, ¶ 31 (2d Dist.). Pursuant to R.C. 2945.72, however, the time within which an accused must be brought to trial is extended by a period of delay caused by the accused's own motions.

{¶ 62} To the extent Harris argues that his statutory right to a speedy trial was violated pursuant to R.C. 2945.71, the record establishes the following: Harris was arrested on January 20, 2015; therefore, speedy trial time started on January 21, 2015, with the time running three for one until he posted bond the next day, for a total of six speedy trial days. After he posted bond, time ran one for one until April 6, 2015, for a total of 81 speedy trial days.

{¶ 63} On April 6, 2015, Harris filed a demand for discovery, tolling time until April 14, 2015, when the state filed its response and demand for discovery. Time then resumed running until the first pretrial date, set for April 20, 2015, for a total of 87 speedy trial days. On April 20, 2015, the first pretrial was held and continued at Harris's request, tolling time until May 5, 2015. Successive pretrials were held and continued at Harris's request, tolling time until his first trial was held on April 5, 2016.

{¶ 64} R.C. 2945.71 only applies to the initial adjudication following arrest, not to subsequent trials after a jury fails to reach a verdict. State v. Hull , 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 14, citing State v. Fanning , 1 Ohio St.3d 19, 21, 437 N.E.2d 583 (1982). Instead of R.C. 2945.71, the standard to apply is reasonableness under federal and state constitutions. Fanning at id.

{¶ 65} Harris also raises a constitutional challenge with respect to his right to speedy trial. Again, Harris did not properly raise this issue below, but even if he had, we find no constitutional speedy-trial violation.

{¶ 66} The Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution the right to a speedy trial. The Due Process Clause of the Fourteenth Amendment makes this provision applicable to the states. Klopfer v. North Carolina , 386 U.S. 213, 222-223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Furthermore, Section 10, Article I of the Ohio Constitution guarantees a criminal defendant the right to a speedy trial. In regard to the Sixth Amendment right to a speedy trial, the United States Supreme Court has stated:

The Sixth Amendment right to a speedy trial is * * * not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

United States v. MacDonald , 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). See also State v. Triplett , 78 Ohio St.3d 566, 568, 679 N.E.2d 290 (1997).

{¶ 67} To determine whether an accused has been denied his or her constitutional right to a speedy trial, a court must consider the following four factors: (1) the length of the delay, (2) the reason for the delay, (3) the accused's assertion of his or her right to a speedy trial, and (4) the prejudice to the accused as a result of the delay. Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ; Triplett at id. None of these four factors are determinative of whether an accused suffered a violation of his constitutional right to a speedy trial; rather, the court must consider the four factors collectively. Barker at 533, 92 S.Ct. 2182.

{¶ 68} In this case, Harris contends that the six-month delay between his first trial resulting in a hung jury and the commencement of his second trial, from April 13, 2016, through October 24, 2016, was an unreasonable amount of time, and thus violated his constitutional rights to a speedy trial. We disagree and note that the six-month delay was largely a result of Harris's actions. The second trial was originally set for May 2016; however, pretrials were continued twice in May, at Harris's request. The trial was rescheduled to begin August 1, 2016, but Harris filed a motion for continuance on July 15. The court granted the motion and set a new trial date for October 24, 2016. Because we find the length of the delay was not prejudicial, we need not inquire into the other Barker factors.

{¶ 69} Having found no merit to Harris's constitutional and statutory speedy-trial challenges, his fifth assignment of error is overruled.

E. No error in amending indictment

{¶ 70} In the sixth assignment of error, Harris contends that allowing the state to amend the dates on the indictment violates his due process rights.

{¶ 71} Crim.R. 7(D) provides:

The court may at any time before, during, or after a trial amend the indictment * * * in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment * * * or to cure a variance between the indictment * * * the defendant is entitled to a discharge of the jury on the defendant's motion, if a jury has been impaneled, and to a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant's rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury.

{¶ 72} Thus, pursuant to Crim.R. 7(D), the court may amend the indictment to conform to the evidence. Here, after the close of the state's case, the state moved to amend the dates of Counts 12-17 to conform with the evidence presented in the case.

{¶ 73} Harris claims he was prejudiced by the amended indictments, but he does not support his contention with any arguments as to how he was prejudiced. Specific dates and times are not elements of the offenses upon which he was indicted. See State v. Rogers , 12th Dist. Butler No. CA2006-03-055, 2007-Ohio-1890, 2007 WL 1174866, ¶ 26. Moreover, Harris's defense centered upon his denial that the acts in question ever occurred, regardless of when the acts were alleged to have occurred. Put another way, Harris's defense to the allegations of sex abuse were that the allegations were entirely false; we do not see how changing the date range during which the abuse occurred would affect his defense. Thus, Harris has failed to demonstrate how amending the dates on some counts of the indictment prejudiced him.

{¶ 74} Harris has failed to demonstrate he was prejudiced by the amendment of the indictment; therefore, the sixth and final assignment of error is overruled.

{¶ 75} Judgment affirmed.

KATHLEEN ANN KEOUGH, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR


source: Caselaw Access Project

author: TUCKER, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Jesse L. YORK, Defendant-Appellant
    No. 27521
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on February 16, 2018
    MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
    HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Defendant-appellant Jesse York appeals from his conviction and sentence for murder. He contends that cumulative errors deprived him of a fair trial. We conclude that York has failed to establish any error, let alone cumulative error, that would affect his right to a fair trial. Accordingly, the judgment of the trial court is affirmed.

I. Facts and Procedural History

{¶ 2} This case arises from the 2013 death of R.S. (hereinafter "R."). R. was born in January of 2012 to Helen Thompson and Brad Sellars. Sellars and Thompson, who were not married and not living together at the time of R.'s birth, also had an older child together. R. resided in Germantown with Thompson and the older sibling. Sellars generally exercised parenting time with the children on Wednesdays and every other weekend. In early 2013, Thompson began dating York who moved into the residence with Thompson and the children.

{¶ 3} On October 23, 2013, Sellars exercised visitation with the children. When R. returned home, she was eating and playing normally. That night, she woke up vomiting and was disoriented. Thompson took R. to the pediatrician the next day. R. was diagnosed with a virus and sent home. R. improved that day and exhibited no further signs of illness.

{¶ 4} Sellars also exercised parenting time on the weekend of November 9. He and his mother took the children to a restaurant on Saturday. While there, R.

walked around the table and bumped her head. According to Sellars and his mother, she fussed for a few minutes, but was fine thereafter. The next day, Sellars took the children to Build-A-Bear Workshop at the mall. Sellars returned the children to Thompson that night.

{¶ 5} The next day, November 11, 2013, R. attended daycare. She exhibited no signs of illness that day, and she acted normally that evening at home. However, after midnight, she began to vomit. She vomited approximately four times during the night. The next day, Thompson took R. to her pediatrician where she was, again, diagnosed with a viral infection. The doctor told Thompson to allow R. to rest and to give her Pedialyte to help keep her hydrated. Thompson and R. remained at home for the rest of the day. By that evening, R. was doing better; the vomiting had stopped, and she was eating, drinking and playing normally. On the morning of November 13, R. was a little sleepy, but otherwise was acting and eating normally. However, Thompson decided to keep her home from daycare.

{¶ 6} Thompson left for work at 10:20 that morning. She left R. in York's care. No one else was in the home when Thompson left as the older sibling was at school. At noon, Thompson sent York a text message asking about R. York responded that R. was fine and that she was playing with her toys. At 1:30 p.m., York called Thompson stating that R. had become "unresponsive." Thompson immediately drove home, which took approximately five minutes. Once there, she observed York on the couch with R. in his arms. She observed that R. was breathing but unresponsive. She told York to call 911.

{¶ 7} R. and Thompson were transported to Dayton Children's Hospital by ambulance. During the ride, Thompson noted a mark under the child's eye. At the hospital, staff determined R. to be "severely impaired from a neurologic point of view." Attending neurosurgeon, Laurence Kleiner, was called in to examine R. Kleiner noted that R. was breathing spontaneously, but was exhibiting "writhing-like activity." A CAT scan of the head and diagnostic blood tests were performed. The CAT scan revealed "significant cerebral swelling." On physical exam, Kleiner found R. could not open her eyes and could not respond or make purposeful movements. Kleiner rated R. as a "6 on the Glascow Coma Scale." R. was placed on a ventilator and admitted to the pediatric intensive care unit for treatment and further testing. By 8:00 p.m. that evening, R.'s condition had deteriorated and Kleiner ordered an MRI. The test indicated that the brain swelling had increased. Kleiner conducted an examination and concluded that R. met the clinical criteria for brain death.

{¶ 8} On Thursday morning, November 14, R., while still on life support, was examined by Dr. Lori Vavul-Roediger who is a board-certified child abuse pediatrician and the director of the Department of Child Advocacy at Dayton Children's Hospital. Vavul-Roediger observed bruising under R.'s right eye and right upper scalp. She also observed hemorrhaging in the left eye and small bruises to R.'s right ear. She noted a laceration in R.'s mouth that corresponded to a bruise on the outside of her cheek.

{¶ 9} Ultimately, pursuant to protocol, another examination was performed to confirm that R. met the criteria for brain death. She was removed from life support and pronounced dead at 11:00 a.m. on November 15, 2013.

{¶ 10} On August 29, 2014, York was indicted on two counts of murder, one count of involuntary manslaughter, two counts of endangering children, and one count of felonious assault. Discovery was conducted. York filed a motion to suppress. Following a hearing, the motion was denied. On March 5, 2017, the State filed a motion in limine to exclude the introduction of evidence of domestic violence between Sellars and his girlfriend.

{¶ 11} A six-day jury trial commenced on March 7, 2017. At trial, Thompson testified that while in the waiting room of the hospital on Wednesday, November 13, she kept asking York what had happened to R. She testified that he kept responding, "I don't know." Thompson testified that York then began asking her about a text message he had received from a friend, T.J. Vickroy, concerning sexual activity involving Thompson. Thompson informed York that she did not want to discuss the matter at that time. Thompson testified that on the following morning York left the hospital to return home. At some point that day, Thompson was informed that R. was clinically brain dead. She testified that York returned to the hospital that evening and appeared to be intoxicated and not "capable of conversation." Thompson asked York's mother to take him home.

{¶ 12} The State also presented Carlie Woodward who testified that she is a friend of Thompson's and that she runs the daycare that R. attended. She testified that R. appeared fine on November 11 while at the daycare. She further testified that she communicated with Thompson regarding R., and was informed on the evening of November 12, after the trip to the pediatrician, that R. was fine. Woodward testified that she received a video from Thompson showing R., on November 12, dancing and singing in her crib. Woodward testified that she went to Dayton Children's Hospital on Thursday morning. She testified that she spoke to York who told her that he did not know what had happened to the child. York told Woodward that he had placed R. in her crib for a nap and that when he tried to wake her later, she was unresponsive.

{¶ 13} Dr. Kleiner testified that he observed bruising on R.'s face under her right eye, her ear, left and right scalp and on her cheek. The bruising on the cheek corresponded to a laceration found on the inside of R.'s mouth near her gum line. Kleiner testified that based upon R.'s history and injuries there was a very high likelihood that her condition was the result of abuse. He further testified that, in his opinion, R.'s injuries were sustained on the day she presented to the hospital.

{¶ 14} Dr. Vavul-Roediger testified that she observed all of the bruising that Kleiner had described. She also observed hemorrhaging in the left eye. She testified that R. suffered significant head trauma caused by multiple impacts to her head. She testified that while she could not give a precise time of the injuries, she could state that R. would not have been able to walk, talk or eat after sustaining such injuries.

{¶ 15} Montgomery County Deputy Coroner, Bryan Casto, M.D., testified that he performed R.'s autopsy on November 16, 2013. In addition to the injuries observed by Kleiner and Vavul-Roediger, Casto testified that he observed extensive injuries underneath R.'s scalp. Specifically, he observed bruising which extended the full thickness of the scalp and which caused staining to the skull. Casto observed a large central bruise located where the scalp sits on the top of the head. He also observed pattern injuries consisting of several half-inch circular bruises each separated by a "fairly uniform half-inch of spared skin that is not bruised." These pattern injuries were observed on the left, right and back of the scalp. Casto testified that the central bruise appeared different from the pattern injuries and that it appeared to be healing.

{¶ 16} Casto testified that he also examined R.'s brain which showed significant swelling. He testified that he also found subarachnoid and subdural bleeding. The dura is a tough membrane found beneath the skull covering the brain. Beneath that is the arachnoid membrane which is a thinner, translucent covering of the brain.

{¶ 17} Casto testified that he looked at microscopic samples from the bruising on the scalp. He testified that he found evidence of iron and fibrosis on the larger central bruise. Casto testified that the iron and fibrosis indicated that the large bruise was an older injury that was resolving. However, he testified that the pattern bruises were acute injuries meaning that they did not show any evidence of healing. He testified that he classified R.'s death as a homicide resulting from blunt force trauma to her head.

{¶ 18} Brad Daugherty, a homicide investigator with the Montgomery County Sheriff's Office, also testified at trial. He testified that he was assigned to assist Germantown police with the investigation of R.'s death. Daugherty testified that on Thursday, November 14, he accompanied Detective Swatford and Major Burns, both members of the Germantown police department, to interview York whom they found at his mother's residence. Daugherty testified that they sat with York and his mother around the kitchen table while they conducted the interview. York told them that R. had acted fine in the morning. He told the officers that he was alone with R. and no one else was in the residence. York told the officers that R. did not fall or hit her head that day. He stated that R. fell asleep on the couch, and that he cleaned the residence while she slept. York stated that when he attempted to wake R., he could not get her to respond. York further stated that the back of R.'s head was wet with perspiration, and that her eyes were unfocused. York stated that he called Thompson and then checked R.'s eyes with a flashlight. According to York, R. had the same type of unresponsiveness a couple of weeks earlier.

{¶ 19} Daugherty testified that he obtained a search warrant for the Thompson/York residence where he found a grocery bag outside of the apartment's front door. The bag held a diaper, a baby wipe, some toilet paper and a rag with either vomit or blood on it. Daugherty also removed a pillow and sheet from R.'s crib. He testified that a search of York's cellular telephone and records obtained from his service provider indicated that York had deleted some text messages from the morning of November 13. Specifically, the cell phone provider's records indicate that York received a 9:38 a.m. text from T.J. Vickroy informing York that Vickroy and his girlfriend were breaking up due to a sexual encounter that occurred between Vickroy, his girlfriend, Thompson and another woman. Vickroy also indicated that he believed his girlfriend and Thompson were involved romantically with each other. At 9:41 a.m., York sent a text in response asking how long ago the encounter had occurred. Vickroy did not respond. Thompson texted York at 11:48 asking how her baby was doing. York responded a minute later, "good just chilling playing with toys." The actual phone did not contain these texts.

{¶ 20} Dr. Lora Ellis, R.'s pediatrician, also testified on behalf of the State. According to Ellis she did not see R. during the October 2013 visit. Instead, R. was seen by one of her partners. Ellis reviewed the documentation of that visit and did not note any complaints or findings regarding possible head injuries. Ellis did see R. during the November 11, 2013 visit. She testified that she did not observe any bruising on R. Nor did she observe any mouth laceration when she checked R.'s mouth. Ellis testified that R. was acting appropriately during the visit. Ellis testified that she did not observe anything that would indicate the need for a neurological examination at that time.

{¶ 21} Amy Dallaire, a forensic serology and DNA scientist with the Miami Valley Regional Crime Laboratory, testified for the State. According to Dallaire, the pillow and its case removed from R.'s crib testified positive for blood. When the blood from the pillow was tested, Dallaire found mixed DNA, one of which was positively identified as R.'s. The blood from the case also matched R.'s DNA. The crib sheet tested positive for blood, but the sample was not sufficient to permit a DNA analysis. The baby wipe contained DNA that was a match for R. The toilet paper contained DNA from a single male source.

{¶ 22} York, turning to the defense case, presented the testimony of Dr. Janice Ophoven, a specialist in pediatric forensic pathology. She testified that she reviewed the entire record including R.'s medical history and Casto's autopsy report. Ophoven also requested special staining studies of the dura, scalp and left eye. The additional staining studies were performed by Dr. Casto's office and delivered to Ophoven. Ophoven testified that it was her opinion that R. died from complications stemming from a pre-existing traumatic brain injury which she opined had occurred "many, many days" before R.'s hospitalization. Ophoven testified that the injuries likely occurred on or around October 24, 2013, the date of R.'s first visit to the pediatrician with vomiting. She based her opinion on her observation of iron found in the three staining samples, as well as the fact that there was new tissue growth on the larger central bruising area, and, finally, the fact that the blood located in the lining of the skull and along the surface of the brain contained evidence of iron.

{¶ 23} York also called Brad Sellars as a witness. At that time, the State reiterated its motion in limine to exclude evidence of domestic violence between Sellars and his girlfriend. The defense did not object and stated that it had no response to the motion. The trial court sustained the motion. Sellars then testified that he had exercised parenting time with R. the weekend before her death. He testified that she had a minor bump to her head while at a restaurant. He further testified that she was able to fully participate at the Build-a-Bear Workshop at the mall the next day, including "hands-on" activities.

{¶ 24} In rebuttal, the State presented the testimony of Dr. Joseph Felo who is the Chief Deputy Medical Examiner for Cuyahoga County. Felo testified that he had reviewed the entire record including Dr. Ophoven's report. He agreed with Casto's assessment that R. had an older injury as well as new injuries to her head, and that she died from multiple blunt force impacts to her head that occurred on the day she was hospitalized. Felo testified that it was "very unlikely" that R. could have eaten, watched television or communicated after suffering the observed head trauma. He testified that he found no evidence to support Ophoven's claim that the injuries occurred on October 24, 2013.

{¶ 25} Dr. Casto was also called in rebuttal. He testified that he disagreed with Dr. Ophoven's conclusions. First, he testified that, while the subarachnoid and subdural blood did contain evidence of prior injury, they also contained evidence of fresh red blood cells. He testified that the mere presence of old injury does not "negate the presence of a new amount of blood or a new collection of blood." Tr. 900. With regard to the scalp, he reiterated his prior testimony that the larger central injury looked different on autopsy than did the smaller circular injuries. He testified that to fulfill Dr. Ophoven's request, he sampled two areas of the scalp taking a sample from the older injury and a sample from one of the newer injuries. Both samples were placed on the same slide for Dr. Ophoven's staining studies. He testified that the iron staining showed "abundant iron" on the larger central bruise which was consistent with his original classification of that bruise as an older injury. According to Casto, Ophoven ignored the fact that the smaller pattern injury sample had "almost no iron, one cell contains iron [and] clearly would not be categorized as the same level of healing as the larger injury." Tr. 906. He further testified that Dr. Ophoven did not present any microscopic photos of the newer injuries during her testimony and that she did not "mention the smaller fragment representing the more acute trauma to [R.'s] scalp." Tr. 907.

{¶ 26} The jury found York guilty of all the indicted counts. At sentencing, the trial court merged all the counts. The State elected to proceed to sentencing on the murder charge contained in Count II of the indictment (proximate result; felonious assault). York was sentenced to a mandatory term of fifteen years to life in prison. York appeals.

II. Analysis

{¶ 27} York's sole assignment of error states as follows:

THE CUMULATIVE RESULT OF THE COURT'S DECISIONS WERE CONTRARY TO JUSTICE AND PREJUDICIAL TO DEFENDANT-APPELLANT.

{¶ 28} York contends that the cumulative effect of errors made by the trial court during the course of the proceedings denied him a fair trial.

{¶ 29} The Ohio Supreme Court recognized the doctrine of cumulative error in State v. DeMarco , 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). "Pursuant to this doctrine, a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal." State v. Garner , 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). However, the doctrine does not apply unless there are "multiple instances of harmless error." Id. "In order to find cumulative error, we must find: (1) that multiple errors were committed at trial, and (2) there is a reasonable probability that the outcome of the trial would have been different but for the combination of the separately harmless errors." State v. Goldblum , 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, 2014 WL 6090641, ¶ 58, citing State v. Kelly , 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, 2005 WL 182900, ¶ 33.

{¶ 30} York first contends that the trial court erred by sustaining the motion in limine filed by the State which sought to block evidence of alleged domestic violence between Sellars and his girlfriend. He further contends that the trial court impermissibly interfered with his examination of Sellars. In support, York argues that Ophoven's testimony that the injury did not occur on the day of the hospitalization discredits the State's theory that, because he was alone with R., he was the only possible source of the injuries. Thus, he argues that he should have been permitted to present a defense that Sellars was a potential suspect since Sellars exercised parenting time just prior to each of the episodes of vomiting. York contends that the evidence of the domestic violence as well as the testimony he attempted to elicit from Sellars was relevant to show that Sellars had a bad temper and also had the opportunity to harm R.

{¶ 31} We begin first with the motion in limine. Evid.R. 404(A) provides that although it may be relevant, "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." Evid.R. 404(B) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." "The burden is on the proponent of extrinsic act evidence to demonstrate that the relevancy of the extrinsic act does not pertain to character and conforming conduct." State v. Nucklos , 171 Ohio App. 3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶ 86 (2d Dist.), citing State v. Skatzes , 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215.

{¶ 32} In analyzing this argument, we are cognizant of the discrepancy in the medical testimony. Specifically, Casto, Felo, and Kleiner opined that the injuries responsible for R.'s death occurred sometime on the day she was hospitalized. Vavul-Roediger echoed this testimony when she opined that R. could not have been behaving normally after the injuries were inflicted. Conversely, Ophoven opined that the injuries occurred on or around October 24 when R. first presented to the pediatrician with complaints of vomiting.

{¶ 33} Further, our analysis must include the fact that York did not respond, nor object, to the State's motion. Nor did he make a proffer of any evidence. Accordingly, he has waived all but plain error. This court has previously stressed "we recognize plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' In order to prevail on a claim governed by the plain error standard, [the defendant] must demonstrate that the outcome of [his] trial would clearly have been different but for the errors that [he] alleges." (Internal citations omitted.) State v. Carpenter , 116 Ohio App.3d 615, 621, 688 N.E.2d 1090 (2d Dist. 1996).

{¶ 34} Finally, "[t]he decision whether to admit or exclude evidence rests within the sound discretion of the trial court and its decision in such matters will not be reversed on appeal absent an abuse of discretion and material prejudice," State v. Brewer , 2d Dist. Greene No. 03CA0074, 2004-Ohio-3572, 2004 WL 1506241, ¶ 58. An abuse of discretion occurs when the trial court exhibits an arbitrary, unreasonable or unconscionable attitude. Id.

{¶ 35} York was able to establish through Thompson that Sellars exercised parenting time with R. prior to each of her vomiting episodes. Thus, he was able to demonstrate opportunity. The only other reason he cited for using this evidence was to show that Sellars had a bad temper; something that is barred by Evid.R. 404. We conclude that York has failed to establish error, let alone plain error. There is no showing, and we cannot discern, how evidence of possible violence between Sellars and his girlfriend would be relevant to this case, nor how the evidence is admissible for any of the purposes set forth in Evid.R. 404(B).

{¶ 36} We next turn to what York deems to be improper interference by the trial court during his examination of Brad Sellars. York contends that the trial court, without objection by the State, made various statements during the examination.

{¶ 37} We note that the trial court permitted defense counsel to ask numerous leading questions of Sellars before interjecting to comment that counsel should remember that he was conducting direct examination rather than cross. Defense counsel said, "ok," and proceeded to continue questioning Sellars. After two questions, defense counsel again began to ask leading questions, at which point the trial court asked "Do you know what that means?"

{¶ 38} The trial court's control over the questioning of witnesses is governed by Evid.R. 611 which provides:

(A) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
* * *
(C) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

{¶ 39} Sellars was called as a witness by York. York did not claim that Sellars was a hostile witness. Thus, we find the trial court did not abuse its discretion when admonishing counsel to discontinue the leading questions.

{¶ 40} York further contends that the trial court sustained several objections by the State without any basis for such a ruling. York asked Sellars what he and R. typically did on their weekends together. The State objected, and the trial court sustained the objection. York did not seek to question the ruling at a sidebar. We agree with the State that, while there is no explanation in the record for the objection or the ruling thereon, the trial court could have found that the question was overly broad as it was not limited to the time frame around R.'s death. In any event, we find no abuse of discretion.

{¶ 41} York also asked Sellars whether, when Thompson called him, she informed him that R. had become unresponsive. York later asked whether Thompson was able to directly call Sellars' number. The State objected to both questions, and the trial court sustained the objections. We note that the first question was leading and seems to ask for hearsay evidence. The second question asked Sellars to testify as to what another individual was able to do without establishing whether he had knowledge of Thompson's actions. Again, York did not contest the ruling and did not pursue either question further. We cannot say that the trial court abused its discretion with regard to either question.

{¶ 42} Finally, at another point in the direct examination, the trial court interjected and stated, "I think you're confusing him with the question * * * [i]f you can[,] rephrase it so he understands the time period you're talking about[?]" Sellars then indicated that he was, indeed "very" confused by the questions. We find no error with regard to this intervention by the trial court.

{¶ 43} Next, York claims that the trial court erred with regard to objections that were sustained during defense counsel's cross-examination of Thompson. Specifically, York asked Thompson whether Sellars paid child support for R. and whether there was a period of time when he failed to exercise visitation with R. Defense counsel also asked Thompson why she did not immediately inform Sellars when she began to date York. Counsel also asked Thompson whether the vomiting episode in October was similar to the one in November. The State objected, and the trial court sustained the objections.

{¶ 44} With regard to the first three questions, York's claim of relevance is that they tend to demonstrate that Sellars had a bad temper and that he had opportunity to harm R. As stated above, Evid.R. 404 bars the evidence insofar as it relates to temperament. Further, York does not explain, nor can we discern, how the cited questions are relevant to opportunity. With regard to the question regarding whether R.'s symptoms and appearance were similar during the October and November episodes, we agree with the State that the matter had been fully explored by defense counsel earlier in his cross-examination of Thompson. Thus, we find no abuse of discretion in the trial court's decision to sustain the State's objections.

{¶ 45} York next complains that the trial court erroneously permitted Casto to testify that the pattern injuries to R.'s scalp are consistent with marks from knuckles or a fist. He further objects to Casto's testimony that R. would not have been able to perform normally after the injuries were incurred.

{¶ 46} The admissibility of expert testimony is a matter committed to the sound discretion of the trial court, and the trial court's ruling will not be overturned absent an abuse of that discretion. Valentine v. Conrad , 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. We first note that expert testimony must meet the threshold of being relevant to a trial issue. Evid.R. 401. If so, then we must determine whether it is sufficiently reliable under Evid.R. 702. State v. Abner , 2d Dist. Montgomery No. 20661, 2006-Ohio-4510, 2006 WL 2522384, ¶ 26. Evid.R. 702 provides that a witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. * * *

{¶ 47} During his testimony, Casto indicated that the field of forensic pathology involves evaluating the types of injury that cause death as well as determining the possible mechanisms of that injury. He further testified that he has looked at thousands of injuries. He also testified regarding his educational background as well as his training and work history. Casto testified that sometimes he is able to give an exact cause of the injury and sometimes he cannot discern the exact cause. He further testified that sometimes he is able to provide only possible causes of the injuries. In this case, he identified blunt force trauma as the cause of death. Casto testified that the circular injuries could be consistent with a blow from a hammer, but that it was not likely that a hammer was the cause of the injury as the circles were of such a uniform pattern. He testified that the pattern injuries were not inconsistent with a blow from a fist. Casto's testimony that R. would not be able to function normally after the infliction of the pattern injuries was based upon the degree of swelling found in the brain which he testified would cause a lack of oxygen to the brain. From our review of the record, we conclude that the State established that Casto's testimony was relevant and that it complied with the terms of Evid.R. 702. Thus, we cannot say that the trial court abused its discretion in permitting the cited testimony.

{¶ 48} York next claims that the trial court erroneously redacted handwriting on some of the slides presented during Ophoven's testimony before presenting the slides to the jury. In rendering its ruling, the trial court noted that the writing on the slides rendered them suggestive and that any evidence as to what was demonstrated on the slides should be elicited through Ophoven's testimony. York does not make any argument concerning how this constitutes error, nor does he claim any prejudice resulting therefrom. Indeed, Ophoven testified at length regarding the slides. We find no error.

{¶ 49} York next states that "while the jury deliberated, it sent a note saying it was deadlocked on Counts I and II, and the Court, over the objection of the defense, sent a modified Allen charge to the jury." We have reviewed the trial court's supplemental charge to the jury following their statement that they were deadlocked, and note that it comports with the charge approved by the Supreme Court of Ohio in State v. Howard , 42 Ohio St. 3d 18, 537 N.E.2d 188 (1989), paragraph two of the syllabus, and Section CR 429.09 of the Ohio Jury Instructions . Accord State v. Howard , 2d Dist. Montgomery No. 23795, 2011-Ohio-27, 2011 WL 96313, ¶ 82. York does not claim that this was error or that it caused him prejudice, and we find no error.

{¶ 50} Finally, York contends that the trial court expressed bias against him during sentencing with the following statement:

I am incredibly troubled by your statement because your focus was on what happened to you. And your either, inability to accept the overwhelming evidence that was presented at trial or your refusal to do so. You stated just a minute ago, I have never harmed a child. Sir, there was a lot of evidence that said that you did. But I didn't allow it in at trial because the rules of evidence limit what can be presented at that trial. But your suggestion, I don't know if it's delusion or what, but sir, there was a lot of evidence of your prior conduct towards children that unfortunately on this date resulted in the horrific death of an innocent and vulnerable child. You've shown no remorse at any point in time. I've watched you throughout the three years of these proceedings, and there has not been one time where I felt that you even appreciated the gravity of what occurred and the jury has determined that you did. I guess I wonder, sir, and I cannot encapsulate what [R.'s] mom and her aunt said so eloquently.
But I wonder if you ever though [sic] how hard this has been for [R.'s] family, instead of merely focusing your attention on yourself.

{¶ 51} Just prior to this passage, York made a personal statement denying any role in the death of R. His counsel then made a statement that York would continue to "fight for his innocence in the next available venue."

{¶ 52} This court has stated that "it is clear that lack of remorse is an appropriate consideration for sentencing, even for a convicted defendant who maintains his innocence." State v. Farley , 2d Dist. Miami No. 2002-CA-2, 2002-Ohio-6192, 2002 WL 31528718, ¶ 54. Even where, as here, the trial court must impose a mandatory sentence, rather than determining a sentence from a possible range, we cannot say that it is inappropriate for the trial court to comment upon a relevant factor. We cannot agree with York that this passage evinces bias.

{¶ 53} We find no errors with regard to the issues raised by York. Also, there was ample evidence to support the conviction. Thus, we conclude that York's claim that he was deprived of a fair trial due to cumulative error is not borne out by the record. Accordingly the sole assignment of error is overruled.

III. Conclusion

{¶ 54} York's sole assignment of error being overruled, the judgment of the trial court is affirmed.

DONOVAN, J., and HALL, J., concur.

      According to the record, anything less than an 8 indicates severe head injury.

      According to the record, vomiting can be a symptom of head injury.

      In Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the United States Supreme Court set forth a summary of the supplemental instruction to be given by a trial court when jurors claimed they were deadlocked. The instructions were later modified by the Supreme Court of Ohio in State v. Howard , 42 Ohio St. 3d 18, 537 N.E.2d 188 (1989).

      According to the Presentence Investigation Report, there is evidence that in the past York exhibited abusive behavior toward two other children.


author: CARR, Judge.

text:
    STATE of Ohio, Appellee v. Mark A. SENZ, Appellant
    No. 17CA0001-M
    Court of Appeals of Ohio, Ninth District, Medina County.
    Dated: February 20, 2018
    THOMAS REIN, Attorney at Law, for Appellant.
    S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   CARR, Judge.

{¶ 1} Defendant-Appellant Mark Senz appeals from his conviction in the Medina County Court of Common Pleas. This Court affirms.

I.

{¶ 2} Senz was indicted in March 2015 on one count of petty theft, a first degree misdemeanor, and one count of complicity to commit trafficking in cocaine, a fifth degree felony. Following a trial, a jury found Senz not guilty of complicity to commit trafficking in cocaine and guilty of petty theft. Senz then filed a motion for acquittal pursuant to Crim.R. 29(C) and renewed his previous motions made at trial. The trial court denied the motions and sentenced Senz to 180 days in jail and fined him $1000. The sentencing entry reflects that court costs were waived.

{¶ 3} Senz has appealed, raising four assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY FAILING TO GRANT A JUDGMENT OF ACQUITTAL, PURSUANT TO CRIM.R. 29(A), ON THE CHARGE, AND THEREAFTER ENTERING A JUDGMENT OF CONVICTION OF THE OFFENSE AS THAT CHARGE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

{¶ 4} Senz argues in his first assignment of error that the trial court erred in denying his Crim.R. 29 motion. Specifically, he challenges the sufficiency of the evidence establishing mens rea and whether he used deception. In addition, he maintains that the State was required to demonstrate that he had the specific purpose to deprive the Medina County Drug Task Force/Medina County Commissioners of the $60 in light of the language in the indictment. Thus, he asserts that he had to know the money belonged to the drug task force/county, which he argues the State failed to establish. We will confine our analysis to the limited arguments made by Senz on appeal.

{¶ 5} Crim.R. 29(A) provides:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.

{¶ 6} When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks , 61 Ohio St.3d 259, 279, 574 N.E.2d 492 (1991).

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

{¶ 7} Senz was found guilty of violating R.C. 2913.02(A)(3). R.C. 2913.02(A)(3) states that "[n]o person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [b]y deception[.]"

{¶ 8} "A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." Former R.C. 2901.22(A).

"Deprive" means to do any of the following:
(1) Withhold property of another permanently, or for a period that appropriates a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration;
(2) Dispose of property so as to make it unlikely that the owner will recover it;
(3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration.

R.C. 2913.01(C).

{¶ 9} " 'Owner' means, unless the context requires a different meaning, any person, other than the actor, who is the owner of, who has possession or control of, or who has any license or interest in property or services, even though the ownership, possession, control, license, or interest is unlawful." R.C. 2913.01(D). "A person acts knowingly, regardless of his purpose, when is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." Former R.C. 2901.22(B). " 'Deception' means knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact." R.C. 2913.01(A).

{¶ 10} The testimony of the State's witnesses at trial supported the following narrative. In early 2015, members of the Medina County Drug Task Force began working with a confidential source, B.S., in order to buy drugs from Charles Sarno. Sarno, who was on house arrest, indicated that he had a supplier in Akron that could get Sarno an eight ball of cocaine for $180 and 20 Percocet pills for $180. On February 5, 2015, B.S. was provided with $360 of the Medina County Drug Task Force's money in order to conduct the transaction. B.S. and his vehicle were searched prior to the transaction and the money was photocopied to document the serial numbers. B.S. was also wired so that the members of the task force could monitor what was happening to help ensure B.S.'s safety.

{¶ 11} B.S. arrived at Sarno's residence and was invited inside. B.S. provided Sarno with the money and Sarno expressed concern about buying from the person who was going to bring the drugs because he did not really know the person. Sarno told B.S. that if anything went wrong, Sarno would repay B.S. Sarno also indicated that he would call the person to have him come over. Shortly thereafter, Sarno went outside and met the driver of a blue Saturn who had pulled into the driveway. Sarno went back inside and the car left. Sarno told B.S. that the driver had a gun on his lap and told Sarno to take the drugs and go or leave them. Sarno returned to the house with pills and a bag containing a powdery white substance. Sarno and B.S. both thought the pills and powder were counterfeit. Ultimately, the pills were found to be acetaminophen and the powder was described by one witness as being baking soda.

{¶ 12} Upon hearing Sarno mention that the driver of the vehicle had a gun, Agent John Stayrook of the Medina County Drug Task Force called B.S. and told him to leave. B.S. left and met at the predetermined spot where the pills were recovered from him.

{¶ 13} In the interim, Deputy Dan Kohler with the Medina County Sheriff's Department initiated a traffic stop on the vehicle that had left Sarno's residence. No gun was found in the vehicle. Senz, who was the driver, had $60 in his hand; the serial numbers on the money matched serial numbers on the money given to B.S. to use in the attempted drug transaction.

{¶ 14} Gary Hubbard, the Director of the Medina County Drug Task force, spoke with Senz at the traffic stop after Senz was read his rights. Senz, who was Sarno's half-brother, told Director Hubbard that Senz received a call from Sarno around 1 p.m. on February 5th. Sarno "asked him if he wanted to make $50. [ ] Senz told [Director Hubbard] that, you know, [he'd] give [Senz] $50." Sarno told Senz that "[t]his guy's coming over to buy drugs and [Sarno was] going to rip him off, meaning give him fake drugs." Senz indicated that "he agreed to do that, that he was supposed to show up around 5 o'clock and that's when the entire transaction took place." Senz also indicated that Sarno was going to call Senz to tell him when to arrive. Senz relayed that, when he arrived, Sarno walked out of the residence, approached the driver's side of the car and gave him $60, walked back into the house, and Senz left. From the conversation, Detective Hubbard concluded that Senz "knew exactly what was going on."

{¶ 15} Agents also went to Sarno's residence, arrested him, and searched the premises. Agent Michael Barnhardt located a plastic bag containing baking soda in the trash and Sarno informed the agents that the money was in kitchen cabinet; $300 was recovered from the cabinet. The serial numbers on that money matched serial numbers on the money that was given to B.S. to complete the transaction.

{¶ 16} Considering Senz's limited arguments on appeal, and the evidence in a light most favorable to the prosecution, we conclude that the trial court did not err in denying Senz's Crim.R. 29 motion. Part of Senz's argument is that, in order to be found guilty, the State had to demonstrate that it was Senz's purpose to deprive the Medina County Drug Task force of U.S. currency. Thus, he asserts that he had to know that the money belonged to that agency. He bases his argument on the language in the indictment that specifically references the Medina County Drug Task Force/Medina County Commissioners as the owners of the currency. We are unpersuaded by his argument.

{¶ 17} Senz has pointed us to no authority indicating that the State was required to demonstrate that Senz knew the identity of the owner of the property at issue. See App.R. 16(A)(7). In fact, there is case law that indicates that the identity of the owner of the property is not an element of the offense. See State v. Mason , 10th Dist. Franklin No. 91AP-1012, 1992 WL 166111, *5 (July 14, 1992) ("While the name of the person from whom the property was allegedly stolen is typically included in the indictment, it is not an element of a theft offense."); State v. Miller, 2015-Ohio-644, 29 N.E.3d 258, ¶ 30, quoting State v. Jones, 8th Dist. Cuyahoga No. 92921, 2010-Ohio-902, 2010 WL 866131, ¶ 12 (" '[T]he gist of a theft offense is the wrongful taking by the defendant, not the particular ownership of the property.' "); State v. King, 10th Dist. Franklin Nos. 88AP-665, 88AP-1082, 1989 WL 83577, *7 (July 18, 1989) ("[T]he state did not have to prove exactly who owned the property at the time it was stolen."); State v. Bamonte , 1st Dist. Hamilton No. C-850246, 1986 WL 9213, *3-4 (Aug. 27, 1986) ; State v. Denson , 3d Dist. Allen No. 1-83-54, 1984 WL 8125, *2 (Dec. 6, 1984) ("[A]s to proving the theft offense, the identity of the owner is not necessary. What is necessary is that the property was not the defendant's when he took the property."); see also R.C. 2913.01, Legislative Service Commission Comment (1973) ("The gist of theft is a wrongful taking rather than a particular ownership, and it is sufficient that a thief knows that property or services are not his to take."). The Supreme Court has even concluded that, under the statute, "a thief can steal from a thief[.]" State v. Rhodes , 2 Ohio St.3d 74, 76, 442 N.E.2d 1299 (1982). This is so because "it is merely necessary to prove that a defendant deprived someone of property who had 'possession or control of, or any license or any interest in' that property. It is unnecessary, however, for one from whom possession or control is taken to have lawful possession or control[.]" Id. Accordingly, if the State did not have to prove who owned the property, it would seem logical that the State would not have to demonstrate that the defendant knew who owned the property.

{¶ 18} To the extent that Senz generally argues that the State failed to demonstrate that he acted knowingly or purposely, or that he used deception, we also disagree. Viewing the testimony in a light most favorable to the prosecution, there was evidence that Sarno informed Senz that Sarno was supposed to sell someone cocaine and that he planned to "rip him off" by selling fake drugs. Sarno asked Senz if he wanted to make $50 helping Sarno do so. There was evidence that Senz agreed to assist Sarno and that Senz showed up at Sarno's residence at the designated time and took money from Sarno when he came out to Senz's vehicle to meet him. From those circumstances, when considered in light of Senz's limited argument and when viewed in a light most favorable to the prosecution, a trier of fact could infer that Senz had the purpose to deprive the owner of property and knowingly obtained or exerted control over the property by deception. See R.C. 2913.02(A)(3).

{¶ 19} Senz's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 20} Senz argues in his second assignment of error that his conviction for petty theft is against the manifest weight of the evidence.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the fact[-]finder's resolution of the conflicting testimony." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). An appellate court should exercise the power to reverse a judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340, 515 N.E.2d 1009.

{¶ 21} Senz argues that his conviction was against the weight of the evidence because the jury was "so caught in the drug allegations that it chose to ignore the evidence as to the theft charge[ ]" or because Senz' credibility was "ruined by his trial lawyer's asking about his drug trafficking conviction from when he was 18 years old[.]"

{¶ 22} Senz testified in his own defense. Senz, who was 42 at the time of trial, acknowledged that he had a prior conviction for trafficking in marijuana when he was 18 or 19 years old. However, he asserted that since then, he had no history of drug trafficking and was not involved with his brother's drug deals. Nonetheless, he was aware that Sarno was involved in drug trafficking.

{¶ 23} Senz testified that he lost his job in the beginning of January 2015, and was unemployed on February 5, 2015. Thus, money was tight. Sarno, Senz's half-brother, was aware that Senz needed money. Around 1 p.m. on February 5, 2015, Sarno called Senz and offered to loan him money to get license plates because Senz's 30-day plates were about to expire. Sarno told Senz that someone owed Sarno money and that if Senz came over around 5 p.m., Sarno would give Senz $50 to get his license plates.

{¶ 24} When Senz arrived at Sarno's residence, Sarno came outside, hopped in Senz's backseat, handed Senz $60, jumped out, and went back in the house. Senz testified that there was no exchange of drugs, real or counterfeit, or talk about drugs. Senz then left and was shortly thereafter pulled over by the police. Senz denied that he ever confessed to participating in Sarno's drug transaction; Senz testified that he told Director Hubbard exactly what he had just told the jury. Thus, Senz maintained that Director Hubbard was lying when he testified that Senz told Director Hubbard about agreeing to assist Sarno in the transaction.

{¶ 25} In light of Senz's limited argument on appeal, we cannot say that he has demonstrated that the jury lost its way in convicting Senz of petty theft. The jury was not required to believe Senz's version of events and heard from Director Hubbard that Senz had admitted to having a role in Sarno's scheme to steal money by passing counterfeit drugs off as genuine drugs. We remain mindful that the jury had an opportunity to view the witnesses and "was in the best position to assess the credibility of the evidence presented by the parties at trial." State v. Klingel , 2017-Ohio-1183, 88 N.E.3d 455, ¶ 22. "[T]his Court will not overturn the [ ] verdict[s] on a manifest weight of the evidence challenge simply because the jury chose to believe certain witnesses' testimony." (Internal quotations and citations omitted.) State v. Binford , 9th Dist. Summit No. 27950, 2016-Ohio-7678, 2016 WL 6635695, ¶ 10.

{¶ 26} In light of the foregoing, Senz's second assignment of error is overruled.

ASSIGNMENT OF ERROR III

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.

{¶ 27} Senz argues in his third assignment of error that he was denied the effective assistance of counsel when trial counsel brought up Senz's over 20 year old drug trafficking conviction during trial counsel's direct examination of Senz.

{¶ 28} In order to prevail on a claim of ineffective assistance of counsel, Senz must show that his "counsel's performance fell below an objective standard of reasonableness and that prejudice arose from counsel's performance." State v. Reynolds , 80 Ohio St.3d 670, 674, 687 N.E.2d 1358 (1998), citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland at 686, 104 S.Ct. 2052. Thus, a two-prong test is necessary to examine such claims. First, Senz must show that counsel's performance was objectively deficient by producing evidence that counsel acted unreasonably. State v. Keith , 79 Ohio St.3d 514, 534, 684 N.E.2d 47 (1997), citing Strickland at 687, 104 S.Ct. 2052. Second, he must demonstrate that but for counsel's errors, there is a reasonable probability that the results of his trial would have been different. Keith at 534, 684 N.E.2d 47.

{¶ 29} Near the end of trial counsel's direct examination of Senz, trial counsel asked whether Senz had a prior conviction for trafficking in marijuana. Senz replied affirmatively. Senz, who was 42 years old at the time of trial, testified that he was 18 years old when he was convicted. Trial counsel then asked Senz whether he had any history of drug trafficking since that point in time, and Senz replied that he had not.

{¶ 30} On appeal, Senz argues that there was no reason to ask Senz about the drug trafficking conviction, and that doing so only harmed his credibility with the jury. Senz maintains that, due to the age of the conviction, the State would not have been able to ask Senz about it during trial, absent trial counsel opening the door.

{¶ 31} Senz has not demonstrated that trial counsel's tactic prejudiced Senz. Senz was found not guilty of the complicity to commit trafficking in cocaine charge. Accordingly, Senz has not presented any evidence that trial counsel's strategy negatively affected Senz's credibility or that the jury used the evidence of Senz's prior conviction in an improper manner. Thus, Senz has not shown that "but for counsel's error[ ], there is a reasonable probability that the result[ ] of [Senz's] trial would have been different." Keith , 79 Ohio St.3d at 534, 684 N.E.2d 47 ; see also State v. Ellis, 9th Dist. Summit No. 27013, 2014-Ohio-4186, 2014 WL 4724756, ¶ 28 (noting that even if admission of other acts evidence of drug trafficking was improper, such admission was harmless when defendant was acquitted of trafficking charge); State v. Jackson, 1st Dist. Hamilton No. C-110570, 2012-Ohio-2727, 2012 WL 2336738, ¶ 21.

{¶ 32} Senz's third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE COURT COSTS IMPOSED AT THE SENTENCING HEARING INFRINGES UPON APPELLANT'S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, R.C. 2929.18, R.C. 2919[.19](B)(5), R.C. 2947.14, AND RELATED SECTIONS OF THE OHIO CONSTITUTION.

{¶ 33} Senz argues in his fourth assignment of error that the trial court erred in imposing court costs and a fine for his first degree misdemeanor conviction without holding a hearing at the time of sentencing to determine Senz's ability to pay those sums.

{¶ 34} "A trial court generally has discretion in misdemeanor sentencing." State v. Woody , 9th Dist. Lorain No. 14CA010679, 2016-Ohio-631, 2016 WL 698168, ¶ 15, citing State v. Schneider , 9th Dist. Wayne No. 09CA0026, 2009-Ohio-6025, 2009 WL 3806180, ¶ 6. " 'Unless a sentence is contrary to law, we review challenges to misdemeanor sentencing for an abuse of discretion.' " Woody at ¶ 15, quoting Schneider at ¶ 6. An abuse of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 35} Initially, we note that "the imposition of court costs under R.C. 2947.23 does not require the trial court to first consider the defendant's ability to pay." State v. Battle, 9th Dist. Summit No. 27549, 2016-Ohio-2917, 2016 WL 2746058, ¶ 23. Here, at the sentencing hearing, the trial court imposed court costs and a $1000 fine. However, the sentencing entry reflects that the payment of courts costs was waived. "It is axiomatic that a court speaks through its journal entries." State v. Jones, 9th Dist. Lorain No. 15CA010801, 2017-Ohio-1181, 2017 WL 1227098, ¶ 7. In light of the trial court's judgment entry, Senz has not demonstrated that he will be subjected to the payment of court costs. Given all of the foregoing, Senz's argument with respect to costs is without merit.

{¶ 36} With respect to Senz's fine, Senz cites and relies upon R.C. 2929.19(B)(5) for the proposition that the trial court was required to consider his present and future ability to pay the fine. However, R.C. 2929.19(B) relates to felony sentencing, as opposed to misdemeanor sentencing, and thus, would be inapplicable to his circumstances.

{¶ 37} Senz also cites to R.C. 2947.14(A) for the proposition that the trial court was required to hold a hearing at the time of sentencing to determine Senz's ability to pay the fine. R.C. 2947.14(A) provides:

If a fine is imposed as a sentence or a part of a sentence, the court or magistrate that imposed the fine may order that the offender be committed to the jail or workhouse until the fine is paid or secured to be paid, or the offender is otherwise legally discharged, if the court or magistrate determines at a hearing that the offender is able, at that time, to pay the fine but refuses to do so. The hearing required by this section shall be conducted at the time of sentencing.

{¶ 38} On its face, this section addresses sanctions a sentencing court may impose for a defendant's failure to pay a fine when he or she is able to do so. R.C. 2947.14(A). The section provides for a hearing to determine the ability to pay and provides that the hearing shall be conducted at the time of sentencing. Id. Senz has developed no argument as to why this particular section would apply to him, nor has he explained why the sentencing hearing referenced in the statute must be the original sentencing hearing. See App.R. 16(A)(7) ; State v. Ramsey , 5th Dist. Licking No. 13-CA-119, 2014-Ohio-4232, 2014 WL 4748526, ¶ 16 (noting and following "the line of Ohio case law holding the hearing requirement is not triggered until the trial court decides to incarcerate the offender for failure to pay the fine"). Under these circumstances, Senz has failed to meet his burden on appeal to demonstrate that the trial court was required to hold a hearing to determine his ability to pay the fine or that the trial court had to consider his ability to pay the fine. See App.R. 16(A)(7). Senz has failed to develop any argument explaining how the trial court's actions violated the misdemeanor sentencing scheme. We will not develop an argument on his behalf. See Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).

{¶ 39} Senz's fourth assignment of error is overruled.

III.

{¶ 40} Senz's assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed.

Judgment affirmed.

HENSAL, P.J.

TEODOSIO, J.

CONCUR.

      The indictment states that on or about February 5, 2015, "Mark A. Senz unlawfully did, with purpose to deprive the Medina County Drug Task Force/Medina County Commissioners, the owner of property or services, to-wit: U.S. Currency, knowingly obtain or exert control over said property or services, by deception in violation of Section 2913.02(A)(3) of the Ohio Revised Code, a misdemeanor of the first degree (M-1), contrary to the statute in such cases made and provided and against the peace and dignity of the State of Ohio."