text:
    STATE of Ohio, Plaintiff-Appellee, v. Talis GAGE, Defendant-Appellant.
    NO. C-160824
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: December 8, 2017
    Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Liu, Appellate Director, for Plaintiff-Appellee,
    Glaser Law Office and Angela J. Glaser, Cincinnati, for Defendant-Appellant.
   Mock, Presiding Judge.

{¶ 1} Defendant-appellant Talis Gage appeals a conviction for walking in a roadway and impeding traffic under Cincinnati Municipal Code 506-47. We find no merit in his sole assignment of error, and we affirm his conviction.

I. Facts and Procedure

{¶ 2} On September 19, 2015, Gage was arrested and charged with obstructing official business under R.C. 2921.31, a second-degree misdemeanor, and walking in a roadway and impeding traffic, a minor misdemeanor. He first asserted his right to speedy trial on May 26, 2016. He was not tried until October 19, 2016, over a year after his arrest.

{¶ 3} Immediately before trial, the state dismissed the obstructing-official-business charge, and the case proceeded to a bench trial on the minor misdemeanor. Gage was found guilty, and this appeal followed.

{¶ 4} In his sole assignment of error, Gage contends that the trial court erred in denying his motion to dismiss. He argues that the state's delay in bringing him to trial violated both his statutory and constitutional rights to a speedy trial. This assignment of error is not well taken.

II. Standard of Review

{¶ 5} Our review of the trial court's decision involves mixed questions of fact and law. We give due weight to the inferences drawn from the facts found by the trial court as long as they are supported by competent, credible evidence. We review the trial court's conclusions of law de novo to determine whether the facts satisfy the applicable legal standard. State v. Rice , 1st Dist. Hamilton, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 15.

III. Statutory Right to a Speedy Trial

{¶ 6} Gage was charged with a minor misdemeanor and a second-degree misdemeanor, which was not dismissed until the day of trial. R.C. 2945.71(D) provides that "[a] person against whom one or more charges of different degrees * * * all of which arose out of the same act or transaction, are pending shall be brought to trial on all of the charges within the time period required for the highest degree of the offense charged * * *." The state must bring a person charged with a second-degree misdemeanor to trial within 90 days of the person's arrest or the service of summons. R.C. 2945.71(B)(2).

{¶ 7} Because Gage showed that he was not tried within 90 days of his arrest, he established a prima facie violation of the speedy-trial statutes. State v. Brewster , 157 Ohio App.3d 342, 2004-Ohio-2722, 811 N.E.2d 162, ¶ 5 (1st Dist.) ; State v. Hirsch , 129 Ohio App.3d 294, 315, 717 N.E.2d 789 (1st Dist.1998). The state bears the burden to show that actions or events chargeable to the defendant have tolled enough time so that the defendant was tried within the speedy-trial period. State v. Matthews , 1st Dist. Hamilton Nos. C-060669 and C-060692, 2007-Ohio-4881, 2007 WL 2745211, ¶ 28; Brewster at ¶ 6.

{¶ 8} Extensions of the time period within which the state must try the accused are permissible only for the reasons expressed in R.C. 2945.72. State v. Saffell , 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988) ; Matthews at ¶ 28. Those reasons include: (1) any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state; (2) any period of delay necessitated by the accused's lack of counsel; (3) any period of delay occasioned by the neglect or improper act of the accused; (4) any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused; (5) the period of any continuance granted on the accused's own motion; and (6) the period of any reasonable continuance granted other than on the accused's own motion. R.C. 2945.72(A), (C), (D), (E) and (H).

{¶ 9} Gage was arrested on September 9, 2015, and the time began running the following day. State v. Ollison , 9th Dist. Summit No. 27994, 2016-Ohio-7029, 2016 WL 5632176, ¶ 8 ; State v. Stewart , 2d Dist. Montgomery No. 21462, 2006-Ohio-4164, 2006 WL 2336629, ¶ 16. On September 21, 2015, he appeared in court and asked for a continuance to speak to an attorney. On September 28, although he appeared in court, he refused to acknowledge his own presence in the courtroom, and a capias was issued.

{¶ 10} On October 8, 2015, the court journalized a motion and entry recalling the capias and reset the date for an arraignment. The entry specifically stated that Gage "knowingly and voluntarily extends the time limitations to be brought to trial * * * from the date of the original arrest to the next scheduled date." It was signed by the defendant personally, not just his counsel. Thus, Gage knowingly waived his speedy-trial rights from the date of his arrest until October 16, the next scheduled date, and none of that time was chargeable to the state. See State v. King , 70 Ohio St.3d 158, 160, 637 N.E.2d 903 (1994) ; State v. Kristofferson , 1st Dist. Hamilton No. C-050736, 2006-Ohio-6046, 2006 WL 3333593, ¶ 5.

{¶ 11} At the next three hearings held on October 16, October 28, and December 1, 2015, Gage asked for continuances. Thus, the speedy-trial time was tolled. At a hearing on December 17, he failed to appear in court and another capias was issued.

{¶ 12} On February 18, 2016, the court journalized an entry recalling the capias issued on December 17, 2015. Again, Gage himself signed the entry, which stated that he "knowingly and voluntarily extended the time limitations to be brought to trial" from date of his arrest until "the next scheduled date." Gage again waived his speedy-trial rights from the date of his arrest until the next scheduled hearing date on March 3, 2016. Therefore, there was still no time chargeable to the state.

{¶ 13} At two subsequent hearings, on March 3 and March 17, Gage asked for continuances, so that time was also not chargeable to the state. On March 31, the case was referred to the assignment commissioner for a jury trial, which would have started the speedy-trial time running, except that Gage executed another speedy-trial waiver for the period from March 31 until May 4. So, due to either continuances requested by Gage or waivers, no time elapsed that was chargeable to the state from the date of arrest until May 4, 2016.

{¶ 14} On May 4, the case was continued on a "defense request for pretrial" because Gage was incarcerated on pending charges in the Greene County jail. Since the continuance was a result of his motion, the time was not chargeable to the state.

{¶ 15} On May 23, Gage's counsel indicated that he was incarcerated in the Greene County jail and that he wanted to be brought back to Hamilton County for trial. The matter was continued for a jury trial. Gage executed another waiver of the time from May 23, until June 28, 2016.

{¶ 16} The record shows that on May 31, 2016, he withdrew that waiver. The waiver was effective from the date it was executed until the date it was withdrawn. See State v. Boles , 2d Dist. Montgomery No. 18762, 2003-Ohio-2693, 2003 WL 21213383, ¶ 24. But even if we do not consider that waiver, Gage was still tried within the speedy-trial period.

{¶ 17} The time from May 4 to May 23 was not chargeable to the state because the continuance was granted at Gage's request. On May 23, when the matter was set for a jury trial, the time began to run. Gage argues that the state failed to exercise reasonable diligence to have him returned to Hamilton County for trial. We need not consider those arguments because even if we consider all that time to be chargeable to the state, Gage was still tried within the speedy-trial limits.

{¶ 18} The next hearing occurred on May 26, so three days elapsed that were chargeable to the state. At that hearing, Gage moved to dismiss the charges for lack of a speedy trial. The trial court overruled that motion on May 31. The time from May 26 to May 31 was not chargeable to the state because the delay was attributable to Gage's own motion.

{¶ 19} The time again started running on May 31 and continued to run until a hearing on September 13. During that time, a total of 78 days chargeable to the state elapsed, and when added to the three days that had already elapsed, the total was 81 days. At the September 13 hearing, Gage again asked for a continuance, causing the time to be tolled until the trial date of October 19.

{¶ 20} Thus, from the date that Gage was arrested until the October 19, 2016, trial date, only 81 days chargeable to the state elapsed. Therefore, Gage was tried within the speedy-trial period. The trial court did not err in overruling Gage's motion to dismiss based on the alleged violation of his statutory right to a speedy trial.

IV. Constitutional Right to a Speedy Trial

{¶ 21} Gage further contends that the delay violated his constitutional right to a speedy trial. Both the United States and the Ohio Constitution guarantee the right to a speedy trial. State v. Meeker , 26 Ohio St.2d 9, 268 N.E.2d 589 (1971), paragraph one of the syllabus; State v. Pierce , 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, 2017 WL 2964129, ¶ 6. The right to a speedy trial applies to unjustifiable delays both before and after prosecution commences. Meeker at paragraph three of the syllabus; Pierce at ¶ 6.

{¶ 22} In Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth a balancing test for determining whether a defendant's constitutional speedy-trial rights have been violated. The factors to be weighed are "the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 533, 92 S.Ct. 2182. No single factor is determinative. Id. ; Rice , 1st Dist. Hamilton, 2015-Ohio-5481, 57 N.E.3d 84, at ¶ 23. Instead, "they are related factors and must be considered together with such other circumstances as may be relevant." Pierce at ¶ 7, quoting Barker at 533, 92 S.Ct. 2182.

{¶ 23} First Factor-Length of Delay. The first factor is a threshold inquiry. "Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." State v. Jackson , 1st Dist. Hamilton, 2016-Ohio-5196, 68 N.E.3d 1278, ¶ 10, quoting Doggett v. United States , 505 U.S. 647, 651-652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

{¶ 24} In general, courts have found delays over one year to be presumptively prejudicial. State v. Selvage , 80 Ohio St.3d 465, 468, 687 N.E.2d 433 (1997) ; Pierce , 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, 2017 WL 2964129, at ¶ 8 ; Jackson at ¶ 10. This court has held that in a case involving a misdemeanor assault, a nine-month delay was presumptively prejudicial. State v. Sears , 166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, ¶ 12 (1st Dist.). Gage was not tried until over a year after his arrest. Therefore, the delay is presumptively prejudicial and requires this court to consider the remaining factors.

{¶ 25} Second Factor-Reason for the Delay. Gage argues that the state failed to exercise due diligence in getting him back to Hamilton County from Greene County where he was incarcerated on other charges. Gage's argument ignores that the bulk of the delay was attributable to Gage. The state did not ask for a single continuance. Gage asked for seven continuances, failed to appear even when he was not incarcerated elsewhere, failed to acknowledge his own presence at an early hearing, and waived most of the remaining time. Delay that is caused by the defendant does not count against the state. Rice , 1st Dist. Hamilton, 2015-Ohio-5481, 57 N.E.3d 84, at ¶ 25. Under the circumstances, this factor weighs heavily in favor of the state.

{¶ 26} Third Factor-Assertion of the speedy-trial right. The third factor addresses the timeliness and frequency of the defendant's assertion of his speedy-trial rights. Rice at ¶ 27. If a defendant sits on his speedy-trial rights, the factor weighs against the defendant. Jackson , 1st Dist. Hamilton, 2016-Ohio-5196, 68 N.E.3d 1278, at ¶ 14. Gage did not assert his speedy-trial rights until eight months after he had been arrested and only after he had asked for a number of continuances and had repeatedly waived his rights. Therefore, this factor weighs in favor of the state.

{¶ 27} Fourth Factor-Prejudice Caused by the Delay. A court should assess prejudice "in light of the interests of defendants which the speedy trial right was designed to protect." Barker , 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101. In Barker , the court identified three interests: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and (3) to limit the possibility that the defense will be impaired. The last concern is, by far, the most serious. When witnesses "die or disappear during a delay, the prejudice is obvious." Rice , 1st Dist. Hamilton, 2015-Ohio-5481, 57 N.E.3d 84, at ¶ 28, quoting Barker at 532, 92 S.Ct. 2182.

{¶ 28} Gage was not incarcerated prior to trial, so the first interest is not involved here. As to the second interest, these charges may have caused Gage some anxiety and concern, but they would not be as concerning as the felony charges he faced in Greene County.

{¶ 29} As to the prejudice element, this court has stated that in aggravated cases involving excessive delay, prejudice may be presumed despite the defendant's inability to identify particular testimony or evidence that has become unavailable due to the passage of time. Rice at ¶ 28, citing Doggett , 505 U.S. at 655-656, 112 S.Ct. 2686, 120 L.Ed.2d 520. This case is not so egregious that this court will presume prejudice. The eight-month delay in this case does not compare to the years of delay that occurred in cases where prejudice was presumed, especially considering that the state was responsible for very little of the delay. See Doggett at 655-658, 112 S.Ct. 2686 ; Pierce , 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, 2017 WL 2964129, at ¶ 15-17 ; Jackson , 1st Dist. Hamilton, 2016-Ohio-5196, 68 N.E.3d 1278, at ¶ 16-20; Rice at ¶ 28-29.

{¶ 30} The record does not show that Gage suffered actual prejudice from the delay. His defense at trial was not impaired. The offense occurred during a protest of police brutality. It was captured on video and seen by numerous witnesses. Gage did not dispute the facts as set forth by the state. His defense was a legal argument-that he was exercising his First Amendment right to free speech. Therefore, the fourth factor weighs in favor of the state.

{¶ 31} Gage argues that his ability to be released or obtain reasonable bond in Greene County was affected by these pending charges. This argument is purely speculative. Nothing in the record supports this assertion. But even if this assertion is true, it would not tip the balance in Gage's favor.

{¶ 32} With three of the Barker factors weighing in favor of the state, we cannot hold that Gage's constitutional right to a speedy trial was violated. Therefore, the trial court did not err in denying his motion to dismiss for the alleged violation of his constitutional speedy-trial rights.

V. Summary

{¶ 33} In sum, the trial court did not err in denying Gage's motion to dismiss. Consequently, we overrule his sole assignment of error and affirm his conviction.

Judgment affirmed.

Cunningham and Myers, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Cyril and Rosemary BURKHART, Plaintiffs-Appellees, v. Jeff MILEY dba Miley Gas Co., et al., Defendants-Appellants.
    NOS. 15 MO 0012 15 MO 0013 15 MO 0014
    Court of Appeals of Ohio, Seventh District, Monroe County.
    Dated: December 8, 2017
    Attorney Ethan Vessels, 309 Second Street, Marietta, Ohio 45750, For Plaintiffs-Appellees Cyril and Rosemary Burkhart.
    Attorney William Taylor, Attorney Scott Eickelberger, Attorney David Tarbert, Attorney Ryan Linn, 50 North Fourth Street, P.O. Box 1030, Zanesville, Ohio 43702-1030, For Defendants-Appellants Jeff Miley dba Miley Gas Co.
    Attorney Lyle Brown, Attorney Melanie Morgan-Norris, Attorney J. West, 41 South High Street, Columbus, Ohio 43215, For Defendant-Appellant Antero Resources.
    Attorney Gregory Russel, Attorney Peter Lusenhop, 52 East Gay Street, Columbus, Ohio 43216-1008, Attorney Aaron Williams, 200 Public Square, Suite 1400, Cleveland, Ohio 44114, For Amicus Curiae Ohio Oil and Gas Association.
   JUDGES: Hon. Gene Donofrio, Hon. Mary DeGenaro, Hon. Carol Ann Robb

OPINION

DONOFRIO, J.

{¶ 1} Defendant-appellant, Antero Resources Corporation, along with defendant-appellant, Jeff Miley d.b.a. Miley Gas Company, appeal from a Monroe County Common Pleas Court judgment, resulting from a bench trial, finding that a certain oil and gas lease terminated due to the failure of the well at issue to produce in paying quantities.

{¶ 2} Plaintiff-appellee, Rosemary Burkhart, individually and as the representative of the estate of Cyril Burkhart, is the owner of the mineral rights to a 66-acre parcel of property located in Seneca Township in Monroe County (the Property).

{¶ 3} By deed recorded February 2, 1945, Aloysius and Celia Burkhart, as lessors, executed an oil and gas lease with Burns Drilling Company, as lessee (the Lease). Aloysius and Celia were Cyril Burkhart's parents. Aloysius's and Celia's mineral interest passed to Cyril. When Cyril passed away, his mineral interest passed to Rosemary.

{¶ 4} The Lease provides that it is for a term of five years and "so much longer thereafter as oil, gas or their constituents are in paying quantities thereon."

{¶ 5} The Lease covers the entire property. A single well sits on the property (the Well). The Well was drilled in 1945. In 1992, the Burkharts transferred ownership of the Property's surface rights to Leo and Judith Loraditch. The Burkharts reserved the mineral rights to the Property.

{¶ 6} On October 11, 2011, the Burkharts recorded a Preservation Notice of Ownership in Oil and Gas Rights for the purpose of preserving their reserved mineral interest.

{¶ 7} In 2011, defendant-appellant, Jeff Miley d.b.a. Miley Gas Company (Miley), purchased the Well from RMB Production Corporation. The Lease was also assigned to Miley. The assignment of the Lease from RMB to Miley was recorded April 12, 2011. In 2012, Miley assigned the deep rights of the Lease to defendant-appellant, Antero Resources Corporation (Antero).

{¶ 8} On July 26, 2013, Burkhart filed a complaint against Miley. The complaint alleged that the primary term of the Lease expired on December 6, 1949, and there has not been sufficient production to continue the Lease. Therefore, Burkhart sought a declaration that the Lease expired under its own terms. She later amended the complaint to add Antero as a defendant.

{¶ 9} The case proceeded to a bench trial on October 1, 2014. The trial court found that Miley had operated the Well in good faith and that it was profitable. The court found that Miley had declared a profit from its operation of the Well on tax returns in 2011, 2012, and 2013.

{¶ 10} The trial court found there was confusion regarding the name and API number of the Well stemming from a sign hanging on the wellhead identifying the Well as the "Burkhart, No.: 1Permit; Unknown." and the Form 7 (Request for Change of Owner), which identified the Well as the "Burkhart No. 2 API 20368." The court went on to find that the evidence demonstrated the Well located on the Property is actually the Well designated as API No. 20368. It found that the argument that Miley had been using the production from a well located off of the Property (No. 20334) to hold the Lease was not supported by the evidence. The court found that the Ohio Department of Natural Resources (ODNR) records placed Well No. 20334 in a location that did not match the legal description of the Property. Moreover, the court found that the drilling of Well No. 20334 was completed prior to the execution of the Lease and the ODNR described this well as a non-producing historic well. On the other hand, the court found that Well No. 20368 is located in the southwest quarter of section 4, in which a portion of the Property is also located. And ODNR records reflected that Well No. 20368 was drilled approximately one month after the execution of the Lease.

{¶ 11} Thus, the court found that the production from Well No. 20368 located on the Property was continuous and profitable. Therefore the court found that the Lease remained in full force because the Well was producing in paying quantities. The court entered judgment in favor of Miley and Antero.

{¶ 12} Following the judgment in favor Miley and Antero, Burkhart filed a motion for new trial or to amend the court's findings of fact and conclusions of law. Burkhart alleged that Jeff Miley made knowing misrepresentations to the court during the trial. In the motion, Burkhart did not take issue with the court's finding that the Well was located on the Property. But Burkhart argued that the court's finding that Miley made a profit from 2011-2013 was incorrect. She noted that Jeff Miley and his wife Meleesa both testified that they declared a profit in those years. But Burkhart stated that Miley actually declared a loss in 2012 and 2013. She stated that she obtained this information by way of a motion to compel in another case where Miley produced his tax records. She further asserted that Miley's tax records reported money spent for contract labor, repairs, and maintenance, contrary to his testimony that he did his own repairs.

{¶ 13} The trial court found that Burkhart presented good cause to reopen its previous judgment and take additional testimony on the issue of Miley's tax returns.

{¶ 14} The court held a hearing where it took additional testimony and evidence on the sole issue of whether Miley had been profitably producing oil or gas from the Well under the Lease.

{¶ 15} The court found that at the initial trial, Jeff Miley had testified for the relevant tax years of 2010-2013, Miley was profitable and did not declare a loss. But the court found Miley's tax records showed otherwise. It noted that Miley declared a loss in 2012 and 2013. Additionally, it found that the tax returns demonstrated that much of Miley's gross revenue did not come from the sale of oil and gas but from contract work that Jeff Miley performed for other oil and gas operators. The court went on to find that Miley did not report any production for 2011-2103 until late 2013, when Antero suggested that Miley submit its production to the ODNR. Based on this disclosure, the court inferred that the 2011 and 2012 production numbers were merely estimates. The court noted it was undisputed by Jeff Miley that it would be virtually impossible for any third party to look at documentary evidence and independently verify that the Well is profitable. The court also noted, however, that Miley's tax preparer testified that the Schedule C forms for 2012 and 2013, did not show the expenses associated with the production of oil and gas exceeded the revenues from the sale of oil and gas.

{¶ 16} The trial court found that Miley has a major financial incentive to claim that the Well is profitable. It further found significant that Miley did not report any production for the years 2011 and 2012, until directed by Antero do to so in late 2013. Finally, the court found that a lessee who claims his lease is profitable yet whose tax return shows a loss casts "real doubt" on the actual profitability. Based on these findings, the trial court found the Lease was cancelled for lack of production. Therefore, the court vacated its previous judgment and entered judgment in favor of Burkhart.

{¶ 17} Antero subsequently filed a motion for new trial and to reopen and amend the judgment entry.

{¶ 18} Miley filed a timely notice of appeal on June 26, 2015 (15-MO-12). Miley then filed a motion joining in Antero's motion for new trial.

{¶ 19} Antero then filed a notice of appeal (15-MO-13). The trial court, without leave, denied the motion for a new trial. Antero filed another notice of appeal from that judgment (15-MO-14).

{¶ 20} This court then issued a limited remand so that the trial court could rule on the motion for new trial. The trial court denied the motion. This court then consolidated the appeals. This court also granted the Ohio Oil and Gas Association and the Southeastern Ohio Oil and Gas Association leave to file an amicus curiae brief in support of Antero and Miley.

{¶ 21} Antero raises five assignments of error. Miley raises three assignments of error. We will address the assignments of error out of order for ease of discussion.

{¶ 22} Antero's second assignment of error and Miley's second assignment of error control the outcome of this case.

{¶ 23} Antero's second assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DID NOT USE THE CORRECT LEGAL STANDARD AND BURDEN OF PROOF IN DETERMINING IF THERE WAS PRODUCTION IN PAYING QUANTITIES.

{¶ 24} Miley's second assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN APPLYING THE WRONG LEGAL STANDARD IN DETERMINING WHETHER AN OIL AND GAS LEASE REMAINS IN EFFECT.

{¶ 25} Here Antero argues the trial court erred in focusing on the overall profitability of the Lease's total operation instead of on the profitability of the Well and in shifting the burden of proof to appellants to prove production in paying quantities. Antero points out that the law defers to the lessee's determination as to the profitability of a well. It asserts paying quantities refers to a "well" as opposed to a "lease." Antero goes on to argue that the cost of the lessee's own labor in operating and maintaining a well is not considered when determining paying quantities.

{¶ 26} Antero contends the trial court was correct in its First Decision when it limited its focus to the profitability of the Well and concluded there was production in paying quantities. It asserts the court erred in its Second Decision when it focused instead on the overall profitability of Miley's operations as opposed to the profitability of the Well.

{¶ 27} Additionally, Antero argues the trial court impermissibly shifted the burden from the Burkharts (to prove lack of paying quantities) to them (to prove paying quantities).

{¶ 28} Miley adds that the Lease provides that it will continue so long as oil and gas are produced in paying quantities, not so long as the lessee declares a profit on its Schedule C with the IRS. It further points to testimony that these payments are consistent with the royalties paid to the Burkharts. Finally, it points to Jeff Miley's testimony that the Well is profitable and his expenses for the Well are de minimis.

{¶ 29} After the primary term of an oil and gas lease expires, if the conditions of the secondary term are not being met, then the lease terminates by the express terms of the contract and by operation of law and revests the leased estate in the lessor. Swallie v. Rousenberg , 190 Ohio App.3d 473, 2010-Ohio-4573, 942 N.E.2d 1109 (7th Dist.), ¶ 63. It is common for the secondary term of the lease to be conditioned upon oil or gas being produced in paying quantities. Dennison Bridge, Inc. v. Resource Energy, L.L.C. , 7th Dist. No. 14 HA 21, 2015-Ohio-4736, 50 N.E.3d 242, ¶ 21.

{¶ 30} The term "paying quantities," when used in the habendum clause of an oil and gas lease, generally means quantities of oil or gas sufficient to yield even a small profit to the lessee over operating expenses, even though such things as drilling costs or equipping costs are not recovered which may result in the undertaking as a whole suffering a loss. Blausey v. Stein , 61 Ohio St.2d 264, 265-266, 400 N.E.2d 408 (1980).

{¶ 31} In determining whether a well is profitable, courts look to the discretion of the lessee. Lang v. Weiss Drilling Co. , 7th Dist. Nos. 15 MO 0005, 15 MO 0006, 2016-Ohio-8213, 70 N.E.3d 625, ¶ 34. Although the lessee has discretion to determine a well's profitability, the determination of whether a well is profitable cannot be arbitrary. Id. Courts impose a standard of good faith on the lessee. Id.

{¶ 32} This case is controlled by another decision of this court involving The Burkhart Family Trust and Antero. Burkhart Family Trust v. Antero Resources Corp. , 7th Dist. Nos. 14 MO 0019, 14 MO 0020, 2016-Ohio-4817, 68 N.E.3d 142, appeal not allowed, 147 Ohio St.3d 1437, 2016-Ohio-7677, 63 N.E.3d 156.

{¶ 33} In that case, the Burkhart Family Trust (BFT) filed a complaint against Antero and Tri-County seeking a declaratory judgment that a certain lease had been forfeited for lack of production in paying quantities. The matter proceeded to a bench trial and the trial court entered judgment in favor of BFT. Antero and Tri-County appealed to this court. They argued that the trial court improperly placed the burden of proof on them at trial to prove that the wells in question were producing in paying quantities. Id. at ¶ 10. Instead, they asserted, because BFT brought the complaint against them, the trial court should have placed the burden on BFT to prove that the wells were not producing in paying quantities. Id.

{¶ 34} This court started out by noting that although the case involved an oil and gas lease, its resolution depended on the Rules of Civil Procedure, specifically who held the burden of proof. Id. at ¶ 12. We found that although the trial court never directly stated which party bore the burden of proof, it was clear from the record that the court improperly shifted the burden to Antero and Tri-County. Id. For example, we pointed to the trial court's finding that Sulsberger, Tri-County's owner, had presented "no credible evidence to support his blanket assertion" that the wells were profitable. Id. We further pointed to the trial court's finding that Sulsberger did not keep a business ledger, bookkeeping software, or list of the income versus expenses for his company. Id.

{¶ 35} We went on to address Sulsberger's testimony. We noted that Sulsberger was BFT's sole witness. Id. at ¶ 15. Sulsberger testified that the wells were producing in paying quantities. Id. The trial court found Sulsberger's testimony to be not credible. Id. We found that while the trial court disbelieved Sulsberger, this did not lead to the conclusion that Sulsberger's testimony was evidence of the opposite, that being that the wells were not producing in paying quantities. Id. Instead, it left BFT with no credible witness. Id.

{¶ 36} We then addressed the trial court's finding that the wells were not producing in paying quantities. We noted that only some of the trial court's findings were relevant to whether the wells produced in paying quantities and those relevant findings were not supported by the record. Id. at ¶ 21.

{¶ 37} First, we pointed to the trial court's finding that Sulsberger had miscalculated the royalties paid to BFT. Id. at ¶ 22. We found that any miscalculation of royalties was irrelevant to the question of paying quantities. Id. Thus, we found the trial court improperly considered this factor.

{¶ 38} Second, we pointed to the trial court's finding that Sulsberger failed to report production to the ODNR and the county auditor. Id. at ¶ 23. We stated that the failure to file production reports with the ODNR did not add to the determination of whether a well is producing. Id. , citing Mobberly v. Wade , 7th Dist. No. 13 MO 18, 2015-Ohio-5287, 44 N.E.3d 313, ¶ 16.

{¶ 39} Third, we noted that while Sulsberger testified as to his Schedule C tax forms, they were not offered into evidence. Id. at ¶ 24. We noted that although Sulsberger testified that his Schedule C showed a loss in certain years, he testified that the form contained business expenses for all of his business projects, not just the wells in question. Id. Therefore, while his Schedule C may have shown that his projects as a whole were unprofitable, it did not provide information specific to the wells at issue. Id. Thus, we found it had no evidentiary value to the issue of production in paying quantities. Id.

{¶ 40} Fourth, we noted that the trial court relied on its finding that Sulsberger was a poor record keeper. Id. at ¶ 25. We found that aside from its reliance on Sulsberger's lack of records, BFT did not present any evidence to support its position that the wells were not producing in paying quantities. Id.

{¶ 41} Fifth, we noted that Sulsberger regularly paid royalties to BFT. Id. at ¶ 25, 28. And we stated that while not conclusive, the payment of royalties is some evidence of production in paying quantities. Id. at ¶ 28.

{¶ 42} Finally, we noted that the trial court relied on the finding that Sulsberger's company stood to profit by holding on to the lease until deep drilling on the property was completed. Id. at ¶ 29. We found this finding to be irrelevant to the issue of paying quantities. Id.

{¶ 43} Based on all of the above, this court concluded:

While Mr. Sulsberger's lack of records is troubling and he clearly convinced the trial court that he was untruthful, the fact remains that the Burkhart family, on behalf of the Trust, had the burden of proving by means of evidence that the wells (that they admit produce) do not produce in paying quantities. In support of shifting the burden of proof to Appellants, Appellee argued at hearing that this would force them into proving the negative. It is apparent the Burkhart family had the ability to use discovery to uncover evidence necessary to prove their assertions. Instead of subpoenaing Tri-County's records or subpoenaing any other type of evidentiary records on the issue of whether paying quantities of either gas or oil were being produced, the Burkhart family insists that Appellants were required to prove the production from the wells was adequate in order to withstand their demands for termination of the lease. As the Trust has failed to meet its burden, the trial court's judgment is erroneous.

Id. at ¶ 29.

{¶ 44} In this case too, the trial court incorrectly placed the burden on Miley and Antero to prove that the Well was producing in paying quantities instead of placing the burden on Burkhart to prove that the Well was not producing in paying quantities. The trial court here, like the trial court in BFT , considered several factors we deemed in BFT to be irrelevant to a determination of paying quantities.

{¶ 45} First, the trial court found that Miley's tax returns revealed that Miley declared a loss of $10,211 in 2012, and a loss of $76,126 in 2013. It also found that the tax returns demonstrated that much of Miley's gross revenues did not come from the sale of oil and gas but from contract work that Jeff Miley performed for other oil and gas operators.

{¶ 46} Notably absent from the trial court's finding here is any mention of how the Well at issue performed. Miley's tax returns are not specific to the Well. They encompass all of Miley's operations including, as the trial court noted, work Jeff Miley performed for other oil and gas operators. And while Miley as a company overall may have declared losses in 2012 and 2013, there is no indication as to whether the Well produced oil and gas in paying quantities in those years. Therefore, the court erred in relying on this factor.

{¶ 47} Second, the trial court found that Miley did not report any production on any of its wells, including the Well at issue, until late 2013. At that time, after a suggestion by Antero, Miley submitted production reports to the ODNR. The trial court then, "clearly infer[ed] that the 2011 and 2012 production numbers are mere estimates by Mr. Miley." It also found it "significant" that Miley did not report any production in 2011 or 2012.

{¶ 48} We stated in BFT that "the failure to file production reports with ODNR does not add to the determination of whether a well is producing." Id. at ¶ 23, citing Mobberly , 2015-Ohio-5287, 44 N.E.3d 313, ¶ 16. Thus, the fact that Miley did not timely submit production reports to the ODNR does not help to determine whether the Well produced in paying quantities.

{¶ 49} Third, the trial court found it was undisputed by Jeff Miley that it would be "virtually impossible" for a third party to look at documentary evidence presented by Miley and verify that the Lease was profitable.

{¶ 50} This statement by the trial court is an example of how the trial court placed the burden of proof on Miley to show production in paying quantities. We found similar statements by the trial court in BFT , to show that the trial court impermissibly shifted the burden of proof. Id. at ¶ 12 (where the trial court found Sulsberger did not keep a business ledger, did not have any electronic bookkeeping software, and did not keep a list of the income versus expenses). Thus, the trial court improperly shifted the burden from Burkhart to Miley.

{¶ 51} Fourth, the trial court found that Miley had a "major financial incentive" to claim the Well is profitable and Miley "obviously stand[s] to profit immensely by maintaining the current Lease." The court found that the deep rights were assigned to Antero whose production efforts could result in a "financial windfall" to Miley.

{¶ 52} In BFT , we specifically found that the trial court's reliance on the finding that the lessee stood to profit by holding onto the lease until deep drilling was completed was irrelevant to the issue of paying quantities. Id. at ¶ 29. In fact, we stated that whether the lessee would profit from deep drilling activities "has no bearing at all on the pertinent determination." Id. Thus, the trial court here erred in relying on this factor.

{¶ 53} Fifth, the trial court found that a lessee who claims its lease is profitable yet the tax returns show a loss "casts real doubt on his actual profit."

{¶ 54} This statement by the trial court is another example of shifting the burden to prove paying quantities to Miley.

{¶ 55} Finally, there was no dispute here that Miley had been paying royalties to Burkhart, yet the trial court did not mention this in its findings. And "[w]hile not conclusive evidence, royalty payments can be evidence of production in paying quantities." RHDK Oil & Gas, L.L.C. v. Dye , 7th Dist. No. 14 HA 0019, 2016-Ohio-4654, 2016 WL 3522555, ¶ 30.

{¶ 56} The party who asserts a claim in an oil and gas case, just as in any other civil case, carries the burden of proof. Burkhart Family Trust , 2016-Ohio-4817, 68 N.E.3d 142, at ¶ 13. Thus, in this case, the burden was on Burkhart to prove that the Well was not producing in paying quantities. The trial court's findings, however, demonstrate that it placed the burden on Miley and Antero to prove the Well was producing in paying quantities. Moreover, in making its determination, the trial court relied on several factors this court has found to be irrelevant to a paying quantities determination. Therefore, the trial court erred in finding that the Well was not producing in paying quantities and in entering judgment in favor of Burkhart.

{¶ 57} Accordingly, Antero's second assignment of error has merit and is sustained. Likewise, Miley's second assignment of error has merit and is sustained.

{¶ 58} Antero's first assignment of error states:

THE TRIAL COURT ERRED IN ENTERING A JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE.

{¶ 59} Antero's third assignment of error states:

THE TRIAL COURT'S JUDGMENT AND DECISION ISSUED MAY 27, 2015 ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND A VIOLATION OF SUBSTANTIAL JUSTICE.

{¶ 60} Antero's fourth assignment of error states:

THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL TO APPELLEE PURSUANT TO CIVIL RULE 59.

{¶ 61} Antero's fifth assignment of error states:

THE TRIAL COURT ERRED IN VACATING ITS NOVEMBER 7, 2014 JUDGMENT IN ITS ENTIRETY.

{¶ 62} Miley's first assignment of error states:

THE TRIAL COURT ERRED IN VACATING ITS PRIOR JUDGMENT ENTRY AND ENTERING A JUDGMENT IN FAVOR OF APPELLEE ON MAY 27, 2015.

{¶ 63} Miley's third assignment of error states:

THE TRIAL COURT'S SECOND JUDGMENT ENTRY DATED MAY 27, 2015 IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND A VIOLATION OF SUBSTANTIAL JUSTICE.

{¶ 64} Given our resolution of Antero's second assignment of error and Miley's second assignment of error, the remaining assignments of error are moot.

{¶ 65} For the reasons stated above, the trial court's judgment is hereby reversed. Judgment is entered in favor of Antero and Miley.

DeGenaro, J., concurs.

Robb, P.J., concurs.


author: PRESTON, P.J.,

text:
    STATE of Ohio, Plaintiff-Appellee, v. Evred J. LOGAN, Defendant-Appellant.
    NO. 1-16-28
    Court of Appeals of Ohio, Third District, Allen County.
    Date of Decision: December 11, 2017
    Terrence K. Scott for Appellant
    Terri L. Kohlrieser for Appellee
   PRESTON, P.J.,

{¶ 1} Defendant-appellant, Evred J. Logan ("Logan"), appeals the May 9, 2016 judgment entry of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.

{¶ 2} This case stems from an agreement between Logan and Timothy Cole ("Cole") and Jenna Shofner ("Shofner") in which Logan agreed to provide Cole and Shofner heroin in exchange for performing renovation-work at Logan's house. Unsurprisingly, the agreement soured and Logan allegedly compelled Cole and Shofner to perform renovation work at his house against their will on December 27-29, 2015.

{¶ 3} On February 11, 2016, the Allen County Grand Jury indicted Logan on three counts, including: Count One of kidnapping in violation of R.C. 2905.01(A)(6), (C)(1), a first-degree felony; Count Two of kidnapping in violation of R.C. 2905.01(A)(6), (C)(1), a first-degree felony; and Count Three of felonious assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), a second-degree felony. (Doc. No. 3). Counts One and Two of the indictment include a specification under R.C. 2941.145(A) alleging that Logan committed the offenses with a firearm. (Id. ).

{¶ 4} On February 19, 2016, Logan appeared for arraignment and entered pleas of not guilty. (Doc. No. 12).

{¶ 5} Prior to the start of trial, Logan's trial counsel informed the trial court that Logan wished to proceed pro se. (Mar. 28-30, 2016 Tr., Vol. I, at 4-5). The trial court conducted an ex parte hearing with Logan and his trial counsel regarding Logan's reasoning for his decision, then discussed, on the record, Logan's decision to represent himself at trial. (See id. at 6-22, 23-31). After Logan singed a waiver of counsel, the trial court permitted him to represent himself. (Id. at 32); (Doc. No. 62).

{¶ 6} The case proceeded to a jury trial on March 28-30, 2016. (Mar. 28-30 Tr., Vol. I, at 1); (Mar. 28-30, 2016 Tr., Vol. II, at 263, 348). On March 30, 2016, the jury found Logan guilty of the counts in the indictment and not guilty as to the specifications in the indictment. (Doc. Nos. 66, 67, 68, 70); (Mar. 28-30, 2016 Tr., Vol. II, at 348-352). The trial court filed its judgment entry of conviction that same day. (Doc. No. 70). On May 9, 2016, the trial court sentenced Logan to 4 years in prison on Count One, 4 years in prison on Count Two, and 7 years in prison on Count Three, and ordered that Logan serve the terms consecutively for an aggregate sentence of 15 years in prison. (Doc. No. 73).

{¶ 7} On June 8, 2016, Logan filed his notice of appeal. (Doc. No. 76). He raises two assignments of error for our review.

Assignment of Error No. I

The trial court violated Evred J. Logan's rights to due process and a fair trial when, in the absence of sufficient evidence, Mr. Logan was convicted of Counts 1 and 2, kidnapping. Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution. (Tr. p. 78-80, 84, 87, 88, 89, 152, 153, 157, 194, 201, and 203; May 9, 2016 Sentencing Hearing Tr. p. 13 and 14).

{¶ 8} In his first assignment of error, Logan argues that his kidnapping convictions are based on insufficient evidence. Specifically, Logan argues that there is insufficient evidence that he restrained Cole's and Shofner's liberty and that there is insufficient evidence that he purposefully held Cole and Shofner in a condition of involuntary servitude.

{¶ 9} "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."

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Accordingly, "[t]he 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. "In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." State v. Jones , 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, 2013 WL 5864591, ¶ 33, citing State v. Williams , 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.). See also State v. Berry , 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, 2013 WL 2638704, ¶ 19 ("Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence."), citing Thompkins at 386.

{¶ 10} Logan was convicted of two counts of kidnapping in violation of R.C. 2905.01(A)(6), which provides, in relevant part:

(A) No person, by force, threat, or deception * * * shall * * * restrain the liberty of the other person, for any of the following purposes:
* * *
(6) To hold in a condition of involuntary servitude.

{¶ 11} Because they are the only elements Logan challenges on appeal, we will address only whether the evidence, when viewed in a light most favorable to the prosecution, is such that a rational trier of fact could have found that: (1) Logan restrained Cole's and Shofner's liberty; and (2) Logan purposefully held Cole and Shofner in a condition of involuntary servitude.

{¶ 12} "Restraining an individual's liberty means limiting or restraining their freedom of movement. The restraint need not be for any specific duration or in any specific manner." State v. Williams , 10th Dist. Franklin No. 16AP-540, 2017-Ohio-5598, 2017 WL 2813997, ¶ 19, citing State v. Taylor , 10th Dist. Franklin No. 14AP-254, 2015-Ohio-2490, 2015 WL 3857079, ¶ 18, citing 2 Ohio Jury Instructions , CR Section 505.01(A) (Rev. Jan. 20, 2007).

A person acts purposely when it is the person's 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 the offender's specific intention to engage in conduct of that nature.

R.C. 2901.22(A).

{¶ 13} R.C. 2905.01(D) provides that "involuntary servitude" has the same meaning as in R.C. 2905.31. R.C. 2905.31 defines "involuntary servitude" as "being compelled to perform labor or services for another against one's will." R.C. 2905.31(A). The phrase "involuntary servitude" as an element of kidnapping has not been interpreted either before or after the General Assembly enacted Sub.S.B. No. 235. Compare State v. Nelson , 8th Dist., 2017-Ohio-6883, 83 N.E.3d 1009, ¶ 47 (noting that "[t]here is not a lot of case law interpreting the phrase 'involuntary servitude' as an element of abduction either before or after the General Assembly enacted Am.Sub.S.B. No. 235" and inability to find "any cases addressing the definition of 'involuntary servitude, as set forth in R.C. 2905.31"). Construing the definition of involuntary servitude under R.C. 2905.31, the Eighth District Court of Appeals "look[ed] to the intent of the legislature when it enacted [ ]Sub.S.B. No. 235," which was Ohio's "first anti-trafficking law." Id. at ¶ 46 ; Rocha, Our Backyard Slave Trade: The Result of Ohio's Failure to Enact Comprehensive State-Level Human-Sex Trafficking Legislation , 25 J.L. & Health 415, 416 (2012). Because the definition of involuntary servitude is intertwined with the topic of human trafficking, we must review the historical roots of that topic.

{¶ 14} "Human trafficking legislation is rooted in the Thirteenth Amendment to the United States Constitution, which expressly states that '[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.' " Rocha at 425, quoting the Thirteenth Amendment. "Similarly, the Ohio Constitution states that '[t]here shall be no slavery in this state; nor involuntary servitude, unless for the punishment of crime.' " Nelson at ¶ 48, quoting the Ohio Constitution.

{¶ 15} "In 1948, Congress enacted Section 1582 of the United States Code to consolidate previous anti-slavery statutes and to criminalize involuntary servitude." Rocha at 425, citing 18 U.S.C. 1584. However, because Congress did not define the phrase "involuntary servitude," "courts were left to interpret Congress' intent." Id. , citing 18 U.S.C. 1584.

Courts have defined the phrase "involuntary servitude" * * * under the Thirteenth Amendment in various contexts. In U.S. v. Kozminski , the United States Supreme Court explained that "involuntary servitude" exists if a person is forced to work "by the use or threatened use of physical or legal coercion."

Nelson at ¶ 49, quoting 487 U.S. 931, 943-944, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988). In that case, the Supreme Court concluded that "Congress' original intent was to forbid conditions prevalent during the African Slave trade, namely compulsory labor." Rocha at 425, citing Kozminski at 942-943, 108 S.Ct. 2751.

The Eighth District further documented:

In Rowe v. Elyria , a property owner complained * * * that enforcement of a city mowing ordinance subjected him to involuntary servitude in violation of the Thirteenth Amendment to the United States Constitution. The property owner complained that forcing him to mow the grass or pay a fine could be characterized as a "badge or incident of slavery." Citing Kozminski , the Sixth Circuit explained that while the Thirteenth Amendment was not limited to the abolishment of African slavery, the phrase "involuntary servitude" was intended to cover forms of compulsory labor akin to African slavery that "in practical operation would tend to produce like undesirable results." The Sixth Circuit concluded[,] "While we have not located any cases discussing the imposition of charges for failing to maintain property, we conclude that even if the tree lawn is owned by the city enforcement of the mowing ordinance does not involve the kind of compulsion that would constitute involuntary servitude under the Thirteenth Amendment."

Nelson at ¶ 50, quoting Rowe v. Elyria , 38 Fed.Appx. 277, 283 (6th Cir.2002). The Eighth District further documented:

The [United States District Court for the Northern District of Ohio] in Midwest Retailer Associated, Ltd. v. Toledo , expressed a similar interpretation of the phrase "involuntary servitude," stating that "[t]he contemporary view is that involuntary servitude claims, to be cognizable, relate to extreme cases, such as labor camps, isolated religious sects, and forced confinement."

Id. at ¶ 51, quoting Midwest Retailer Associated, Ltd. v. Toledo , 563 F.Supp.2d 796, 809 (N.D.Ohio 2008), citing Alkire v. Irving , 330 F.3d 802, 816-817 (6th Cir.2003) ("explaining that when defendant is indigent, imprisonment for failure to pay fines is a violation of the Thirteenth Amendment"), United States v. King , 840 F.2d 1276, 1280 (6th Cir.1988) ( "members of religious sect 'repeatedly used and threatened to use physical force to make the children [at their camp] perform labor and the children believed they had no viable alternative but to perform such labor' "), Jobson v. Henne , 355 F.2d 129, 131-132 (2d Cir.1966) ("patients in mental institution performing required labor stated claim for violation of Thirteenth Amendment"), and Santiago v. City of Philadelphia , 435 F.Supp. 136, 156-157 (E.D.Pa.1977) ("refusing to dismiss Thirteenth Amendment claim filed by juveniles detained and forced to work at a youth service center").

{¶ 16} From there, the Eighth District addressed the human-trafficking purpose behind Sub.S.B. 235 and noted that " 'trafficking refers to the elements of "fraud, force, or coercion" that result in the victim's inability to escape the traffickers' control." Id. at ¶ 55, quoting Rocha at 420. See also Rocha at 420 ("traffickers compel victims * * * through a variety of coercive measures, including the use of brutal violence, threats of deportation, and threats of violence against family members."). Although the topic of human trafficking most often rears its head when discussing sex crimes, the involuntary-servitude prohibition under R.C. 2905.01 does not require the compulsion of sexual acts. See Nelson at ¶ 55, quoting Rocha at 421 (" 'Human trafficking can be either sex trafficking or labor trafficking.' "). Indeed, as the Eighth District espoused, the historical roots of human-trafficking legislation stem from the intent to criminalize forced labor. " 'Labor trafficking may consist of forced labor, debt bondage, involuntary domestic servitude, and forced child labor.' " Id. , quoting Rocha at 421, citing 18 U.S.C. 1589 and 22 U.S.C. 7102. As such, inherent in the definition of involuntary servitude-"being compelled to perform labor or services for another against one's will"-are the concepts underlying the labor-trafficking component of human trafficking. Compare R.C. 2905.31(A)with 18 U.S.C. 1589 and 22 U.S.C. 7102(6).

{¶ 17} Logan argues that the State failed to prove that he restrained the liberty of Cole and Shofner for the purpose of holding them in a condition of involuntary servitude because Logan "was extracting retribution [against Cole and Shofner] for stealing the pills" when Logan "orchestrated the fight between Ms. [Valerie] Johnson [ ("Johnson") ] and Ms. Shofner." (Appellant's Brief at 8). We disagree. The State presented sufficient evidence that Logan restrained Cole's and Shofner's liberty with the purpose of holding them in a condition of involuntary servitude. That is, based on the testimony presented at trial, a rational juror could conclude that Logan limited or restrained Cole's and Shofner's freedom of movement for the purpose of performing labor or services against their will.

{¶ 18} Shofner testified at trial that she became acquainted with Logan during the summer of 2015. (Mar. 28-30, 2016 Tr., Vol. II, at 182-183). Cole was introduced to Logan in November or December of 2015. (Mar. 28-30, 2016 Tr., Vol. I, at 61, 70). Logan became Cole's and Shofner's heroin dealer. (Id. at 70). According to Cole, in exchange for Logan providing him heroin, Cole agreed to renovate portions of Logan's house. (Id. at 71-74). Cole testified that his arrangement with Logan was copacetic at first but began to sour around Christmas 2015. (Id. at 73-81).

{¶ 19} Shofner testified that she and Cole went to Logan's house on December 27 "to work on his house" and to take "some pills over to trade him" for heroin. (Mar. 28-30, 2016 Tr., Vol. II, at 189-190). (See also Mar. 28-30, 2016 Tr., Vol. I, at 82-83). After they gave Logan the pills, Logan refused to give them heroin. (Mar. 28-30, 2016 Tr., Vol. II, at 190-191). (See also Mar. 28-30, 2016 Tr., Vol. I, at 82-84). Cole protested. (Mar. 28-30, 2016 Tr., Vol. II, at 191). According to Shofner, in response to Cole's protest, Logan said, " 'Are we going to have a problem? You can either stay and work or you can take this ass whipping and leave.' " (Id. ). (See also Mar. 28-30, 2016 Tr., Vol. I, at 84). After that exchange, Logan "went to go get in the shower and asked [them] if he was going to have to worry about [their] running off, and [Cole and Shofner] told him 'no.' " (Mar. 28-30, 2016 Tr., Vol. II, at 191). (See also Mar. 28-30, 2016 Tr., Vol. I, at 84). Cole and Shofner "grabbed the four pills" and left. (Mar. 28-30, 2016 Tr., Vol. II, at 191-192).

{¶ 20} Cole testified that Logan contacted him by text message later that day and "said that if [they] came back he would pay [them]." (Mar. 28-30, 2016 Tr., Vol. I, at 86). Cole responded to Logan that he did not want to return to his house because he "was afraid that he was going to punch [him], or try to harm [him]." (Id. ). Cole testified that Logan "said that he wasn't [going to hurt him], that he just wanted to get the work done." (Id. ). Based on Logan's assurance, Cole and Shofner returned to Logan's house, but Logan was not at the house when they arrived. (Id. at 86-87). (See also Mar. 28-30, 2016 Tr., Vol. II, at 192-193). When Logan arrived, he implied that he "tricked" Cole and Shofner into returning to his house. (Mar. 28-30, 2016 Tr., Vol. I, at 87) (Cole testified that Logan said, "You fell for my little trap"); (Mar. 28-30, 2016 Tr., Vol. II, at 194) (Shofner testified that Logan asked, " 'Do you guys like how I tricked you?' "). Then, Johnson appeared. (Mar. 28-30, 2016 Tr., Vol. I, at 87); (Mar. 28-30, 2016 Tr., Vol. II, at 194). Shofner knew she "was in trouble" because Logan "threatened [her] with [Johnson] before by saying "things like, 'Don't make me have to sic [Johnson] on your ass.' " (Mar. 28-30, 2016 Tr., Vol. II, at 194). When Shofner saw Johnson, she dialed 911. (Id. ).

{¶ 21} Shofner testified, "[Johnson] hit [Cole] a few times" but Logan instructed Johnson, " 'Don't hit him. Hit her,' " with which Johnson complied. (Id. at 195). When Johnson began assaulting Shofner, Cole "tried to go through the [front] door" but he "and Logan struggled at the door for a minute and then [Logan] was able to keep [Cole] inside." (Mar. 28-30, 2016 Tr., Vol. I, at 88). Logan "had Johnson take [Shofner] to the kitchen and beat on her in there." (Id. ). While Johnson was assaulting Shofner in the kitchen, Logan, with a firearm in his waistband, told Cole, "I knew it would hurt you more if I had her beat." (Id. at 89-90). Shofner recalled that Logan had a gun "in his hand" while Johnson was assaulting her and that Logan threatened to "shoot [Cole's] mom's house up." (Mar. 28-30, 2016 Tr., Vol. II, at 198-199). Shofner lost consciousness as a result of the assault. (Mar. 28-30, 2016 Tr., Vol. I, at 95).

{¶ 22} When Shofner regained consciousness, Logan "wanted [Cole] to get back to work [painting a door]. So, [Cole] followed suit and went back to work" because he "was pretty scared and shook up." (Id. at 96). Shofner testified that, after the assault, Cole was painting and she "tried to work as much as [she] could" because she "was afraid" and "didn't want to get hurt again." (Mar. 28-30, 2016 Tr., Vol. II, at 199). Shofner "was mainly picking up after [Cole], like there was sawdust or drywall dust on the floor and she would sweep it up and pick it up, but just stuff of that nature." (Mar. 28-30, 2016 Tr., Vol. I at 97). Cole and Shofner remained at Logan's house while Cole "finished texturing, putting a finished texture on the ceiling[,] sand[ing] the walls [, and] paint[ing] the upstairs bedroom, the kitchen, and the front room." (Id. at 96-97). Indeed, Cole testified that he "worked all night" on December 27 and continued working until "roughly midnight" on December 28. (Id. at 98, 101). Shofner testified that she and Cole eventually fell asleep "for an hour or two" before they were woken by Logan the morning of December 28 demanding that they " 'get to work.' " (Mar. 28-30, 2016 Tr., Vol. II, at 200). On December 28, Cole testified that he "finished up doors [,] mounted a bathroom sink[, and] did some work in the basement[, along with] some other little stuff that needed to be finished." (Mar. 28-30, 2016 Tr., Vol. I, at 99).

{¶ 23} Cole testified that Logan told Cole, while Cole was working, that "he could have someone come to [Cole's] mom's house and shoot her house." (Id. at 97-98). Based on Logan's threat, Cole "was pretty scared at that time to try to leave or anything like that." (Id. at 98). According to Shofner, she did not think she could leave the house without being harmed. (Mar. 28-30, 2016 Tr., Vol. II, at 200).

{¶ 24} Cole testified that Logan allowed Shofner to leave the house on December 28 "to go to the [Children Services] office to visit with [their] son." (Id. at 99-100). (See also Mar. 28-30, 2016 Tr., Vol. II, at 200-201). Shofner testified that Logan did not want her to leave but eventually agreed to let her go provided that she promise not to go to the police. (Mar. 28-30, 2016 Tr., Vol. II, at 201). According to Cole, Logan "stressed the fact that he didn't want her to go to the cops." (Mar. 28-30, 2016 Tr., Vol. I, at 100). Logan did not permit Cole to leave with Shofner because "[h]e wanted [Cole] to finish the work on his house." (Id. at 100). Shofner did not report the assault to anyone when she went to visit her son and returned to the house because she "was afraid" Logan would "hurt" Cole, Cole's mother, or Shofner. (Id. at 201-202). (See also Mar. 28-30, 2016 Tr., Vol. I, at 101).

{¶ 25} Ultimately, to escape from Logan's house, Shofner and Cole concocted a plan in which they saved their cell-phone number in their cell-phone under Cole's boss's name and sent a text message as if Cole's boss were requesting that Cole report to work. (Mar. 28-30, 2016 Tr., Vol. II, at 205-207). (See also Mar. 28-30, 2016 Tr., Vol. I, at 101). The plan worked, and Logan allowed them to leave. (Mar. 28-30, 2016 Tr., Vol. II, at 208). (See also Mar. 28-30, 2016 Tr., Vol. I, at 102).

{¶ 26} Construing the evidence in a light most favorable to the prosecution, the testimony summarized above would allow a rationale trier of fact to conclude that Logan restrained Cole's and Shofner's liberty. Logan struggled with Cole to prevent him from leaving the house, and Logan instructed Johnson to attack Shofner, which caused Shofner to sustain severe injuries. See State v. Dzelajlija , 8th Dist. Cuyahoga No. 89912, 2008-Ohio-2039, 2008 WL 1903995, ¶ 24 ("By blocking her exit and displaying the gun, appellant restrained the victim of her liberty."); State v. Garrett , 2d Dist. Greene No. 2008 CA 102, 2009-Ohio-4584, 2009 WL 2855883, ¶ 17 (concluding that the State presented sufficient evidence that Garrett kidnapped the victim based on the victim's "testimony that Garrett attacked her, inflicted multiple injuries and retrain[ed] her liberty"). Logan also expressly and impliedly threatened Cole and Shofner-that is, Logan threatened that he would "shoot up" Cole's mother's house, and Shofner was afraid Logan would harm her again if she tried to leave. See State v. Harwell , 2d Dist. Montgomery No. 25852, 2015-Ohio-2966, 2015 WL 4507398, ¶ 85-86 (concluding that the State presented sufficient evidence that Harwell restricted the victims' liberty, in part, based on one of the victim's testimony that "Harwell made threats, which led him to believe that he would be shot or killed if he tried to escape" and that Harwell "told him not to run away" and the other victim's testimony "indicat[ing] that Harwell restrained [his] liberty through threat of harm to" the other victim); State v. Cruz , 9th Dist. Medina No. 03CA0031-M, 2003-Ohio-4782, 2003 WL 22093209, ¶ 17 (concluding that the State presented sufficient evidence that Cruz restricted the victim's liberty because Cruz "threatened to cut off [the victim's] genitals, and had the apparent ability to carry out that threat since she "cut him at least once with the knife"). Further, Logan brandished a gun while Johnson was assaulting Shofner. See also Harwell at ¶ 85 (concluding that the State presented sufficient evidence that Harwell restrained the victim's liberty based on the victim's testimony, in part, that the victim "felt threatened when Harwell flashed his gun"); Dzelajlija at ¶ 24. Likewise, although Logan permitted Shofner to leave on December 28 to visit her son, he did not permit Cole to leave with her and threatened harm to Cole if Shofner contacted the police. Based on those facts, a rational trier of fact could conclude beyond a reasonable doubt that Logan limited or restrained Cole's and Shofner's freedom of movement. Therefore, the State presented sufficient evidence that Logan restrained the liberty of Cole and Shofner.

{¶ 27} Also, construing the testimony summarized above in a light most favorable to the prosecution, a rational trier of fact could conclude that Logan restrained Cole's and Shofner's liberty with the purpose of holding them in a condition of involuntary servitude. Indeed, the testimony summarized above demonstrates that Logan limited or restrained Cole's and Shofner's freedom of movement for the purpose of performing labor or services against their will-that is, Logan prevented Cole and Shofner from leaving his house to compel Cole and Shofner to perform renovation-related labor and services. See United States v. Booker , 655 F.2d 562, 563, 567 (4th Cir.1981) (concluding that there was sufficient evidence of "kidnapping for the purpose of exacting involuntary servitude" under 18 U.S.C. 1853 where the victims were forbidden to leave a migrant camp until they satisfied any debts owed, were threatened with serious injury or death if they attempted to leave without paying their debts, and those threats were "backed up" "with severe beatings and assaults with firearms").

{¶ 28} Cole renovated Logan's house for nearly 36 hours. Logan compelled Cole to perform a number of tasks, including painting doors and multiple rooms, putting a finished texture on the ceiling, sanding walls, mounting a bathroom sink, working in the basement, and finishing other "little" projects throughout the house. Although Shofner was initially unconscious from Johnson's attack, and was permitted to leave to visit her son, Shofner was compelled to work by cleaning up after Cole.

{¶ 29} Cole and Shofner feared retribution from Logan if they did not stay and work at Logan's house. Compare United States v. Dann , 652 F.3d 1160, 1169-1170 (9th Cir.2011) (noting that, under federal law, "someone is guilty of forced labor if he intends to cause a person in his employ to believe that if she does not continue to work, she will suffer the type of serious harm * * * that would compel someone in her circumstances to continue working to avoid that harm"). Cole began renovating Logan's house after witnessing Johnson, at Logan's instruction, beat Shofner until she was unconscious. Cole stayed and performed those tasks because he was afraid that Logan would hurt him, hurt Shofner again, or "shoot up" his mother's house. Even though Johnson severely injured Shofner, Shofner tried to work as much as she was able because she was afraid Logan would hurt her again. Shofner did not think she could leave the house without being harmed. She even returned to Logan's house after being permitted to leave to visit her son because of her fear of Logan based on his threats of violence against her, Cole, and Cole's mother. Moreover, Cole and Shofner knew that Logan had a gun after he brandished it while Johnson was assaulting Shofner. Compare State v. Branson , N.C.App. No. COA07-1216, 2008 WL 1946866, *2 (May 6, 2008) (concluding that "there was sufficient evidence to support the kidnapping for the purpose of involuntary servitude" because Branson compelled the victim to "drive him away from the scene of the accident" at gunpoint).

{¶ 30} For these reasons, we conclude that a rational juror could conclude that Logan limited or restrained Cole's and Shofner's freedom of movement for the purpose of performing labor or services against their will. See United States v. Djoumessi , 538 F.3d 547, 552-553 (6th Cir.2008) ("a rational trier of fact could conclude that [the victim's] labor was involuntary for at least some portion of her stay"). That is, Logan detained Cole and Shofner through fraud, force, and coercion to control Cole and Shofner for a period of nearly 36 hours for the purpose of subjecting them to involuntary servitude. See Perry v. State , 853 P.2d 198, 202 (Ok.Crim.App.1993) (construing Oklahoma's kidnapping statute to include "an 'involuntary servitude' element" and noting that "[i]nherent in [that] element are any acts or services, or the forbearance of same, done at the command of the perpetrator, through force, inveiglement or coercion, for the benefit of the perpetrator"). Thus, the State presented sufficient evidence that Logan purposefully held Cole and Shofner in a condition of involuntary servitude.

{¶ 31} Accordingly, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Logan committed kidnapping in violation of R.C. 2905.01(A)(6). As such, Logan's convictions are based on sufficient evidence.

{¶ 32} Logan's first assignment of error is overruled.

Assignment of Error No. II

The trial court erred in failing to advise Evred J. Logan of the possible defenses to the charges and circumstances in mitigation thereof as required by Crim.R. 44(A), thus failing to insure [sic] that Mr. Logan's waiver of counsel was knowingly, intelligently, and voluntarily made. Sixth and Fourteenth Amendments of the United States Constitution, Article I, Section 10 of the Ohio Constitution. (Tr. 9-31 and 33-92).

{¶ 33} In his second assignment of error, Logan argues that the trial court erred by permitting him to represent himself at trial without ensuring that his decision was knowing, intelligent, and voluntary. In particular, he argues that his decision to represent himself at trial was not knowing, intelligent, and voluntary because the trial court failed to advise him of the possible defenses to the charges and circumstances in mitigation thereof.

{¶ 34} "The Sixth Amendment to the United States Constitution provides that an accused shall have the right 'to have the Assistance of Counsel for his defense.' " State v. Owens , 3d Dist. Allen No. 1-07-66, 2008-Ohio-4161, 2008 WL 3822608, ¶ 9, quoting the Sixth Amendment to the U.S. Constitution. "Although a defendant has a right to counsel, the defendant may 'waive that right when the waiver is voluntary, knowing, and intelligent.' " Id. , quoting State v. Petaway , 3d Dist. Logan No. 8-05-11, 2006-Ohio-2941, 2006 WL 1585444, ¶ 8, citing State v. Gibson , 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus, citing Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). " ' "[T]o establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right." ' " Id. , quoting Petaway at ¶ 9, quoting Gibson at paragraph two of the syllabus. "In order for the defendant's waiver of counsel to be valid ' "such waiver must be made with an apprehension of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.' " " Id. at ¶ 10, quoting Gibson at 377, 345 N.E.2d 399, quoting Von Moltke v. Gillies , 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Accord State v. Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 40.

{¶ 35} Furthermore, " Crim.R. 44(A) provides that a criminal defendant charged with a serious offense is entitled to counsel 'unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel.' " State v. Schleiger , 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033, ¶ 20, quoting Crim.R. 44(A). "And Crim.R. 44(C) provides that '[w]aiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Crim.R. 22. In addition, in serious offense cases the waiver shall be in writing.' " Id. , quoting Crim.R. 44(C).

"[W]hen a criminal defendant elects to proceed pro se, the trial court must demonstrate substantial compliance with Crim.R. 44(A) by making a sufficient inquiry to determine whether the defendant fully understood and intelligently relinquished his or her right to counsel. If substantial compliance is demonstrated, then the failure to file a written waiver is harmless error."

Id . , quoting State v. Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 39.

{¶ 36} We conclude that Logan's waiver of his right to trial counsel was knowing, intelligent, and voluntary-that is, the trial court substantially complied with the requirements of Crim.R. 44(A) because it sufficiently inquired whether Logan fully understood and relinquished his right to counsel and obtained from Logan a written waiver of counsel. See State v. Koehler , 3d Dist. Wyandot No. 16-15-10, 2016-Ohio-3384, 2016 WL 3223887, ¶ 11. When Logan indicated that he wanted to represent himself, the trial court conducted a lengthy colloquy with Logan and his trial counsel, followed by a colloquy in open court. (See Mar. 28-30, 2016 Tr., Vol. I, at 4-32).

{¶ 37} Indeed, the trial court cleared the courtroom to discuss, ex parte, Logan's request to represent himself with Logan and Logan's trial counsel. (Id. at 6). During the ex parte discussion, Logan and Logan's trial counsel informed the trial court as to their divergence in trial strategy. In particular, Logan's trial counsel stated, Logan

has done a lot of work on his own. He has a lot of theories. He has expansive notes on questions he wanted to ask. I don't know that I would ask them the same way, or even ask them. So, you know, when someone is facing thirty-six years, with a minimum of six years, I think if convicted of all aspects of the case, it's pretty substantial and they should have confidence or they should be entitled to pursue it their own way should they so choose.

(Id. at 8-9).

{¶ 38} The trial court explained to Logan the State's burden of proof, the potential prison sentence Logan was facing if convicted, and his right to counsel. (Id. at 10-11). Further, the trial court conducted a lengthy discussion with Logan regarding the disadvantages of representing himself and told Logan that "[l]awyers know the[ ] rules" that are to be followed at trial because "[t]hey went to law school to learn the rules, and how to conduct trials, and how to ask questions, and what they can say and what they can't say." (Id. at 10-11, 19-20). The trial court also offered numerous scenarios involving defendants representing themselves at trial, discussed with Logan and his trial counsel the role of a "shadow counsel" at trial, and responded to all of Logan's questions. (Id. at 11-19, 22). The trial court inquired whether Logan understood: (1) the penalty he was facing; (2) that he would be required to follow the same rules as a trained lawyer; and (3) what the case was about. (Id. at 19-20). At the trial court's inquiry, Logan stated that he wanted to represent himself and wanted his trial counsel to be appointed as "shadow counsel" for trial. (Id. at 19, 21).

{¶ 39} After the trial court was satisfied with its ex parte inquiry of Logan, the trial court in open court inquired whether Logan wished to represent himself at trial. (Id. at 23). Again, the trial court inquired whether Logan understood that: (1) he has the right to an attorney; (2) he would be held to the same rules of evidence and criminal procedure that bind any attorney; (3) he can subpoena witnesses; and (4) he can change his mind at any time during trial and resume being represented by counsel (Id. at 25-32). Further, during the colloquy in open court, Logan informed the trial court that he represented himself in a resisting-arrest case heard in municipal court the previous November. (Id. at 24-25). Finally, Logan informed the trial court that he was voluntarily waiving his right to be represented by counsel at trial. (Id. at 31-32). Thereafter, the trial court accepted his waiver of counsel, and Logan signed a written waiver of his right to trial counsel. (Id. at 32). (See Doc. No. 62). During the State's direct examination of its first witness, Logan informed the trial court that he no longer wanted to represent himself and wanted to be represented by counsel. (Mar. 28-30, 2016 Tr., Vol. I, at 92). The trial court accepted Logan's request and reappointed Logan's trial counsel. (Id. at 93).

{¶ 40} Based on our review of the record, we conclude that the trial court substantially complied with the requirements of Crim.R. 44(A). The trial court devoted nearly 29 pages of trial transcript to ascertaining whether Logan knowingly, intelligently, and voluntarily waived his right to counsel. Although the trial court did not explicitly state that these are "the possible defenses to the charges and circumstances in mitigation thereof" in ascertaining whether Logan's waiver of counsel was knowing, intelligent, and voluntary, that does not mean Logan's waiver was not valid. Rather, the record reflects that Logan did "a lot of work on his own" regarding the case, developed "a lot of theories," and drafted "expansive notes on questions he wanted to ask." (Mar. 28-30, 2016 Tr., Vol. I. at 8-9). Likewise, Logan asked intelligent questions of the trial court regarding representing himself during the ex parte hearing and informed the trial court that he had previous experience representing himself in a criminal case. Compare Owens , 2008-Ohio-4161, 2008 WL 3822608, at ¶ 15 (concluding that Owens' decision to waive his right to counsel was intelligent, knowing, and voluntary because, in part, "Owens had previously represented himself in this case and was aware of the consequences of waiving his right to counsel"). Based on those facts, we conclude that Logan represented to the trial court that he understood the possible defenses to the charges against him and any circumstances in mitigation of those charges.

{¶ 41} Therefore, Logan knowingly, intelligently, and voluntarily waived his right to counsel. See id. at ¶ 19 ; State v. Crider , 3d Dist. Allen No. 1-13-20, 2014-Ohio-2240, 2014 WL 2457429, ¶ 10.

{¶ 42} Logan's second assignment of error is overruled.

{¶ 43} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

      Jenna Shofner is n.k.a. Jennifer Cole. (See Mar. 28-30, 2016 Tr., Vol. I, at 62).

      Logan does not challenge the sufficiency of the evidence supporting his conviction as to Count Three.

      Although prior versions of Ohio's kidnapping statute included the phrase "involuntary servitude" as an element of a kidnapping offense, that phrase was not defined by the Ohio Revised Code. See, e.g. , R.C. 2905.01 (1996) (current version at R.C. 2905.01 (2011)). In 2010, the General Assembly amended R.C. 2905.01 by moving the involuntary-servitude element from R.C. 2905.01(B) to 2905.01(A) and defining the phrase under R.C. 2905.01(D). Compare R.C. 2905.01 (1996) with R.C. 2905.01 (2010). See Trafficking in Persons-Involuntary Servitude-Offense of Conspiracy , Sub.S.B. No. 235, 2010 Ohio Laws File 58.


author: ZIMMERMAN, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Ryan Ritchie ROLLISON, Defendant-Appellant.
    NO. 9-17-17
    Court of Appeals of Ohio, Third District, Marion County.
    Date of Decision: December 11, 2017
    Nathan D. Witkin for Appellant
    Kevin P. Collins for Appellee
   ZIMMERMAN, J.

{¶ 1} Defendant-appellant, Ryan Ritchie Rollison ("Rollison") appeals the April 21, 2017 judgment of the Marion County Common Pleas Court sentencing him to twenty-four (24) months in prison after he was found guilty of Having Weapons While Under Disability in violation of R.C. 2923.13(A)(2), a felony of the third degree.

Facts and Procedural History

{¶ 2} On October 11, 2016, Rollison was indicted on one count of Having Weapons While Under Disability, in violation of R.C. 2929.13(A)(2), a felony of the third degree. (Doc. 2). His charge stems from the allegation that on October 11, 2016, at approximately 5:30 in the morning, Rollison brandished a shotgun at Frankie Newsome ("Newsome").

{¶ 3} Rollison pled not guilty to the charge and a jury trial was scheduled. Prior to trial, the parties stipulated that Rollison had a prior conviction for Burglary, an offense of violence. (Doc. 25).

{¶ 4} On January 5, 2017 the case proceeded to a jury trial. At trial, the State called five (5) witnesses: Demerrill Knaul, the 9-1-1 operator; Frankie Newsome, the victim; and officers Daniel Ice ("Officer Ice"), Robert Musser ("Officer Musser") and Detective Joshua Harris ("Detective Harris"), all with the Marion City Police Department. Rollison did not offer witnesses or present a defense at trial.

{¶ 5} The jury found Rollison guilty of Having Weapons While Under Disability and the case was scheduled for sentencing. Ultimately, the trial court sentenced Rollison to a prison term of 24 months, journalized by its judgment entry of April 21, 2017. It is from this judgment that Rollison appeals asserting the following assignments of error for our review.

Assignment of Error No. I

APPELLANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.

Assignment of Error No. II

THE JURY'S DECISION TO CONVICT THE APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

First Assignment of Error

{¶ 6} In his first assignment of error, Rollison argues that he received ineffective assistance of counsel. Specifically, he argues that his attorney failed to challenge two (2) jurors for cause, failed to object to key pieces of evidence, and failed to request discovery prior to trial.

Standard of Review

{¶ 7} To establish a claim for ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced him. State v. Phillips , 3d Dist. Allen No. 1-15-43, 2016-Ohio-3105, 2016 WL 2957049, ¶ 11, citing State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 133, citing, Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure to make either showing defeats a claim of ineffective assistance of counsel. State v. Bradley , 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), quoting Strickland at 697, 104 S.Ct. 2052 ("[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.").

Analysis

{¶ 8} Rollison's first argument is that trial counsel was ineffective for failing to seek the removal of juror Zucker ("Zucker") and juror Thomas ("Thomas") for cause during jury selection. During voir dire, Zucker stated that he knew Marion police officer Ice, a witness for the prosecution, and that his ability to be fair and impartial could be affected due to this association. (Tr. 28). However, Zucker stated that he would be able to listen to the witness's testimony, evaluate their credibility and follow the judge's instructions. (Tr. 28-29). When questioned by the trial court, Zucker stated that since he knows a lot of law enforcement officers his views may be "colored" one way or the other, but that he would be able to put that aside. (Tr. 48-49). Although Rollison's counsel did not challenge Zucker for cause, Zucker was ultimately released by the court for cause. Thus, Rollison's trial counsel did not have to expend a peremptory challenge to remove Zucker as a juror.

{¶ 9} Juror Thomas stated that his sister was the victim of an armed bank robbery, which caused her the loss of her job and a divorce. Thomas stated that for these reasons, he may not be able to judge the case fairly for the defense. (Tr. 51). Nevertheless, when the court questioned Rollison's counsel regarding Thomas, counsel advised (the court) that he was worried about juror Thomas, especially given the fact that Rollison's prior offense was for Burglary. (Tr. 55-56). The court then released Thomas for cause, eliminating the need for Rollison's counsel to exercise a peremptory challenge to remove Thomas.

{¶ 10} In this case, we must decide whether defense counsel's failure to challenge Zucker and Thomas for cause resulted in a deficient performance and whether such deficiency affected the outcome of the trial. Our review of the record reveals that juror Zucker was ambiguous as to whether or not he could remain neutral in regards to evaluating the testimony of a prosecution's witness, which resulted in the trial judge removing him from the jury panel. Although defense counsel didn't specifically request that Zucker be released, counsel did state he was "a little bit concerned about Mr. Zucker" (Tr. 55), which ultimately resulted in Zucker being released by the court. And, when discussing the issues regarding juror Thomas with the trial judge, Rollison's defense counsel stated "I'm worried about Mr. Thomas too. * * * [E]specially given the fact that my client's prior is a B and E". (Tr. 55-56). Juror Thomas, like juror Zucker, was then released as a potential juror by the court.

{¶ 11} It is clear to us that Rollison's counsel successfully influenced the trial judge to remove these two potential jurors for cause . Thus, Rollison's counsel was free to exercise his limited peremptory challenges on other veniremen. There is nothing deficient in Rollison's counsel's performance and in our review, Rollison's argument is without merit.

{¶ 12} Next, Rollison argues that his defense counsel failed to object to the testimony of Officer Ice at trial. Rollison contends that counsel should have objected to Officer Ice's testimony as being nonresponsive hearsay.

{¶ 13} A review of the record reveals that prior to Officer Ice testifying, the prosecutor played Newsome's 9-1-1 call to the jury. Newsome testified that what he told the dispatcher in his 9-1-1 call (Rollison brandishing a shotgun) was the truth. (Tr. 103). Thereafter, Officer Ice testified as follows regarding Newsome's statement:

PROSECUTOR: What did you do upon your arrival at-
OFFICER ICE: I went and spoke to Mr. Newsome. He advised me that Ryan had come to his house. I'll back up a little bit. He told me that Ryan was at his house earlier, that he had fed him. He was with some female at the time. He didn't know who she was. They left a short time ago, that Ryan had come back to the house. He kicked or beat on the door. He opened the door for Ryan. Ryan pointed a gun at him, said something about some money. I don't exactly-the exact words that were said.
He said he slammed the door. He said then he heard Ryan say something along the lines of "If you open the door, I'll give you this gun" or "a gun" or "some gun". * * *

(Tr. 128).

{¶ 14} Defense counsel didn't object to this testimony or to statements made by Newsome through Officer Ice's body camera. However, we find that defense counsel used these statements made by Newsome (to Officer Ice) as a way to impeach Newsome's credibility. The Ohio Supreme Court has stated "the failure to make objections is not alone enough to sustain a claim of ineffective assistance of counsel. State v. Kruse , 3d Dist. Union No. 14-16-15, 2017-Ohio-5667, 2017 WL 2838402, ¶ 35, citing State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103 ; State v. Holloway , 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988) (citations omitted). Trial counsel is permitted to make strategic decisions regarding the use of objections. Strategic trial decisions, even if unsuccessful, generally do not constitute ineffective assistance of counsel. State v. Carter , 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Thus, we find Rollison's counsel made a strategic decision in order to attack the credibility of a key prosecution witness.

{¶ 15} Finally, Rollison claims ineffective assistance of counsel because defense counsel did not request discovery prior to trial. However, "the decision to submit a request for discovery 'is presumed to be a trial tactic which does not constitute ineffective assistance of counsel.' " State v. Whittsette , 8th Dist. Cuyahoga No. 85478, 2005-Ohio-4824, 2005 WL 2240901, ¶ 35. In the case sub judice , defense counsel did not file a request for discovery. However, a review of the record shows that despite the lack of making a request, discovery was ordered by the trial court and had been provided and exchanged to Rollison's counsel. (Doc. 10). Furthermore, counsel for the State acknowledged that discovery continued to be exchanged up to the day before the trial. (Tr. 176-177). Thus, we find that Rollison was provided discovery and has failed to convince us how the failure of his counsel (to request discovery) has resulted in actual prejudice, since discovery was ordered and provided.

{¶ 16} Accordingly, Rollison's first assignment of error is overruled.

Second Assignment of Error

{¶ 17} In Rollison's second assignment of error, he claims that his conviction for Having Weapons While Under Disability is against the manifest weight of the evidence. Specifically, Rollison argues that the testimony of Newsome was unreliable and that the responding officers never actually saw him holding or touching the gun in question. We disagree.

Standard of Review

{¶ 18} When determining whether a conviction is against the manifest weight of the evidence, we "will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt". State v. Eskridge , 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), at paragraph two of syllabus.

{¶ 19} In reviewing whether the trial court's judgment was against the weight of the evidence, the appellate court sits as the "thirteenth juror" and examines the conflicting testimony. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541. In taking on this role, this court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether, in reviewing the evidence, the trial court clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. Id. In making this analysis, we must be mindful that determinations of credibility and weight of the testimony remain within the jurisdiction of the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.

{¶ 20} When applying the manifest weight standard, "[o]nly in exceptional cases, where the evidence 'weighs heavily against the conviction', should an appellate court overturn the trial court's judgment." State v. Haller , 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. "Weight of the evidence concerns 'the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.' " (Emphasis omitted.) Thompkins , quoting Black's Law Dictionary 1594 (6th Ed.1990).

{¶ 21} Furthermore, "[t]o reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required. Thompkins at paragraph 4 of the syllabus, citing Ohio Constitution, Article IV, Section 3 (B)(3).

Analysis

{¶ 22} In this case, the jury was able to see and hear the testimony of Newsome, which included his inability to recall all aspects of the incident (with Rollison) in question. However, Newsome authenticated his 9-1-1 call and testified that what he told the 9-1-1 operator was truthful. Further, Newsome was subject to cross examination by Rollison's defense counsel on this point and while Rollison argues that Newsome was not credible, the jury chose to believe him. The jurors were free to believe the testimony offered by the State's witnesses. State v. Bates , 12th Dist. Butler No. CA2009-06-174, 2010-Ohio-1723, 2010 WL 1534060, ¶ 11, quoting State v. Bromagen , 12th Dist. Clermont No. CA2005-09-087, 2006-Ohio-4429, 2006 WL 2466807, ¶ 38 ("It is well-established that '[w]hen conflicting evidence is presented at trial, a conviction is not against the manifest weight of the evidence simply because the jury believed the prosecution testimony.' ").

{¶ 23} Moreover, in this case the State did not have to prove that Rollison was brandishing, holding or touching the gun, only that he possessed it. The trial judge, in his jury instructions, defined the charge of Having Weapons While Under Disability and explained to the jury what the State must prove for a finding of guilt. The court informed the jury "[b]efore you can find the defendant guilty of Having Weapons While Under Disability, you must find beyond a reasonable doubt * * *, the defendant knowingly acquired, had, carried or used a firearm and the defendant had previously been convicted of burglary". The court then went on to explain the definition of 'knowingly' and 'had possession' as follows:

"A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or he is aware that his conduct will probably be of a certain nature.
* * *
'Had' means possessed. * * * A person has possession when he knows that he has the object on or about his person or property or place where it is accessible to the use or direction and he has the ability to control it exclusive of others. Ownership is not necessary. * * *"

(Tr. 78-79).

{¶ 24} During the trial, the jury was presented with Newsome's 9-1-1 call and heard testimony from Demerrill Knaul, communications coordinator at Marion central dispatch, who authenticated the 9-1-1 call. Knaul testified that in Newsome's 9-1-1 call, Newsome identified himself and stated Rollison had been at his house with a gun.

{¶ 25} Further, Officer Ice testified that when he arrived at Newsome's residence, Newsome advised him that Rollison had knocked on Newsome's front door and, when he opened it, Rollison pointed a gun at him. (Tr. 128). And Officer Musser testified that while responding to the 9-1-1 call, he observed Rollison on his front porch, which is not far from Newsome's residence, and after he placed Rollison into custody, Officer Musser secured the porch area and located a Winchester single shot .20-gauge shotgun next to the chair where Rollison was seated. (Tr. 148-149, 153). Officer Musser further testified that the shotgun was "within grab reach" of where Rollison was sitting and that the shotgun was loaded. (Tr. 149-150).

{¶ 26} Furthermore, due to the stipulation of the parties, the jury was advised by the court of Rollison's prior Burglary conviction which placed him under the legal disability to possess a firearm.

{¶ 27} Therefore, based on the record before us and the testimony presented, we cannot find that the jury clearly lost its way and created a manifest miscarriage of justice as competent and credible evidence exists in the record to support Rollison's conviction for Having Weapons While Under Disability.

{¶ 28} Accordingly, Rollison's second assignment of error is overruled.

{¶ 29} Having found no error prejudicial to the appellant herein in the particular assignments of error, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

      Even if Rollison's counsel would have objected, the statements of Newsome through Officer Ice may have been admissible under Evidence Rule 801(D) since Newsome (the declarant of the statements) was subjected to cross examination at trial. Nevertheless, Rollison's counsel's trial strategy to impeach Newsome's credibility was not deficient representation.