State v. BeasleyState v. Beasley
{¶ 1} Dеfendant-appellant James Beasley appeals from his conviction for robbery, asserting that he was denied a speedy trial, that he was denied due process, that he was denied effective assistance of counsel, and that his conviction was not supported by sufficient evidence and contravened the manifest weight of the evidence. We find no error in the proceedings below and affirm the common pleas court‘s judgment.
Factual and Procedural History
{¶ 2} Appellant was charged with robbery and falsification in a two-count indictment filed April 5, 2005. On July 12, 2005, he moved the court to dismiss the charges for failure to provide him with a speedy trial. The court overruled this motion.
{¶ 3} Appellant then waived his right to a jury trial and proceeded to trial before the court on July 13, 2005. The state‘s sole witness at trial was Robert Reynolds, a security guard. Reynolds testified that he was employed by Security Hut and was assigned to work at a Tops Supermarket on St. Clair Avenue in the City of Cleveland on August 11, 2004. He saw appellant enter the store. When appellant returned to the front of the store, he observed bulges in appellant‘s clothing that were not there before. He asked a cashier to call the police, then asked appellant if he could speak with him and began walking with him toward a back room. As they reached the back room, appellant tried to run away. Batteriеs and soap fell out of appellant‘s clothing as Reynolds, a store supervisor and other store employees wrestled with him. An off-duty police officer helped to get appellant under control. Police then arrived and arrested appellant. Reynolds was cut on the leg by broken glass during the altercation. He treated this wound himself.
{¶ 4} At the conclusion of the state‘s case, the court dismissed the falsification charge. Appellant presented no evidence in his own defense. The court found appellant guilty of robbery, and sentenced him to five years of community control on the condition that he submit to regular alcohol testing and both regular and rаndom drug testing; that he perform 50 hours of community service for each year of supervision, for a total of 250 hours; and that he obtain and maintain verifiable employment. The court warned appellant that violation of thеse terms could result in more restrictive sanctions or a prison term of four years. Finally, the court ordered appellant to pay restitution and a supervision fee.
Law and Analysis
{¶ 5} Appellant‘s first two assignments of error contend that he was deprived of his statutory and constitutional rights to a speedy trial. Our review of these assignments of error is hampered by the fact that the record does not contain any evidence of the proceedings in other cases relеvant to our calculations. With one exception, however, the parties agree on the relevant dates, so we will consider these dates as stipulated.
{¶ 6} Pursuant to
{¶ 7} Appellant‘s brother was indicted on September 16, 2004. The case was called for аrraignment on September 30, 2004. A capias was issued at that time. Appellant‘s true identity was discovered and the indictment was amended on December 6, 2004 at the prosecutor‘s oral request. The time period between appellant‘s release under a false identity and the date the indictment was amended must be excluded for purposes of determining whether appellant received a speedy trial.
{¶ 8} At the time the indictment was amended, appellant was serving a sentence of imprisonment for a probation violation. The parties dispute the length of this sentence: appellant contends that it expired on June 4, 2005, while the state contends that it did not expire until November 1, 2005. For purposes of this appeal, we will assume that the sentence expired on June 4, 2005 as asserted by appellant. Although appellant wаs in jail at the time the indictment was amended, he was not “held in jail in lieu of bail on the pending charge,” and the triple-count provisions of
{¶ 9} Accepting appellant‘s assertion that the sentence in the other matter expired on June 4, 2005, from June 5, 2005 to the date this case was initially set for trial, June 28, 2005, appellant was in jail solely on the pending charge. Each of those 24 days must be counted as three days, for a total of 72 days. Added to the previous 189, this brings the total to 261.
{¶ 10} On June 28, 2005, the court continued the trial to July 13, 2005, because the сourt was in trial in another criminal matter. This constitutes a reasonable continuance other than upon the accused‘s own motion. State v. Driver, Mahoning App. No. 03 MA 210, 2006-Ohio-494, ¶ 14. Accordingly, we find appellant was brought to trial within the 270 day time period set forth in
{¶ 11} Appellant‘s third assignment of error claims that the court deprived him of due process by systematically attributing continuances to him which he did not request in order to deprive him of a speedy trial. The calculations above do not extend the speedy trial time as a result of any continuances allegedly granted at the defendant‘s request. Even without considering those continuances, аppellant was still brought to trial within the statutory time. Consequently, appellant has not demonstrated that he was harmed by this alleged policy, or that it deprived him of a speedy trial. We overrule the third assignment of error.
{¶ 12} Fourth, aрpellant contends that his attorney provided ineffective assistance when the attorney filed a motion to dismiss for failure to provide a speedy trial which contained inaccurate calculations. Counsel made a mathematical error, and as a result showed that the total number of days elapsed for speedy trial purposes was 367 days, rather than 407. Appellant could not have been prejudiced by this error. Both totals exceed the 270 day speedy trial period by a considerable margin; even the inaccurate figure shown supported counsel‘s argument. In any case, neither the trial court nor this court accepted counsel‘s calculations. Consequently, appellant has not shown that there is a reasonable probability that the outcome would have been different but for counsel‘s error. See, e.g., State v. Newton, 108 Ohio St.3d 13, 32, 2006-Ohio-81, ¶ 100. The fourth assignment of error is overruled.
{¶ 13} Appellant‘s remaining assignments of error challenge both the sufficiency and the weight of the evidence to support his conviction. The indictment charged that appellant “did, in attempting or committing a theft offense, as defined in
{¶ 14} First, appellant asserts that he did not inflict or attempt to inflict harm “in attempting or committing a theft offense” or “in fleeing immediately after the attempt or offense,” because his attempt to flee did not immediately follow the theft. In making this assertion, appellant relies upon State v. Thomas, 106 Ohio St.3d 133, 2005-Ohio-4106. Thomas is distinguishable from the present case. In Thomas, the defendant left a store with stolеn merchandise, dropped it and continued to walk away from the store, entering a laundromat. He was approached by a uniformed off-duty police officer, who asked the defendant to accompany him bаck to the store. As they approached the store, the defendant struck the officer and attempted to flee. The court in that case noted that the defendant was no longer exerting control over the stolеn merchandise, so the use of force could not be said to have occurred during the commission of the offense. Furthermore, the court found that there was a lapse of time between the theft and the attempt to flеe, so that the defendant‘s flight could not be said to have immediately followed the theft.
{¶ 15} In this case, by contrast, appellant was still exerting control over the stolen merchandise when he injured Mr. Reynolds. There was no lapse of time between the commission of the theft and the attempt to flee during which Reynolds was harmed. Therefore, we overrule the fifth assignment of error.
{¶ 16} Next, appellant argues that the injury to Reynolds was so slight that it did not constitute рhysical harm as a matter of law. We disagree.
{¶ 17} Finally, appellant claims that the cause of Reynolds’ injury was so vaguе that it cannot be said that appellant inflicted the physical harm on him. Because there was no testimony that appellant caused the glass container to break, appellant claims there is no proоf that he caused Reynolds’ cut. A person is presumed to have intended the natural and probable consequences of his actions. See, e.g., State v. Tate, Cuyahoga App. No. 87008, 2006-Ohio-3722, ¶ 35. Furthermore, as noted above, a rational factfinder could have found beyond a reasonable doubt that appellant attempted to cause physical harm to Reynolds by struggling with him. Therefore, we overrule the seventh and final assignment of error.
Affirmed.
It is ordered that appellee recоver from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court tо carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
James J. Sweeney, P.J., and Mary Eileen Kilb