State v. BooneState v. Boone
BELFANCE, Judge.
{¶1} Willie Boone appeals his convictions for robbery, resisting arrest, and escape. For the reasons set forth below, we affirm.
I.
{¶2} A man wеaring a wig entered a bank and demanded money from a clerk. An off-duty Akron police officer who was working security at the bank approached the man from behind and ordered him to the ground. The robber lay down on the floor but, before the officer could handcuff him, he attempted to run away. The officer grabbed the robber and a scuffle ensued. The robber managed to escape, jumping into the passenger seat of a SUV waiting outside the bank, but he left his wig behind.
{¶3} The poliсe investigation led them to Mr. Boone, who could not be ruled out as a contributor to genetic materials discovered in the wig. Mr. Boone was indicted on two counts of robbery and one count of resisting arrest. Via supplemental indictment, Mr. Bоone was also
{¶4} The jury acquitted Mr. Boone of one of the robbery charges but found him guilty of the rеmaining charges. The trial court sentenced Mr. Boone to an aggregate term of eight years, and he has appealed.
II.
ARRAIGNMENT PROCEDURE
{¶5} Though it is clear that Mr. Boone believes his arraignment was improper, his argument is unclear. He appears to suggest that, when he first appeared before the magistrate, he was not properly arraigned because the indictment was not read aloud to him and he did not enter a plea. Mr. Boone also argues that his Sixth Amendment right to counsеl was violated because counsel was not appointed prior to his initial appearance in court. He argues that, had counsel been appointed prior to his arraignment, he would have been able to presеrve the defectiveness of the arraignment for appeal.
{¶6}
Arraignment shall be conducted in open court, and shall consist of reading the indictment, information or complaint to the defendant, or stating to the defendant the substance of the charge, and calling on the defendant to plead thereto. The defendant may in open court waive the reading of the indictment, information, or complaint. The defendant shall be given a copy of the indictment, information, or complaint, or shall acknowledge receipt thereof, before being called upon to plead.
{¶7} While it appears from the transcript that the magistrate did not read the indictment aloud to Mr. Boone, the magistrate entered a not guilty plea for him and informed him that he could change that plea at the first pretrial hearing, by which time an attorney would have been appointed to represent him. However, there is no transcript, or an apprоpriate substitute, of that
{¶8} Nevertheless, based on the record on appeal, it appears that Mr. Boone forfeited his arguments. Mr. Boone acknowledges that he appeared at the first pretrial with counsel and that he did not object to the arraignment proceedings. A defendant who is represented by counsel, pleads not guilty, and proceеds to trial without objection forfeits objections to errors in his arraignment on appeal. State v. McIntyre, 9th Dist. Nos. 24934, 24945, 2012-Ohio-1173, ¶ 5. After about a month of being represented by counsel, Mr. Boone proceeded pro se throughout the rest of the pretrial period before being represented by counsel during his trial. At no point did Mr. Boone raise the arguments he now makes on appeal. Furthermore, when Mr. Boone objected to his arraignment proceedings on a different basis, the trial court remarked that it believed Mr. Boone‘s attorney had waived service and the reading of the indictment at the first pretrial hearing. Therefore, while we must presume regularity given the limited record on appeal, see Morris at ¶ 5, the record available tо us indicates that Mr. Boone forfeited the arguments he now makes through his actions and the actions of his counsel subsequent to Mr. Boone‘s initial appearance before the magistrate.
{¶9} Mr. Boone does argue that he preservеd these arguments for review, pointing to his motion to dismiss the indictment as well as his statements to the trial court prior to his trial. However, the arguments Mr. Boone now makes on appeal are different from the ones he made to the trial court, where he argued that, before he could be indicted by the grand jury, he had to be arraigned in a municipal court. He also argued that the prosecution should have served him with the indictment when he was being held in Lorain County Jail instead of waiting until he wаs
{¶10} Mr. Boone appeared with counsel before the trial court and a not guilty plea to the charges was entered into the record. At no point in the proceedings did Mr. Boone raise an objection to his arraignment on the basis that the indictment had not been read aloud. Given the record before us, it appears that Mr. Boone waived the reading of the indictment aloud, see Hamilton v. Brown, 1 Ohio App.3d 165, 168 (12th Dist.1981), and, regardless, appears to have forfeited the argument he now makes by not raising it below. Furthermore, the record is incomplete, and we are compelled to presume regularity. Morris, 2011-Ohio-6594, at ¶ 5. Accordingly, we must conclude that Mr. Boone has failed to demonstrate any reversible error with respect to his arraignment.
ESCAPE
{¶11} Mr. Boone argues that his conviction for escape, which required a finding that he had been arrested for committing a felony of the first or second degree, was inconsistent with the jury acquitting him of second-degree robbery. However, consistency between verdicts is not required, and a conviction may not be disturbed solely bеcause it is inconsistent with another verdict. State v. Zander, 9th Dist. No. 24706, 2010-Ohio-631, ¶ 57. See also United States v. Powell, 469 U.S. 57, 65 (1984); State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 81. Mr. Boone‘s argument is without merit.
DNA EVIDENCE
{¶12} Mr. Boone argues that the trial court should not have allowed the State‘s expert to testify about her findings regarding the DNA found on the robber‘s wig because he had not been provided funds to have the samрles independently analyzed. He also suggests that the
{¶13} However, Mr. Boone does not actually point to any evidencе in the record that would support the conclusion that the State‘s expert used a questionable method to analyze the DNA samples. See
{¶14} Regarding Mr. Boone‘s contention that he should have been given funds to conduct an independent analysis of the DNA evidence, an indigent criminаl defendant must
be provided funds to obtain expert assistance at state expense only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his [or her] defense, and (2) that denial of the requested expert assistance would result in an unfair trial.
State v. Mason, 82 Ohio St.3d 144 (1998), syllabus. However, Mr. Boone merely requested an independent DNA expert to test the physical еvidence recovered at the crime scene. He did not make any argument that there was a reasonable probability that the expert would aid his defense or that denial of the request would result in an unfair trial. While Mr. Boone was proceeding pro se at the time he made his request and his request should be liberally construed, “[a] pro se litigant is not given greater rights than represented parties, and must bear the consequences of his
SPEEDY TRIAL
{¶15} Mr. Boone argues that the State failed to comply with
{¶16}
When a person has entеred upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to triаl within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.
{¶17} Initially, we note that Mr. Boone admitted that he never sent the written notice rеquired, and, thus, he never invoked the statute. See State v. Siniard, 6th Dist. No. H-03-008, 2004-Ohio-1043, ¶ 12. Furthermore, based on remarks made by Mr. Boone and the prosecutor to the trial court, Mr. Boone was being held in Lorain County Jail awaiting disposition of charges
III.
{¶18} Mr. Boone has not demonstrated that the trial court committed any reversible error. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant tо
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.