STATE OF OHIO v. D‘ANDRE COVINGTON
APPEAL NO. C-190731; TRIAL NO. 19CRB-9641C
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 25, 2021
[Cite as State v. Covington, 2021-Ohio-2907.]
Judgment Appealed From Is: Affirmed
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Chris Brown, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
D‘Andre Antrion Covington, pro se.
{1} Following a jury trial in which he waived his right to counsel and represented himself, defendant-appellant D‘Andre Covington was found guilty of falsification and failure to disclose personal information.
{2} Covington now appeals, raising three assignments of error. First, he argues that the trial court erred in failing to dismiss the charges against him because he was not brought to trial within the allotted speedy-trial time. Second, he argues that the trial court erred by denying his right to discovery. And third, he argues that the trial court erred in failing to dismiss the case as a penalty for the state‘s failure to provide him with a bill of particulars.1 Finding no merit to Covington‘s arguments, we affirm the trial court‘s judgment.
Speedy Trial
{3} In his first assignment of error, Covington argues that the trial court erred in failing to dismiss the charges against him because he was not brought to trial within 45 days of his arrest.
{4} Ohio has codified a defendant‘s constitutional speedy-trial guarantees in
{5} The highest degree of offense with which Covington was charged was a misdemeanor of the first degree.
{6} Covington was arrested on April 20, 2019, and brought to trial on November 13, 2019. Because he was brought to trial after the 90-day period set forth in
{7} The time within which an offender must be brought to trial is extended only in certain enumerated situations.
{8} Covington was arrested on April 20, 2019, and the speedy-trial time began to run the following day. See Gage at ¶ 9. On April 24, 2019, Covington filed a motion for a continuance, and the case was continued until May 23, 2019. While the three-day period between April 21 and April 24 counted against the state for speedy-trial purposes, the time that elapsed from April 24 until May 23 was not chargeable to the state because the case was continued upon Covington‘s motion. See
{9} Before returning to court on May 23, Covington filed multiple pretrial motions, including a request for discovery on May 14. He additionally filed “a motion to request for taxpayer identification number and certification,” a motion for a more definite statement, a “motion for MAPP hearing,” and a “motion to sever[] defendants.” When the parties appeared in court on May 23, 2019, the trial court acknowledged the motions that Covington filed and continued the case until June 13, 2019, for a hearing on the motions. Because this delay was attributable to motions filed by Covington, the speedy-trial time was extended during this period. See
{10} At the hearing on June 13, the trial court ruled on Covington‘s motions and the case was continued for trial until July 8, 2019, to give the state additional time to provide discovery. This 25-day period was attributable to the state and counted towards the 90-day period it had in which to bring Covington to trial.
{11} When the parties returned to court for the July 8 trial setting, they discussed the discovery that was provided to Covington. Covington stated that he
{12} In the interim, the parties returned to court on August 1, 2019. At that time, the trial court recognized that Covington had filed a jury demand. Since the case had originally been set for a bench trial, the court directed the assignment commissioner to set the case for a pretrial conference in order to then have it reset for a jury trial. Covington expressed to the court that he was considering hiring an attorney. The trial court converted the previously scheduled trial date of August 19, 2019, into a pretrial conference, in order to allow Covington time to consult with an attorney.
{13} On August 16, 2019, Covington filed a motion for a continuance of the pretrial conference set for August 19 because he was “waiting on documents from council and city.” At the pretrial conference on August 19, the trial court granted Covington‘s motion and continued the case until September 6, 2019, for a pretrial
{14} The parties returned to court on September 6, and Covington told the court that he had not yet hired counsel. The trial court continued the case until September 18, 2019, for a jury trial and instructed Covington to be prepared for trial, regardless of whether he hired counsel or represented himself. Because this 12-day period was the result of a reasonable continuance ordered by the court, it was not chargeable to the state. See
{15} On September 18, the parties appeared for the scheduled jury trial. Covington informed the court that he had appointments scheduled in the afternoon and had to leave the courtroom by 1:00 p.m. After the trial court informed him that the proceedings would continue until approximately 4:00 p.m., Covington requested a continuance. The state objected, stating that it was ready to proceed. The trial court granted Covington‘s request for a continuance. The case was scheduled for a jury trial on November 13, 2019. The record contains an entry signed by Covington indicating that he voluntarily extended the time period in which to bring him to trial from September 18, 2019, until November 13, 2019. Because the continuance was requested by Covington and because he voluntarily waived his speedy-trial rights during this period, it was not chargeable to the state. See Gage, 2018-Ohio-480, 104 N.E.3d 994, at ¶ 10. On November 13, a jury was sworn in and Covington was brought to trial.
Discovery
{17} In his second assignment of error, Covington argues that the trial court erred by denying his right to discovery. He contends that the trial court should have dismissed the charges against him when the state failed to disclose evidence, specifically the dash-cam footage that he had requested. We review a trial court‘s decision in a discovery matter for an abuse of discretion. State v. Baber, 1st Dist. Hamilton No. C-190338, 2021-Ohio-1506, ¶ 19; Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996). An abuse of discretion connotes an “unreasonable, arbitrary, or unconscionable decision.” Cornell v. Shain, 1st Dist. Hamilton No. C-190722, 2021-Ohio-2094, ¶ 36, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{18} Covington filed a motion for discovery on May 14, 2019. In this motion, he requested various items, including all video from “body and dash cams.” The state responded to Covington‘s motion for discovery on May 23, 2019. The response indicated that the body-worn camera video and cruiser video had been
{19} At a subsequent hearing on June 13, 2019, the court asked for an update on the state‘s production of the requested video evidence. The prosecutor stated that he had received an unredacted version of the body-worn camera video, but was still awaiting the redacted version, which would be forwarded to Covington upon receipt.3 Covington asked if he could move to dismiss the charges because he had yet to receive the video evidence, but the trial court stated that because the state was in the process of complying with the discovery demand, and because the case was still within a reasonable time for the production of discovery, it was going to give the state the opportunity to do so. The court instructed the state to produce the evidence by July 3, 2019. The state confirmed that the evidence needed to be postmarked by that date.
{20} When the parties returned to court on July 8, 2019, the state represented that the body-worn camera video was mailed to Covington on July 3. Covington stated that he had not received the evidence. The state then provided Covington with a copy of the video in court. After Covington expressed frustration
{21} At a hearing on August 1, 2019, Covington told the court that the video he received did not contain the “dash cam stop.” The state responded that it gave Covington all the evidence in its possession. The court indicated that Covington was entitled to the dash-cam video if it was maintained. It stated that:
You have got to understand this. Okay. You made a demand for discovery. The prosecution provides the response to the discovery. The prosecution represents the city but the police department maintains those items, maintains that evidence. It gets to a prosecutor by request. All right. [The prosecutor] said that if they have it. They can‘t miraculously make it appear. If they have it, they will turn it over. If they had it and didn‘t turn it over and it‘s been deleted, then you can raise an issue in that regard with a separate motion. However,
I simply want to make sure that you have received the information the prosecutor has.
The court instructed the state to inquire again into whether dash-cam video existed. Covington filed no additional motions regarding the dash-cam video, and during a pretrial conference on August 19, 2019, the prosecutor stated that it had given Covington “all of the copies of the video that [it] had.”
{22} Following our review of the record, we find no abuse of discretion on the part of the trial court in its handling of the discovery issues. It was reasonable for the trial court to extend the time for the state to produce the requested video evidence until July 3. When extending the time for the state to produce the video evidence, the court recognized that the city was inundated with requests for body-worn camera evidence and explained that because the city lacked enough employees to process those requests, the court granted latitude to the city regarding the production of that information. It was also reasonable for the trial court to order the state to inquire further into the existence of the dash-cam video. The trial court informed Covington that he had the right to file an additional motion regarding the dash-cam video if the parties learned that the video existed but the state had failed to produce it, or if it once existed and had since been destroyed. Covington failed to file any additional motions regarding discovery, such as a motion for sanctions for failure to produce evidence, the destruction of evidence, or the failure to maintain evidence.
{23} There was nothing arbitrary, unreasonable, or unconscionable in the trial court‘s handling of the discovery issues. The second assignment of error is accordingly overruled.
{24} In his third assignment of error, Covington broadly asserts that “the trial court erred by denying appellant‘s motions to dismiss for failure to prosecute, failure to provide bill of particulars, prosecutor misconduct, judicial misconduct and cruel and unusual punishment by selectively prosecuting with prejudice and discrimination.” However, in support of this assignment of error he only advances arguments supporting his contention that the state failed to provide him with a bill of particulars.
{25} Pursuant to both
{26} At a hearing on May 23, 2019, the trial court stated that it would not permit Covington to file any additional motions absent leave of court. Covington filed a motion for a bill of particulars on July 16, 2019, after the court‘s motion deadline and without leave of court. The trial court never entered a ruling on this motion, so we presume that it was overruled. See Rummelhoff v. Rummelhoff, 1st Dist. Hamilton No. C-190355, 2020-Ohio-2928, ¶ 28.
{27} A conviction should only be reversed for the failure to provide a timely requested bill of particulars where the appellant establishes that his “lack of
{28} The complaint filed against Covington alleged that Covington, in an official proceeding and with purpose to mislead a public official in performing her official function, knowingly made a false statement by stating to the arresting officer that his name was D‘Andre Antrion. The information in the complaint provided Covington with the nature of the offense charged and his conduct that allegedly constituted the offense. Not only was Covington‘s motion for a bill of particulars not timely filed and done without leave of court, but any error in failing to provide him with the bill of particulars was harmless because he obtained the same information from the complaint.
{29} The third assignment of error is overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.