State v. HopingsState v. Hopings
DECISION AND JUDGMENT
Decided: May 6, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Brayman, Assistant Prosecuting Attorney, for appellee.
Mark I. Jacobs and Spiros P. Cocoves, for appellant.
*****
OSOWIK, J.
I. Introduction
{¶ 1} Appellant, Lawrence Hopings, appeals the March 18, 2020 judgment of the Lucas County Court of Common Pleas convicting him of three counts of rape and three counts of sexual battery. For the following reasons, we affirm the trial court‘s judgment.
{¶ 2} Appellant‘s convictions were based on conduct which occurred between April 1, 2016 and April 30, 2017. Appellant was initially indicted in 2017. The original indictment was dismissed in 2018, without prejudice, at the state‘s request. Appellant was again indicted in 2019 for the same conduct. The refiled indictment ultimately proceed to trial, from which the final judgment is the subject of this appeal. Because appellant alleges errors which encompass the procedure under both the original and the refiled indictments, the following summary provides the procedural details under both case numbers.
i. Lucas County Court of Common Pleas Case No. CR 2017-2020
{¶ 3} On June 16, 2017, appellant was indicted on three counts of rape by force or threat of force in violation of
{¶ 5} The state appeared for the newly scheduled trial date and informed the trial court that the victim, L.S., was taking part in residential mental health treatment and would not be prepared to testify. Because of this, the state made its first request to continue the trial date. The trial court granted the state‘s request over appellant‘s objection. Appellant‘s trial was rescheduled for January 30, 2018. On that rescheduled trial date, the state informed the trial court that L.S. was still unable to testify and requested the trial court dismiss the charges, without prejudice. The trial court granted the state‘s request. From the time of his arrest to the dismissal of the charges, appellant was held in jail in lieu of bail for a total of 277 days.
ii. Lucas County Court of Common Pleas Case No. CR-2019-2802
{¶ 6} The state again indicted appellant on identical charges on October 16, 2019. The refiled charges were assigned Lucas County Court of Common Pleas case No. CR 2019-2802. Appellant was arraigned on the refiled charges on October 23, 2019. He was again appointed counsel and entered a not guilty plea to all counts. The trial court set appellant‘s bond in the amount of $750,000 and appellant was remanded into the custody of the Lucas County Sherriff‘s Department. The trial court also set a pretrial for
{¶ 7} On January 6, 2020, appellant filed a motion to dismiss the charges. Appellant‘s motion included a letter signed by L.S., dated August 1, 2017, in which she purportedly recanted all of her allegations. The letter stated that L.S. lied about appellant‘s conduct as revenge for his shortcomings in their father-daughter relationship. Appellant‘s motion sought dismissal of all charges arguing that the letter “fully exonerates [appellant].” The state filed its opposition on January 21, 2020. The state argued that a motion to dismiss pursuant to
{¶ 8} Contemporaneous with the motion practice, appellant and the state appeared for the January 7, 2020 trial date. There, appellant requested, and the trial court granted, a continuance of the trial to January 28, 2020. On that date, the state informed the trial court that L.S. had undergone a minor medical procedure and was unavailable. The state requested a continuance to February 18, 2020. Appellant did not object to the state‘s request and the trial court granted the continuance.
Jury Selection and Trial Commencement
{¶ 10} A three-day trial commenced on March 10, 2020. Initially, the parties proceeded to select 12 jurors and 2 alternates from the venire. After jury selection, the proceedings were recessed for approximately one hour before opening statements were to begin.
{¶ 11} Upon returning from recess, counsel for appellant and the prosecutor met in the trial court‘s chambers for a discussion outside the presence of the jury. During that discussion, the prosecutor informed the trial court that as he was returning to the courtroom, an individual he believed had just been selected for the jury saw him in the hallway and asked “did [appellant] take a plea so we can all go home?” The prosecutor
{¶ 12} During her individual voir dire, Juror Number 12 indicated that she made the comment because she thought appellant may have agreed to a plea deal which would have relieved the panel of their jury service. Regarding the nature of the statement, Juror Number 12 stated “I was just making a joke,” “it was strictly a joke,” and “we thought perhaps a plea had happened.” When the trial court asked if she could still “sit and listen to the evidence,” juror number 12 stated “[o]h, yes.” After Juror Number 12 exited the chambers, appellant‘s counsel stated:
Judge, given that comment and the context in which it was made, and given the fact that she was here and that I saw her, it sounds worse than it is. * * * But based upon what was said, I believe it to be a comment made out of being facetious or maybe even nervous, and I don‘t—I don‘t believe
she can be anything but fair and impartial given her answers not just here in your chambers but out in the courtroom as well[.]
The trial court agreed and permitted Juror Number 12 to continue her service on the jury. The trial court also indicated that to avoid singling Juror Number 12 out in open court that the preliminary jury instructions would include an advisement that jurors were not permitted to speak with any counsel during the trial.
{¶ 13} The parties then proceeded to the courtroom for the commencement of appellant‘s trial at which the parties elicited the following testimony and related evidence:1
Testimony of L.S.
{¶ 14} L.S. was born on October 26, 2001. At the time of the trial, she was in the custody of the Lucas County Children‘s Services Department (“LCCS“). Appellant is L.S.‘s biological father. From the time she was born until she was 14 years old, L.S. lived with her grandmother. She did not have any contact with appellant during that time.
{¶ 15} In the Spring of 2016, at the age of 14, L.S. reached out to appellant in order to establish a father-daughter relationship. She initially contacted appellant via text messaging but began meeting him in person approximately one month later.
{¶ 17} At the time of this first incident, L.S. was living with her aunt and cousin. After experiencing physical and verbal abuse there, she moved in with another aunt, M.D. Appellant was also living with M.D. at that same time. L.S. and appellant each had their own room at M.D.‘s house. However, appellant soon moved into L.S.‘s room with her claiming that the odor of cat urine prevented him from staying in his room. L.S. testified that while living with M.D., appellant continued to have vaginal intercourse with her “plenty of times.” He also performed oral sex on L.S. and had her perform oral sex on him. L.S. testified that most often she did not resist because if she did he “would just take it.” L.S. also testified that appellant would “always” tell her not to tell anyone about his conduct or he would stop talking to her and that “it won‘t turn out good.” She also testified that when she was more forceful with her resistance that appellant would “beat on [her].”
{¶ 19} On another occasion, L.S. and appellant were again visiting his dad‘s residence. L.S. testified that she went upstairs to use the restroom and appellant followed her. He pulled her into a bedroom and forcibly engaged in vaginal intercourse with her. She eventually pulled herself away from him and he said “dont‘t do this to daddy.” L.S. refused to continue. She testified that she was bleeding from her vagina which she attributed to the force of the intercourse.
{¶ 20} Overall, L.S. testified that appellant had vaginal and oral sex with her on multiple occasions at five different residences between April 1, 2016 and April 1, 2017. L.S. eventually moved from M.D.‘s house where she shared a room with her father to her brother‘s house. She subsequently contacted Kaitlin Middleton, a crisis care manager at
{¶ 21} During the discussion, Middleton reminded L.S. that during one of her previous hospitalizations, L.S. had allowed the Middleton to review the contents of her cell phone and iPad. This review was the result of L.S. informing Middleton that appellant had previously touched her buttocks. At that time, L.S. had not informed Middleton of any other sexual conduct between her and appellant. The contents of L.S.‘s devices included a video in which appellant describes L.S. as “fine” and addresses her as his “baby mama,” which L.S. interpreted as appellant‘s desire to impregnate her. L.S. testified that after Middleton reminded her that she had already seen the contents of her phone, she informed Middleton that appellant had, in fact, engaged in sexual contact with her over “200 times.” On cross-examination she conceded that this amount was hyperbolic and exceeded the “50 to 100 times” estimate she initially reported to police in 2017.
{¶ 22} After informing Middleton of appellant‘s conduct, L.S. was moved into foster care through LCCS. On May 27, 2017, with Middleton‘s encouragement, L.S. sent a text message to appellant informing him that she had disclosed his conduct to Middleton. Appellant and L.S. engaged in a text conversation in which appellant immediately responded that he was “going to jail.” Later in the exchange, appellant
{¶ 23} During her testimony, L.S. was presented with her August 1, 2017 letter in which she recanted her allegations against appellant. In the letter, L.S. stated that her allegations were revenge for what she perceived as appellant‘s failures as a father. L.S. testified that the letter itself was false and that she felt pressured to recant her story because of how appellant and his family and friends responded to her allegations and anticipated testimony.
{¶ 24} Finally, L.S. testified that when appellant‘s initial trial had been scheduled for January 30, 2018 (case No. CR 2017-2020), she was receiving inpatient treatment at a mental health facility and was unable to testify. In 2019, after completing her treatment, L.S. contacted Detective Michael Taulton of the Toledo Police Department regarding her allegations. Detective Taulton had originally interviewed L.S. in relation to appellant‘s conduct. Detective Taulton again interviewed L.S. prior to the charges being refiled. She informed Detective Taulton that she had decided to testify against appellant because she
Testimony of Kaitlin Middleton
{¶ 25} At all times relevant to this case, Kaitlin Middleton worked as a crisis care manager at the Zepf Mental Health Center in Toledo, Ohio. Her work at the center involved meeting with juvenile clients that had recently been released from hospital treatment for their suicidal or homicidal ideations. Middleton would meet with the clients to monitor their symptoms and behaviors, ensure they received their medication and attended therapy appointments, and help establish additional treatment options if necessary.
{¶ 26} Middleton first met L.S. in her capacity as a crisis care manager on February 14, 2017. L.S. had previously been hospitalized for mental health treatment after exhibiting suicidal ideations. Middleton met with L.S. to develop a crisis plan following her recent release from treatment. Middleton continued to meet with L.S. at appellant‘s residence twice a week. During that time, Middleton informed appellant that it was important for him to be involved in L.S.‘s treatment by monitoring her closely. Middleton also noted that appellant would not leave L.S. alone with her at any time during their visits. Middleton testified that this was suggestive of an abusive relationship because it was “unusual” for a parent to insist on being involved in these sessions. She
{¶ 27} At one of her later visits, L.S. reported that appellant was sexually abusing her. Middleton was obligated by law to report this abuse to LCCS. After making the report, Middleton arranged hospitalization treatment for L.S. who had informed Middleton that she felt unsafe with appellant and was exhibiting behavior that indicated she might harm herself. Middleton arranged L.S.‘s admission to the University of Toledo‘s Kobacker mental health facility in Toledo, Ohio.
Testimony of Detective Michael Taulton
{¶ 28} Detective Michael Taulton had been a member of the Toledo Police Department for 23 years at the time of appellant‘s trial. At that time, he worked as an investigator for the Special Victims Unit (“SVU“) and was tasked with investigating sexual crimes. He testified that the SVU exists because sexual crimes are particularly sensitive and their investigation requires specialized training. Specifically, he was trained to conduct “forensic interviews” with children who alleged that they have been the victim of sexual abuse. In contrast to interviewing an adult, in which the questions are designed to elicit affirmative admissions and denials, a forensic interview of a child involves asking open-ended questions with narrative responses. Detective Taulton stated that this method was preferred because children often simply agree with the interviewer if asked questions which suggest a certain response rather than providing an honest answer.
{¶ 30} As to his investigation in appellant‘s case, Detective Taulton testified that he conducted a forensic interview with L.S. both in 2017 and 2019 regarding her allegations. He noted that despite L.S.‘s testimony that appellant had had sex with her over 200 times that she had initially reported that it occurred 50 to 100 times. After his interview with L.S., Taulton conducted a data extraction of cell phones belonging to L.S. and appellant as well as L.S.‘s iPad. He confirmed that State‘s Exhibit 5, which included the text messages L.S. described during her testimony, was a report derived from these extractions.
{¶ 31} Detective Taulton further testified that when he interviewed appellant that appellant denied all of L.S.‘s allegations. Detective Taulton stated that this was a common response when he interviewed an individual accused of sexual abuse. He conceded during cross-examination, however, that he had heard similar denials during his
{¶ 32} Finally, Taulton testified that based on his interviews and his review of the data extracted from the parties’ devices, he believed a criminal offense had occurred and referred the matter to the state for prosecution.
Testimony of L.G. and M.D
{¶ 33} Appellant called two witnesses—L.G. and M.D., appellant‘s aunts—during his case-in-chief. Each of these witnesses testified that they resided with appellant and L.S. at some point during the times relevant to this case. Each testified that they did not observe appellant engaging in any inappropriate conduct with L.S. and that the living space provided allowed for L.S. and appellant to have their own rooms. Both L.G. and M.D. conceded that they did not observe appellant and L.S. at all times and that L.S.‘s allegations regarding appellant‘s conduct could have occurred during those unobserved times.
Jury Verdict, and Sentencing
{¶ 34} Following closing arguments and the recitation of jury instructions, the matter was submitted to the jury for deliberations. The jury returned a guilty verdict on all six counts. The trial court set a sentencing hearing for March 18, 2021.
{¶ 35} At sentencing, the trial court imposed a mandatory prison term of 11 years for each of appellant‘s three rape convictions. The trial court also imposed a 60-month
B. Assignments of Error
{¶ 36} Appellant timely appealed and asserts the following errors for our review:
- Trial counsel for the Defendant, Appellant herein, was ineffective and did not achieve or provide the minimum constitutionally mandated standard for representation of the Defendant at the trial of this cause;
- Failure to contest seating juror who made comment to the prosecutor indicating favor for Defendant taking a plea during jury selection;
- Appellant is entitled to have this case dismissed and to be released due to the violation of his speedy trial rights, pursuant to the United States and Ohio Constitutions; and
- The convictions for rape and sexual battery are offenses of similar import and the jury did not identify the “separate” nature of the offenses for which the Appellant stands convicted.
Appellant‘s second assignment of error alleges a specific instance of ineffective assistance of counsel. His first assignment of error alleges that cumulative errors,
II. Law and Analysis
A. Trial counsel‘s consent to Juror Number 12‘s continued service on the jury did not constitute ineffective assistance of counsel.
{¶ 37} In his second assignment of error, appellant argues that his trial counsel‘s consent to Juror Number 12‘s continued service on the jury despite her alleged bias against him constituted ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, an appellant must show that counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial court proceedings cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant must show “(1) deficient performance of counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687–688. Appellant does not meet this burden as to his second assignment of error.
{¶ 38} Appellant argues that a singular decision made by trial counsel—that is, the failure to object to Juror Number 12‘s service on the jury—rendered his counsel‘s assistance ineffective. Essentially, appellant argues that because Juror Number 12 had
{¶ 39} Generally, the determination as to whether to challenge a juror is a matter of “trial strategy” which Ohio courts have “consistently declined to ‘second guess’ * * * or impose ‘hindsight views about how current counsel might have voir dired the jury differently.‘” State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 63. “Few decisions at trial are as subjective or prone to individual attorney strategy as juror voir dire, where decisions are often made on the basis of intangible factors.” Id. at ¶ 64, citing Miller v. Francis, 269 F.3d 609, 620 (6th Cir., 2001). “[C]ounsel is in the best position to determine whether any potential juror should be questioned and to what extent.” Id., citing State v. Murphy, 91 Ohio St.3d 516, 539, 747 N.E.2d 765 (2001).
{¶ 40} Our review of the record, including juror number 12‘s responses during the initial voir dire and her responses to questions in chambers, reveals no evidence that appellant‘s trial counsel‘s desire to keep her on the jury fell below an objective standard of reasonable representation. Juror Number 12 stated that she could be fair and reasonable despite her statement to the prosecutor. Appellant‘s counsel, who was in the best position to determine whether Juror Number 12‘s service on the jury would benefit appellant, explicitly stated that he had considered all of Juror Number 12‘s responses
{¶ 41} Appellant likewise fails to show that Juror Number 12‘s service on the jury resulted in prejudice. “When a defendant bases an ineffective assistance claim on an assertion that his counsel allowed the impanelment of a biased juror, the defendant ‘must show that the juror was actually biased against [them].‘” Id. at ¶ 67, citing Miller at 620. “‘Actual bias is bias in fact‘—the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475, ¶ 25. Impartiality may be shown through the juror‘s own statements. State v. Herring, 94 Ohio St.3d 246, 259, 762 N.E.2d 940 (2002) (holding that “[a] trial court may rely on a juror‘s testimony as a basis for finding that [their] impartiality was not affected“).
{¶ 42} Although appellant argues that Juror Number 12 was biased against him, the record does not support that claim. A fair reading of juror number 12‘s remark indicates that she sought to avoid jury service generally, not that she had prejudged appellant‘s guilt. During the in-chambers voir dire, the trial court noted that during general voir dire, only one potential juror—not Juror Number 12—raised their hand when asked if they were excited to have received the jury summons. While recognizing that it
B. Trial Counsel‘s alleged individual instances of ineffective assistance do not establish cumulative error warranting reversal of appellant‘s conviction.
{¶ 43} In his first assignment of error, appellant argues that cumulative errors made by his trial counsel rendered counsel‘s assistance ineffective. Appellant prefaces his claim by stating that “[w]hile it is arguable that no single shortcoming or specific incident is enough to rise to the level of and to, in itself, standing alone, demonstrate the lack of minimally constitutional effectiveness to which [appellant] is entitled, the aggregate actions and inactions of all of trial counsel‘s shortcomings create a cumulative effect that renders the representation of [appellant] constitutionally ineffective in the trial court.” Appellant then lists several alleged errors made by trial counsel to support his claim that he received ineffective assistance.
{¶ 44} The Ohio Supreme Court previously recognized that the doctrine of cumulative error may be applied to a claim of ineffective assistance of counsel. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). “Under this doctrine, a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous errors does not individually constitute cause for reversal.” State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 169. As applied to a claim for ineffective assistance of counsel, “[e]ach assertion of ineffective assistance of counsel going to cumulative error depends on the merits of each individual claim; when none of the individual claims of ineffective assistance of counsel have merit, cumulative error cannot be established simply by joining those meritless claims together.” Id. at 170, citing State v. Hill, 75 Ohio St.3d 195, 661 N.E.2d 1068 (1996). Because each of appellant‘s individual claims of ineffective assistance of counsel are without merit, we find that he has failed to show cumulative error sufficient to reverse his conviction. We address each of the alleged instances of ineffective assistance in turn:2
1. Motion to dismiss
{¶ 46} A
2. Failure to Request Bill of Particulars
{¶ 47} Appellant argues that trial counsel should have requested a bill of particulars, pursuant to
{¶ 48} Appellant argues that trial counsel‘s failure to object to the dismissal for cause of a disabled member of the venire, and the failure to question other jurors that may have overheard Juror Number 12‘s remark regarding a plea agreement, resulted in ineffective representation. Again, appellant merely argues that trial counsel should have made a more significant inquiry of certain members of the venire during voir dire. He makes no argument showing what questions counsel could have asked that would have either shown the disabled juror should not have been dismissed or that the jurors who may have heard Juror Number 12‘s remark would have exhibited bias toward him. Therefore, appellant has not shown that the proceeding‘s results would have been different had his counsel conducted a more comprehensive voir dire. The lack of identified prejudice resulting from trial counsel‘s decision precludes a finding of ineffective assistance of counsel based on counsel‘s allegedly deficient performance during jury selection.
4. Lack of preparation in cross-examining witnesses
{¶ 49} Appellant next challenges trial counsel‘s failure to properly cross-examine Kaitlin Middleton and Detective Taulton. Specifically, he argues that trial counsel should have obtained Middleton‘s discoverable records of her interactions with L.S. and used them to prepare for her cross-examination. Appellant concludes that “[g]iven the list of other items that the defense counsel missed, ignored, or glossed over, in evaluating his
{¶ 50} With regard to Detective Taulton‘s testimony, appellant argues that trial counsel should have objected to Taulton‘s reading of his summary of the video recovered from L.S.‘s phone. This, he continues, allowed Detective Taulton to exert undue influence over the jury by providing his interpretation of the video in an “expert witness” capacity. Appellant also argues that trial counsel should have questioned Detective Taulton regarding the prevalence of false accusations in child sexual abuse cases—an assertion appellant makes without providing any support. Despite alleging these errors, appellant offers no argument as to how trial counsel‘s failure to conduct a more comprehensive cross-examination of Detective Taulton would have changed the proceeding‘s result, particularly in light of the remaining evidence against him.
{¶ 51} Put simply, while trial counsel‘s cross-examination of the state‘s witnesses could have purportedly elicited additional details, appellant offers no argument that he suffered prejudice as a result of this lack of detail.
5. Failure to present adequate witnesses in appellant‘s defense
{¶ 52} As to his own defense, appellant argues that trial counsel made “minimal effort” to investigate and present additional witnesses which might have provided a more substantive defense to the charges against him. Appellant makes absolutely no mention
6. Miscellaneous allegations of ineffective assistance
{¶ 53} We note that in addition to the 5 enumerated alleged instances described above, appellant also identifies a list of 33 incidents which occurred before or during his trial which he requests this court consider in resolving his first assignment of error. The list includes, among other items, actions taken by appellant himself (“Appellant has no confidence in counsel and explains that to the Court,” “Appellant requests new counsel“), actions taken by the trial court (“Jury sworn in AFTER the issue with juror [number 12],” “Trial Judge states concern for Defendant‘s Speedy Trial rights“), assumptions regarding trial counsel‘s motives for certain decisions (“Counsel fails to ask prospective juror questions because she is disabled,” “Counsel ‘stipulates’ to the evidence, without any indication that he has ever reviewed it“), and the identification of 14 off-the-record conversations which occurred throughout trial. Essentially, appellant has provided a list of grievances he had with the entire trial process in order to bolster his “cumulative” error argument.
{¶ 54} We find no bases on which appellant‘s own conduct or actions taken by the trial court could be imputed to trial counsel in support of a claim for ineffective
{¶ 55} In sum, appellant fails to show that any of his individual claims of ineffective assistance of counsel have merit. Since cumulative error cannot be established simply by joining meritless claims together, appellant has failed to establish the he received ineffective assistance of trial counsel. State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841 at ¶ 170. For these reasons, we find appellant‘s first assignment of error not well-taken.
C. Appellant‘s speedy trial rights were not violated
{¶ 56} In his third assignment of error, appellant argues that the state violated his right to a speedy trial when it failed to commence his trial within the time period
{¶ 57} While the statute provides a specific time limit in which a defendant must be brought to trial, that time may be extended under certain exceptions enumerated in
{¶ 58} “If the defendant makes a prima facie showing that his speedy-trial time has elapsed, the burden shifts to the state to show that the defendant was timely brought to trial. State v. Crawford, 6th Dist. Lucas No. L-17-1297, 2019-Ohio-2660. A speedy-trial calculation, then, requires this court to “simply count the number of days passed, while determining to which party the time is chargeable, as directed in
{¶ 59} It is undisputed that appellant was held in jail in lieu of bail for 277 days during the pendency of case No. 2017-2020. It is also undisputed that appellant was held in jail in lieu of bail for 146 days following his arrest and up to the commencement of his trial in case No. CR 2019-2802. Combined, appellant was held in jail in lieu of bail for 423 days. Because appellant was held in jail in lieu of bail, the triple counting provision
{¶ 60} In case No. CR-2017-2020, appellant was initially held in custody for 45 days from June 17, 2017 until his scheduled August 1, 2017 trial date. As no extension or waiver applies to this time, all 45 days are chargeable to the state. On his initial trial date, appellant requested a continuance which the trial court granted. Appellant‘s trial was continued to September 12, 2017. Appellant requested two subsequent continuances until his trial was ultimately rescheduled to November 28, 2017. The total time elapsed from appellant‘s first requested continuance until his November 28, 2017 trial date was 119 days. Because appellant requested these continuances, all of these 119 days are chargeable to appellant pursuant to
{¶ 61} On November 28, 2017, the state requested a continuance of appellant‘s trial. On that date, the state informed the trial court that L.S. would be unable to participate at trial as she was engaged in inpatient mental health treatment. The state explained that the treatment was necessary due to the victim‘s continued suicidal
{¶ 62} Appellant argues that because he objected to the request, and because the trial court did not make a specific finding that the request was reasonable, that these days are chargeable to the state. We disagree. Appellant is correct that the trial court‘s entry does not identify the bases on which it granted the continuance. “If the journal entry does not contain the reason for the continuance, the reviewing court can look to other evidence in the record to determine whether the continuance was reasonable.” Crawford at ¶ 32. Thus, the trial court‘s omission of the reasonableness of the state‘s request is immaterial and this court reviews whether a continuance was reasonable, and therefore not chargeable to the state against appellant‘s speedy-trial rights, based on the “facts and circumstances of the case.” Id.. Having reviewed the record, we find that the state‘s request was reasonable. The state provided a specific basis for its request—L.S.‘s continued mental health treatment—and explained that steps had been taken through filings in the juvenile court to avoid requesting the continuance. Based on these circumstances, we find that the state‘s request for a 68-day continuance was reasonable
{¶ 63} Case No. CR 2017-2020 was dismissed, without prejudice, on January 30, 2018. For the foregoing reasons, we find that only 45 of the 227 days appellant was held in jail in lieu of bail during that time were chargeable to the state under
{¶ 64} Upon refiling of the charges under case No. CR 2019-2802 on October 16, 2019, the state‘s obligation to bring appellant to trial within 90 days of his original indictment resumed. Broughton at 260. 14 days later, at an October 30, 2019 pretrial, appellant signed a waiver of his speedy-trial rights and consented to a trial date of January 7, 2020. The initial 14 days in which appellant was in custody are chargeable to the state. However, appellant‘s valid waiver of his speedy-trial rights for a period of 69 days precluded that time from being applied toward the state‘s time constraints under
{¶ 65} Between January 7, 2020 and the commencement of appellant‘s trial on March 10, 2020, the trial court granted three more continuances. Appellant requested two of those continuances, each lasting 21 days. Pursuant to
{¶ 66} Appellant‘s trial in case No. CR 2019-2802 commenced on March 10, 2020. At that time, he had been held in jail in lieu of bail from the date of his reindictment until his trial, a period of 146 days. We find that only 14 of those days were chargeable to the state as all other continuances were either requested by appellant, were the result of appellant‘s valid, signed waiver of his speedy trial rights, or were the result of a reasonable request for continuance by the state pursuant to
{¶ 67} In his fourth assignment of error, appellant argues that his convictions for sexual battery and rape constituted allied offenses of similar import and should have been merged at sentencing.
{¶ 68} Appellant argues that all of his offenses are allied offenses, because the elements of each of the crimes charged in the amended indictment—as given to the jury by the trial court—are so similar, and the timeframe alleged in each count of the indictment is identical, so we cannot be certain that the jury found him guilty of six separate offenses. He claims that the lack of jury interrogatories make it impossible for us to “determine if the jury intended to make separate findings as to each of the six
{¶ 69} We note that appellant did not raise this argument at sentencing. “An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.” State v. McKinney, 6th Dist. Lucas No. L-19-1033, 2020-Ohio-3547, ¶ 27, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Therefore, we review the trial court‘s judgment for plain error.
{¶ 70} At trial, L.S. testified, after some clarification, that appellant engaged in sexual conduct with her on 50 to 100 occasions during the time period described in the amended indictment. Among those instances were act of (1) vaginal penetration in appellant‘s father‘s living room in April 2016, (2) vaginal penetration while L.S. lived with M.D., (3) L.S. performing oral sex on appellant while she lived with M.D., (4) appellant performing oral sex on L.S. while she lived with M.D., (5) vaginal penetration at a cousin‘s house in July 2016, and (6) vaginal penetration in a bedroom at appellant‘s father‘s house. From this testimony, it is evident that the charged conduct occurred on at least 6 separate occasions. Based on her testimony, we answer the second question identified in Ruff—whether the offenses were committed separately—in the affirmative. Therefore, appellant‘s convictions are not allied offenses that should have merged at
III. Conclusion
{¶ 71} For the foregoing reasons, we find each of appellant‘s four assignments of error not well-taken and we affirm the March 18, 2020 judgment of the Lucas County Court of Common Pleas.
{¶ 72} Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Myron C. Duhart, P.J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.