STATE OF OHIO, Appellee v. RICHARD W. STEVENS, Appellant
C.A. No. 11CA009995
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 10, 2012
2012-Ohio-4095
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 10CR080870 and 10CR080938
BELFANCE, Judge.
{¶1} Defendant-Appellant Richard Stevens appeals from decisions of the Lorain County Court of Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} An indictment was filed against Mr. Stevens on August 5, 2010, in case number 10CR080870 for one count of kidnapping with two specifications, one count of rape with a specification, one count of aggravated burglary with one specification, and one count of disrupting public services. That same day an indictment was filed against Mr. Stevens in case number 10CR080938 for one count of theft. Both indictments relate to conduct that allegedly took place on June 17, 2010.
{¶3} On April 6, 2011, Mr. Stevens filed a motion to dismiss asserting a violation of his right to a speedy trial. His motion was denied on April 7, 2011, following a hearing. The cases proceeded to a consolidated trial by jury. The jury found Mr. Stevens not guilty of rape,
II.
ASSIGNMENT OF ERROR I
TRIAL COURT ERRED IN VIOLATING DEFENDANT‘S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL[.]
{¶4} Mr. Stevens asserts in his first assignment of error that the trial court violated his constitutional right to a speedy trial. However, Mr. Stevens’ entire argument focuses on an alleged violation of his statutory right to a speedy trial, and he offers no argument explaining how his constitutional right to a speedy trial was violated. Thus, this Court will focus on Mr. Stevens’ statutory right to a speedy trial. See
{¶5} This Court has previously stated:
“[t]he right of an accused to a speedy trial is recognized by the Constitutions of both the United States and the State of Ohio.” State v. Pachay, 64 Ohio St.2d 218, 219 (1980). There is also a statutory right to a speedy trial in Ohio. “Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code.”
R.C. 2945.73(B) . UnderSection 2945.71(C)(2) of the Ohio Revised Code , a person charged with a felony must be brought to trial within 270 days of his arrest.
State v. Jackson, 9th Dist. No. 11CA010012, 2012-Ohio-3524, ¶ 8.
{¶6} Mr. Stevens was arrested June 17, 2010, and, thus, his speedy-trial time began to run on June 18, 2010. Ultimately, Mr. Stevens’ jury trial began on April 13, 2011. Thus, the date of Mr. Stevens’ trial marked the 300th day following his arrest.
{¶7} On April 6, 2011, Mr. Stevens filed a motion to dismiss (in both cases), asserting that his statutory and constitutional speedy-trial rights were violated.1 That motion was later renewed and clarified on the date of trial prior to its commencement.
{¶8} On appeal, Mr. Stevens’ sole argument is that the trial court erred in not applying the triple-count provision found in
{¶9} Between June 18, 2010, and August 13, 2010, 56 days, or 168 days applying the triple-count provision, passed without any tolling events. On August 13, 2010, Mr. Stevens signed a speedy-trial waiver that provided he waived his speedy-trial rights from August 13, 2010, to August 27, 2010. Further, on August 27, 2010, until January 27, 2011, time was tolled as various pretrials were continued or set at Mr. Stevens’ request. See State v. Zimmerman, 9th Dist. No. 23089, 2006-Ohio-6004, ¶ 10, fn. 1; State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, ¶ 34;
{¶10} On February 18, 2011, prior to the expiration of Mr. Stevens’ speedy-trial time when taking into account tolling events, at a pretrial, the trial court sua sponte continued the trial date from February 23, 2011, until April 13, 2011, stating that the trial was continued because “the court is in trial on another case” on February 23, 2011.
{¶11} Here, at the hearing on Mr. Stevens’ motion to dismiss, the record reflects that, at the time of the scheduled trial in February 2011, the court was already in trial. In addition, there were uncontested assertions that the parties agreed to the April 13, 2011 trial date and that that
{¶12} We also note that, in the same entry continuing the trial date, the trial court indicated that Mr. Stevens requested that a final pretrial be set for March 17, 2011, which would also toll the speedy-trial clock. See
{¶13} In light of all of the foregoing, we conclude that Mr. Stevens’ statutory speedy-trial rights were not violated because, when tolling events are taken into account, Mr. Stevens
ASSIGNMENT OF ERROR II
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A FINDING BEYOND A REASONABLE DOUBT THAT APPELLANT WAS GUILTY[.]
{¶14} Mr. Stevens asserts in his second assignment of error that the jury‘s finding of guilty on the unauthorized use of a motor vehicle charge is based upon insufficient evidence. We do not agree.
{¶15} In determining whether the evidence presented was sufficient to sustain a conviction, this Court reviews the evidence in the light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore:
[a]n 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. The 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. at paragraph two of the syllabus.
{¶16}
{¶18} In the early morning hours of June 17, 2010, the victim alleged that Mr. Stevens broke into her apartment and raped her. During the incident, the victim asked Mr. Stevens how he got to her apartment and he told her that he “stole Venny‘s car.” The victim identified Venny as a friend of Mr. Stevens that “he had been renting off of.” The victim also testified that, after the alleged attack, “[she] realized that [she] had no idea what kind of car Venny had, so [she] wouldn‘t be able to tell anybody what [Mr. Stevens] left in, so [she] went to the patio door * * * and [she saw] a light-colored SUV go out and [she] knew that it was him.”
{¶19} Detective Lisa Dietsche testified that the victim told her that the victim saw Mr. Stevens get into a white SUV after he left her apartment. Upon further investigation, police discovered that Mr. Stevens had a possible connection to Venise Bryant. When officers drove past Ms. Bryant‘s residence they saw a white SUV in her driveway.
{¶20} Venise Bryant testified that she owns a white 1998 Ford Explorer and that on June 17, 2010, Mr. Stevens was living in her home. She testified that she had allowed him to drive her vehicle before she found out he did not have a driver‘s license but not after. She also indicated that Mr. Stevens had never asked to borrow her vehicle and that he did not have keys to the vehicle. She testified that Mr. Stevens was at home on the computer when she went to bed around 11:30 pm on June 16, 2010, and that, when police arrived the next morning, Mr. Stevens
{¶21} We conclude that the State presented sufficient evidence, if believed, whereby a jury could find Mr. Stevens guilty of unauthorized use of a motor vehicle. There was evidence presented that Mr. Stevens told the victim that he stole “Venny‘s” vehicle to get to the victim‘s home. Immediately after the incident, the victim saw a white SUV leaving her residence. Ms. Bryant owned a white SUV, and there was testimony that Mr. Stevens was staying at Ms. Bryant‘s home at the time. Ms. Bryant indicated that Mr. Stevens had never asked to borrow the vehicle and that she stopped letting him use the vehicle after she found out that he did not have a license. Ms. Bryant further testified that her belongings were out of place when she saw the vehicle the next day. From all of the above, a reasonable jury could conclude that Mr. Stevens knowingly used the white SUV owned by Ms. Bryant without her consent. See
ASSIGNMENT OF ERROR III
APPELLANT‘S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]
{¶22} Mr. Stevens asserts in his third assignment of error that his conviction for unauthorized use of a motor vehicle is against the manifest weight of the evidence. We do not agree.
{¶23} In reviewing a challenge to the weight of the evidence, the appellate court:
must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶24} Mr. Stevens essentially argues his conviction is against the manifest weight because there was no physical evidence or eyewitnesses placing Mr. Stevens in the white SUV. In addition, Mr. Stevens alleges that Ms. Bryant‘s testimony is not credible because she was acting to protect her own interests and did not want to be involved in the investigation. We are not persuaded by Mr. Stevens’ arguments.
{¶25} As discussed above, there was substantial circumstantial evidence that linked Mr. Stevens to the white SUV at issue. Initially we note that there was testimony that Mr. Stevens admitted to stealing a vehicle from Venny to get to the victim‘s apartment. The victim saw a white SUV leaving the scene. Ms. Venise Bryant, with whom Mr. Stevens lived, owned a white SUV and noticed that her belongings that she kept in the vehicle were not where she left them following the incident in question. Moreover, Ms. Bryant stated that Mr. Stevens did not ask to borrow her vehicle and that, once she learned that he did not have a driver‘s license, she no longer allowed him to use the vehicle.
{¶26} With respect to Ms. Bryant‘s credibility, we note that the jury was able to observe Ms. Bryant‘s demeanor and facial expressions and more fully evaluate her credibility. We find nothing in her testimony specifically evidencing any bias or ulterior motivation, and Mr. Stevens has not pointed to anything that evidences the same. Based upon the record before us, we cannot say that the jury‘s credibility determinations were unreasonable or that it lost its way in
ASSIGNMENT OF ERROR IV
TRIAL COURT ERRED IN IMPOSING THE MAXIMUM STATED SENTENCE.
{¶27} Mr. Stevens asserts in his fourth assignment of error that the trial court erred in imposing the maximum sentence of 18 months for his conviction for disrupting public services.
{¶28} Mr. Stevens acknowledges that he has already completed his prison sentence and concedes that “the issue may[ ]be moot,” yet he nonetheless believes that we should address the issue on appeal. Mr. Stevens has provided no compelling argument as to why we should address this issue when we could provide him with no relief, even assuming the trial court erred in fashioning his sentence. Accordingly, and in light of our resolution of his other assignments of error, we decline to address his argument. See
III.
{¶29} In light of the foregoing, we affirm the judgment of the Lorain County Court of Common Pleas.
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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
CONCURS.
DICKINSON, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
JENIFER C. BERKI, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.