[Cite as State v. Hayes, 2012-Ohio-2500.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97289
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GERALD HAYES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-542601
BEFORE: Rocco, J., Stewart, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: June 7, 2012
-i-
ATTORNEY FOR APPELLANT
David P. Kraus
19333 Van Aken Blvd.
Suite 112
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Maxwell M. Martin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Gerald Hayes appeals from his convictions for burglary,
possession of marijuana, and tampering with evidence.
{¶2} Hayes presents two assignments of error. He argues that the state failed to
bring him to trial in a timely manner, and that his convictions are not supported by the
manifest weight of the evidence.
{¶3} After a review of the record, this court finds that the state complied with R.C.
2945.71 and that the manifest weight of the evidence supports Hayes’s convictions.
Hayes’s convictions, consequently, are affirmed.
{¶4} Hayes’s convictions result from an incident that occurred on the afternoon of
September 25, 2010. The state’s witnesses described the incident as follows.
{¶5} Cecil Fluker worked as the “assistant property manager” for an apartment
complex located in East Cleveland, Ohio. He had been napping when his cell phone
rang. One of the tenants, Jermika Hudson, called to notify him that her sister’s
apartment, which was across the hall from Hudson’s, had been invaded.
{¶6} Fluker hurried over to that building to investigate. He stepped inside long
enough to observe through the inner glass door that tenant Daysjantia Williams’s
apartment door was open. Fluker also saw someone’s head “peek” from Williams’s
door. At that, Fluker returned outside to watch; he asked a nearby youngster to seek
shelter inside and to call the police.
{¶7} Fluker saw several men run out of the building. He recognized some of their
faces, having seen them at the apartment of another tenant, viz., Denzel Crowell. Fluker
followed the men as they ran to another building in the apartment complex; Crowell lived
in that building. Before entering the building, one of the men raised a gun at Fluker.
{¶8} Fluker was still in place when the police arrived moments later. He pointed
out Williams’s apartment, showed them the building that he had seen the men enter, and
informed them of Crowell’s apartment number.
{¶9} East Cleveland police officer John Donitzen and his partner knocked at
Crowell’s apartment door. Donitzen could hear movement inside before Crowell
admitted the officers.
{¶10} Donitzen observed four men with Crowell in the small apartment. They
were later identified as Keith Dickson, Delmar Dale, Gregory Crayton, and Hayes. Upon
seeing the officers, Dickson simply prostrated himself on the floor. Dale emerged from
the bathroom, where a gun subsequently was found hidden inside the toilet tank.
Crayton and Hayes were in a small bedroom; Hayes was on the floor when Donitzen
entered. Hayes had his hand under the dresser.
{¶11} After all the men were secured, the officers conducted a “cold stand” and
Fluker identified Hayes as the man who had pointed a gun at him. During the ensuing
investigation of the incident, Dickson and Dale both acknowledged they had taken part in
invading Williams’s apartment; they identified Hayes as their companion.
{¶12} According to Dickson, Crowell had indicated Williams kept a lot of
marijuana in her apartment. Crayton and Dale both admitted they smoked marijuana
often. Dickson and Dale each testified that Hayes went with them to Williams’s
apartment and that they all went inside after Dickson “kicked in” the door. On the night
of the incident, under the dresser where Donitzen had seen Hayes reaching his arm,
Donitzen found a “sandwich bag containing multiple smaller bags of marijuana inside of
it.”
{¶13} Hayes subsequently was indicted along with his four codefendants on
thirteen counts. Pertinent to this appeal, Hayes was charged with aggravated burglary,
burglary, carrying a concealed weapon, possession of marijuana, having a weapon while
under disability, and tampering with evidence. The burglary counts contained notices of
prior conviction (“NPCs”) and repeat violent offender specifications (“RVOs”).
{¶14} The record reflects that although counsel was assigned to represent Hayes at
Hayes’s September 30, 2010 initial appearance before the trial court, counsel found it
necessary to file a motion to withdraw from the case on October 26, 2010. The trial
court granted the motion and appointed new counsel for Hayes on November 3, 2010.
Hayes’s trial counsel thereafter filed motions for discovery; he also participated in
numerous pretrial hearings.
{¶15} The court originally set March 1, 2011 as the date for Hayes’s trial, but the
case was continued to April 12, 2011. On that date, the defense filed a motion to
continue trial until May 4, 2011. The case, however, could not go forward because the
court was unavailable and the next available date for the attorneys was not until June 21,
2011.
{¶16} On June 1, 2011, proceeding pro se, Hayes filed a motion to dismiss his case
pursuant to R.C. 2945.71 for failure to comply with his right to a speedy trial. The court
addressed Hayes’s motion on June 21, 2011 when his case was called for trial.
{¶17} At that time, Hayes’s attorney conceded that his client had been incarcerated
since his arrest based upon a “probation hold” in addition to the instant case. Defense
counsel also noted that the case would need a further continuance because Hayes did not
as of the trial date “have any conventional clothing.” In addition, the prosecutor stated
on the record that Hayes was under indictment in another case, viz., case number
CR-538572. Based upon the foregoing facts, Hayes’s trial counsel agreed with the
court’s statement that the time for trial had been tolled “at least until June 28th.”
Hayes’s trial commenced on that date.
{¶18} After Hayes executed a jury waiver with respect to the NPCs and RVOs
attached to his indictment, his case proceeded to a jury trial on the pertinent charges.
The jury subsequently found Hayes guilty of burglary, possession of marijuana, and
tampering with evidence. The trial court also found Hayes guilty of the NPCs and
RVOs. The court ultimately sentenced Hayes to a total prison term of five years for his
convictions.
{¶19} Hayes presents two assignments of error in this appeal.
“I. The trial court erred by not commencing trial in a timely fashion in
violation of R.C. 2945.71[,] the Sixth and Fourteenth Amendments to the U.S.
Constitution[,] and Article I, Section 10 of the Ohio Constitution.
“II. Defendant’s convictions for burglary, possession of drugs and
tampering with evidence were against the manifest weight of the evidence.”
{¶20} Hayes argues in his first assignment of error that the lower court should have
granted his motion to dismiss this case for failure to comply with his constitutional right
to a speedy trial because his trial did not take place within the statutory time period. The
record does not support his argument.
{¶21} Hayes was incarcerated on more than the charges in this case, therefore, the
pertinent portion of R.C. 2945.71 states:
(C) A person against whom a charge of felony is pending:
***
(2) Shall be brought to trial within two hundred seventy days after
his arrest.
{¶22} Because the two-hundred-seventy-day statutory period begins to run from the
date of arrest, Hayes’s time for trial commenced on September 25, 2010. However, the
time period specified in R.C. 2945.71 can be extended pursuant to R.C. 2945.72, which
provides in relevant part that “[t]he time within which an accused must be brought to trial,
* * * may be extended * * * by * * * [a]ny period of delay necessitated by reason of a * *
* motion, proceeding, or action made or instituted by the accused[.]”
{¶23} According to the docket of this case, Hayes’s trial counsel requested several
continuances for the purpose of obtaining discovery. Furthermore, defense counsel
conceded that Hayes’s trial commenced within the statutory time limits. Any doubt as to
the effectiveness of defense counsel’s waiver of speedy trial rights was settled by State v.
McBreen, 54 Ohio St.2d 315, 376 N.E.2d 593 (1978). The syllabus of McBreen states:
A defendant’s right to be brought to trial within the time limits
expressed in R.C. 2945.71 may be waived by his counsel for reasons of trial
preparation and the defendant is bound by the waiver even though the
waiver is executed without his consent.
{¶24} This court is cognizant that in State v. O’Brien, 34 Ohio St.3d 7, 516 N.E.2d
218 (1987), the Ohio Supreme Court noted that statutory and constitutional speedy trial
provisions are coextensive, but that the constitutional guarantees may be broader than
statutory provisions in some circumstances. Hence, a defendant’s Sixth Amendment
rights to a speedy trial can be violated even though the state has complied with the
statutory provisions implementing that right. Id.
{¶25} A balancing test for resolving speedy trial issues, therefore, is applied.
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Pursuant to this
test, four factors are considered, viz., the length of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant. Id. at 530. Applying
that balancing test to Hayes’s case, no violation of his constitutional right to a speedy trial
occurred.
{¶26} Although Hayes asserted his right to a speedy trial in his pro se motion, he
waived the right through his defense counsel on other occasions. State v. Clayton, 8th
Dist. No. 64036, 1994 WL 24287 (Jan. 27, 1994). Moreover, some of the delay can be
attributed to Hayes’s own failure to have appropriate clothing on the date of trial. The
record also does not reflect Hayes suffered any prejudice caused by the delay. State v.
Logan, 71 Ohio App.3d 292, 593 N.E.2d 395 (10th Dist. 1991).
{¶27} Based upon the foregoing analysis, Hayes’s first assignment of error is
overruled.
{¶28} In his second assignment of error, Hayes argues that the manifest weight of
the evidence does not support his convictions. He contends that the state’s case against
him was based mainly upon the testimony of unreliable witnesses, and their testimony
was not worthy of belief. This court disagrees.
{¶29} In determining whether a conviction is against the manifest weight of the
evidence, a reviewing court must examine the entire record, weigh the evidence presented
and all reasonable inferences therefrom, consider the credibility of witnesses, and
determine whether, in resolving conflicts in the evidence, the jury 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). A reviewing
court must, however, allow the jury appropriate discretion with respect to matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10
Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
{¶30} During the trial of this case, the jury heard testimony from several witnesses,
including Fluker, police officers, and forensic experts. The jury also heard testimony
from three of Hayes’s four codefendants and from Williams. Each of the witnesses had
his or her own reasons to testify.
{¶31} Nevertheless, the testimony was consistent as to all the essential facts
surrounding the incident, including Hayes’s participation in the apartment invasion and
his proximity to hidden marijuana. This court cannot find that the jury lost its way in
evaluating the evidence presented in this case. State v. Williams, 3d Dist. No. 9-07-61,
2008-Ohio-3887.
{¶32} Accordingly, Hayes’s second assignment of error also is overruled.
{¶33} Hayes’s convictions are affirmed.
It is ordered that appellee recover 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 to carry this judgment into execution. The defendant’s convictions 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.
___________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
State v. Hayes
Combined Opinion