State v. Baugh

[Cite as State v. Baugh, 2018-Ohio-857.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 2017AP030007
:
KENNETH J. BAUGH :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2016
CR 07 0183

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 7, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

MICHAEL J. ERNEST AARON KOVALCHIK
Tuscarawas Co. Prosecutor’s Office 116 Cleveland Ave. NW
125 E. High Ave. Canton, OH 44702
New Philadelphia, OH 44663
Tuscarawas Co., Case No. 2017AP030007 2

Delaney, P.J.

{¶1} Appellant Kenneth J. Baugh appeals from the February 24, 2017 judgment

entry of the Tuscarawas County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

Confrontation at Save-A-Lot

{¶2} This case arose on June 21, 2016, when appellant encountered Amy Baker

at a Save-A-Lot in Uhrichsville, Ohio. Appellant and Baker had been in a relationship but

Baker now had a new boyfriend, Axel Henry. Accounts differed about how these parties

ended up at Save-A-Lot, but sometime in the early evening of June 21, appellant, Baker,

and Henry confronted each other in the parking lot. Also present were Baker’s father and

uncle.

{¶3} Baker and Henry were seated in her father’s car and appellant walked up.

Henry got out and confronted appellant; an argument ensued. Baker also got out of the

car. At some point, appellant brandished a gun. Appellant and Baker argued, appellant

reportedly struck Baker at least once in the face, and Baker “defended herself.” Henry

later told police appellant pointed the gun at him and at Baker, and Henry believed the

gun to be a “.9 millimeter.”

{¶4} A Save-A-Lot employee was on a break outside the store when she

observed the fight. She saw two men arguing and a woman trying to break them up. The

employee recognized the woman as Amy Baker. One of the men struck Baker in the face

at least once, but the employee did not know his name at first; she recognized him as a

regular customer of the store. She saw the same man draw a gun and heard him threaten

to shoot Baker.
Tuscarawas Co., Case No. 2017AP030007 3

{¶5} The employee called 911 from a store telephone and reported a man pulled

a gun and took off running in the direction of a school. Witnesses in the background of

the call said the man’s first name was “Kenny” and the employee provided his physical

description.

Witnesses observe Appellant’s Flight

{¶6} A male witness who lived on Orchard Street was sitting on his front porch

just after 7:00 p.m. when he noticed a man walking south on Orchard on the opposite

side of the street. It was still daylight and the witness didn’t notice anything unusual about

the man. The witness then saw a Uhrichsville police car traveling south on Orchard,

slowly as though the officer was looking for someone. The police car suddenly sped up

and turned onto Franklin. A few moments later, the witness heard three distinct gunshots

and took cover behind his porch bannister.

{¶7} A female witness who lives on Herrick Street was outside on her front porch

that evening. She didn’t know appellant’s name but recognized him because he

frequently walked past her house on his way to Save-A-Lot. She knew appellant lived on

Bank Street. This evening, she heard “at least one” gunshot and observed appellant

running through bushes and between apartment buildings across the street from her

house. She wondered why appellant was running but several minutes later observed

police officers walking down the street with weapons drawn.

{¶8} A second male witness was living with his brother on Orchard Street on

June 21, 2016. That evening, the witness’s pickup truck was parked on the street in front

of the residence. The witness was moving lumber from the back of the pickup truck to

the rear yard of the house. On his first trip, he observed an older man in “raggedy clothes”
Tuscarawas Co., Case No. 2017AP030007 4

walking up the street. When he came back for a second load, he saw a police car drive

by with its lights on. The witness observed that “[his] neighbor’s bush started shaking”

and a man came out of the bush holding a gun.

{¶9} The witness’s eyes were fixed on the gun. He took off running toward his

truck to take cover. As he started running, a police officer came around the corner from

Franklin, on foot, and the witness heard gunshots. He dove down toward the front tire of

his truck. He didn’t recall how many shots were fired, but he heard “multiple” shots and

the noise of bullets striking objects. The witness kept his eyes on the police officer from

behind the truck. He couldn’t see the gunman. He stayed down behind the truck until

the officer told him it was safe to go into the house.

{¶10} Later that night, police were in the street collecting evidence and they

showed the witness a mark on the rim of his truck tire where it was struck by a bullet.

{¶11} The witness acknowledged he did not look closely at the gunman’s face

because his attention was locked on the gun, but the man who came out of the bushes

with the gun was dressed the same as the man who had walked down the street a few

minutes before.

{¶12} As of June 21, 2016, appellant was living in a house at 516 Bank Street with

several other people, including Bryan Balder and Elena Poorman. Poorman testified that

on June 21, 2016, appellant said he was going to meet Baker at Save-A-Lot and he was

upset when he left. Poorman saw appellant again about 20 minutes later, walking quickly

between apartment buildings, headed toward the woods. Very shortly after she saw

appellant, police were at the house looking for him.
Tuscarawas Co., Case No. 2017AP030007 5

Investigation and Shots Fired

{¶13} Ptl. William Ackerman and Ptl. Adam Gunnish are two City of Uhrichsville

police officers who responded to the call of a man with a gun at Save-A-Lot. Witnesses

told the officers appellant fled the scene; Gunnish took off in pursuit and Ackerman

remained behind to take statements.

{¶14} Gunnish was in a police car traveling southbound on Orchard when he saw

appellant, who matched the description given, walking quickly near the 300 block.

Gunnish accelerated and appellant turned and noticed him. Appellant took off running

and Gunnish lost sight of him on Franklin. He knew appellant was hiding in the bushes,

so he stopped the car and got out. Gunnish did not have his weapon drawn. He yelled,

“Police, you better get out here now” but appellant did not respond. Gunnish heard

movement in the bushes and appellant emerged, running at a slow sprint which enabled

Gunnish to close the distance between them quickly.

{¶15} In front of a house on Orchard Street, appellant turned and fully looked at

Gunnish. Prior to this moment, Gunnish had not seen a gun, but now appellant fired a

shot at him. Gunnish began “sidestepping” toward a house as appellant watched him

and tracked his movements with the gun. Appellant fired a second, deliberate shot at the

officer, then a third.

{¶16} As Gunnish drew his own weapon, he noticed the witness crouched behind

the tire of the pickup truck. He decided to take cover because bystanders were in the

area. He radioed “shots fired” as appellant continued to flee westward. Gunnish ran back

to his patrol car but was unable to retrieve a shotgun. He tracked appellant on foot and
Tuscarawas Co., Case No. 2017AP030007 6

made contact with the Herrick Street witness, who told him she saw a man running

between apartments toward the woods.

{¶17} At that point, Gunnish’s pursuit of the suspect ceased.

{¶18} In the meantime, Ptl. Ackerman had responded to the intersection of

Orchard and Franklin in response to Gunnish’s call of shots fired. Ackerman searched

for the suspect on foot but didn’t find him. Ackerman began to collect evidence after

Gunnish told him appellant shot at him three times. Ackerman and Gunnish located one

spent casing.

{¶19} The officers learned the suspect’s first name was “Kenny” and Gunnish

identified appellant from a B.M.V. photo. They went to appellant’s address on Bank Street

and made contact with Bryan Balder. Officers found a box of .40 caliber ammunition of

various makes in appellant’s bedroom drawer. Appellant was not present at the Bank

Street residence; nor was he found in a vacant house next door.

{¶20} A witness reported appellant was moving across a field toward railroad

tracks. Sgt. Brandon McCray and Ptl. Michael Hickman, a K-9 handler, arrived on the

scene and began tracking appellant. The K-9, Ricon, indicated strongly on a scent track

heading toward the railroad tracks. Hickman followed the track with Ricon leashed while

McCray provided cover. It was now dusk and the woods were dark. Hickman saw the

silhouette of an individual walking into the woods and ordered him to stop, but the person

didn’t comply.

{¶21} The officers dropped back and set up a perimeter around the area of the

woods where they knew appellant was concealed. Hickman decided to advance into the

woods with Ricon on a 30-foot leash. The dog entered a clearing ahead of the officer and
Tuscarawas Co., Case No. 2017AP030007 7

engaged something; Hickman turned on his flashlight and saw appellant sitting on the

ground in the middle of a briar patch. Ricon was biting appellant on the inside of his left

thigh.

{¶22} Appellant sat on his hands and refused to comply with orders to show them.

Hickman had his service weapon out and was assisted by McCray. Hickman testified

that appellant was strangely silent as he “took the bite” of the dog, saying nothing but

refusing to show his hands. Eventually appellant relented and showed his hands,

screaming “get the dog off.”

{¶23} No gun was found in appellant’s vicinity. A second K-9, Zane, trained in

detection of explosives, was brought in by Ptl. Chris Heslop of the Canton Police

Department. Zane located ammunition in the area where appellant had been found. Eight

live rounds were recovered. Police went into the woods the next day with a metal detector

but the gun was never found.

{¶24} Additional evidence was recovered from the scene of the three shots fired.

Gunnish and Ackerman had already located one spent shell casing, and Zane found the

two remaining spent casings nearby.

{¶25} Appellant was cuffed and brought out of the woods dirty and disheveled; he

required medical attention for the dog bite. As McCray walked him out of the woods, he

Mirandized appellant, who was asking questions about why he was under arrest.

Appellant said he went into the woods to sit and drink but officers testified there was no

evidence found to corroborate the statement. Officers asked where the gun was and

appellant said he wanted an attorney. Officers testified appellant therefore invoked his

right to remain silent and questioning ceased.
Tuscarawas Co., Case No. 2017AP030007 8

{¶26} Ackerman later encountered appellant at the Tuscarawas County Jail for

the purpose of obtaining a D.N.A. sample. Appellant told Ackerman he should “be the

next one to catch a bullet.” No D.N.A. profile was recovered from the rounds of

ammunition so no comparison was undertaken with appellant’s sample. A gunshot

residue test was also inconclusive.

Indictment, Trial, and Conviction

{¶27} Appellant was charged by indictment as follows: Count I, attempted

aggravated murder pursuant to R.C. 2923.02, R.C. 2903.01(E)(2), R.C. 2903.01(F), a

felony of the first degree;1 Count II, felonious assault pursuant to R.C. 2903.11(A)(2) and

R.C. 2903.11(D)(1)(a), a felony of the first degree; Count III, having weapons under

disability pursuant to R.C. 2923.13(A)(2) and R.C. 2923.13(B), a felony of the third

degree; County IV, assault pursuant to R.C. 2903.13(A) and R.C. 2903.13(C), a

misdemeanor of the first degree; and Count V, aggravated menacing pursuant to R.C.

2903.21(A) and R.. 2903.21(B), a misdemeanor of the first degree. Counts I, II, and III

are each accompanied two firearm specifications, the first pursuant to R.C. 2941.1412(A)

and the second pursuant to R.C. 2941.145(A).

{¶28} Appellant’s arrest date is June 21, 2016. Pursuant to an evidentiary hearing

held on July 25, 2016, appellant remained in jail and bail was denied.

{¶29} Appellant entered pleas of not guilty and a pretrial was scheduled for August

16, 2016.

1Count I was originally charged as a felony of unclassified degree but was amended with
approval of the trial court to a felony of the first degree.
Tuscarawas Co., Case No. 2017AP030007 9

{¶30} On August 11, 2016, appellant filed a demand for discovery and request for

a bill of particulars.

{¶31} In a memorandum of the pretrial on August 16, 2016, the trial court noted

defense counsel would be filing a limited time waiver as follows:

* * * *.

According to [the prosecutor’s] calculations, the last date for

trial of the Indictment is 9/19/2016. [Defense trial counsel]

communicated to [the prosecutor] and me that he will be filing, prior

to the close of business on Friday, 8/19/2016, a limited (ninety (90)

days) time waiver of [appellant’s] Statutory Speedy rights under

R.C. 2925.71(C)(2). Consequently, I am apprising the Court

Administrator’s Office, by that office receiving a photocopy of this

letter, that it is to schedule this Indictment for resolution as follows:

Pre-Trial Conference in approximately thirty (30) days on a

date and at a time when [defense trial counsel] and [the prosecutor]

are both available.

Status hearing and Jury Trial to be scheduled prior to

11/15/2016 upon dates [the prosecutor] and [defense trial counsel]

are available.

The scheduling of the Pre-trial Conference and Status

hearing and Jury Trial will be by Notice of Assignment, again, after

prior consultation with your respective offices by the Court

Administrator’s staff.
Tuscarawas Co., Case No. 2017AP030007 10

(Emphasis in original).

* * * *.

{¶32} A Notice of Assignment filed August 18, 2016 states a pretrial conference

was scheduled for September 21, 2016; a status conference for October 26, 2016; and

jury trial for October 27, 2016.

{¶33} Also filed on August 18, 2016, by appellant, was a “limited time waiver,”

consenting to an additional waiver of time for trial “by an additional 90 days the same

resulting with the date for commencement of Trial being on or before December 19, 2016.”

{¶34} A pretrial conference occurred on September 21, 2016 and was

memorialized, noting a status conference date of October 26, 2016 and jury trial date of

October 27, 2016.

{¶35} On October 26, 2016, the day before the scheduled trial, the trial court

entered a judgment entry noting that the previous day defense trial counsel faxed a motion

to continue the status conference and jury trial. The entry further noted the motion to

continue was granted and “constitute[d] an enlargement of time for trial pursuant to R.C.

2945.71(C)(2) under the authority of R.C. 2945.72(E) and (H).” Further, the trial court

found the court administrator should reschedule the status conference and jury trial “on

the next available dates” based upon the calendars of the trial court, prosecutor, and

defense trial counsel. The entry further ordered that the time limits were extended, if

necessary, beyond December 19, 2016 (the date certain of appellant’s time waiver).

{¶36} The record does not contain a faxed motion to continue as described above,

but does contain a motion to continue filed by defense trial counsel on October 31, 2016,

noting defense trial counsel needed additional time to review discovery, appellee had no
Tuscarawas Co., Case No. 2017AP030007 11

objection to the continuance, and a limited time waiver had been filed until December 19,

2016.

{¶37} On November 8, 2016, a Notice of Assignment was filed noting a status

conference to be held on January 23, 2017 and a jury trial to begin on January 24, 2017.

{¶38} On December 9, 2016, appellant filed a request for status conference “at

the earliest time convenient to the Court.” Accordingly, on December 13, 2016, the trial

court scheduled a status conference for December 20, 2016 via judgment entry. The

record is silent as to the discussion at the pretrial other than a memorandum dated

December 20 stating in pertinent part “jury trial to remain.”

{¶39} On January 9, 2017, appellant filed a pro se letter with the trial court asking

why the trial was set beyond the “date of [his] extension.” The trial court responded to

appellant with a copy of the judgment entry of October 26, 2017, to which appellant replied

on January 13, 2017 with another pro se letter stating he did not consent to the motion to

continue.

{¶40} On January 24, 2017, appellant filed a motion to dismiss for failure to

comply with speedy trial time limits. Immediately prior to trial, a hearing was held and the

“court scheduler” testified that pursuant to the scheduling order of the trial court, she

contacted both counsel and several dates were rejected before January 24 was mutually

selected. She was aware of the limited time waiver, but the trial court’s calendar could

not accommodate a jury trial prior to December 19, and defense trial counsel did not

object to selection of the date of January 24. At the conclusion of the evidentiary hearing,

the trial court overruled the motion to dismiss.
Tuscarawas Co., Case No. 2017AP030007 12

{¶41} The matter proceeded to trial by jury on January 24, 2017, and appellant

was found guilty of Counts I, II, III, and V with the accompanying firearm specifications.

Appellant was found not guilty upon Count IV, assault.

{¶42} On February 24, 2017, appellant appeared before the trial court for

sentencing and the trial court imposed an aggregate prison term of 16 years.

{¶43} Appellant now appeals from the trial court’s judgment entry of conviction

and sentence dated February 24, 2017.

{¶44} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶45} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

{¶46} “II. APPELLANT’S CONSTITUTIONAL RIGHT AGAINST SELF-

INCRIMINATION WAS VIOLATED WHEN TESTIMONY WAS GIVEN CONCERNING

HIS REQUEST FOR AN ATTORNEY.”

{¶47} “III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION TO DISMISS THE INDICTMENT WHEN APPELLANT’S RIGHT TO A SPEEDY

TRIAL WAS VIOLATED.”

{¶48} “IV. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND

OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.”
Tuscarawas Co., Case No. 2017AP030007 13

ANALYSIS

I.

{¶49} In his first assignment of error, appellant argues his convictions are against

the sufficiency and manifest weight of the evidence. We disagree.

{¶50} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An 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.”

{¶51} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering
Tuscarawas Co., Case No. 2017AP030007 14

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶52} Appellant was found guilty of one count of attempted aggravated murder2

with two firearm specifications;3 one count of felonious assault4 with firearm

specifications;5 one count of having weapons under disability6 with firearm specifications;7

and one count of aggravated menacing.8

2 R.C. 2903.01(E)(2), aggravated murder, states: “No person shall purposely
cause the death of a law enforcement officer whom the offender knows or has
reasonable cause to know is a law enforcement officer when * * * [i]t is the offender's
specific purpose to kill a law enforcement officer.”
R.C. 2923.02(A), attempt, states: “No person, purposely or knowingly, and when
purpose or knowledge is sufficient culpability for the commission of an offense, shall
engage in conduct that, if successful, would constitute or result in the offense.”
3 The first firearm specification pursuant to R.C. 2941.1412(A) states: Imposition of
a seven-year mandatory prison term upon an offender under division (B)(1)(f)(i) of
section 2929.14 of the Revised Code is precluded unless the indictment, count in the
indictment, or information charging the offense specifies that the offender discharged a
firearm at a peace officer or a corrections officer while committing the offense. * * * *.
(Emphasis added).
The second firearm specification pursuant to R.C. 2941.145(A) states: (A)
Imposition of a three-year mandatory prison term upon an offender under division
(B)(1)(a)(ii) of section 2929.14 of the Revised Code is precluded unless the indictment,
count in the indictment, or information charging the offense specifies that the offender
had a firearm on or about the offender's person or under the offender's control while
committing the offense and displayed the firearm, brandished the firearm, indicated that
the offender possessed the firearm, or used it to facilitate the offense. * * * *. (Emphasis
added).
4 R.C. 2903.11(A)(2), felonious assault, states: “No person shall knowingly * * *
[c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon
or dangerous ordnance.”
5 See footnote 3, supra.
6 R.C. 2923.13(A)(2), having weapons under disability, states: “Unless relieved
from disability under operation of law or legal process, no person shall knowingly
acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is
under indictment for or has been convicted of any felony offense of violence * * *.”
7 See footnote 3, supra.
8 R.C. 2903.21(A), aggravated menacing, states: “No person shall knowingly
cause another to believe that the offender will cause serious physical harm to the
Tuscarawas Co., Case No. 2017AP030007 15

{¶53} Appellant first argues his conviction for aggravated menacing is against the

sufficiency and manifest weight of the evidence because Amy Baker, the purported victim,

was the aggressor in the confrontation and appellee did not prove beyond a reasonable

doubt that Baker believed appellant would harm her. Upon our review of the record,

Baker testified appellant pulled a gun and “exchanged words” with her, then punched her

in the face. The Save-A-Lot employee saw appellant with the gun and heard him threaten

to shoot Baker. The determination as to whether statements are threats of serious

physical harm is to be made by the trier of fact, in this case, the jurors. State v. Davis,

5th Dist. Stark No. 2001CA00186, unreported, 2002 WL 221069, *2 (Feb. 11, 2002). It

was within the jury's province to determine if appellant's statements were meant to convey

a threat of serious physical harm. Id., citing State v. Jamison, 49 Ohio St.3d 182, 552

N.E.2d 180 (1990), cert. denied, 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183 (1990).

{¶54} As to Baker’s belief that appellant would cause her serious physical harm,

the credibility of the trial witnesses was a matter for the jury to determine. State v.

Yarbrough, 95 Ohio St.3d 227, 231, 2002–Ohio–2126, 767 N.E.2d 216. We find the jury

could reasonably have found all of the elements of aggravated menacing established

beyond a reasonable doubt. In light of the uncontroverted evidence, we cannot find the

jury lost its way in finding appellant guilty of aggravated menacing. State v. Ford, 5th

Dist. Stark No. 2014CA00145, 2015-Ohio-4093, ¶ 26.

{¶55} Appellant next argues his conviction of having weapons under disability is

against the sufficiency and manifest weight of the evidence because no evidence at trial

person or property of the other person, the other person's unborn, or a member of the
other person's immediate family. * * * *.”
Tuscarawas Co., Case No. 2017AP030007 16

connected him to any firearm. To the contrary, several of appellee’s eyewitnesses

testified appellant possessed and brandished a gun, from the confrontation at Save-A-

Lot to firing on the police officer. Additionally, Gunnish identified appellant as the man

who fired on him three times.

{¶56} Appellant further argues his felonious assault conviction is against the

sufficiency and manifest weight of the evidence because there is no evidence linking him

to a firearm, but alternatively if he did fire shots at Gunnish, he wasn’t trying to harm the

officer but to avoid apprehension. A person acts “knowingly” when, “regardless of his

purpose, * * * he is aware that his conduct will probably cause a certain result or will

probably be of a certain nature.” R.C. 2901.22(B); State v. Thomas, 5th Dist. Stark No.

2010CA336, 2011-Ohio-4441, ¶ 18. Gunnish testified that appellant turned to him and

faced him fully, shot at him once, “tracked” him as he ran, and shot twice more. Appellant

has presented no authority suggesting shooting at a police officer three times is not a

knowing attempt to cause serious physical harm. See, State v. Smalls, 5th Dist. Stark

No. 2000CA00133, 2001 WL 520977, *3 (May 7, 2001) [testimony established appellant

fired three rounds directly at police officers sufficient to prove felonious assault and not

against manifest weight of evidence].

{¶57} Finally, appellant contends his conviction for attempted aggravated murder

is against the sufficiency and manifest weight of the evidence because he was not

definitively linked to any firearm at trial and appellee did not prove he acted with the

specific purpose to kill Gunnish. As we noted above, Baker, Henry, the Save-A-Lot

employee, and Gunnish testified appellant had a gun. The neighborhood witnesses saw

appellant fleeing the scene shortly after the gunshots. Gunnish testified that appellant
Tuscarawas Co., Case No. 2017AP030007 17

could have “dumped the bullets” but instead appellant fired directly at him, not once but

three times. He tracked Gunnish’s movements as he fired.

{¶58} Appellant’s convictions are supported by sufficient evidence and are not

against the manifest weight of the evidence. His first assignment of error is overruled.

II.

{¶59} In his second assignment of error, appellant argues his constitutional right

against self-incrimination was violated at trial. We disagree.

{¶60} During the direct examination of Sgt. Brandon McCray by appellee, McCray

described finding appellant in the woods with the assistance of Sgt. Hickman and K-9

Ricon. The K-9 bit appellant during the apprehension and McCray called an ambulance.

As McCray and Hickman led appellant out of the woods, McCray Mirandized appellant

because appellant asked why he was being arrested and they discussed the shooting,

which appellant said he knew nothing about. McCray asked appellant where the gun was

and appellant replied he didn’t know what McCray was talking about. When McCray

asked again, appellant requested counsel and questioning ceased.

{¶61} At trial, after McCray described this interaction, the prosecutor asked

McCray if he asked appellant where the gun was. Appellant objected to the question

because he was in custody and invoked his right to remain silent. (T. III, 343). The trial

court questioned McCray about the sequence of events and McCray stated that he had

asked appellant several times where the gun was in case it remained in the woods.

Appellant did not answer and said he wanted an attorney so questioning ceased. (T. III,

344-345). The trial court asked defense counsel if this satisfied his objection and defense
Tuscarawas Co., Case No. 2017AP030007 18

trial counsel replied, “Not entirely.” The trial court noted counsel could cross-examine

McCray. (T. III, 345).

{¶62} The prosecutor then asked McCray again whether appellant revealed the

location of the gun. McCray clarified that questioning about the gun occurred after

appellant was Mirandized but before he invoked his right to remain silent. Appellant’s

only response to questions about a gun were that he “didn’t know what [the officers] were

talking about,” and he had gone into the woods to sit and drink. After appellant requested

an attorney, all questioning stopped. (T. III, 346).

{¶63} Appellant summarily argues that his right against self-incrimination was

violated because the jury was permitted to use his silence against him. In Doyle v. Ohio,

the United States Supreme Court stated, “* * * [I]t would be fundamentally unfair and a

deprivation of due process to allow the arrested person's silence to be used to impeach

an explanation subsequently offered at trial.” 426 U.S. 610, 618, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976). The Court reaffirmed its holding in Doyle in Wainwright v. Greenfield,

474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), noting “[i]n Doyle, we held that

Miranda warnings contain an implied promise, rooted in the Constitution, that ‘silence will

carry no penalty.’” Wainwright at 295, quoting Doyle at 618. The Wainwright court further

stated at 295, “[w]hat is impermissible is the evidentiary use of an individual's exercise of

his constitutional rights after the State's assurance that the invocation of those rights will

not be penalized.” (Emphasis added). In the instant case, appellant’s silence on the

matter of the gun arose during direct examination of the lead investigator about steps

taken during appellant’s apprehension and the investigation. The silence itself was not

used as evidence of appellant’s guilt.
Tuscarawas Co., Case No. 2017AP030007 19

{¶64} Upon our review of the record, we find that the trial court did not abuse its

discretion in overruling appellant's objections. Appellee did not use appellant's post-arrest

silence for impeachment purposes in cross-examination or in closing argument. State v.

Mosley, 5th Dist. Stark No. 2001CA00142, 2002 WL 358651, *5 (March 4, 2002), citing

Doyle, supra. Nor did the prosecution ever attempt to make evidentiary use of appellant's

silence and/or request for counsel as evidence of appellant's guilt. Id., citing Wainwright,

supra; see also State v. Schirtzinger, 5th Dist. Licking No. 3348, 1988 WL 83507 (Aug. 3,

1988).

{¶65} The record in this matter “discloses no intentional, concerted effort on the

part of the prosecution to employ the post-arrest comment in any prejudicial manner.”

See Schirtzinger, supra.

{¶66} The exchange between the prosecutor and McCray was not for

impeachment purposes, therefore we do not find a clear and unambiguous violation of

Doyle. State v. Riggenbach, 5th Dist. Richland No. 05CA81, 2006-Ohio-2725, ¶ 58, citing

State v. Leach, 102 Ohio St.3d 145, 2004–Ohio–2147, 807 N.E.2d 335. “The gravamen

of this due-process issue is whether the post-arrest, post-Miranda silence was used by

the state as substantive evidence of guilt.” Id. We find that it was not. The context of the

questioning explained steps taken in the police investigation: appellant had purportedly

brandished a gun and shot at an officer, and after his apprehension police continued to

search for the gun with a K-9 and a metal detector. Whether appellant was asked about

the location of the gun is an obligatory explanation of a step in the investigation, not

substantive evidence of appellant’s guilt. See, State v. Gooden, 8th Dist. Cuyahoga No.

82621, 2004-Ohio-2699.
Tuscarawas Co., Case No. 2017AP030007 20

{¶67} We find the evidence in the form of McCray’s testimony was not offered as

substantive evidence of guilt and did not violate Doyle and its progeny. Riggenbach,

supra, 2006-Ohio-2725 at ¶ 60.

{¶68} Appellant’s second assignment of error is overruled.

III.

{¶69} In his third assignment of error, appellant argues the trial court violated his

right to a speedy trial. We disagree.

{¶70} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a

person accused of a crime is a fundamental right made obligatory on the states through

the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579

(1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational

effort to enforce the constitutional right to a public speedy trial of an accused charged with

the commission of a felony or a misdemeanor and shall be strictly enforced by the courts

of this state.” State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589, syllabus (1980).

{¶71} Our review of a trial court's decision regarding a motion to dismiss based

upon a violation of the speedy-trial provisions involves a mixed question of law and fact.

State v. Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122, ¶ 11. As an

appellate court, we must accept as true any facts found by the trial court and supported

by competent, credible evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 17, 2016-

Ohio-5912, ¶ 43, citing Larkin, supra. With regard to the legal issues, however, we apply

a de novo standard of review and thus freely review the trial court's application of the law

to the facts. Id. When reviewing the legal issues presented in a speedy-trial claim, we
Tuscarawas Co., Case No. 2017AP030007 21

must strictly construe the relevant statutes against appellee. Brecksville v. Cook, 75 Ohio

St.3d 53, 57, 661 N.E.2d 706 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-

Ohio-2326, ¶ 12.

{¶72} Appellant was arrested on June 22, 2016. The day of arrest is not counted

when computing the time within which a defendant must be brought to trial. State v.

Lautenslager, 112 Ohio App.3d 108, 110, 677 N.E.2d 1263 (3rd Dist.1996); R.C. 2945.71;

Crim.R. 45(A). His jury trial commenced on January 24, 2017, or 215 days later. We

find, however, that the speedy-trial clock was effectively tolled for several reasons.

{¶73} The most serious offense appellant was charged with was a felony of the

first degree. A person charged with a felony must be brought to trial within 270 days

unless the right to a speedy trial is waived. R.C. 2945.71(D)(2). If a person is held in jail

in lieu of bond, then each day that the suspect is in custody counts as 3 days. R.C.

2945.71(E). Appellant remained incarcerated throughout the proceedings, therefore the

state had 90 days to try him, subject to any tolling events. Pursuant to R.C. 2945.73, a

person who is not brought to trial within the proscribed time periods found in R.C. 2945.71

and R.C. 2945.72 “shall be discharged” and further criminal proceedings based on the

same conduct are barred.

{¶74} The issue posed by appellant’s argument is, what is the effect of his motion

to continue which was transmitted to the court on October 25, 2016 and granted by

judgment entry on October 26, 2016? We note appellant’s argument on appeal omits
Tuscarawas Co., Case No. 2017AP030007 22

mention of his own motion to continue and relies solely upon his limited time waiver of

August 18, 2016.9

{¶75} The resulting entry of the trial court, filed October 26, noted the motion to

continue was granted and “constitute[d] an enlargement of time for trial pursuant to R.C.

2945.71(C)(2) under the authority of R.C. 2945.72(E) and (H).” Further, the trial court

found the court administrator should reschedule the status conference and jury trial “on

the next available dates” based upon the calendars of the trial court, prosecutor, and

defense trial counsel. The entry further orders that the time limits are extended, if

necessary, beyond the date of December 19, 2016 stated in the limited time waiver.

Appellant did not object to the trial court’s judgment entry.

{¶76} Five days later, on October 31, 2016, appellant filed the motion to continue,

which states defense trial counsel needed additional time to review discovery and

appellee had no objection to the continuance. The motion further states, “There is a

limited time waiver in this matter currently extending the time for commencement of Trial

through December 19, 2016.” The motion does not refer to the trial court’s judgment entry

of October 26. Appellant’s position now is that he only waived time until December 19,

but a review of the record indicates the trial court’s resulting judgment entry, and

9 Appellant also cites the two pro se letters to the trial court asking about the trial date,
which we do not count as tolling events. See, State v. Morgan, 5th Dist. Ashland No. 17-
COA-008, 2017-Ohio-9142, --N.E.3d--, ¶ 51. A criminal defendant has the right to
representation by counsel or to proceed pro se with the assistance of standby counsel,
but those two rights are independent of each other and may not be asserted
simultaneously. Id., citing State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816
N.E.2d 227, ¶ 32, citing Parren v. State, 309 Md. 260, 269, 523 A.2d 597 (1987). We
therefore find the letters to be inconsequential to the speedy-trial analysis.
Tuscarawas Co., Case No. 2017AP030007 23

appellant’s failure to object thereto, effectively tolled time until the date selected at the

mutual convenience of appellant and appellee.

{¶77} Speedy-trial time requirements may be tolled by certain events listed in R.C.

2945.72, including “[a]ny period of delay necessitated by reason of a plea in bar or

abatement, motion, proceeding, or action made or instituted by the accused[.]” R.C.

2945.72(E). R.C. 2945.72(H) provides the time within which an accused must be brought

to trial may be extended by the period of any continuance granted on the accused's own

motion, and the period of any reasonable continuance granted other than upon the

accused's own motion. Two such tolling events were cited by the trial court in the instant

case in the meticulous notes and entries documenting the pretrials and granting the

motion to continue. The trial court noted in the October 26 entry, which continued the trial

upon appellant’s October 25 motion, that it “constitute[d] an enlargement of time for trial

pursuant to R.C. 2945.71(C)(2) under the authority of R.C. 2945.72(E) and (H).” No

objection was raised.

{¶78} Moreover, R.C. 2945.02 permits the trial court to extend speedy trial time

as long as the length of time is reasonable and the reason for the continuance is indicated

in the judgment entry. “[W]here the trial record affirmatively demonstrates the necessity

for a continuance and the reasonableness thereof, such a continuance will be upheld.”

State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, ¶ 62. In the instant case, the

testimony of the “court scheduler” established that upon appellant’s motion to continue,

the trial court’s calendar could not accommodate jury trial by December 19; she worked

with both counsel to find the next available date; and defense trial counsel acquiesced in

the selection of January 24.
Tuscarawas Co., Case No. 2017AP030007 24

{¶79} To determine whether a delay is so excessive as to offend the federal

constitutional right to a speedy trial, courts balance the following factors: (1) the length of

the delay, (2) the reason for the delay, (3) whether and how the defendant asserted the

right, and (4) whether prejudice to the defendant resulted. Barker v. Wingo, 407 U.S. 514,

530-533, 92 S.Ct.2182, 33L.Ed.2d 101 (1972); State v. Taylor, 98 Ohio St.3d 27, 2002-

Ohio-7017, ¶ 38. Extending the trial to January 24, upon appellant’s motion to continue,

is not excessive; the matter was continued for 36 days beyond December 19, upon

appellant’s motion, without objection, and without prejudice to appellant.

{¶80} Appellant’s argument regarding the speedy trial issue is summary and

asserts only that appellant should have been tried by December 19. Based upon our

review of the record, we find the trial court more than adequately established a reasonable

basis for continuing the trial beyond December 19 pursuant to R.C. 2945.72(E) and (H).

Appellant’s third assignment of error is therefore overruled.

IV.

{¶81} In his fourth assignment of error, appellant argues he received ineffective

assistance of defense trial counsel. We disagree.

{¶82} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In

assessing such claims, “a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action
Tuscarawas Co., Case No. 2017AP030007 25

‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S.

91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

{¶83} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

{¶84} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

{¶85} Appellant cites trial counsel’s failure to object to the continuance past

December 19. We note this court must accord deference to defense counsel's strategic

choices made during trial and “requires us to eliminate the distorting effect of hindsight.”

State v. Post, 32 Ohio St.3d 380, 388, 513 N.E.2d 754 (1987). The basis for the motion

to continue was to allow sufficient time for defense counsel’s trial preparation. In light of

our discussion of appellant’s third assignment of error, it is evident that even if defense

trial counsel had objected to the extension beyond December 19, the objection would

have been overruled because of the trial court’s schedule.

{¶86} Additionally, despite appellant’s inquiries about why the trial date was

extended beyond December 19, the January 24 date was arrived at with consent of

counsel. Appellant is bound by his counsel's waiver of speedy trial rights, even though

the waiver might have been executed without his consent. State v. Taylor, 98 Ohio St.3d
Tuscarawas Co., Case No. 2017AP030007 26

27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 33, citing State v. McBreen, 54 Ohio St.2d 315,

376 N.E.2d 593, syllabus (1978).

{¶87} Appellant next argues defense trial counsel should have moved for a

mistrial or requested a curative jury instruction following McCray’s testimony about

appellant’s silence in response to questions about the gun, as discussed in the second

assignment of error. Again, we note counsel may have made a deliberate strategic

decision in not requesting a jury instruction. Tactical or strategic trial decisions, even if

ultimately unsuccessful, do not generally constitute ineffective assistance. State v. Carter,

72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Further, even if counsel arguably erred

in not requesting a mistrial, appellant was not prejudiced thereby because we have

already found no prejudice resulted to appellant from the challenged testimony. See,

State v. Ross, 5th Dist. Stark No. 2004CA00233, 2005-Ohio-1435.

{¶88} Finally, appellant argues defense trial counsel was insufficiently prepared

for trial because he commented in reference to the video exhibit that it “went on for a

while” and he “didn’t really sit and listen.” Appellant did not provide a citation to the record

for this comment per App.R. 16(A)(7) but upon our review we find the statement to have

been taken out of context (T. IV, 414). During cross-examination of McCray, a question

arose as to whether dashcam video existed of any of the activity at Save-A-Lot. During

a conversation outside the hearing of the jury, the prosecutor stated one dashcam video

existed and it had been provided in discovery. Defense trial counsel made the cited

statement during a general discussion about the parties’ agreement that the video was

not helpful because the camera was running after the incident occurred and contained
Tuscarawas Co., Case No. 2017AP030007 27

long periods of inactivity. The statement does not establish an error by defense trial

counsel, much less prejudice to appellant.

{¶89} Appellant’s fourth assignment of error is overruled.

CONCLUSION

{¶90} Appellant’s four assignments of error are overruled and the judgment of the

Tuscarawas County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Baldwin, J. and

Wise, Earle, J., concur.