State v. Crawford

[Cite as State v. Crawford, 2019-Ohio-2660.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-17-1297

Appellee Trial Court No. CR0201602264

v.

Marcus Crawford DECISION AND JUDGMENT

Appellant Decided: June 28, 2019

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

MAYLE, P.J.

{¶ 1} Following a jury trial, appellant, Marcus Crawford, appeals the August 4,

2017 judgment of the Lucas County Court of Common Pleas sentencing him to a

mandatory prison term of 10 years to life. For the following reasons, we affirm.
 I. Background and Facts

{¶ 2} On July 11, 2016, Crawford was indicted on one count of rape of a person

less than 13 years of age in violation of R.C. 2907.02(A)(1)(b),1 a first-degree felony.

Beginning on May 8, 2017, the trial court held a jury trial, at which the following facts

were adduced.

{¶ 3} On June 10, 2016, S.B., who was 11 years old, and some of her siblings

were visiting their mother’s house in Toledo. Their mother, stepfather, grandmother,

stepgrandfather, a man called “Slurp,” and Crawford were also at the house. S.B. said

that she knew Crawford before June 10 and thought he was “trustworthy” and “protective

of” her.

{¶ 4} Late that morning, S.B. walked to a nearby library branch by herself so that

she could use a computer. She originally told the police that she walked to the library

with three of her brothers, which she admitted on cross-examination was a lie that she

told so that she would not get in trouble. She said that she was not allowed to walk to the

library by herself and that her aunt (who was her legal guardian) would have been upset

with her if she had known. She also admitted that she “always lie[s]” to avoid getting in

trouble.

1
Effective March 22, 2019, Ohio’s criminal statutes were extensively amended by 2017
S.B. No. 201. None of the amendments are applicable to Crawford’s case, however, so
all of our citations to the Revised Code refer to the former versions of the statutes that are
applicable to Crawford’s crime.

2.
 {¶ 5} S.B.’s brother, D.M., testified that Crawford left the house after S.B.,

claiming that “he was going to work or something.” After leaving the house, Crawford

went to the library.

{¶ 6} S.B. said that Crawford came to the library while she was there and sat next

to her. She testified that Crawford “kept following” her around the library. The state

entered into evidence surveillance video from the library’s security system. The video

showed Crawford entering the library, walking past the computer where S.B. was sitting,

and going to another area of the library. Shortly after, he returned to the main area and

sat at a computer that was not near S.B., but immediately stood up and moved to the

computer next to hers. For approximately 30 minutes, Crawford and S.B. used the

adjacent computers, and the video appears to show them frequently speaking and looking

at each other’s screens. When Crawford stood to leave, S.B. also got up. Although S.B.

and Crawford left the library at the same time, she said that they “went our separate

ways.”

{¶ 7} While S.B. was walking, Crawford came up behind her, “snatched” and

choked her, and took her down an alley near the library to a garage filled with garbage.

In the garage, Crawford took off his jacket, laid it on the ground, and told S.B. to lie

down. When she refused, she said that “he holded [sic] my hands, and he just kept

squeezing my neck. And he was like, ‘You can die right now.’” S.B. said that Crawford

“tricked” her by asking her to get something and then pulling down and removing her

pants and underwear. He then “put his private part in my private part.” She clarified that

3.
Crawford stuck his “peanuts” into her vagina and said that it caused her to bleed and

“hurted [sic] real bad.” At some point during the rape, S.B. bit Crawford on his arm, but

Crawford did not stop. When Crawford finished, he asked S.B. “‘How do you feel to be

a woman now?’” He also threatened to kill S.B.’s family if she told any of them what

had happened.

{¶ 8} Following the rape, S.B. said that Crawford took her to the store and bought

her chips and candy. She then returned to her mother’s house, where she washed the

blood out of her underwear because it was “nasty” and she did not know what else to do.

She also reported the rape to her mother. She recalls telling her mother to “shut up

because I didn’t want Marcus to hear.” D.M. testified that he heard his stepgrandfather

yelling at Crawford who responded by saying “he didn’t do that * * *.” S.B.’s mother

called her aunt, who took S.B. to the hospital for a sexual assault examination.

{¶ 9} At the hospital, S.B. was examined by Amber Showman, a sexual assault

nurse examiner (“SANE”). Showman said that S.B. was laughing and smiling when

Showman introduced herself, but became tearful when describing the rape. During the

exam, S.B. had a “flat affect with an occasional smile * * *.” According to Showman’s

notes in S.B.’s medical records, S.B. identified Crawford as her assailant. S.B. reported

that she was leaving the library when Crawford came up behind her, choked her with his

arm, took her into a garage, and told her to take off her pants. She refused, so Crawford

choked her again. He then pulled down her pants, laid her down, pulled up her legs, and

“put his privates in” her. Afterward, Crawford told S.B. not to tell anyone or he would

4.
hurt her mom and family. S.B. said that she ran home and told her mother. Her aunt

came to her mother’s house and told S.B. that she was going to the hospital. S.B. told

Showman that she was scared.

{¶ 10} Showman’s physical examination of S.B. showed that S.B. did not have

any marks on her neck, which Showman said is typical. Although Showman did not see

any visible injuries in S.B.’s vaginal area, S.B. was extremely tender to touch and was

“almost crying in pain” because she was so sore, which prevented Showman from doing

a thorough examination for injuries. As part of the exam, Showman took swabs of S.B.’s

neck, vaginal area, and perianal area, and collected S.B.’s clothing, which she included in

the rape kit that was turned over to the police.

{¶ 11} On July 14, 2016, S.B. was examined by Dr. Randall Schlievert, who

testified as an expert in the treatment and diagnosis of sexual abuse. The examination

consisted of an interview by a social worker and a physical examination by Schlievert.

The version of events that S.B. gave during the interview was mostly consistent with the

version that she told the SANE and testified to at trial. Schlievert testified that he saw a

“hymenal transection” during the physical examination, which he claimed was only

possible if there had been “penetrating trauma.” Based on S.B.’s description of events

and the tear in her hymen, Schlievert concluded that S.B. had been sexually assaulted.

{¶ 12} Detective Rebecca Kincaid of the Toledo Police Department was the

detective assigned to investigate this case. As part of her investigation, Kincaid

5.
interviewed S.B., obtained the surveillance video from the library, interviewed Crawford,

and collected a DNA sample from Crawford.

{¶ 13} Kincaid came to the hospital while S.B. was being treated. When the

sexual assault examination was finished, Kincaid drove S.B. and her aunt to the library to

have S.B. show her the garage where the rape occurred. Kincaid also interviewed S.B.

Based on Kincaid’s testimony, the version of events that S.B. reported to Kincaid was

generally consistent with S.B.’s trial testimony, although Kincaid admitted on cross that

S.B. said Crawford brought chips and soda back to her mother’s house, not that Crawford

took her to the store after the rape.

{¶ 14} During the interview with Crawford (a portion of which was played for the

jury), Kincaid said that Crawford initially denied having sex with S.B., but changed his

story after Kincaid collected his DNA. In Crawford’s second version of events, he

admitted that he “fucked up,” but placed the blame for the incident on S.B. Crawford

claimed that S.B. followed him down the alley, “tried to come on to” him, and he “let her

a little bit.” He admitted that his penis had been in S.B.’s vagina, but said that “I didn’t

fuck [a] sixth grader.” Instead, he said that S.B. pulled down her pants and climbed on

top of him, and he let her “put it in and then [he] pulled it out.” He claimed, however,

that he did not “put it in her.”

{¶ 15} Kincaid sent Crawford’s DNA sample and S.B.’s rape kit to the Ohio

Bureau of Criminal Investigation (“BCI”) for testing. A forensic scientist with BCI

testified that she identified semen on the vaginal and perianal swabs from S.B.’s rape kit

6.
and that both samples tested presumptively positive for blood. Hallie Dreyer, a forensic

scientist in BCI’s DNA unit, analyzed the sample from the vaginal swab and compared

the results to the DNA sample obtained from Crawford. She found that the swab

contained a mixture of S.B.’s DNA and DNA that was consistent with Crawford’s DNA.

Dreyer estimated that the statistical likelihood of finding the DNA profile that she

identified from the vaginal sample (and that was consistent with Crawford’s DNA) in the

general population was one in 1 trillion unrelated individuals (i.e., rarer than the entire

population of the earth).

{¶ 16} On cross-examination, Dreyer admitted that she did not test the swab taken

from S.B.’s neck. Because it is not feasible for BCI to test every sample from every case,

Dreyer said, in rape cases, they start by testing samples that were collected internally or

from an orifice—“especially an internal orifice collection”—and that had a bodily fluid

identified on them. Because Dreyer found DNA in the vaginal sample, she did not test

the remaining samples in the rape kit.

{¶ 17} Based on this evidence, the jury found Crawford guilty.

{¶ 18} On August 1, 2017, the trial court sentenced Crawford to a mandatory

prison term of 10 years to life.

{¶ 19} Crawford now appeals, raising two assignments of error:

Assignment of Error One: The trial court violated appellant’s right

to a speedy trial under the Sixth Amendment to the U.S. Constitution and

Ohio Constitution, Article I, Section 10.

7.
 Assignment of Error Two: The verdict was against the manifest

weight of the evidence.

II. Law and Analysis

A. Crawford’s Speedy-Trial Rights were not Violated

{¶ 20} In his first assignment of error, Crawford contends that his constitutional

speedy-trial rights were violated. His arguments in support, however, focus on his

statutory right to a speedy trial. The state counters that Crawford waived this error by not

raising it in the trial court and, regardless, that he was brought to trial within the statutory

timeframe.

1. Statutory Speedy-Trial Right

{¶ 21} The right to a speedy trial is guaranteed by the Sixth and Fourteenth

Amendments to the U.S. Constitution and Article I, Section 10, of the Ohio Constitution.

State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). The Ohio legislature

adopted the provisions of R.C. 2945.71-.73 to implement these constitutional guarantees.

Id. Under the statutory scheme, the state is required to bring a defendant charged with a

felony to trial within 270 days after his arrest. R.C. 2945.71(C)(2). If the defendant

makes a prima facie showing that his speedy-trial time has elapsed, the burden shifts to

the state to demonstrate that the defendant was timely brought to trial. State v. Taylor,

6th Dist. Lucas No. L-98-1375, 2001 Ohio App. LEXIS 4503, 5-6 (Oct. 5, 2001). If the

state fails to do so, the trial court is required to dismiss the charges against the defendant.

R.C. 2945.73(B).

8.
 {¶ 22} Here, Crawford was arrested on July 21, 2016, and brought to trial on

May 8, 2017—which was 291 days after his arrest. As this was more than the 270-day

limit in R.C. 2945.71(C)(2), Crawford has made a prima facie showing that his speedy-

trial time elapsed before trial. Thus, the burden shifts to the state to show that Crawford

was timely brought to trial.

{¶ 23} The state argues that Crawford’s case was subject to numerous tolling

events that brought his trial date within the statutory limit. We agree.

a. Relevant Events

{¶ 24} The following events are relevant to our speedy-trial determination:

Date Event

July 21, 2016 Crawford was arrested.

July 27, 2016 Crawford filed his discovery demand.

August 16, 2016 Crawford appeared for a pretrial, and the trial court
rescheduled the matter for a pretrial on September 6,
2016, at Crawford’s request.

September 6, 2016 Crawford appeared for a pretrial, and the trial court
rescheduled the matter for a pretrial on September 20,
2016, at Crawford’s request.

September 8, 2016 The state filed its discovery response.

September 15, 2016 Crawford was indicted on an unrelated charge.

September 19, 2016 Crawford’s attorney filed a motion to withdraw.

9.
 September 20, 2016 Crawford appeared for a pretrial at which the trial court
granted counsel’s motion to withdraw. The trial court
appointed new counsel and rescheduled the matter for a
pretrial on October 4, 2016.

October 4, 2016 Crawford appeared for a pretrial, and the trial court
rescheduled the matter for a pretrial on November 1,
2016, at Crawford’s request.

November 1, 2016 Crawford appeared for a pretrial, and the trial court
rescheduled the matter for a pretrial on November 22,
2016, at Crawford’s request.

November 22, 2016 The trial court held a pretrial at which Crawford was
not present and rescheduled the matter for a pretrial on
November 29, 2016, at Crawford’s request.

November 29, 2016 Crawford appeared for a pretrial, and the trial court
rescheduled the matter for a pretrial on December 13,
2016, at Crawford’s request.

December 13, 2016 Crawford appeared for a pretrial, and the trial court
rescheduled the matter for a pretrial on December 20,
2016, at Crawford’s request.

December 20, 2016 Crawford appeared for a pretrial, and the trial court
rescheduled the matter for a pretrial on January 17,
2017, at Crawford’s request.

January 17, 2017 Crawford appeared for a pretrial. The trial court set a
jury trial for February 27, 2017.

January 20, 2017 Crawford filed a motion for relief from prejudicial
joinder.

January 30, 2017 The state filed a notice that it did not intend to join this
case and the case related to the September 15, 2016
indictment for trial.

February 17, 2017 The state filed a motion to continue the jury trial.

10.
 February 23, 2017 The trial court vacated the February 27 trial date and set
the matter for a pretrial on February 28, 2017.

February 28, 2017 Crawford appeared for a pretrial. The trial court and
counsel discussed the motion for relief from joinder,
but the court did not issue a ruling. The court granted
the state’s motion to continue and set a jury trial for
March 20, 2017.

March 14, 2017 Crawford appeared for a pretrial at which his attorney
made an oral motion to withdraw. The trial court held
the motion in abeyance and rescheduled the matter for a
pretrial on March 21, 2017, at Crawford’s request.

March 21, 2017 Crawford appeared for a pretrial at which the trial court
granted counsel’s motion to withdraw. The trial court
appointed new counsel, rescheduled the matter for a
pretrial on April 18, 2017, and set a jury trial for May 8,
2017.

April 18, 2017 Crawford appeared for a pretrial at which the May 8
trial date was confirmed.

May 8, 2017 Crawford’s jury trial began.

b. Applicable Law

{¶ 25} Under R.C. 2945.73(B), an accused is required to make a motion to dismiss

based on a speedy-trial violation “at or prior to the commencement of trial * * *.” If an

appellant fails to do so, we review the issue only for plain error. State v. Henry, 6th Dist.

Lucas No. L-11-1157, 2012-Ohio-5552, ¶ 35, citing State v. Conkright, 6th Dist. Lucas

No. L-06-1107, 2007-Ohio-5315, ¶ 20. Because Crawford did not file a motion in the

trial court, we review his speedy-trial claim for plain error. Plain error is an error that

affects an appellant’s substantial rights. Crim.R. 52(B). Plain error should be found

“only in exceptional circumstances and only to prevent a manifest miscarriage of justice.”

11.
State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 26} At its most basic, a speedy-trial calculation requires us to “‘simply count the

number of days passed, while determining to which party the time is chargeable, as

directed in R.C. 2945.71 and 2945.72.’” State v. Vrapi, 10th Dist. Franklin No. 11AP-700,

2012-Ohio-1018, ¶ 6, quoting In re F.S., 10th Dist. Franklin No. 11AP-244, 2011-Ohio-

6135, ¶ 7. When the defendant is held in custody in lieu of bail, each day he is held counts

as three days for speedy-trial purposes. R.C. 2945.71(E). However, the triple-count

provision of R.C. 2945.71(E) applies only when the defendant is “held in jail solely on the

pending charge.” State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283,

¶ 7.

{¶ 27} The reasons for charging days to the defendant (i.e., tolling speedy-trial

time) are outlined in R.C. 2945.72. The exceptions in the statute are the only reasons that

speedy-trial time can be extended. Id. (“The time within which an accused must be

brought to trial * * * may be extended only by the following * * *.”) (Emphasis added.)).

Any extension must be strictly construed against the state. City of Toledo v. Skarlov, 6th

Dist. Lucas Nos. L-15-1303 and L-15-1304, 2017-Ohio-137, ¶ 7.

12.
 {¶ 28} Here, several types of tolling events are relevant to our analysis.

{¶ 29} Under R.C. 2945.72(C), speedy-trial time is tolled during “[a]ny period of

delay necessitated by the accused’s lack of counsel,” as long as the delay is not due to the

trial court’s lack of diligence in appointing counsel. State v. Perkins, 2d Dist. Montgomery

No. 21515, 2007-Ohio-136, ¶ 9 (“Time spent without the benefit of counsel must be

tolled.”).

{¶ 30} Under R.C. 2945.72(E), when the defendant files a motion or demand for

discovery, time is tolled for a “reasonable time until the motion is responded to and ruled

upon.” Sanchez at ¶ 26; State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d

159, syllabus. We have previously recognized that a “reasonable time” for the state to

respond to a discovery demand is 30 days. State v. Bates, 6th Dist. Williams No.

WM-12-002, 2013-Ohio-1270, ¶ 21.

{¶ 31} When determining the “reasonable” tolling period incurred by a

defendant’s motion, a reviewing court must consider the particular circumstances of the

case, the complexity of the facts and difficulty of the legal issue involved, and the time

constraints on the trial court. State v. Arrizola, 79 Ohio App.3d 72, 76, 606 N.E.2d

1020 (3d Dist.1992) (Finding that a 228-day period between filing of motion to suppress

in an OVI case and trial court’s decision was unreasonable when “[n]othing appear[ed]

on the record which would justify this amount of time.”); see also, e.g., State v. Ford, 180

Ohio App.3d 636, 2009-Ohio-146, 906 N.E.2d 1155 (1st Dist.), paragraph two of the

syllabus (Finding that a five-month delay was unreasonable and that, “[a]lthough a

13.
defendant’s motion to sever charges tolls the speedy-trial time, the trial court cannot take

an unlimited amount of time to rule on the motion; after a reasonable amount of time has

passed, the defendant’s speedy-trial time begins to run again.”); State v. Garrett, 6th Dist.

Erie No. E-02-015, 2003-Ohio-5185, ¶ 21 (Finding that a six-week delay in ruling on

motion to sever was reasonable because the recently-appointed visiting judge needed

time to familiarize himself with the case, which involved several felonies, including

murder.).

{¶ 32} Under R.C. 2945.72(H), time is tolled during any continuance requested by

the defendant and any reasonable continuance required by the state or the court. In

addition to being “reasonable,” a continuance for the benefit of the state or the court must

also be “necessary.” State v. Willis, 6th Dist. Wood Nos. WD-15-006 and WD-15-007,

2016-Ohio-616, ¶ 17, citing State v. Saffell, 35 Ohio St.3d 90, 91, 518 N.E.2d 934 (1988).

Whether such a continuance is reasonable and necessary depends on the facts and

circumstances of the case. Saffell at 91. To support the reasonableness of and necessity

for a continuance granted other than upon the defendant’s motion, “a trial court must

journalize the continuance before the expiration of the time limit set forth in R.C.

2945.71 and must state the reason for the continuance.” State v. Stamps, 127 Ohio

App.3d 219, 224, 712 N.E.2d 762 (1st Dist.1998); State v. Hohenberger, 189 Ohio

App.3d 346, 2010-Ohio-4053, 938 N.E.2d 419, ¶ 47 (6th Dist.). 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 and necessary. State

14.
v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 62; Conkright, 6th

Dist. Lucas No. L-06-1107, 2007-Ohio-5315, at ¶ 29. Time is chargeable to the

defendant as long as the record affirmatively demonstrates the reasonableness of and the

necessity for the continuance. Myers at ¶ 62.

{¶ 33} We will now apply these general legal principles to Crawford’s case.

c. Speedy-Trial Calculation

{¶ 34} Crawford was arrested on July 21, 2016. Under the statutory scheme,

although speedy-trial time begins to run when an accused is arrested for the offense in

question, the actual day of the arrest does not count. R.C. 2945.71(C)(2); State v.

Phillips, 6th Dist. Wood Nos. WD-16-020, WD-16-028, and WD-16-029, 2017-Ohio-

9063, ¶ 12.

{¶ 35} Following his arrest, Crawford was held in jail in lieu of bail until his trial,

which entitled him to triple speedy-trial-time credit for each day he was held. R.C.

2945.71(E). According to a statement that the trial court made during the February 28,

2017 pretrial, however, Crawford was indicted on a separate, unrelated case on

September 15, 2016. Because the triple-count provision of R.C. 2945.71(E) applies only

when the defendant is “held in jail solely on the pending charge,” Sanchez, 110 Ohio

St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 7, we find that Crawford was entitled to

triple credit for his days in custody from July 22 to September 15, 2016, unless any

tolling events occurred during that time.

15.
 {¶ 36} We find that there were several overlapping tolling events in this case

attributed to Crawford’s conduct.

{¶ 37} First, Crawford filed a discovery demand on July 27, 2016. The state

responded to Crawford’s discovery demand on September 8, 2016—43 days later. This

was beyond the “reasonable” period of 30 days for the state to respond to a discovery

demand. Bates, 6th Dist. Williams No. WM-12-002, 2013-Ohio-1270, at ¶ 21. We

therefore find that Crawford’s discovery demand tolled speedy-trial time for 30 days,

until August 26, 2016.

{¶ 38} Second, between August 16, 2016, and January 17, 2017, Crawford

requested nine continuances and fired his attorney. Each of these events resulted in time

tolling. R.C. 2945.72(C) (speedy-trial time is tolled during “[a]ny period of delay

necessitated by the accused’s lack of counsel * * *,” as long as the delay is not due to the

trial court’s lack of diligence in appointing counsel); R.C. 2945.72(H) (speedy-trial time

is tolled during “[t]he period of any continuance granted on the accused’s own motion

* * *”).

{¶ 39} Third, on January 20, 2017, Crawford filed a motion for relief from

prejudicial joinder in anticipation that the state would attempt to try this case and the case

related to the September 2016 indictment together. On January 30, 2017, the state filed a

notice that it did not intend to join the cases. Although the parties and the trial court

discussed the motion at the pretrial on February 28, the court did not issue a ruling until

May 8, 2017, the day that Crawford’s trial began.

16.
 {¶ 40} Crawford’s motion tolled speedy-trial time for a “reasonable time” to allow

the trial court to rule. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at

¶ 26. Here, considering that the issues raised in Crawford’s motion were uncomplicated

and the state promptly informed the court that it was not going to try the cases together,

we see no reason to toll the full 108-day period from the time Crawford filed his motion

to the trial court’s ruling against Crawford. Instead, based on the circumstances of the

case, we find that 10 days―from January 20, 2017, when Crawford filed his motion, to

January 30, 2017, when the state filed notice that it would not try the cases together―was

a reasonable time for the court to resolve the motion, and speedy-trial time was tolled

during that period.

{¶ 41} Fourth, on March 14, 2017, Crawford requested a continuance and on

March 21, 2017, his second attorney withdrew, which resulted in time tolling until the

pretrial on April 18, 2017. R.C. 2945.72(C), (H).2

{¶ 42} No tolling events occurred from April 18 to May 8, 2016—the period

between the pretrial at which the trial date was confirmed and the beginning of the trial—

so these days are chargeable to the state.

2
In addition to these events, the state argues that a 14-day continuance, which was
granted at the prosecutor’s request, also tolled the speedy-trial clock. Whether this
continuance was “reasonable and necessary” is immaterial, however, because it would
not affect our conclusion that Crawford was brought to trial well within 270 days of his
arrest as required by R.C. 2945.71(C)(2).

17.
 {¶ 43} In sum, we calculate Crawford’s speedy-trial time as follows:

Dates Tolling event Days chargeable
to the state

July 21 to July 27, 2016 183

July 27 to August 26, 2016 A reasonable time for the state to Tolled
respond to Crawford’s discovery
demand

August 16 to January 17, 2017 Period during which Crawford Tolled
requested nine continuances and
fired his first attorney

January 17 to 20, 2017 3

January 20 to 30, 2017 A reasonable time for the trial court Tolled
to resolve Crawford’s motion for
relief from prejudicial joinder

January 30 to March 14, 2017 43

March 14 to April 18, 2017 Period during which Crawford Tolled
requested one continuance and fired
his second attorney

April 18 to May 8, 2017 20

Total days chargeable to the state 84

{¶ 44} Because the number of days chargeable to the state—84 days—is fewer

than the 270 days within which the state was required to bring Crawford to trial under

R.C. 2945.71(C)(2), we conclude that Crawford’s statutory speedy-trial right was not

violated. Accordingly, we find no plain error.

3
This number includes the triple credit Crawford is entitled to under R.C. 2945.71(E).

18.
 2. Constitutional Speedy-Trial Rights

{¶ 45} Although Crawford did not make any arguments related to the violation of

his constitutional speedy-trial rights, he assigned violation of his constitutional rights as

error. We find no error.

{¶ 46} To determine whether a defendant was deprived of these constitutional

rights, we must balance four factors: “(1) the length of the delay, (2) the reason for the

delay, (3) the defendant’s assertion of a speedy-trial right, and (4) the prejudice to the

defendant.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 88,

citing State v. Selvage, 80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997), and Barker v.

Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). But we must first

make a threshold determination that the delay in bringing the defendant to trial was

“presumptively prejudicial”; if it was not, we need not inquire into the other factors.

State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 23. The Supreme

Court of Ohio has recognized that a delay becomes presumptively prejudicial as it

approaches one year. Adams at ¶ 90, citing Doggett v. United States, 505 U.S. 647, 652,

112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1. Regardless, whether the length of a delay

is presumptively prejudicial is dependent upon the facts and circumstances of each case.

Hull at ¶ 23.

{¶ 47} Based on our review of the record, we cannot conclude that the 291-day

delay in this case was presumptively prejudicial—particularly because nearly one-half of

the delay was caused by Crawford requesting numerous continuances and needing new

19.
appointed counsel. Crawford does not present any arguments to the contrary. Thus, we

conclude that his constitutional rights were not violated and no plain error occurred.

{¶ 48} Crawford’s first assignment of error is not well-taken.

B. Crawford’s Conviction is not Against the Weight of the Evidence

{¶ 49} In his second assignment of error, Crawford argues that his conviction is

against the manifest weight of the evidence because of inconsistencies in S.B.’s

testimony and her admission that she “always lie[s]” to avoid getting in trouble. We

disagree.

{¶ 50} When we review a claim that a verdict is against the manifest weight of the

evidence, we weigh the evidence and all reasonable inferences, consider the credibility of

the witnesses, and determine whether the jury clearly lost its way in resolving evidentiary

conflicts so as to create 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). We do not view the evidence in a light most favorable to the

prosecution. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s

resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No.

L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 387. Reversal on manifest weight

grounds is reserved for “the exceptional case in which the evidence weighs heavily

against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

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 {¶ 51} Although we consider the credibility of witnesses under a manifest-weight

standard, we must, nonetheless, extend special deference to the jury’s credibility

determinations, given that it is the jury that has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.

{¶ 52} Crawford was convicted of rape of a person less than 13 years of age in

violation of R.C. 2907.02(A)(1)(b), which prohibits a defendant from engaging in sexual

conduct with another who is not the defendant’s spouse if the other person is less than 13

years old. “Sexual conduct” includes “vaginal intercourse between a male and female

* * *.” R.C. 2907.01(A). “Penetration, however slight, is sufficient to complete vaginal

* * * intercourse.” Id.

{¶ 53} After reviewing the evidence and the credibility of the witnesses and

weighing the conflicting testimony, we are not convinced that the evidence weighs

heavily against a conviction. We cannot say that the jury lost its way or created a

manifest miscarriage of justice (despite the inconsistencies in S.B.’s testimony) because

the pertinent portions of S.B.’s testimony—i.e., her descriptions of Crawford engaging in

vaginal intercourse with her—were supported by other evidence. Crucially, S.B. testified

that Crawford inserted his penis into her vagina, which was confirmed by (1) the

presence of DNA consistent with Crawford’s in S.B.’s vaginal area and (2) Crawford’s

admission to Kincaid that his penis was in S.B.’s vagina. The inconsistencies in S.B.’s

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testimony had no bearing on the objective DNA evidence and Crawford’s own words. In

other words, the state’s evidence clearly demonstrated that Crawford engaged in vaginal

intercourse with S.B.—who was 11 years old at the time—which is all that was required

for a conviction under R.C. 2907.02(A)(1)(b). This is true despite the inconsistencies in

S.B.’s testimony.

{¶ 54} Accordingly, we find that Crawford’s conviction is not against the manifest

weight of the evidence. His second assignment of error is not well-taken.

III. Conclusion

{¶ 55} Based on the foregoing, the August 4, 2017 judgment of the Lucas County

Court of Common Pleas is affirmed. Crawford is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE

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/.

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