[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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