State v. Parker

[Cite as State v. Parker, 2020-Ohio-4607.]

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

State of Ohio Court of Appeals No. L-18-1238

Appellee Trial Court No. CR0201802263

v.

Christopher R. Parker DECISION AND JUDGMENT

Appellant Decided: September 25, 2020

*****

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

Eric Allen Marks, for appellant.

*****

MAYLE, J.

{¶ 1} Appellant, Christopher Parker, appeals the October 31, 2018 judgment of the

Lucas County Court of Common Pleas sentencing him to an aggregate prison term of 16

years. For the following reasons, we affirm.
 I. Background and Facts

{¶ 2} This case arose from two separate assaults that Parker committed against the

victim, J.P., which generated five separate court cases.

A. Municipal court case No. CRA-17-12437

{¶ 3} The first assault occurred on October 7, 2017.1 According to the complaint

filed in Toledo Municipal Court case No. CRA-17-12437 (“case 1”) by Toledo Police

Department (“TPD”) Detective Alexander Schaller, J.P. said that Parker, her live-in

boyfriend, “assaulted her by punching her at least three times in the face with a closed

fist.” The complaint also said that J.P. was admitted to the hospital “due to bleeding on

her brain and swelling.” The complaint charged Parker with felonious assault in violation

of R.C. 2903.11(A)(1), a second-degree felony.

{¶ 4} Parker was arrested on October 11, 2017, and held in jail until case 1 was

dismissed on October 23, 2017.

{¶ 5} The case was scheduled for a preliminary hearing on October 19, 2017. J.P.

failed to appear, so the municipal court continued the hearing, at the state’s request, until

October 23, 2017.

1
The complaint lists the date of the assault as “on or about October 06, 2017.” For
clarity and continuity, we will refer to the date of the first assault as October 7, which is
the date used in the indictments in the common pleas court cases.

2.
 {¶ 6} On October 23, J.P. again failed to appear for the preliminary hearing, so the

state requested that the municipal court dismiss the case. The court granted the state’s

request.

B. Municipal court case No. CRA-18-03557

{¶ 7} The second assault occurred on March 25, 2018. According to the

complaint that Schaller filed in Toledo Municipal Court case No. CRA-18-03557 (“case

2”), J.P. said that Parker “assaulted her by grabbing her around the neck with his hands

and strangled her” and “stated, ‘you’re going to die bitch” [sic] as he was strangling her.”

The complaint charged Parker with domestic violence in violation of R.C. 2919.15(A), a

fourth-degree felony.

{¶ 8} On April 16, 2018, Parker was arrested and held in jail in lieu of bail—

where he remained until his trial in the underlying case (i.e., “case 5”) on October 9,

2018.

{¶ 9} Case 2 was scheduled for a preliminary hearing on April 24, 2018. J.P.

failed to appear for the preliminary hearing, so the municipal court continued the hearing,

at the state’s request, until April 25, 2018.

{¶ 10} On April 25, the state requested that the municipal court dismiss the case

because the grand jury had indicted Parker. The court granted the state’s request.

3.
 C. Common pleas court case No. CR0201801734

{¶ 11} On April 24, 2018, Parker was indicted in common pleas court case No.

CR0201801734 (“case 3”) on one count of domestic violence in violation of R.C.

2919.25(A), a fourth-degree felony, related to the March 25, 2018 assault on J.P.

{¶ 12} Following Parker’s April 30, 2018 arraignment, the parties engaged in

discovery and attended two pretrials. The trial court initially set a jury trial for June 12,

2018, but continued the trial to July 17, 2018, at the state’s request. On July 17, prior to

the start of the trial, the state requested that the court dismiss case 3. The court granted

the state’s request.

{¶ 13} Parker continued to be held in jail in lieu of bail while case 3 was pending.

D. Common pleas court case No. CR0201802234

{¶ 14} On July 6, 2018, Parker was indicted in common pleas court case No.

CR0201802234 (“case 4”) on two counts of felonious assault in violation of R.C.

2903.11(A)(1), both second-degree felonies, and two counts of domestic violence in

violation of R.C. 2919.25(A), both fourth-degree felonies. One count of felonious assault

and one count of domestic violence related to the October 7, 2017 assault against J.P.,

and the other counts of felonious assault and domestic violence related to the March 25,

2018 assault against J.P.

{¶ 15} Nothing of note happened in this case before the state requested on July 17,

2018, that the court dismiss it. The court granted the state’s request.

{¶ 16} Parker continued to be held in jail in lieu of bail while case 4 was pending.

4.
 E. The underlying case—common pleas court case No. CR0201802263

{¶ 17} On July 11, 2018, Parker was indicted in common pleas court case No.

CR0201802263 (“case 5”) on two counts of felonious assault in violation of R.C.

2903.11(A)(1), both second-degree felonies, and two counts of domestic violence in

violation of R.C. 2919.25(A), both third-degree felonies. One count of felonious assault

and one count of domestic violence related to the October 7, 2017 assault against J.P.,

and the other counts of felonious assault and domestic violence related to the March 25,

2018 assault against J.P.

{¶ 18} Parker continued to be held in jail in lieu of bail.

1. Parker’s motion to dismiss

{¶ 19} On August 20, 2018, Parker filed a motion to dismiss case 5 based on a

violation of his right to a speedy trial. He argued that he was incarcerated during the

pendency of the proceedings and the triple-count provision in R.C. 2945.71(E) applied,

so the state was required to bring him to trial within 90 days. However, a total of at least

98 days had passed since his arrest for the March 25 assault. The state responded that

Parker was not entitled to the triple-count provision because he had been indicted on new

charges that did not arise from the original indictment. By the state’s calculation, only

203 of 270 days had passed, so it was within the statutory speedy-trial limit.

{¶ 20} On October 2, 2018, the trial court held a hearing on Parker’s motion to

dismiss. At the hearing, Parker clarified that he believed that the case was over time

because the state knew about the October 7 assault before filing the charges in case 5, so

5.
speedy-trial time was counted beginning with case 1—which put the case far beyond the

270-day limit. The state responded that the indictment in case 5 was based on new and

additional information that the state had no knowledge of at the time case 1 was filed.

Specifically, the state alleged that Parker “called the victim subsequent or in kind of

immediate response to that October criminal filing to get her not to come to court, * * *”

which the state discovered while preparing to indict Parker for the March 25 assault. In

the state’s estimation, it was “not constrained by the speedy trial clock associated with

the original indictment * * *” because of Parker’s “conduct that prevented the victim

from participating in the October incident’s prosecution.”

{¶ 21} The state also claimed that it was initially unaware of two prior domestic-

violence convictions that elevated the domestic-violence charges against Parker to third-

degree felonies. In support of this argument, it noted that the municipal court’s online

case search showed that a 2006 domestic-violence case against Parker was still pending

and it was apparently not until later that someone from the prosecutor’s office looked at

the docket sheet for the 2006 case and saw that the municipal court had sentenced Parker

on July 27, 2006, and the case was, in fact, closed.

{¶ 22} After hearing from the parties, the trial court denied Parker’s motion to

dismiss. It found that the indictment in case 5 involved charges that arose from the

October 7 assault, which was separate from the incident for which Parker was already

being held at the time the case 5 indictment was filed—the March 25 assault—so the

triple-count provision of R.C. 2945.71 no longer applied beginning on July 11, 2018, the

6.
date case 5 was filed. On that basis, the court found that Parker failed to make a prima

facie showing that the state violated his speedy-trial rights and that “the state is well

within that 270 days.” Accordingly, the trial court denied Parker’s motion.

{¶ 23} Parker renewed his motion to dismiss on the morning of trial, but the trial

court again denied it.

2. The state’s motion for forfeiture by wrongdoing

{¶ 24} On August 9, 2018, the state filed a motion for forfeiture by wrongdoing.

In the motion, the state asked the court to find that J.P. was unavailable for trial under the

exception to the hearsay rule in Evid.R. 804(B)(6) so that the state could admit “all

statements [J.P.] made to law enforcement officers and medical personnel involved in this

case.” The trial court heard testimony and arguments on the motion for forfeiture by

wrongdoing during the October 2, 2018 hearing.

{¶ 25} According to the state, J.P. was refusing to communicate with prosecutors,

had failed to appear for several court dates, and had sent a letter to the prosecutors

claiming that Parker was innocent of the charges against him. The state believed that

J.P.’s refusal to cooperate was the result of almost 1,600 phone calls that Parker made to

J.P. while he was in jail—despite a no-contact order that prohibited Parker from having

any contact with J.P.

{¶ 26} In support of its motion, the state presented the testimony of Detective

Alexander Schaller. He was the officer who investigated both the October 7 and

March 25 assaults against J.P. According to Schaller, he spoke with J.P. while she was at

7.
the emergency room immediately following the October 7 assault, and she wanted to

proceed with prosecuting the case against Parker. After Parker was arrested, J.P. did not

respond to Schaller’s calls and did not appear for hearings at the municipal court, so the

case was dismissed.

{¶ 27} Schaller also spoke to J.P. on the phone in the day or two following the

March 25 assault to find out what she wanted to do about prosecuting that case. She

wanted to go forward with pressing charges. Schaller asked J.P. why she did not come to

the court hearings in case 1 and, according to Schaller, J.P. said “she was told not to

come in and the charges would be dismissed and she was dissuaded from prosecuting”

case 1. J.P. said that Parker’s attorney was the one who told her not to come to court.

Schaller did not have any communications with J.P. after this phone conversation.

{¶ 28} Additionally, Schaller testified to his unsuccessful attempts to

communicate with J.P. He said that the prosecutor’s office asked him to contact J.P.

because she had not come to any pretrials. Schaller requested a subpoena for J.P.’s

appearance at the August 20 jury trial date in case 5, which the prosecutor’s office

provided. He had another officer serve the subpoena because he was on vacation, but he

believed that the other officer had successfully personally served J.P. Schaller also tried

calling J.P. and leaving messages “at almost every phone number that [he] found

available to her from her old reports and current stuff,” but she did not answer the calls or

respond to the messages. Schaller also tried to reach J.P. through her mother and brother,

but was again unsuccessful.

8.
 {¶ 29} Additionally, Schaller said that he believed J.P. had been personally served

with a subpoena for the jury trial in case 5 that was originally scheduled to begin that day,

but so far—approximately two hours after court began—Schaller had not seen J.P. at the

courthouse. On cross, however, he admitted that he had not given J.P. a subpoena for

that day—October 2, 2018—and did not know for sure that someone else had given her a

subpoena.

{¶ 30} In addition to Schaller’s testimony, the state submitted recordings of four

phone calls that Parker made to J.P. while he was in the Lucas County jail. In the calls,

Parker repeatedly urged J.P. to get the charges against him dismissed. For example, in

the first phone call, made while Parker was in jail following the October 7 assault, Parker

said that he was not “trying to sit in here and wait” and “that’s not the thing we trying to

do. We not trying to get me comfortable.” When J.P. asked Parker what he “advise[d]”

that she do, he responded “You gonna [sic] have to figure out something. * * * We

already talked about it. But there’s, like, there’s something you’ve gotta do, like, to get

the felony gone.” In response, J.P. asked Parker what “exactly I am supposed to do” and

said that she intended to give Parker’s lawyer a statement and reach out to the detective to

tell him that she did not want to press charges. Parker told J.P. to “go and look decent”

and talk to a prosecutor to “shut that shit down” by telling the prosecutor that she would

not come to court or proceed with the case and was not “trying to do all that.” The state

outlined similar conversations in the three other recorded calls, including explicit

9.
instructions from Parker to J.P. in April 2018 to write an affidavit explaining how she

was misled and charges were pursued against her wishes.

{¶ 31} In response, Parker argued that the state had not proven that it issued J.P. a

subpoena for the October 2 trial date or had attempted to serve J.P. with any subpoenas.

He also said that the state failed to show that it had made any attempts at in-person

contact with J.P., as opposed to simply calling her. And Parker argued that the other

person on the recorded phone call was never identified, so there was no way to tell that it

was actually J.P.

{¶ 32} After Parker’s attorney pointed out that the state had not shown that it

subpoenaed J.P. for October 2, the state admitted that, although it subpoenaed her for the

earlier trial date, it inadvertently left her off of the subpoena list for the October 2 trial.

As a result, it had not prepared or attempted to serve her with a subpoena for that day. To

rectify this mistake, Schaller and two other TPD officers attempted to serve J.P. with a

subpoena while the court took a recess to listen to the recorded phone calls, but she was

not home. Schaller left the subpoena, his phone number, and the prosecutor’s phone

number with J.P.’s stepfather, who said that she would be home soon, and asked that J.P.

contact him or the prosecutor as soon as she returned. Because the state now knew that it

had a good address for J.P., the state asked the court to continue the trial so that it could

serve J.P. with a subpoena. The state explained that J.P. had failed to appear in response

to two subpoenas, failed to appear for pretrial witness meetings in response to at least two

witness letters sent by the prosecutor’s office, and failed to respond to “numerous

10.
attempts to contact the victim as well as her family by phone * * *.” The state also noted

that J.P. “has made her feelings known about this prosecution through the letter to the

court in which she says very clearly that she does not wish to proceed with these charges

[and] in her second letter that the defendant is innocent of all charges and that she would

not be here to testify.” The trial court granted the state a one-day continuance over

Parker’s objection.

{¶ 33} The next day, the trial court resumed its hearing on the state’s motion for

forfeiture by wrongdoing. The original trial judge was ill, but rather than continue the

matter, Parker elected to have another judge preside over the second day of the hearing.

{¶ 34} First, the state recalled Schaller to testify about his contact with J.P. on

October 2. During the court’s recess, Schaller explained, he and two other officers went

to an address that Schaller had for J.P. to attempt to serve her with a subpoena for the jury

trial scheduled to begin that afternoon. Schaller spoke to J.P.’s stepfather and explained

the circumstances to him. The stepfather told Schaller that J.P. had gone to the store and

he was unsure when she would be home. Schaller and the officers waited for “a few

minutes,” and when they left, Schaller left his phone number “with hopes [J.P.] would

contact us or appear.”

{¶ 35} Later, as Schaller was leaving the courthouse for the day, he found that he

had a voicemail from J.P. in which she “vehemently stated she didn’t appreciate me

coming to her house and threatening to arrest her, which no threats of arrest were made.

She stated that she did not want to be involved in this case and was not going to

11.
cooperate * * *.” Schaller went back into the courthouse to the prosecutor’s office to

share the message with them. As he was leaving again, J.P. appeared at the prosecutor’s

office, so he was called back to serve her with the subpoena for October 3.

{¶ 36} When he served J.P., Schaller told her that the subpoena required her to be

in court the next day. J.P. told Schaller that she did not want to be involved in the case

because of stressors in her personal life. But she also said that she was afraid of Parker

and “[t]hat he blames her for what happened and it’s her fault and she shouldn’t

proceed.” And she admitted that she continued to have phone conversations with Parker

from the jail, including conversations on October 2. Schaller did not try to contact J.P. on

October 3.

{¶ 37} The state also called Limie Stanton, J.P.’s mother. Stanton was not home

when Schaller came to the house on October 2, but after speaking to her husband—J.P.’s

stepfather—she called J.P. to encourage her to contact Schaller and the prosecutor.

According to Stanton, J.P. said that she did not want to be a part of the trial because she

was afraid that Parker’s family members would blame her “if anything were to happen”

and his family members were threatening her. J.P. also said that she did not want to

relive everything that happened between her and Parker.

{¶ 38} Regarding the October 7 assault, Stanton said that J.P. told her that J.P.

maintained contact with Parker while he was in jail because Parker threatened to “send

someone by the house to look for” J.P. if she did not take his calls. Stanton said that J.P.

12.
seemed afraid of Parker and the threats he made, which is why J.P. did not go forward

with the prosecution of the October 7 assault.

{¶ 39} After hearing the testimony, the trial court issued a preliminary ruling

granting the state’s motion for forfeiture by wrongdoing. Specifically, the court’s ruling

allowed the state to introduce J.P.’s hearsay statements regarding the identity of her

assailant that were captured on the responding officers’ body cameras after the October 7

and March 25 assaults and her hearsay statements to Schaller shortly after each assault

regarding the identity of the assailant and her desire to press charges.

{¶ 40} Although the court intended to hold Parker’s jury trial immediately

following the hearing on October 3, 2018, because the trial judge was ill, the trial was

continued until October 9, 2018. The morning of the trial, the court revisited the issue of

J.P.’s unavailability under Evid.R. 804(B)(6).

{¶ 41} The state had Schaller testify about his efforts to contact J.P. between

October 2 and October 9. First, he rehashed the events of October 2 that he testified to

during the hearing on October 3. In doing so, he elaborated on his conversation with J.P.

after serving her with the subpoena for the October 3 trial date. According to Schaller,

J.P. reiterated that she did not want to be involved with this case and told Schaller that he

did not “understand the psychology of it.” She also said that she had been receiving

phone calls from Parker telling her not to come to court and had spoken to Parker that

day. Schaller said that he “explained to [J.P.] that I can’t tell her not to come to court,

she’s under subpoena to come to court. And that yes, I did—no, I did not tell her family

13.
that I was going to arrest her when I was out at the house, but yes, she could be arrested

or we could get a material witness order and she could be arrested for not honoring a

subpoena. It’s a court order.” However, Schaller said that J.P. “basically didn’t care

what [he] was saying.”

{¶ 42} Schaller said that on October 3, he was in the courtroom for the hearing in

this case, but he did not see J.P. That night, when Schaller started his shift at 11:30 p.m.,

he and two other TPD officers went to J.P.’s home to attempt to serve her with a

subpoena for the October 9 jury trial. J.P. was not home, so Schaller left a copy of the

subpoena with Stanton, J.P.’s mother. In speaking with Stanton while trying to serve the

October 9 subpoena, Schaller learned that J.P. was living there, but she had not returned

to the house in three days in an attempt to avoid contact with the police. Schaller did not

have any interactions with J.P. after their conversation on October 2. He confirmed on

cross-examination that the only attempt he made to serve J.P. with a subpoena for the

October 9 trial date was at 11:30 p.m. on October 3 and that he did not go to J.P.’s home

any other times between October 3 and 9.

{¶ 43} During Schaller’s testimony, the state introduced a letter that J.P. sent to

the prosecutor and the court after the October 2 hearing. In it, she reiterated that she did

not want to be involved in the case because of stressors in her personal life, not because

she was afraid of Parker or his family. She claimed that she told Parker that she wanted

to be in a relationship with him during their phone calls to “keep him from being

emotional.”

14.
 {¶ 44} Next, the state asked Schaller about the conversations he had with J.P.

following each assault. Schaller spoke with J.P. approximately one and one-half to two

hours after the October 7 assault, while she was being treated in the emergency room.

Stanton was in the room when Schaller spoke to J.P., and medical providers were in and

out of the room while providing treatment. Schaller said that the side of J.P.’s face was

swollen and someone from the hospital told him that she was being admitted to the

intensive care unit because she had a “brain bleed.” Schaller described J.P. as “upset,

crying, concerned about what was going on and what happened.” When Schaller asked

J.P. what happened, she said that she and Parker “had gotten in to [sic] an argument and

he had punched her several times in the face and head causing the swelling * * *. * * *

She said at that time she wished to proceed with charges.”

{¶ 45} Following the March 25 assault, Schaller briefly spoke to J.P. on the phone.

He said that the assault happened at approximately 1:30 a.m. on March 25, and he spoke

to J.P. “the same night.” On cross, Schaller admitted that he did not know how long after

the assault he spoke to J.P., but knew it was not “immediately” after because he was

working on another case. The conversation lasted approximately “four to five minutes,”

and Schaller described J.P. as “still upset” and “mad.” When Schaller asked her what

happened, J.P. said that Parker “choked” her and that she woke in her own urine.

Schaller asked J.P. “what did she want to do with this and she said she wanted to proceed

with criminal charges.” He also asked her why she had not pursued prosecution of the

October 7 assault. According to Schaller, J.P. said that “she was approached by the

15.
defense attorney at the time and was requested to fill out a form stating it did not occur

and that she had written a letter.”

{¶ 46} Following Schaller’s testimony on October 9, the trial court reaffirmed its

earlier finding that J.P. was unavailable, Parker’s wrongdoing caused J.P.’s

unavailability, and Parker intended his wrongdoing to prevent J.P. from testifying in

court. The court also found that Parker had adequate notice of the particular hearsay

statements that the state planned to introduce. The court analyzed the credibility of the

hearsay statements in light of the circumstances in which they were made and found them

credible and admissible under Evid.R. 804(B)(6).

3. The jury trial

{¶ 47} The jury trial began after the forfeiture by wrongdoing hearing on

October 9, 2018. On the morning of the third day of trial, a court security officer

reported to the court an incident that happened as the jurors were leaving the night before.

As the court summarized it:

[Y]esterday when jurors were leaving, court security was escorting

them on the private elevator. One of the—I think Juror Number 1 inquired

as to whether or not that was the prisoner elevator. Court security said, yes,

this is the prisoner elevator. And she stated, well, I think the defendant

must be in custody then because he comes from the back. * * *

***

16.
 Then another juror piped in and said that’s not something we can

talk about[.]

***

And the conversation ended there[.]

The court noted that the jurors never saw Parker entering or leaving the courtroom, but

speculated that “[m]aybe they saw him going to the bathroom or something * * *.”

Regardless, Parker was never handcuffed or shackled when he used the restroom during

trial.

{¶ 48} Parker’s attorney moved for a mistrial. He argued that it was imperative

that the jurors not think that Parker was in custody, but “unfortunately 14 people heard

that and they’re not going to be able to excise that out of their mind.” The trial court

declined to rule on the motion immediately. Instead, it opted to individually voir dire the

jurors about what they heard in the elevator the night before.

{¶ 49} The court first spoke to juror 1. Juror 1 denied asking if they were in the

prisoner elevator, but said that she asked if Parker was in custody, and someone replied

that the jurors were not supposed to discuss that. Juror 1 said that she could be a fair and

impartial juror in the case.

{¶ 50} When juror 1 left the chambers, the court security officer clarified that juror

1 was not the person who asked the initial question about whether the jurors were using

the prisoner elevator. The security officer said that a different juror “from the back”—

whom he could not identify—asked the question; juror 1 “followed up with what [the

17.
security officer] heard and understood to be, well he must be in custody because he

comes from the back.”

{¶ 51} Based on the security officer’s explanation, the court brought juror 1 back

into chambers. When asked by Parker’s attorney if she said that Parker “must be in

custody because he comes from the back[,]” juror 1 replied “I might have said that, I

don’t remember.” The court also tried to determine what juror 1 might have meant by

saying “from the back,” and juror 1 agreed with the court that she meant the back of the

courtroom.

{¶ 52} When juror 1 left the chambers for the second time, the prosecutor told the

court that any issues about Parker’s custody status were likely moot because the state

intended to introduce evidence of Parker’s recorded jail phone calls to J.P. during trial

that day.

{¶ 53} The court then called each of the remaining jurors and the two alternates

into chambers for individual voir dire about whether they recalled the comments made in

the elevator the night before. If the juror recalled the comments, the court asked if the

juror understood that Parker’s custody status had no bearing on the determination he or

she needed to make in the case and did not change the state’s burden of proving Parker’s

guilt beyond a reasonable doubt. The court also asked if the comments affected the

juror’s ability to remain fair and impartial. The court also gave the attorneys an

opportunity to question each juror. All but one of the jurors recalled something about the

18.
comments made in the elevator, but each understood their responsibility and the state’s

burden and said that the comments did not affect their ability to remain fair and impartial.

{¶ 54} Following the individual voir dire, Parker’s attorney again moved for a

mistrial on the grounds that the jurors thinking Parker was in custody violated his due

process rights. The state responded that a mistrial was only necessary if a fair trial was

no longer possible, and nothing the jurors said during individual voir dire indicated that

Parker could no longer get a fair trial. The trial court agreed with the state and denied

Parker’s motion.

{¶ 55} At the conclusion of the trial, the jury found Parker guilty of all four

charges.

4. Sentencing

{¶ 56} At sentencing, the trial court merged the count of felonious assault related

to the October 7 assault with the count of domestic violence related to the October 7

assault and merged the count of felonious assault related to the March 25 assault with the

count of domestic violence related to the March 25 assault. The state chose to proceed on

the felonious assault charges. The court sentenced Parker to 8 years on each count and

ordered the sentences to be served consecutively for an aggregate prison sentence of 16

years.

19.
 {¶ 57} Parker appeals his convictions, raising three assignments of error:

FIRST ASSIGNMENT OF ERROR[:] THE LOWER COURT

ERRED IN DENYING APPELLANT’S MOTION TO DISMISS FOR

VIOLATIONS OF HIS RIGHT TO SPEEDY TRIAL[.]

SECOND ASSIGNMENT OF ERROR[:] THE TRIAL COURT

ERRED BY GRANTING THE STATE’S MOTION FOR FORFEITURE

BY WRONGDOING[.]

THIRD ASSIGNMENT OF ERROR[:] THE TRIAL COURT

ERRED IN DENYING APPELLANTS [sic] REQUEST FOR A

DECLARATION OF A MISTRIAL[.]

II. Law and Analysis

A. Parker’s right to a speedy trial was not violated.

{¶ 58} In his first assignment of error, Parker argues that the trial court erred by

denying his motion to dismiss based on the violation of his statutory right to a speedy

trial.2 First, he contends that the trial court improperly placed the burden of proving a

speedy-trial violation on him instead of placing the burden on the state to prove that it

brought him to trial within the statutory time limit in R.C. 2945.71(C)(2). Next, he

argues that the state did not meet its burden of proving that a sufficient number of days

were tolled to bring the state within the statutory time limit. And finally, Parker argues

2
Parker does not raise any arguments regarding his constitutional right to a speedy trial.

20.
that the trial court failed to apply the triple-count provision of R.C. 2945.71(E) after

July 11, 2018—the day he was indicted in case 5—and when the triple-count provision is

properly applied, the state brought him to trial out of time.

{¶ 59} The state responds that the trial court properly denied Parker’s motion

because he failed to meet his initial burden of making a prima facie showing that the state

brought him to trial outside of the statutory limit in R.C. 2945.71(C)(2). And, assuming

that Parker met his burden, the state argues that a sufficient number of days were tolled to

bring Parker’s trial date within the statutory limit.

1. Statutory speedy trial rules.

{¶ 60} 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 to .73 to implement these constitutional

guarantees. Id.

{¶ 61} 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). The

statute is mandatory, and the state must strictly comply with its requirements. State v.

Hohenberger, 189 Ohio App.3d 346, 2010-Ohio-4053, 938 N.E.2d 419, ¶ 35 (6th Dist.).

For calculation purposes, speedy-trial time begins running the day after the defendant’s

arrest. State v. Taylor, 6th Dist. Lucas No. L-98-1375, 2001 WL 1198648, *4 (Oct. 5,

2001). When the defendant is held in custody in lieu of bail, each day he is held counts

21.
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.

{¶ 62} 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. Taylor at *2. If the state fails to do so, upon motion by the defendant at

or before the commencement of trial, the trial court is required to dismiss the charges

against the defendant. R.C. 2945.73(B).

{¶ 63} Under R.C. 2945.72, certain events can extend the time for trial (i.e., toll

speedy-trial time). 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. Sklarov, 6th Dist. Lucas

Nos. L-15-1303 and L-15-1304, 2017-Ohio-137, ¶ 7. Two exceptions are most relevant

here. Under R.C. 2945.72(E), when the defendant files a motion, time is tolled for a

“reasonable time until the motion is responded to and ruled upon.” Sanchez at ¶ 26. To

determine a “reasonable” tolling period incurred by a defendant’s motion, we 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. Crawford, 6th

Dist. Lucas No. L-17-1297, 2019-Ohio-2660, ¶ 31, citing State v. Arrizola, 79 Ohio

22.
App.3d 72, 76, 606 N.E.2d 1020 (3d Dist.1992). And under R.C. 2945.72(H), time is

tolled during any continuance requested by the defendant.

{¶ 64} A trial court’s decision denying a motion to dismiss based on an alleged

violation of the speedy-trial statutes presents a mixed question of law and fact. State v.

Rumer, 6th Dist. Lucas No. L-07-1178, 2009-Ohio-265, ¶ 7. While we accord reasonable

deference to the trial court’s findings of fact if supported by competent, credible

evidence, we independently determine whether the trial court properly applied the law to

the facts of the case. Id.

{¶ 65} “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.” (Internal quotations omitted.) Crawford at ¶ 26.

Although the formula seems straightforward, cases involving subsequent indictments can

be “problematic” with respect to a defendant’s speedy-trial rights. State v. Vasquez, 10th

Dist. Franklin No. 13AP-366, 2014-Ohio-224, ¶ 23.

{¶ 66} Due to the procedural history of the charges against Parker, we must look

at several distinct periods to determine whether the state ultimately violated Parker’s

statutory right to a speedy trial at any point before his jury trial began on October 9,

2018.

23.
 2. Parker did not make a prima facie showing that the state
was over time before it indicted him in case 4.

{¶ 67} The first step in any statutory-speedy-trial inquiry is a prima facie showing

by the defendant that the state brought him to trial outside of the limits imposed by R.C.

2945.71. We find that Parker failed to make this showing with regard to the period from

April 16, 2018—the date of his arrest for the March 25 assault—to July 6, 2018—the

date of the indictment in case 4, when a new speedy-trial period began.3

{¶ 68} Although the parties dispute whether the addition of new charges canceled

Parker’s entitlement to triple credit, they agree that he was entitled to triple credit from

April 17, 2018 (the day after his arrest, when we begin calculating speedy-trial time) until

he was indicted on felony charges related to the October 7 assault. Thus, to make a prima

facie showing that his speedy-trial rights were violated before case 4 was filed, Parker

needed to show that case 4 was filed more than 90 days after his arrest on April 16. He

could not do so, however, because April 17 to July 5 was 80 days. This is within the

limit imposed by R.C. 2945.71(C). Therefore, because Parker did not make a prima facie

showing that the state was out of time prior to July 6, 2018, the burden did not shift to the

state to justify any delays during this period.

3
Although the parties argue that the date of indictment in case 5—July 11, 2018—is the
critical date, felony charges related to the October 7 assault were first filed in case 4 on
July 6, 2018. Because it is the additional charges that change the speedy-trial analysis,
we begin our multiple-charge speedy-trial analysis with case 4.

24.
 3. The speedy-trial clock reset on July 6, 2018.

{¶ 69} On July 6, 2018, when the grand jury issued the indictment in case 4, the

speedy-trial clock reset, giving the state an additional 270 days in which to bring Parker

to trial. This is because the state is not held to the speedy-trial deadline of the initial

indictment when it issues a subsequent indictment that contains new charges if the

“additional criminal charges arise from facts different from the original charges, or the

state did not know of these facts at the time of the initial indictment.” (Emphasis added.)

State v. Baker, 78 Ohio St.3d 108, 676 N.E.2d 883 (1997), syllabus. This test is in the

disjunctive, so it is fulfilled if either condition is met. State v. Smith, 11th Dist.

Ashtabula No. 2004-A-0089, 2006-Ohio-5187, ¶ 29. That is, the speedy-trial clock resets

when the state brings new charges based on either (1) facts different from those

supporting the original charges or (2) lack of knowledge, at the time the original

indictment is filed, of the facts supporting the new charges.

{¶ 70} Here, the state argues that the speedy-trial timetable reset both because it

lacked knowledge of the facts supporting the charges related to the October 7 assault at

the time it filed the indictment in case 3 and because the charges related to the October 7

assault arose from facts different from the charges related to the March 25 assault.

{¶ 71} The state’s claim that it did not know the facts required to charge Parker

relative to the October 7 assault at the time it indicted Parker in case 3 is wholly without

merit. Generally speaking, for facts to be “unknown” to the state at the time of the

original indictment, the facts supporting the new charges must be learned through some

25.
ongoing investigation of the defendant’s criminal behavior. See, e.g., Baker at 108-109

(speedy-trial time reset when new charges resulted from facts the state learned by

auditing pharmacy records obtained following the defendant’s arrest for illegally selling

prescription drugs to police informants); State v. Mohamed, 10th Dist. Franklin No.

08AP-960, 2009-Ohio-6658, ¶ 52 (the results of the laboratory analysis of the suspected

drugs seized at the time of the defendant’s arrest “constituted a new fact that was not

available to the state at the time of the original arrest and/or indictment * * *,” so drug

charges that were filed after the state received the results were not subject to the same

speedy-trial time as the original charges); compare, e.g., State v. Kasler, 5th Dist.

Fairfield No. 11-CA-59, 2012-Ohio-6073, ¶ 43 (although the state claimed that it did not

know the severity of the victim’s injuries until the victim returned to Ohio to testify at the

defendant’s rape trial three years after the defendant was indicted, the new felonious

assault charge against the defendant based on the severity of the victim’s injuries was not

the result of facts unknown to the state at the time of the original indictment where “the

State had access to information concerning the potential severity of the injury at the time

it occurred and could have inquired of [the victim] about the lingering effects of the

injury prior to her appearance at trial.”). See also State v. Parker, 113 Ohio St.3d 207,

2007-Ohio-1534, 863 N.E.2d 1032, ¶ 19 (Acknowledging that “Baker involved

subsequent indictments, all of which were the result of the same investigation, but the

charges were the direct result of different events on different dates.”). The charges in

case 4 related to the October 7 assault were not the result of an ongoing investigation;

26.
rather, the state knew (or should have known) all the facts necessary to charge Parker

with felonious assault and domestic violence related to the October 7 assault at the time it

filed case 3.

{¶ 72} To indict Parker on the felonious assault charge, the state was required to

show probable cause that Parker, on October 7, 2017, knowingly caused serious physical

harm to J.P. R.C. 2903.11(A)(1). “Serious physical harm” includes physical harm that

“carries a substantial risk of death[,]” “involves some temporary, substantial

incapacity[,]” or “involves acute pain of such duration as to result in substantial

suffering[.]” R.C. 2901.01(A)(5)(b), (c), (e). The domestic violence charge required the

state to show probable cause that Parker, on October 7, 2017, knowingly caused physical

harm to a family or household member and that he had previously pleaded guilty to or

been convicted of two or more domestic violence offenses. R.C. 2919.25(A), (D)(4).

“Physical harm” is “any injury, illness, or other physiological impairment, regardless of

its gravity or duration.” R.C. 2901.01(A)(3). A “family or household member” includes

someone “who is residing or has resided with the offender * * *” and is “living as a

spouse” by “cohabiting with the offender * * *.” R.C. 2919.25(F)(1)(a)(i), (2).

{¶ 73} The complaint filed in case 1 shows that the state knew long before July 6,

2018, that J.P. reported to Schaller that Parker, “her live-in-boyfriend, assaulted her by

punching her at least three times in the face with a closed fist.” The complaint also stated

that J.P. was hospitalized with bleeding and swelling in her brain as a result of the attack.

The record in case 1 also contains a “Public Safety Assessment” that includes Parker’s

27.
criminal record, which notes two prior domestic violence convictions. This information

is sufficient to support the grand jury’s finding that there was probable cause to believe

that Parker committed both felonious assault and domestic violence against J.P. on

October 7, 2017.

{¶ 74} The state argued at the hearing on Parker’s motion to dismiss that the jail

phone calls in which Parker encouraged J.P. not to come to court in October 2017

constituted new facts that reset speedy-trial time when the indictment in case 5 was filed.

However, the state did not charge Parker with any crimes related to discouraging J.P.

from appearing at court or attempting to get the charges against him dropped, and

Parker’s coercion of J.P. was not an element of either felonious assault or domestic

violence such that the state could not have indicted Parker without knowing about his

efforts to prevent J.P. from testifying against him. Thus, we conclude that the

information in the phone calls was not a fact unknown to the state, within the meaning of

Baker, at the time of the indictment in case 3.

{¶ 75} Additionally, the state argued that it was initially unaware of one of

Parker’s prior domestic violence convictions because his record erroneously listed a 2006

domestic violence case as pending, so the state’s later discovery of the conviction was

also a new fact that reset the speedy-trial clock. This argument is also unavailing.

Although the public safety assessment lists the 2006 case disposition as “PENDING,”

immediately underneath that the document states “Defendant sentenced to 6 months

CCNO consecutive. no [sic] costs.” (Emphasis added.) So despite the purported

28.
“pending” status of a misdemeanor case that was more than a decade old, Parker’s

criminal history report clearly shows that he was sentenced to jail for the domestic

violence charge in 2006, which would not have happened if Parker had not been

convicted. At the hearing, the prosecutor said that a “cursory search” of Parker’s record

made it appear that Parker did not have a domestic violence conviction in 2006, but

acknowledged that the state could have discovered the fact of Parker’s 2006 conviction if

someone had “look[ed] in to [sic] that case from 2006 * * *.”

{¶ 76} In our view, the state’s misreading of Parker’s criminal history did not

make his 2006 domestic violence conviction a new fact, within the meaning of Baker,

that the state did not know about at the time of the indictment in case 3. Accordingly, we

find that speedy-trial time did not reset based on the new charges in case 4 arising from

facts unknown to the state at the time it indicted Parker in case 3.

{¶ 77} Regardless, the speedy-trial clock reset on July 6, 2018, because the

language in Baker is disjunctive, and the other exception applies. That is, the charges

related to the October 7 assault arose from facts distinct from the original charges in the

indictment in case 3. The “key question” to ask under this exception is “whether all of

the offenses at issue arose out of the same set of facts * * *.” Mohamed, 10th Dist.

Franklin No. 08AP-960, 2009-Ohio-6658, at ¶ 32. If they did not, the state is able to take

advantage of a new speedy-trial timetable regardless of when it learned of the facts it

needed to indict the defendant on the new charges. As the Second District put it, “if the

facts of the offenses in multiple indictments are truly different—i .e, [sic] they arise from

29.
different circumstances, require different evidence, and are otherwise distinguishable in a

significant way—the State is permitted to charge them separately even if all of the facts

are known to the state when the initial indictment is filed.” State v. Jones, 2d Dist.

Montgomery No. 21974, 2008-Ohio-1603, ¶ 10. In this case, it is obvious that the

charges related to the October 7 assault arose out of a separate set of facts than the

charges related to the March 25 assault; the attacks occurred on different days, consisted

of different types of physical assaults on J.P., and resulted in different injuries to J.P.

Thus, we conclude that Baker applies to the indictment in case 4 and the speedy-trial

clock reset on July 6, 2018, giving the state an additional 270 days in which to bring

Parker to trial.

4. Case 5 was brought to trial in time.

{¶ 78} Initially, we note that the state was subject to the same speedy-trial

timeframe in case 5 that applied in case 4 because “‘when new and additional charges

arise from the same facts as did the original charge and the state knew of such facts at the

time of the initial indictment, the time within which trial is to begin on the additional

charge is subject to the same statutory limitations period that is applied to the original

charge.’” State v. Freeman, 6th Dist. Lucas No. L-09-1086, 2010-Ohio-1357, ¶ 42,

quoting Adams, 43 Ohio St.3d at 68, 538 N.E.2d 1025. The only difference between

cases 4 and 5 is the degree of the domestic violence charge; the state needed a second

prior conviction to charge Parker with the higher-degree felony in case 5. As discussed

above, Parker’s second prior domestic violence charge was not “unknown” to the state

30.
before it indicted Parker in case 5, so we find that the state knew the facts of case 5 at the

time it indicted Parker in case 4. Accordingly, under Adams, the state is held to the same

speedy-trial period in case 5 as it was in case 4—the state was required to bring Parker to

trial within 270 days of July 6, 2018.

{¶ 79} Before we calculate whether the state brought Parker to trial on time, we

must address two discrete time periods. The first is July 11 to October 9, 2018, the time

between Parker’s indictment in case 5 and the day his trial began. Parker and the state

dispute whether Parker’s incarceration due to a single indictment that contained charges

from unrelated criminal incidents constituted being “held in jail solely on the pending

charge.” Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 7. Parker

claims that it does, so he is entitled to triple credit for each day he was incarcerated

during this period. The state claims that it does not, so he is entitled only to single credit.

{¶ 80} “The triple-count provision of R.C. 2945.71(E) applies to a criminal

defendant in jail in lieu of bail and charged with multiple counts under a single indictment,

if all counts are to be tried in a single trial.” State v. Collins, 91 Ohio App.3d 10, 14, 631

N.E.2d 666 (6th Dist.1993); see also State v. Dankworth, 172 Ohio App.3d 159, 2007-

Ohio-2588, 873 N.E.2d 902, ¶ 37 (“[W]hen an accused is charged with several unrelated

offenses in a multiple-count indictment and all counts are to be tried in a single trial, the

indictment is treated as a single charge, and the accused is entitled to the triple-count

provision.”); State v. Armstrong, 10th Dist. Franklin No. 87AP-1166, 1989 WL 55700, *3

(May 25, 1989) (“In short, the statutory purpose underlying R.C. 2945.71(E)—the

31.
prevention of undue pretrial detention—is furthered by requiring the state to bring the

accused to trial within the statutory period where the accused is detained in lieu of bail on

a multiple-count indictment.”).

{¶ 81} The state cites to Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d

1032, at paragraph one of the syllabus, for the proposition that multiple charges must

“arise from a criminal incident and share a common litigation history * * *” to constitute

a single charge for purposes of the triple-count provision in R.C. 2945.71(E). However,

as the Dankworth court explained,

Parker addressed the situation in which multiple related charges were

brought separately, and the Ohio Supreme Court concluded, in essence, that

the state could not circumvent the triple-count provision by charging the

related offenses in separate complaints and addressing them in multiple

courts. Parker does not address the reverse situation in which multiple

unrelated charges are brought in a single multiple-count indictment, as is

the case herein, nor does Parker suggest that the triple-count provision

applies only when factual circumstances similar to Parker’s exist.

Dankworth at ¶ 38. Because that is the case, we find that Parker was held on a single

indictment beginning on July 17, 2018, when cases 3 and 4 were dismissed, so he was

entitled to triple credit for each day from July 17 to October 9, when his trial began.

{¶ 82} The second discrete time period that must be accounted for relates to the

municipal court complaint for the October 7 assault. When a felony complaint filed in

32.
the municipal court is dismissed and the defendant is later indicted based on the same

conduct, the speedy-trial time that elapsed while the municipal court complaint was

pending is deducted from the 270 days the state has to bring the defendant to trial on the

felony charge. See State v. Bonarrigo, 62 Ohio St.2d 7, 11, 402 N.E.2d 530 (1980). The

time between the dismissal of the municipal court complaint and the indictment on the

felony charge is tolled. See State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, 859

N.E.2d 532, ¶ 16-17, citing Bonarrigo at 11 (speedy-trial time is tolled between the time

a misdemeanor charge is dismissed and a felony indictment is filed), and State v.

Broughton, 62 Ohio St.3d 253, 259-260, 581 N.E.2d 541 (1991) (speedy-trial time is

tolled between the time a felony indictment is dismissed and a subsequent indictment is

filed). Applying this to Parker’s case, based on what we can determine from the record,

Parker was arrested for the October 7 assault on October 11, 2017, and held in jail until

case 1 was dismissed on October 23, 2017. Parker was in jail for 12 days, but because he

was being held solely on the charges in case 1, he was entitled to have those days triple

counted. So, Parker has a total of 36 additional days of speedy-trial time attributable to

case 1 that must be considered in our analysis.

{¶ 83} Turning to the merits of Parker’s argument, we must determine whether the

state brought Parker to trial within 270 days of July 6, 2018. We calculate Parker’s

speedy-trial time as follows:

33.
  October 7 assault:

Dates Speedy-trial days
October 11 to 23, 2017 36 (12 days, tripled)
July 6 to 16, 2018 10
July 17 to October 9, 2018 252 (84 days, tripled)
Total days: 298
 March 25 assault:
Dates Speedy-trial days
July 6 to 16, 2018 10
July 17 to October 9, 2018 252 (84 days, tripled)
Total days: 262

Based on our calculations, Parker made a prima facie showing that his speedy-trial time

expired before his trial began regarding the charges related to the October 7 assault, but

failed to make a prima facie showing related to the March 25 assault. Thus, the burden

shifted to the state to prove that it timely brought Parker to trial on the counts related to

the October 7 assault.

{¶ 84} The state met this burden by pointing to tolling events that were sufficient

to bring Parker’s trial date within the limit in R.C. 2945.71(C). In fact, although there

were other tolling events, we will analyze only one event—Parker filing his motion to

dismiss—because this event tolled enough time to make Parker’s trial timely.

{¶ 85} Parker filed his motion to dismiss on August 20, 2018. This tolled time for

a “reasonable time until the motion is responded to and ruled upon.” Sanchez, 110 Ohio

St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, at ¶ 26; R.C. 2945.72(E). In conjunction

with his motion to dismiss—which he filed one day before his jury trial was originally

scheduled to begin—Parker asked the trial court to continue the trial. The court granted

34.
his request and continued the case for a hearing on Parker’s motion and a jury trial on

October 2, 2018. This tolled time until the October 2 court date. R.C. 2945.72(H). The

trial court also ruled on Parker’s motion to dismiss on October 2. Although we do not

have any information about the time constraints on the trial court, considering the

circumstances of the case and the complexity of the issues, and the fact that the court

reset Parker’s case for a jury trial along with a hearing on his motion to dismiss, we find

that the delay in ruling on Parker’s motion was reasonable. Crawford, 6th Dist. Lucas

No. L-17-1297, 2019-Ohio-2660, at ¶ 31. Thus, time was tolled from August 20 to

October 2, 2018, for a total of 43 days.

{¶ 86} When the days tolled (43) are subtracted from the speedy-trial days elapsed

on the October 7 assault charges (298), only 255 days are chargeable to the state, which is

well within the 270-day statutory limit. Thus, we conclude that the trial court did not err

by denying Parker’s motion to dismiss on speedy-trial grounds, and we find that his first

assignment of error is not well-taken.

B. The trial court properly found that J.P. was unavailable to testify at trial.

{¶ 87} In his second assignment of error, Parker argues that the trial court erred by

granting the state’s motion for forfeiture by wrongdoing, which allowed the state to

introduce at trial hearsay statements that J.P. made to police and medical providers. He

contends that Schaller’s single attempt to serve J.P. for the October 9, 2018 trial by going

to her mother’s home at 11:30 p.m. six days before trial and leaving a copy of the

35.
subpoena was insufficient to show that the state made a reasonable, good faith effort to

secure J.P.’s appearance at the October 9 trial.

{¶ 88} The state responds that the trial court correctly admitted J.P.’s hearsay

statements because the state demonstrated a good faith effort to secure J.P.’s appearance

at trial through Schaller’s testimony, which showed that (1) J.P. was served with a

subpoena for the August 21, 2018 trial date, but failed to appear; (2) Schaller left

messages at every phone number he had for J.P. and unsuccessfully attempted to contact

J.P.’s mother and brother to try to reach her; (3) Schaller went to J.P.’s home on October

2, 2018, to attempt to serve her with a subpoena for the next day, but was unable to find

her; (4) after visiting J.P.’s home, Schaller received a voicemail from J.P. saying that she

did not want to be involved in the case and was not going to cooperate; (5) later on

October 2, Schaller served J.P. with a subpoena for October 3, but she did not appear;

(6) at 11:30 p.m. on October 3, Schaller went to J.P.’s home to serve her with a subpoena

for the October 9 trial, but J.P. was not home; and (7) J.P.’s mother told Schaller that J.P.

had not been home in three days because she was trying to avoid the police.

{¶ 89} Forfeiture by wrongdoing is an equitable exception to a defendant’s

constitutional right to confront the witnesses against him. State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 96, citing Giles v. California, 554 U.S.

353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), and Reynolds v. United States, 98

U.S. 145, 158, 25 L.Ed. 244 (1878). The doctrine is codified in Evid.R. 804(B)(6), which

allows the state to use hearsay statements of an unavailable witness against the defendant

36.
if the state can show by a preponderance of the evidence that “(1) the defendant engaged

in wrongdoing that caused the witness to be unavailable and (2) one purpose for the

wrongdoing was to make the witness unavailable to testify.” Id., citing State v. Fry, 125

Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 106, and State v. Hand, 107 Ohio

St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 84. The state does not need to establish that

the defendant’s sole purpose was to prevent the witness from testifying; it need only

show that the defendant was motivated in part by a desire to prevent the witness from

appearing in court. Hand at ¶ 90.

{¶ 90} A witness is considered “unavailable” if she “is absent from the hearing

* * *” and the state “has been unable to procure the [witness’s] attendance * * * by

process or other reasonable means.” Evid.R. 804(A)(5). This involves a showing that the

state made reasonable, good faith efforts to secure the witness’s attendance at trial. State

v. Keairns, 9 Ohio St.3d 228, 230, 460 N.E.2d 245 (1984). The state’s efforts should be

“diligent,” but if an investigator’s attempts to locate a subpoenaed witness fail, the

witness can be considered unavailable. State v. Arnold, 189 Ohio App.3d 507, 2010-

Ohio-5379, 939 N.E.2d 218, ¶ 67 (2d Dist.). The state has the burden of proving both

that the witness is unavailable and that it made reasonable, good faith efforts to secure the

witness’s attendance. Keairns at 232; Ohio v. Roberts, 448 U.S. 56, 74-75, 100 S.Ct.

2531, 65 L.Ed.2d 597 (1980), abrogated in part on other grounds by Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

37.
 {¶ 91} Given that a ruling on the admission of hearsay under Evid.R. 804(B)(6)

implicates a defendant’s Confrontation Clause rights, we review the issue de novo. State

v. Harper, 2017-Ohio-1395, 89 N.E.3d 141, ¶ 15 (6th Dist.), citing McKelton at ¶ 97.

{¶ 92} Here, Parker does not argue that the state failed to prove that his

wrongdoing resulted in J.P.’s unavailability for trial on October 9 or that he had the

purpose of preventing J.P. from coming to trial. Instead, he argues that the state did not

make a sufficient showing that J.P. was unavailable on October 9, 2018 (as opposed to

earlier trial dates). Parker points out that the only effort the state made to secure J.P.’s

attendance at the October 9 trial was Schaller’s failed attempt to serve J.P. with a

subpoena at 11:30 p.m. on October 3—six days before the trial—when he learned that

J.P. had not been to her mother’s home in three days because she was avoiding the police.

Parker claims that the state did nothing from October 4 to October 9 to ensure that J.P.

would be available to testify against him. In response, the state points to all of its efforts

prior to October 4 and to J.P.’s history of failing to come to court and avoiding

communication with prosecutors and Schaller.

{¶ 93} Parker likens this case to State v. Wolderufael, 10th Dist. Franklin No.

02AP-1148, 2003-Ohio-3817, in which the Tenth District found that the state failed to

prove that its witness—who was attending college out of state and could not be served

with a subpoena—was unavailable for trial because the state did not present evidence that

it took any steps to secure the witness’s attendance at trial. Id. at ¶ 29-30 (“Despite the

absence of the subpoena power, the state could have made reasonable efforts to secure

38.
[the witness’s] presence at trial. At the very least, the state could have informed [the

witness] of the date and location of the trial and asked that he attend. As there is no

evidence that the state took this step or any other step to seek [the witness’s] presence, he

was not unavailable for purposes of the Confrontation Clause or Evid.R. 804.”). We

disagree with this comparison.

{¶ 94} In this case, the state went to great effort to get J.P. to testify at Parker’s

trial. Schaller left messages for her at every phone number he had for her, spoke to her

relatives, and visited her home to try to reach her. J.P. was actually served with two

subpoenas and failed to appear for those court dates. She also failed to attend a meeting

with the prosecutor to which she had been subpoenaed. Despite being ordered to appear,

J.P. made it clear to the court, the prosecutors, and Schaller that she did not want to be

involved with the case, did not intend to cooperate with the prosecution of the case, and

would not come to court. Additionally, when Schaller spoke to J.P.’s mother on

October 3, he learned that J.P. was avoiding the police so that she could not be served

with another subpoena. We have found that similar efforts by the police to find a

reluctant witness were sufficient to meet the state’s burden under Evid.R. 804. Harper,

2017-Ohio-1395, 89 N.E.3d 141, at ¶ 24-26.

{¶ 95} In short, this is not a case, like Wolderufael, where the state did nothing to

get its witness to trial. Although the state could have conceivably done more after

October 3 to try to get J.P. to come to court for the October 9 jury trial, all evidence

indicates that the state’s efforts would have been futile, and “[t]he law does not require

39.
the doing of a futile act.” Roberts, 448 U.S. at 74, 100 S.Ct. 2531, 65 L.Ed.2d 597.

Moreover, there is no requirement that the state make every possible effort before the

court can declare a witness unavailable under Evid.R. 804; the state is only required to

make reasonable efforts. Evid.R. 804(A)(5); Keairns, 9 Ohio St.3d at 230, 460 N.E.2d

245.

{¶ 96} Because the state proved by a preponderance of the evidence that J.P. was

unavailable for trial, the trial court properly granted the state’s motion for forfeiture by

wrongdoing. Parker’s second assignment of error is not well-taken.

C. The trial court did not abuse its discretion by
denying Parker’s motion for a mistrial.

{¶ 97} In his final assignment of error, Parker argues that the trial court erred by

denying his motion for a mistrial based on a juror’s comment that Parker “must be in

custody * * *.” He claims that it was error for the court to individually voir dire the

jurors before hearing counsel’s arguments for a mistrial and that by doing so, the court

“placed an unnecessary focus on the fact that [Parker] may have been in custody at the

time of the trial” and gave the jurors curative instructions without defense counsel’s

input. The state responds that the trial court was within its discretion to deny the mistrial

because a single comment regarding Parker’s custody status did not deprive Parker of his

right to a fair trial.

{¶ 98} Granting or denying a mistrial rests in the sound discretion of the trial court

because the trial judge is in the best position to determine if the situation in the courtroom

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warrants a mistrial. State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900 (1988).

Accordingly, we review the trial court’s decision for an abuse of discretion. State v.

Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). Abuse of discretion means that

the trial court’s decision was unreasonable, arbitrary, or unconscionable. State ex rel.

Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996).

{¶ 99} A mistrial should not be ordered “‘merely because some error or

irregularity has intervened * * *.’” Treesh at 480, quoting State v. Reynolds, 49 Ohio

App.3d 27, 33, 550 N.E.2d 490 (2d Dist.1988). Instead, a mistrial is necessary only

when a fair trial is no longer possible. Id., citing State v. Franklin, 62 Ohio St.3d 118,

127, 580 N.E.2d 1 (1991).

{¶ 100} Here, we agree with the state that the passing comment made by a juror on

her way out of the courthouse did not warrant a mistrial. The comment about Parker

being in custody was brief, and the conversation was quickly stopped by another juror.

Contrary to Parker’s belief, there is no indication in the record that the court’s individual

voir dire of the jurors to determine what they heard in the elevator and whether it affected

their ability to remain impartial “placed an unnecessary focus on the fact that [Parker]

may have been in custody at the time of the trial.” Even if it did, each juror said that they

could remain impartial, would continue to hold the state to its burden of proof, and

understood that whether or not Parker was in custody had no bearing on the

determination the jury was asked to make in this case. There is nothing here that

demonstrates that Parker could not receive a fair trial after someone commented in the

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elevator as the jurors were leaving for the day that “‘I think the defendant must be in

custody then because he comes from the back.’”

{¶ 101} In a somewhat similar case, State v. Conley, 5th Dist. Richland No. 2009-

CA-19, 2009-Ohio-2903, ¶ 8, a witness mentioned that the defendant was in custody at

the time his bedroom was searched. The trial court overruled the defendant’s motion for

a mistrial, finding that it was reasonable for the jury to presume that the defendant was in

custody on the underlying case. Id. The court also gave the jury a curative instruction

informing them that they could not consider the fact that the defendant may or may not

have been in custody as evidence in the case. Id. at ¶ 28-29. The Fifth District found that

the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial

because the witness’s passing comment, when considered in light of the circumstances in

which it was made and its possible effect on the jury, “was not so prejudicial that an

impartial verdict could not be reached.” Id. at ¶ 28.

{¶ 102} The same is the case here. Given the nature of the comment and the

evidence of Parker’s custody status that was necessarily introduced later in the trial, it is

highly unlikely that the comment in the elevator prejudiced Parker. Each of the jurors

who recalled hearing the comments said that what they heard would not affect their

ability to be fair and impartial in the case. The trial judge also instructed each juror who

recalled the comments to disregard them because whether or not Parker was in custody

had no bearing on the juror’s determination of Parker’s guilt or innocence. Jurors are

presumed to follow the court’s instructions, including instructions to disregard things

42.
they have heard. See Treesh, 90 Ohio St.3d at 480, 739 N.E.2d 749, citing State v. Loza,

71 Ohio St.3d 61, 75, 641 N.E.2d 1082 (1994), and State v. Zuern, 32 Ohio St.3d 56, 61,

512 N.E.2d 585 (1987). And a judge’s admonition to the jury that it cannot consider the

fact that a defendant is in custody precludes the defendant from establishing that a

comment about his custody status prejudiced him. See State v. Norvett, 10th Dist.

Franklin Nos. 11AP-215 and 11AP-223, 2011-Ohio-6563, ¶ 29 (Trial judge’s statement

to jurors that “‘I think some of you may have come to the conclusion that the Defendants

are in custody’” was not prejudicial because the judge also admonished the jury that it

could not consider the fact that the defendants were in custody.).

{¶ 103} Further, not long after the individual voir dire, the state introduced

recordings of phone calls Parker made to J.P. from the jail. The calls were authenticated

by a Lucas County sheriff’s deputy who was responsible for monitoring the jail’s

telephone system. The deputy specifically testified that “[a]ny time someone is in our

custody their [sic] is a process through which they are able to use the telephone. Those

calls are recorded and it’s our ordinary business to monitor calls [and] if they’re

requested by the prosecutors, detectives, we’re the ones who would make copy [sic] of

those phone calls for everyone.” She also explained that she had run reports related to

Parker, and the calls played for the jury were calls that had come from those reports.

Although the state was careful not to refer to the calls as “jail calls” or draw any

unnecessary attention to Parker’s custody status, it was impossible to completely avoid

bringing Parker’s custody status into the trial.

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 {¶ 104} Because the jurors were inevitably going to learn that Parker had been in

jail, we do not believe that the trial court abused its discretion by concluding that a juror’s

passing comment about Parker being in custody did not prejudice Parker’s substantial

rights or deprive him of the possibility of having a fair trial. Parker’s third assignment of

error is not well-taken.

III. Conclusion

{¶ 105} Based on the foregoing, the October 31, 2018 judgment of the Lucas

County Court of Common Pleas is affirmed. Parker 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.

Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, 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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