State v. Yates

[Cite as State v. Yates, 2022-Ohio-76.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109821
v. :

ERIC YATES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 13, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-636403-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Kristin M. Karkutt, Nora Bryan, and Sean Kilbane, Assistant
Prosecuting Attorneys, for appellee.

Edward F. Borkowski, Jr., for appellant.

ANITA LASTER MAYS, J.:

I. Background and Facts

Defendant-appellant Eric Yates (“Yates”) appeals his jury convictions

for multiple charges arising from the murder of adult male victim Sherell Mattis

(“Mattis”) and the assault of a police officer. We affirm.
 Yates was indicted on the following twelve counts:

Count 1, aggravated murder, an unclassified felony, in violation of
R.C. 2903.01(A) with one-year, three-year, and fifty-four month
firearm specifications;

Count 2, murder, an unclassified felony, in violation of R.C. 2903.02(B)
with one-year, three-year, and fifty-four month firearm specifications;

Count 3, felonious assault, a felony of the second-degree, in violation of
R.C. 2903.11(A)(1) with one-year, three-year, and fifty-four month
firearm specifications, a notice of prior conviction, and a repeat violent
offender specification;

Count 4, attempted murder, a felony of the first-degree, in violation of
R.C. 2903.02(A)/2923.02 with one-year, three-year, and fifty-four
month firearm specifications, a notice of prior conviction, and a repeat
violent offender specification;

Count 5, felonious assault, a felony of the second-degree, in violation of
R.C. 2903.11(A)(2) with one-year, three-year, and fifty-four month
firearm specifications, a notice of prior conviction, and a repeat violent
offender specification;

Count 6, discharge of firearm on prohibited premises, a felony of the
first-degree, in violation of R.C. 2923.162(A)(3) with one-year, three-
year, and fifty-four month firearm specifications;

Counts 7, 8, and 9 were each counts of felonious assault, felonies of the
second-degree, in violation of R.C. 2903.11(A)(2), each with one-year,
three-year, and fifty-four month firearm specifications, a notice of prior
conviction, and a repeat violent offender specification;

Count 10, assault, a felony of the fourth-degree, in violation of
R.C. 2903.13(A);

Count 11, having weapons while under disability, a felony of the third-
degree, in violation of R.C. 2923.13(A)(2); and

Count 12, having weapons while under disability, a felony of the third-
degree, in violation of R.C. 2923.13(A)(3).

On the afternoon of January 10, 2019, then 27-year-old Mattis and

his 14-year-old male cousin D.W. were standing outside of the Glenville Grocery
store and gas station located at the intersection of East 105 Street and Somerset

Avenue in Cleveland, Ohio. The establishment was usually busy with customers and

individuals hanging around outside of the store. D.W. was selling marijuana as he

did several times a week.

Yates formerly lived next door to Mattis and D.W. for several years

and knew them and their families well. According to witnesses and surveillance

videos, Yates arrived at the store about 5:00 p.m., made a purchase, and departed

about 15 minutes later without interaction with Mattis and D.W. Yates returned

shortly thereafter in a white GMC Yukon SUV accompanied by his wife.

A conversation between Yates, D.W., and Mattis escalated into an

argument based on Yates’s belief that D.W. owed him money. Yates departed about

thirteen minutes later, D.W. went to the side of the building to use the restroom, and

heard shots. D.W. testified that he looked for Mattis inside the store, checked

outside, and located Mattis on the other side of the parking lot. Mattis was holding

his cell phone, and D.W. saw that he had attempted to call 911. D.W. redialed 911 to

report the shooting.

Yates allegedly drove past the area as EMS and police arrived and

yelled to D.W., “ya’ll have people shooting at me.” (Tr. 285.) Mattis was transported

to University Hospitals but died after surgery. The cause of death was listed as a

gunshot wound to the hip.

Based on evidence obtained from witnesses and surveillance videos,

police identified Yates as a person of interest. Yates contacted Cleveland Police
Officer Delonzo Goshen (“Officer Goshen”), a former acquaintance, via social media

and asked Officer Goshen to serve as a liaison for Yates to make a statement. On

January 13, 2019, Yates met with Officer Goshen and Homicide Sergeant Aaron

Reese (“Sergeant Reese”). Yates admitted that he was present at the store on the

day of the shooting, that he interacted with D.W. and Mattis that day, and that he

sells marijuana. During the meeting, Yates became agitated and threw hot coffee at

Sergeant Reese. He was arrested and charged with assaulting a peace officer and

the counts herein.

On January 28, 2019, Yates pleaded not guilty, defense counsel was

assigned, and a $2 million bond set. Original counsel withdrew and new counsel

was assigned. Prior to commencement of the jury trial on March 10, 2020, the state

moved to dismiss Count 6, discharge of a firearm over prohibited premises and

Count 12, having a weapon while under disability. Count 11, having a weapon while

under disability and the 54-month firearm specifications were tried to the bench.

The counts were subsequently renumbered. Three of the felonious

assault counts cited as victims H.B., L.K., and Y.A.M. Bystander H.B. was sitting in

her automobile at the time of the shooting. Her car was damaged, but she was not

injured. Store employees L.K. and Y.A.M. who were inside of the building were also

named as victims in the indictments.

At the close of the state’s case, Yates’s Crim.R. 29 motion was denied.

The defense rested upon the submission of one exhibit, and the trial court denied

the renewed Crim.R. 29 motion.
 On March 16, 2020, Yates was convicted of all counts except for

renumbered Counts 7 and 8 for felonious assault of the store employees. He was

also found guilty of the 54-month firearm specifications and having a weapon while

under disability. On June 18, 2020, Counts 1, 2, and 3 merged, and the state elected

to proceed on Count 1, aggravated murder, R.C. 2903.01(A). Counts 4 and 5 merged,

and the state proceeded on Count 4 attempted murder.

On June 18, 2020, Yates was sentenced to a total of 53 years with

parole eligibility after 30 years with 523 days of jail-time credit. On June 23, 2020,

Yates was resentenced on Counts 4 and 10.

On a former day the jury returned verdicts on nine counts and the court
returned a guilty verdict on Count 11 as well as several firearm
specifications, repeat violent offender specifications and notice of prior
conviction specifications. The defendant waived his right to a jury trial
on all the above. The state of Ohio dismissed Counts 6 and 12 prior to
trial. The verdict forms reflect that the counts were renumbered
beginning with Count 6 (Count 7 in the indictment). Due to some
confusion the court scheduled a supplemental sentencing hearing.
Upon hearing from the defendant and his counsel and from the state of
Ohio, the court issued a renewed sentence on Count 4 and Count 10.
Counts are to run concurrent to one another and concurrent to Count 1
as opposed to consecutive, reducing defendant’s sentence to life with
parole eligibility after 39 years, which was life in prison with parole
eligibility after 30 years consecutive to 54-month gun specifications on
Count 1 and Count 4. Gun specifications run consecutive to each other
and consecutive to Count 1. Defendant’s sentence is — life with parole
eligibility after 39 years. Defendant to receive 528 days jail credit as of
[June 23, 2020].

Journal entry No. 113821553, p. 1 (July 9, 2020).

On October 20, 2020, the trial court issued a nunc pro tunc entry to

“reflect Count 10: 18 months in prison, (not 36 months as previously journalized.)”
The jail-time credit is listed as “523” days and the “total sentence is 53 years.”

Journal entry No. 114834548, p. 1 (Oct. 21, 2020).

Yates appeals.

II. Assignments of Error

Yates assigns the following errors:

I. Appellant’s convictions were unsupported by sufficient evidence.

II. Appellant’s convictions were against the manifest weight of the
evidence.

III. The trial court erred by permitting the introduction of
inadmissible hearsay evidence.

IV. Irregularities in the jury process deprived appellant of a fair trial.

V. Appellant’s counsel was ineffective.

III. Discussion

A. Sufficiency of the Evidence

The question of whether the evidence is sufficient as a matter of law

to support a conviction involves a determination of whether the state has met its

burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-

Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541

(1997). An appellate court does not weigh the evidence but determines “‘whether,

after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818

N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.
 Yates argues that the evidence is insufficient to show that Yates was

the shooter. Yates argues there is no physical evidence, no eyewitnesses, and no

specific identification of Yates as the shooter by the forensic video expert. Yates adds

that the video testimony is not reliable because it was dark outside at the time.

It is undisputed that D.W., Yates, and Mattis, who is also known as

“Rell,” were well-acquainted. D.W. said that Yates has been “close to [his] family”

and that he has known him his “whole life.” D.W. testified about the events that

transpired at the gas station, the argument with Yates, and described Yates’s attire

at the gas station. D.W. also testified to portions of the video evidence.

The videos show Yates had pulled into the gas station and exited the

white Yukon at 5:34 p.m. Yates was wearing what appeared to be a white shirt tail

extending from the rear of Yates’s black hoodie, but upon closer inspection it was a

strip of underwear observable due to the sagging back waistband of the pants. The

videos captured the argument between Yates, D.W., and Mattis, and at 5:40 p.m.,

Yates had entered the Yukon, had exited the gas station, and as D.W. testified,

turned left onto Somerset Avenue. D.W. and witnesses corroborated Yates’s attire.

The video expert explained that the video evidence gleaned from

multiple cameras reflects that the shooter was wearing a “dark top with a white logo,

dark pants with a white logo, dark shoes, and a skullie [knit cap] with a gray band.”

(Tr. 418.) “Those logos are lighter color and appear on the left-hand side of the top

and also the left leg of the pants. They appear to be the Nike logo.” Id. “At the back

of his shoes, at the very back and to the sides, there is a lighter, a white area that can
be seen on those shoes.” (Tr. 419.) “[A]t the top on his jacket, on the left side is the

white logo I was describing. On his pants is also the white logo that is seen there.”

Id. The expert also explained the video portions that depict Yates’s turn onto

Somerset Avenue when he initially departed the gas station and that the shooter

emerges from the woods from the direction of Somerset Avenue in “roughly two

minutes.” (Tr. 420.)

This court’s review of the videos reveals Yates had departed the

parking lot and had turned down Somerset Avenue after arguing with D.W. and

Mattis. Shortly thereafter, an individual dressed in the clothing described as being

worn by Yates emerged from the woods behind the station from the direction of

Somerset Avenue. The shooter emerged from the woods, raised his left hand, fired

several shots, placed the gun in his left pocket, and exited towards Somerset Avenue.

According to the record Yates is left-handed.

Witness H.B. drove into the gas station at the time of the shooting.

H.B.’s car had been hit by gunfire, but she was not injured. H.B. described the

gunman and confirmed that he emerged from the woods. Police located shell

casings in the area.

Thus, there is witness testimony, video, and physical evidence such as

the bullet casings in the area where the shooter was observed standing when firing.

Although there were no eyewitnesses who were able to identify Yates as the shooter,

“multiple surveillance cameras from different locations and angles captured” Yates’s

movements. State v. George, 8th Dist. Cuyahoga No. 103708, 2016-Ohio-7886,
¶ 26. The video expert testified that numerous identifying elements of the videos

were consistent with the testimony that Yates was the shooter.

We also add regarding the asserted lack of direct evidence that

[u]nlike direct evidence in which a witness testifies about a matter
within the witness’s personal knowledge such that the trier of fact is not
required to draw an inference from the evidence to the proposition that
it is offered to establish, circumstantial evidence requires the drawing
of inferences that are reasonably permitted by the evidence.

State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13.

“Circumstantial evidence is the proof of facts by direct evidence from

which the trier of fact may infer or derive by reasoning other facts in accordance with

the common experience of mankind.” State v. Hartman, 8th Dist. Cuyahoga

No. 90284, 2008-Ohio-3683, ¶ 37. The differences between circumstantial and

direct evidence are irrelevant to the probative value because each carries the same

weight. Cassano at ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d

749 (2001). “The Ohio Supreme Court has ‘long held that circumstantial evidence

is sufficient to sustain a conviction if that evidence would convince the average mind

of the defendant’s guilt beyond a reasonable doubt.’” Id., citing State v. Heinish, 50

Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990).

Viewed in a light most favorable to the prosecution, we find that the

evidence was sufficient to support the convictions in this case as a matter of law. The

first assigned error is overruled.
 B. Manifest Weight of the Evidence

Yates also claims that his conviction is against the manifest weight of

the evidence. “A manifest weight challenge attacks the credibility of the evidence

presented and questions whether the state met its burden of persuasion at trial.”

State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541; State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13.

We sit “as a ‘thirteenth juror.’” Thompkins at 387, quoting Tibbs v.

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

In conducting this review, we must examine the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of
the witnesses, and determine whether the jury “‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, at ¶ 81.

Although we review credibility when considering the manifest weight

of the evidence, we are cognizant that determinations regarding the credibility of

witnesses and the weight of the testimony are primarily for the trier of fact. An

appellate court may not substitute its view for that of the jury unless it finds that the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25; State v. Thompkins, 78 Ohio St.3d

380, 678 N.E.2d 541 (1997); State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-
Ohio-2037. The trier of fact is best able “‘to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.’” State v. Scott, 8th Dist. Cuyahoga Nos.

106451 and 106474, 2018-Ohio-3791, ¶ 20, quoting Wilson at ¶ 24.

The evidence cited in our analysis of sufficiency also upholds a finding

that the verdict is not against the manifest weight of the evidence. The video

evidence, witness testimony, and physical evidence support the jury’s verdict in this

case. We do not find this to be the “‘exceptional case in which the evidence weighs

heavily against conviction.’” Thompkins 387, quoting Martin, 20 Ohio App.3d at

175, 485 N.E.2d 717.

The second assignment of error also fails.

C. Hearsay Evidence

Yates offers that the trial court allowed inadmissible hearsay

testimony by Mattis’s mother who testified that D.W. called her the night of the

shooting and said that “E shot ‘Rell.” (Tr. 229.) The state counters that the

statement is admissible as an excited utterance and a present sense impression

exception to the hearsay rule. We agree.

The objection was not posed on direct examination. Thus, we review

for plain error, and Yates must show that “but for the error, the outcome of the trial

would clearly have been otherwise.” State v. Moreland, 50 Ohio St.3d 58, 62, 552

N.E.2d 894 (1990).
 “Evid.R. 801(C) defines ‘hearsay’ as ‘a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.’” State v. Thomas, 8th Dist. Cuyahoga

No. 106194, 2018-Ohio-2841, ¶ 27, quoting Evid.R. 801(C). “Evid.R. 802 generally

deems hearsay inadmissible unless the evidence falls under a specific exception to

the hearsay prohibition. State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-

5487, 71 N.E.3d 180, ¶ 87.” Id.

D.W.’s statement qualifies as hearsay under the rule. Thus, we

examine the proffered exceptions. “An excited utterance is a ‘statement relating to

a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.’ Evid.R. 803(2).” State v. Bunch, 8th

Dist. Cuyahoga No. 92863, 2010-Ohio-515, ¶ 15. “A present sense impression is a

‘statement describing or explaining an event or condition made while the declarant

was perceiving the event or condition, or immediately thereafter unless

circumstances indicate lack of trustworthiness.’ Evid.R. 803(1).” Id.

We have previously recognized:

Ohio case law shows that, often, statements made by victims of crimes
may be introduced as present sense impressions or excited utterances
if they were made while the victim “was in fear and under the stress of
a startling event * * * and were not the product of reflective thought.”
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,
at ¶94. See also State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,
836 N.E.2d 1173.

Evid.R. 803(1) and (2) also contemplate that statements made by
witnesses who personally observe startling events may be admissible
 even though they are introduced as hearsay. See, e.g., State v. Smith,
80 Ohio St.3d 89, 107-08, 684 N.E.2d 668 (1997).

Bunch at ¶ 17-18.

D.W. testified that he found Mattis laying by a pole. “[H]e was like on

the phone with the police, but he wasn’t saying nothing.” (Tr. 283.) “He was trying

to [speak], but he couldn’t really get his words out.” (Tr. 284.) D.W. called 911,

Mattis’s mother who was also D.W.’s aunt, and he called the mother of Mattis’s child.

Mattis’s mother testified that she was watching television when D.W.

called her and said “We [are] on 105. He said, E shot ‘Rell.” (Tr. 229.)

Witness: He was like nervous and trying to get ‘Rell — like he said
‘Rell was in his arms and ‘Rell was — eyes was going in the
back of his head.

State: And that’s being described to you by [D.W.]?

Witness: Yes.

And then I said — [D.W.] tell ‘Rell don’t leave me. And then
I said, “Tell him I love him,” and then the phone went dead.

(Tr. 229-230.)

We find that the state’s argument has merit and the cited exceptions

apply in this case. The third assigned error is overruled.

D. Irregularities in the jury process

Yates’s fourth assigned error complains of irregularities in the jury

process. Yates states that the parties learned during voir dire that a prospective juror

was personally acquainted with the judge and that they participate in civic
organizations and hold fundraisers to raise money for children’s organizations. The

trial court inquired:

Court: Okay. And we have a meeting Wednesday night, right?

Juror: Yes.

Court: And on Sunday?

Juror: Yes.

Court: Most of the time when we see each other, it’s a clam bake,
work around the cabin, right?

Juror: Yes.

Court: We don’t discuss law, do we?

Juror: No.

Court: I don’t think I’ve ever discussed law at any of the meetings.

Juror: No. For quite some time, I didn’t realize what your
profession was, years ago, a long time.

Court: Have I — is there anything about knowing me that would
affect your answer to any questions that you are called
upon the decide with your follow jurors?

Juror: No.

(Tr. 132-133.) During questions by the state and defense, the juror confirmed that

the juror would not be swayed by the acquaintance or the fact that the juror’s brother

served as a police officer. The state and defense passed for cause.

On March 16, 2020, before the jury instructions were given, the bailiff

delivered a letter to the trial court authored by the juror. The trial court read the

letter for the record. The juror asked to be dismissed due to work and family

obligations. “I know from my past [jury] service that this morning you will dismiss
the alternates. Can you let someone else get an opportunity to deliberate and I will

take their spot and get dismissed?” (Tr. 696.) The letter alludes to the children

being home from school and the grandparents’ unavailability as caretakers because

the world “being turned upside down” as a result of Covid-19. Id.

The state argued that the juror should remain. The defense supported

dismissal and expressed concern that the juror “may rush to get a verdict and not

take his time and give the Defendant the type of deliberation he’s entitled to.”

(Tr. 698.) The trial court decided that the juror should remain. “I am not going to

excuse him. Like you said, the other 11 jurors are all in the same spot he is in terms

of it being a difficult time for all of us.” (Tr. 700.) The trial court stated that it would

consider how to inform the juror the request has been denied. The proceedings

continued, and jury deliberations ensued without further inquiry.

Yates also cites a discussion on the record conducted March 12, 2020,

to support the pandemic concerns. At that time the trial court informed the jury that

the trial would continue, and the courts would remain open unless the trial court

received contrary directions.

The case was submitted to the jury at approximately 2:27 p.m., the

jury had requested to view the videos at 4:02 p.m., and delivered a verdict at 7:35

p.m. As Yates points out, the jury heard 15 witnesses and viewed a number of

exhibits including the videos.

Yates is correct that “[t]he length of jury deliberations is generally not

relevant, and a verdict is presumed valid.” McGugan v. Olszewski, 8th Dist.
Cuyahoga No. 109099, 2020-Ohio-4992, ¶ 13, citing D.E. Barnes, Inc. v.

Schwemlein, 4th Dist. Ross No. 872, 1982 Ohio App. LEXIS 14077 (June 9, 1982).

Yates has not demonstrated that he was prejudiced.

The fourth assigned error lacks merit.

E. Ineffective assistance of counsel

To substantiate a claim of ineffective assistance of counsel, Yates

must show that counsel’s performance was so deficient that he was prejudiced and

denied a fair trial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911

N.E.2d 242, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Yates must also show that there is a reasonable probability that,

but for counsel’s errors, the result of the trial would have been different. State v.

Dues, 2014-Ohio-5276, 24 N.E.3d 751, ¶ 57 (8th Dist.), citing Strickland.

Judicial scrutiny of defense counsel’s performance must be highly
deferential. Strickland at 689. In Ohio, there is a presumption that a
properly licensed attorney is competent. State v. Calhoun, 86 Ohio
St.3d 279, 714 N.E.2d 905 (1999). The defendant must overcome the
presumption that, under the circumstances, the challenged action
“‘might be considered sound trial strategy.’” Strickland at 689, quoting
Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
We consider whether the actions by counsel were “outside the wide
range” of behaviors demonstrating “professionally competent
assistance.” Strickland at 690.

Yates states that counsel was ineffective for failing to: “(1) move for a

dismissal because of a violation of [Yates’s] speedy trial rights; (2) object to the

hearsay testimony as described in the third assigned error; and 3) readdress the

issue with the juror argued in the fourth assigned error.”
 We have already determined that Yates’s claims under assigned

errors three and four lack merit and thus do not constitute error. “[W]here it is

found that the trial court did not err, cumulative error is simply inapplicable.”

State v. Singleton, 8th Dist. Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 66. Thus, we

address the speedy trial issue.

Yates claims that his trial counsel was ineffective because counsel

failed to file a motion to dismiss for want of speedy trial.

Generally, the failure to raise the violation of speedy trial rights in the
trial court constitutes a waiver of the defense on appeal. However, a
defendant may raise a speedy trial claim in the context of a claim of
ineffective assistance of counsel. Cleveland v. White, 8th Dist.
Cuyahoga No. 99375, 2013-Ohio-5423, ¶ 7. And in order to
demonstrate that counsel provided ineffective assistance of counsel by
failing to file a motion to dismiss for speedy trial violations, the
defendant must show that the motion would have been successful and
the case would likely have been dismissed. Id. “Counsel cannot be
[ineffective] for failing to file a fruitless motion.” State v. Cottrell, 4th
Dist. Ross Nos. 11CA3241 and 11CA3242, 2012-Ohio-4583, ¶ 8.

State v. Mango, 8th Dist. Cuyahoga No. 103146, 2016-Ohio-2935, ¶ 18.

Under Ohio’s speedy trial statutes, a trial court shall discharge a

defendant if the trial court and prosecution fail to bring the defendant to trial within

the time required by R.C. 2945.71 and 2945.72. See R.C. 2945.73(B).

The Ohio Supreme Court has “imposed upon the prosecution and the

trial courts the mandatory duty of complying with the speedy trial statutes.” State v.

Singer, 50 Ohio St.2d 103, 105, 362 N.E.2d 1216 (1977). Thus, courts must strictly

construe the speedy trial statutes against the state. Brecksville v. Cook, 75 Ohio
St.3d 53, 57, 661 N.E.2d 706 (1996), citing State v. Madden, 10th Dist. Franklin

No. 04AP-1228, 2005-Ohio-4281, ¶ 25.

Once the statutory time limit has expired, the defendant has

established a prima facie case for dismissal. State v. Howard, 79 Ohio App.3d 705,

707, 607 N.E.2d 1121 (8th Dist.1992). At that point, the burden shifts to the state to

demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. State v.

Geraldo, 13 Ohio App.3d 27, 28, 468 N.E.2d 328 (6th Dist.1983). State v. Greene,

8th Dist. Cuyahoga No. 91104, 2009-Ohio-850, ¶ 24.

The proper methodology “in speedy trial cases is 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.” In re F. S., 10th Dist. Franklin No. 11AP-244,

2011-Ohio-6135, ¶ 7, citing State v. Gonzalez, 10th Dist. Franklin No. 08AP-716,

2009-Ohio-3236, ¶ 9.

R.C. 2945.72 provides the tolling provisions for speedy trial

computation. “However * * * those extensions must be strictly construed against

the state.” State v. Williams, 8th Dist. Cuyahoga No. 107748, 2020-Ohio-378, ¶ 11,

citing State v. Sanders, 8th Dist. Cuyahoga No. 107253, 2019-Ohio-1524.

R.C. 2945.72 provides in relevant part:

The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only
by the following:

***

(C) Any period of delay necessitated by the accused’s lack of counsel,
provided that such delay is not occasioned by any lack of diligence in
 providing counsel to an indigent accused upon his request as required
by law;

(D) Any period of delay occasioned by the neglect or improper act of
the accused;

(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the
accused;

***

(H) The period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted other
than upon the accused’s own motion * * *.

R.C. 2945.72(C), (D), (E), and (H).

According to the record, Yates was arrested on January 13, 2019. He

argues that his speedy trial time expired on April 13, 2019, unless extended.

According to Yates’s calculations, he was incarcerated for 421 days and only 186

were tolled. Yates argues that a number of continuances do not provide a reason for

the continuance nor do the entries indicate who made the request. Yates relies on

In re D.S., 8th Dist. Cuyahoga No. 97757, 2012-Ohio-2213, for the premise that an

entry that does not indicate a reason for continuance or party to be charged is not

chargeable to the defendant. Id. at ¶ 19, citing State v. Gabel, 8th Dist. Cuyahoga

No. 69607, 1996 Ohio App. LEXIS 4771, at *8 (Oct. 31, 1996).

The state concedes that Yates has made a prima facie case that he was

incarcerated for 421 days, which exceeds the statutory 270-day limit. However, the

state claims that 349 days tolled the speedy trial time. Thus, “seventy-two (72) days

counted towards the Defendant’s statutory speedy trial time. Seventy-two (72)
multiplied by three (3) is two hundred sixteen (216) speedy trial days, which ran

from the date of the arrest until trial commenced.” Appellee brief, p. 22.

Our de novo review begins with the January 13, 2019 date of arrest to

the March 9, 2020 day of trial. State v. Garner, 8th Dist. Cuyahoga No. 102816,

2016-Ohio-2623, ¶ 20. We first determine “whether the number of days not tolled

under exceeds the time limits * * * of R.C. 2945.71.” Id. at ¶ 19. The date of arrest is

not included in a speedy trial calculation. Id. at ¶ 20.

Beginning with January 14, 2019, the day after arrest to January 28,

2019, the date of arraignment, 15 days (14th to 28th included) accrued for speedy

trial purposes. On January 29, 2019, the defense served discovery on the state and

the state responded on February 8, 2019. “A defendant’s demand for discovery tolls

the speedy trial time until the state responds to the discovery or for a reasonable

time, whichever is sooner.” Garner at ¶ 21, citing State v. Shabazz, 8th Dist.

Cuyahoga No. 95021, 2011-Ohio-2260, ¶ 26, 31; R.C. 2945.72(E). Thus, those days

were tolled for speedy trial purposes.

Also on February 8, 2019, the state served discovery on the defense.

The state argues that the response was never received. However, the record reflects

that Yates filed a response on August 3, 2019. Thirty days is deemed a “reasonable”

time to respond, and the period of tolling begins after that point. Id. at ¶ 29. The

30-day period in favor of the defense for speedy trial purposes began on February 9,

2019, and ended on March 10, 2019. The tolled period covered March 11, 2019, to

August 3, 2019, which equals 146 days.
 On July 10, 2019, the parties appeared for trial. Defense counsel and

the trial court were unavailable until October 2, 2019. The trial was scheduled for

October 2, 2019. This extended the tolling period from August 4, 2019, to October 2,

2019, which increased the 146 days by an additional 60 days to 206 days.

As of October 2, 2019, a total of 45 days had accrued for speedy trial

purposes. The next event in Yates’s favor for speedy trial purposes is a 19-day period

from October 3, 2019, when the trial was continued because the prosecutor was in

trial, to October 21, 2019. Subsequent continuances were at the request of the

defense or jointly by the defense and trial court. The next and final period in Yates’s

favor is from January 8, 2020, to January 29, 2020, when trial was continued at the

state’s request, a total of 22 days.1

The total days for speedy trial purposes is 86 days, which multiplied

by three, totals 258 speedy trial days. Therefore, the 270-day speedy trial limit has

not been reached.

We have already determined that the alleged hearsay and juror issues

lacked merit. “‘Counsel’s performance will not be deemed ineffective unless and

until the performance is proven to have fallen below an objective standard of

1 The state argues that the 19- and 22-day continuances that were granted at the
prosecutor’s request on October 3, 2019, and Jan 8, 2020, also tolled the speedy-trial
clock. “Whether these continuances were ‘reasonable and necessary’ is immaterial,
however, because it would not affect our conclusion that [appellant] was brought to trial
well within 270 days of his indictment as required by R.C. 2945.71(C)(2).” See
also [State v.] Crawford, [6th Dist. Lucas No. L-17-1297, 2019-Ohio-2660,] at ¶ 41, fn. 2.
State v. Crawford, 6th Dist. Lucas No. L-17-1296, 2019-Ohio-3123, ¶ 31, fn. 2.
reasonable representation and, in addition, prejudice arises from counsel’s

performance.’” State v. Dues, 2014-Ohio-5276, 24 N.E.3d 751, ¶ 57 (8th Dist.),

quoting State v. Iacona, 93 Ohio St.3d 83, 105, 752 N.E.2d 937 (2001). Thus, in

light of our finding that the assigned errors are unsubstantiated, we do not find that

counsel was ineffective.

The fifth assigned error also lacks merit.

IV. Conclusion

The trial court’s judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR