State v. Hart

[Cite as State v. Hart, 2022-Ohio-4550.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29252
:
v. : Trial Court Case No. 2019-CR-2749/1
:
BYRON HART : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 16th day of December, 2022.

...........

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

ANTHONY J. RICHARDSON, II, Atty. Reg. No. 0097200, P.O. Box 468, Perrysburg, Ohio
43552
Attorney for Defendant-Appellant

.............

DONOVAN, J.
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{¶ 1} Byron Hart was found guilty, following a jury trial, on the following counts:

Count 1, improperly discharging a firearm at or into a habitation, with a three-year firearm

specification; Count 2, aggravated possession of drugs (5 times bulk but < 50 times bulk);

Count 3, failure to comply with an order or signal of a police officer (serious physical

harm/substantial risk); Count 4, having weapons while under disability (prior offense of

violence); Count 5, having weapons while under disability (fugitive from justice); Count 6,

tampering with evidence (alter/destroy); Count 7, improper handling of a firearm in a

motor vehicle (loaded/no license); and Count 8, falsification (public official). Counts 1

and 2 were felonies of the second degree, Counts 3-6 were felonies of the third degree,

Count 7 was a felony of the fourth degree, and Count 8 was a misdemeanor of the first

degree. The court found that Counts 4 and 5 were subject to merger, and the State

elected to procced to sentencing on Count 5. The court imposed the following sentence:

on Count 1, “a definite sentence of eight (8) years with an indeterminate sentence of

twelve (12) years,” with a mandatory three additional years of incarceration on the firearm

specification; on Count 2, “a definite term of eight (8) mandatory years with an

indeterminate sentence of twelve (12) years”; on Counts 3, 5, and 6, 36 months each; on

Count 7, 18 months; and on Count 8, 180 days local jail time. The court ordered that the

prison terms for Count 1-7 were to be consecutively, for an aggregate term of 29.5 years

to 33.5 years. The court ordered Hart to pay court costs and restitution to the victim in

the amount of $4,507.43. With respect to Count 3, the court also imposed a mandatory

lifetime driver’s license suspension.

{¶ 2} Hart was indicted on the above charges on August 28, 2019. Attorney
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Christopher Fogt was appointed to represent him, and he pled not guilty. On September

11, 2019, Attorney Michael Pentecost entered a notice of appearance to represent Hart.

Defense counsel filed motions to continue the matter on September 11, September 25,

and October 2, 2019. The motions were granted. On October 3, 2019, Attorney Jay

Carter was appointed to represent Hart. He filed motions to continue on October 9,

2019, October 23, 2019, and October 31, 2019. On November 6, 2019, the court set

the matter for trial on March 9, 2020.

{¶ 3} On January 8, 2020, the court issued a detainer order and entry, noting that

Hart was confined at the Madison Correctional Institution. On February 13, 2020, Hart

was booked into the Montgomery County Jail. On February 28, 2020, counsel for Hart

filed a motion to dismiss, asserting that his right to a speedy trial had been violated. The

motion argued that Hart had been incarcerated in Montgomery C.P. No. 2018-CR-17541

on August 27, 2019, and that a warrant to convey had been filed on August 29, 2019, but

Hart was not conveyed to a state institution until November 7, 2019. Hart argued that

the State’s failure to convey him for 71 days indicated that “his speedy trial time should

be calculated pursuant to the triple-count provision in R.C. 2945.71(E).” He also argued

that the State’s failure to convey him to a state institution for 71 days for the offense

charged in Case No. 2018-CR-1754 was “equivalent to him being held solely on the

instant charge” and that the State therefore failed to bring him to trial within 90 days of his

arrest and confinement. The motion further asserted that Hart had “not agreed to, or

suggested” any of the continuances requested by counsel. He argued that he had been

1
The trial court’s docket in Case No. 2018-CR-1754 reflects that a capias was issued for
Hart for failure to appear, and he was arrested on August 18, 2019, in that case.
 -4-

denied R.C. 2941.401 relief by the State’s failure to convey him in a timely manner.

{¶ 4} The State opposed the motion to dismiss, arguing that although Hart had not

been conveyed immediately upon filing of the judgment entry in Case No. 2019-CR-1754,

he had nevertheless been earning credit toward his prison sentence in that separate,

unrelated case and had been held in custody on more than one matter. The State

asserted that Hart had already pled guilty in Case No. 2018-CR-1754 when the offenses

in this case were committed, that he was taken into custody in both cases on the same

date, and that he was held on separate bonds until the disposition of Case No. 2018-CR-

1754. Thus, the State argued that the fact that Hart was not immediately conveyed to

prison was irrelevant, “because one way or another, [he] was being held in custody on

more than one charge.”

{¶ 5} On March 9, 2020, the court overruled the motion to dismiss. The court

determined that the “triple count” provision did not apply when a defendant was being

held in custody pursuant to other charges, including serving a sentence of incarceration.

Thus, the court found that Hart’s speedy trial time should be computed on a “single day

basis” and that the State had 270 days to try him in this case. The court determined that

the 180-day speedy trial deadline of R.C. 2941.401 was not triggered until a defendant

sent written notice to the prosecuting attorney and appropriate court of his place of

imprisonment with a request for a final disposition of the matter; Hart had never done so.

The court noted that Ohio courts have held that, when a defendant is imprisoned on a

previous conviction, “R.C. 2945.71 ceases to govern and the two hundred and seventy

day speedy trial deadline is tolled.” The court concluded that, giving Hart “the benefit of
 -5-

every doubt” that R.C. 2945.71 somehow applied here, the State was well within its 270

days to try him.

{¶ 6} On April 29, 2020, the court issued an order tolling speedy trial time based

upon Am. Sub. H.B. 197 and the Covid-19 pandemic. Sua sponte, the court tolled Hart’s

speedy trial time “retroactively from March 9, 2020 to July 30, 2020, or until the emergency

order is lifted by Governor DeWine, whichever is sooner.”

{¶ 7} On July 7, 2020, Attorney Tamara Sack was appointed to represent Hart.

{¶ 8} On July 13, 2020, the court issued an order setting the jury trial for August

31, 2020. In a footnote, the court indicated that the trial date was the earliest date that

defense counsel was available. The court found that Hart’s speedy trial time was tolled

until August 31, 2020. The court noted that Am Sub. H.B. 197 remained active and had

not been rescinded, and that on March 27, 2020, the Ohio Supreme Court had issued

Executive Order 03/27/2020 Administrative Actions, 2020-Ohio-1166, which tolled “all

speedy trial and other time limitations as deemed necessary for public health and safety

to comport with Am. Sub. H.B. 197, retroactive to March 9, 2020 and ending on July 30,

2020, or the expiration of Governor De Wine’s Executive Order of 2020-01D, whichever

is sooner.” The court noted that this order had been ratified by the Ohio Supreme Court

on May 15, 2020. The court also noted that on March 16, April 6, May 12, and May 27,

2020, the Montgomery County Common Pleas Court, General Division, had issued orders

suspending all civil and criminal trials; moreover, the latest order, issued on June 26,

2020, extended the suspension of jury trials through July 30, 2020, “except when ‘unique

and unavoidable circumstances are presented.’ ”
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{¶ 9} The court noted the multiple “current mandatory practices for public health,

safety and welfare,” including social distancing, barriers, facial coverings, disinfecting,

and daily symptom checks. The court also found that the pandemic was “not abating,”

that “in order to comply with all of the foregoing and just plain common sense,” Hart’s

speedy trial time was tolled “for the public health, safety and welfare,” and that setting his

trial for August 31, 2020 was “reasonable.” Finally, the court noted that defense counsel

was unavailable for earlier trial dates that had been offered to Hart.

{¶ 10} At a July 29, 2020 scheduling conference, the court referenced a prior

conversation with Hart, when he was represented by attorney Carter, in which Hart asked

that he be allowed to represent himself; the court was satisfied at that time that Hart “was

in earnest” in wanting to represent himself. The court relieved Carter from his

representation and indicated that Hart would be permitted to represent himself pro se at

trial; however, Carter was appointed “as shadow counsel” for trial, to which Hart had

objected. On the day of the scheduling conference, attorney Sack was present with Hart;

she indicated that she was serving as Hart’s counsel and fully representing him at trial.

Hart confirmed Sack’s representation.

{¶ 11} On August 17, 2020, a motion to dismiss the indictment for speedy trial

violations was filed, signed by Hart. Sack certified that she had filed the motion on Hart’s

behalf, while he was proceeding pro se. Hart argued in the motion that he had “never

received prompt written notification of indictment source and contents” or of his right to

request a final disposition, and even if he had, the State’s failure to convey him until

November 7, 2019 “would not have left him enough time to exercise that right.” The
 -7-

State responded on August 17, 2020, asserting that Hart had provided no new factual

basis for the motion to dismiss.

{¶ 12} At a scheduling conference on August 19, 2020, the court confirmed the

August 31, 2020 trial date. Hart again asked the court to allow him to proceed pro se,

without changing the trial date; he stated that he had a written waiver that he wanted to

read and file. The court again emphasized the need for standby counsel or shadow

counsel because Hart lacked legal training, indicated that it would provide a waiver form

to attorney Sack for Hart to review with her, and confirmed that Hart was prepared to

proceed to trial with Sack as standby counsel.

{¶ 13} The court overruled the motion to dismiss on August 19, 2020, noting that

Hart’s motion was “virtually identical” to his February 28, 2020 motion; it incorporated its

March 9, April 29, and July 13, 2020 orders by reference. The court concluded that: 1)

Hart had been serving a prison sentence “in an entirely separate matter” from August 27,

2019 through May 5, 2020; Hart had been aware of the charges in this case while he

remained incarcerated in the Montgomery County Jail from August 28, 2019 until

November 7, 2019, and while he was represented by counsel; and 3) Hart and his counsel

could have invoked his speedy trial rights at any time pursuant to R.C. 2941.401, but they

did not do so even after he was conveyed to prison in November 2019.

{¶ 14} On August 20, 2020, Hart filed a handwritten, pro se motion to dismiss,

asserting that he had not waived his constitutional or statutory rights to speedy trial since

he was arrested and incarcerated. The State opposed the motion on August, 25, 2020.

On the same day, the State filed a motion in limine regarding the alleged speedy trial
 -8-

violations, requesting that if Hart choose to testify, he be prohibited from testifying to the

alleged speedy trial violations. On August 26, 2020, the court overruled the motion to

dismiss.

{¶ 15} At an August 26, 2020 scheduling conference, attorney Sack represented

to the court that she had reviewed the waiver form with Hart. The court noted that it had

previously appointed Carter as standby counsel, to which Hart had objected, and that,

considering Hart’s repeated assertions of speedy trial violations, the court determined that

if Carter were not serving as shadow counsel, the odds of going to trial on August 31

“weren’t too good”; the court did not want to, “in essence, create another speedy trial

issue,” so Carter was to serve as Hart’s shadow counsel. The court noted that Sack had

subsequently indicated her availability to represent Hart if he changed his mind and

wanted representation and that Hart had requested that she represent him. The court

stated that a waiver document had never been executed and filed “because we didn’t

need to,” but Hart had reversed course again and decided he wanted to represent himself.

The court had a thorough and lengthy colloquy with Hart regarding his decision to

represent himself and took a recess to allow Hart to talk to Sack. Thereafter, Sack and

Hart represented to the court that Hart wanted Sack to serve as his trial counsel in all

respects.

{¶ 16} Sack advised the court that Hart did not want to waive the jury for the

having weapons while under disability charge and that, against counsel’s advice, he

wanted everything tried to the jury. Sack also told the court that Hart had again changed

his mind about wanting to represent himself, and she requested a competency evaluation.
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The court acknowledged that Hart had gone back and forth several times on this issue

and that Hart’s behavior had been “at best, unusual” and “erratic” for some time, such

that a competency evaluation was appropriate. The court noted that the competency

evaluation would toll the speedy trial time.

{¶ 17} Hart then indicated his desire to file a waiver of counsel. The trial court

stated that doing so was not in Hart’s best interest and that it made “no sense at all” to try

the weapons under disability charge to a jury, putting before the jury his prior felony

conviction for violence and having been a fugitive. The court also pointed to Hart’s

vacillation on the issue of representation.

{¶ 18} Also on August 26, 2020, defense counsel filed a motion for a competency

and mental condition evaluation, noting that she had recently observed “irrational and

erratic thought processes” which were concerning. The following day counsel filed a

motion to withdraw as counsel, noting that she had received an email from Hart

threatening to report her to the bar and to sue her for malpractice after she had filed the

motion for a competency evaluation. On August 28, 2020, the court vacated the August

31, 2020 trial date and ordered a competency evaluation.

{¶ 19} On October 20, 2020, the court found Hart competent to stand trial based

upon a report from the Forensic Psychiatry Center for Western Ohio. On the same day,

the court granted Sack’s motion to withdraw as counsel and appointed Attorney Dennis

Lieberman to represent Hart.

{¶ 20} On October 21, 2020, the court reset the trial for January 19, 2021, which

was the earliest possible trial date due to defense counsel’s “backlog of trials.” The entry
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expressly found that Hart’s speedy trial time had been tolled between August 26 and

October 20, 2020, due to the competency evaluation. The court also found that Hart’s

speedy trial time was tolled until January 19, 2021, due to the court’s congested docket,

attorney Lieberman’s availability and need to prepare, and the ongoing Covid-19

pandemic; the court noted that it had 18 trials scheduled between October 26, 2020, and

January 19, 2021, and that the Montgomery County Common Pleas Court had a

continuing order suspending all jury trials until December 31, 2020.

{¶ 21} On November 23, 2020, Hart executed and filed a waiver of counsel after a

hearing.

{¶ 22} On December 4, 2020, the court issued an “Order Regarding Indictment,”

which related to a claim by Hart at a hearing on November 23, 2020, that he had never

received the indictment. The court indicated that it had reviewed the September 5, 2019

arraignment conducted by a different judge and found that, despite Hart’s numerous

interruptions, the court had “appropriately arraigned him,” and his attorney (Fogt) had

acknowledged receipt of the indictment and had waived its reading and any defects

therein. Although the court concluded that Hart had received the indictment, it ordered

his current attorney, Lieberman, to provide him with an additional copy.

{¶ 23} On January 12, 2021, the court reset the jury trial for June 28, 2021. On

February 22, 2021, the court issued an amended entry, adding a footnote that the June

28 trial date was the earliest date for which the Court, attorneys for the State, and standby

defense counsel could be available.

{¶ 24} At the final pretrial on June 10, the court noted that on November 23, 2020,
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it had reviewed the waiver of counsel form with Hart, and Hart had signed it. The form

detailed all the charges and the court’s advisements to Hart. The court asked Hart if he

still intended to represent himself, and Hart indicated that he did. The court reviewed the

form with Hart again on the morning of trial and assigned Lieberman as standby counsel.

{¶ 25} On June 18, 2021, Hart filed a motion to dismiss; he again asserted that his

speedy trial rights had been violated, claiming that he had been in custody for

approximately 670 days as of June 14, 2021. The court overruled the motion, noting that

it was Hart’s fourth such request. The court observed that Hart had been “incarcerated

and serving a sentence on a different case until May, 2020” and that the primary reason

for the delays after May 2020 had been the ongoing Covid-19 pandemic. The court also

found that Hart had shown no prejudice.

{¶ 26} At a conference on the scheduled June 28, 2021 trial date, defense counsel

Lieberman advised the court that Hart’s brother had been attempting to retain a different

attorney, Derek Farmer, to represent Hart; Lieberman had spoken to Hart’s brother and

to Farmer, who confirmed that he had spoken to Hart’s brother but stated that he could

not take the case. Lieberman stated that he and Hart’s brother had had a couple of other

conversations about different attorneys. The court discussed State v. Lee, 2d Dist.

Montgomery No. 28125, 2020-Ohio-3987, noting that a court should err on “on the side

of representation” by counsel, not self-representation, and if a defendant equivocated

regarding self-representation, that was “a nonstarter” and the trial should not proceed with

the defendant representing himself. At the conference, Hart stated that he had been

unaware of his brother’s actions and had not asked his brother or anyone else to get him
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an attorney. But Lieberman advised the court that, in the conversations he had had with

Hart’s brother, the brother indicated that he had been acting on Hart’s behalf and with

Hart’s knowledge.

{¶ 27} Although it recognized that various continuances had delayed Hart’s trial,

the court stated that there had been no assertion of any prejudice to Hart, such as

witnesses who were no longer available. The court said that Lieberman would serve as

trial counsel, but Lieberman represented that he could not try the matter on the scheduled

date. The court had previously asked Hart to provide Lieberman with names of

witnesses who could be subpoenaed to assist Hart, but Lieberman indicated that Hart

had not done so. The trial court rescheduled the trial for the week of August 2, 2021,

with Lieberman serving as trial counsel because of Hart’s equivocation on the issue of

representation.

{¶ 28} Before the start of trial, defense counsel renewed Hart’s objections and

motions relating to speedy trial, due process, and equal protection violations. The court

overruled the objections. Defense counsel further advised the court that Hart wished to

proceed pro se. Citing Lee, 2d Dist. Montgomery No. 28125, 2020-Ohio-3987, the court

overruled the motion, noting that Hart had a continuing objection on the issue. Defense

counsel advised the court that his standard practice was to waive a jury for having

weapons while under disability, but that Hart had chosen not to do so.

{¶ 29} The jury trial was held from August 2-5, 2021.

{¶ 30} Brian Lewis, the administrative sergeant for the regional dispatch center

for the Montgomery County Sheriff’s Office where 911 calls are received, testified that the
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office stores digital recordings for the radio and phone for 365 days. He identified State’s

Exhibits 1 and 2, with which he was familiar, as audio DVDs of phone calls relating to the

incident at issue, which were received on August 18, 2019, at 17:15 and 17:16 p.m. The

calls were played for the jury.

{¶ 31} Lisa Moore testified that she lived on St. John’s Avenue on August 18, 2019

with her four children -- Anthony Kenny, 29; Laron McGee, 24; Tyrese McGee, 20, and

Jessica McGee, 182 -- along with Laron’s girlfriend, Izora Johnson. She testified that

August 18th was a Sunday, and that she had worked half a day that day, from 6:00 a.m.

to around 10:00 or 11:00 a.m. Moore described her home as two stories with two

bedrooms upstairs and two on the first floor.

{¶ 32} Moore testified that when she got home on Sunday, August 18, Laron and

Johnson were upstairs in their room, and Jessica was in her bedroom downstairs; Laron

then left the home, and Moore prepared to give herself a perm around 5:00 p.m. Moore

stated that, as she stood in front of her vanity mirror in her first-floor bedroom, Johnson

came downstairs and Moore “started hearing gunshots.” Moore told Johnson to get

down, yelled for Jessica to stay in her room, and “ducked.” Moore testified that bullets

came through the mirror in her bedroom, “coming through the wall” from the living room,

and her glass storm door was shattered “as the bullets were coming through the front

door.”

{¶ 33} Moore identified State’s Exhibits 3 through 19 as photos of her home and

belongings. In the photos, she identified broken glass from the security door as well as

2 For clarity, the McGees will be referred to in this opinion by their first names.
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five bullet holes in her front door. Moore also identified the wall between her bedroom

and the living room, along with her couch. She stated that her front door was directly

across from that wall, and that the photograph depicted bullet holes in the wall and in the

couch; drywall was visible on the top of the couch. Moore stated that the vanity in her

bedroom was directly behind her living room couch, and she identified a bullet hole in a

photo of her vanity mirror. Moore testified that she had found a bullet on the floor in her

room and had given it to a police officer. Moore called 911, but she had not seen who

fired the shots.

{¶ 34} Johnson testified that Moore and Jessica had bedrooms on the first floor,

she and Laron shared one upstairs bedroom, and Tyrese used the other upstairs

bedroom. She stated that she had been watching a movie on August 18, 2019, and that

she had stopped to get something to eat and drink. She stated that Jessica and Moore

had been in their separate bedrooms downstairs and that Laron had left five minutes prior

to the shooting; Tyrese was not home.

{¶ 35} Johnson testified that, on the night in question, she saw a red truck quickly

“back up in front of the house” and stop; a “kind of stocky” black male wearing “a gray

beater and some shorts” whom she had never seen before got out the car and started

walking up to the house. The way the man had backed up to the house made Johnson

“a little nervous,” and she started toward Moore’s room to ask her if she knew anyone

with a red truck. Then the shooting started. Johnson testified that she believed there

had been “a bigger white male with a lot of hair” in the truck.

{¶ 36} Johnson testified that she heard breaking glass and gunshots, then she
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dove into Moore’s room on the floor; she heard five or six shots and then “heard him

pulling off.” Johnson identified photos of the damaged windows at the home. When

she heard Moore call 911, Johnson told Moore what she had seen so Moore could relay

it to the police. Johnson testified that the police responded to the house, and she gave

them a statement. Johnson stated that the perpetrator had used a revolver and

shattered the glass of the front door.

{¶ 37} On cross-examination, Johnson stated that she had last observed the

perpetrator walking up the sidewalk toward the porch; she “didn’t technically see him pull

the gun” and fire it. Johnson stated that, when the black man walked up to the house,

he was “not even a foot away” from the porch, she was standing at the window, and no

one else was nearby that she saw. She turned around, and there was gunfire less than

three seconds later. Johnson testified that she saw something in the man’s pocket, but

she did not know what it was and had never seen a gun in his hand.

{¶ 38} Laron testified that, prior to August 2018, he had placed a $20 Geeni Wi-Fi

camera from Walmart in Tyrese’s front upstairs window; Laron had downloaded an

application to his phone to connect to the camera. Laron testified that the camera was

motion-activated to record videos with audio, and it saved the recordings. Laron testified

that he had been visiting a friend when he learned about the shooting, and he proceeded

home, where the police had already arrived. Laron realized he might have video of the

shooting on his phone.

{¶ 39} Defense counsel objected at sidebar to the admission of the video recording

of the incident (State’s Exhibit 23), asserting that no one had identified it as a fair and
 -16-

accurate depiction of what had occurred, that it was hearsay, and that there was

insufficient foundation for admission. Defense counsel also argued that there was some

question about where the video came from, because one detective’s report indicated that

Moore had provided the footage “from her surveillance camera in her son’s bedroom.”

{¶ 40} The court indicated that it would excuse the jury and Laron and view the

recording to ascertain if it was probative and if its probative value outweighed any

prejudicial effect.

{¶ 41} The court found “some indicia of reliability” with respect to the video,

namely: the date stamp in the upper left corner was from August 18, 2019; the time

(military time of 17:12, or 5:12 p.m.) was consistent with the testimony of the witnesses

to that point; the video depicted a red truck, there had been testimony about a red truck

pulling up; and the truck was on the wrong side of the street. The court acknowledged

that “there may be a question about how this video was retrieved.” The court stated that

the video appeared “at first blush to be arguably hearsay” It then viewed the video and

recalled Johnson to the stand, outside the presence of the jury, to testify as to whether

“what she saw with her own two eyes looking out that window” was consistent with what

was depicted on the video (thereby authenticating the video). The court stated that it

would not allow Johnson to testify as to whether Hart was the man in the video.

{¶ 42} Johnson reiterated her testimony that she had not observed a gun during

the incident. She stated that the red truck on the video was consistent with what she

observed on August 18, 2019, and that the date-stamp on the video was the date of the

shooting. When asked about the time-stamp on the video, she said it happened in the
 -17-

evening but she was unsure of the specific time. Johnson reiterated that, during the

incident, she had observed a black man dressed in a gray “beater” walk up the walkway

toward the front door of her home. Johnson identified the chain link fence “just to the left

of the red truck” in the video, the driveway of her home, and the walkway leading to the

front porch. She stated that the homes depicted across the street in the video were the

homes across the street from her home. When asked if she had any doubt that the red

truck reflected in the video was in front of her St. John’s Avenue home on the date of the

shooting, she responded, “No, I know for sure he was.”

{¶ 43} The court asked for the portion of the video reflecting the individual getting

out of the truck and walking toward the house to be played for Johnson. Johnson

confirmed that the video represented what she had observed on August 18, 2019, namely

a black man dressed in a gray “beater” approaching the home, as she had testified.

Defense counsel objected to Johnson’s being recalled as a witness.

{¶ 44} Laron returned to the stand for questioning by the court. He again testified

that he had purchased and installed the camera in his brother’s window. He

acknowledged that he had not witnessed any portion of the incident because he had not

been present. The court questioned Laron about the video outside the presence of the

jury, and Laron testified that he recognized the driveway, the front walk to his home, the

chain-link fence parallel to the street, the awning, and his neighbors’ homes. He stated

that the surroundings depicted in the video were consistent with the surroundings of his

home.

{¶ 45} When asked who retrieved the video after the shooting, Laron responded,
 -18-

“I did, we all tried to pull it up. I did, mainly.” Laron stated that he had learned about the

shooting from Johnson by phone. He stated that the video was a fair and accurate

depiction of what he had downloaded to his phone, and he had not altered it. Laron

stated that Exhibit 23 was only a portion of what was recorded; the portion in which the

subject pulled up and turned around was not included.

{¶ 46} In response to questions by the State, Laron stated that Moore and Johnson

had also tried to view the video on their phones. The court stopped the prosecutor’s

questioning, noting that “this may very well be testimony that you want to take from” Laron

in the presence of the jury.

{¶ 47} Defense counsel asked Laron how the video was given to law enforcement,

and Laron indicated he did not know. He stated that he gave it to them, but he could not

recall “how they got it in their hands,” but probably through email. Laron testified that he

had given the police the complete video that he had saved, not just the portion reflected

in State’s Exhibit 23.

{¶ 48} The court admitted State’s Exhibit 23 under the “silent witness theory,”

citing Midland Steel Prods. Co., v. Internatl. Union, United Auto., Aero. & Agricultural

Implement Workers, Local 486, 61 Ohio St.3d 121, 573 N.E.2d 98 (1991); State v.

Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.2d 1023; and State v. Farrah, 10th

Dist. Franklin No. 01AP-968, 2002-Ohio-1918. The court concluded that State’s Exhibit

23 had been authenticated by the testimony of Johnson and Laron. Defense counsel

renewed his objection. The jury returned to the court room, and the State again

questioned Laron about State’s Exhibit 23 before playing the video for the jury. Laron
 -19-

testified that he had provided the video to law enforcement.

{¶ 49} On recross-examination, Laron denied that he had never previously seen

the red truck in the video. He testified that he did not remember how or if he had provided

the video to law enforcement. Laron testified that there was no other video that he had

downloaded beyond State’s Exhibit 23.

{¶ 50} After defense counsel requested a sidebar to discuss the conflicting

testimony outside the jury’s presence regarding whether State’s Exhibit 23 was a

complete video, Laron acknowledged that there had been more video from the security

camera that he was unable to save, and that Exhibit 23 contained the entire portion of the

video that he was able to save.

{¶ 51} Officer Joseph Ambrose of the Dayton Police Department testified that on

August 18, 2019, around 5:00 p.m., he and Officer Kyle Harris were in the area of James

H. McGee Boulevard and Third Street when they received a “shots fired” call on the radio;

they were given the address of 4649 St. John’s Avenue. As far as Ambrose recalled, the

report had said that a black male in a red truck with two white occupants had shot at the

house and fled. Ambrose and Harris then encountered a red truck within a mile of the

reported address.

{¶ 52} Ambrose identified a cruiser camera video and audio recording in two

separate files of the officers’ pursuit of the truck (State’s Exhibit 24). The files were

played for the jury, and Ambrose testified that, at 48 seconds, the officers saw something

tossed out the window of the red truck; at that point, they were travelling south on North

Gettysburg nearing Gardendale Avenue. This information was relayed to other crews.
 -20-

{¶ 53} Ambrose testified that the recording stopped when he and Harris hit a large

embankment, totaling the cruiser. At that point, Officer Derek Wagers passed them in

an SUV; at the next driveway, the suspect vehicle had hit a parked vehicle in a driveway,

and the suspect driver had fled on foot. Ambrose exited the disabled cruiser, ran north

to Nicholas Avenue, ran west on Nicholas Avenue, and then observed the suspect

running directly toward him about 15 seconds later.

{¶ 54} Ambrose testified that he drew his weapon and ordered the suspect to stop,

but the suspect continued to run between houses on Nicholas, eventually tripping in one

of the yards behind a house near the disabled cruiser. When the suspect fell to the

ground, Ambrose sat on top of him to make an arrest. When Ambrose searched the

suspect incident to arrest, he found a large bag that he believed, from his experience and

training, to be methamphetamine; Ambrose removed it from the suspect’s pocket.

Ambrose identified the bag at trial (State’s Exhibit 25) and described the process of

securing it. Ambrose identified Hart as the person he had arrested. He also identified

the black and gray clothing that Hart had been wearing at the time of his arrest.

{¶ 55} Ambrose transported Hart to the hospital, and Hart provided him with a

name, social security number, date of birth, and age. Ambrose testified that Hart had

identified himself as Ryan Hart, but Ambrose received a call from another officer, Officer

Joshua Gundaker, informing him that the other occupants of the vehicle had provided the

name Byron Hart, rather than Ryan Hart. After running the information of Byron Hart,

Ambrose found a picture matching the man in custody, and Hart said, “oh, well, you got

me.” Ambrose informed Hart that there was a warrant for his arrest, which Hart indicated
 -21-

that he knew.

{¶ 56} On cross-examination, Ambrose testified that he had not observed items

thrown from the red truck, but that he had put the information in his report because that

was what the other officer had relayed to him. After reviewing his report to refresh his

recollection, he testified that the objects had been thrown from the passenger side of the

vehicle.

{¶ 57} Officer Kyle Harris testified that he was driving a cruiser with Ambrose as

his passenger on the day of the shooting; Ambrose had operated the computer,

communicated with dispatch and other crews, and read “call comments” to him while he

was driving. Ambrose advised Harris that a 911 caller/victim had stated that a black male

driving a small red pickup truck, who possibly had two white males in the vehicle with him,

was the suspect in the shooting into habitation incident which had just occurred at the

reported address. At the time, Harris was turning off North James H. McGee onto North

Gettysburg, in the direction of the St. John’s Avenue address. When stopped at an

intersection on North Gettysburg Avenue, a small Ford red Ranger pickup truck was also

stopped on the other side of the intersection. The driver was a middle-aged black male

with short hair and a gray tank top, and there appeared to be two to three white occupants

inside the truck with him. Harris and Ambrose passed the truck, then turned around at

their first opportunity and attempted to get a license plate number. A pursuit of the red

truck ensued.

{¶ 58} Dayton Police Officer Craig Stiver, an evidence technician, responded to

the St. John’s Avenue address on August 18, 2019, to collect a spent bullet and take
 -22-

photos. He identified the photos and a spent bullet he had collected from a bedroom of

the home at trial. Stiver testified that he was subsequently dispatched to the area of

Gettysburg and Gardendale Avenues, where a box of ammunition, some live rounds, and

a revolver had been found; he also took photos of this area, which he identified at trial.

Stiver stated that he had recovered four live rounds, the handgun, and the empty box of

ammunition, which were identified for the jury.

{¶ 59} Further, Stiver was also dispatched to 3928 Nichols Road to photograph a

Ford Ranger and its contents. He testified that a live bullet was recovered from the

floorboard of the truck along with a spent casing, and he identified those items for the

jury. In response to question from the court, Stiver indicated that the live rounds found

fit the revolver, which was a .38.

{¶ 60} On cross-examination, Stiver testified that the only casing he found was on

the floorboard of the truck. On redirect, he testified that a revolver does not eject casings

like a semiautomatic handgun.

{¶ 61} Dayton Police Officer Joshua Erwin had been assigned to the west patrol

operations on August 18, 2019; after roll call, he and his partner heard a crew report that

they were in pursuit of a vehicle that had just been involved in a shooting in a habitation.

Erwin and his partner “drove to Lakeview” and waited, but after observing a red Ford

Ranger as described in the call, they became the second car in the pursuit. According

to Erwin, the truck ran through a fence; his cruiser was unable to make it through, so he

and his partner “disengaged”; they then proceeded to the St. John’s Avenue address,

where Officer Gallagher gave Erwin a bullet that he had received from Lisa Moore. Erwin
 -23-

stated that the bullet had been retrieved from inside the residence.

{¶ 62} Officer Derek Wagers was also assigned to the west patrol operation

division. He was at Miami Valley Hospital on August 18 on an unrelated call when he

heard that another crew was pursuing a vehicle, and he proceeded to the area of the

pursuit. Wagers stated that he was alone in his vehicle. He identified the cruiser video

from his car, a portion of which was played for the jury (State’s Exhibit 27). Wagers

testified that he had observed a black male wearing a gray tank top and black shorts

fleeing from the driver’s side of his vehicle, but stated that he (Wagers) did not maintain

pursuit since Ambrose and Harris were able to take the person into custody. Wagers

stated that a white female and two children were in the vehicle, as depicted in Exhibit 27.

{¶ 63} Wagers stated that Hart had been placed in the rear of his cruiser, and he

identified Hart in the video. Wagers stated that he had tried to identify Hart by typing the

identifiers Hart provided (Ryan Garell Hart), but the picture of Ryan Hart on the Bureau

of Motor Vehicles site did not match the suspect in his cruiser.

{¶ 64} Hillary Loucks, a forensic chemist at the Miami Valley Regional Crime

Laboratory, who was designated as an expert, testified that she had tested State’s Exhibit

25, the suspected methamphetamine, and found it to be methamphetamine with a net

weight of 55.78 grams.

{¶ 65} Robert Burns, a firearms examiner at the Miami Valley Regional Crime

Laboratory, testified that he examined State’s Exhibits 34, 37, 56, and 57. Burns stated

that Exhibit 37 was an operable Rohm RG 38S, “38 special caliber.” He testified that

State’s Exhibit 34 was a fired cartridge casing; based upon a microscopic comparison of
 -24-

test-fired casings from the weapon to the gum, he concluded that Exhibit 34 had been

fired by Exhibit 37. Burns stated that State’s Exhibits 56 and 57 were recovered bullets

that he microscopically examined in comparison to test-fired bullets, and he opined that

these bullets had also been fired from Exhibit 37.

{¶ 66} Matthew Gray, a detective for the violent offender unit of the Dayton Police

Department, identified State’s Exhibits 62 and 63 as judgment entries of conviction in

which Hart had been the defendant. Gray also identified Hart in the courtroom.

{¶ 67} At the conclusion of the State’s case, defense counsel made a general

motion for acquittal on all counts and specific motions as to specific counts. Regarding

Count 5, having weapons while under disability (fugitive from justice), defense counsel

asserted that there was no evidence that Hart had known he was being sought by law

enforcement. The court responded that there was testimony that Hart “knew there was

a warrant for his arrest” and that a reasonable juror could conclude from the cruiser

camera footage that someone, namely Hart, “was doing everything he could to avoid

apprehension.” The court overruled the motion as to Count 5.

{¶ 68} Regarding Count 6, tampering with evidence, defense counsel argued that

acquittal was appropriate because Hart had been the driver of the truck, the evidence

showed that the items thrown from the truck – a gun, ammunition, and an ammunition

box --had been thrown from the passenger side, and, given the “very erratic nature of the

chase,” the driver would have been “too busy trying to drive” to throw things from the

vehicle. Defense counsel also pointed out that a co-defendant in the case had already

been convicted of tampering with evidence. On these bases, defense counsel argued
 -25-

that an acquittal on tampering was appropriate.

{¶ 69} With respect to the co-defendant’s case, the prosecutor stated that Hart’s

co-defendant had stated in her plea colloquy that she had taken drugs into the jail by

“stuffing them - - hiding them in her private area”; the plea had not related to tossing a

gun, ammunition, or an ammunition box out a window. Further, the prosecutor argued

that, even if the co-defendant had been convicted of tampering based on the same

conduct, a reasonable juror could infer that the driver had, in fact, tossed the weapon,

ammunition and box out of the passenger window, which was only a short distance away.

Arguing that the evidence supported either inference, the prosecutor continued:

As long as the window’s rolled down, that’d be easy enough to do.

* * * [The jury] could buy your argument, Mr. Lieberman, that it’s not your

client that did it, or it wasn’t the driver that did it. It was the passenger that

did it, but I think they could make a logical inference that they disagree.

So I think they’re entitled to proceed. And I think they could also

infer, if they were to conclude that Mr. Hart was the driver, that Mr. Hart was

the shooter, that Mr. Hart knew he had a warrant out for him, that Mr. Hart

was doing everything he could to elude capture by the police, including this

protracted, erratic chase, and that the passenger, if it was indeed, she that

tossed the items of evidence - - the gun, the ammunition, and the box, did

so at his direction. I think they could infer that.

{¶ 70} Defense counsel also contested the weight of the methamphetamine,

based on its being a compound substance, but the court found that other cases had
 -26-

settled this question and that the weight of the compound substance or mixture controlled.

{¶ 71} The parties filed sentencing memoranda. Hart’s memorandum included a

request to merge counts and an attached affidavit of indigency “to be considered as it

relates to any fines.”

{¶ 72} The trial court sentenced Hart on August 25, 2021. The court noted that it

had reviewed the presentence investigation report (“PSI”) and the parties’ sentencing

memoranda. The court merged Count IV into Count V (two counts of having weapons

while under disability), to which the State agreed, but it refused to merge Count VII,

(improper handling of a firearm in a motor vehicle), citing State v. Wilcox, 2d Dist. Clark

No. 2013-CA-94, 2014-Ohio-4954. AS discussed above, the aggregate sentence was

29.5 to 33.5 years.

{¶ 73} The trial court further expressly found that Hart had the means, or was

expected to have the means, “to pay some or all of the costs of prosecution, restitution,

or other financial sanctions.” Hart’s PSI stated that he was 35 years old, had completed

the 11th grade, and had obtained his technician certificate in heating ventilation and air

conditioning in 2021 while incarcerated. Also, the PSI stated that in 2018, Hart had

reportedly been operating his late father’s towing and haul company; he had also

previously been employed at Select Industries Factory and Kroger. Based on these

facts, the court ordered Hart to pay court costs, including jury costs to be paid in an

amount to be determined by the clerk of courts. The court also ordered Hart to pay

restitution to Moore, and it stayed the collection of court costs until restitution to Moore

was paid in full. The amount of restitution was based on a quote Moore had provided
 -27-

from Lowe’s, which indicated that the cost to replace her front door and two windows had

been $4,507.43.

{¶ 74} Hart appeals, asserting five assignments of error. His first assignment of

error is as follows:

THE TRIAL COURT COMMITTED ERROR BY NOT PROPERLY

GRANTING DISMISSAL DUE TO APPELLANT’S SPEEDY TRIAL RIGHTS

BEING VIOLATED.

{¶ 75} Hart argues that both his statutory and constitutional speedy trial rights were

violated. The State responds that multiple tolling events occurred throughout the case,

along with “the lingering impact of the COVID-19 pandemic on the trial court’s schedule,”

such that Hart’s speedy trial rights were not violated. In reply, Hart argues that the

“pandemic did not necessitate a two-year delay” and that his case should have been a

“top priority” in the trial court’s scheduling due to its being “a high-level criminal case.”

He also asserts that the competency evaluation requested by defense counsel in August

2020 was not necessary and should not have been granted, and thus the time should not

be held against him.

{¶ 76} As this Court has stated:

“The right to a speedy trial is a fundamental right guaranteed by the

Sixth Amendment to the United States Constitution, made obligatory on the

states by the Fourteenth Amendment. Section 10, Article I of the Ohio

Constitution guarantees an accused this same right.” (Citation omitted.)

State v. Hughes, 86 Ohio St.3d 424, 715 N.E.2d 540 (1999). Ohio's
 -28-

statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational

effort to enforce the constitutional right to a speedy trial. State v. Pachay,

64 Ohio St.2d 218, 416 N.E.2d 589 (1980); State v. Parker, 113 Ohio St.3d

2017, 2007-Ohio-1534, 863 N.E.2d 1031, ¶ 13.

State v. Sherrer, 2d Dist. Greene No. 2015-CA-40, 2016-Ohio-3198, ¶ 8.

{¶ 77} Regarding Hart’s statutory speedy trial rights, the following is well-settled:

On consideration of a defendant's challenge to a conviction based

on an alleged violation of the defendant's statutory right to a speedy trial,

the standard of review initially entails little more than a count of days

pursuant to R.C. 2945.71. State v. Ellington, 2d Dist. Montgomery No.

26335, 2015-Ohio-2058, ¶ 12; see also State v. Stevens, 8th Dist.

Cuyahoga No. 87693, 2006-Ohio-5914, ¶ 32. If a defendant “establishes

a prima facie case of a violation of his right to a speedy trial, the burden

then shifts to the State” to demonstrate either that the statutory limit was not

exceeded, or that the State's time to bring the defendant to trial was properly

extended. See State v. Nichols, 5th Dist. Richland No. 04 CA 56, 2005-

Ohio-1771, ¶ 11, citing State v. Butcher, 27 Ohio St.3d 28, 30-31, 500

N.E.2d 1368 (1986).

State v. Wagner, 2d Dist. Miami No. 2020-CA-6, 2021-Ohio-1671, ¶ 12.

{¶ 78} R.C. 2945.71 provides the time period within which a trial must be held.

R.C. 2945.71(C) states that a person against whom a charge of felony is pending “[s]hall

be brought to trial within two hundred seventy days after the person’s arrest.” R.C.
 -29-

2945.71(E) states that, for “purposes of computing time under divisions (A), (B), (C)(2),

and (D) of this section, each day during which the accused is held in jail in lieu of bail on

the pending charge shall be counted as three days. * * *”

{¶ 79} R.C. 2945.72 establishes exceptions to allow speedy trial time to be

extended. It provides:

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:

***

(B) Any period during which the accused is mentally incompetent to stand

trial or during which his mental competence to stand trial is being

determined, * * *.

***

(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. 2945.73 sets forth the remedy, namely dismissal, if the speedy trial deadlines are

not met.

{¶ 80} Hart’s speedy trial time was tolled while he was serving his prison sentence
 -30-

in Case No. 2018-CR-1754. As this court has noted:

When a defendant is incarcerated in this state on other charges, R.C.

2941.4013, a specific statute, prevails over the general speedy trial statutes

of R.C. 2945.71 et seq., and governs the time within which the state must

bring him or her to trial. See R.C. 2945.71(F); State v. Munns, 5th Dist.

No. 2005-CA-0065, 2006-Ohio-1852, at ¶ 16; State v. Mavroudis, 7th Dist.

No. 02 CO 44, 2003-Ohio-3289, at ¶ 27; State v. Cox, 4th Dist. No. 01 CA10,

2002-Ohio-2382, at ¶ 17; State v. Pesci, 11th Dist. No.2001-L-026, 2002-

Ohio-7131, at ¶¶ 41-43; State v. Ward, 12th Dist. No. CA99-12-114, 2000

WL 1370993, at *4; State v. Fox, 8th Dist. No. 63100, 1992 WL 309353, at

*1. When the defendant is imprisoned on a previous conviction, R.C.

2945.71 ceases to govern and the two hundred and seventy day speedy

trial deadline is tolled. See Cleveland v. Adkins, 8th Dist. No. 83295, 2004-

Ohio-1118, at ¶ 6, 156 Ohio App.3d 482, 806 N.E.2d 1007; State v. Hill, 4th

Dist. No. 96 CA 4, 1996 WL 754250, at *6. The provisions of R.C.

2941.401 control, and the one hundred and eighty day speedy trial deadline

under R.C. 2941.401 does not begin to run until the defendant sends written

notice of the place of his imprisonment and a request for a final disposition

3
”When a person has entered upon a term of imprisonment in a correctional institution of
this state, and when during the continuance of the term of imprisonment there is pending
in this state any untried indictment, information, or complaint against the prisoner, he shall
be brought to trial within one hundred eighty days after he causes to be delivered to the
prosecuting attorney and the appropriate court in which the matter is pending, written
notice of the place of his imprisonment and a request for a final disposition to be made of
the matter * * *.” R.C. 2941.401.
 -31-

of the matter to the prosecuting attorney and appropriate court. See R.C.

2941.401; Adkins, supra, at ¶ 6; Hill, supra, at *7.

We have cited the great weight of authority we have found in support

of the proposition that once a person under indictment has begun serving a

prison sentence in another case, the provisions of R.C. 2941.401 apply, to

the exclusion of the provisions of R.C. 2945.71, et seq., so that the running

of speedy trial time under the latter statute is tolled. We have found no

authority to the contrary. Although we consider this question to be a

difficult one, the whole point of speedy trial provisions is to impose bright-

line rules, by their nature arbitrary, to enforce a criminal defendant's

constitutional right to a speedy trial. This interest would be ill-served by

having different rules in different appellate districts. Therefore, we will

follow the great weight of authority we have cited.

(Footnote added.) State v. Stewart, 2d Dist. Montgomery No. 21462, 2006-Ohio-4164,

¶ 21-22. Hart did not trigger R.C. 2941.401 while he was in prison, and he was not

entitled to assert any speedy trial deadline during his incarceration. Therefore, Hart’s

speedy trial time was tolled from November 7, 2019, when he was transported to prison,

until February 13, 2020, when he was returned to the Montgomery County Jail.

{¶ 81} Pursuant to R.C. 2945.72(B), “the time within which an accused must be

brought to trial is tolled from the date the accused files a motion challenging his or her

competency to stand trial * * * until the trial court makes a competency determination

* * *.” State v. Palmer, 84 Ohio St.3d 103, 702 N.E.2d 72 (1998), paragraphs one and
 -32-

two of the syllabus. Hart’s attorney filed the motion for a competency evaluation on

August 26, 2020, and the trial court found Hart competent on October 20, 2020.

{¶ 82} Hart was granted six continuances between September 11, 2019, and

November 6, 2019, which fell within the provisions of R.C. 2945.72(H). The continuance

granted on October 23, 2019, expired on October 30, 2019, before the October 31, 2019

motion was filed.

{¶ 83} We have noted that, “due to the coronavirus pandemic, the General

Assembly passed, and the Ohio Governor signed, Am.Sub.H.B. 197, which tolled speedy

trial times that were set to expire between March 9, 2020, and July 30, 2020.” State v.

Lewis, 2d Dist. Montgomery No. 28962, 2021-Ohio-1895, ¶ 40. “The Supreme Court of

Ohio also issued an order on March 27, 2020, tolling deadlines retroactively for the same

period of time. ” Id. at ¶ 41, citing In re Tolling of Time Requirements Imposed by Rules

Promulgated by Supreme Court & Use of Technology, 158 Ohio St.3d 1447, 2020-Ohio-

1166, 141 N.E.3d 974. We agree with the State that “as a result of Am.Sub.H.B. 197,

the days between March 9, 2020 and July 30, 2020, were excluded from the calculation

of Hart’s statutory speedy trial time. As noted above, the trial court issued an order on

April 29, 2020, tolling Hart’s speedy trial time retroactively for that period.

{¶ 84} Furthermore, pursuant to R.C. 2945.72(H), “a court may grant a

continuance upon its own initiative as long as it is reasonable.” State v. King, 70 Ohio

St.3d 158, 162, 637 N.E.2d 903 (1994). “This provision has been interpreted to permit

courts to sua sponte continue an accused's trial beyond the time limit prescribed by R.C.

2945.71, but only when reasonable and only when the continuances are made by journal
 -33-

entry prior to the expiration of the time limit.” Id., citing State v. Lee, 48 Ohio St.2d 208,

357 N.E.2d 1095 (1976), and Aurora v. Patrick, 61 Ohio St.2d 107, 399 N.E.2d 1220

(1980).

{¶ 85} On October 21, 2020, the court tolled the matter until January 19, 2021.

The court noted its congested docket. See State v. Hairston, 2d Dist. Montgomery No.

20844, 2006-Ohio-2669, ¶ 15 (“It is well settled that docket congestion may be grounds

for a reasonable continuance under R.C. § 2945.72(H), provided that the trial court gives

a timely explanation for its action.”). The court further noted that it had just appointed

new defense counsel, Attorney Lieberman, and that Lieberman needed a reasonable time

to prepare. The court further stated that it was continuing the trial due to Covid 19.

{¶ 86} The trial court issued another tolling entry on January 12, 2021, to June 28,

2021, citing temporary emergency orders issued by the General Division of the

Montgomery County Court of Common Pleas suspending jury trials through March 27,

2021. The court also cited 2020 Ohio Atty Gen Ops. No. 2020-002 and Ohio Supreme

Court guidance, including limiting in-person meetings. The court further noted that

Montgomery County remained under a Level 3 public emergency. Finally, the court

issued an amended tolling entry on February 22, 2021, until June 28, 2021.

{¶ 87} As this Court has previously noted:

* * * [T]he Ohio Supreme Court recognized the seriousness of the

public health emergency, noting that “[i]t is now December 2020, and we

are approaching what could be the height of the COVID-19 pandemic. The

daily numbers of confirmed COVID-19 cases, hospitalizations, and deaths
 -34-

have significantly increased.” In re Disqualification of Fleegle, 161 Ohio

St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609, ¶ 5. The supreme court

emphasized that, “[d]uring this public-health emergency, a judge's priority

must be the health and safety of court employees, trial participants, jurors,

and members of the public entering the courthouse.” Id. at ¶ 8. It

reiterated that “all Ohio judges have been advised [that] trial judges have

the authority to continue trials for defendants on a case by case basis

without violating speedy-trial requirements.” Id. at ¶ 7. The supreme court

cited R.C. 2945.72(H) and the Ohio Attorney General's opinion, which

approved of the suspension of jury trials to prevent the spread of COVID-

19 and opined that “they may do so consistent with state and federal

speedy-trial obligations. * * * Although tolling speedy trial time by

suspending jury trial activity is an extraordinary step, it is lawful – and

responsible – to do so during a pandemic emergency.” The supreme court

held that it was reasonable to continue a trial because of a pandemic state

of emergency. Id.; see also State v. Voris, 2d Dist. Miami No. 2021-CA-2,

2022-Ohio-152, ¶ 30 (the trial court lawfully scheduled defendant's jury trial

outside of the statutorily-required speedy trial time, pursuant to R.C.

2945.72(H), based on the COVID-19 pandemic and the fact that the county

remained in a state of emergency due to the virus).

Sate v. Lovett, 2d Dist. Montgomery No. 29240, 2022-Ohio-1693, ¶ 30. The trial court

fully explained and justified its sua sponte continuances.
 -35-

{¶ 88} Further, the time was tolled from February 28, 2020, until March 9, 2020

due to Hart’s motions to dismiss:

{¶ 89} We agree with the State that it was well within the 270 days statutory time

limitation to bring Hart to trial. According to the following schedule, we conclude that 70

days had elapsed and that Hart’s statutory speedy trial rights were not violated.

Dates Elapsed and Tolled Days

August 19, 20194 – September 11, 2019 23 days5

September 11, 2019 – October 29, 2019 tolled due to motions

October 30, 2019 1 day

October 31, 2019 -- November 5, 2019 tolled due to motion

November 6, 2019 1 day

November 7, 2019 – February 12, 2020 tolled due to incarceration

February 13, 2020 – February 27, 2020 45 days (triple count)

February 28, 2020 – March 8, 2020 tolled due to motion

March 9, 2020 – July 30, 2020 tolled due to pandemic

July 13, 2020 – August 31, 2020 tolled for new trial date

August 26, 2020 -- October 19, 2020 tolled for competency evaluation

October 20, 2020 – January 18, 2020 tolled - trial date vacated 8-28-20

January 19, 2021 – June 27, 2021 tolled by court sua sponte 1-12-21

4
See Stewart, 2d Dist. Montgomery No. 21462, 2006-Ohio-4164, at ¶ 2 (“the day of
arrest is not counted when computing speedy trial time”).

5
As the trial court noted, the triple count provision did not apply while Hart was being
held on these offenses and in Case No. 2018-CR-1754.
 -36-

June 28, 2021 – August 2, 2021 tolled by court sua sponte

{¶ 90} Wagner, 2d Dist. Miami No. 2020-CA-6, 2021-Ohio-1671, addressed

constitutional speedy trial rights as follows:

Although “statutory and constitutional speedy trial [rights] are

[generally] coextensive,” the constitutional right, as embodied in the Ohio

Constitution and the United States Constitution, “may be broader than the

* * * statutory right” in some circumstances. (Citation omitted.) State v.

Kadunc, 10th Dist. Franklin No. 15AP-920, 2016-Ohio-4637, ¶ 19. To

determine whether a defendant's constitutional right to a speedy trial has

been violated, a court should apply the four-factor balancing test adopted

by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92

S.Ct. 2182, 33 L.Ed.2d 101 (1972). See, e.g., State v. Louis, 2d Dist.

Montgomery No. 27909, 2020-Ohio-951, ¶ 32. The factors include: (1) the

length of the delay “between accusation and trial”; (2) the reason for the

delay; (3) the defendant's assertion, if any, of his right to a speedy trial; and

(4) the prejudice, if any, to the defendant. Doggett v. United States, 505

U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); State v. Adams,

144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 88.

A “delay becomes presumptively prejudicial as it approaches one

year,” and unless the length of the delay “is presumptively prejudicial, there

is no necessity for inquiry into the other factors.” Barker at 530; Adams at

¶ 89-90. None of the factors is controlling because a “balancing test
 -37-

necessarily compels” a court to evaluate an alleged speedy trial violation

“on an ad hoc basis,” meaning that the court must consider the totality of

the circumstances. Barker at 530; State v. Perkins, 2d Dist. Clark No. 08-

CA-0081, 2009-Ohio-3033, ¶ 8.

Id. at ¶ 14-15.

{¶ 91} A trial court's decision overruling a defendant’s motion to dismiss on

constitutional speedy trial grounds is reviewed for an abuse of discretion standard. State

v. Cassell, 2d Dist. Clark No. 2009-CA-64, 2011-Ohio-23, ¶ 12. An “abuse of discretion”

has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Id. at

¶ 13; Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). It is

to be expected that most instances of abuse of discretion will result in decisions that are

simply unreasonable, rather than decisions that are unconscionable or arbitrary. AAAA

Ents., Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 553 N.E.2d 597

(1990).

{¶ 92} We conclude that an abuse of discretion has not been demonstrated. As

set forth above, Hart filed multiple motions to continue and motions to dismiss. Time

was tolled due to his competency evaluation, and the August 31, 2020, and January 19,

2021 trial dates were vacated. The court thoroughly explained its own sua sponte

continuances, including the Covid 19 emergency.

{¶ 93} Moreover, Hart failed to demonstrate prejudice “of constitutional

magnitude.” In his February 28, 2020 speedy trial motion, Hart claimed that he had not

been promptly conveyed to prison after he was sentenced in Case No. 2018-CR-1754.
 -38-

Yet after being conveyed, he failed to avail himself of R.C. 2941.401. While Hart

suggests in his brief that “[a]t times he wanted to represent himself, and obviously his

ability to gather evidence, contact witnesses, or otherwise prepare his defense was

hindered by being incarcerated,” Hart was not entitled to represent himself due to his

erratic behavior and vacillation, as will be discussed further below, and he had not

identified what specific evidence, witness, or trial preparation was lost because of the

delay in bringing him to trial. Hart has not demonstrated a level of prejudice sufficient to

establish a violation of his constitutional right to a speedy trial.

{¶ 94} Hart further argues that the “county jail had a detrimental impact on him

because his liberty was restrained more than had he been sentenced to the penitentiary,”

where he asserts he would have had “more freedom to access recreational or/and

rehabilitative services.” Hart therefore argues that his “excessive pretrial detention”

prejudiced his position. However, as the State asserts, “whatever prejudice Hart thinks

he suffered by having to spend time in jail rather than prison had no impact on his speedy-

trial rights.”

{¶ 95} Based upon the record as a whole, and particularly given the unique

circumstances created by the COVID-19 pandemic, the trial court did not abuse its

discretion in finding that Hart’s claims of statutory and/or constitutional speedy-trial

violations lacked merit. Accordingly, Hart’s first assignment of error is overruled.

{¶ 96} Hart’s second assignment of error is as follows:

THERE WAS INSUFFICIENT, COMPETENT CREDIBLE

EVIDENCE TO SUPPORT APPELLANT’S CONVICTIONS.
 -39-

{¶ 97} Hart challenges the sufficiency of the evidence for all counts. He asserts

that the evidence only supported that he was wearing clothing like the alleged perpetrator;

the evidence did not support that he was the perpetrator. According to Hart, neither

Moore nor Johnson established that he was the shooter.

{¶ 98} Hart argues that State’s Exhibit 23, the home security video, was

inadmissible. He cites Midland Steel Prods., 61 Ohio St.3d 121, 129-30, 573 N.E.2d 98,

which provides:

The admissibility of photographic evidence is based on two different

theories. One theory is the “pictorial testimony” theory. Under this theory,

the photographic evidence is merely illustrative of a witness’ testimony and

it only becomes admissible when a sponsoring witness can testify that it is

a fair and accurate representation of the subject matter, based on the

witness’ personal observation. * * * A second theory under which

photographic evidence may be admissible is the “silent witness” theory.

Under that theory, the photographic evidence is a “silent witness” which

speaks for itself, and is substantive evidence of what it portrays independent

of a sponsoring witness. * * *

Id. at 129-130, quoting Fisher v. State, 7 Ark.App. 1, 5-6, 643 S.W.2d 571, 573-574

(1982).

{¶ 99} Hart argues that Laron testified that he was not home at the time of the

shooting, and therefore the video, although admitted over objection, could not have been

admissible under the first theory as photographic evidence; it was not illustrative of
 -40-

Laron’s testimony based on personal observation. Regarding the silent witness theory,

Hart asserts that Laron’s testimony and experience with the recording system were

insufficient to demonstrate that the video was reliable. According to Hart, the system

cost only $20, the video was incomplete, and Laron claimed the system was motion-

detecting; in Hart’s view, the process and the mechanisms for recording the video should

have required expert testimony, so that the defense could challenge or determine the

alleged reliability. Moreover, Hart asserts that, even if the video were properly admitted,

it only established that a black man was around the property at the time of the shooting.

{¶ 100} Hart asserts that the testimony by law enforcement officers also did not

“establish a consistent story” to support that he was the perpetrator. He argues that

“inconsistent stories” about the truck and who was in it were insufficient to support his

conviction.

{¶ 101} In particular, Hart argues that his conviction for tampering with evidence

was not supported in the record; because he was allegedly the driver, and the gun came

out of the passenger-side window, he asserts that the evidence was insufficient to

establish that he disposed of the alleged gun.

{¶ 102} The State responds that the surveillance video from Moore’s home “clearly

showed Hart get into the driver’s seat of the truck with the handgun in his possession,”

and the fact that the gun was thrown out the passenger-side window was of no

consequence. According to the State, there was no evidence to suggest that Hart could

not have thrown the gun out the passenger-side window while he was driving. Moreover,

Officer Wagers testified that he personally observed Hart flee from the driver’s side of the
 -41-

vehicle. Regarding Hart’s suggestion that the security video was unreliable and

inadmissible, the State asserts that the “totality of the evidence * * * satisfied the reliability

and relevancy requirements for the admission of video-recorded evidence.”

{¶ 103} As this Court has noted:

“A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the

case to go to the jury or sustain the verdict as a matter of law.” State v.

Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State

v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). We apply the

test from State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), which

states that:

An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed,

would convince the average mind of the defendant's guilt beyond a

reasonable doubt. The relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

When reviewing a weight of the evidence challenge, a court reviews

“the entire record, weighs the evidence and all reasonable inferences,
 -42-

considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered. The discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485

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

Further, while “sufficiency and manifest weight are different legal

concepts, manifest weight may subsume sufficiency in conducting the

analysis; that is, a finding that a conviction is supported by the manifest

weight of the evidence necessarily includes a finding of sufficiency.” State

v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11.

Accord State v. Robinson, 2d Dist. Montgomery No. 26441, 2015-Ohio-

1167, ¶ 17. Accordingly, “a determination that a conviction is supported by

the weight of the evidence will also be dispositive of the issue of sufficiency.”

State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

Additionally, “[b]ecause the factfinder * * * has the opportunity to see

and hear the witnesses, the cautious exercise of the discretionary power of

a court of appeals to find that a judgment is against the manifest weight of

the evidence requires that substantial deference be extended to the

factfinder's determinations of credibility. The decision whether, and to

what extent, to credit the testimony of particular witnesses is within the
 -43-

peculiar competence of the factfinder, who has seen and heard the

witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). “The fact that the evidence is subject to

different interpretations does not render the conviction against the manifest

weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-

61 and 2013-CA-62, 2014-Ohio-3432, ¶ 24.

State v. Sizemore, 2d Dist. Montgomery No. 28817, 2021-Ohio-4159, ¶ 13-16.

{¶ 104} We have reviewed the State’s evidence herein. Having examined the

evidence in a light most favorable to the State, and deferring to the jury’s assessment of

credibility, we conclude that, if believed, the evidence would convince the average mind

of Hart’s guilt beyond a reasonable doubt for each of his offenses, and that his convictions

were not against the manifest weight of the evidence.

{¶ 105} R.C. 2923.161 proscribes improperly discharging a firearm at or into a

habitation and provides: “(A) No person, without privilege to do so, shall knowingly do any

of the following: (1) Discharge a firearm at or into an occupied structure that is a

permanent or temporary habitation of any individual.”

{¶ 106} Johnson testified that she observed a stocky black male, in a “gray beater

and some shorts,” whom she did not know, “back up in front of the house” in a manner

that concerned her; he then approached the house on foot. Johnson stated that she did

not observe anyone else in the area, and she saw “something in his pocket.” After she

turned around to approach Moore, she heard gunshots and dove to the floor. Johnson

stated that she heard Hart leave in his truck, and squealing tires were audible the home
 -44-

security video. Moore described bullets coming through her mirror and shattering her

storm door. The photographic evidence was consistent with her testimony.

{¶ 107} Regarding the video, Laron testified that he installed the Geeni Wi-Fi

camera in the front upstairs window, connected it to Wi-Fi, and downloaded an application

to his phone to connect to the camera. In determining the admissibility of the video, it

was significant to the court that the date and time-stamp on the video were consistent

with the witnesses’ testimony about when the incident occurred. After viewing the video,

Johnson returned to the stand outside the presence of the jury and stated that the red

truck in the video was consistent with what she had personally observed on August 18,

2019. She further identified the area around her home in the video, including the chain

link fence to the left of the red truck, the driveway, the walkway leading up to the home,

and the homes across the street. Johnson confirmed that the video reflected the black

man in a gray “beater” that she had observed approach her home on August 18.

{¶ 108} Laron also testified that he recognized his driveway, the walkway to the

home, the adjacent chain link fence, the front porch and awning, and the neighboring

homes in the video. Laron testified that State’s Exhibit 23 was the portion of the video

that he had saved to his phone and retrieved, and that he had not altered it. Consistent

with Midland Steel Prods., we conclude that the court properly admitted the video under

the “silent witness theory” following Johnson’s and Laron’s authentication of it. While

expert testimony is often offered to explain matters beyond the common knowledge and

experience of lay persons, the trial court could have reasonably concluded that expert

testimony was not required herein regarding the operability and reliability of the security
 -45-

camera. The video depicted Hart getting out of the truck, looking around, approaching

the house, being briefly hidden from view by the porch awning while gun fire was heard,

then returning to the truck while still firing his gun, and driving away from the home.

Other occupants were visible in the truck, and Hart was wearing a gray tank top-style shirt

and black shorts. The number of occupants in the vehicle was not a material fact. We

note that the angle of the video was consistent with having been recorded in the upstairs

window, and the person depicted in the rear of Wagers’ cruiser in State’s Exhibit 27 is the

same individual depicted in State’s Exhibit 23, in the same clothing.

{¶ 109} Stiver testified that he responded to Moore’s address to collect a spent

bullet from her bedroom and to the area of Gettysburg and Gardendale Avenues, where

an empty box of ammunition, a revolver, and four live rounds had been found; State’s

Exhibits 38-55 depicted these items before they were moved. Stiver testified that he was

also dispatched to photograph the red truck and its contents, and he identified State’s

Exhibits 28-33 as his photos. Stiver testified that he recovered a live bullet on the

floorboard of the truck, and the live round fit the .38 revolver.

{¶ 110} Burns, a firearms examiner, testified that State’s Exhibit 37, the Rohm RG,

38 special caliber revolver, was operational and that a microscopic comparison revealed

that State’s Exhibit 34, the shell casing, had been fired by State’s Exhibit 37; two other

recovered casings had also been fired from State’s Exhibit 37. Based upon the

foregoing, Hart’s conviction for improperly discharging a weapon into a habitation was

supported by sufficient evidence and was not against the manifest weight of the evidence.

{¶ 111} R.C. 2925.11(A) provides: “No person shall knowingly obtain, possess, or
 -46-

use a controlled substance or a controlled substance analog.” R.C. 2925.11(C)(1)(c)

states that, if “the amount of the drug involved exceeds the bulk amount but is less than

fifty times the bulk amount, aggravated possession of drugs is a felony of the second

degree, and the court shall impose as a mandatory prison term a second degree felony

mandatory prison term.” Ambrose testified that he had removed a suspected bag of

methamphetamine from Hart’s pocket, and a forensic chemist testified that she had tested

the substance and found it to be methamphetamine with a net weight of 55.78 grams.

Thus, Hart’s conviction for aggravated possession was supported by sufficient evidence

and was not against the manifest weight of the evidence.

{¶ 112} R.C. 2921.331 proscribes failure to comply with an order or signal of a

police officer. It states, in part:

(B) No person shall operate a motor vehicle so as willfully to elude or flee a

police officer after receiving a visible or audible signal from a police officer

to bring the person's motor vehicle to a stop.

(C)(1) Whoever violates this section is guilty of failure to comply with an

order or signal of a police officer.

***

(5)(a) A violation of division (B) of this section is a felony of the third degree

if the jury or judge as trier of fact finds any of the following by proof beyond

a reasonable doubt:

(i) The operation of the motor vehicle by the offender was a proximate cause

of serious physical harm to persons or property.
 -47-

(ii) The operation of the motor vehicle by the offender caused a substantial

risk of serious physical harm to persons or property.

{¶ 113} Exhibit 24, the cruiser camera video identified by Ambrose, reflected his

and Harris’s lengthy pursuit of Hart. In the course of the pursuit, Hart had gone the wrong

way and driven through several yards and through a chain length fence, all at an

excessive speed while being pursued by multiple officers signaling him to stop with lights

and sirens; in doing so, he endangered the lives of his passengers and others along the

way. Ambrose testified that his cruiser was totaled in the course of the pursuant, and

the video showed the cruiser hitting an embankment and stopping. Ambrose further

testified that Hart stopped because he hit a parked car in a driveway. Hart’s conviction

for failure to comply with an order or signal of a police officer was supported by sufficient

evidence and not against the manifest weight of the evidence.

{¶ 114} R.C. 2923.13 provides:

(A) Unless relieved from disability under operation of law or legal

process, no person shall knowingly acquire, have, carry, or use any firearm

or dangerous ordnance, if any of the following apply:

(1) The person is a fugitive from justice.

(2) The person is under indictment for or has been convicted of any

felony offense of violence or has been adjudicated a delinquent child for the

commission of an offense that, if committed by an adult, would have been

a felony offense of violence.

{¶ 115} As the trial court determined, a reasonable juror could have concluded
 -48-

from the cruiser camera footage that Hart “was doing everything he could to avoid

apprehension.” Ambrose also testified that, in the course of identifying Hart, Ambrose

informed Hart that there was a warrant for his arrest, and “he said he knew.” Further,

the State introduced two judgment entries of conviction related to Hart through the

testimony of Matthew Gray, a detective: Exhibit 62, Hart’s 2013 conviction for attempted

felonious assault; and Exhibit 63, Hart’s conviction in Case No. 2018-CR-1754 for having

weapons while under disability (prior offense of violence). Gray also identified Hart in

the courtroom. Based upon the foregoing, Hart’s convictions for having weapons while

under disability -- fugitive from justice and prior offense of violence -- were supported by

sufficient evidence and were not against the manifest weight of the evidence.

{¶ 116} R.C. 2921.12 proscribes tampering with the evidence; it states: “(A) No

person, knowing that an official proceeding or investigation is in progress, or is about to

be or likely to be instituted, shall do any of the following: (1) Alter, destroy, conceal, or

remove any record, document, or thing, with purpose to impair its value or availability as

evidence in such proceeding or investigation.”

{¶ 117} Ambrose testified that he was in the area of North Gettysburg and

Gardendale Avenues when Harris stated that something had been thrown out the window

of the truck in the course of their pursuit. On State’s Exhibit 27, Harris can be heard

saying “just tossed something out the window here.” Officer Stiver testified that he

responded to the area and photographed the items, namely the empty box of ammunition,

the revolver, and 4 live rounds, as they were found, and he identified them for the jury.

As the trial court found in addressing Hart’s motion for acquittal, “a reasonable juror could
 -49-

infer that * * * the driver did, in fact, toss the weapon and the ammo box out of the

passenger window, because we’re not talking about a very great distance.” The court

further noted that, with the window rolled down, “that’d be easy enough to do.” There

was sufficient evidence to support Hart’s conviction for tampering with evidence, and it

was not against the manifest weight of the evidence.

{¶ 118} R.C. 2923.16 proscribes improper handling of a firearm in a motor vehicle:

“(B) No person shall knowingly transport or have a loaded firearm in a motor vehicle in

such a manner that the firearm is accessible to the operator or any passenger without

leaving the vehicle.” In the home security video, Exhibit 23, Hart can be clearly seen

entering his vehicle with the revolver in his hand; the weapon was later found discarded

in an area where he had been observed. Hart’s conviction for improper handling of a

firearm in a motor vehicle was supported by sufficient evidence and was not against the

manifest weight of the evidence.

{¶ 119} Finally, R.C. 2921.13 proscribes falsification: “(A) No person shall

knowingly make a false statement, or knowingly swear or affirm the truth of a false

statement previously made, when any of the following applies: * * * (3) The statement is

made with purpose to mislead a public official in performing the public official's official

function.” Ambrose testified that the occupants of the red truck had provided the name

of Byron Hart to law enforcement, whereas Hart had provided the name “Ryan Hart.”

Ambrose stated that, when he looked up Byron Hart in his computer, he found a picture

to match Hart, and then Hart said “Oh, well, you got me.” Officer Wagers testified that

Hart had provided the name of Ryan Garrell Hart, and that when Wagers compared the
 -50-

Bureau of Motor Vehicles photo of Ryan Hart, it did not match the suspect in his cruiser.

Under these circumstances, a reasonable juror could have concluded that Hart had

attempted to mislead law enforcement officers in performing their official function. Hart’s

conviction for falsification was supported by the evidence and was not against the

manifest weight of the evidence.

{¶ 120} Hart’s second assignment of error is overruled.

{¶ 121} Hart’s third assignment of error is as follows:

THE TRIAL COURT ERRED BY FAILING TO MERGE THE

IMPROPER HANDLING CONVICTION.

{¶ 122} Hart asserts that his two counts of having weapons while under disability

and his count of improper handling of a firearm in a motor vehicle should have merged

into one offense for sentencing. He asserts that the three offenses were of similar import

or significance because they all involved having a weapon in the vehicle and were not

committed separately and because he was alleged to have possessed only one weapon.

Hart cites State v. Russell, 2d Dist. Montgomery No. 24443, 2021-Ohio-871, in support

of his argument.

{¶ 123} The court did merge the two counts of having weapons while under

disability at sentencing, so the only issue in this respect on appeal is whether improper

handling of a firearm should also have also merged. The State asserts that Hart was

under a weapons disability on August 18, 2019, because he was a fugitive from justice

as a result of a previously-issued arrest warrant in an unrelated felony case; the State

argues that Hart had committed the offense of having weapons while under disability as
 -51-

soon as he acquired the firearm. On the other hand, according to the State, Hart

committed the separate offense of improper handling of a firearm in a motor vehicle only

after he got into the red truck with the firearm, carrying it in a manner that the firearm was

accessible to the operator or any passenger without leaving the vehicle. The State

argues that Hart’s possession of the firearm while he was outside of the truck and

shooting at Moore’s house further demonstrated that the offenses were committed with

separate conduct. The State cites State v. Clark, 2d Dist. Clark No. 2015-CA-23, 2016-

Ohio-1560.

{¶ 124} In reply, Hart notes that having the gun was the “same conduct” that

resulted in the convictions for having weapons while under disability and improper

handling of a firearm. According to Hart, there was no evidence to suggest that he got

into the vehicle with the weapon or that he knew, before deciding to possess and shoot

the weapon, that it was in the vehicle. He relies on State v. Fairman, 2d Dist.

Montgomery No. 24299, 2011-Ohio-6489. Hart asserts that “general possession of a

firearm throughout the course of events is not automatically deemed separate animus.”

{¶ 125} As this Court has noted:

In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

the Supreme Court of Ohio clarified the applicable standard to use when

determining whether offenses merge as allied offenses of similar import,

and stated as follows:

Rather than compare the elements of two offenses to

determine whether they are allied offenses of similar import, the
 -52-

analysis must focus on the defendant's conduct to determine

whether one or more convictions may result because an offense may

be committed in a variety of ways and the offenses committed may

have different import. No bright-line rule can govern every situation.

As a practical matter, when determining whether offenses are

allied offenses of similar import within the meaning of R.C. 2941.25,

courts must ask three questions when defendant's conduct supports

multiple offenses: (1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? An affirmative

answer to any of the above will permit separate convictions. The

conduct, the animus, and the import must all be considered.

Ruff at ¶ 30-31.

State v. Crossley, 2020-Ohio-6639, 164 N.E.3d 585, ¶ 16 (2d Dist.).

{¶ 126} In Russell, 2d Dist. Montgomery No. 24443, 2021-Ohio-871, the defendant

argued that his convictions for aggravated robbery and felony murder should have been

merged. Id. at ¶ 18. The court analyzed the issue as follows:

Relying on the provisions of R.C. 2903.02(B) and 2911.01(A)(1), this

court has held previously that a defendant can “commit aggravated robbery

and [felony] murder with the same conduct,” inasmuch as “a victim could

die from the use of a deadly weapon in the course of an aggravated robbery,

resulting in the victim's murder.” McGail, 2015-Ohio-5384, 5 N.E.3d 513, at
 -53-

¶ 54. We find no reason in the instant case to depart from our holding in

McGail; [the victim] Troutwine died in the course of a single, continuous

sequence of events that culminated in the commission of aggravated

robbery and felony murder, with the offenses occurring essentially at the

same time. In the absence of any evidence that Troutwine had been

deprived of property before being shot, the State lacks factual support for

its argument that the aggravated robbery was complete at the moment

Russell's gun discharged, but even assuming that the aggravated robbery

was complete, Troutwine was nevertheless murdered in the course of the

robbery. Consequently, we hold that Russell did not commit the offenses of

aggravated robbery and felony murder separately.

We hold further that the two offenses were of similar import or

significance. The evidence indicates that Troutwine died before Russell

was able to deprive him of his property. See Appellee's Brief 5-6 and 11,

fn.3. Being deceased, Troutwine was not harmed for any practical purpose

by the loss of his property, and arguably, Russell's theft of Troutwine's

property could, at that point, have harmed only Troutwine's estate.

Moreover, the “examin[ation] [of] a defendant's conduct” for purposes of a

merger analysis is “an inherently subjective determination,” and on the facts

of this case, we find that the sole relevant harm suffered by Troutwine was

the loss of his life. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, at ¶ 32.
 -54-

Finally, we hold that Russell did not commit the offenses of

aggravated robbery and felony murder with “separate animus” or motivation

within the meaning of R.C. 2941.25(B). The State did not prove at trial that

Russell acted with a separate intent to kill Troutwine, given that proof of

such intent was unnecessary to obtain a conviction for murder under R.C.

2903.02(B), and the record is long since closed. As it stands, the record

establishes that Russell killed Troutwine accidentally, rather than

purposefully, and because Russell's gun discharged during the struggle

between Russell and Troutwine, we find that Russell's use of force was not

“far in excess of what was necessary to accomplish the robbery.” See

McGail at ¶ 57. Russell's assignment of error is sustained.

Russell at ¶ 20-22.

{¶ 127} In Clark, 2d Dist. Clark No. 2015-CA-23, 2016-Ohio-1560, Clark appealed

from his convictions for possession of heroin and having a handgun while under disability.

Id. at ¶ 1. The facts were as follows: Officer Nichols observed Clark, a suspect in a

domestic violence dispute, driving an SUV. Nichols attempted to pull the SUV over when

Clark failed to signal a turn. Officer Elliott, who was half a block behind, observed Clark

flee the SUV carrying a black bag. After briefly losing sight of Clark, Elliott saw Clark

again, without the black bag. Id. at ¶ 2. John Blue lived across the street from where

Elliott caught up to Clark, and Blue told Elliott that he saw Clark put something in a nearby

trash can. Elliott retrieved a 30-round magazine, a black bag containing a handgun, and

heroin. Id. at ¶ 3.
 -55-

{¶ 128} This Court determined as follows:

Here, Clark contends that the weapons-under-disability and

improper-handling offenses are allied offenses of similar import because

they were committed as one brief act, with one animus. But on facts similar

to those here, we have held that these two offenses are committed with

different conduct, at different times, and with separate animuses. In State

v. Wilcox, 2d Dist. Clark No. 2013-CA-94, 2014-Ohio-4954, we said that the

defendant “committed the offense of having weapons while under disability

when he (necessarily) acquired the gun before he got into the SUV.” Wilcox

at ¶ 20. And we said that the defendant “committed the improper-handling

offense when he brought the gun into the SUV.” Id. Given the time

sequence of the separate acts in Wilcox, we concluded that the offenses

did not merge. Compare State v. Fairman, 2d Dist. Montgomery No.

24299, 2011-Ohio-6489, ¶ 67 (concluding that the offender's convictions for

having a weapon under disability and for felonious assault merged when

the same weapon was used to commit both offenses and there was

evidence that the offender had “obtained the gun with the immediate intent

of shooting” the victim).

Clark at ¶ 8.

{¶ 129} In a footnote in Clark, Judge Hall, the author, noted that he had dissented

in part on the merger issue in Fairman, 2d Dist. Montgomery No. 24299, 2011-Ohio-6489;

Hall took the view in Fairman that the two offenses had been committed by different acts:
 -56-

Fairman had acquired the disability that prevented him from having a firearm by

committing a felony of violence long before he used a firearm to shoot the victim, and that

separate act was unrelated to the felonious assault. Clark at ¶ 8, fn. 1.

{¶ 130} In Hart’s case, the trial court merged Counts 4 and 5, the two counts of

having weapons while under disability. We agree with the State that on the day of the

incident, Hart was under a weapons disability, and he had violated R.C. 2923.13(A)(1) as

soon as he acquired the firearm, whether he was in a vehicle with the weapon or not.

Hart only committed improperly handling of the firearm in a motor vehicle when knowingly

transported or had the firearm in the truck in a manner that it was accessible to him or

any other passenger without leaving the vehicle. Hart was also in possession of the

firearm while shooting into the home outside of the truck. Based upon the foregoing, we

conclude that the trial court did not err in failing to merge Counts 5 and 7.

{¶ 131} Hart’s fourth assignment of error is as follows:

THE TRIAL COURT COMMITTED ERROR BY IMPOSING FEES

WITHOUT FINDING APPELLANT HAD THE MEANS TO PAY.

{¶ 132} Hart asserts that the court costs were not specified in the judgment entry,

and he “worries that these costs may eventually include other costs determined by the

Clerk, but not expressly [determined] by the court.” He also asserts that he lacks the

means to pay, and the trial court did not state in its judgment entry that he had the present

or future ability to pay before imposing sanctions.

{¶ 133} The State responds that the trial court explicitly found that Hart had the

future ability to pay, and there was “no requirement that the specific amount of court costs
 -57-

be identified at sentencing.” The State also notes that Hart did not object to the

imposition of court costs or restitution or request that the court waive court costs.

Although Hart attached a financial disclosure form to his sentencing memorandum, he

asked only that it be considered with respect to any fines. The State points out that fines

are not the same as court costs and, although Hart’s drug conviction required a mandatory

fine, no fine was imposed. The State also notes that, because a sentence must include

an order to pay the costs of prosecution, there is no requirement that a defendant’s ability

to pay be considered.

{¶ 134} Regarding restitution, “R.C. 2929.18(A)(1) authorizes a trial court to

impose restitution as part of a sentence in order to compensate the victim for economic

loss. The statute also provides procedures for determining the amount of restitution

ordered.” State v. Lalain, 136 Ohio St.3d 243, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20.

R.C. 2929.18(A)(1) states:

If the court imposes restitution, the court may base the amount of

restitution it orders on an amount recommended by the victim, the offender,

a presentence investigation report, estimates or receipts indicating the cost

of repairing or replacing property, and other information, provided that the

amount the court orders as restitution shall not exceed the amount of the

economic loss suffered by the victim as a direct and proximate result of the

commission of the offense.

{¶ 135} As this Court has noted:

R.C. 2929.19(B)(6) requires the trial court to consider defendant's
 -58-

present and future ability to pay before imposing any financial sanction

under R.C. 2929.18. State v. Twitty, 2d Dist. Montgomery No. 24296,

2011-Ohio-4725, ¶ 23. Financial sanctions include, for example,

restitution, fines, and reimbursement of the costs of community control

sanctions, confinement, or monitoring devices. R.C. 2929.18.

Court costs are governed by R.C. 2947.23. Court costs are not

financial sanctions. State v. Smith, 3d Dist. Allen No. 1-07-32, 2007-Ohio-

6552, ¶ 11. Consequently, R.C. 2929.19 is inapplicable to court costs, and

the trial court need not consider a defendant's ability to pay under R.C.

2929.19 prior to imposing court costs. E.g, id.; Columbus v. Kiner, 10th

Dist. Franklin No. 11AP-543, 2011-Ohio-6462.

Under R.C. 2947.23, a trial court is required to impose court costs

against all convicted defendants, even those who are indigent. See State

v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.

However, “despite the mandatory language * * * requiring the imposition of

court costs, a trial court may waive the payment of costs.” (Emphasis in

original.) State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d

278, ¶ 11. It is also possible that, during the collection process, the clerk

of courts may waive the collection of court costs for indigent defendants.

See White at ¶ 14 (noting that R.C. 2929.14 was silent as to the collection

of costs from indigent defendants).

A defendant seeking a waiver of the payment of court costs must
 -59-

move for such a waiver at sentencing.6 State v. Threatt, 108 Ohio St.3d

277, 2006-Ohio-905, 843 N.E.2d 164; State v. Stutz, 2d Dist. Montgomery

No. 24489, 2011-Ohio-5210, ¶ 16. The trial court, however, has no duty to

waive court costs, and R.C. 2949.092 does not provide standards for such

waiver. Id., citing State v. Costa, 2d Dist. Greene No. 99 CA 14, 1999 WL

957647 (Sept. 3, 1999). * * *

***

Moreover, the court's imposition of court costs is not erroneous due

to the court's failure to specify the amount of court costs at sentencing.

(The judgment entry imposes costs in the amount of $1,964.34.) The

calculation of the amount of court costs is a ministerial act. Threatt at ¶ 21.

Thus, we have held that the failure to specify the amount at sentencing does

not affect the order's finality and the itemized bill may be calculated later.

State v. Murillo, 2d Dist. Montgomery No. 21919, 2008-Ohio-201, ¶ 14.

(Footnote added.) State v. Lux, 2d Dist. Miami No. 2010-CA-30, 2012-Ohio-112, ¶ 44-

47, 49.

{¶ 136} Although Hart did not object to the order of restitution, the record reflects

that the court expressly considered his PSI and his present and future ability to pay, and

it stayed the payment of the other costs until the restitution to Moore was paid.

{¶ 137} Hart did not request a waiver of the payment of court costs at sentencing,

6
R.C. 2947.23(C), effective in 2014, states: “The court retains jurisdiction to waive,
suspend, or modify the payment of the costs of prosecution, including any costs under
section 2947.231 of the Revised Code, at the time of sentencing or at any time thereafter.”
 -60-

and he cannot challenge the imposition of court costs on direct appeal. Hart’s fourth

assignment of error is overruled.

{¶ 138} Hart’s fifth assignment of error is as follows:

THE TRIAL COURT COMMITTED ERROR BY FAILING TO ALLOW

APPELLANT TO PROCEED PRO SE, WITH STAND BY COUNSEL, AT

TRIAL.

{¶ 139} Hart argues that, prior to trial, when defense counsel represented to the

court that Hart wanted to proceed pro se, the trial court should have inquired about the

request and, if it was found to be knowing, voluntary and intelligent, the court should have

allowed appellant to proceed pro se with standby counsel present. He argues that he

was “clear and unequivocal about proceeding pro se the day of trial.”

{¶ 140} In State v. Lee, 2d Dist. Montgomery No. 28125, 2020-Ohio-3987, upon

which the trial court relied, we stated:

We conduct an independent review to determine whether a

defendant voluntarily, knowingly, and intelligently waived his right to

counsel based on the totality of the circumstances. “Courts are to indulge

every reasonable presumption against the waiver of a fundamental

constitutional right including the right to be represented by counsel.” State

v. Dyer, 117 Ohio App.3d 92, 95, 689 N.E.2d 1034 (1996).:

We appreciate that waiver of counsel is a stormy sea for a trial

court to navigate. There is even a foundational question as to

whether a defendant is waiving a right (assistance of counsel) or
 -61-

asserting a right (self-representation). Further, the self-

representation right has itself been limited by the allowance of

appointment of standby counsel over the self-represented

defendant's objection, McKaskle v. Wiggins, (1984), 465 U.S. 168,

178-179, 104 S.Ct. 944, 79 L.Ed.2d 122, and the mandatory

representation by counsel at trial on the ground the defendant is

competent to stand trial, but lacks the mental capacity to conduct his

trial unless represented. Indiana v. Edwards, (2008), [554] U.S.

[164], 128 S.Ct. 2379, 171 L.Ed.2d 345. And if the judge makes the

wrong call, either the complete denial of counsel, Johnson v. United

States, (1997), 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718, citing

Gideon [v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963)], supra, or the denial of self-representation constitutes

structural error which requires automatic reversal. McKaskle, supra;

State v. Reed, (1996), 74 Ohio St.3d 534, 660 N.E.2d 456.

State v. West, 2d Dist. Greene No. 2015-CA-72, 2017-Ohio-7521, ¶ 47,

quoting State v. Gatewood, 2d Dist. Clark No. 2008 CA 64, 2009-Ohio-

5610, ¶ 33-34.

To ensure that a waiver of counsel is made knowingly, intelligently

and voluntarily, the trial court must make sufficient inquiry to determine

whether a defendant fully understands and intelligently relinquishes that

right. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d
 -62-

1144; State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976). This

Court has previously noted the U.S. Supreme Court's holding that:

“ ‘* * * “The constitutional right of an accused to be

represented by counsel invokes, of itself, the protection of a trial

court, in which the accused—whose life or liberty is at stake—is

without counsel. This protecting duty imposes the serious and

weighty responsibility upon the trial judge of determining whether

there is an intelligent and competent waiver by the accused.”

[Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938).] To discharge this duty properly in light of the strong

presumption against waiver of the constitutional right to counsel, a

judge must investigate as long and as thoroughly as the

circumstances of the case before him demand. The fact that an

accused may tell him that he is informed of his right to counsel and

desires to waive this right does not automatically end the judge's

responsibility. To be valid such waiver must be made with an

apprehension of the nature of the charges, the statutory offenses

included within them, the range of allowable punishments

thereunder, possible defenses to the charges and circumstances in

mitigation thereof, and all other facts essential to a broad

understanding of the whole matter. A judge can make certain that

an accused's professed waiver of counsel is understandingly and
 -63-

wisely made only from a penetrating and comprehensive

examination of all the circumstances under which such a plea is

tendered.’ (Citations omitted.)”

State v. Albert, 2d Dist. Montgomery No. 23148, 2010-Ohio-110, ¶ 12,

quoting Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed.

309 (1948) and citing State v. Engle, 183 Ohio App.3d 488, 2009-Ohio-

1944, 917 N.E.2d 817, ¶ 9-10.

The Tenth Circuit noted in United States v. Hansen, 929 F.3d 1238,

1249-1251 (10th Cir. 2019):

The “tried-and-true method” for a district court to assess whether a

waiver is being made knowingly and intelligently is to “conduct a

thorough and comprehensive formal inquiry of the defendant on the

record.” [United [State v.] Vann, 776 F.3d 746, 763 [(10th Cir.

2015)] (quoting United States v. Willie, 941 F.2d 1384, 1388 (10th

Cir. 1991)). Such a formal inquiry typically takes place in the

context of a waiver hearing, customarily referred to as a Faretta

hearing, in recognition of the Supreme Court's seminal waiver

case, [United States v. Faretta, 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975).] See id. Faretta hearings are intended to

“ensure[ ] the defendant is not unwittingly or impulsively disposing

of his constitutional right to counsel,” id., by determining whether

“the defendant is aware of the nature of the charges, the range of
 -64-

allowable punishments and possible defenses, and is fully informed

of the risks of proceeding pro se,” [United States v. Williamson

(“Brett Williamson”)], 859 F.3d [843,] 862 [(10th Cir. 2017)] (quoting

Vann, 776 F.3d at 763). These topics of inquiry stem from Justice

Black's plurality opinion in Von Moltke [332 U.S. at 724, 68 S.Ct.

316].

***

The Supreme Court has emphasized that the requisite thoroughness of

the district court's inquiry into the relevant factors should be viewed

through a “pragmatic” lens—that is, the degree of thoroughness

should correspond to how “substantial” and “obvious” the dangers

of self-representation are at any particular stage of the criminal

proceedings. Patterson v. Illinois, 487 U.S. 285, 298, 299-300,

108 S.Ct. 2389, 101 L.Ed.2d 261 (1988); see [Iowa v. Tovar, 541

U.S. 77, 90, 124 S.Ct. 1379, 158 L.Ed. 209 (2004)]. (“Patterson

describes a ‘pragmatic approach to the waiver question,’ one that

asks ‘what purposes a lawyer can serve at the particular stage of

the proceedings in question, and what assistance he could provide

to an accused at that stage,’ in order ‘to determine the scope of the

Sixth Amendment right to counsel, and the type of warnings and

procedures that should be required before a waiver of that right will

be recognized.’ ” (quoting Patterson, 487 U.S. at 298, 108 S.Ct.
 -65-

2389)). Thus, as relevant here, the Supreme Court “require[s] a

more searching or formal inquiry before permitting an accused to

waive his right to counsel at trial than [it] require[s] for a Sixth

Amendment waiver during postindictment questioning.” [Id. at 229.]

More specifically, “[w]arnings of the pitfalls of proceeding to trial

without counsel ... must be ‘rigorous[ly]’ conveyed.” Tovar, 541

U.S. at 89, 124 S.Ct. 1379 (second alteration in original) (quoting

Patterson, 487 U.S. at 298, 108 S.Ct. 2389).

“[W]e ‘indulge in every reasonable presumption against

waiver.’ ” United States v. Simpson, 845 F.3d 1039, 1046 (10th

Cir.) (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232,

51 L.Ed.2d 424 (1977)), * * *; see Von Moltke, 332 U.S. at 723-24,

68 S.Ct. 316 (“To discharge this duty [of inquiry] properly in light of

the strong presumption against waiver of the constitutional right to

counsel, a judge must investigate as long and as thoroughly as the

circumstances of the case before him demand.” (emphasis added)

(footnote omitted)); United States v. Padilla, 819 F.2d 952, 956

(10th Cir. 1987) (“The task of ensuring that defendant possesses

the requisite understanding initially falls on the trial judge, who must

bear in mind the strong presumption against waiver.” (emphasis

added)); United States v. Williamson (“John Williamson”), 806 F.2d

216, 219-20 (10th Cir. 1986) (“Courts indulge every presumption
 -66-

against the waiver of fundamental constitutional rights. ... [D]oubts

concerning an attorney waiver must be resolved in the defendant's

favor ....” (citations omitted)).

Nevertheless, the Supreme Court has not “prescribed any

formula or script to be read to a defendant who states that he elects

to proceed without counsel.” Tovar, 541 U.S. at 88, 124 S.Ct. 1379.

Relatedly, the Court has acknowledged that “[t]he information a

defendant must possess in order to make an intelligent election ...

will depend on a range of case-specific factors, including the

defendant's education or sophistication, the complex or easily

grasped nature of the charge, and the stage of the proceeding.” Id.;

see Johnson, 304 U.S. at 464, 58 S.Ct. 1019 (“The determination

of whether there has been an intelligent waiver of right to counsel

must depend, in each case, upon the particular facts and

circumstances surrounding that case, including the background,

experience, and conduct of the accused.”).

Our caselaw embodies the substance of the Supreme

Court's pragmatic approach. Notably, in Padilla, although we held

that “the trial judge should conduct an inquiry sufficient to establish

a defendant's knowledge and understanding of the factors

articulated in Von Moltke,” we also made clear that “[n]o precise

litany is prescribed” for the court's knowing-and-intelligent inquiries.
 -67-

[Padilla], 819 F.2d at 959.

And, relatedly, our cases have repeatedly stressed that the

knowing and intelligent nature of the waiver of the right to counsel

turns on the “totality of the circumstances, including the

background, experience, and conduct of the defendant.” John

Williamson, 806 F.2d at 220; see Vann, 776 F.3d at 763 (“We

reflect on the totality of the circumstances to decide whether a

defendant has knowingly [and intelligently] decided to proceed pro

se.”); Padilla, 819 F.2d at 958 (recognizing that “the question of an

intelligent waiver turns not only on the state of the record [including

presumably the court's inquiry into the Von Moltke factors in a

Faretta hearing], but on all the circumstances of the case, including

the defendant's age and education, his previous experience with

criminal trials, and representation by counsel before trial”

(emphasis added)); [United States v. Weninger, 624 F.2d [163] at

164 (“To ascertain whether [a defendant] knowingly and

intelligently waived his right to counsel, we must consider ‘the total

circumstances of the individual case including background,

experience and the conduct of the accused person.’ ” (quoting

United States v. Warledo, 557 F.2d 721, 727 (10th Cir. 1977))); see

also Turner, 287 F.3d at 983 (endorsing an inquiry into “the

surrounding facts and circumstances” to determine whether a
 -68-

defendant knowingly and intelligently waived the right to counsel);

cf. John Williamson, 806 F.2d at 219 (noting that “[e]ach case must

be reviewed individually, with the objective of determining whether

the judge fully inquired into the circumstances”).

In United States v. Ductan, 800 F.3d 642 (4th Cir. 2015), the Fourth Circuit

further noted:

In addition to requiring that a waiver be knowing and

intelligent as a constitutional minimum, we have imposed one other

requirement. In Fields, we noted the “thin line between improperly

allowing the defendant to proceed pro se, thereby violating his right

to counsel, and improperly having the defendant proceed with

counsel, thereby violating his right to self-representation.” [Fields

v. Murray,] 49 F.3d [1024] at 1029 (internal quotation mark

omitted). Acknowledging that “[a] skillful defendant could

manipulate this dilemma to create reversible error,” we held that a

waiver of counsel through the election of self-representation must

be more than knowing and intelligent: it must also be “clear[ ] and

unequivocal[ ].” Id. We explained that this requirement “greatly

aids the trial court in resolving this dilemma” by allowing the court

to presume that “the defendant should proceed with counsel absent

an unmistakable expression by the defendant that so to proceed is

contrary to his wishes.” Id. (emphasis added).
 -69-

Id., quoting Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995).

Lee at ¶ 40-43.

{¶ 141} Hart directs our attention to State v. Watson, 132 Ohio App.3d 57, 62, 724

N.E.2d 469 (8th Dist.1998), wherein Watson argued that he had been improperly denied

his right to self-representation. The Eighth District determined as follows:

* * * [O]nce the appellant clearly and unequivocally informed the trial

court that he wished to represent himself, the court was obligated to

determine whether the defendant knowingly, voluntarily, and intelligently

waived his right to counsel. The court's failure to inquire whether appellant

knowingly, intelligently, and voluntarily waived his right to counsel violated

appellant's Sixth Amendment right to defend himself.

Id. at 66.

{¶ 142} While Watson’s demand for self-representation was unequivocal, such

was clearly not the case here. As noted above, at the July 29, 2020 scheduling

conference, the court indicated that at an earlier date, Hart had requested to represent

himself, and that the court had satisfied itself that Hart “was in earnest.” Hart then

indicated that he wanted Attorney Sack to represent him. At the pretrial conference on

August 19, 2020, Hart notified the court that he wanted to represent himself with Sack as

standby counsel, and the court provided a waiver form for Sack to review with Hart. On

August 26, 2020, less than a week before the scheduled trial date of August 31, 2020,

Sack advised the court that she had reviewed the waiver form with Hart. After a lengthy

colloquy about waiving counsel, the court took a recess to allow Hart to talk to Sack;
 -70-

thereafter, Hart indicated that he wanted Sack to represent him in all respects at trial.

Then, after discussing having the weapons while under disability count tried to the bench,

Hart again changed his mind. At this point, Hart requested a competency evaluation,

and the court granted the motion. On June 10, 2021, at a final pretrial conference, the

court noted that Hart had executed a waiver of counsel form on November 23, 2020, and

Lieberman had been assigned as standby counsel. In its entry of June 28, 2021, the

court noted Hart’s “ongoing, unrelenting equivocation about self-representation” and

revoked Hart’s right to proceed pro se, noting Lieberman’s representation that Hart’s

brother had been searching for substitute counsel.

{¶ 143} We cannot conclude that the record reflects an intelligent and competent

waiver by Hart. Considering the totality of the circumstances, especially Hart’s repeated

equivocation, the trial court could not have been certain that Hart’s November 23, 2020

waiver was understandingly and intelligently made. While the court represented that it

had conducted the thorough and formal inquiry required before the waiver was executed

and noted that it intended to do so again on the first day of trial, Hart impulsively vacillated.

The court was required to indulge every reasonable presumption against waiver. Hart

was facing eight charges in a complex trial. Hart’s PSI stated that he had only an

eleventh grade education, and the court noted that he had never before represented

himself. Based upon the foregoing, Hart’s fifth assignment of error is overruled.

{¶ 144} Having overruled all of Hart’s assigned errors, we conclude that we

nevertheless must remand the matter to the trial court for resentencing. In imposing

sentence, pursuant to the Reagan Tokes Act, the trial court failed to advise Hart of all the
 -71-

notifications set forth in R.C. 2929.19(B)(2)(c), and they also were not included in the

judgment entry of conviction. Further, pursuant to R.C. 2929.144, since the court

imposed consecutive sentences, it was required to establish an aggregate minimum term

by adding the minimum terms of the qualifying offenses to the definite terms (8 yrs. + 8

yrs. + 36 mos. + 36 mos. + 36 mos. + 18 mos. = 26.5 years) for the felonies. It was then

required to calculate the maximum term by adding 50 percent of the longest minimum

term of eight years, or four years (26.5 + 4 = 30.5 years for the felonies). The court was

then required to set forth the aggregate minimum term of 26.5 years and the maximum

term of 30.5 years for the felonies in the judgment entry of conviction. See State v.

McLean, 2d Dist. Montgomery No. 29268, 2022-Ohio-2806. The trial court’s calculation

was incorrect. Upon remand, the court is instructed to comply with the Reagan Tokes

Act in imposing sentence.

{¶ 145} The judgment of the trial court is affirmed in part and reversed in part, and

the matter is remanded for resentencing.

.............

WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
 -72-

Anthony J. Richardson, II
Hon. Steven K. Dankof