State v. Smith

[Cite as State v. Smith, 2021-Ohio-1936.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 19AP-170
v. : (C.P.C. No. 17CR-6560)

Brandon D. Smith, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on June 8, 2021

On brief: [G. Gary Tyack], Prosecuting Attorney, and
Kimberly M. Bond, for appellee.

On brief: Siewert & Gjostein Co., LPA, and Thomas A.
Gjostein, for appellant. Argued: Thomas A. Gjostein.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.
{¶ 1} Defendant-appellant, Brandon D. Smith, appeals a judgment of conviction
and sentence entered by the Franklin County Court of Common Pleas on February 20, 2019
pursuant to a jury verdict finding him guilty of aggravated robbery and robbery. For the
following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Jeffrey Bragg, II, and Matthew Crawford are friends who attended high
school together. On November 6, 2017, Crawford agreed to drive Bragg to the airport for a
flight leaving that afternoon to Oregon. Prior to Bragg's departure, Bragg and Crawford ran
errands, which first took them to Chase Bank on Clime Road in Columbus, Ohio. Bragg
went into the bank alone while Crawford remained in his car, a white Volvo. As he entered
the bank, Bragg passed a woman later identified as Wendy Montgomery. After passing,
No. 19AP-170 2

Montgomery turned and came back into line behind Bragg. Montgomery struck up a
conversation with Bragg. At the teller's counter, Bragg exchanged the bills in his possession
for larger denominations, amounting to about $6,000 in cash. Bragg's exchange with the
bank teller was overheard by Montgomery. Bragg then left the bank returning to Crawford's
car. Bragg asked Crawford to "[w]ait one second" because he had a "weird feeling" about
the woman, Montgomery, who was behind him in the bank. (Nov. 6, 2018 Tr. Vol. II at
181.) Bragg and Crawford watched Montgomery as she left the bank and got into a blue
Cadillac parked in front of the bank with what Bragg believed to be three men in the car.
Bragg wanted to make sure the men did not follow while Bragg and Crawford continued
their errands.
{¶ 3} Crawford pulled out of the Chase Bank parking lot and, according to Bragg,
the Cadillac with Montgomery and the three men was behind him but turned before
Crawford and Bragg reached their next destination, the Fifth Third Bank on Holt Road in
Columbus, Ohio. Crawford went into the bank leaving Bragg in the passenger seat of the
car with the engine running. While texting on his cell phone, Bragg acknowledged someone
who he thought was Crawford getting into the car. Looking over to the driver's side of the
car, Bragg saw a man who was not Crawford—a young African-American male who then
asked Bragg for his belongings. Bragg refused and opened the passenger side door. As
Bragg opened the door, another male appeared, jumping onto Bragg. Initially Bragg
believed the male on top of him was punching him in the stomach, until the third blow when
he recognized a shiny object that looked like a blade in the hand of his assailant. Bragg
immediately grabbed his assailant's wrist while the male in the driver's seat put Crawford's
car into reverse, driving the car around the back of the bank toward Santino's Pizzeria. As
the driver made a left turn, Bragg threw his assailant out the car door, then looked right at
the driver before yanking the steering wheel of the car causing the car to crash into a pole
at the back of the pizzeria.
{¶ 4} While in Fifth Third Bank, Crawford saw his car reverse in the parking lot and
he ran out of the building as his car was taking off and making a left turn. Crawford testified
that a male was hanging onto the passenger side door as the car pulled away, but was
thrown off the car when it made the left turn causing him to roll off the car. Crawford ran
toward the male who fell just before his car hit a pole in the back of the pizzeria. Crawford
then went to his car to check on Bragg.
No. 19AP-170 3

{¶ 5} Upon impact with the pole, the airbags deployed and the driver ran over to
Bragg where an altercation ensued as the driver attempted to take Bragg's backpack and
bank envelope. The second male from the passenger side of the car also appeared and
struggled for Bragg's backpack. Bragg managed to maintain his backpack while the two
men ran away with Bragg's bank envelope down a back alley behind the pizzeria toward the
coffee shop. The bank envelope was empty as Bragg had already put the money into his
wallet. Bragg sustained injuries in the altercation which he testified resulted from the
blade.
{¶ 6} Detective David P. Phillips with the Columbus Police Department ("CPD")
robbery unit responded to the Fifth Third Bank on Holt Road on November 6, 2017 and
performed a preliminary investigation by speaking with witnesses, surveying the scene, and
then contacting the Crime Scene Search Unit. Detective Thomas W. Burton, assigned to
the CPD robbery unit, Crime Scene Search Unit, arrived at the scene at the request of
Detective Phillips. While at the scene, Detective Burton processed the scene by taking
photographs and collecting evidence; a black lighter and a cell phone found outside the
driver's side door. At the request of Detective Phillips, Detective Burton retrieved trace
evidence using DNA swabs from the black lighter, cell phone, and the steering wheel and
gearshift from Crawford's car.
{¶ 7} Based on a conversation with witnesses and Bragg and Crawford, Detective
Phillips believed that a female came into contact with Bragg at Chase Bank prior to the
robbery. Detective Phillips went to the Chase Bank where Bragg exchanged his money and
spoke with the teller familiar with the woman who came into contact with Bragg earlier that
day. The teller identified the woman as Montgomery, indicating that Montgomery opened
a checking account. The teller provided Detective Phillips with contact information for
Montgomery and still photographs, one of Montgomery speaking with Bragg while in the
bank and another of a Cadillac with a soft convertible top that was believed to be involved
in the robbery. Although the Fifth Third Bank did not have surveillance video or exterior
cameras, Detective Phillips interviewed two employees from the nearby PNC Bank, also
located on Holt Road, who observed two African-American males run and jump into a light
blue Cadillac parked in the PNC Bank parking lot.
{¶ 8} In addition to other witnesses, Detective Phillips spoke with Montgomery
through the course of his investigation and developed names of possible suspects; appellant
No. 19AP-170 4

and Terrael Alls. Two separate photo arrays were created by Detective Phillips. In the
photo arrays, Bragg identified Alls as the male who cut him with a blade, but was unable to
identify appellant. Bragg later identified appellant during one of the court dates prior to
trial as the first male involved in the robbery who jumped into Crawford's driver's seat.
Crawford recognized Alls from his freshman year in high school and was able to identify
Alls in the photo array as the male who fell off his car. Crawford indicated to police that he
did not get a good look at the driver of his car, therefore a photo array of appellant was not
presented to Crawford. Montgomery identified both appellant and Alls in the photo arrays
presented to her. At some point, Savion Martinez and Montgomery admitted they waited
in appellant's blue Cadillac convertible during the robbery and Alls admitted to taking part
in the robbery.
{¶ 9} Appellant was arrested at the home of the mother of his child on
November 27, 2017 for the robbery involving Bragg and Crawford. At the same time, CPD
impounded a blue Cadillac with a convertible top that was at one time titled to appellant
and parked in front of the home where appellant was arrested. Detective Phillips believed
the same Cadillac was involved in the November 6, 2017 robbery. A small pocketknife was
found in the Cadillac and swabbed for DNA.
{¶ 10} Detective Phillips requested DNA testing from the trace evidence collected by
Detective Burton from the scene of the robbery as part of the investigation. DNA samples
were also taken from appellant, Alls, Bragg, and Crawford by Detective Phillips. Miranda
Aufiero, a DNA analyst from the CPD crime lab, was admitted as an expert at trial and
provided the results of the DNA testing. The results of the trace evidence collected at the
scene of the robbery using DNA swabs were inconclusive due to insufficient quality or
quantity of the DNA from the black lighter, pocketknife, front of the cell phone, steering
wheel, and gearshift. The DNA swab from the front of the cell phone resulted in a mixture
of four DNA profiles; however, expert analysis determined appellant was the major
contributor.
{¶ 11} On December 6, 2017, appellant was indicted for the following criminal
offenses that occurred on or about November 6, 2017: aggravated robbery, in violation of
R.C. 2911.01 a felony in the first degree; robbery, in violation of R.C. 2911.02 a felony in the
second degree; robbery, in violation of R.C. 2911.02 a felony in the third degree;
kidnapping, in violation of R.C. 2905.01 a felony in the first degree; and attempted grand
No. 19AP-170 5

theft of a motor vehicle, in violation of R.C. 2923.02 a felony in the fifth degree. Two victims
are named in the indictment, Bragg and Crawford.
{¶ 12} Prior to trial, plaintiff-appellee, State of Ohio, dismissed Counts 3, 4, and 5 of
the indictment, specifically: robbery, in violation of R.C. 2911.02; kidnapping, in violation
of R.C. 2905.01; and attempted grand theft of a motor vehicle, in violation of R.C. 2923.02.
{¶ 13} On November 6, 2018, appellant proceeded to trial and was represented by
counsel. Bragg, Crawford, Montgomery, Detective Phillips, Detective Burton, and Aufiero
testified. The matter was tried to a jury who, after deliberation, found appellant guilty of
aggravated robbery and robbery. Appellant was scheduled to be sentenced on
December 19, 2018.
{¶ 14} On November 26, 2018, the state filed a motion on speedy trial and requested
a hearing. The state's motion was filed in response to appellant's November 7, 2018 oral
motion to dismiss based on a violation of his speedy trial rights. The state's motion
indicates the state became aware of State v. Price, 122 Ohio App.3d 65 (10th Dist.1997) the
day after trial and, on review, filed their motion to present the requisite evidence in accord
with Price in support of the state's position that appellant's speedy trial rights were not
violated. Price. The trial court converted appellant's sentencing hearing to a motion
hearing. Appellant filed a response to the state's motion on January 11, 2019 and the state
filed supplemental motions in support on January 2 and 14, 2019, and a memorandum
contra on January 16, 2019.
{¶ 15} The state's motion on speedy trial came for an evidentiary hearing on
January 30, 2019. The trial court took the matter under advisement after the presentation
of witness testimony and admission of exhibits. On February 5, 2019, the trial court filed
an entry denying appellant's motion to dismiss for speedy trial violation, finding "[i]n light
of the numerous time-waivers that defense counsel executed on Defendant's behalf; the
periods of continuances granted on Defendant's behalf; and the periods of reasonable
continuances granted other than upon Defendant's motions, this Court finds that
Defendant's R.C. 2945.71 speedy-trial rights have not been violated." (Entry at 6.)
{¶ 16} On February 20, 2019, the trial court conducted a sentencing hearing. The
state conceded that Counts 1 and 2 merge and elected to have appellant sentenced to Count
1 only. The trial court imposed a sentence of 8 years as to Count 1 of the indictment, with 5
years mandatory post-release control, and a jail-time credit of 233 days.
No. 19AP-170 6

{¶ 17} Appellant filed a timely notice of appeal.
II. Assignments of Error
{¶ 18} Appellant assigns the following three assignments of error for our review:
[I.] THE APPELLANT HAD HIS RIGHTS TO DUE PROCESS
OF LAW VIOLATED UNDER ARTICLE 1, SECTION 10 OF
THE OHIO CONSTITUTION AND THE SIXTH
AMENDMENT OF THE UNITED STATES CONSTITUTION,
WHEN TRIAL COUNSEL WAS RENDERED INEFFECTIVE
FOR FAILING TO OBJECT TO THE COURT'S ERROR IN
MISCALCULATING THE NUMBER OF PREEMPTORY
CHALLENGES IN VOIRE [SIC] DIRE, AND FOR FAILING
TO RAISE THE AFFIRMATIVE DEFENSE OF AN ALIBI.

[II.] APPELLANT'S RIGHT TO A SPEEDY TRIAL WAS
VIOLATED AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE
OHIO CONSTITUTION, AND AS GUARANTEED BY
STATUTE PURSUANT TO OHIO [R]EVISED CODE §2945.71
ET SEQ.

[III.] APPELLANT'S CONVICTION WAS NOT SUPPORTED
BY THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTIONS 1 & 16 OF THE OHIO
CONSTITUTION AND THE CONVICTION WAS ALSO
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

III. Analysis
A. First Assignment of Error: Appellant's Claim of Ineffective Assistance of
Counsel is Without Merit

{¶ 19} In his first assignment of error, appellant asserts a claim of ineffective
assistance of counsel. In support, appellant raises the following issues: (1) counsel
miscalculated the number of peremptory challenges, (2) counsel failed to assert affirmative
defenses on behalf of appellant, and (3) there was a breakdown in the attorney-client
relationship.
{¶ 20} "The benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that the
trial [court] cannot be relied on as having produced a just result." Strickland v.
No. 19AP-170 7

Washington, 466 U.S. 668, 686 (1984). An ineffective assistance of counsel claim must
satisfy a two-prong test under Strickland. First, appellant must demonstrate that trial
counsel's performance was deficient. Id. at 687. A deficient performance requires a
showing that counsel committed errors which were "so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id.
Second, appellant must be able to prove prejudice by the deficient performance of counsel.
Id. "The defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
In considering claims of ineffective assistance of counsel, courts indulge in a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
{¶ 21} In support of his claim of ineffective assistance of counsel, appellant first
argues counsel was deficient by failing to object to the court's miscalculation of the
remaining number of peremptory challenges.1 Appellant avers this alleged failure amounts
to not only ineffective assistance of counsel, but also reversible error.
{¶ 22} Peremptory challenges are governed by Crim.R. 24(D), which addresses the
number of available peremptory challenges, and Crim.R. 24(E), which addresses the
manner in which preemptory challenges are exercised. In non-capital felony cases, and
applicable to the matter before us, each party may peremptorily challenge four prospective
jurors. Crim.R. 24(D). The manner of exercising peremptory challenges is governed by
Crim.R. 24(E), which provides:
Peremptory challenges shall be exercised alternately, with the
first challenge exercised by the state. The failure of a party to
exercise a peremptory challenge constitutes a waiver of that
challenge, but does not constitute a waiver of any subsequent
challenge. However, if all parties, alternately and in sequence,

1 In addition to his argument regarding the exercise and calculation of peremptory challenges, appellant

argues the trial court judge misstated the controlling rule applicable to peremptory challenges. The record
reflects the trial judge stated: "Pursuant to Criminal Rule 47, you have four peremptories with respect to the
first 12 members of the panel. Then you have one preemptory with respect to the two alternates, whomever
they end up being at the time." (Nov. 6, 2018 Tr. Vol. II at 139.) Review of the record reflects that although the
number of the applicable rule of criminal procedure was incorrectly cited by the trial court, the statement of
the law was correct. (See Nov. 6, 2018 Tr. Vol. II at 139.) Appellant points to no place in the record that would
lead this court to believe that the misstatement of the number of the rule of criminal procedure led to confusion
for appellant's counsel.
No. 19AP-170 8

fail to exercise a peremptory challenge, the joint failure
constitutes a waiver of all peremptory challenges.

(Emphasis added.)
{¶ 23} The record reflects the following: The state exercised its first peremptory
challenge and appellant passed. The state exercised its second peremptory challenge, and
then appellant exercised his second. As to the third peremptory challenge, the state passed,
then appellant passed. Upon appellant failing to exercise his third peremptory challenge,
the trial court concluded "[a]ll right. So that means the challenges will stop with respect to
the first 12." (Nov. 6, 2018 Tr. Vol. II at 141.) Appellant believes that one peremptory
challenge remained after both the state and appellant waived their third peremptory
challenge, and as a result a miscalculation occurred. Appellant avers that this
miscalculation, whether on the part of the court or appellant's counsel, rises to the level of
plain error.
{¶ 24} A staff note to Crim.R. 24 regarding a July 1, 2005 amendment states,
"Crim.R. 24 is amended to reflect four recommendations of the Task Force on Jury Service.
See Report and Recommendations of the Supreme Court of Ohio Task Force on Jury
Service (February 2004)." As to Crim.R. 24(E), the staff note specifically provides:
RULE 24(E) Manner of exercising peremptory
challenges

New Crim.R. 24(E) (formerly Crim.R. 24(D)) is amended to
make two related principles regarding peremptory challenges
more clear. One principle is that failure of a party to exercise a
given peremptory challenge waives that challenge but does not
waive any other peremptory challenges to which the party may
otherwise be entitled.

The other principle is that consecutive passes by all parties or
sides waives all remaining peremptory challenges. The Task
Force concluded that, contrary to the language and intent of
former Crim.R. 24(D), "often courts and attorneys will assume
that once a peremptory challenge is waived all remaining
peremptory challenges are waived." Report and
Recommendations, supra, at 22. The amended language is
designed to deter the incorrect assumption perceived by the
Task Force.
No. 19AP-170 9

(Emphasis added.) July 1, 2005 Staff Note, Ohio Crim. R. 24. Accordingly, failure to
exercise a given peremptory challenge does not waive other peremptory challenges,
however, consecutive passes by all sides waives all remaining peremptory challenges.
{¶ 25} In support of his argument that the trial court committed reversible error,
appellant points to Columbus v. Hunt, 10th Dist. No. 88AP-512 (Mar. 30, 1989). We find
Hunt to be instructive for another reason, however, in particular the holding that Crim.R.
24(D) expressly provides that the failure of a party to exercise a peremptory challenge shall
constitute a waiver of that challenge. Id.
{¶ 26} The Eighth District Court of Appeals explains the mechanics of Crim.R. 24(E)
by comparing the difference between waiver of a peremptory challenge, and waiver of all
remaining peremptory challenges by holding:
We disagree with the defendant's contention that by virtue of
waiving its third peremptory challenge, the state waived any
remaining peremptory challenges. Crim.R. 24 clearly provides
that "the failure of a party to exercise a peremptory challenge
constitutes a waiver of that challenge." [Emphasis added]. The
rule then states that a waiver of all remaining peremptory
challenges does not occur until and unless all parties,
alternately and in sequence, fail to exercise a peremptory
challenge.

(Emphasis added.) State v. Skipper, 8th Dist. No. 81963, 2003-Ohio-3531, ¶ 26-27; see
also State v. Jones, 160 Ohio St.3d 314, 321, 2020-Ohio-3051, ¶ 26 (in accord with Crim.R.
24(E), when the state failed to exercise the state's third and final peremptory challenge, he
waived it, and the trial court erred in permitting him the opportunity to subsequently
exercise it against any juror); State v. Smith, 1st Dist. No. C-180227, 2020-Ohio-649, ¶ 23-
25 (waiver of opportunity to exercise fourth peremptory challenge as to selection of
prospective jurors does not allow for an additional pick).
{¶ 27} On review of the record, we find the trial court did not miscalculate the
number of peremptory challenges but, rather, pursuant to Crim.R. 24(E), the state and
appellant failed to exercise peremptory challenges alternately and in sequence, constituting
a waiver of all peremptory challenges and therefore the peremptory challenges were
waived. Contrary to the argument of appellant, one peremptory challenge did not remain.
{¶ 28} In further support of his claim of ineffective assistance of counsel, appellant
argues that trial counsel failed to file a notice of alibi involving at least one witness,
No. 19AP-170 10

appellant's co-worker, and counsel failed to call appellant's co-defendant, Alls, against
appellant's wishes. Pre-trial issues on the record reflect that, at the commencement of trial,
appellant's counsel stated he did not file a notice of alibi and did not intend to call any
witnesses, other than for cross-examination, and that appellant did not intend to testify.
Defense counsel indicated to the trial court that appellant told a detective he was at work,
presumably during the commission of the crime; however, defense counsel informed the
court he did not have any witnesses to call.
{¶ 29} The possibility of an alibi defense was explored during trial when counsel
inquired on cross-examination of Detective Phillips and his investigation into appellant's
employment at a local barbershop. Detective Phillips answered on cross-examination that
he visited the barbershop and spoke with appellant's manager who indicated he was not
able to provide a set schedule for appellant as the barbers can come and go, and the video
cameras at the barbershop and a business nearby could not verify appellant's presence.
{¶ 30} A discussion between appellant's trial counsel and the trial judge on the
record reflects that appellant wished for counsel to call Alls to testify, but appellant's
counsel was opposed. Appellant's trial counsel stated: "I'm going to try to talk him out of
it. I've given him the transcript." (Nov. 7, 2018 Tr. Vol. III at 361.) Ultimately, counsel did
not elect to call Alls to the stand despite the record reflecting statements by counsel that
this was against appellant's wishes.
{¶ 31} This court has held:
[T]he decision whether to call a witness is generally a matter of
trial strategy. See State v. Treesh, 90 Ohio St.3d 460, 490
(2001) ("Generally, counsel's decision whether to call a witness
falls within the rubric of trial strategy and will not be second-
guessed by a reviewing court"); State v. Smith, 115 Ohio App.3d
419, 426 (3d Dist.1996) ("it is well established that counsel's
decisions concerning which witnesses to call at trial fall within
the realm of trial strategy and tactics and generally will not
constitute ineffective assistance of counsel").

State v. Dunkle, 10th Dist. No. 13AP-687, 2014-Ohio-1028, ¶ 19.
{¶ 32} We note the trial record does not contain a proffer of what appellant's co-
worker or Alls would have testified to had they been called as a witness, nor do we have
specifics as to appellant's alleged alibi other than what we can glean from the record.
Counsel's cross-examination of Detective Phillips was thorough and did not establish the
No. 19AP-170 11

prospect of an alibi. Further, appellant's counsel's statements are clear that Alls was not a
witness he intended to call. Statements made by appellant's counsel reflect that counsel
discussed the matter of Alls testifying with appellant and provided appellant with a
transcript, presumably related to testimony or statements given by Alls. Appellant's
counsel's decision whether to file notice of an alibi defense and what witnesses to call are
squarely within counsel's purview as trial tactic and strategy and based on review of the
record in this case, this court will not second guess the decision of appellant's trial counsel.
{¶ 33} Appellant's last argument in support of his claim of ineffective assistance of
counsel alleges the attorney-client relationship broke down. In support, appellant cites to
a portion of the trial during which appellant requested new counsel and alleged ineffective
assistance of counsel related to speedy trial issues. As further evidence of the breakdown,
appellant points to a conversation between counsel and the trial court discussing whether
appellant will call Alls to the stand where counsel states "[h]e's wearing me out." (Nov. 7,
2018 Tr. Vol. III at 360.) At the conclusion of the exchange, the trial court denied
appellant's request for new counsel.2
{¶ 34} In Citibank, N.A. v. Lapierre, 10th Dist. No. 13AP-30, 2013-Ohio-3016, ¶ 7,
this court held:
In relevant part, App.R. 16 requires that an appellant shall
include in its brief "[a] statement of the assignments of error

2 In denying appellant's request for new counsel, the trial court responded to appellant's request for new
counsel and a continuance for the same with the following:

All right. Upon review of the arguments of counsel and the commentary from Mr. Smith, I
feel compelled to explain to you, Mr. Smith, that what you're asking for is inherently
contradictry [sic] and it really doesn't make any sense.

Because on one hand you've argued that your speedy trial rights have been violated and you
want to get to trial, you want to get to resolution. Yet, just one minute later you're asking the
Court to grant a continuance, to leave you in jail even longer for some unknown duration of
time, for you to try to contact an attorney, come up with money to retain an attorney, let that
attorney prepare for trial which could take several months; and that doesn't make any sense.
You're either in a hurry to resolve this case or you're not in a hurry and you want more time
to try to get a new lawyer and start this whole process over again.

What I find that this really means is you're coming up with bizarre delay tactics that are
intended to disrupt the decorum and the importance of these proceedings, and I don't take
kindly to that.

So your request for a continuance to obtain new counsel is denied.

(Nov. 7, 2018 Tr. Vol. III at 310-11.)
No. 19AP-170 12

presented for review, with reference to the place in the record
where each error is reflected" and "[a] statement of the issues
presented for review, with references to the assignments of
error to which each issue relates." App.R. 16(A)(3) & (4).
Pursuant to App.R. 12(A)(1)(b), appellate courts must
"[d]etermine [an] appeal on its merits on the assignments of
error set forth in the briefs under App.R. 16." "Thus, this court
rules on assignments of error only, and will not address mere
arguments." Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-
Ohio-553, ¶ 70.

As this allegation was not raised as an assignment of error, the court will not address
appellant's argument regarding a breakdown of the attorney-client relationship.
{¶ 35} On review of appellant's arguments in support of his claim of ineffective
assistance of counsel, this court does not find counsel's performance was deficient in his
representation and even if arguendo appellant had so established, appellant has not made
any allegation that he was prejudiced by the course of action undertaken by counsel or that
he was prejudiced as a result. Strickland at 686.
{¶ 36} Accordingly, we overrule appellant's first assignment of error.
B. Second Assignment of Error: Appellant's Oral Motion on the Second
Day of Trial Failed to Timely Assert Violation of Appellant's Speedy Trial
Rights

{¶ 37} In his second assignment of error, appellant asserts his right to a speedy trial
was violated.
{¶ 38} "In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have been
committed." Sixth Amendment to the U.S. Constitution. The Ohio Constitution separately
guarantees the right to a speedy trial in Article I, Section 10. State v. Boyce, 10th Dist. No.
19AP-313, 2021-Ohio-712, ¶ 9, citing State v. Williams, 10th Dist. No. 13AP-992, 2014-
Ohio-2737, ¶ 10, citing Barker v. Wingo, 407 U.S. 514, 515 (1972). In analyzing a claim that
the state violated a defendant's constitutional speedy trial rights, courts utilize a two-
pronged inquiry. " 'First, the defendant must make a threshold showing of a "presumptively
prejudicial" delay to trigger application of the Barker analysis.' " State v. Squillace, 10th
Dist. No. 15AP-958, 2016-Ohio-1038, ¶ 22, quoting State v. Sellers, 10th Dist. No. 08AP-
810, 2009-Ohio-2231, ¶ 14, citing Doggett v. United States, 505 U.S. 647, 651-52 (1992).
"If a presumptively prejudicial delay exists, then the second inquiry requires the court to
No. 19AP-170 13

consider (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion
of the speedy trial right, and (4) the resulting prejudice to the defendant." Squillace at ¶ 22,
citing Doggett at 651. Generally, delay is presumptively prejudicial as it approaches one
year. State v. Keaton, 10th Dist. No. 16AP-716, 2017-Ohio-7036, ¶ 9.3
{¶ 39} Pursuant to R.C. 2945.71(C): "A person against whom a charge of felony is
pending: * * * (2) Shall be brought to trial within two hundred seventy days after the
person's arrest." R.C. 2945.71(E) provides, in relevant part, that for purposes of computing
time, each day during which a defendant is held in lieu of bail on the pending charge shall
be counted as three days. A defendant may be discharged if he or she is not brought to trial
within the time required by R.C. 2945.71(C)(2); however, the motion must be "made at or
prior to the commencement of trial." (Emphasis added.) R.C. 2945.73(B). The Supreme
Court of Ohio holds: "[An] appellant's failure to file a motion to dismiss on speedy trial
grounds prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue
on appeal." State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 37, citing State v.
Thompson, 97 Ohio App.3d 183, 186-87 (6th Dist.1994).
{¶ 40} On the second day of trial, appellant raised, pro se, an oral motion that his
speedy trial rights were violated. While presenting his argument to the trial court, appellant
stated he wanted to raise the issue of speedy trial at a hearing held on August 27, 2018, but
did not.4 Appellant argued that his counsel's approval with regard to continuances was
without his consent and further that he never waived his rights otherwise. Appellant then
requested the court calculate the number of days that the criminal charges against him have
been pending. In response, the state denied the assertions of appellant and requested the
court proceed, pointing out that appellant's motion was raised during the second day of
trial. The trial court indicated that on its own review of the record, the court was satisfied
that the proper continuances were made and concluded the inquiry.

3 Appellant argues he was arrested over 360 days prior to the commencement of his trial as he was arrested
on November 27, 2017 and trial commenced November 6, 2018. Review of Ohio case law reveals it would be
a close call whether 360 days reaches the "presumptively prejudicial" threshold contemplated in the first step
of the Barker analysis. Furthermore, appellant's delay in asserting his speedy trial rights on the second day of
trial must also be considered and weighed against him.

4 The trial court noted in its entry filed February 5, 2019 denying appellant's motion to dismiss based on speedy

trial rights, "[a]t no time on November 5, 2018 or November 6, 2018 did Defendant or his attorney address
statutory speedy trial rights with the Court." (Entry at 3.)
No. 19AP-170 14

{¶ 41} The state argues, pursuant to R.C. 2945.73(B), appellant should have raised
his motion at or prior to the commencement of trial. Appellant also cites Crim.R. 12(C)(1)
in support of this position, which requires that "[p]rior to trial, any party may raise by
motion any defense, objection, evidentiary issue, or request that is capable of determination
without the trial of the general issue. The following must be raised before trial: (1) Defenses
and objections based on defects in the institution of the prosecution." Appellant did not file
a reply brief in response to the state's position stated herein.
{¶ 42} The Second District recently reiterated a holding by the Supreme Court on
such a waiver: "An appellant's 'failure to file a motion to dismiss on speedy trial grounds
prior to trial and pursuant to R.C. 2945.73(B) prevents him from raising the issue on
appeal.' State v. Humphrey, 2d Dist. Clark No. 02-CA-25, 2003-Ohio-2825, ¶ 17, citing
State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 37." State v. Taylor, 2d Dist. No.
28463, 2020-Ohio-3481, ¶ 32. Regarding the same, this court has held:
The constitutional and statutory rights of speedy trial may be
waived, which was done in this case. The foregoing statute
quite plainly provided for a motion to be made "at or prior to
the commencement of trial." The record does not show such
motion was made by, or for, appellant. The right to speedy trial
is essentially guaranteed by federal and state constitutions. It
is also statutory in Ohio, which defines the basis and limits of
such right, by statute. Consequently, waiver of the right to
speedy trial includes waiver not only in the context of
constitutional standards but also within the provisions of
statutory requirements defining speedy trial by establishing the
specific time limitations for bringing a person to trial.

Columbus v. Long, 10th Dist. No. 75AP-688 (May 13, 1976). In Long, this court
distinguished two cases cited by counsel in support of the argument on appeal, State v.
Cross, 26 Ohio St.2d 270 (1971), and State v. Coatoam, 45 Ohio App.2d 183 (11th
Dist.1975), highlighting that those cases involved motions for discharge being made prior
to or at the commencement of trial, and noting that Long's failure to do so constitutes a
waiver and "any other view would render the statute meaningless." Long.
{¶ 43} This court has also held, "where, within such required period, the case is set
for trial for a date after the expiration of the required period, and the defendant is given
ample notice thereof, he may not sit [idly] by and let the time within which he should be
No. 19AP-170 15

brought to trial expire and then take advantage of the provisions of R.C. 2945.73(D)." State
v. Westbrook, 47 Ohio App.2d 211, 215 (10th Dist.1975).
{¶ 44} With regard to waiver, we also note the record before us contains several
instances in which appellant's counsel waived his speedy trial rights by jointly requesting a
continuance with the state and in one instance appellant's counsel requested a continuance
because he was in trial. Although appellant argues he was not in agreement with his
counsel, this court has previously recognized that a defendant is bound by his counsel's
waiver even if the waiver may have been executed without the defendant's consent. In State
v. Watson, 10th Dist. No. 13AP-148, 2013-Ohio-5603, ¶ 23, this court observed the
Supreme Court's analysis of this issue in Taylor, 2002-Ohio-7017, and State v. McBreen,
54 Ohio St.2d 315 (1978):
In State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-7017, the
defendant discharged his appointed counsel shortly before trial
and proceeded pro se. The defendant in Taylor asserted that
McBreen was distinguishable from his case, because he
"objected to the waiver [of his speedy trial rights] filed by
counsel and demanded that counsel be discharged." Taylor at
¶ 33. The Supreme Court rejected the defendant's argument
and noted that "[u]nder the McBreen syllabus, counsel could
validly waive defendant's right to a speedy trial without his
consent." Id. at ¶ 36. Accordingly, based on the holdings in
Taylor and McBreen, we find unpersuasive defendant's
contention that the continuances executed by his appointed
counsel were ineffective simply because defendant later sought
to discharge his appointed counsel. See also State v. Palo, 11th
Dist. No. 2002-A-0095, 2005-Ohio-6906.

{¶ 45} In support that appellant's right to a speedy trial was violated, appellant
argues in accord with Price that the state was required, at the time appellant made his
motion to dismiss on speedy trial grounds, to provide the necessary evidence to prove the
trial was within the speedy trial limit and if not, dismissal was required because appellant
presented a prima facia case, i.e. 270 days had passed since appellant was arrested. See
R.C. 2945.71(C)(2). The state argues appellant's argument herein is misplaced, citing Price
at 69, footnote 2, holding that the state could have addressed this issue at sentencing. The
state distinguishes the timeline here as appellant's speedy trial motion was heard on
No. 19AP-170 16

January 30, 2019, after appellant was convicted but prior to sentencing.5 We find no merit
to appellant's argument.
{¶ 46} Accordingly, for the reasons articulated above, we overrule appellant's
second assignment of error.
C. Appellant's Conviction was not Against the Manifest Weight of the
Evidence and Therefore was Also Supported by Sufficient Evidence

{¶ 47} In his third assignment of error, appellant asserts his conviction was not
supported by sufficient evidence and was against the manifest weight of the evidence. In
support, appellant points in particular to: (1) Bragg and Crawford's inability to initially
identify appellant and Bragg's subsequent identifications which he deems were improper,
(2) the "perversely unbelievable" testimony presented by Montgomery, and (3) lack of
appellant's DNA evidence at the scene.
{¶ 48} Although 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. No. 10AP-881, 2011-Ohio-3161, ¶ 11,
citing State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. Thus, a
determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency. Id. In that regard, we first examine whether
appellant's convictions are supported by the manifest weight of the evidence. Id., see
State v. Sowell, 10th Dist. No. 06AP-443, 2008-Ohio-3285, ¶ 89.
{¶ 49} An appellate court acts as a "thirteenth juror" when determining whether a
verdict is against the manifest weight of the evidence. State v. Phillips, 10th Dist. No. 14AP-
79, 2014-Ohio-5162, ¶ 125. "Under this standard of review, an appellate court weighs the
evidence in order to determine whether the trier of fact 'clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.' " Id., quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). "However, in
engaging in this weighing, an appellate court must bear in mind the factfinder's superior,

5On November 26, 2018, the state filed a motion on speedy trial stating it became aware of Price the day after
appellant raised his oral motion for dismissal based on a speedy trial violation. Based on the state's reading of
the requirements provided in Price, the state, in its motion, laid out the chronological history and evidence in
support of its position that appellant's speedy trial rights were not violated.
No. 19AP-170 17

first-hand perspective in judging the demeanor and credibility of witnesses." Id., citing
State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.
{¶ 50} In support of his third assignment of error, appellant argues the jury's
conviction was not supported by sufficient evidence and was against the manifest weight of
the evidence because neither Bragg nor Crawford were initially able to identify appellant in
the CPD photo array.
{¶ 51} "[A] witness' inability or unwillingness to identify a defendant in a pre-trial
setting does not necessarily discredit an in-court identification." State v. Ndiaye, 10th Dist.
No. 13AP-964, 2014-Ohio-3206, ¶ 9, citing State v. Dennis, 10th Dist. No. 05AP-1290,
2006-Ohio-5777, ¶ 13 (witness' in-court identification does not render verdict against the
manifest weight of the evidence even though witness was unable to identify the defendant
in a photo array prior to trial); State v. Johnson, 163 Ohio App.3d 132, 2005-Ohio-4243,
¶ 57 (10th Dist.) (finding a witness' failure to identify a defendant in a black and white photo
array prior to trial did not discount the witness' confident, in-person identification of the
defendant during a bindover hearing).
{¶ 52} Bragg testified that a young African-American male jumped into the driver's
seat next to him while he was waiting for Crawford. Bragg testified that although he looked
right at the male's face when he got into the car, he could not identify him in the photo array
because he was not sure and did not want to falsely accuse someone. Subsequently, at a
court appearance, Bragg saw appellant in the hallway and informed the prosecutor that the
individual he saw in the hallway was the person who jumped into the driver's seat next to
him.
{¶ 53} On cross-examination, Bragg explained he had no doubt who appellant was:
"When I just seen his face, I wasn't exactly sure; but when I seen his whole build and how
he was looking at me in the courtroom, I already knew - - or in the hallway, I knew exactly
who it was; because it was the same person that was sitting next to me in the car." (Nov. 6,
2018 Tr. Vol. II at 204.) The second victim, Crawford, was not provided with a photo array
to identify appellant based on statements made by Crawford to law enforcement that he did
not get a good look at the driver at the time of the robbery.
{¶ 54} At trial, Bragg testified he was not sure when he saw the photo array and he
did not want to falsely accuse someone. Bragg's inability to identify appellant in a photo
array, and statements that he was not willing to identify someone in error, does not
No. 19AP-170 18

discredit Bragg's subsequent identification of appellant. In fact, Bragg's response to cross-
examination reflects confidence in his identification and any previous hesitation on the part
of Bragg shows a genuine understanding of the importance of accurate identification.
{¶ 55} Appellant furthers his argument that the jury's conviction was against the
manifest weight of the evidence by asserting that Bragg improperly and prejudicially
identified him. Bragg testified he viewed pictures of appellant and Alls on CPD's Facebook
page, however, Bragg's testimony reflects he believed he identified appellant in court prior
to viewing details regarding the robbery on CPD's Facebook page. Crawford viewed a post
on Facebook that provided a description of the robbery, but no pictures.
{¶ 56} The jury heard the testimonies of Bragg and Crawford regarding their ability
to identify appellant and the credibility given to the testimony was weighed by the jury with
the balance of the remaining evidence and testimony.
{¶ 57} Appellant next supports his argument that the jury's verdict was not
supported by sufficient evidence and was against the manifest weight of the evidence by
classifying Montgomery as the one who "caused" the robbery and further describing the
testimony given by Montgomery as "perversely unbelievable." (Appellant's Brief at 28-29.)
This court notes that appellant does not provide further specifics as to his issue with the
testimony given by Montgomery, or why appellant deems the testimony to be "perversely
unbelievable."
{¶ 58} Montgomery testified she was with her boyfriend, Martinez, and Alls on
November 6, 2017. Montgomery testified Martinez called appellant to give Montgomery a
ride to Chase Bank. Montgomery identified appellant as the owner of a blue Cadillac and
the person who gave her a ride to Chase Bank. Martinez and Alls accompanied appellant
and Montgomery in appellant's car to Chase Bank. Montgomery could not recall if she went
to Chase Bank to open a bank account or make a deposit, but did recall that Bragg was in
line in front of her and she struck up a conversation with him about his tattoos.
{¶ 59} Once Montgomery left the bank and returned to the car, she informed the
three men waiting in the car that the man in front of her at the bank withdrew a large sum
of cash, approximately $6,000. From there, Montgomery testified she was not aware that
the car she was in, driven by appellant, was following Crawford and Bragg, but that the
white Volvo was several cars in front of them. Montgomery testified appellant parked his
car by a coffee shop on Holt Road, which was on the opposite end of the location of Santino's
No. 19AP-170 19

pizzeria. Appellant then exited the car with Alls. Once appellant and Alls exited the car,
Martinez slid over to the driver's seat. Montgomery testified that appellant and Alls did not
say why they left the car and she did not know what they were doing. A few minutes later,
appellant and Alls retuned and the group drove back to Montgomery's home. Once in the
home, appellant asked if anyone had seen his cell phone.
{¶ 60} Montgomery identified appellant in a photo array for CPD and at trial during
her testimony. Montgomery testified to having a criminal record and also a history of drug
use that began after the death of her child. Appellant describes Montgomery as the person
who caused the robbery and participated as much as appellant and Alls without getting into
Crawford's car.
{¶ 61} The jury was given specific instructions by the trial court regarding how to
assess the testimony of Montgomery:
Testimony was introduced tending to show that a witness,
[Montgomery], had been convicted of crimes. You may only
consider this testimony to judge her credibility and the weight
to be given to her testimony. You may not consider the prior
convictions for any other purpose.

You have heard testimony from [Montgomery], who may be
said to be an accomplice. The testimony of an accomplice does
not become inadmissible because of her complicity, moral
turpitude, or self-interest; but the admitted or claimed
complicity of a witness, as well as any special motives she may
have in testifying, may affect her credibility and make her
testimony subject to grave suspicion and require that it be
weighted - - weighed with great caution.

It is for you, the jurors, in light of all the facts presented to you
from the witness stand, to evaluate such testimony and to
determine its quality and worth, or its lack of quality and worth.

(Nov. 7, 2018 Tr. Vol. III at 485.)
{¶ 62} Whether appellant takes issue with Montgomery's drug use, criminal history,
or presence in appellant's car during the commission of the robbery, the jury heard the
testimony given by Montgomery and weighed the given testimony in accord with the
instructions given by the trial court.
{¶ 63} In appellant's last argument in support that the jury's conviction was not
supported by sufficient evidence and was against the manifest weight of the evidence,
No. 19AP-170 20

appellant asserts the only piece of evidence linking him to the crime is DNA discovered on
a cell phone found outside the victim's car, along with the DNA of four other individuals.
Appellant further contends that no DNA evidence was found on the steering wheel or
gearshift where appellant was purportedly driving. However, the evidence and testimony
at trial reflect that a cell phone with appellant's DNA as the major contributor was found
outside the driver's side door of Crawford's car at the scene of the robbery. Further,
Montgomery testified that after the incident occurred, appellant asked if anyone had seen
his cell phone.
{¶ 64} In addition to specific instruction on how to evaluate the testimony of
Montgomery, the trial court also gave the following instructions to the jury describing its
role in assessing credibility and weight of the evidence:
You are the sole judges of the facts, the credibility of the
witnesses, and the weight of the evidence.

To weigh the evidence you must consider the credibility of the
witnesses. You will apply the tests of truthfulness which you
apply in your daily lives.

These tests include the appearance of each witness upon the
stand; the manner - - the witness' manner of testifying; the
reasonableness of the testimony; the opportunity the witness
had to see, hear, and know the things concerning the
testimony; the accuracy of the witness' memory; frankness, or
lack of it; intelligence; interest; and bias, if any; together with
all the facts and circumstances surrounding the testimony.

Applying these tests you will assign to the testimony of each
witness such weight as you deem proper.

You are not required to believe the testimony of any witness
simply because he or she was under oath. You may believe or
disbelieve all or any part of the testimony of any witness. It is
your province to determine what testimony is worthy of belief
and what testimony is not worthy of belief.

***

The testimony of one witness, if believed by you, is sufficient to
prove any fact.

(Nov. 7, 2018 Tr. Vol. III at 481-83.)
No. 19AP-170 21

{¶ 65} This court has held the factfinder is in the best position to observe the
demeanor, voice inflection, and gestures of the witnesses as they testify. State v. Williams,
10th Dist. No. 02AP-35, 2002-Ohio-4503, ¶ 58. "In determining witness credibility, the
jury is entitled to consider the reasonableness of the testimony and all the facts and
circumstances surrounding the testimony." State v. Brown, 10th Dist. No. 15AP-935, 2016-
Ohio-7944, ¶ 35, citing State v. Ealy, 10th Dist. No. 15AP-600, 2016-Ohio-1185. Here, the
jury had the opportunity to evaluate the demeanor and testimony of each witness and the
facts and circumstances surrounding the testimony and, on deliberation, found appellant
guilty of robbery and aggravated robbery. Bearing in mind the factfinder's superior, first-
hand perspective, and on review of the record, this court in weighing the evidence as the
thirteenth juror, does not find the jury lost its way.
{¶ 66} Accordingly, we overrule the third assignment of error.
IV. Conclusion
{¶ 67} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
MENTEL and BROGAN, JJ., concur.
BROGAN, J., retired, formerly of the Second Appellate District,
Assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).