State v. Jones

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[Cite as State v. Jones, 2021-Ohio-3359.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA STATE OF OHIO, : Plaintiff-Appellee, : No. 110081 v. : SHAWN JONES, : Defendant-Appellant. : JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 23, 2021 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-19-638172-A and CR-19-638173-A Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee. Dean A. Colovas, for appellant. LARRY A. JONES, SR., J.: Defendant-appellant, Shawn Jones (“Jones”), appeals his multiple rape convictions rendered after a jury trial. For the reasons that follow, we affirm. In 2019, Jones was charged in Cuyahoga C.P. No. CR-19-638172 with four counts of rape, one count of attempted rape, and three counts of gross sexual imposition; the alleged victim in all counts was under the age of 13. Each count had an additional specification alleging that Jones was a sexually violent predator. He was charged in Cuyahoga C.P. No. CR-19-638173 with carrying concealed weapons, improperly handling firearms in a motor vehicle, and two counts of having weapons while under disability. During the pretrial process, Jones filed numerous motions, including motions to dismiss and motions to suppress. In one of his motions, he moved to dismiss his case based on a violation of his speedy-trial rights that the trial court denied. The sexually violent predator specifications were dismissed prior to trial. The two cases were tried together. The record reflects that Jones began inappropriately touching the victim when she was 12 years old. She was still 12 years old when he began raping her. The victim and her family contacted the police, who investigated, and issued a warrant for Jones’s arrest. On March 12, 2019, the police pulled Jones over in his car. After a prolonged standoff, Jones surrendered and a .40-caliber semi- automatic loaded handgun was recovered from the driver’s side door of his Ford Taurus. A jury convicted Jones of all counts in both cases except it acquitted him of one count of having weapons while under disability in Case No. CR-19638173. Jones was sentenced to a total sentence of life in prison with a possibility of parole after 25 years and ordered to forfeit the Ford Taurus and .40-caliber handgun. Jones filed this appeal and raises three assignments of error for our review. Further facts will be discussed under the pertinent assignments of error. Assignments of Error I. The trial court erred by denying Defendant-Appellant’s motion to dismiss based on a violation of his right to a speedy trial as guaranteed by statute and also the respective constitutions of both the State of Ohio and the United States of America. II. Defendant-Appellant was denied his constitutional right to due process and a fair and impartial jury by virtue of an abuse of discretion on behalf of the trial court in denying a request to dismiss a juror for cause who had professed potential bias and was unable to unequivocally state that he could be fair and impartial. III. Defendant-Appellant is entitled to a new trial on the basis of ineffective assistance of counsel in violation of his rights to due process as guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution. Analysis and Discussion In the first assignment of error, Jones contends that the trial court erred in denying his motion to dismiss his indictments based on violations of his statutory and constitutional rights to a speedy trial. 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. Article I, Section 10 of the Ohio Constitution guarantees an accused this same right. State v. MacDonald, 48 Ohio St.2d 66, 68, 357 N.E.2d 40 (1976). Although the United States Supreme Court declined to establish the exact number of days within which a trial must be held, it recognized that states may prescribe a reasonable period of time consistent with constitutional requirements. Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In response to this authority, Ohio enacted R.C. 2945.71 that designates specific time requirements for the state to bring an accused to trial. Pursuant to R.C. 2945.71(C)(2), the state must bring a defendant to trial on felony charges within 270 days of arrest. The statutory speedy-trial period begins to run on the date the defendant is arrested, although the date of arrest is not counted when calculating speedy-trial time. State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 44, citing State v. Tatum, 3d Dist. Seneca No. 1310-18, 2011-Ohio-3005. Once the statutory limit has expired, the defendant has established a prima facie case for dismissal. State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). At that point, the burden shifts to the state to demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. Brecksville v. Cook, 75 Ohio St.3d 53, 55-56, 661 N.E.2d 706 (1996). If the state has violated a defendant’s right to a speedy trial, then the court must dismiss the charges against the defendant. R.C. 2945.73(B). Speedy-trial time is tolled by certain events delineated in R.C. 2945.72. Such tolling events include “[a]ny period of delay occasioned by the neglect or improper act of the accused,” any period of delay “necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused, and any continuances granted upon the accused’s own motion,” and a “period of any reasonable continuance granted” upon any other party’s motion. R.C. 2945.72(D), (E), and (H). A defendant’s demand for discovery tolls the speedy-trial time until the state responds to the discovery, or for a reasonable time, whichever is sooner. State v. Shabazz, 8th Dist. Cuyahoga No. 95021, 2011-Ohio2260, ¶ 26, 31; R.C. 2945.72(E). Thus, the tolling period for a motion filed by the accused provides a “reasonable time” for the state to respond to motions and the court to rule on them. Courts have ruled that “30 days” is a “reasonable time.” State v. Walker, 8th Dist. Cuyahoga No. 99239, 2013-Ohio-3522, ¶ 15, citing State v. Byrd, 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283. Also, a reasonable continuance by the court that is agreed to by defense counsel extends the speedytrial limit. State v. McRae, 55 Ohio St.2d 149, 152-153, 378 N.E.2d 476 (1978), Cleveland v. Wronko, 8th Dist. Cuyahoga No. 52132, 1987 Ohio App. LEXIS 6764, 9 (May 14, 1987). Under the “triple-count provision” contained in R.C. 2945.71(E), each day a defendant is held in jail in lieu of bail counts as three days in the speedy-trial time calculation. However, in MacDonald, 48 Ohio St.2d 66, 357 N.E.2d 40, the Ohio Supreme Court held the triple-count provision applies “only to those defendants held in jail in lieu of bail solely on the pending charge.” Id. at paragraph one of the syllabus. As such, when an accused is also being held in jail on another charge, the triple-count provision does not apply. Additionally, “[t]he Ohio Attorney General has opined that courts may suspend jury trials to prevent the spread of the coronavirus and they may do so consistent with state and federal speedy-trial obligations.” In re Disqualification of Paris, 161 Ohio St.3d 1285, 2020-Ohio-6875, 164 N.E.3d 509, ¶ 5, quoting In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio5636, 163 N.E.3d 609, ¶ 7, citing 2020 Ohio Atty.Gen.Ops. No. 2020-002. In Fleegle, the Ohio Supreme Court held that trial judges have the authority to continue trials for defendants on a case-by-case basis without violating speedytrial requirements and continuing a trial because of a pandemic state of emergency is reasonable under R.C. 2945.72(H). Fleegle at id. When reviewing a speedy-trial question, an appellate court must count the number of delays chargeable to each side and then determine whether the number of days not tolled exceeded the time limits under R.C. 2945.71. State v. Ferrell, 8th Dist. Cuyahoga No. 93003, 2010-Ohio-2882, ¶ 20. Furthermore, this court must construe the statutes strictly against the state when reviewing the legal issues in a speedy-trial claim. Cook, 75 Ohio St.3d at 57, 661 N.E.2d 70. Jones was arrested on March 12, 2019, and was scheduled to be arraigned on March 26, but the case was continued to March 27 at Jones’s request. As of March 26, 2019, 14 days of speedy-trial time had elapsed. On March 27, Jones filed his motions for discovery and bill of particulars that tolled the time for one day until the state responded on March 28. The first pretrial was held on April 1; at this point, a total of 17 days of untolled calendar time had expired. The case was continued several times from April to August at Jones’s request for ongoing discovery. Two days of untolled calendar days expired when pretrials were not held on July 15 and July 31, 2019 (they were held on July 16 and August 1 respectively), bringing the total to 19 days that are not counted against Jones. Jones, who represented himself during stages of the pretrial process, also requested new standby counsel and was examined for competency to represent himself at trial during this time. See State v. George, 8th Dist. Cuyahoga No. 106317, 2018-Ohio-5156, ¶ 18 (A trial court’s order for a competency examination tolls the speedy-trial time.). Beginning in September 2019, Jones filed a series of motions including motions to dismiss, motion to suppress evidence, and a motion for the trial court to recuse itself, all which tolled time. In October 2019, Jones filed another motion for the trial court to recuse itself, and on October 18, 2019, the Ohio Supreme Court stayed all proceedings until its ruling on Jones’s affidavit of disqualification. On November 12, the Ohio Supreme Court ruled that the affidavit was meritless. On November 15, Jones moved to reinstate standby counsel and the court continued the case at Jones’s request until December 2. From December 2, the court was unavailable for trial and the parties agreed to a February 18, 2020 trial date. The trial did not begin on February 18; the reason is not stated in the docket. On February 19, 2020, the trial was continued at the state’s request due to witness unavailability. On March 19, 2020, the courthouse was closed due to the COVID-19 pandemic. As a result, the trial court continued the trial date until May 11, 2020. From February 18 to March 19, 2020, 30 untolled calendar days ran, making a total of 49 elapsed speedy-trial days. On May 5, 2020, a pretrial occurred and the case was continued to June 4 to select a new trial date because the COVID-19 pandemic was still ongoing, the court was closed to the public, and no jury trials were being held. The pretrial set for June 4 did not occur until June 10; therefore, 6 days passed for a total of 55 days not counted against Jones. The next pretrial occurred on June 10, 2020, and the trial court reset trial for August 24, 2020 because of the ongoing COVID-19 pandemic. On August 11, a pretrial occurred and the trial court scheduled a new trial date for October 14 at Jones’s request and due to the COVID-19 pandemic; the court continued the trial date from October 14 until October 19. On September 16, 2020, Jones filed his motion to dismiss based on speedy-trial violations. On October 19, 2020, the trial court heard Jones’s motion and denied it. Trial began on October 20, 2020. As an initial matter, the state contends that the triple-count provision set forth in R.C. 2945.71(E) does not apply to this case because Jones was in jail awaiting trial on two separate cases. Jones contends that the triplecount provision is applicable because he was arrested and indicted for both crimes on the same day, the two cases share an identical litigation history, and there was a common nexus between the two cases. See State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d 1032, ¶ 21 (“When multiple charges arise from a criminal incident and share a common litigation history, pretrial incarceration on the multiple charges constitutes incarceration on the ‘pending charge’ for the purposes of the triple-count provision of the speedy-trial statute, R.C. 2945.71(E).”). We need not reach the issue whether the triple-count provision is applicable to this case, however, because the record reflects that only 55 days of speedy-trial time had expired by the time Jones was brought to trial. Therefore, even if we were to assume without deciding that the triple-count provision applied to this case, only 55 of the 90 days expired by the time trial commenced. In light of the significant tolling events that took place including motions Jones filed and continuances he sought, and the COVID-19 coronavirus pandemic, we find that Jones was brought to trial well within his statutory speedytrial time. Jones also argues his constitutional speedy-trial rights were violated in this matter. Citing the significant length of time between his arrest and trial, Jones contends that the reasons for the delay are not clear and prejudiced his ability to present an adequate defense at trial. In determining whether a constitutional speedy-trial violation exists, we balance four factors: “the length of the delay, the reason for the delay, the accused’s assertion of his or her right to a speedy trial, and the prejudice to the accused as a result of the delay.” Barker, 407 U.S. at 530, 92 S.Ct. 2182, 33 L.Ed.2d 101. This court has explained ‘“[t]he first factor, the length of the delay, is a “‘triggering mechanism,’” determining the necessity of inquiry into the other factors.’” State v. Robinson, 8th Dist. Cuyahoga No. 105243, 2017-Ohio-6895, ¶ 9, quoting State v. Triplett, 78 Ohio St.3d 566, 569, 679 N.E.2d 290 (1997), citing Barker at id. The defendant must make a threshold showing of a “presumptively prejudicial” delay to trigger an analysis of the other Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). Postaccusation delay approaching one year is generally found to be presumptively prejudicial. Doggett at fn. 1. Regarding the first factor above, the record supports Jones’s assertion that there was more than a one-year delay. However, with regard to factor two — the reason for the delay — it is readily apparent that most of the delay between Jones being charged and tried was the result of his own motions or the COVID-19 pandemic. Jones sought several continuances and filed numerous motions, including pro se motions even when he was represented by counsel. With regard to the third factor, Jones did file a motion to dismiss his indictment based on his speedy-trials rights. But with regard to the fourth factor, we see no evidence of prejudice to Jones. The Ohio Supreme Court has explained that the prejudice factor in the analysis “should be assessed in the light of the interests of defendants[,] which the speedy trial right was designed to protect.” Barker at 532. The three interests are “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, ¶ 22. The third interest — the impact of the delay on the ability of the defendant to prepare his or her defense — is the greatest concern because it “skews the fairness of the entire system.” Id. In this case, Jones argues that he was prejudiced by the delay because, he alleges, one of his witnesses, social worker Delcresha Box (“Box”), was no longer employed by the Cuyahoga County Department of Children and Family Services (“CCDCFS”) and did not appear at trial. He concedes that he subpoenaed Box and that he only heard a “rumor” that she was no longer working at the agency. Jones’s asserted difficulty in preparing a defense is hypothetical and relies on nothing more than mere speculation that is not sufficient to show prejudice. See State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015Ohio-646, ¶ 24 (finding defendant’s speculation witnesses may have moved without any knowledge to verify, or even suggest, the witnesses moved, insufficient to show prejudice). Jones does not identify how the delay in trial hindered his ability to gather evidence, contact witnesses, or prepare for his defense. Accordingly, we find Jones has failed to show any reasonable prejudice sufficient to suggest that this Barker factor should weigh in his favor. Based on our examination of the relevant Barker factors, we cannot conclude Jones’s constitutional right to a speedy trial was violated. Jones’s first assignment of error is overruled. In the second assignment of error, Jones claims that the trial court erred when it denied his request to dismiss a juror for cause. Generally, the denial of a challenge for cause does not violate a defendant’s constitutional rights. State v. Johnson, 112 Ohio St.3d 210, 2006Ohio-6404, 858 N.E.2d 1144, ¶ 182. However, when an appellant exhausts his or her preemptory challenges in voir dire, a reviewing court may consider the merits of the denial of a “for-cause” challenge. Id. The determination of whether a prospective juror should be disqualified for cause is a discretionary function of the court, and the court will not be reversed absent an abuse of discretion. Id. at ¶ 183, citing State v. Wilson, 29 Ohio St.2d 203, 211, 280 N.E.2d 915 (1972). R.C. 2945.25 enumerates the circumstances in which a juror may be challenged for cause. R.C. 2945.25(B) provides that a juror in a criminal case may be challenged for cause when the juror discloses by the juror’s answers that the juror “is possessed of a state of mind evincing enmity or bias toward the defendant or the state.” See also Crim.R. 24(C)(9) (same); R.C. 2313.17(B)(9) (a good cause for challenge to a prospective juror is if that “person discloses by the person’s answers that the person cannot be a fair and impartial juror or will not follow the law as given to the person by the court.”) During voir dire, the state asked Juror No. 15 if there was anything in the juror’s life experience that would make it hard for him to be fair and impartial to both sides in this matter. Juror No. 15 responded: I mean, it definitely brings up a couple of things I have had. I have had a couple of close friends who have been sexually assaulted and raped and I have had to go through that with them before. And, yeah, just hearing about that, being a father of two young daughters, definitely immediately kind of brought up the * * * Yeah, just from the experience of helping friends through the same type of situations themselves and just being a father of two daughters, young, kind of immediately kind of got me flustered thinking what would I do in that type of situation. The state followed up by asking Juror No. 15 if those experiences would make it hard to be fair and impartial to both sides. Juror No. 15 responded: “I think I would probably be pretty impartial, still listen to the facts from both sides.” No further questions were asked of Juror No. 15 by either party or the court. Defense counsel subsequently issued a challenge to have Juror No. 15 removed but the court overruled the challenge, stating, “But he [Juror No. 15] said he could be fair.” Jones now claims that the court erred when it overruled his challenge for cause without sua sponte questioning Juror No. 15 further whether the juror could be impartial and alleges that the juror’s answer that he could “probably be impartial” was not conclusive enough to guarantee impartiality. The state cites State v. Miller, 12th Dist. Butler No. CA2009-04-106, 2010-Ohio-1722, where the defendant was charged with shaking and injuring a baby. In responding to defense counsel’s questions concerning impartiality, a prospective juror testified that he was going through a “long and involved process of trying to adopt” and that he becomes frustrated with those who have children and abuse them. The juror stated that he “was not 100 percent sure that he could be impartial.” Id. at ¶ 24. The juror explained, “I’m not saying I can’t be, but it’s just given my experience, like I said, I’m not sure.” Id. The Miller Court upheld the trial court’s decision declining to remove the juror for cause, holding that “[t]he trial court had the opportunity to observe the demeanor of [the] prospective juror[] and evaluate firsthand the sincerity of [his] responses to questions about fairness and impartiality.” Id. at ¶ 26. Similar to Miller, here, the trial court was in the best position to determine the juror’s fairness and impartiality. Juror No. 15 stated that he would “probably be pretty impartial” and “still listen to the facts from both sides.” It was defense counsel’s decision not to further question the juror with regard to his statements. The trial court was in the best position to evaluate Juror No. 15 and the sincerity of his responses and did not abuse its discretion in so doing. The second assignment of error is overruled. In the third assignment of error, Jones argues that his trial counsel was constitutionally ineffective. Ineffective assistance of counsel claims are reviewed using the twopronged approach set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. * * * Second, the defendant must show that the deficient performance prejudiced the defense.” Id. ‘“[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.”’ State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), quoting Strickland at 697. If one part cannot be proved, regardless of which or in which order, the analysis ends, and the claim for ineffective assistance of counsel fails. Bradley at id. “In evaluating counsel’s performance, ‘a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances the challenged action “might be considered sound trial strategy.”’ Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). “To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” Bradley at paragraph three of the syllabus. Jones first claims that his trial counsel was ineffective for failing to obtain CCDCFS records and failing to calling social worker Box to testify. The decision to call or to forego calling a witness is generally considered a tactical decision that falls within the realm of reasonable trial strategy. State v. Evans, 8th Dist. Cuyahoga No. 85396, 2005-Ohio-3847, ¶ 79. Ohio courts have repeatedly recognized that “[d]ecisions regarding the calling of witnesses are within the purview of defense counsel’s trial tactics.” State v. Pordash, 9th Dist. Lorain No. 05CA008637, 2005-Ohio-4252, ¶ 21, quoting State v. Ambrosio, 9th Dist. Lorain No. 03CA008387, 2004-Ohio-5552, ¶ 10. “Merely asserting that [a] witness’s testimony would have affected the outcome of the trial is insufficient to satisfy [an appellant’s] burden of proving that * * * trial counsel was ineffective.” Evans at id. Jones fails to show what, if any, exculpatory evidence CCDCFS records or the social worker’s testimony would have provided. Moreover, defense counsel did subpoena Box, but she did not appear for trial. Jones claims that the records may have contained exculpatory evidence, but he does not demonstrate how the records would have affected the outcome at trial. These mere assertions are insufficient to satisfy Jones’s burden that his counsel’s performance was deficient and he was prejudiced by counsel’s performance. Jones also claims that counsel was ineffective during closing arguments because counsel did not highlight all the inconsistencies in witness testimony. It has been well recognized that ““‘the manner and content of trial counsel’s closing arguments are a matter of trial strategy and do not constitute ineffective assistance of counsel.”’” State v. Price, 8th Dist. Cuyahoga No. 99058, 2013-Ohio-3912, ¶ 39, quoting State v. Pellegrini, 3d Dist. Allen No. 1-12-30, 2013Ohio-141, ¶ 47, quoting State v. Turks, 3d Dist. Allen No. 1-08-44, 2009-Ohio3887, ¶ 70. “[E]ven a complete waiver of closing arguments, without a showing of some sort of prejudice, is not ineffective assistance of counsel.” Price at id., citing State v. Ross, 8th Dist. Cuyahoga No. 92289, 2009-Ohio-5366. Closing arguments are not evidence. After reviewing trial counsel’s statements made during closing arguments, we cannot say that they fell below an objective standard of reasonable performance that deprived Jones of effective assistance of counsel. Finally, Jones claims that counsel was ineffective because the motion to dismiss based on speedy trial did not address the triple-count provision in R.C. 2945.71(E). As discussed under the first assignment of error, Jones was brought to trial well within the speedy-trial time period. Counsel was not ineffective for failing to raise a meritless argument in the motion to dismiss he filed on Jones’s behalf. The third assignment of error is overruled. Jones’s statutory and constitutional speedy-trial right rights were not violated. Further, the trial court did not err in failing to remove a juror for cause, and Jones’s trial counsel was not ineffective. Judgment affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LARRY A. JONES, SR., JUDGE ANITA LASTER MAYS, P.J., and MICHELLE J. SHEEHAN, J., CONCUR

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