State v. Westerfield , 2018 Ohio 2139 ( 2018 )


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  • [Cite as State v. Westerfield, 
    2018-Ohio-2139
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    CRAWFORD COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 3-17-15
    v.
    JASON L. WESTERFIELD,                                     OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 3-17-16
    v.
    JASON L. WESTERFIELD,                                     OPINION
    DEFENDANT-APPELLANT.
    Appeals from Crawford County Common Pleas Court
    Trial Court Nos. 17-CR-0158 and 17-CR-0235
    Appeal Dismissed in 3-17-15 and Judgment Affirmed in 3-17-16
    Date of Decision: June 4, 2018
    APPEARANCES:
    James W. Fruth for Appellant
    Rhonda L. Bester for Appellee
    Case No. 3-17-15, 3-17-16
    SHAW, J.
    {¶1} Defendant-appellant, Jason Westerfield (“Westerfield”), brings this
    appeal from the October 23, 2017, judgment of the Crawford County Common Pleas
    Court sentencing him to 7 years in prison after he was convicted in a jury trial of
    Burglary, a felony of the second degree. On appeal, Westerfield argues that the trial
    court erred by denying his motion to dismiss on speedy trial grounds and that he
    received ineffective assistance of counsel.
    Relevant Facts and Procedural History
    {¶2} On June 24, 2017, Crystal Caudill (“Caudill”) picked up Christopher
    Alex Brooks (“Brooks”) and the two purchased beer and Crown Royal together to
    drink that evening at Caudill’s residence.      Brooks and Caudill had a sexual
    relationship in the past and Brooks occasionally did some work on Caudill’s house,
    though Caudill indicated the sexual relationship had essentially ended by June 24.
    Brooks and Caudill began drinking at Caudill’s residence in the late afternoon/early
    evening hours and continued drinking later into the night.
    {¶3} During the night, Westerfield began contacting Caudill. Westerfield
    and Caudill had a sexual relationship, though they did not see each other that often
    and they both were seeing other people. Caudill indicated to Westerfield that she
    had “company,” which irritated Westerfield.
    -2-
    Case No. 3-17-15, 3-17-16
    {¶4} Westerfield sent Caudill a number of messages stating that he was
    coming to Caudill’s residence and that he was going to hurt whoever was there with
    her. When Westerfield arrived at Caudill’s residence, Caudill went outside to meet
    him and told him not to go inside. Westerfield entered the residence regardless,
    though Caudill tried to stop him, and he confronted Brooks, who had never met
    Westerfield.
    {¶5} According to Brooks, Westerfield struck him multiple times and pulled
    a knife on him, but Caudill stepped between them and was able to get Westerfield
    to give her the knife. Brooks indicated that he was then going to leave, but it was a
    long walk so he grabbed his bottle of Crown Royal to take with him. He claimed
    that Westerfield took the bottle from him and said that the bottle was going to stay
    but Brooks had to leave. Brooks claimed that Westerfield then struck him two
    additional times and eventually kicked or stomped on his leg, breaking it.
    Afterward, Westerfield left Caudill’s residence. Brooks insinuated that Westerfield
    left with his bottle of Crown Royal.
    {¶6} Approximately an hour after the incident, police were called. Brooks
    initially told police that he fell and that was how he broke his leg, then he later
    changed his story saying that he was “jumped” by three people. Brooks went on to
    eventually state later that Westerfield alone had come into Caudill’s residence, hit
    him multiple times and broke his leg before leaving. Brooks stated that he initially
    -3-
    Case No. 3-17-15, 3-17-16
    said he fell because Caudill was afraid of Westerfield and because Brooks was on
    probation and drinking was a violation.
    {¶7} Caudill also told the police multiple stories regarding what happened,
    indicating first that a man named “Doug Rowland” had been the one to hurt
    Westerfield. Later, after inquiring as to whether the police could protect her, Caudill
    indicated that Westerfield had been the one to come to her house. However, at trial,
    Caudill testified that while she did not give Westerfield permission to go into her
    house, she did not witness any of the purported violence because she was in the
    process of containing her dogs. Caudill did acknowledge that after Westerfield was
    incarcerated and awaiting trial, Caudill had spoken to him on the phone over 180
    times, totaling in excess of 14 hours of conversation.
    {¶8} Westerfield was initially indicted on July 11, 2017, for Felonious
    Assault in violation of R.C. 2903.11(A)(1), a felony of the second degree, and
    Aggravated Robbery in violation of R.C. 2911.01(A)(3), a felony of the first
    degree.1 The case was scheduled to proceed to a jury trial on September 7, 2017;
    however, on September 6, 2017, the day before trial, the defense filed a motion in
    limine seeking to prevent the State from presenting evidence related to the jail house
    calls that had been made from Westerfield to Caudill. The defense indicated that it
    needed additional time to review the recordings.
    1
    This indictment corresponds to trial court case 17-CR-0158, which was assigned to appellate number 3-17-
    15.
    -4-
    Case No. 3-17-15, 3-17-16
    {¶9} At that time, on September 6, 2017, Westerfield filed a written speedy
    trial waiver and the parties made an agreed motion to continue the trial to October
    19, 2017.
    {¶10} On September 12, 2017, a second indictment was filed asserting
    another charge arising out of the June 24, 2017 incident. It alleged one count of
    Aggravated Burglary in violation of R.C. 2911.11(A)(1) and (A)(2), a felony of the
    first degree.2       The two indictments against Westerfield were subsequently
    consolidated for trial.
    {¶11} On September 14, 2017, Westerfield filed a “revocation” of his speedy
    trial waiver, indicating that he wanted to proceed to trial immediately.
    {¶12} The case proceeded to trial on October 19, 2017. At that time,
    Westerfield’s attorney made a motion to dismiss on speedy trial grounds, arguing
    that he believed that with Westerfield’s “revocation,” the speedy trial time had
    passed. The trial court denied that motion, reasoning that the parties had agreed to
    a continuance of the prior trial date to October 19, 2017. The trial court stated that
    Westerfield could not file a motion to continue and waive speedy trial just before
    his speedy trial rights would expire, get a new trial date, and as soon as he thought
    his speedy trial time expired go back and revoke it. The trial court thus denied the
    motion.
    2
    This indictment corresponds to trial court case 17-CR-0235, which was assigned to appellate number 3-17-
    16.
    -5-
    Case No. 3-17-15, 3-17-16
    {¶13} The trial then commenced with the State presenting the testimony of
    Brown and Caudill. At the conclusion of their testimony, the State rested. Although
    the defense cross-examined the witnesses presented, the defense did not call any
    witnesses. The matter was submitted to the jury, with the State requesting a lesser-
    included offense instruction for Burglary on the Aggravated Burglary charge.
    {¶14} The jury returned not guilty verdicts for Aggravated Robbery and
    Felonious Assault, and found Westerfield guilty of the lesser included offense of
    Burglary. Westerfield was sentenced to serve 7 years in prison on the Burglary
    conviction. A judgment entry memorializing his sentence was filed October 23,
    2017. It is from this judgment that Westerfield appeals, asserting the following
    assignments of error for our review.
    Assignment of Error No. 1
    The trial court erred in overruling Appellant’s motion to dismiss
    for violation of his speedy trial rights.
    Assignment of Error No. 2
    The Appellant was denied his constitutional right to effective
    assistance of counsel when the appellant’s trial counsel failed to
    protect Appellant’s rights at trial.
    {¶15} Before we address the assignments of error, we must first address the
    fact that Westerfield was acquitted of both charges in trial court case 17-CR-0158,
    which corresponds to appellate case number 3-17-15. As he was acquitted of both
    of those charges in that case, there is nothing remaining to appeal from trial court
    case 17-CR-0158, therefore appeal 3-17-15 is dismissed and we will proceed to
    -6-
    Case No. 3-17-15, 3-17-16
    discuss the assignments of error as they pertain to trial court case 17-CR-0235, and
    the corresponding appellate case 3-17-16.
    First Assignment of Error
    {¶16} In Westerfield’s first assignment of error, he argues that the trial court
    erred in overruling his motion to dismiss on speedy trial grounds. Specifically,
    Westerfield contends that he was incarcerated for 117 days prior to commencement
    of his trial, which was 27 more than allowable under R.C. 2945.71 when using the
    triple-count provision.3
    Standard of Review
    {¶17} Appellate review of a trial court’s decision on a motion to dismiss for
    a speedy-trial violation involves a mixed question of law and fact. State v.
    James, 4th Dist. Ross No. 13CA3393, 2014–Ohio–1702, ¶ 23. We will defer to
    a trial court's factual findings if some competent and credible evidence supports
    them, but we review de novo the trial court’s application of the law to those
    facts. State v. Carr, 4th Dist. Ross No. 12CA3358, 2013–Ohio–5312, ¶ 12. Also,
    “[t]he interpretation of a statute * * * is a question of law, which we review de
    novo.” State v. Frey, 4th Dist. Ross No. 05CA2853, 2006–Ohio–2452, ¶ 9.
    3
    Westerfield argues that his trial began on his 118th day of incarceration, but also cites the number of 119
    days in his brief. He seems to conclude in his argument that he calculates his speedy trial time as 117 days
    of incarceration, which count as 3 days each for purposes of R.C. 2945.71, totaling 351 days, or 81 days over
    the limit. However, in his reply brief he relies on the 119 number as the definitive number.
    -7-
    Case No. 3-17-15, 3-17-16
    Analysis
    {¶18} Revised Code 2945.71(C)(2) provides that a person against whom a
    felony charge is pending shall be brought to trial within 270 days after arrest. If an
    accused is in jail in lieu of bail solely on the pending charge, each day counts as
    three days for purposes of the speedy-trial calculation.          R.C. 2945.71(E).
    Westerfield argues that he was not brought to trial until between 117 and 119 days
    after his arrest.
    {¶19} Notably, Westerfield’s speedy trial claim was directly addressed by
    the trial court prior to the commencement of his trial.
    THE COURT: * * * [W]hat happened in this case is speedy trial
    was set for September 21st. The Defendant, in open court, with
    you and everyone in here, said that they needed a continuance
    because of new evidence involving jail conversations.
    [DEFENSE COUNSEL]: Yes, Your Honor.
    THE COURT: The parties agree[d] to a continuance to 10/19.
    All right. That is when speedy trial would expire, would be the
    date of the trial. We have a chance, we have to take you to trial
    there. You don’t get to file a motion to continue and waive speedy
    trial, get a new trial date, and then as soon as you think the time
    has expired, go back and revoke it. That’s no[t] how it works. So
    in that regard, it’s denied.
    ***
    THE COURT: In addition, * * * this wasn’t a general waiver. It
    was a continuance, which tolls the speedy trial time all the way to
    the 19th * * * so I’m going to deny the motion.
    (Tr. at 5-7).
    -8-
    Case No. 3-17-15, 3-17-16
    {¶20} After reviewing the record, we agree with the trial court. Westerfield
    had a trial date within the original speedy trial timeframe. He requested that the
    original trial date be continued so that his attorney could examine the numerous
    jailhouse phone calls made between Westerfield and Caudill. Westerfield also then
    waived his speedy trial time and requested that the trial be continued to a specific
    trial date in October, which was the date the trial was actually held.
    {¶21} While it is true that Westerfield filed a motion to “revoke” his speedy
    trial waiver, he was still reasonably brought to trial in an expedient manner. As the
    trial court noted, if we were to rule in Westerfield’s favor in this case, defendants
    would be able to easily manipulate and subvert speedy trial statutes by filing
    waivers, agreeing to continuances, then revoking the waiver when it would be most
    inconvenient for the court and impractical to get a sudden, immediate trial date.
    {¶22} Notwithstanding this point, we also would note, as the State points out,
    that Westerfield’s purported speedy trial calculation does not include any applicable
    tolling periods under R.C. 2945.72 such as his discovery demand, his motion in
    limine, and any time that would be attributed to his motion to continue before the
    ultimate revocation. Factoring in all these days, there is no clear indication that
    Westerfield’s speedy trial rights were violated.
    {¶23} Westerfield argues that in denying his motion to dismiss the trial court
    erroneously relied on the Supreme Court of Ohio’s decision in State v. Blackburn,
    -9-
    Case No. 3-17-15, 3-17-16
    
    118 Ohio St.3d 163
    , 
    2008-Ohio-1823
    . In Blackburn, the court held that, “In
    calculating the time within which a criminal defendant must be brought to trial
    under R.C. 2945.71, periods of delay resulting from motions filed by the defendant
    in a previous case also apply in a subsequent case in which there are different
    charges based on the same underlying facts and circumstances of the previous case.”
    Westerfield contends that the trial court actually should have applied State v. Adams,
    
    43 Ohio St.3d 67
     (1989), wherein the Supreme Court of Ohio held, “When an
    accused waives the right to a speedy trial as to an initial charge, this waiver is not
    applicable to additional charges arising from the same set of circumstances that are
    brought subsequent to the execution of the waiver.” Even if we disregarded
    Blackburn, we could not find that Adams compelled a different result where
    Westerfield agreed to a continuance for his own benefit so that his counsel could
    analyze evidence and be prepared for trial, then tried to later revoke a speedy trial
    waiver. Taking all these issues into consideration, Westerfield’s first assignment of
    error is not well-taken, and it is overruled.
    Second Assignment of Error
    {¶24} In Westerfield’s second assignment of error, he argues that he received
    ineffective assistance of counsel. Specifically, he contends that trial counsel was
    deficient for failing to deliver on promises that he made during opening statement.
    Westerfield focuses strongly on trial counsel’s failure to question Caudill more
    -10-
    Case No. 3-17-15, 3-17-16
    heavily about the whereabouts of the Crown Royal bottle that Westerfield
    purportedly took from Caudill’s residence.
    Standard of Review
    {¶25} “To establish a claim for ineffective assistance of counsel, a defendant
    must show that counsel’s performance was deficient and that counsel’s deficient
    performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4–16–
    27, 28, 2017–Ohio–2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1–15–43,
    2016–Ohio–3105, ¶ 11, citing State v. Jackson, 
    107 Ohio St.3d 53
    , 2005–Ohio–
    5981, ¶ 133, citing Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). The failure
    to make either showing defeats a claim of ineffective assistance of counsel. State v.
    Bradley, 
    42 Ohio St.3d 136
    , 143 (1989), quoting Strickland at 697. (“[T]here is no
    reason for a court deciding an ineffective assistance of counsel 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.”).
    {¶26} We note that a tactical decision by trial counsel, who as a licensed
    attorney is presumed to be competent, is not by itself enough to show ineffective
    assistance of counsel simply because the strategy did not result in an acquittal. State
    v. Clatyon, 
    62 Ohio St.2d 45
    , 48-49 (1980); State v. Timm, 3d Dist. Seneca No. 13-
    11-23, 
    2012-Ohio-410
    , ¶ 31.
    -11-
    Case No. 3-17-15, 3-17-16
    Analysis
    {¶27} In this case, Westerfield contends that his trial counsel was ineffective
    primarily for failing to ask Caudill about bringing the bottle of Crown Royal to
    defense counsel’s office that Westerfield had allegedly stolen well after the incident
    in question, establishing that Westerfield had not taken the bottle. Westerfield
    argues that if his trial counsel would have pressed this point, as he indicated he
    would in his opening statement, Westerfield would not have been convicted of
    Burglary.
    {¶28} Contrary to Westerfield’s arguments, the jury was informed that to
    convict Westerfield of Burglary the jury had to find that Westerfield by force,
    stealth, or deception trespassed in Caudill’s home (an occupied structure) when
    another person was present with the purpose to commit a criminal offense.
    Westerfield seems to be under the impression that to be convicted of Burglary he
    had to have the purpose to commit a theft offense, such as taking the Crown Royal
    bottle. However, trespassing in the occupied structure while Brooks was present
    results in a Burglary where Westerfield had the intent to commit any criminal
    offense.
    {¶29} When Westerfield was on his way to Caudill’s residence, he indicated
    through his messages threats of violence to Brooks. Specifically, he stated, “He can
    stay there [C]rystal.., all I kno [sic] is I’m showing up and where it goes from there..,
    -12-
    Case No. 3-17-15, 3-17-16
    I’ve already accepted what it may be * * * From getting beat up to going to jail for
    making a [sic] example outta who the fuck ever is there.., I’m coming…” (State’s
    Ex. 6). Combining this with Brooks’s testimony regarding the events in question,
    the jury could readily convict Westerfield of having the intent to commit an assault
    on Brooks at the residence.
    {¶30} Moreover, both defense counsel and the State indicated in their
    opening arguments that they did not know what Caudill was going to say on the
    witness stand because she had changed her story multiple times and she had been in
    significant contact with Westerfield over the phone. Thus we can find no ineffective
    assistance of counsel here and even if we did there is no resulting prejudice. For
    these reasons Westerfield’s second assignment of error is overruled.
    Conclusion
    {¶31} For the foregoing reasons Westerfield’s appeal in case 3-17-15 is
    dismissed and his arguments related to his appeal in case 3-17-16 are overruled.
    The judgment of the Crawford County Common Pleas Court is affirmed.
    Appeal 3-17-15 Dismissed
    Appeal 3-17-16 Affirmed
    ZIMMERMAN and PRESTON, J.J., concur.
    /jlr
    -13-