State v. Kozic , 2014 Ohio 3788 ( 2014 )

[Cite as State v. Kozic, 2014-Ohio-3788.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 11 MA 160
V. )
) OPINION
ZOLTAN AKA JOEY KOZIC, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 10CR506
JUDGMENT: Affirmed in part
Reversed in part
Remanded
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Peter Galyardt
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: August 27, 2014
[Cite as State v. Kozic, 2014-Ohio-3788.]
DONOFRIO, J.
{¶1} Defendant-appellant Zoltan Kozic was convicted of five counts of
burglary, two counts of drug trafficking, and a single count of engaging in a pattern of
corrupt activity following a jury trial in Mahoning County Common Pleas Court and
sentenced to an aggregate term of imprisonment of eighteen years. He appeals his
conviction and sentence.
Main Market Road
{¶2} This case stems from a rash of burglaries that occurred in Columbiana,
Mahoning, Trumbull, and Geauga Counties in late 2009 and early 2010. On
November 24, 2009, Chris Natali returned from work to his home at 16663 Main
Market Road in Parkman, Geauga County, Ohio, to find a knife collection box he kept
near the fireplace had been thrown to the ground. Upstairs, he found dresser drawers
pulled out and a coin collection and other items missing, including a credit card.
Natali notified police and later was notified by the credit card issuer that the card was
being used fraudulently. One of those fraudulent transactions occurred at a gas
station. Video surveillance footage taken from the gas station when the card was
used fraudulently showed Jennifer Kozic exiting a green Cadillac and a red Jeep was
nearby which appellant’s codefendant, Jamie Kozic, was known to drive.
Mystic Rock Road
{¶3} On December 27, 2009, Jareth Gaudio and his wife left their home at
13831 Mystic Rock Road in Columbiana, Mahoning County, Ohio, to take one of their
sons to the airport. They returned home to find their front door kicked in and
medication, money, a television, and jewelry missing. Police responded and a canine
unit picked up a scent that led to the nearby home of Orazio Merlo. A few weeks later
Merlo found a cellular phone near her mailbox and turned it over to police. Through
the phone’s cellular service provider, the police determined that the phone belonged
to appellant’s wife, Heather Kozic who resided at 238 Wilson Street, Struthers, Ohio
44471.
McCoy Avenue
{¶4} On January 22, 2010, Cathy Applegate was returning from work to her
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home located next to an apartment building on McCoy Avenue in East Liverpool,
Ohio. A driver sitting in a parked car nearby caught her attention as strange. She
then observed two white males going from the front of an apartment building to the
back. When she got home, she told her husband, Lawrence Applegate III, about what
she had observed. She then headed back out with her daughter to take her to a
school function. She observed double sliding glass doors open and the curtains
blowing and told her husband to call the police. Lawrence observed two people
coming from the back of the apartment building put something they had been
carrying into the trunk of a car parked nearby. He called the police after the car sped
away.
{¶5} Brandy Ramirez, who lives across the street from the apartment
building, observed two males coming from the back of the apartment building. She
made eye contact with one of them before he drove away. She later identified
appellant from a photo array as being that person.
{¶6} Susan Williams returned to her home at the apartment building on
McCoy Avenue to find the back sliding glass door to her kitchen open. She found
money lying on her patio, pill bottles thrown, and her bedroom a mess. Three
televisions, $300, and jewelry were missing from her apartment. A latent fingerprint
taken from the scene matched the right index finger of appellant’s codefendant,
Jamie Zoltan.
New England Square
{¶7} On January 25, 2010, Ronald Sines returned from work to his home at
46014 New England Square in New Waterford, Columbiana County, Ohio. He
noticed things out of place and thrown about and that the back sliding glass door had
been pried open. A digital music player, $37.40 in change, and five rings were
missing. Police processing the scene noticed that his neighbor’s back door was also
open.
{¶8} Mark Liber returned to his home at 46022 New England Square in New
Waterford, Columbiana County, Ohio to find police investigating a burglary next door
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at his neighbor’s home. Liber discovered his back door open and that his own home
too had been burglarized. Missing were a computer, two televisions, purses, a
camera, and some jewelry.
South Pointe
{¶9} Rebecca Ashbridge lives at a condominium, Unit 55-D, located in a
condominium development known as South Pointe, at 9191 North Lima Road, in
Poland Township, Mahoning County, Ohio. On January 30, 2010, she returned home
to find the front door unlocked. Inside, the home had been ransacked and a
television, gaming system, and various jewelry pieces were missing.
Shepherd of the Valley
{¶10} At a retirement community known as Shepherd of the Valley, William
Wade lives in a condominium, Unit 306, located at 9111 Sharrott Road, Poland, in
Beaver Township, Ohio. On February 3, 2010, he returned home to find the back
door open. A handgun, cash, and watch were missing. Police took casts of pry marks
left around the back door and submitted them to BCI for analysis.
Stone Gate
{¶11} On February 6, 2010, a condominium, Unit 202, located in the Stone
Gate housing development at 9264 Sharrott Road was found broken into by Doug
Dilullo. Dillulo was a construction manager for the development for which this unit
was the model unit. It was fully furnished with utilities turned on and Dillulo checked
on it once a week. He found that the front door jamb was broke and that the unit had
been broken into, although there was nothing taken.
Ivy Hills
{¶12} On February 14, 2010, James Fedor discovered that his mother’s
condo had been broken into. A side patio door was open and there were pry marks
on a rear patio door which was also open. The condo was located at 8550 Ivy Hills,
Unit 20 in Boardman, Ohio. The bedroom had been ransacked and a television and
jewelry were missing. The condo had been vacant since December 26, 2009, when
his mother had passed away.
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West Park Avenue
{¶13} On February 5, 2010, Michael Naughton, who lived in a triplex
condominium at 840 West Park Avenue in Hubbard, Trumbull County, Ohio, heard a
loud noise coming from his attached garage. When he went to check on the noise, he
observed that a door to the garage had been pried and knocked partially off the door
jamb. He then called the police.
{¶14} Meanwhile, a letter carrier for the United State Postal Service and a
bypassing motorist observed an individual in that area acting suspiciously. A
description of the individual was broadcast to other police officers and, subsequently,
Hubbard Officer Gerald Smith encountered appellant’s codefendant, Jamie Kozic,
nearby and arrested him following a positive identification by the letter carrier and the
motorist. A screwdriver was recovered from Jamie Kozic’s red Jeep Cherokee.
{¶15} Following the rash of burglaries, law enforcement had conducted
numerous controlled buys of oxycodone from appellant, Zoltan Kozic, and Jennifer
Kozic.
{¶16} On May 20, 2010, a Mahoning County grand jury issued a twenty-two
count indictment alleging a criminal enterprise among appellant, Zoltan Kozic, and
Jennifer Kozic. Of those twenty-two counts, appellant was indicted on nine counts:
six counts of burglary in violation of R.C. 2911.12(A)(2)(C) (second-degree felonies);
two counts of drug trafficking in violation of R.C. 2925.03(A)(1)(C)(1)(c) (third-degree
felonies); and one count of engaging in a pattern of corrupt activity in violation of R.C.
2923.32(A)(1)(B) (first-degree felony).
{¶17} On August 1, 2011, the day set for trial and before the trial commenced,
each of the defendants made renewed motions for severance of the trial as to
defendants and as to counts in the indictment. Prior to trial, each of the defendants
had filed formal written motions for severance which the trial court had earlier denied.
This time, the trial court again denied the motions as to appellant and Jamie Kozic,
but granted Jennifer Kozic’s motion to sever her case for trial based on a perceived
Bruton issue. (Trial Tr., Vol. I, 74-83.) Apparently, the state wanted to call a witness
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who was in the jail with Jennifer Kozic and heard her talking about her involvement in
the crimes alleged in the indictment, including her brother’s Jamie Kozic’s and
appellant’s roles in those crimes.
{¶18} In Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20
L. Ed. 2d 476 (1968), Bruton was convicted of armed postal robbery after a joint trial
with his co-defendant, Evans. At trial, a witness testified that Evans confessed to him
that Evans and Bruton committed the robbery. Evans did not testify. The trial court
instructed the jury that they were only to consider Evans’ confession against Evans
and were not permitted to consider it against Bruton. The Supreme Court reversed
Bruton’s conviction holding that “because of the substantial risk that the jury, despite
instructions to the contrary, looked to the incriminating extrajudicial statements in
determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated
petitioner’s right of cross-examination secured by the Confrontation Clause of the
Sixth Amendment.” Bruton, 391 U.S. at 125.
{¶19} Jennifer Kozic later pleaded guilty to each of the counts she was
charged with in the indictment with the engaging in a pattern of corrupt activity count
amended from a first-degree felony to second-degree felony. She was sentenced to
community control sanctions, later violated those community control sanctions by
testing positive for illegal drugs and was sentenced to four years in prison.
{¶20} Appellant’s and codefendant Jamie Kozic’s trial proceeded before a
jury. The state presented testimony from fifty-four witnesses and had sixty-seven
exhibits admitted into evidence. The state’s principal witness was Barry Stewart who,
with the exception of the Main Market Road burglary in Geauga County and the West
Park Avenue burglary in Trumbull County, had committed each of the burglaries with
appellant and/or codefendant Jamie Kozic, including all of the Columbiana and
Mahoning County burglaries. He testified in detail how they committed each of those
burglaries and where they sold the stolen items afterwards.
{¶21} Following presentation of the state’s case, the trial court granted
appellant’s Crim.R. 29 motion to dismiss count 1, stemming from the burglary on
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Main Market Road in Geauga County. (Trial Tr., Vol. IX, 2020-2022.) On August 15,
2011, the jury found appellant guilty of all of the remaining counts for which he was
indicted: five counts of burglary (counts 3, 5, 6, 7, and 8), two counts of drug
trafficking (counts 14 and 15), and one count of engaging in a pattern of corrupt
activity (count 22). The trial court sentenced him to an aggregate term of
imprisonment of eighteen years. This appeal followed.
Assistance of Counsel
{¶22} Appellant raises five assignments of error. Appellant’s first assignment
of error states:
Zoltan Kozic was deprived of his right to the effective assistance
of counsel. Sixth and Fourteenth Amendments, United States
Constitution; Section 16, Article I, Ohio Constitution. (Trial Transcript, at
732, 734, 794, 1228-1243, 1422-1430, 1538, 1842, 1848, 1867, 1887,
2020-2021, 2095); (July 1, 2010 Judgment Entry).
{¶23} The standard for determining ineffective assistance of counsel was set
out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
669, 104 S. Ct. 2052 (1984). In order to demonstrate ineffective assistance of
counsel, an appellant must first show that his defense counsel was deficient. Id. This
requires that appellant show that his defense counsel’s performance fell below an
objective standard of reasonableness. Id. Secondly, an appellant must then prove
that he was prejudiced by defense counsel’s deficiency. This requires that appellant
show that there is a “reasonable probability that but for [defense] counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694.
{¶24} Appellant alleges four areas of ineffective assistance of counsel, none
of which demonstrate deficient performance on the part of his trial counsel or
prejudice. First, appellant argues that his trial counsel was ineffective for inviting the
admission of testimonial statements that violated the Sixth Amendment’s
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Confrontation Clause. Specifically, he refers to his trial counsel eliciting from
Detective Eric Datillo on cross-examination that a confidential informant, Dino
Barbato, implicated him in the rash of burglaries. (Trial Tr., VIII, 1842, 1848, 1867.) In
this instance, appellant was not denied his right to confront under the Sixth
Amendment. The state called Dino Barbato as a witness at trial and he was
subjected to cross-examination by appellant’s trial counsel.
{¶25} Second, appellant argues that his trial counsel invited or failed to object
to the admission of unduly prejudicial, hearsay testimony of bad acts. Appellant
points to testimony from Matthew Nicholson, the confidential informant who helped
police conduct the controlled buys, and Barry Stewart, who participated in the
burglaries along with appellant and his co-defendant, Jamie Kozic. Nicholson testified
that appellant sold drugs to another person and used drugs himself during one of the
controlled buys. (Trial Tr., Vol. III, 732, 734.) On cross-examination, appellant’s
counsel also elicited testimony from Nicholson about appellant’s prior drug abuse and
attempted theft. (Trial Tr., Vol. III, 794-795.) When Stewart testified, he referenced
unindicted burglaries that he allegedly committed with appellant in Warren, Ohio and
Pennsylvania. (Trial Tr., Vol. VII, 1538.)
{¶26} “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show he acted in conformity therewith.” Evid.R.
404(B). However, that evidence may be admissible to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Evid.R. 404(B). The list of acceptable reasons for admitting testimony of prior bad
acts into evidence is non-exhaustive. State v. Melton, 11th Dist. No. 2009-L-078,
2010-Ohio-1278, at ¶ 78.
{¶27} It is important to note that the testimony appellant complains of is taken
out of context. Video and audio recordings of those controlled buys were played for
the jury. The bulk of Nicholson’s testimony was simply describing to the jury what
was going on during those controlled buys. That testimony, along with Stewart’s, was
clearly noncharacter testimony and would have been otherwise admissible to
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demonstrate motive, opportunity, intent, preparation, plan, knowledge, or identity.
{¶28} Moreover, the Ohio Supreme Court has observed that “[t]he scope of
cross-examination falls within the ambit of trial strategy, and debatable trial tactics do
not establish ineffective assistance of counsel.” State v. Conway, 109 Ohio St. 3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101.
{¶29} The third area appellant cites as ineffective assistance of counsel
concerns the trial court’s granting his motion to dismiss count 1 (burglary) pursuant to
Crim.R. 29. Appellant argues that there was “substantial” testimony presented that a
burglary occurred and that appellant was involved in the “distribution” of an item
taken during that burglary. (Trial Tr., Vol. V, 1228-1243; Trial Tr., Vol. VI, 1422-1430.)
Appellant argues that his trial counsel was ineffective for failing to request an
instruction for the jury to disregard the evidence that had been presented in support
of that count.
{¶30} To the extent that appellant argues that the evidence for count 1 was
then used by the jury as “other acts” evidence to convict on the other counts, it is
important to note that this evidence was adduced prior to the dismissal of that count.
The evidence was not introduced to prejudice the jury, but rather to prove the count
that was at issue at the time.
{¶31} Additionally, good reason may have existed why counsel did not
request a limiting instruction and why the trial court may not have wanted to sua
sponte give an instruction. Any reminder to the jury about the count 1 evidence,
beyond the evidence that they were about to consider, may have reinforced that
other incident and arguably prejudiced them against appellant.
{¶32} The fourth instance of ineffective assistance of counsel appellant
alleges concerns his right to a speedy trial. In particular, appellant points to his trial
counsel’s acquiescence to a continuation of the trial from July 1, 2010 to February 7,
2011. It is well established that a defendant is bound by the actions of counsel in
waiving speedy-trial rights by seeking or agreeing to a continuance, even over the
defendant’s objections. State v. McBreen, 54 Ohio St. 2d 315, 276 N.E.2d 593 (1978).
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Justification for defense counsel’s waiver of their client’s speedy-trial rights include
time to adequately prepare for trial as well as for conflicts in counsel’s schedule. Id.
Under the facts and circumstances of this case, the acquiescence of appellant’s
counsel to the continuance was reasonable and did not amount to ineffective
assistance of counsel. Appellant made it clear that he wanted to the case against him
taken to a trial. The case involved multiple counts stemming from a multi-count
indictment (including a RICO count). Given the extensive and voluminous discovery
involved, the seventh-month extension was a reasonable amount of time for
appellant’s counsel to agree to in order to properly prepare for trial.
{¶33} Accordingly, appellant’s first assignment of error is without merit.
Sufficiency & Weight of the Evidence
{¶34} Appellant’s second assignment of error states:
The trial court erred and violated Zoltan Kozic’s rights to due
process and a fair trial when, in the absence of sufficient evidence and
against the manifest weight of the evidence, it convicted him of
trafficking in drugs under R.C. 2925.03(A)(1) and (C)(1)(c). Fifth and
Fourteenth Amendments, United States Constitution; Sections 10 and
16, Article I, Ohio Constitution; R.C. 2925.01(D)(1)(d). (September 2,
2011 Judgment Entry of Sentencing); (October 19, 2011 Amended
Judgment Entry of Sentencing).
{¶35} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the jury verdict. State v. Smith, 80 Ohio St. 3d 89, 113, 684
N.E.2d 6680 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is
legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record
for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio
St.3d at 113, 684 N.E.2d 668.
{¶36} Alternatively, a weight-of-the-evidence challenge requires an appellate
court to review the entire record, weigh the evidence and all reasonable inferences,
and consider the credibility of the witnesses. State v. Thompkins, 78 Ohio St. 3d 380,
387, 678 N.E.2d 541 (1997). In weighing the evidence and the reasonable inferences
that can be drawn therefrom, if there exists two fairly reasonable views of the
evidence, the reviewing court cannot simply substitute its judgment for the jury and
choose the one it finds more persuasive or believable. State v. Gore, 131 Ohio
App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). In assessing the credibility of the
witnesses, the reviewing court is guided by the principle that the credibility of the
witnesses is primarily the responsibility and province of the jury. State v. DeHass, 10
Ohio St. 2d 230, 227 N.E.2d 212 (1967). This is because the jury is in the best
position to assess the credibility of a trial witness based on their observations of the
witnesses’ demeanor, gestures, and voice inflections. Gore, 131 Ohio App. 3d at 201,
722 N.E.2d 125, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80,
461 N.E.2d 1273 (1984). In reviewing all of the evidence, a weight-of-the-evidence
challenge requires the reviewing court to determine if the greater amount of credible
evidence supported the jury’s finding of guilt. State v. Thompkins, 78 Ohio St. 3d 380,
387, 678 N.E.2d 541 (1997).
{¶37} Reversal based on a successful weight-of-evidence challenge is
reserved only for the exceptional case in which the evidence weighed so heavily
against conviction that the jury clearly must have lost its way, creating a manifest
miscarriage of justice. Id. Indeed, reversing on weight of the evidence after a jury trial
is so extreme that it requires the unanimous vote of all three appellate judges rather
than a mere majority vote. Thompkins, 78 Ohio St. 3d at 389, 678 N.E.2d 541, citing
Section 3(B)(3), Article IV of the Ohio Constitution (noting that the power of the court
of appeals is limited in order to preserve the jury’s role with respect to issues
surrounding the credibility of witnesses).
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{¶38} Under this assignment of error, appellant takes issue with his conviction
on two counts of drug trafficking (counts 14 and 15), in particular the bulk amount
element of those charges. Appellant was convicted of two counts of drug trafficking
with a bulk amount penalty enhancement specification in violation of R.C.
2925.03(A)(1)(C)(1)(c).
{¶39} Drug trafficking is committed when a person knowingly sells or offers to
sell a controlled substance. R.C. 2925.03(A)(1). Oxycodone is a Schedule II
controlled substance. R.C. 3719.01(C) (defining “controlled substance” as including
any Schedule II substance); R.C. 3719.41(A)(1)(n) (listing oxycodone as a Schedule
II substance).
{¶40} Trafficking in such a substance is a fourth-degree felony unless a
penalty enhancement provision applies. R.C. 2925.03(C)(1)(a). In particular, at the
time appellant committed these offenses the Revised Code provided that if the
amount of the drug involved equaled or exceeded the bulk amount but was less than
five times the bulk amount, then trafficking was a third-degree felony requiring the
sentencing court to impose a mandatory prison term, one of the prison terms
prescribed for a third-degree felony. R.C. 2925.03(C)(1)(c).
{¶41} The bulk amount of a compound, mixture, preparation or substance that
is or contains any amount of a schedule II opiate or opium derivative is defined as an
amount equal to or exceeding twenty grams or five times the maximum daily dose in
the usual dose range specified in a standard pharmaceutical reference manual. R.C.
2925.01(D)(1)(d). A standard pharmaceutical reference manual is defined as
including the current edition, with cumulative changes if any, of any of the following
reference works: (1) The National Formulary; (2) The United States Pharmacopeia,
prepared by authority of the United States Pharmacopeial Convention, Inc.; or (3)
other standard references that are approved by the state board of pharmacy. R.C.
2925.01(M)(1)-(3). While the definition of bulk amount itself is a question of law, the
question of whether the amount of a controlled substance possessed or sold by a
criminal defendant exceeded the bulk amount is a question of fact. State v.
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Montgomery, 17 Ohio App. 3d 258, 260, 479 N.E.2d 904 (1st Dist.1984).
{¶42} Here, the state established that Oxycontin is oxycodone. Additionally,
the state proved that appellant sold an informant five 80 milligram tablets of
Oxycontin on March 25, 2010, and eight 80 milligram tablets on April 1, 2010. The
state presented testimony from the informant (Trial Tr., Vol. III, 710-738), the
detectives who supervised the controlled buys (Trial Tr., Vol. III, 625-637; Trial Tr.,
Vol. IV, 889-892; Trial Tr., Vol. VI, 889-892), as well as video and audio recordings of
the buys (Trial Tr., Vol. III, 624; State’s Exhibits 1, 2).
{¶43} Appellant’s only argument here concerns whether the state presented
adequate evidence to establish the applicability of the penalty enhancement
provision. In other words, appellant argues that the state failed to prove that the
amount of tablets sold on those two occasions equaled or exceeded the bulk amount
in order to elevate those counts from fourth-degree to third-degree felonies.
{¶44} Therefore, the state had the option of proving appellant sold the bulk
amount by either weight or by reference to the maximum daily dosage. State v.
Mattox, 13 Ohio App. 3d 52, 53, 468 N.E.2d 353 (2d Dist.1983), citing State v. Howell,
5 Ohio App. 3d 92, 449 N.E.2d 523 (5th Dist.1981) (the use of the disjunctive “or”
between the weight description and the dosage description in R.C. 2925.01 requires
the state to prove either weight or dosage in determining whether the controlled
substance was in excess of the bulk amount, but not both). More specifically, for
drugs such as oxycodone, the Revised Code defines the bulk amount as an amount
equal to or exceeding (1) twenty grams or (2) five times the maximum daily dose in
the usual dose range specified in a standard pharmaceutical reference manual. R.C.
2925.01(D)(1)(d).
{¶45} The state called two forensic scientists from the Ohio Bureau of
Criminal Identification and Investigation (BCI) who analyzed the drugs that were
recovered from the controlled buys that comprised counts 14 and 15 in this case.
Jennifer Acurio analyzed the drugs from the March 25, 2010 controlled buy (count
14) and determined that the five 80 milligram tablets contained oxycodone. (Trial Tr.,
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Vol. IV, 844-849.) Barbara DiPietro analyzed the drugs from the April 1, 2010
controlled buy (count 15) and determined that the eight 80 milligram tablets weighed
2.1 grams and contained oxycodone. (Trial Tr., Vol. IV, 872-873.)
{¶46} As for the first way the state could have proven the bulk amount (i.e.,
the weight method), DiPietro testified that the eight 80 milligram oxycodone tablets
from the April 1, 2010 controlled buy (count 15) weighed 2.1 grams, an amount far
less than the threshold amount of twenty grams required under R.C.
2925.01(D)(1)(d). Although Acurio did not testify as to the weight of the five 80
milligram oxycodone tablets from the March 25, 2010 controlled buy (count 14), since
there were three less tablets, they presumably did not weigh any more than eight 80
milligram oxycodone tablets from the April 1, 2010 controlled buy (count 15). Thus,
the state did not prove the bulk amount based on the twenty gram weight threshold
method.
{¶47} The second way to establish bulk amount would have been to introduce
evidence that the tablets equaled or exceeded five times the maximum daily dose in
the usual dose range specified in a standard pharmaceutical reference manual.
Concerning this approach, some appellate courts have held that what constitutes the
maximum daily dose is a question of fact which must be proved in one of three ways:
(1) by stipulation, (2) by expert testimony as to what a standard pharmaceutical
reference manual prescribes, or (3) by a properly proven copy of the manual itself.
State v. Huber, 187 Ohio App. 3d 697, 2010-Ohio-2919, 933 N.E.2d 345, ¶ 8 (2d
Dist.); State v. Montgomery, 17 Ohio App. 3d 258, 479 N.E.2d 904 (1st Dist.1984)
(maximum-daily-dose amount must be stipulated or proved and cannot be furnished
to the trier of fact by judicial notice); see also State v. Skorvanek, 182 Ohio App. 3d
615, 2009-Ohio-1709, 914 N.E.2d 418, ¶¶ 7-10 (9th Dist.) (concluding that while an
expert did testify about the bulk amount, because the expert did not refer to a
“standard pharmaceutical reference manual,” as the second disjunct of the statutory
definition of “bulk amount” requires, the state failed to prove the daily maximum dose
amounts). Other districts have flatly rejected this requirement and held that the trial
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court can take judicial notice of what amount constitutes the bulk amount by
reference to a standard pharmaceutical reference manual and instruct the jury
accordingly. State v. Fisher, 5th Dist. No. 05 CAA 04 020, 2006-Ohio-2201, ¶¶ 13-22;
State v. Cole, 12th Dist. No. CA2004-01-007, 2005-Ohio-2274, ¶¶ 29-30; see also
State v. Drummond, 3d Dist. No. 16-11-08, 2012-Ohio-1468, ¶ 15.
{¶48} In response to appellant’s argument under this assignment of error, the
state cites this court’s decision in State v. Mitchell, 7th Dist. No. 08 JE 5, 2008-Ohio-
6920, a case which it asserts contained “similar” testimony from an analyst from BCI
establishing the bulk amount of oxycodone as six 80 milligram tablets. Indeed, in
Mitchell, the state did present evidence that the bulk amount of oxycodone was six 80
milligram tablets.
{¶49} In Mitchell, a forensic scientist explained how the bulk amount is set by
the Ohio State Board of Pharmacy when they determine based upon dosage how
much a person can ingest in one day. She specifically testified that the bulk amount
of 80 milligram Oxycontin tablets is six tablets. She also specified that the daily
dosage provided by the state pharmacy board is ninety milligrams. She then applied
the statutory definition in R.C. 2925.01(D)(1)(d) of five times the maximum daily
dosage to arrive at 450 milligrams, which bulk amount threshold is less than the 480
milligrams contained in six 80 milligram tablets.
{¶50} In this case however, unlike in Mitchell, the state never elicited such
“similar” or any testimony at all concerning the maximum daily dose. Acurio testified
that one of the tablets constituted a unit dose. (Trial Tr., Vol. IV, 849.) On cross-
examination, Acurio testified that an 80 milligram tablet of oxycodone was on the
higher end level of concentration. (Trial Tr., Vol. IV, 855.) However, at no point did
she ever talk about the maximum daily dose or the bulk amount. And neither did
DiPietro.
{¶51} When the trial court was instructing the jury on the amount
enhancement, he told the jury that the bulk amount equaled or exceeded six unit
doses. As indicated, while some appellate districts have allowed this instruction to
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stand even in the absence of the evidence establishing what amount constitutes the
maximum daily dose, in those cases the trial court had relied on a standard
pharmaceutical reference manual. In this instance, it is unclear how the trial court
arrived at its definition of the bulk amount.
{¶52} Because this case involves the complete absence of any basis for or
evidence explaining what constituted the maximum daily dose of oxycodone, we are
not called upon to hold whether the maximum daily dose must be established by
expert testimony or can be arrived at through judicial notice of a standard
pharmaceutical reference manual. However, the implication of our analysis of the
sufficiency of the evidence in Mitchell as it pertained to the maximum daily dose
would seem to indicate that expert testimony would be the most sound way to
establish that fact.
{¶53} In sum, since there was no basis for establishing the maximum daily
dose in this case, testimonial or otherwise, we conclude that there was insufficient
evidence to prove the bulk-amount penalty enhancement aspect of appellant’s
convictions on counts 14 and 15. As indicated, however, the state presented
sufficient evidence and appellant’s underlying convictions for drug trafficking (absent
the bulk-amount penalty enhancement) were not against the manifest weight of the
evidence. “When the evidence shows that a defendant was not guilty of the crime for
which he was convicted, but was guilty of a lesser degree of that crime or a lesser-
included offense of that crime, we can modify the verdict accordingly, and remand the
case for resentencing.” State v. McCoy, 10th Dist. No. 07AP-769, 2008-Ohio-3293,
2008 WL 2588568, ¶ 28. Accord State v. Davis, 1st Dist. No. C-040411, 2006-Ohio-
4599, 2006 WL 2572089, ¶ 13. Because the state proved that appellant sold less
than the bulk amount of oxycodone, he was guilty of fourth-degree felony drug
trafficking. Thus, appellant’s second assignment of error has merit and his
convictions on count 14 (drug trafficking) and count 15 (drug trafficking) are reversed
and the case is remanded for the trial court to enter convictions on the lesser
included offense of fourth-degree felony drug trafficking and to resentence appellant
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accordingly.
Enterprise
{¶54} Appellant’s third assignment of error states:
The trial court erred and violated Zoltan Kozic’s rights to due
process and a fair trial when, in the absence of sufficient evidence and
against the manifest weight of the evidence, it convicted him of
engaging in a pattern of corrupt activity under R.C. 2923.32. Fifth and
Fourteenth Amendments, United States Constitution; Sections 10 and
16, Article I, Ohio Constitution. (September 2, 2011 Judgment Entry of
Sentencing); (October 19, 2011 Amended Judgment Entry of
Sentencing).
{¶55} This assignment of error involves the Ohio’s Corrupt Activity Act, R.C.
2923.31 et seq., patterned after the federal RICO Act. Appellant and his
codefendants were charged with engaging in a pattern of corrupt activity in violation
of R.C. 2923.32(A)(1). R.C. 2923.32(A)(1) provides: “No person employed by, or
associated with, any enterprise shall conduct or participate in, directly or indirectly,
the affairs of the enterprise through a pattern of corrupt activity * * *.”
{¶56} Appellant argues that there was insufficient evidence of an “enterprise”
in this case. Appellant claims there was never sufficient evidence presented at trial to
establish the existence of an enterprise because it was not demonstrated that there
was an ongoing organization, formal or informal, that operated as a continuing unit
and had an organizational structure separate and apart from the pattern of corrupt
activity. Appellant’s argument implicitly urges us to adopt the requirements for finding
an enterprise as they have developed under the federal RICO statute, citing United
States v. Riccobene, 709 F.2d 214 (3rd Cir.1983), and United States v. Bledsoe, 674
F.2d 647 (8th Cir.1982), when analyzing Ohio’s engaging in a pattern of corrupt
activity statute.
{¶57} Riccobene identified three elements that must be proven for finding that
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an enterprise exists: (1) an ongoing organization, (2) with associates that function as
a continuing unit, (3) that has a structure separate and apart, or distinct, from the
racketeering activity. Riccobene at 222-223. See also Bledsoe at 664 (holding
“enterprise” element requires proof of a structure separate from the racketeering
activity).
{¶58} Ohio’s Corrupt Activity Act defines enterprise as follows:
“Enterprise” includes any individual, sole proprietorship,
partnership, limited partnership, corporation, trust, union, government
agency, or other legal entity, or any organization, association, or group
of persons associated in fact although not a legal entity. “Enterprise”
includes illicit as well as licit enterprises.
(Emphasis added.) R.C. 2923.31(C).
{¶59} Both Riccobene and Bledsoe relied on United States v. Turkette, 452
U.S. 576, 583, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981), in which the United States
Supreme Court explained enterprise as “an entity, for present purposes a group of
persons associated together for a common purpose of engaging in a course of
conduct” that is “proved by evidence of an ongoing organization, formal or informal,
and by evidence that the various associates function as a continuing unit.”
{¶60} In Ohio, the Tenth District adopted the Riccobene test in State v.
Teasley, 10th Dist. Nos. 00AP-1322, 00AP1323, 2002 WL 977278 (May 14, 2002).
This Court has yet been required to define enterprise for purposes of Ohio’s
engaging in a pattern of corrupt activity statute.
{¶61} However, in 2009, it is important to note that the United States
Supreme Court decided Boyle v. United States, 556 U.S. 938, 129 S. Ct. 2237, 173
L. Ed. 2d 1265 (2009). The Boyle decision effectively eliminated the third factor set
forth in Riccobene. The Third Circuit, which had decided Riccobene, acknowledged
in United State v. Bergrin, 650 F.3d 257 (3rd Cir.2011), that Riccobene had been
overruled by the United States Supreme Court’s decision in Boyle.
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{¶62} In Boyle, the Court added that “an association-in-fact enterprise must
have at least three structural features: a purpose, relationships among those
associated with the enterprise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose.” Boyle at 939. The Court effectively rejected the
third factor of the Riccobene test and also listed a number of structural elements that
the government need not prove to establish an “enterprise”:
We see no basis in the language of RICO for the structural
requirements that petitioner asks us to recognize. As we said in
Turkette, an association-in-fact enterprise is simply a continuing unit
that functions with a common purpose. Such a group need not have a
hierarchical structure or a “chain of command”; decisions may be made
on an ad hoc basis and by any number of methods—by majority vote,
consensus, a show of strength, etc. Members of the group need not
have fixed roles; different members may perform different roles at
different times. The group need not have a name, regular meetings,
dues, established rules and regulations, disciplinary procedures, or
induction or initiation ceremonies. While the group must function as a
continuing unit and remain in existence long enough to pursue a course
of conduct, nothing in RICO exempts an enterprise whose associates
engage in spurts of activity punctuated by periods of quiescence. Nor is
the statute limited to groups whose crimes are sophisticated, diverse,
complex, or unique; for example, a group that does nothing but engage
in extortion through old-fashioned, unsophisticated, and brutal means
may fall squarely within the statute’s reach.
Boyle, 556 U.S. at 948, 129 S. Ct. 2237, 173 L. Ed. 2d 1265.
{¶63} Given that the definition provided by the Court in Boyle is more in
agreement with Ohio’s version of the federal RICO statute and effectively eliminates
the third factor set forth in Riccobene, we decline to incorporate that factor into Ohio’s
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definition of enterprise. Additionally, other Ohio appellate court districts which have
had occasion to address the matter have adopted the definition provided by the Court
in Boyle. State v. Dodson, 12th Dist. No. CA2010-08-191, 2011-Ohio-6222; State v.
Perry, 11th Dist. No. 2011-L-125, 2012-Ohio-4888.
{¶64} Applying the test outlined in Boyle, there was sufficient evidence
presented to support the existence of an enterprise. There was testimony that
appellant and his codefendant, Jamie Kozic, participated in numerous burglaries
together. They rode together in the same vehicle to different homes. They broke into
the homes together. They removed items from the home together and took them
back to the same vehicles. They each later sold the items at the same pawn shop.
And the burglaries occurred over the span of months from late 2009 to early 2010.
{¶65} In sum, the evidence presented five instances of the enterprise
(appellant and his codefendant, Jamie Kozic) engaging in distinct criminal acts
(burglary) over a period of several months. Appellant was directly involved in every
incident of that corrupt activity.
{¶66} Accordingly, appellant’s third assignment of error is without merit.
Joinder
{¶67} Appellant’s fourth assignment of error states:
The trial court violated Zoltan Kozic’s due process rights and
abused its discretion, when it failed to sever Mr. Kozic’s trial from that of
his co-defendant. Fifth and Fourteenth Amendments, United States
Constitution, and Section 10, Article I, Ohio Constitution. (June 17,
2011 Judgment Entry); (Trial Transcript, at 77, 107-108).
{¶68} An appellate court will only reverse a trial court’s denial of severance if
the trial court abused its discretion. State v. Skatzes, 104 Ohio St. 3d 195, 2004-Ohio-
6391, 819 N.E.2d 215, ¶ 33.
{¶69} If it appears that a defendant is prejudiced by the joinder of offenses or
defendants, the trial court may grant a severance. Crim.R. 14. But the burden is on
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the defendant to prove prejudice and to prove that the trial court abused its discretion
in denying severance. State v. Brinkley, 105 Ohio St. 3d 231, 2005-Ohio-1507, 824
N.E2d 959, ¶ 29.
{¶70} “[J]oinder of defendants is proper so long as all defendants participated
in the same series of transactions leading to the charges even though not all
defendants participated in every act. * * * Not all defendants need be charged in each
count * * * nor would differing levels of culpability among defendants necessarily
justify severance.” State v. Bundy, 7th Dist. No. 02 CA 211, 2005-Ohio-3310, ¶ 53,
quoting State v. Schiebel, 55 Ohio St. 3d 71, 88-89, 564 N.E.2d 54 (1990).
{¶71} “Joinder of defendants and the avoidance of multiple trials is favored in
the law for many reasons. Joinder conserves judicial and prosecutorial time, lessens
the not inconsiderable expenses of multiple trials, diminishes inconvenience to
witnesses, and minimizes the possibility of incongruous results in successive trials
before different juries.” State v. Thomas, 61 Ohio St. 2d 223, 225, 400 N.E.2d 401
(1980). “The test is ‘whether a joint trial is so manifestly prejudicial that the trial judge
is required to exercise his or her discretion in only one way – by severing the trial. * *
* A defendant must show clear, manifest and undue prejudice and violation of a
substantive right resulting from failure to sever. * * *.’” Schiebel at 89, 564 N.E.2d 54,
quoting United States v. Castro, 887 F.2d 988, 996 (9th Cir.1989).
{¶72} The trial court did not abuse its discretion when it denied appellant’s
motion for severance of defendants. Six of the nine burglary counts involved both
appellant and his codefendant Jamie Kozic. But, as Schiebel states, not all
defendants need to be charged with each count to join defendants for trial. Id. at 89,
564 N.E.2d 54. Since each of the counts in the indictment arose from the same
series of transactions, the trial court did not abuse its discretion when it allowed a
joint trial.
{¶73} Furthermore, the trial court instructed the jurors that they should
consider the evidence against each of the defendants separately. And when
discussing the law concerning each offense, it specified the defendants charged with
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those offenses. The jury is presumed to have followed the trial court’s limiting
instructions. State v. Raglin, 83 Ohio St. 3d 253, 264, 699 N.E.2d 482 (1998). Also,
appellant has not attempted to argue that he would have defended his case
differently if the other defendants had not been joined. See State v. Johnson, 88 Ohio
St.3d 95, 110, 723 N.E.2d 1054 (2000); State v. Franklin, 62 Ohio St. 3d 118, 123,
580 N.E.2d 1 (1991); State v. Stephens, 4th Dist. No. 98CA41, 1999 WL 1285879
(Dec. 23, 1999).
{¶74} Turning to the joinder of offenses, Crim.R. 8(A) provides that two or
more offenses may be charged in the same indictment if the offenses are (1) of the
same or similar character, or (2) are based on the same act or transaction, or (3) are
based on two or more acts or transactions connected together or constituting parts of
a common scheme or plan, or (4) are part of a course of criminal conduct. “The law
favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses
charged ‘are of the same or similar character.’” State v. Lott, 51 Ohio St. 3d 160, 163,
555 N.E.2d 293 (1990), quoting State v. Torres, 66 Ohio St. 2d 340, 421 N.E.2d 1288
(1981).
{¶75} When a defendant claims that he was prejudiced by the joinder of
multiple offenses, a court must determine (1) whether evidence of the other crimes
would be admissible even if the counts were severed, and (2) if not, whether the
evidence of each crime is simple and distinct. State v. Schaim, 65 Ohio St. 3d 51, 59,
600 N.E.2d 661 (1992).
{¶76} When simple and distinct evidence exists, an accused is not prejudiced
by the joinder of multiple offenses in a single trial, regardless of whether the evidence
is admissible as other-acts evidence. State v. Coley, 93 Ohio St. 3d 253, 260, 754
N.E.2d 1129 (2001).
{¶77} In this case, the trial court did not abuse its discretion in denying
severance of the offenses. All of the offenses with which appellant was charged with
were not necessarily of a same or similar character. However, all of the burglaries
and drug sales clearly constituted (1) two or more acts or transactions connected
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together or constituting parts of a common scheme or plan, or (2) were part of a
course of criminal conduct. Crim.R. 8(A).
{¶78} Here, the evidence of the other crimes would likely not have been
admissible if the counts were severed. The crimes each had their own distinct victim-
witnesses and it was unlikely that the victim-witnesses would testify in a case that did
not have to do with the offense against them.
{¶79} Nonetheless, the evidence of each crime was simple and distinct. Each
of the witnesses who had been a victim of one of the alleged burglaries simply
testified regarding that particular offense. None of their testimonies were very long or
involved.
{¶80} Moreover, the jury was able to separate the evidence as to each of the
charged offenses. The jury found appellant’s codefendant Jamie Kozic guilty of some
counts but not others. The jury’s verdicts demonstrate that they were able to consider
the evidence independently as it pertained to each individual charge and did not lump
the charges together.
{¶81} Accordingly, appellant’s fourth assignment of error is without merit.
Speedy Trial
{¶82} Appellant’s fifth assignment of error states:
The trial court violated Zoltan Kozic’s speedy-trial rights and
abused its discretion, when it failed to grant Mr. Kozic’s motion to
dismiss. Sixth Amendment, United States Constitution, and Section 10,
Article I, Ohio Constitution; R.C. 2945.71; R.C. 2945.72; R.C. 2945.73.
(Trial Transcript. at 107).
{¶83} Ohio recognizes both a constitutional and a statutory right to a speedy
trial. State v. King, 70 Ohio St. 3d 158, 161, 637 N.E.2d 903 (1994); see also Sixth
Amendment, United States Constitution; Section 10, Article I, Ohio Constitution. The
Sixth Amendment of the U.S. Constitution provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial.” The
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General Assembly has embodied this fundamental right in the provisions of R.C.
2945.71 to 2945.73. R.C. 2945.71; R.C. 2945.72; R.C. 2945.73. Thus, the Ohio
Supreme Court has found the statutory speedy-trial provisions set forth in R.C.
2945.71 to be coextensive with constitutional speedy-trial provisions. State v.
O’Brien, 34 Ohio St. 3d 7, 9, 516 N.E.2d 218 (1987).
{¶84} R.C. 2945.71 provides the timeframe for a defendant’s right to a speedy
trial based on the level of offense. As indicated earlier, appellant was ultimately
indicted on seventeen felony counts. According to the Ohio Revised Code, “a person
against whom a charge of felony is pending shall be brought to trial within two
hundred seventy days after his arrest.” R.C. 2945.71(C)(2). However, each day the
defendant spends in jail solely on the pending criminal charge counts as three days.
R.C. 2945.71(E).
{¶85} R.C. 2945.72 lists a number of tolling events that may extend the period
of time in which the prosecution must bring a defendant to trial. R.C. 2945.72(A)-(I). If
the state fails to meet the statutory time limits, then the trial court must discharge the
defendant. R.C. 2945.73. The Ohio Supreme Court has “imposed upon the
prosecution and the trial courts the mandatory duty of complying” with the speedy-
trial statutes. State v. Singer, 50 Ohio St. 2d 103, 105, 362 N.E.2d 1216 (1977). As
such, the speedy-trial provisions are strictly construed against the state. Brecksville v.
Cook, 75 Ohio St. 3d 53, 57, 661 N.E.2d 706 (1996); Singer at 105, 362 N.E.2d 1216.
{¶86} Consequently, the role of the reviewing court is to count the days of
delay chargeable to either side and determine whether the case was tried within the
time limits set forth in the Revised Code. State v. Hart, 7th Dist. No. 06 CO 62, 2007-
Ohio-3404, at ¶ 8-9, citing State v. High, 143 Ohio App. 3d 232, 757 N.E.2d 1176 (7th
Dist.2001). Moreover, this duty is not affected by whether the state raised certain
filings as tolling events. State v. Williams, 7th Dist. No. 07 MA 162, 2008-Ohio-1532,
at ¶ 38.
{¶87} Upon demonstrating that the statutory time limit has expired, the
defendant has established a prima facie case for violation of his speedy-trial rights,
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thereby warranting dismissal. State v. Butcher, 27 Ohio St. 3d 28, 30-31, 500 N.E.2d
1368 (1986). If the defendant can make this showing, the state then has the burden
to establish any exceptions that may have suspended the speedy-trial clock. Butcher
at 31, 500 N.E.2d 1368. As such, the resolution of appellant’s assigned error requires
scrutinizing the record to ascertain the tolling potential of each filing event.
{¶88} To begin, appellant was indicted on May 20, 2010. Normally, the
speedy-trial clock begins to run on the day following the date of arrest or service of
the summons or indictment. R.C. 2945.71(C)(2); State v. Catlin, 7th Dist. No.
06BE21, 2006-Ohio-6246, ¶ 12. However, when appellant was indicted, he was
already in jail for another case. In Mahoning County Common Pleas Court Case No.
2009CR461, appellant had pleaded guilty to attempted drug possession in violation
of R.C. 2925.11(A)(C)(1)(a) and R.C. 2923.02(A), a first-degree misdemeanor, and,
on July 16, 2009, was sentenced to a thirteen-month term of community control. On
April 20, 2010, he was held without bond following his stipulation to probable cause
that he had violated the terms of his community control. On May 21, 2010, the day
after his indictment in this case, the trial court in that case sentenced appellant to 120
days in jail for violating the terms of his community control, with credit for 37 days
already served. Thus, appellant was being held in jail for the next 83 days or until
August 12, 2010, for his community-control violation in that case.
{¶89} It is important to note that the triple-count provision applies only when
the defendant is being held in jail solely on the pending charge. State v. MacDonald,
48 Ohio St. 2d 66, 357 N.E.2d 40 (1976), paragraph one of the syllabus (construing
former R.C. 2945.71(D), now (E)). Therefore, the triple-count provision does not
apply when a defendant is being held in custody pursuant to other charges. Id. Nor
does it apply when the accused is being held on a parole- or probation-violation
holder. State v. Brown, 64 Ohio St. 3d 476, 479, 597 N.E.2d 97 (1992) (parole-
violation holder); State v. Martin, 56 Ohio St. 2d 207, 211, 383 N.E.2d 585 (1978)
(probation-violation holder). In appellant’s case then, while the speedy-trial clock
began to run on May 21, 2010, the day after he was indicted, each of the 83 days
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that elapsed between then and when he was being held solely on the charges in this
case counted only as one day (tolling events aside). Thereafter, the triple-count
provision applied as he remained in jail on this case until his trial on August 1, 2011.
{¶90} Appellant’s speedy-trial clock was tolled early at 104 days when he filed
for discovery and a motion for a bill of particulars on May 27, 2010 (applying the
triple-count provision to the 7 days that elapsed between May 21, 2010, and May 27,
2010 plus the 83 days that had already accrued from May 21, 2010, until August 12,
2010).
{¶91} The next and major tolling event occurred on July 1, 2010, at a pretrial
hearing, where the parties agreed that the first available trial date was February 7,
2011. The entry specifically states, “Speedy trial tolled until this time.” It is well
established that any period of delay “made or joined in by appellant” may toll the
speedy-trial clock. State v. Barbour, 10th Dist. No. 07AP-841, 2008-Ohio-2291, at ¶
16-18. “When the parties agree to a continuance, even if it is not on the motion of the
defendant, the continuance is presumptively reasonable and there is no need to
explain the reason for the continuance on the record.” State v. Freeman, 7th Dist. No.
08 MA 81, 2009-Ohio-3052, at ¶ 50 (overruled on other grounds); see also State v.
Rupp, 7th Dist. No. 05MA166, 2007-Ohio-1561, at ¶ 108. Additionally, it is well-
settled that a defendant’s speedy-trial right may be waived by defense counsel for
extensions to prepare for trial, as well as conflicts in defense counsel’s schedule.
State v. McBreen, 54 Ohio St. 2d 315, 376 N.E.2d 593, (1978). That waiver applies
even if it is made without the defendant’s consent. State v. Stanley, 7th Dist. No. 03
MA 42, 2004-Ohio-6801, ¶ 30, citing McBreen, 54 Ohio St. 2d at 320. Thus, as of the
day before that pretrial hearing, June 30, 2010, the speedy-trial clock remained tolled
at 104 days.
{¶92} Meanwhile (before the scheduled trial date of February 7, 2011),
appellant filed some motions which could be construed as serving as an additional
basis to toll the speedy-trial clock. On August 17, 2010, appellant filed a motion to
amend bond. On November 23, 2010, appellant filed a second request for a bill of
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particulars and second motion to amend bond.
{¶93} Following a motion filed by his co-defendant, Jennifer Kozic, appellant
agreed to a continuance of the trial from February 7, 2011, until February 28, 2011.
Due to a deterioration in the relationship between appellant and his court-appointed
counsel, the court appointed appellant new counsel which necessitated a further
delay. At a March 4, 2011 status conference, the parties agreed to a continuance of
the trial until August 1, 2011, the date on which the trial commenced. Therefore,
appellant’s speedy-trial clock was tolled from July 1, 2010 until August 1, 2011, the
first day of trial. Since only 104 of the 270 days of the speedy-trial clock had elapsed,
appellant was brought to trial within time.
{¶94} Accordingly, appellant’s fifth assignment of error is without merit.
{¶95} In sum, appellant’s first, third, fourth, and fifth assignments of error are
without merit and are overruled. Appellant’s second assignment of error is found to
be with merit and is sustained. The judgment of the trial court is affirmed in part and
is reversed in part. Appellant’s convictions on count 14 (drug trafficking) and count 15
(drug trafficking) are reversed and the case remanded for the trial court to enter
convictions on the lesser included offense of fourth-degree felony drug trafficking and
to resentence appellant accordingly. The remainder of appellant’s convictions and
sentences are affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.