State v. Orr , 2014 Ohio 4680 ( 2014 )

[Cite as State v. Orr, 2014-Ohio-4680.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100841
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARLLEL B. ORR
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-560637-A
BEFORE: Boyle, A.J., Celebrezze, J., and McCormack, J.
RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEY FOR APPELLANT
Edwin J. Vargas
Summers & Vargas Co., L.P.A.
The Gehring Building
1956 West 25th Street, Suite 3
Cleveland, Ohio 44113
Darllel B. Orr, pro se
Inmate No. 0206100
Cuyahoga County Jail
P.O. Box 5600
Cleveland, Ohio 44101
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brent C. Kirvel
Edward R. Fadel
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} Defendant-appellant, Darllel Orr, appeals his convictions for aggravated
murder, kidnapping, aggravated burglary, aggravated robbery, and having a weapon while
under a disability. Through counsel, Orr raises four assignments of error for our review.
Pro se, Orr raises ten supplemental assignments of error.1
Orr’s Assignments of Error
1. The trial court was without jurisdiction to conduct a bench trial because
the jury waiver was a conditional waiver and the requirements of R.C.
2945.05 were not strictly followed.
2. The trial court abused its discretion and violated the appellant’s Sixth and
Fourteenth Amendment rights to a complete defense and compulsory
process.
3. The trial court erred in convicting the defendant for aggravated murder,
kidnapping, aggravated burglary, aggravated robbery, and weapon while
under disability where the appellant’s conviction is against the manifest
weight of the evidence.
4. The evidence was insufficient to sustain a finding of guilty because the
state failed to present evidence to establish beyond a reasonable doubt the
elements necessary to support the conviction.
Orr’s Pro Se Supplemental Assignments of Error
1. Trial court lacked subject matter jurisdiction pursuant to the record being
devoid of a valid complaint.
2. Trial court was without authority/jurisdiction to proceed to a bench trial,
absent valid waiver in strict compliance with [R.C.] 2945.05.
Orr filed his first seven pro se supplemental assignments of error after this court granted his
1
motion to do so. Orr later moved to file additional pro se supplemental assignments of error (his
eighth, ninth, and tenth assignments of error), which this court denied. Nonetheless, in the interest
of justice, we will address all of Orr’s pro se supplemental assignments of error.
3. Mr. Orr was denied his 6th U.S.C.A. right to so confront his accuser(s)
insofar as an unsworn, untested testimonial hearsay/statement provided by
Det. Entenok goes.
4. The convictions sustained by Mr. Orr are not underpinned by sufficient
evidence, as required by the 5th U.S.C.A.
5. Mr. Orr was denied his statutory and constitutional right to a speedy and
public trial.
6. Mr. Orr was denied his constitutional right to a speedy disposition.
7. Trial court abused its discretion by refusing to recuse in accord to law
and capriciously engaged in misleading Mr. Orr to waive right to trial by
jury involuntarily and through fraud.
8. The trial court erred in failing to grant the appellant’s motion for
acquittal pursuant to [Crim.R. 29] as the evidence presented by the state at
trial was insufficient to prove the elements of the offenses.
9. The state’s closing arguments contained statements that went beyond the
record and were not substantiated by the evidence and therefore violated
appellant’s right to due process.
10. The verdict was against the manifest weight of the evidence.
Procedural History and Facts
{¶2} In March 2012, the Cuyahoga County Grand Jury indicted Orr on six
counts: two counts of aggravated murder in violation of R.C. 2903.01(A) and (B);
kidnapping in violation of R.C. 2905.01(A)(2); aggravated burglary in violation of R.C.
2911.11(A)(1); aggravated robbery in violation of R.C. 2911.01(A)(3); and having a
weapon while under disability in violation of R.C. 2923.13(A)(2). The aggravated
murder counts and the weapon while under disability count contained one- and three-year
firearm specifications, and the remaining counts contained the same firearm
specifications, as well as notice of prior conviction and repeat violent offender
specifications. The following facts were presented to the bench (the facts regarding
Orr’s arguments about the jury waiver will be discussed within the analysis).
{¶3} Yaisa Jones testified that in October 2011, she lived on West 97th Street, in
Cleveland, Ohio, with the victim, Peter Nelson, Jr., and her four children — S.J. (who
was 15 years old at that time), D.J. (who was 13 years old at that time), I.J. (who was 9
years old at that time), and P.J. (who was 4 years old at that time). Jones stated that
Nelson was her fiancé and the father of one of her daughters.
{¶4} Jones testified that on October 10, 2011, she had gotten up at 4:45 a.m. to
go to work at her normal time. She left her house around 5:30 a.m. that morning.
Jones was a rehabilitation specialist; she assisted elderly people with developmental
disabilities. Before she left, she saw her daughter, S.J., go to the bathroom, but she did
not speak to her because S.J. went back to bed. Jones said that Nelson was up and in the
kitchen before she left. Soon after she got to work, she received a call from a police
officer that there had been an incident at her house. She drove home and learned that
her fiancé had been killed.
{¶5} Jones stated that she drove a silver Lincoln Navigator. Nelson drove a
gray Porsche Cayenne and also had an older red Oldsmobile. Jones said that she
returned to her home to get her belongings, but never lived in the house after Nelson was
killed. Jones was aware that Nelson smoked and sold marijuana.
{¶6} Jones testified that she was not aware that an anonymous call was made to
911 about 12 hours after the homicide, reporting that a gray Lincoln Navigator with
license plate number FOQ7857 was at the house, and that two people were carrying bags
of items out of the window of the house. Jones did not know her license plate number.
She also denied that she went back to the house while it was still a crime scene, but stated
that it was possible that she let someone drive her Navigator that day; she could not recall.
Jones was at Nelson’s aunt’s house around that time. She said that it was possible that
her children wanted some of their belongings out of the house.
{¶7} Jones agreed on cross-examination that she was aware that her daughter,
Deshawnte Jackson (who was an adult and not living with Jones and Nelson) told her that
her friend “Mike-Mike” told her that “Marcel” said that he was going to rob Nelson.
{¶8} S.J. testified that on October 10, 2011, she got up and went to the bathroom
before her mom went to work, but she did not talk to her mom. She went back to bed; it
was still dark. She heard a “big boom” that woke her up, but she thought she was
dreaming so she laid back down. S.J. stated that a couple of minutes later, she heard
someone come in her room. She turned over, and there were two men standing over her
with handguns pointed at her face. S.J. said that because it was dark, she could not see
very well. She testified that one of the men was wearing dark clothes and the other was
wearing lighter-colored clothes.
{¶9} S.J. testified that one of the men left her room, while the other remained.
The man sat on her bed. S.J. said that she sat up, but did not look at the man; she kept
her head down. The man asked her if her mother was still there. The man also asked
her who else was in the house. S.J. said that her dog, who was in a crate in the kitchen,
began barking. The man asked her why she did not tell him that she had a dog. The
man then asked her if there was any money in the house. S.J. said that her siblings came
into her bedroom at that point; she had her own room, but her siblings all shared the other
upstairs bedroom.
{¶10} S.J. heard the other man yell from downstairs for the man in her room. The
man in her room then walked out of her bedroom. S.J. heard a gunshot and saw a “flash
of light.” S.J. called 911 at that point. S.J. said that the men’s faces were not covered,
but they were both wearing hoods.
{¶11} D.J. testified that she heard the two men come into her bedroom, which was
a large room at the top of the stairs without a door. She saw them go in S.J.’s bedroom.
D.J. said that she saw one of the men come out of S.J.’s bedroom a minute later and go
downstairs. She heard that man arguing with Nelson; she heard them “tussling” and
fighting, and she heard Nelson yelling “stop” and “no.” She woke up her other sibling,
who shared a room with her, and they went to S.J.’s bedroom. D.J. said that she forgot
that the other man was still in S.J.’s bedroom. She told S.J., “I think we are getting
robbed.” The man said, “yea, sit down.” She then heard the man from downstairs
scream “help.” The man in S.J.’s bedroom got up and said, “don’t scream because you
probably about to hear a lot of shooting.”
{¶12} When police arrived at the scene, the front door was locked but the back
door, into the kitchen, was wide open. There was no sign of a forced entry. Police
officers testified that the kitchen and dining room showed signs of a struggle. Police
found Nelson lying at the top of the stairs. He had been shot in the head. Police found
the children in one of the bedrooms. Firefighters helped get the children out of the
house through an upstairs bedroom window so that they did not have to see Nelson.
{¶13} Officers who arrived soon after the first responders secured the scene and
collected many items for testing, including fingerprints, three cell phones (an LG phone
found on the kitchen floor and two other brands in a bedroom), suspected crack cocaine, a
digital scale, a brown glove, a black half-face mask (found behind the kitchen door), a
gun under the bed, bullet “magazines,” and spent shell casings. Police also found almost
$1,700 in the home.
{¶14} Police officers determined that two of the cell phones found at the scene
belonged to Nelson, but one of the cell phones, the LG phone, did not belong to anyone in
the home. Police officers obtained a search warrant and discovered that the service
provider for the LG phone was Revol Wireless. Through Revol Wireless, police officers
learned that the phone was registered to Brenda Howell, Orr’s mother.
{¶15} Police officers spoke to Howell in late October 2011. The officers
discovered that Howell had permitted Orr to use the LG cell phone when he got out of
prison earlier that month. Howell explained that the phone belonged to her daughter, but
she allowed Orr to use it when he got out of prison because her daughter was incarcerated
at that time. Howell testified that she allowed others to use the phone as well. Howell
further testified that her son told her that he lost the phone before police talked to her, but
she did not cancel the cell service on the lost phone. She could not explain why she did
not cancel the cell service.
{¶16} Police officers first talked to Orr in early December 2011; Orr stated that he
lost the cell phone, but he could not remember where he lost it. He denied knowing why
it was found at the scene of a homicide. Orr agreed to give police a cheek swab.
{¶17} Police detectives determined that there were three contacts saved in the LG
cell phone — “Toon,” “Ox,” and “Van.” Police discovered that Orr was incarcerated
with “Ox,” whose name was Dajuan Fields. Orr, however, denied knowing “Ox” or
“Toon.” A custodian of records from Revol Wireless testified that two calls were made
from the LG cell phone to Dajuan Fields on the morning of October 10, 2011, at 4:16
a.m. and 4:46 a.m. Further, one call was made from the LG cell phone to the phone that
Orr’s mother, Howell, personally used. Howell’s number was not a saved contact in the
LG cell phone.
{¶18} Ballistic experts determined that the bullets found at the scene did not match
the gun that was found at the scene.
{¶19} Police officers showed the children photo arrays. The children were not
able to identify anyone in the photo arrays.
{¶20} Carey Baucher, a forensic scientist specializing in DNA testing for the
Cuyahoga County medical examiner’s office, testified that she analyzed a portion near the
mouth of the black half-face mask found at the scene; the DNA on the mask matched
Orr’s DNA. Baucher explained that the results showed that the DNA was a “single
source full profile.” Orr’s DNA was not found on any other piece of evidence collected
at the scene.
{¶21} The state also established that Orr was convicted of aggravated robbery in
2003.
{¶22} Orr moved for a Crim.R. 29 acquittal, which was denied by the trial court.
After the state rested, Orr presented 20 witnesses on his behalf, including himself,
members of the victim’s family, members of his own family, police officers and
detectives, his parole officer, his investigator in the case, and a private DNA analyst from
DNA Diagnostic Center. Members of Orr’s family testified that when he got out of
prison, he helped his sister every day by babysitting for his young niece. Orr’s mother
agreed that she let many other people use the cell phone, not just Orr. Orr denied any
involvement in the crime.
{¶23} Stacy Martin, a DNA analyst from the DNA Diagnostic Center, testified
that she analyzed the black half-face mask that was sent to her by Orr. She concluded
that both the mask and a section of the mask that was cut from the mouth of the mask had
DNA on them that matched Orr’s DNA. She stated that she also observed minor
“alleles” on the sample that were below reporting standards, so she could not make any
conclusions regarding the minor “alleles.”
{¶24} At the close of all of the evidence, the trial court found Orr guilty of all
charges and specifications.2 Before sentencing Orr, the trial court merged the two
aggravated murder counts, aggravated robbery and aggravated burglary, as well as the
one- and three-year firearm specifications attached to each count. The state elected to
proceed on the aggravated murder under R.C. 2903.01(B).
{¶25} The trial court sentenced Orr to life in prison without parole for
aggravated murder under R.C. 2903.01(B), and imposed three years for the firearm
specifications, to be served consecutive to and prior to the base charge of murder. The
trial court sentenced Orr to 19 years on the kidnapping count — 11 years for
kidnapping, five years for the repeat violent offender specifications, and three years for
the firearm specifications to be served consecutive to and prior to the kidnapping count.
The trial also court sentenced Orr to 36 months for having a weapon while under
disability, and ordered that the sentences for aggravated murder, kidnapping, and having a
weapon while under disability be served concurrent to each other. It is from this
judgment that Orr appeals. We will address Orr’s assignments of error and
supplemental assignments of error together and out of order where necessary for ease of
discussion and analysis.
Jury Waiver
The state dismissed the one- and three-year firearm specifications on the count of having a
2
weapon while under a disability.
{¶26} In Orr’s first assignment of error and his second and seventh supplemental
assignments of error, he argues that he did not voluntarily waive his right to a jury trial
and that the trial court was without jurisdiction to conduct a bench trial because it did not
strictly comply with the requirements of R.C. 2945.05.
{¶27} Specifically, Orr maintains that his waiver was conditional and involuntary
because the trial judge refused to recuse himself from his case and, thus, Orr maintains
that his jury waiver was not valid.
{¶28} A criminal defendant’s right to a jury trial is guaranteed in the Sixth and
Fourteenth Amendments to the United States Constitution and Sections 5 and 10, Article
I, of the Ohio Constitution. State v. Burnside, 186 Ohio App.3d 733, 2010-Ohio-1235,
930 N.E.2d 372, ¶ 45 (2d Dist.). Regarding serious offenses, an accused may not be
deprived of this right unless it is knowingly, intelligently, and voluntarily waived. See
Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); R.C.
2945.05; Crim.R. 23(A).
{¶29} Crim.R. 23(A) provides:
In serious offense cases the defendant before commencement of the trial
may knowingly, intelligently and voluntarily waive in writing his right to
trial by jury. Such waiver may also be made during trial with the approval
of the court and the consent of the prosecuting attorney. In petty offense
cases, where there is a right of jury trial, the defendant shall be tried by the
court unless he demands a jury trial. Such demand must be in writing and
filed with the clerk of court not less than ten days prior to the date set for
trial, or on or before the third day following receipt of notice of the date set
for trial, whichever is later. Failure to demand a jury trial as provided in
this subdivision is a complete waiver of the right thereto.
{¶30} R.C. 2945.05 provides:
In all criminal cases pending in courts of record in this state, the defendant
may waive a trial by jury and be tried by the court without a jury. Such
waiver by a defendant, shall be in writing, signed by the defendant, and
filed in said cause and made a part of the record thereof. It shall be
entitled in the court and cause, and in substance as follows: “I ........,
defendant in the above cause, hereby voluntarily waive and relinquish my
right to a trial by jury, and elect to be tried by a Judge of the Court in
which the said cause may be pending. I fully understand that under the
laws of this state, I have a constitutional right to a trial by jury.”
Such waiver of trial by jury must be made in open court after the defendant
has been arraigned and has had opportunity to consult with counsel. Such
waiver may be withdrawn by the defendant at any time before the
commencement of the trial.
{¶31} Under the plain language of Section 2945.05, the entirety of a defendant’s
jury-trial waiver must be in writing. R.C. 2945.05; State v. Lomax, 114 Ohio St.3d 350,
2007-Ohio-4277, 872 N.E.2d 279,  9. The Ohio Supreme Court explained that “to be
valid, a waiver [under Section 2945.05] must meet five conditions. It must be (1) in
writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5) made
in open court.” Id.{¶32} The Ohio Supreme has held that, “[a]bsent strict compliance with the
requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without
a jury.” State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766 (1996), paragraph one of the
syllabus. Although “Ohio courts have declined to find that the language of the waiver
must be a verbatim recitation of R.C. 2945.05,” the content of the waiver must be in
“[s]ubstantial compliance” with the suggested language. State v. Woodbridge, 9th Dist.
Summit No. 26911, 2014-Ohio-1388,  6, citing State v. Webb, 10th Dist. Franklin No.
10AP-289, 2010-Ohio-6122, ¶ 26-27.
{¶33} In this case, Orr refused to sign the court’s jury waiver form. In refusing to
do so, Orr told the court that he had written his own jury waiver, which he filed with the
clerk of courts. The court explained to Orr that he had a right to a jury trial. The court
made sure that Orr understood that right and that he was knowingly, intelligently, and
voluntarily waiving that right. Orr then read his written waiver into the record in open
court:
Now comes the defendant, Darllel B. Orr unrepresented, in the above cause,
hereby voluntarily waive and relinquish my right to a trial by jury, and elect
to be tried by a judge of the court other than my judge of record in which
the said cause may be pending [if any reasonable alternatives are available
under equal protection of the laws.] I fully understand that under the laws
of this state, if I am “compelled” to enter this [corporation] of such an overt,
unjustifiable, and void for subject matter jurisdiction proceeding without
my [Crim.R. 3] complaint and [Crim.R. 4] probable cause determination
complying with law, that “I do have a constitutional right to a trial by jury.”
{¶34} The record reflects that before the court addressed the issue of jury waiver,
the court denied several other motions that Orr had previously made (although Orr denied
in court that his requests were motions, he was nonetheless requesting the court to act).
One such motion was Orr’s request for the trial judge to recuse himself from his case,
which the court denied. Then, after Orr read his written jury waiver into the record, the
court asked him, “Knowing now [that] I will not recuse myself, do you wish to invoke
your right to a jury trial?” Orr responded that he did not wish to do so. The court
proceeded with the bench trial.
{¶35} Ohio courts have characterized the colloquy required between the court and
a criminal defendant regarding a jury trial waiver as “extensive enough for the judge to
make a reasonable determination that the defendant has been advised and is aware of the
implications of voluntarily relinquishing a constitutional right.” State v. Carothers, 8th
Dist. Cuyahoga No. 82860, 2004-Ohio-51, quoting State v. Walker, 90 Ohio App.3d 352,
358, 629 N.E.2d 471 (3d Dist.1993).
{¶36} After review of the record in this case, we conclude that Orr knowingly,
intelligently, and voluntarily waived his constitutional right to a jury trial and that the trial
court properly accepted his written waiver, even though it was conditioned on having
another judge try his case. Orr refused to sign the court’s waiver, insisting that the court
accept his own waiver. After he read his own waiver in the record, the judge asked him
if he wanted to try his case to a jury knowing that the judge was not going to recuse
himself. Orr stated no. Orr cannot now argue that his waiver was not voluntary or that
the trial court erred by accepting his waiver.
{¶37} Orr’s three assignments of error addressing jury waiver are overruled.
Right to Present a Complete Defense
{¶38} In his second assignment of error, Orr argues that his Sixth and Fourteenth
Amendment rights to a complete defense and compulsory process were violated. Orr
maintains that he wished to call, but was not ultimately able to call, Officer Erb and
Kenneth White. Orr claims that the trial court abruptly ended the trial, without ever
asking Orr if he was prepared to close, without asking Orr if he had any further witnesses,
and took an “unusual tactic” of admitting exhibits out of order. Orr’s recitation of what
actually occurred “[n]ear the close of the case,” however, could not be further from what
actually happened.
{¶39} In Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d
297 (1973), the United States Supreme Court recognized that “[t]he right of an accused in
a criminal trial to due process is, in essence, the right to a fair opportunity to defend
against the state’s accusations.” Although Chambers referred to due process, the court
has since explained that
[w]hether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation clauses of the
Sixth Amendment, the Constitution guarantees criminal defendants “a
meaningful opportunity to present a complete defense.”
Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), quoting
California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and
citing Chambers and Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d
1019 (1967). As stated in Crane, “[t]hat opportunity would be an empty one if the state
were permitted to exclude competent, reliable evidence * * * when such evidence is
central to the defendant’s claim of innocence.” Id. at 690.
{¶40} Although the right to present a defense is a fundamental element of due
process of law, the right is not without limits. Washington at 19-21; State v. Swann, 119
Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d 821, ¶ 13. The right has only been
applied to “testimony [that] would have been relevant and material, and * * * vital to the
defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73
L.Ed.2d 1193 (1982), quoting Washington at 16. Moreover, the testimony or evidence
must otherwise be admissible under the rules of evidence. Taylor v. Illinois, 484 U.S.
400, 411, 108 S.Ct. 646, 98 L.Ed.2d 798 (1987). Thus, the accused “‘must at least make
some plausible showing of how [a witness’s] testimony would have been both material
and favorable to his defense.” Cleveland v. Alexander, 8th Dist. Cuyahoga No. 92282,
2009-Ohio- 4566, ¶ 27, quoting Valenzuela-Bernal. See also State v. Abdelhaq, 8th
Dist. Cuyahoga No. 74534, 1999 Ohio App. LEXIS 5573 (Nov. 24, 1999).
{¶41} Further, a defendant’s interest in presenting evidence in his or her defense
must “‘bow to accommodate other legitimate interests in the criminal trial process.’”
Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), quoting
Chambers at 294, 295. As a result, state and federal rule makers have broad latitude
under the Constitution to establish rules excluding evidence from criminal trials. Such
rules do not abridge an accused’s right to present a defense so long as they are not
“arbitrary” or “disproportionate to the purposes they are designed to serve.” Rock at 56.
The Supreme Court finds the exclusion of evidence to be unconstitutionally arbitrary or
disproportionate only where it has infringed upon a weighty interest of the accused.
Washington at 22-23.
{¶42} In this case, Orr argues that the trial court prevented him from calling
Officer Erb and Kenneth White in his defense. Kenneth White was the 911 caller who
reported seeing the Lincoln Navigator outside the victim’s residence approximately 12
hours after the murder, when the home was secured as a crime scene and, thus, no one
was supposed to enter. Officer Erb, along with Officer Lentz, was one of the first two
police officers who arrived to the scene of the crime; Officer Erb wrote the police report.
{¶43} The trial began on Tuesday, July 23, 2013. Orr began presenting his
defense on Wednesday, July 31, 2013. Two weeks later, on Wednesday, August 14,
after Orr had presented 17 witnesses, the state requested to know who Orr’s final
witnesses would be because they were nearing the end of the case. The trial court began
the lengthy process of asking Orr who else he wished to call (this “process” lasted for
three days). Two days, later, on Friday, August 16, 2013, after Orr had put on two more
witnesses, the trial court asked Orr if he had any other witnesses. Orr stated that he still
wished to call Kenneth White, Officer Erb, and his investigator, Brenda Bickerstaff. But
none of these witnesses was present in court to testify. The trial court indicated to Orr
that because he did not have any other witnesses, it was “time to rest [his] case.” The
trial court began asking Orr which of his exhibits he wished to admit into evidence.
After the court had gone through all of the exhibits, Bickerstaff appeared in court.
{¶44} According to Bickerstaff and stand-by counsel, Officer Erb had retired from
the police force and his whereabouts were unknown. Bickerstaff had found Officer
Erb’s ex-wife, but not Officer Erb. Further, Bickerstaff explained to the judge that
Kenneth White had moved. At first, she had not been able to locate him, but she later
located his new address and stated that she left a subpoena at his new residence, but he
did not show up for court. On Friday, August 16, 2013, she told the court that she would
attempt to locate Kenneth White at his work to personally serve him a subpoena for the
following Monday morning. The trial court made clear on that day, Friday, August 16,
that the following Monday would be Orr’s last chance to “get witnesses together.”
{¶45} That following Monday morning, August 19, 2013, the trial court asked
Orr who else he had as a witness. Orr indicated that he wished to call Bickerstaff. Orr
further indicated that he still wished to call Officer Erb and Kenneth White. Orr stated
that Bickerstaff was supposed to subpoena both witnesses for that day. Stand-by
counsel also indicated that they spoke to Bickerstaff on Friday; she still had not been able
to locate Officer Erb, but said that she would still try to do so over the weekend. But on
that Monday morning, no one was present to testify for Orr, not Bickerstaff, White, or
Officer Erb.
{¶46} Without any witnesses present to testify for Orr, the trial court informed Orr
that he did not have any more witnesses. Thus, when Orr did not have any other
witnesses to present, the trial court asked Orr if he wished to move for a Crim.R. 29
acquittal, which Orr did and the trial court denied.
{¶47} At that point, the state gave its initial closing argument, followed by Orr’s
closing argument. After Orr completed his closing argument, he informed the court that
he wanted to “rescind all exhibits” that he entered. He also told the court that he wanted
to make sure that a few of his “objections” were “preserved” for the record. At that
point, Bickerstaff arrived at court.
{¶48} Bickerstaff informed the court that she did find retired police officer
Mitchell Erb. She explained that he was staying with his in-laws, but that he was not
available. Bickerstaff said that the in-laws called Officer Erb, but he instructed them not
to accept the subpoena. Bickerstaff explained to Officer Erb’s in-laws that she had to
hand the subpoena to Officer Erb personally anyway. Kenneth White was not
mentioned.
{¶49} The trial court then permitted Orr to put Bickerstaff on the stand. She
discussed her investigation. But when Orr and Bickerstaff began disagreeing about what
her duties were, the trial court cut Orr off from questioning Bickerstaff about anything
that was not relevant to his defense. When Orr continued asking Bickerstaff questions
that she could not answer in court, the trial court told Orr to ask “a question that is
relevant to this case.” Orr continued to argue with the trial court, so the trial court ended
the questioning and advised Bickerstaff that she was done testifying.
{¶50} The state then gave its rebuttal closing argument. After the state was
finished, Orr continued to try to talk to the trial court about a “Declaration Rebutting the
Presumption that Probable Cause Exists for the Institution of Prosecution” that he
planned to file that morning (he had been trying to discuss it with the trial court all
morning). The state said that it had no objection to Orr filing the document. Orr
continued to say that he wanted to have it entered as an exhibit. The trial court agreed to
mark it as an exhibit, but noted that it had “very little evidentiary value, if any.”
{¶51} At that point, Orr then told the trial court that he had not completed his
closing arguments because Bickerstaff had interrupted them. The court disagreed with
Orr that he had not completed his closing arguments, stating that Orr was actually in the
middle of preserving his “objections” when Bickerstaff came into the courtroom.
Nonetheless, the trial court permitted Orr to continue his closing arguments (for another
20 pages of the transcript).
{¶52} After review, we find that Orr’s right to present a complete defense was not
violated by the trial court. The record reflects that the trial court bent over backwards to
allow Orr the time he needed to obtain his witnesses and present his defense. Indeed,
the trial court only went out of order, accepting Orr’s exhibits, and then allowing him to
call another witness, to accommodate Orr. This was just one of the many ways the trial
court attempted to accommodate Orr throughout the trial.
{¶53} Evid.R. 611(A) grants the trial court discretion to “exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence” so as
to “make the interrogation and presentation effective for the ascertainment of the truth
[and] avoid needless consumption of time[.]” It was well within the trial court’s
discretion to reopen Orr’s case to permit him to put another witness on in his defense.
Trial courts are given great deference in controlling their dockets. State v. Unger, 67
Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).
{¶54} Further, Officer Lentz testified that he and Officer Erb were the first officers
to arrive on the scene (although Officer Erb wrote the report). Officer Lentz already
testified as to what he and Officer Erb observed when they first arrived. Orr
cross-examined Officer Lentz extensively, including questioning him about what was in
Officer Erb’s report. And the 911 call, regarding the Lincoln Navigator being at the
scene 12 hours after the murder, was played in court; indeed, Orr played it in court even
before the state had a chance to authenticate it. Thus, the evidence that Orr could have
obtained from Officer Erb or Kenneth White would likely be cumulative.
{¶55} Moreover, the trial in this case began on Tuesday, July 23, 2013. Orr
began presenting his defense on Wednesday, July 31. He presented a total of 19
witnesses, without any time limits put on him by the trial court. It was certainly well
within the trial court’s discretion to begin discussing the close of the case with Orr on
Wednesday, August 14, 2013, and to advise Orr on Friday, August 16, 2013, that he had
until Monday to get his remaining witnesses together. We find that doing so did not
infringe “upon a weighty interest of the accused.” See Washington, 388 U.S. at 22-23,
87 S.Ct. 1920, 18 L.Ed.2d 1019.
{¶56} Accordingly, after reviewing the entire record, we conclude that Orr was not
prevented from presenting a complete defense. His second assignment of error is
overruled.
Sufficiency of the Evidence
{¶57} In his fourth assignment of error, Orr contends that the state failed to present
sufficient evidence to convict him of aggravated murder under R.C. 2903.01(A) and (B),
aggravated burglary, and the firearm specifications under R.C. 2941.141(A) and
2941.145(A). In his fourth and eighth supplemental assignments of error, Orr argues
that the state failed to present sufficient evidence for his convictions because it did not
sufficiently establish his identity or that “a criminal conspiracy was afoot.”
{¶58} 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 verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d
668 (1997). In essence, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). When an appellate court reviews a record upon
a sufficiency challenge, “the relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
A. Identity and Complicity
{¶59} Because identity and complicity encompass each of Orr’s convictions, we
will address them first. Orr argues that the state’s evidence was not sufficient to
establish his identity because no witness testified that the offenders were wearing masks
on the morning of the murder. He further maintains that S.J. heard the accomplice, but
could not identify his voice. Finally, he argues that no one identified him in a photo
array.
{¶60} We note at the outset that proof of guilt may be made by circumstantial
evidence, real evidence, and direct evidence, or any combination of the three, and all
three have equal probative value. State v. Nicely, 39 Ohio St.3d 147, 529 N.E.2d 1236(1988); Jenks, paragraph one of the syllabus. Indeed, “‘direct evidence of fact is not
required[;] circumstantial evidence * * * may also be more certain, satisfying and
persuasive than direct evidence.’” State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293(1990), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5
L.Ed.2d 20 (1960). Just as any element, “circumstantial evidence may be sufficient to
establish the identity of [the] accused as the person who committed the crime.” State v.
Scott, 3 Ohio App.2d 239, 244-245, 210 N.E.2d 289 (7th Dist.1965); see also State v.
Brown, 10th Dist. Franklin No. 07AP-244, 2007-Ohio-6542, ¶ 19.
{¶61} In this case, the state presented evidence that an LG cell phone and black
half-face mask was found in the victim’s kitchen. The cell phone and mask did not
belong to any person who lived in the house. The state learned that the cell phone
belonged to Orr’s mother, Brenda Howell. Howell told police that she let her son use
the cell phone when he got out of prison — six days before the murder.
{¶62} On the morning of the murder, at 4:14 a.m., someone using the LG cell
phone called Howell’s personal cell phone. Howell’s cell phone number was not a
saved contact in the LG cell phone and, thus, whoever called Howell must have known
Howell’s number by memory.
{¶63} Further, DNA found near the mouth of the black half-face mask matched
Orr’s DNA. This evidence, coupled with the evidence regarding the cell phone, is
sufficient to prove Orr’s identity beyond a reasonable doubt.
{¶64} Orr also argues that the state failed to prove beyond a reasonable doubt that
a “nexus” existed between himself and the other offender, such that it established that “he
participated in a larger conspiracy to cause serious physical harm to the victim.”
{¶65} A charge of complicity may be stated in terms of the complicity statute or in
terms of the principal offense. R.C. 2923.03(F). To support a conviction for
complicity by aiding and abetting, the state must present evidence to show that the
defendant “supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the criminal intent
of the principal.” State v. Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001).
The defendant’s intent may be inferred from the circumstances surrounding the crime.
Id. The defendant’s “‘[p]articipation in criminal intent may be inferred from presence,
companionship and conduct before and after the offense is committed.’” Id., quoting
State v. Pruett, 28 Ohio App.2d 29, 273 N.E.2d 884 (4th Dist.1971).
{¶66} Here, the state presented evidence that two men entered the victim’s home
sometime between 5:30 a.m. and 6:00 a.m. on the morning of October 10, 2011, went
upstairs to S.J.’s bedroom, and woke her up by pointing two handguns at her face.
While one man remained in her bedroom, the other man proceeded to go back downstairs
and get into a physical altercation with the victim; D.J. heard the fighting and heard the
victim saying “no” and “stop.” The man who remained in S.J.’s bedroom asked her a
series of questions, including was there “any money in the house?”
{¶67} Then, when the victim apparently got away from the man he had been
fighting with on the first floor of the house, that man yelled “help” upstairs to the other
man who was in the bedroom. The man in the bedroom told the children, “don’t scream
because you probably about to hear a lot of shooting.” The man in the bedroom then
walked out of the bedroom and shot the victim, who was at the top of the stairs, in the
head.
{¶68} After reviewing this evidence, we find that the state presented sufficient
evidence that Orr aided and abetted the other offender in the victim’s murder.
{¶69} Orr’s fourth and eighth supplemental assignments of error are overruled.
B. Aggravated Murder
{¶70} In his fourth assignment of error, Orr argues that there was no evidence that
he acted purposely to support murder under R.C. 2903.01(A) or (B), nor was there any
evidence of prior calculation and design to support his conviction under R.C. 2903.01(A).
{¶71} Aggravated murder under R.C. 2903.01 provides in relevant part:
(A) No person shall purposely, and with prior calculation and design, cause
the death of another[.]
(B) No person shall purposely cause the death of another * * * while
committing or attempting to commit, or while fleeing immediately after
committing or attempting to commit, kidnapping, rape, aggravated arson,
arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass
in a habitation when a person is present or likely to be present, terrorism, or
escape.
1. Purposely
{¶72} R.C. 2901.22(A) states that “[a] person acts purposely when it is his specific
intention to cause a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to accomplish thereby,
it is his specific intention to engage in conduct of that nature.”
An offender acts purposely when he or she intends the proscribed
result. An offender acts knowingly when, although he or she may be
indifferent to the result, the actor was nevertheless conscious that the
unlawful result would occur. For example, one “purposely” kills another
when he discharges a firearm in the direction of the intended victim seeking
to bring about his death. However, one would “knowingly” kill another if
she simply discharged the same firearm in the direction of the victim, not
seeking to effect death (she may well have committed the act for the
purpose of testing the weapon) but knowing full well that death would
result. In other words, “purpose” depends on an intended result, while
“knowledge” is consciousness that the proscribed result will occur.
State v. Chambers, 4th Dist. Adams No. 10CA902, 2011-Ohio-4352, ¶ 35, fn. 2, quoting
Katz & Gianelli, Ohio Criminal Law, Section 85.7 (2010 Ed.).
{¶73} The state established that when one accomplice yelled for “help” from
downstairs, the other came out of the bedroom, after telling the children not to scream
because they were about to hear “a lot of shooting,” and immediately shot the victim in
the head. This evidence is sufficient to establish that the offender acted “purposely,”
intending to kill the victim.
2. Prior Calculation and Design
{¶74} “Prior calculation and design” indicates “studied care in planning or
analyzing the means of the crime as well as a scheme encompassing the death of the
victim.” State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997). The Revised
Code does not define “prior calculation and design,” but the Ohio Supreme Court
ha[s] interpreted the phrase to require evidence of “more than the few
moments of deliberation permitted in common law interpretations of the
former murder statute, and to require a scheme designed to implement the
calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 11, 381
N.E.2d 190 (1978). While “‘[n]either the degree of care nor the length of
time the offender takes to ponder the crime beforehand are critical factors in
themselves,”’ “momentary deliberation is insufficient.” State v.
D’Ambrosio, 67 Ohio St.3d 185, 196, 616 N.E.2d 909 (1993), quoting the
1973 Legislative Service Commission Comment to R.C. 2903.01.
State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38.
{¶75} The state can prove “prior calculation and design” from the circumstances
surrounding a murder in several ways: (1) evidence of a preconceived plan leading up to
the murder, (2) evidence of the perpetrator’s encounter with the victim, including
evidence necessary to infer the defendant had a preconceived notion to kill regardless of
how the robbery unfolded, or (3) evidence that the murder was executed in such a manner
that circumstantially proved the defendant had a preconceived plan to kill. State v.
Dunford, 11th Dist. Ashtabula No. 2009-A-0027, 2010-Ohio-1272, ¶ 53, citing State v.
Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218 (10th Dist.).
Furthermore, the execution-style mode indicates conformance with a plan, not simply an
“explosive, short-duration situation.” Id., citing Taylor at 17-18.
{¶76} The scheme must be “designed to implement the calculated decision to kill.”
State v. Cotton, 56 Ohio St.2d 8, 11, 381 N.E.2d 190 (1978). Prior calculation and
design can be found even when a plan to kill is quickly conceived and executed within
minutes. State v. Coley, 93 Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001), citing State v.
Palmer, 80 Ohio St.3d 543, 567-568, 687 N.E.2d 685 (1997) (road-rage double homicide
that quickly occurred after traffic accident); Taylor at 20-23 (chance encounter in bar
between rivals for another’s affections). A momentary impulse, however, is insufficient.
See Conway.
{¶77} The existence of prior calculation and design is determined on a
case-by-case analysis of the facts and evidence. State v. Jones, 91 Ohio St.3d 335, 345,
744 N.E.2d 1163 (2001). The Ohio Supreme Court has said that it “is not possible to
formulate a bright-line test that emphatically distinguishes between the presence or
absence of “prior calculation and design.” Taylor, 78 Ohio St.3d at 19, 676 N.E.2d 82.
“Instead, each case turns on the particular facts and evidence presented at trial.” Id.{¶78} Although there is no bright-line rule for determining prior calculation and
design, the Ohio Supreme Court has found the following factors pertinent to determining
the existence of prior calculation and design:
(1) Did the accused and victim know each other, and if so, was that
relationship strained? (2) Did the accused give thought or preparation to
choosing the murder weapon or murder site? and (3) Was the act drawn out
or “an almost instantaneous eruption of events?”
Taylor at 19, citing State v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th
Dist.1976). These factors should be weighed with the totality of the circumstances
surrounding the murder. Jenkins at 102.
{¶79} Although there is no evidence that Orr knew the victim, we find that
construing the evidence in a light most favorable to the prosecution, any rational trier of
fact could have concluded beyond a reasonable doubt that Orr and his accomplice had
formulated a plan to kill the victim, who was a known drug dealer. The two men arrived
at the victim’s home in the early morning hours, both carrying guns. The fact that they
entered so early in the morning is evidence that they planned the time and place of the
murder, knowing that Jones would be gone and Nelson would still be there. And
although arriving with guns, in and of itself, would not be enough to prove prior
calculation and design, we have more than that in this case. Thus, the fact that the two
men took guns to the victim’s home is evidence of prior calculation and design when
considering the totality of the circumstances in this case.
{¶80} Further, the men entered the back of the home, walked up the stairs, and into
S.J.’s bedroom. One of the men asked S.J. if there was any money in the home. The
other man went back downstairs and fought with the victim. And then when the victim
went upstairs, that man yelled for the other man to “help.” The man in the bedroom said
to the children in the room, “don’t scream because you probably about to hear a lot of
shooting.” The man then walked out of the bedroom and immediately shot the victim,
who was standing at the top of the stairs, in the head. This evidence, of such a
cold-blooded killing, circumstantially indicates aforethought, not a sudden eruption of
events. Thus, we find that a rational trier of fact may infer prior calculation and design
beyond a reasonable doubt.
C. Aggravated Burglary and Firearm Specifications
{¶81} Orr further argues that the state failed to present sufficient evidence to
convict him of aggravated burglary and the firearm specifications attached to the
aggravated burglary.
{¶82} R.C. 2911.11(A)(2) provides that
No person, by force, stealth, or deception, shall trespass in an occupied
structure * * *, when another person other than an accomplice of the
offender is present, with purpose to commit in the structure * * * any
criminal offense, if * * * [t]he offender has a deadly weapon or dangerous
ordnance on or about the offender’s person or under the offender’s control.
{¶83} R.C. 2941.141 requires proof beyond a reasonable doubt that “the offender
had a firearm on or about the offender’s person or under the offender’s control while
committing the offense.”
{¶84} R.C. 2941.145 requires proof beyond a reasonable doubt that “the offender
had a firearm on or about the offender’s person or under the offender’s control while
committing the offense and displayed the firearm, brandished the firearm, indicated that
the offender possessed the firearm, or used it to facilitate the offense.”
{¶85} Orr’s entire argument on this issue is that the state failed to present
sufficient evidence of “his intent to commit a criminal offense” because “the two males
were separated, no guidance, instruction, exertion of control or communication occurred
between the two males.” Because of this, Orr contends that there was no evidence that
he possessed or controlled a deadly weapon or dangerous ordnance.
{¶86} We already addressed the evidence regarding complicity at the outset of our
sufficiency analysis. There was more than enough evidence presented to establish that
Orr aided and abetted his accomplice in committing the crimes for which he was
convicted. Further, S.J. testified that she woke up to both intruders pointing a gun at her
face. Thus, Orr’s arguments regarding aggravated burglary and the attached firearm
specifications are without merit.
{¶87} Accordingly, Orr’s fourth assignment of error is overruled.
Manifest Weight of the Evidence
{¶88} In his third assignment of error and his tenth supplemental assignment of
error, Orr argues that his convictions were against the manifest weight of the evidence.
{¶89} Unlike sufficiency of the evidence, a challenge to the manifest weight of the
evidence attacks the credibility of the evidence presented. Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541. Because it is a broader review, a reviewing court may determine
that a judgment of a trial court is sustained by sufficient evidence, but nevertheless
conclude that the judgment is against the weight of the evidence. Id., citing State v.
Robinson, 162 Ohio St. 486, 487, 124 N.E.2d 148 (1955).
{¶90} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing so, it must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine “‘whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.”’ Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversing a
conviction as being against the manifest weight of the evidence and ordering a new trial
should be reserved for only the “exceptional case in which the evidence weighs heavily
against the conviction.” Id.{¶91} Orr argues that despite his DNA being found on the black half-face mask,
there was no evidence that he was actually in the victim’s home. He further argues that
there was no evidence that he possessed the cell phone at the time of the murder.
{¶92} We disagree with Orr that the factfinder lost its way in convicting him.
After reviewing the entire record, weighing all of the evidence and all reasonable
inferences, considering the credibility of witnesses and determining whether in resolving
any conflicts in the evidence, we conclude that this is not the “exceptional case” where
the jury “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387,
678 N.E.2d 541. Indeed, the circumstantial evidence placing Orr at the scene is quite
convincing.
{¶93} Orr’s third assignment of error and his tenth supplemental assignment of
error are overruled.
Subject Matter Jurisdiction
{¶94} In his first supplemental assignment of error, Orr argues that the trial court
lacked subject matter jurisdiction over him.
{¶95} R.C. 2901.11(A)(1) grants jurisdiction to Ohio courts over criminal offenses
which occur in Ohio. The statute provides that “[a] person is subject to criminal
prosecution and punishment in this state if * * * the person commits an offense under the
laws of this state, any element of which takes place in the state.” In the instant case, Orr
was indicted by the Cuyahoga County Grand Jury on six counts, involving offenses that
occurred in Ohio. Accordingly, pursuant to R.C. 2901.11, the trial court had jurisdiction
to proceed on all counts. Further, the Cuyahoga County Common Pleas Court was the
proper venue to try the case, as R.C. 2901.12(A) provides that “the trial of a criminal case
in this state shall be held in a court having jurisdiction of the subject matter, and in the
territory of which the offense or any element of the offense was committed.”
{¶96} A common pleas court has original jurisdiction in felony cases under R.C.
2931.03, and its jurisdiction is invoked by the return of a proper indictment. Click v.
Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962). The record reflects that Orr was
prosecuted by proper indictment filed in the Cuyahoga County Court of Common Pleas.
Moreover, Orr is not even claiming that the indictment was invalid in any way.
Therefore, the trial court had jurisdiction over Orr’s case.
{¶97} Orr’s first supplemental assignment of error is overruled.
Confrontation Clause
{¶98} In his third supplemental assignment of error, Orr argues that Detective
Entenok’s “unsworn, untested testimonial hearsay” violated his confrontation rights under
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Orr’s
arguments seem to be based upon the fact that Detective Entenok testified that a black
half-face mask was found at the scene, but he could not recall “the exact origin of the
statement.” Detective Entenok testified in court, under oath, and was cross-examined
extensively by Orr. Thus, there were no confrontation issues.
{¶99} Orr’s third supplemental assignment of error is overruled.
Speedy Trial
{¶100} In his fifth and sixth supplemental assignments of error, Orr argues that his
constitutional and statutory speedy-trial rights were violated. Orr contends that because
he was held in jail from the date of his March 12, 2012 arrest, the triple-count provision
applies, and his speedy-trial time was up on July 24, 2012.
{¶101} The right to a speedy trial is guaranteed to all state criminal defendants by
the Sixth and Fourteenth Amendments to the United States Constitution, and by Section
10, Article I, of the Ohio Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87
S.Ct. 988, 18 L.Ed.2d 1 (1967). When reviewing a speedy-trial issue, an appellate court
must calculate the number of days chargeable to either party and determine whether the
appellant was properly brought to trial within the time limits set forth in R.C. 2945.71.
State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, 834 N.E.2d 887, ¶ 19 (12th Dist.).
{¶102} R.C. 2945.71(C)(2) governs the statutory time within which a defendant
must be brought to trial for a felony offense and provides in relevant part that: “A person
against whom a charge of felony is pending * * *[s]hall be brought to trial within two
hundred seventy days after the person’s arrest.”
{¶103} R.C. 2945.71(E) provides, “[f]or purposes of computing time * * *, each
day during which the accused is held in jail in lieu of bail on the pending charge shall be
counted as three days[.]”
{¶104} The time to bring a defendant to trial can be extended for any of the
reasons. In particular, R.C. 2945.72 provides in pertinent part that “[t]he time within
which an accused must be brought to trial, or, in the case of felony, to preliminary hearing
and trial, may be extended only by the following: * * * any period of delay occasioned by
the neglect or improper act of the accused[,] and * * * [t]he period of any continuance
granted on the accused’s own motion, and the period of any reasonable continuance
granted other than upon the accused’s own motion[.]” R.C. 2945.72(D) and (H).
{¶105} Generally, when computing how much time has run against the state under
R.C. 2945.71, we begin with the day after the accused was arrested. State v. Broughton,
62 Ohio St.3d 253, 260, 581 N.E.2d 541 (1991). Orr was arrested on March 12, 2012
and, thus, his speedy-trial time began to run on March 13, 2012.
{¶106} Orr was not brought to trial until July 23, 2013. Within this time,
however, Orr moved to continue the case at least 16 times, moved to discharge his
defense counsel — two sets of attorneys — twice, filed over 100 motions pro se with the
trial court (this does not include motions filed by his two sets of defense attorneys, which
would also toll the time despite Orr’s arguments to the contrary), filed numerous
“objections” and “notices” with the clerk’s office, and underwent competency and sanity
evaluations. After our independent counting of the record, the state was well within the
statutory time to bring Orr to trial.
{¶107} We also find that Orr’s constitutional right to a speedy trial was not
violated. In examining a constitutional claim on speedy-trial grounds, the statutory time
requirements of R.C. 2945.71 to 2945.73 are not relevant; instead, courts should employ
the balancing test enunciated by the United States Supreme Court in Barker v. Wingo, 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The test includes considering (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his or her
right to a speedy trial, and (4) the prejudice to the defendant. Id. at 530-532; see also State
v. Triplett, 78 Ohio St.3d 566, 679 N.E.2d 290 (1997).
{¶108} The length of delay is the triggering mechanism. State v. Kraus, 2d Dist.
Greene No. 2011-CA-35, 2013-Ohio-393, ¶ 23, citing Barker. “‘Until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.’” Id., quoting Barker. “Generally, courts have found
that a delay approaching one year becomes ‘presumptively prejudicial.’” State v. Winn,
8th Dist. Cuyahoga No. 98172, 2012-Ohio-5888, ¶ 44, citing Doggett v. United States,
505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1.
{¶109} In Winn, however, this court determined that over a year and a half
between the arrest and the defendant’s trial was not presumptively prejudicial because the
defendant “requested numerous continuances [and] filed many motions.” Winn at ¶ 44.
This court found that “in light of the totality of the circumstances, we are not persuaded
that the delay was so presumptively prejudicial as to trigger consideration of the Barker
factors.” Id. Just as in Winn, we are not persuaded that the delay in Orr’s case was
presumptively prejudicial.
{¶110} “The rationale supporting [the speedy-trial statute] was to prevent
inexcusable delays caused by indolence within the judicial system.” State v. Ladd, 56
Ohio St.2d 197, 200, 383 N.E.2d 579 (1978). After reviewing the record and docket in
this case, there is nothing before us that suggests that indolence in the judicial system had
anything at all to do with the delay in Orr’s trial.
{¶111} Accordingly, Orr’s fifth and sixth supplemental assignments of error are
overruled.
Prosecutorial Misconduct
{¶112} In his ninth supplemental assignment of error, Orr argues that the
prosecutor committed misconduct in his closing arguments.
{¶113} The test for prosecutorial misconduct in a closing argument is “‘whether
the remarks were improper and, if so, whether they prejudicially affected substantial
rights of the defendant.’” State v. Hessler, 90 Ohio St.3d 108, 125, 734 N.E.2d 1237(2000), quoting State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “A new
trial will be ordered where the outcome of the trial would clearly have been different but
for the alleged misconduct.” State v. Wilson, 8th Dist. Cuyahoga No. 91971,
2010-Ohio-1196, ¶ 57, citing State v. Brewer, 8th Dist. Cuyahoga No. 67782, 1995 Ohio
App. LEXIS 2604 (June 22, 1995).
{¶114} Orr quotes the prosecutor’s closing arguments at length, claiming they
were “far beyond the scope of the records and claim facts that were not substantiated by
evidence.” We strongly disagree. We have reviewed the prosecutor’s closing
arguments in their entirety and find no improper remarks. Indeed, our analysis on Orr’s
assignments of error dealing with sufficiency and manifest weight of the evidence contain
each fact that the prosecutor referred to in his closing arguments.
{¶115} Orr’s ninth supplemental assignment of error is overruled.
{¶116} Judgment affirmed.
It is ordered that appellee recover from appellant the 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 conviction having
been affirmed, any bail pending appeal 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.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
TIM McCORMACK, J., CONCUR