State v. Horsley

[Cite as State v. Horsley, 2018-Ohio-1591.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 16CA3787
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
SHANNON L. HORSLEY JR., :
:
Defendant-Appellant. : Released: 04/23/18
_____________________________________________________________
APPEARANCES:
Richard E. Wolfson, Richard E. Wolfson, Esq., LLC, Portsmouth, Ohio, for
Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel and Julie
Cooke Hutchinson, Scioto County Assistant Prosecuting Attorneys,
Portsmouth, Ohio, for Appellee.
_____________________________________________________________
Per Curiam.
{¶1} Shannon Horsley appeals from his conviction for one count of
rape after he was found guilty by a jury after a five-day trial. On appeal,
Appellant contends that 1) the trial court erred in overruling his motion for
discharge on grounds of speedy trial in violation of his statutory and
constitutional rights; 2) the trial court erred in overruling his motion for a
special prosecutor and dismissal with notice of defense of selective
Scioto App. No. 16CA3787 2
prosecution; and 3) his conviction was against the sufficiency and manifest
weight of the evidence.
{¶2} Because we find the trial court's decision denying Appellant's
motion for discharge was based upon competent, credible evidence, we find
no merit to Appellant's first assignment of error and it is overruled.
Likewise, because we find that the trial court's denial of Appellant's motion
for dismissal based upon selective prosecution and for a special prosecutor
was based upon competent, credible evidence, and because we find no abuse
of discretion related to the trial court's application of the rape shield law, we
find no merit to Appellant's second assignment of error and it is also
overruled. Finally, in light of our determination that Appellant's conviction
was supported by sufficient evidence and was not against the manifest
weight of the evidence, we find no merit to Appellant's third assignment of
error and it is overruled as well. Having found no merit in any of the
assignments of error raised by Appellant, the decision of the trial court is
affirmed.
FACTS
{¶3} Appellant was indicted on August 22, 2014 on five counts of
rape, all felonies of the first degree and in violation of R.C.
2907.02(A)(1)(b) and 2907.02(B). Count one alleged Appellant raped a
Scioto App. No. 16CA3787 3
child, age ten, between the time periods of August 1, 2012 and October 29,
2012. Count two alleged Appellant raped a child, age ten, between the time
periods of October 1, 2012 and October 29, 2012. Count three alleged
Appellant raped a child, age eleven, between the time periods of November
1, 2012 and May 30, 2013. Count four alleged Appellant raped a child, ages
eleven and twelve, between the time periods of October 1, 2013 and March
30, 2013. Count five alleged Appellant raped a child, age twelve, on June
19, 2014. The same child was the subject of each count, is the victim herein,
and is the daughter of Appellant's former girlfriend, who also shares another
child with Appellant. A later-filed amended bill of particulars alleged each
of the incidences of rape involved the use of force.
{¶4} The indictment was filed following a report made by the victim
and a subsequent investigation. A review of the record reveals that at the
time of the alleged crimes the victim lived in a house trailer in South
Webster, Ohio, with Appellant's mother, Karen Horsley, who had legal
custody of her, and that Appellant lived in another trailer right next door.
During a weekend away with her biological father, David Artressia, Jr., the
victim reported to a friend, who was with them on their trip, that Appellant
had been touching her. This was then reported to Appellant's father, who
immediately took her to Southern Ohio Medical Center to be evaluated.
Scioto App. No. 16CA3787 4
From there, the victim went to Adena Medical Center, where she was
examined by Jamie Meyers, a Sexual Assault Nurse Examiner (SANE). A
rape kit was performed on the victim while she was at Adena Medical
Center. The victim was then referred to the Child Protection Center, where a
forensic interview was conducted, as well as a physical evaluation by Dr.
Sathish Jetty.
{¶5} It appears Appellant was confronted by Artressia, Jr. the next
morning at the residence of David Artressia, Sr.1 Appellant denied the
accusations and claimed that the issue was really about custody, and that the
victim wanted an excuse to live with her father, rather than with Appellant's
mother, Karen Horsley, who had legal custody of her. However, a
subsequent investigation confirmed the presence of Appellant's semen on the
victim's bed sheets and her dress, which was in her bedroom.
{¶6} During the course of the investigation, the victim told
investigators that Appellant had been raping her daily for over a year in
various locations, including other trailers on the property where they lived,
in Appellant's truck, on the side of the road on the way home from
basketball practice one time, and on June 19, 2014, in her bedroom located
in Karen Horsley's trailer. The record reveals the victim also alleged she had
1
According to the record, Appellant and the Artressias worked together and commonly met at Artressia,
Sr.'s house prior to reporting to a jobsite.
Scioto App. No. 16CA3787 5
been raped by another individual, Appellant's nephew Jacob Tackett, in
September of 2013. This allegation was made by the victim during her
forensic interview at the Child Protection Center, and again to Detective Jodi
Conkel.
{¶7} Appellant was subsequently indicted, as detailed above, and
arrested on August 26, 2014. A long litigation process ensued, with
extensive motion practice by both parties, but primarily by Appellant.
Several of the motions at issue are discussed in more detail below.
However, we briefly note that as a result of a successful motion in limine
filed by the State, the trial court made a pre-trial determination that the rape
shield law applied to exclude any mention of or questioning at trial
regarding the victim's allegation that she had also been raped by another
individual.
{¶8} The jury trial of this matter was continued several times at the
request of Appellant, as will also be discussed in more detail below,
resulting in Appellant not being brought to trial until November 16, 2016.
The record further reveals Appellant was jailed from the time of his arrest
until he was brought to trial. Pertinent to this appeal, aside from the
continuances requested by Appellant, one hearing on a motion in limine was
continued by the trial court sua sponte, which resulted in a forty-nine day
Scioto App. No. 16CA3787 6
delay in hearing the motion. Appellant moved for discharge on speedy trial
grounds following the court’s sua sponte continuance; however, Appellant’s
motion was denied by the trial court.
{¶9} When the matter was finally brought to trial on November 16,
2016, the State presented several witnesses including David Artressia, Jr.
and Sr., Shawn Lodwick (the friend that the victim initially reported
Appellant's conduct to), SANE Jamie Myers, Drs. Sathish Jetty and Timothy
Mynes, Detective Jodi Conkel, forensic scientist Erica Jimenez, and finally
the victim. The victim testified, pertinent to this appeal, that she was in her
bed asleep wearing a cheetah print dress on June 19, 2014. She testified that
Appellant came into her room, took her clothes off of her and forcibly raped
her. She testified she resisted, screamed and cried, but that no one else heard
her. She testified that after Appellant was finished, she used a towel to wipe
the semen off of her leg.
{¶10} Detective Conkel testified that she took items from the victim's
bedroom pursuant to a warrant, including a bath towel, a pair of panties, the
bed sheet and a cheetah dress. The record reveals that Appellant's DNA was
not found on the towel, but that his semen was found on the bed sheet and
dress. The record further reveals that the victim’s DNA was not present on
the bedsheet or her dress, and that the towel was not tested for the presence
Scioto App. No. 16CA3787 7
of her DNA. The record further reveals that the DNA results from the tests
performed on the victim's panties were excluded from evidence. Additional
pertinent testimony from the State's witnesses will be discussed below under
Appellant's third assignment of error.
{¶11} Appellant also presented several witnesses in his defense,
including Amanda Gatti (Scioto County Children Services case worker), Dr.
Rebecca Schoettle (the victim's pediatrician during the relevant time period),
Sandra Smith (the victim's assistant school principal), Scott Holstein (the
victim's school principal), Ada Mills (the victim's grandmother), Corissa
Boggs (the victim's counselor at Shawnee Family Health Center), Karen
Horsley (Appellant's mother), and Appellant. The gist of Appellant's theory
at trial was that this was all a ploy by the victim to be able to live with her
father, where she could see her "friend" Shawn Lodwick. Through his
witnesses, Appellant sought to prove that the victim's testimony at trial was
not credible because she had never reported any sexual abuse or the alleged
rapes to any of her school teachers, counselors, childrens' services
caseworker or doctors, and that the family lived in such close quarters it
would have been known if something like this was occurring. He further
sought to provide an alternative explanation for the presence of his DNA on
the victim's bed sheet and dress, claiming that he had masturbated in the
Scioto App. No. 16CA3787 8
victim's bedroom when she was not there. Appellant argued the absence of
forensic evidence of the victim's DNA on her dress or bed sheet was
consistent with his theory.
{¶12} During their deliberations, it appears that the jury sent a
question prior to rendering its verdicts asking the trial court if it could decide
on four counts and be hung on one count. In response, the court instructed
the jury to try to reach a verdict on all counts. Ultimately, after a six-day
jury trial, the jury acquitted Appellant on counts one through four, but found
him guilty on count five. The trial court subsequently sentenced Appellant
to an indefinite prison term of twenty-five years to life. Appellant now
brings his timely appeal, setting forth three assignments of error for our
review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S
MOTION TO DISCHARGE ON GROUNDS OF SPEEDY TRIAL
IN VIOLATION OF HIS STATUTORY AND CONSTITUTIONAL
RIGHTS.
II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S
MOTION FOR SPECIAL PROSECUTOR AND DISMISSAL WITH
NOTICE OF DEFENSE OF SELECTIVE PROSECUTION.
III. APPELLANT’S CONVICTION WAS AGAINST THE
SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”
ASSIGNMENT OF ERROR I
Scioto App. No. 16CA3787 9
{¶13} In his first assignment of error, Appellant contends the trial
court erred in overruling his motion to discharge on speedy trial grounds, in
violation of his statutory and constitutional rights. Appellant raises three
issues under this assignment of error, including 1) whether the trial court’s
sua sponte continuance shifted charging speedy trial to the State; 2) whether
the trial court’s sua sponte continuance was reasonable and supported in
sufficient detail; and 3) whether the trial court committed reversible error by
not conducting a hearing on Appellant’s May 25, 2016 objections or his May
31, 2016 motion to vacate the judgment entry of May 27, 2016. The State
alleges Appellant has failed to set forth a prima face case to shift the burden
to the State to demonstrate compliance with the speedy trial provisions. The
State contends Appellant failed to specify he was being held solely on the
charges at issue in order to invoke the triple count rule, which the State
claims was fatal to his motion to discharge. The State alternatively claims
Appellant was brought to trial within speedy trial limits.
STANDARD OF REVIEW
{¶14} Under Ohio's speedy trial statutes, if the State fails to bring a
defendant to trial within the time required by R.C. 2945.71 and 2945.72, the
court must discharge him upon motion made at or prior to the start of trial.
R.C. 2945.73(B). The Supreme Court of Ohio has “imposed upon the
Scioto App. No. 16CA3787 10
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). Thus, we must strictly construe the speedy trial statutes
against the State. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706(1996). Appellate review of a trial court's decision to deny a motion to
dismiss based on statutory speedy trial grounds presents a mixed question of
law and fact. State v. Nichols, 4th Dist. Adams No. 12CA955, 2013–Ohio–
308, ¶ 14. We accept the trial court's findings of fact if they are supported
by competent, credible evidence, but we independently review the court's
application of the law to the facts. Id.{¶15} “When the defendant moves for discharge on speedy trial
grounds and demonstrates that the State did not bring him to trial within the
time limits set forth in the speedy trial statutes, the defendant has made a
prima facie case for discharge.” State v. Cottrell, 4th Dist. Ross Nos.
11CA3241 & 11CA3242, 2012–Ohio–4583, ¶ 10. The State then bears the
burden to prove “that actions or events chargeable to the accused under R.C.
2945.72 sufficiently extended the time it had to bring the defendant to trial.”
Id. A person against whom a felony charge is pending must be brought to
trial within 270 days after his arrest. R.C. 2945.71(C)(2). Each day the
Scioto App. No. 16CA3787 11
defendant spends in jail “on the pending charge” counts as three days. Id. at
(E). This is commonly referred to as the triple count rule.
LEGAL ANALYSIS
{¶16} Initially, we note that the State alleges on appeal that Appellant
failed to claim that he was being held solely on one charge or one indictment
only, and thus failed to present a prima facie case for discharge which
shifted the burden to the State to show compliance with speedy trial
requirements. A review of the record reveals Appellant’s June 13, 2016
motion for discharge on grounds of speedy trial alleged as follows, in
pertinent part:
“Defendant has been in the Scioto County Jail on the instant
felony charges since August, 2014. Several requests for
modification of bond have been denied, most recently on 24
May 2016. R.C. §2945.71(C)(2) requires Defendant brought to
trial within 270 days of arrest. R.C. §2945.71(E) requires each
day Defendant is held against bond be counted as three (3)
days, reducing to ninety (90) the days by which he must be
brought to trial.”
{¶17} In State v. Green, 4th Dist. Ross No. 01CA2641, 2002-Ohio-
3403, ¶ 12, this Court noted that “[t]he determination of whether an accused
is held solely on the pending charges is a legal conclusion dependent upon
the underlying facts.” Citing State v. Howard, 4th Dist. Scioto No.
93CA2136, 1994 WL 67688 (Mar. 4, 1994). We further explained in Green
at ¶ 12 that:
Scioto App. No. 16CA3787 12
“In reviewing speedy trial determinations we have never
required, nor has any other court of appeal or the Ohio Supreme
Court, the accused to recite verbatim that he or she was held
‘solely on the pending charges.’ Rather, it appears that courts
use a “notice” approach. See State v. Armstrong (April [22],
1996), Scioto App. No. 95CA2346 (stating that the appellant
created a prima facie case for discharge when he was
incarcerated and ‘has alleged {that} he was entitled to the
“three for one” provision of R.C. 2945.71(E)’) and State v.
Daniels (May 11, 1994), Lawrence App. No. 93CA22 (stating
that appellant presented a prima facie case for discharge by
contending that he was held for more than ninety days).”
We conclude, based upon the foregoing, that Appellant sufficiently alleged
application of the triple count rule in his motion for discharge.
{¶18} Further, a review of the record reveals that Appellant was
arrested for the charges herein on August 26, 2014 and was not brought to
trial until November 16, 2016. At the time Appellant filed his motion for
discharge on June 13, 2016, he had been in jail awaiting trial for
approximately twenty-three months, or 690 days. Thus, even without
applying the triple count rule, it is clear Appellant was not brought to trial
within 270 days. Based upon the language used in Appellant’s motion for
discharge, coupled with the number of days between the date of Appellant’s
arrest and the date the motion for discharge was filed, we conclude
Appellant has sufficiently alleged and demonstrated a prima facie case for
discharge. Therefore, the burden shifted to the State to demonstrate
compliance with speedy trial requirements.
Scioto App. No. 16CA3787 13
{¶19} Moving on, we point out that this case involved numerous
filings and motion practice by both parties, but primarily by Appellant, and
also included a number of continuances at the request of Appellant, as well
as various waivers of speedy trial time. After reviewing the record, there
appears to be a consensus between the parties, however, that as of February
10, 2015, it was determined Appellant had to be brought to trial by March 9,
2015.2 Thus, at that point, the State had 27 calendar days to bring Appellant
to trial to remain within speedy trial limits. Those days continued to be
reduced until February 23, 2015, when Appellant filed a “Time Waiver”
stating that he was, through counsel, waiving speedy trial requirements for
ninety days. Accordingly, as of February 23, 2015, fourteen speedy trial
days remained. After this date, Appellant went on to file several different
motions, including motions for continuances asking the court to continue the
jury trial on three separate occasions, motions to modify bond, motions for
reconsideration, objections and a motion in limine, and additional waivers of
speedy trial time.
{¶20} R.C. 2945.72(E) provides that the time within which an accused
must be brought to trial may be extended by “[a]ny period of delay
2
The record indicates the trial court directed the State to determine the date in which Appellant must be
tried and that, as a result, the State filed a notice to the court on February 10, 2015, informing the court
Appellant must be brought to trial by March 9, 2015. Throughout the remainder of the proceedings and
currently on appeal, both the State and Appellant rely on that determination.
Scioto App. No. 16CA3787 14
necessitated by reason of a plea in bar or abatement, motion, proceeding, or
action made or instituted by the accused[.]” “R.C. 2945.72(E) implicitly
recognizes that when a motion is filed by a defendant, there is a ‘period of
delay necessitated’—at the very least, for a reasonable time until the motion
is responded to and ruled upon.” State v. Sanchez, 110 Ohio St.3d 274,
2006–Ohio–4478, 853 N.E.2d 283, ¶ 26. Further, as observed by the
Supreme Court of Ohio in State v. King, 70 Ohio St.3d 158, 160, 637 N.E.2d
903 (1994), “[i]t is well-settled law that an accused may waive his
constitutional right to a speedy trial provided that such a waiver is
knowingly and voluntarily made.” Citing Barker v. Wingo, 407 U.S. 514,
529, 92 S.Ct. 2182 (1972).
{¶21} As set forth above, Appellant filed his first waiver of time on
February 23, 2015 for a specified period of ninety days. Thus, time was
tolled according to this waiver until approximately May 23, 2015. However,
prior to the expiration of that time period, on May 13, 2015, Appellant filed
a motion to continue the jury trial scheduled to begin May 18, 2015, citing in
support his need to consult with a DNA expert. The title of this filing was
“Motion to Continue for DNA Expert Consultation” and stated “Defendant
waives further time constraints in order to first meet with the expert witness
allowed to assist in preparation of his defense.” Thus, this filing constituted
Scioto App. No. 16CA3787 15
a second waiver of speedy trial, which did not contain a specified end date,
but rather “waive[d] further time constraints[.]” This waiver was duly noted
by the trial court in its May 26, 2015, judgment entry which continued the
scheduled jury trial “until further order of the court” and stated “[t]ime
provisions of O.R.C. 2945.71 are hereby waived.” Appellant filed no
objection or other pleading arguing that time had not been waived
indefinitely.
{¶22} Thereafter, on September 9, 2015, the trial court issued a notice
scheduling the matter for a two-day jury trial beginning on December 14,
2015. However, on October 16, 2015, Appellant filed a motion to suppress
and/or motion in limine, both of which constitute tolling events. Four days
later, on October 20, 2015, Appellant filed another motion to continue the
December 14, 2015, jury trial, claiming his DNA expert was not available
for trial on the scheduled dates. Appellant then filed “Objections” on
November 20, 2015, related to the State’s request that his expert appear in
person for a hearing on his qualifications. Those “objections” contained a
sentence stating Appellant “reserves objection on the grounds of a speedy
trail [sic] (and/or his release on modified bond), tolled only on Defendant’s
motions, not objections by the State or preferred but not unavailable mean
[sic] of electronic communication.” Although it appears Appellant may
Scioto App. No. 16CA3787 16
have intended to revoke his prior time waivers by filing this objection, five
days later Appellant filed another pleading entitled “Motion to Continue
With Waiver Of Speedy Trial.” This motion cited Appellant’s expert’s
unavailability until the second week of January, 2016, and stated as follows:
“Now comes Defendant, through counsel, to move the trial and
preceding 702/Daubert hearing date of December 14, 2015 be
continued with waiver of speedy trial constraints, pursuant to
Local and Criminal Rules, case law, statute [sic] and the
reasons stated.”
The memorandum in support of this motion further stated that:
“Because this is Defendant’s request, speedy trial
considerations are tolled and Defendant waives any objection to
continuing the trial on those grounds, withdrawing any previous
objection.”
Thus, Appellant waived speedy trial time for a third time, indefinitely, and
withdrew his previous objection.
{¶23} On February 2, 2016, the trial court issued a notice scheduling a
five-day jury trial to begin on March 21, 2016. However, just prior to the
scheduled trial date, on March 1, 2016, Appellant filed a motion in limine, to
preclude use by the State of DNA test results. The State opposed the motion
by filing a memorandum contra on March 9, 2016. The scheduled trial date
passed and the trial court filed a judgment entry on March 22, 2016,
indicating that a hearing on Appellant’s motion in limine was proper, which
Scioto App. No. 16CA3787 17
would be scheduled at the convenience of the court.3 The court thereafter
filed a notice of hearing on March 30, 2016, scheduling a hearing on
Appellant’s motion in limine on May 20, 2016.
{¶24} The parties seem to agree that prior to the scheduled May 20,
2016 hearing the court informally indicated the hearing needed to be
rescheduled due to the court’s unavailability. The record indicates that the
trial court filed a scheduling notice on May 16, 2016, re-scheduling the
hearing for July 8, 2016. Thereafter, on May 18, 2016, Appellant filed a
motion for bond reconsideration, citing the trial court’s sua sponte
continuance and Appellant’s continued incarceration. The trial court issued
a judgment entry on May 24, 2016, denying the motion for bond
reconsideration. On May 25, 2016, Appellant filed “Objections to State’s
Proposed Judgment Entry,” regarding the trial court’s sua sponte
rescheduling of the hearing on the motion in limine, arguing that he had not
waived speedy trial limitations, contrary to a sentence contained in the
proposed entry, and reserved the right to move for dismissal on grounds of
speedy trial. Thereafter, on May 27, 2016, the trial court filed its judgment
entry formally continuing the hearing on the motion in limine. The entry
3
Although there was no request for continuance of the trial filed by any party, or any formal order filed by
the trial court, it is clear from the record that the trial had to be continued as a result of Appellant’s pending
motion in limine that was yet to be heard or resolved on the date of the scheduled trial. As such, assuming
arguendo Appellant had not indefinitely waived speedy trial limits, we conclude this filing by Appellant
constituted a tolling event.
Scioto App. No. 16CA3787 18
cited the fact that the court itself was required to be in Columbus on the date
of the hearing for a professional meeting, as well as the fact that Appellant
had “waived speedy trial limitations in this case.” Appellant filed a motion
to vacate the judgment entry on May 31, 2016.
{¶25} The foregoing is the backdrop to the subsequent filing of
Appellant’s “Motion to Discharge On Grounds Of Speedy Trial” on June 13,
2016, followed by the trial court’ denial of the motion on July 14, 2016. In
the interim, it appears the hearing on the motion in limine was held on July
8, 2016. The trial court filed a notice on September 23, 2016, scheduling the
matter for a five-day jury trial to begin on November 16, 2016. The court
then issued its written decision and judgment entry on Appellant’s motion in
limine on October 14, 2016. Appellant filed yet another motion in limine on
October 20, 2016, followed by a motion for a mistrial on October 25, 2016.
The trial court issued a judgment entry denying the motion for mistrial on
November 4, 2016. Appellant then filed a motion for special prosecutor and
dismissal with notice of defense of selective prosecution, which was denied
by the trial court on November 10, 2016, along with the motion in limine.
On that same date, Appellant filed a motion for an evidentiary hearing and
another motion for reconsideration, followed by a motion to submit a
detailed jury questionnaire on November 15, 2016, the day before trial.
Scioto App. No. 16CA3787 19
{¶26} Appellant does not dispute that all time was tolled against him
from February 23, 2015 until May 20, 2016. However, Appellant contends
that the trial court’s sua sponte continuance of the hearing on the motion in
limine stopped the tolling and at that point speedy trial time began to run,
with fourteen calendar days remaining at that point. Appellant further
argues that he did not indefinitely waive speedy trial time.
{¶27} We first turn our attention to the various time waivers filed by
Appellant, which we believe are dispositive of Appellant’s arguments on
appeal, to a certain extent. Despite Appellant’s argument to the contrary, we
believe Appellant’s second and third waivers constituted indefinite waivers
of speedy trial constraints. As set forth above, it is well-settled law that an
accused may waive his right to a speedy trial. See State v. King, supra, at
160. As further observed by the Court in King:
“Consistent with this principle, this 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 (1987), 34 Ohio St.3d 7, 516 N.E.2d 218. Thus, we
have held that an accused's express written waiver of his
statutory rights to a speedy trial, made knowingly and
voluntarily, also constitutes a waiver of his speedy trial rights
guaranteed by the United States and Ohio Constitutions.
O'Brien, supra, paragraph one of the syllabus. Furthermore, this
court has held that, for purposes of trial preparation, a
defendant's statutory right to a speedy trial may be waived, with
or without the defendant's consent, by the defendant's counsel.
State v. McBreen (1978), 54 Ohio St.2d 315, 8 O.O.3d 302, 376
N.E.2d 593, syllabus.” Id.Scioto App. No. 16CA3787 20
{¶28} Further, with respect to the character of the time waivers filed
by Appellant, we note that the first waiver was limited in duration, for a
period of ninety days. The next two waivers, however, did not specify an
end date. As explained in State v. Bray, 9th Dist. Lorain No. 03CA008241,
2004-Ohio-1067, ¶ 8, “[a] waiver may be limited or unlimited in duration.”
The Bray court went on to explain as follows:
“ ‘[A] waiver that expressly waives the accused's right to a
speedy trial under the statute without mentioning a specific time
period is unlimited in duration.’ State v. Kovacek (May 30,
2001), 9th Dist. No. 00CA007713, citing O'Brien, 34 Ohio
St.3d 7, 516 N.E.2d 218 at paragraph two of the syllabus. See,
also, State v. Smith (Dec. 22, 1999), 9th Dist. No.
98CA007144, citing In re Fuller (Dec. 14, 1994), 9th Dist. No.
16824 (finding that ‘in the absence of a clearly articulated
specific period of time, a waiver is of unlimited duration’);
State v. Lee (Apr. 13, 1994), 9th Dist. No. 93CA005671
(rejecting defendant's argument that a waiver, not specifying a
limited time frame, was only a waiver for the period of time
from the date of the waiver to the originally scheduled date for
trial). Furthermore, when a waiver fails to include a specific
date as the starting point for the tolling of time, the waiver is
deemed to be effective from the date of arrest. State v. Harris
(Oct. 30, 1996), 9th Dist. No. 95CA006275, citing State v.
Baugh (Jan 31, 1996), 9th Dist. No. 95CA006124. Once an
accused has executed an express, written waiver of unlimited
duration, ‘the accused is not entitled to a discharge for delay in
bringing him to trial unless the accused files a formal written
objection and demand for trial, following which the state must
bring the accused to trial within a reasonable time.’ O'Brien, 34
Ohio St.3d 7, 516 N.E.2d 218 at paragraph two of the syllabus.”
Id.Scioto App. No. 16CA3787 21
These principles were reaffirmed in State v. Miller, 2017-Ohio-5728, –
N.E.3d –, ¶ 29-30 (5th Dist.2017), where the court noted that a speedy trial
waiver that does not mention a specific time period is unlimited in duration,
and found that the waiver at issue was unlimited, despite assertions to the
contrary by the appellant. See also State v. Maisch, 173 Ohio App.3d 724,
2007-Ohio-6230, 880 N.E.2d 153, ¶ 28 (rejecting an argument a time waiver
“to allow his counsel opportunity to prepare for trial” is qualifying language
limiting the duration of a waiver because there was no specific period of
duration of the waiver).
{¶29} Here, we find that while Appellant’s first waiver was of a
limited duration of ninety days, his second and third waivers were not.
Neither the second nor third waiver included a start or end date. Further,
both appear to have waived time indefinitely as a matter of trial strategy in
order to consult with an expert and obtain expert testimony. However, we
are mindful of the fact that a defendant can revoke a prior waiver of time.
As mentioned above, the Supreme Court of Ohio, in State v. O’Brien, supra,
held in paragraph two of the syllabus as follows:
“Following an express, written waiver of unlimited duration by
an accused of his right to a speedy trial, the accused is not
entitled to a discharge for delay in bringing him to trial unless
the accused files a formal written objection and demand for
trial, following which the state must bring the accused to trial
within a reasonable time.”
Scioto App. No. 16CA3787 22
The O’Brien Court reasoned that a trial court may reasonably rely upon a
written waiver of speedy trial in the exercise of its duty of scheduling trials,
and that a defendant is required to inform the court of an objection to a
further continuance and reassertion of the defendant’s right to a speedy trial.
Id. at 9-10.
{¶30} Although Appellant filed “Objections” on November 20, 2015
stating he was reserving objections on grounds of speedy trial, he did not
actually make an objection or demand to be brought to trial. Further, in his
subsequent “Motion To Continue [Jury Trial] With Waiver Of Speedy
Trial,” which was filed just five days later on November 25, 2015, Appellant
stated he “waive[d] any objection to continuing the trial on those grounds
[his expert’s unavailability], withdrawing any previous objection.” The next
time Appellant mentioned speedy trial was in his May 25, 2016 “Objection
To State’s Proposed Judgment Entry,” in which he raised a complaint about
the trial court’s sua sponte decision to continue the hearing on his motion in
limine. However, in that “Objection” Appellant merely “reserve[d] the right
to move for dismissal on grounds of speedy trial.” Thus, he once again
made his reassertion of his speedy trial right tentative and did not demand to
be brought to trial. Thus, we do not find that Appellant filed a formal,
Scioto App. No. 16CA3787 23
written objection and demand for trial, as contemplated by O’Brien, prior to
the filing of his motion to discharge on speedy grounds on June 13, 2016.
{¶31} Before we address Appellant’s actual motion for discharge,
however, we must address Appellant’s argument related to the trial court’s
sua sponte continuance of the hearing on the motion in limine. The record
indicates that the hearing on Appellant’s motion in limine was originally
scheduled to take place on May 20, 2016; however, the parties became
aware of the court’s need to reschedule the hearing and the State prepared an
entry, apparently at the court’s request, sua sponte continuing the hearing.
Appellant, through counsel, opposed the continuance and filed an objection.
The trial court filed a judgment entry on May 27, 2016, sua sponte
continuing the hearing pursuant to R.C. 2945.72(H), based upon the court’s
unavailability on May 20, 2016 due to the need to attend a professional
meeting in Columbus, noting Appellant had waived speedy trial limitations
in this case. The trial court also noted that the court’s docket was
overcrowded at the time, and that the matters involved were complex. The
entry further stated “that time shall continue to be tolled until the resolution
of the case.” The court also stated the hearing would be scheduled at the
convenience of the court, understanding that both parties would need to
Scioto App. No. 16CA3787 24
make arrangements for the travel of out of town witnesses. The hearing was
ultimately rescheduled and held on July 8, 2016, or 49 days later.
{¶32} As noted above, R.C. 2945.72(H) provides: “The time within
which an accused must be brought to trial, or, in the case of a felony, to
preliminary hearing and trial, may be extended only by the following: * * *
The 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[.]” As this Court has noted in State v. Carr, 4th Dist. Ross No.
12CA3358, 2013-Ohio-5312, ¶ 31:
“ ‘Ideally, “[w]hen sua sponte granting a continuance under
R.C. 2945.72(H), the trial court must enter the order of
continuance and the reasons therefor by journal entry prior to
the expiration of the time limit prescribed in R.C. 2945.71 for
bringing a defendant to trial.” ’ State v. Ramey, 132 Ohio St.3d
309, 2012–Ohio–2904, 971 N.E.2d 937, ¶ 32, quoting State v.
Mincy, 2 Ohio St.3d 6, 441 N.E.2d 571 (1982), syllabus.
However, the Supreme Court of Ohio has ‘recognized that an
appellate court may affirm a conviction challenged on speedy-
trial grounds even if the trial court did not expressly enumerate
any reasons justifying the delay when the reasonableness of the
continuance is otherwise affirmatively demonstrated by the
record.’ Ramey at ¶ 33. For the continuance to toll speedy trial
time, ‘[t]he record must reflect that the continuance was
“reasonable in both purpose and length.” ’ State v. Martin, 56
Ohio St.2d 289, 293, 384 N.E.2d 239 (1978), quoting State v.
Lee, 48 Ohio St.2d 208, 210, 357 N.E.2d 1095 (1976).”
{¶33} Here, the trial court expressly referenced R.C. 2945.72(H) in its
judgment entry and set forth its reasons for continuing the hearing. The
Scioto App. No. 16CA3787 25
court also explained that the hearing would be rescheduled at the
convenience of the parties, noting travel arrangements would need to be
made as well as the overcrowded state of the docket at the time. The court
also reasonably relied on the fact that there had been a waiver of speedy trial
time in the case. Although it took 49 days for the hearing to be held, we
held in Carr that a 52-day continuance, while significant for an individual
awaiting trial in jail, was not unreasonable “ ‘given the time constraints and
complexity of a trial court’s docket * * *’ ” Carr at ¶ 35; quoting State v.
Cottrell, 4th Dist. Ross Nos. 11CA3241 & 11CA3242, 2012-Ohio-4583, ¶
17 (involving a 58-day continuance of a jury trial). Thus, we find no error
occurred with respect to the trial court’s sua sponte continuance of the
motion in limine hearing.
{¶34} Further, because an appropriate entry was filed within speedy
trial limits, speedy trial time was tolled even absent an indefinite waiver of
time by Appellant. Even assuming arguendo that Appellant’s second and
third waivers were not indefinite and that Appellant’s objection to the trial
court’s continuance was sufficient to restart the speedy trial clock, by
Appellant’s own estimation, 14 calendar days remained as of May 20, 2016.
The sua sponte continuance, which was filed May 27, 2016, was filed within
Scioto App. No. 16CA3787 26
speedy trial limits and properly continued to toll time until the motion was
actually decided by the court on October 14, 2016.4
{¶35} We now turn our attention to Appellant’s June 13, 2016 motion
for discharge on grounds of speedy trial, which was filed in the middle of an
overarching tolling event related to the filing of Appellant’s motion in
limine. Having found that speedy trial time had been indefinitely waived by
Appellant and that the waiver had not been revoked at the time Appellant
filed his motion for discharge, and also having found that the trial court’s
sua sponte continuance filed on May 27, 2016 properly continued to toll
time until the motion in limine was decided on October 14, 2016, Appellant
did not demonstrate he was entitled to discharge when the motion was filed
on June 13, 2016.
{¶36} We further note that once the decision on the motion in limine
was filed on October 14, 2016, Appellant thereafter filed a series of
additional motions, including another motion in limine, a motion for
mistrial, a motion for a special prosecutor and dismissal with notice of
selective prosecution, a motion for an evidentiary hearing, a motion for
reconsideration and a motion to submit a detailed jury questionnaire, the last
of which was not filed until the day before trial. Thus, assuming arguendo
4
It was also discussed in Carr that a 120-day period was reasonable in the context of deciding a motion.
Carr at ¶ 35.
Scioto App. No. 16CA3787 27
time had not been indefinitely waived, Appellant’s extensive motion practice
between October 15, 2016 and November 15, 2016 continued to toll time
against Appellant up to the day of trial.
{¶37} Finally, Appellant argues the trial court’s failure to hold
hearings on his May 25, 2016 objections and his May 31, 2016 motion to
vacate the judgment entry of May 27, 2016 constitutes reversible error in
light of the trial court’s own local rule requiring a hearing. However, in
light of our reasoning set forth above indicating Appellant had indefinitely
waived speedy trial time, and even assuming arguendo he had not, that the
trial court’s sua sponte continuance met the requirements to toll time, and
that time was tolled thereafter by Appellant’s motion practice leading right
up until the day of trial, we find any error by the trial court in failing to
follow its own local rules was harmless error. Although it may be
considered a technical legal error, it does not constitute reversible error.
{¶38} In light of the foregoing, we find no merit to the arguments
raised under Appellant’s first assignment of error. Accordingly, it is
overruled.
ASSIGNMENT OF ERROR II
{¶39} In his second assignment of error, Appellant contends the trial
court erred in overruling his motion for a special prosecutor and dismissal
Scioto App. No. 16CA3787 28
with notice of defense of selective prosecution. Appellant raises four issues
under this assignment of error, including: 1) whether the trial court
committed reversible error by not allowing the jury to know the alleged
victim said she was raped by someone other than himself in September,
2013, at the same time she made her allegations against Appellant; 2)
whether the trial court correctly applied the rape shield law when it
supported the State’s motion to exclude the alleged victim’s simultaneous
claim of a rape by someone other than Appellant; 3) whether the trial court
committed reversible error by not having a hearing on the truth or falsity of
the alleged victim’s allegation she was raped by someone other than
Appellant in September, 2013; and 4) whether the State engaged in a bad
faith selective prosecution. The State responds by arguing that Appellant
failed to demonstrate a prima facie case of selective prosecution and was not
entitled to an evidentiary hearing on the matter.
STANDARD OF REVIEW
{¶40} We begin by setting forth the standard of review when
considering whether a trial court erred in denying a motion to dismiss based
upon a claim of selective prosecution. In State v. Powell, 4th Dist. Scioto
No. 05CA3024, 2006-Ohio-5031, ¶ 20, this Court reasoned as follows:
“We conduct a de novo review of a trial court’s decision
regarding a motion to dismiss based upon a selective
Scioto App. No. 16CA3787 29
prosecution defense. See State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166; State v. Spencer (Nov. 4,
1998), Scioto App. No. 97CA2536 (both appearing to apply a
de novo standard of review without expressly stating so). Thus,
we independently determine whether the evidence establishes a
prima facie claim of selective prosecution.” (discretionary
appeal not accepted for review as noted by State v. Powell, 113
Ohio St.3d 1413, 862 N.E.2d 843); but see State v. Michel, 181
Ohio App.3d 124, 2009-Ohio-450, 908 N.E.2d 456 (rejecting
the de novo standard of review declared by the Fourth District
in State v. Powell, supra, and instead reasoning that review of a
trial court’s decision regarding a motion to dismiss based upon
a claim of selective prosecution presents a mixed question of
law and fact, much like the review of a motion to suppress) and
Cleveland v. Oko, 2016-Ohio-7774, 73 N.E.3d 1122, ¶ 15 (8th
Dist.) (stating review of a trial court’s determination regarding a
motion to dismiss on selective prosecution grounds presents a
mixed question of law and fact, relying on State v. Michel,
supra).Despite the foregoing, we adhere to precedent and follow the reasoning of
State v. Powell, supra, which we believe was implicitly approved by virtue
of the fact that a discretionary appeal to the Supreme Court of Ohio was
subsequently denied.
LEGAL ANALYSIS
{¶41} In State v. Powell, we noted in ¶ 21 that the Supreme Court of
Ohio explained the framework for analyzing a selective prosecution defense
in State v. Lamar, supra, at ¶ 43-44 as follows:
“ ‘The decision whether to prosecute a criminal offense is
generally left to the discretion of the prosecutor. United States
v. Armstrong [1996], 517 U.S. [456,] 464, 116 S.Ct. 1480, 134
L.Ed .2d 687. That discretion is, however, subject to
Scioto App. No. 16CA3787 30
constitutional equal-protection principles, which prohibit
prosecutors from selectively prosecuting individuals based on
“an unjustifiable standard such as race, religion, or other
arbitrary classification.” Id., quoting Oyler v. Boles (1962), 368
U.S. 448, 456, 82 S .Ct. 501, 7 L.Ed.2d 446. Although a
selective-prosecution claim is not a defense on the merits to the
criminal charge itself, a defendant may raise it as an
“independent assertion that the prosecutor has brought the
charge for reasons forbidden by the Constitution.” State v.
Getsy (1998), 84 Ohio St.3d 180, 203, 702 N.E.2d 866.
To support a claim of selective prosecution, “a defendant bears
the heavy burden of establishing, at least prima facie, (1) that,
while others similarly situated have not generally been
proceeded against because of conduct of the type forming the
basis of the charge against him, he has been singled out for
prosecution, and (2) that the government's discriminatory
selection of him for prosecution has been invidious or in bad
faith, i.e., based upon such impermissible considerations as
race, religion, or the desire to prevent his exercise of
constitutional rights.” State v. Flynt (1980), 63 Ohio St.2d 132,
134, 407 N.E.2d 15, quoting United States v. Berrios (C.A.2,
1974), 501 F.2d 1207, 1211.’ ”
Thus, a defendant's burden of establishing discriminatory prosecution is a
heavy one, and the mere failure to prosecute other violators of a statute does
not establish the defense of selective prosecution. See State v. Hutchinson,
4th Dist. Athens No. 03CA31, 2004-Ohio-4125; citing State v. Freeman, 20
Ohio St.3d 55, 58, 485 N.E.2d 1043 (1985) (the mere failure to prosecute
other violators of a statute does not establish the defense of selective
prosecution).
Scioto App. No. 16CA3787 31
{¶42} As this Court has previously noted, selectivity in enforcement
does not constitute a constitutional violation unless the discrimination is
“ ‘intentional or purposeful.’ ” Powell at ¶ 22; citing Flynt at 134; quoting
Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397 (1944). Moreover, the mere
existence of a potential discriminatory purpose does not, by itself, show that
such purpose motivated a particular defendant's prosecution. Freeman at 58.
“ ‘Absent some demonstration of an invidious motive, [a] court will not
presume intentional or purposeful discrimination from a mere showing of
different treatment.” LaMar at ¶ 46.
{¶43} Furthermore, a “defendant is not entitled to an evidentiary
hearing on a selective prosecution defense unless he sets forth a prima facie
claim.” Powell at ¶ 23; citing Pepper Pike v. Dantzig, 8th Dist. Cuyahoga
No. 83425, 2004-Ohio-2562, ¶ 14. As further observed in Powell, it was
stated in United States v. Hazel (C.A.6, 1983), 696 F.2d 473, 475 as follows:
“ ‘[I]t is only when [a] prima facie showing has been made and
the defendant has proven a “colorable entitlement” to a
dismissal for selective prosecution, that an evidentiary hearing
should be held. United States v. Brown, 591 F.2d 307, 310-11
(5th Cir.1979). * * * “[a] hearing is necessary only when the
motion alleges sufficient facts to take the question past the
frivolous state and raises a reasonable doubt as to the
prosecutor's purpose.” United States v. Larson, 612 F.2d 1301,
1304-05 (8th Cir.1980).’ ”
Scioto App. No. 16CA3787 32
{¶44} A review of the record reveals that just prior to trial, a series of
motions was filed by both the State and Appellant. Pertinent to our
discussion herein, the following motions were filed:
1.) November 2, 2016 - State's Motion in Limine (requesting that the trial
court instruct the defendant "not to ask questions of any witnesses, including
but not limited to the lab analysts, medical personnel or the victim which
violate the rape shield law[,]" and specifically arguing that Defendant be
prohibited from introducing medical records of the victim that "indicate that
another individual may, at a different time, have raped the victim.").
2.) November 7, 2016 - Defendant/Appellant's Motion for Special
Prosecutor and Dismissal With Notice of Defense of Selective Prosecution
(arguing that pediatric, mental health, school and Children's Services'
records of victim were admissible to show that the victim never reported any
sexual abuse or activity during the relevant times and that the mandatory
reporters never saw signs of abuse and that "[r]ape shield does not apply to a
negative[,]" and also questioning why there had been no investigation
regarding the victim's accusation, made during the Children's Protective
Center interview and again to Detective Jodi Conkel, that she had also been
raped by Defendant's seventeen-year-old nephew, Jacob Tackett.).
Scioto App. No. 16CA3787 33
Appellant further argued in this motion that he was being selectively
prosecuted in relation to a case note from a burglary conviction from 1996
which indicated he had engaged in lewd behavior for which he was never
charged or convicted. Appellant argued that the attempt to use such
evidence against him in the current case, along with the failure to investigate
similar allegations, was evidence of selective prosecution.
3.) November 10, 2016 - Defendant's Motion for Evidentiary Hearing
(arguing he was entitled to a hearing and an opportunity to call witnesses
and authenticate records related to the victim's allegation of rape by another
individual, rather than "the Court [basing] its ruling on an assumption of an
allegation thereby not sufficiently proving its prima facie evidence.")
4.) November 10, 2016 - Defendant's Motion for Reconsideration (of the
court's decision denying his motion for dismissal based upon defense of
selective prosecution and again arguing he was entitled to an evidentiary
hearing to prove that the victim alleged another raped her, rather than having
the court "assume allegations of rape by another individual[.]")
Scioto App. No. 16CA3787 34
5.) November 16, 2016 - State's Supplement Notice of Other Acts Evidence
Exhibiting Modus Operandi (giving notice of the State's intention to
introduce other acts evidence including "other acts of sexual assault which
are the underlying offenses of his indictment and guilty plea in 96-CR-116
in which the Defendant entered a plea of guilty to breaking into a woman's
residence and standing over her and masturbating while she slept[,]" as well
as a second instance of sexual assault "of a child who was 11 years old at the
time of the incidents[,]" and which occurred in the months before
Defendant's arrest on this offense).
{¶45} The record further indicates that a combined hearing was held
on November 8, 2016, where extensive argument and discussion took place
regarding 1.) the victim's allegation of rape by another individual; 2)
Appellant's desire to use that evidence to demonstrate selective prosecution
and the need for a special prosecutor; and 3) the State's insistence that any
evidence regarding another rape allegation and medical records should be
excluded by the rape shield law. The hearing transcript also indicates the
State did not dispute that the victim reported, both during a forensic
interview and also to Detective Jodi Conkel, that she had been raped by
another individual.
Scioto App. No. 16CA3787 35
{¶46} Now, on appeal, Appellant contends that the State engaged in
selective prosecution because it pursued charges against only him, despite an
allegation by the victim that she was raped by another individual in
September of 2013. Appellant also argues, under this assignment of error,
that the trial court erred in applying the rape shield law to the extent that it
excluded the victim’s claim of rape by someone other than him, and failed to
hold a hearing of the truth or falsity of the victim’s allegation that she was
raped by someone else. Appellant appears to attempt to bootstrap a rape
shield argument to a selective prosecution argument, in essence arguing that
the other rape allegation was false and should not have been excluded by the
rape shield law, while at the same time arguing that the other rape allegation
was true, and that because the State did not pursue charges against that other
individual, that he was the subject of selective prosecution. We find a
certain inequity in permitting Appellant to argue the other rape allegation
was true for purposes of his selective prosecution argument, while arguing
that the other rape allegation was false for purposes of his rape shield
argument. Appellant cannot argue both theories.
{¶47} After reviewing what can be described, at best, as a very
confusing transcript of the combined hearing held on Appellant’s motion
alleging selective prosecution, it appears the State stipulated that the victim
Scioto App. No. 16CA3787 36
did, in fact, allege another individual also raped her in September of 2013. It
also appears from the trial court's entry denying Appellant's motion for
dismissal based upon grounds of selective prosecution that that trial court
assumed, for purposes of the motion, that the victim did, in fact, allege she
was raped by another individual. Further, it was clear from the hearing
transcript that the State did not pursue an investigation of that allegation.
Based upon those assumptions, the trial court denied Appellant’s motion to
dismiss.
{¶48} We cannot conclude, based upon the foregoing and in light of
the applicable test, that the trial court erred in denying Appellant's motion, as
it seems the focus of Appellant's argument below was simply that another
individual should have been prosecuted as well, and that because only
Appellant was being prosecuted, he was the subject of selective prosecution.
As set forth above, "a defendant's burden of establishing discriminatory
prosecution is a heavy one, and the mere failure to prosecute other violators
of a statute does not establish the defense of selective prosecution." See State
v. Hutchinson, supra; citing State v. Freeman, supra, at 58. Appellant asks
this Court to find some invidious motive in relation to the State's desire to
introduce other acts evidence against him at trial, related to charges from
twenty years prior that referenced another, unrelated sexual assault.
Scioto App. No. 16CA3787 37
However, we cannot conclude that the existence of such evidence or the
State's desire to introduce it demonstrates bad faith, or an invidious motive
to prosecute Appellant based upon such impermissible considerations as
race, religion, or the desire to prevent his exercise of constitutional rights, as
contemplated by the test to determine selective prosecution. Having failed
to demonstrate a prima facie case of selective prosecution, Appellant was
not entitled to a further hearing on his motion and we find no error in the
trial court's denial of Appellant’s motion.
{¶49} We now turn our attention to Appellant's underlying arguments
that the trial court committed reversible error by not allowing the jury to
know the alleged victim said she was raped by someone other than himself
in September of 2013, that the trial court incorrectly applied the rape shield
law to exclude the victim’s claim of a rape by someone other than Appellant,
and that the trial court committed reversible error by not having a hearing on
the truth or falsity of the victim’s allegation she was raped by someone other
than Appellant in September of 2013. We initially note that Appellant
attempts to tie the rape shield determinations made by the trial court to the
denial of his motion for dismissal on grounds of selective prosecution.
Appellant suggests that the trial court was required to hold a hearing prior to
trial to determine the truth or falsity of Appellant's other rape allegation in
Scioto App. No. 16CA3787 38
order to determine whether Appellant had demonstrated a prima facie case
of selective prosecution. We disagree.
{¶50} As set forth above, the trial court assumed, for purposes of
Appellant's motion to dismiss, that the victim made an allegation of rape
against someone else. We find, insofar as it serves as support for a selective
prosecution claim, that establishing simply whether another allegation was
made but not investigated or prosecuted, not whether the allegation was
ultimately true or not, is the relevant determination that was required by the
trial court in consideration of Appellant's selective prosecution argument.
As set forth above, we have found no error with respect to the trial court's
disposition of that matter in the manner that it did.
{¶51} Now, it seems Appellant argues on appeal that the evidentiary
hearing it requested below, which it claimed was required to determine if, in
fact, an additional rape allegation was made for purposes of his selective
prosecution argument, should have actually been a hearing under the rape
shield procedures to determine the truth or falsity of the victim's other rape
allegation and thus the applicability of the rape shield protections. Again,
this is the sort of bootstrapping we noted above. If this was Appellant's
request below, it was not made clearly and there is no indication that the trial
court or the State understood this is actually what Appellant was requesting.
Scioto App. No. 16CA3787 39
{¶52} In fact, at this juncture we feel compelled to note that Appellant
has attempted to intertwine these two issues in such a complex fashion that
this Court finds the argument to be extremely convoluted. Raising three
different rape shield arguments under an assignment of error claiming
overarching error in the denial of a motion for selective prosecution tempts
us not to address this argument, which should have been separately assigned
and argued, and which we have the discretion to disregard. App.R.
12(A)(1)(b). Nevertheless, in the interests of justice, we will address it.
Thus, we begin with a review of Ohio's rape shield law.
{¶53} Appellant was found guilty by a jury of one count of rape in
violation of R.C. 2907.02. Subsection D of that statute contains Ohio's rape
shield law, which states:
"Evidence of specific instances of the victim's sexual activity,
opinion evidence of the victim's sexual activity, and reputation
evidence of the victim's sexual activity shall not be admitted
under this section unless it involves evidence of the origin of
semen, pregnancy, or disease, or the victim's past sexual
activity with the offender, and only to the extent that the court
finds that the evidence is material to a fact at issue in the case
and that its inflammatory or prejudicial nature does not
outweigh its probative value. * * *"
R.C. 2907.02(E) further provides:
"Prior to taking testimony or receiving evidence of any sexual
activity of the victim or the defendant in a proceeding under
this section, the court shall resolve the admissibility of the
proposed evidence in a hearing in chambers, which shall be
Scioto App. No. 16CA3787 40
held at or before preliminary hearing and not less than three
days before trial, or for good cause shown during the trial."
We review the trial court's rape shield rulings under R.C. 2907.02(D) for an
abuse of discretion. State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-
Ohio-3170, 2013 WL 3816605, ¶ 44. “A trial court abuses its discretion
when its decision is unreasonable, arbitrary, or unconscionable.” State v.
Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 19.
{¶54} Appellant now argues that the trial court was required to hold a
hearing to determine the truth or falsity of the other rape allegation made by
the victim.
“False [rape] accusations, where no sexual activity is involved,
do not fall within the rape shield statute. Therefore, a defendant
is permitted under Evid.R. 608(B), in the court's discretion, to
cross-examine the victim regarding such accusations if ‘clearly
probative of truthfulness or untruthfulness.’ However, the
defendant will be bound by the answers given by the victim.”
State v. Boggs, 63 Ohio St.3d 418, 421, 588 N.E.2d 813 (1992).
Further,
“Where an alleged rape victim admits on cross examination that
she has made a prior false rape accusation, the trial judge shall
conduct an in camera hearing to ascertain whether sexual
activity was involved and, as a result, cross-examination on the
accusation would be prohibited by R.C. 2907 .02(D), or
whether the accusation was totally unfounded and therefore
could be inquired into pursuant to Evid.R. 608(B).” Id. at
paragraph two of the syllabus.
Scioto App. No. 16CA3787 41
"The requirements of an in camera hearing, as provided by R.C. 2907.02(E),
may be waived if not asserted to the trial court prior to trial, or during trial
with good cause being shown." State v. Acre, 6 Ohio St.3d 140, 451 N.E.2d
802 (1983).
{¶55} Here, the State sought to avoid the issue coming up at trial by
filing a pre-trial motion in limine seeking to prohibit Appellant from asking
any questions related to another allegation of rape that had been made by the
victim, as against Appellant's seventeen-year-old nephew, Jacob Tackett.
The trial court held a hearing on the motion in limine involving the
applicability of the rape shield law, which was combined with a hearing on
Appellant's motion for special prosecutor and motion for dismissal based
upon grounds of selective prosecution, primarily based upon Appellant's
counsel's assertions that all of the issues were inextricably intertwined. At
the hearing, the State stipulated that the victim alleged she had been raped
by Jacob Tackett in September of 2013, and that this accusation was made
during the forensic interview conducted just prior to the physical exam that
was conducted in relation to the reported rape by Appellant, and was made
again to Detective Jodi Conkel during the course of the criminal
investigation of Appellant.
Scioto App. No. 16CA3787 42
{¶56} Thereafter, Appellant filed a Notice of Submission of "items in
the State's discovery that support a prima facie case of selective
prosecution[,]" which included a copy of the victim's "allegation against a
similarly situated individual" that was "made in her forensic interview with
the Childrens' Protective Center of Ross County and is memorialized in the
search warrant affidavit sworn by Detective Jodi Conkle for the search of the
trailer where said acts allegedly occurred." Thus, the trial court held a pre-
trial hearing on the motion in limine filed by the State on the issue of the
applicability of the rape shield law and had before it, before it issued its
decision, a sworn affidavit by a detective memorializing the victim's report
to her as follows: "[Victim] stated that last September Jacob Tackett who is
the nephew of Shannon also had sex with her but he did not hold her down,
he just got on top of her and stuck his penis inside of her." The trial court
subsequently issued a decision stating that the "Rape Shield Law shall apply
in this case and counsel are hereby ordered to comply with said law."
{¶57} Under Boggs, a defendant may inquire into the prior accusation
at trial only when the prior accusation was “totally unfounded.” Boggs at
paragraph two of the syllabus. “[T]he defendant has the burden to
‘demonstrate that the accusations were totally false and unfounded.’ ” State
v. Netherland, 132 Ohio App.3d 252, 262, 724 N.E.2d 1182 (1999); quoting
Scioto App. No. 16CA3787 43
Boggs at 423. “[T]he trial court must be satisfied that the prior allegations of
sexual misconduct were actually false or fabricated.” Netherland at 262. We
conclude that the trial court's hearing on all of these combined issues, which
was held pre-trial where counsel were permitted an opportunity to argue
their positions, coupled with the court's review of a sworn affidavit of Jodi
Conkel sufficiently complied with the rape shield procedures and afforded
the court the information necessary to make a determination as to truth or
falsity of the allegation at issue and the applicability of the rape shield law.
Based upon the foregoing, we cannot conclude that the trial court abused its
discretion in determining that the rape shield law applied. Accordingly, we
find no merit to this argument raised under Appellant's second assignment of
error.
{¶58} Finally, we similarly find no merit to Appellant's argument that
the trial court erred in denying his motion for a special prosecutor. A
common pleas court has inherent authority to appoint counsel to assist the
grand jury in criminal matters where neither the prosecuting attorney nor his
duly appointed assistant can perform these duties. State ex rel. Williams v.
Zaleski, 12 Ohio St.3d 109, 111, 465 N.E.2d 861 (1984); citing State ex rel.
Thomas v. Henderson, 123 Ohio St. 474, 478, 175 N.E. 865 (1931); see also
State v. Miller, 4th Dist. Meigs No. 92CA496, 1993 WL 415306, *5 (Oct.
Scioto App. No. 16CA3787 44
14, 1993) (“Regardless of the absence of any statutory authority, courts
possess inherent power to appoint special prosecutors where regular
prosecutors assert conflicts”). “ ‘A court's inherent authority is a power that
is neither created nor assailable by acts of the legislature.’ ” Hayslip v.
Hanshaw, 2016-Ohio- 3339, 54 N.E.3d 1272, ¶ 19 (4th Dist.); citing Welty
v. Casper, 10th Dist. Franklin Nos. 13AP–618 and 13AP–714, 2014-Ohio-
2903, ¶ 11; citing Hale v. State, 55 Ohio St. 210, 215, 45 N.E. 199 (1896).
{¶59} As set forth above, in State v. Powell, we noted in ¶ 21 that
“ ‘[t]he decision whether to prosecute a criminal offense is generally left to
the discretion of the prosecutor.’ ” Quoting State v. Lamar, supra, at ¶ 43-
44; citing United States v. Armstrong, supra, at 464. In Ohio, "prosecutorial
discretion is not without bounds." State ex rel. Daugherty v. Heck, 9th Dist.
Medina No. 1610, 1987 WL 19460, *1. However, in Daugherty the court
held that "the mere allegation by a petitioner that a crime was committed and
that the prosecutor abused her discretion in not presenting the case to the
grand jury for an indictment is insufficient to require the court to invoke its
inherent power." Id.{¶60} In light of the foregoing case law and coupled with the fact that
we have rejected Appellant's argument that he was entitled to dismissal on
grounds of selective prosecution, we cannot conclude that the trial court
Scioto App. No. 16CA3787 45
erred in refusing to exercise its inherent authority to appoint a special
prosecutor upon Appellant's request. Therefore, we find no merit in
Appellant's argument that the trial court erred in denying his motion for a
special prosecutor. Further, having found no merit in any of the arguments
raised under this assignment of error, it is therefore overruled.
ASSIGNMENT OF ERROR III
{¶61} In his third assignment of error, Appellant contends his
conviction was against the sufficiency and manifest weight of the evidence.
Appellant raises multiple issues under this assignment of error as follows: 1)
whether the evidence sufficiently supported his conviction for rape based on:
the alleged victim's testimony; his DNA on items from the bedroom; the
absence of DNA from the alleged victim where she said it would be; no
physical evidence of penetration; and medical exams that showed no acute
injury specific to the date of the alleged offense; 2) whether not knowing the
alleged victim said she was raped in September of 2013 by someone other
than Appellant affected the jury's consideration of her credibility; 3) whether
not knowing the alleged victim said she was raped in September of 2013 by
someone other than Appellant affected the jury's consideration of the
evidence; 4) whether Appellant presented a reasonable theory of innocence;
5) whether in reviewing the record for sufficiency, after viewing the
Scioto App. No. 16CA3787 46
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; 6) whether the instant case is one of exceptional
circumstances; and 7) whether on review of the entire record, weighing all
evidence and all reasonable inferences and resolving conflicts in the
evidence, the jury clearly lost its way and created such manifest miscarriage
of justice that the conviction must be reversed. The State responds that the
guilt of Appellant was a jury question, and that the State's witnesses and
exhibits satisfied the sufficiency of the evidence as well as the manifest
weight of the evidence.
STANDARD OF REVIEW
{¶62} “When a court reviews a record for sufficiency, ‘[t]he 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.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146; quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus (1991); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
“The court must defer to the trier of fact on questions of credibility and the
weight assigned to the evidence.” State v. Dillard, 4th Dist. Meigs No.
Scioto App. No. 16CA3787 47
13CA9, 2014-Ohio-4974, ¶ 27; citing State v. Kirkland, 140 Ohio St.3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 132.
{¶63} In determining whether a criminal conviction is against the
manifest weight of the evidence, an appellate court 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 trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.
{¶64} “Although a court of appeals may determine that a judgment is
sustained by sufficient evidence, that court may nevertheless conclude that
the judgment is against the weight of the evidence.” Thompkins at 387. But
the weight and credibility of evidence are to be determined by the trier of
fact. Kirkland at ¶ 132. The trier of fact is free to believe all, part, or none of
the testimony of any witness, and we defer to the trier of fact on evidentiary
weight and credibility issues because it is in the best position to gauge the
witnesses' demeanor, gestures, and voice inflections, and to use these
observations to weigh their credibility. Dillard at ¶ 28; citing State v. West,
4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23.
Scioto App. No. 16CA3787 48
LEGAL ANALYSIS
{¶65} As set forth above, the jury acquitted Appellant of four counts
of rape but found him guilty of count five, which alleged Appellant had
forcibly raped the victim in her bedroom on the night of June 19, 2014. R.C.
2907.02 defines the crime of rape and provides as follows:
"(A)(1) No person shall engage in sexual conduct with another who is not
the spouse of the offender or who is the spouse of the offender but is living
separate and apart from the offender, when any of the following applies:
***
(b) The other person is less than thirteen years of age, whether or not the
offender knows the age of the other person."
Appellant argues that the State failed to prove, beyond a reasonable doubt,
all of the elements of the offense.
{¶66} Appellant contends on appeal that the only evidence against
him consisted of: 1) the victim's testimony (which he argues was
compromised because of the court's exclusion of her allegation of a separate
rape in September of 2013); 2) the testimonies of a nurse and physician who
described examinations consistent with sexual conduct, but not specific as to
the date alleged in the indictment (and described as “healed” less than 72
hours after an alleged violent rape); and 3) Appellant's DNA from items
taken from the location, but which bore no DNA from the alleged victim.
Appellant argues the rape kit bore no evidence of rape and vaginal swabs
Scioto App. No. 16CA3787 49
showed no Y-Chromosome, which he contends is proof that "there was no
sign of male penetration, and no DNA foreign to the alleged victim." He
points out that penetration is an element that must be proven beyond a
reasonable doubt, and argues that "[i]t was unreasonable to believe a rape
was committed solely on the girl's allegation, the medical observations
without reference to time, and semen on items taken from her room.”
{¶67} Appellant further contends that the jury was kept from hearing
the truth, i.e. that the victim had alleged she was raped by another individual
also, that without this information the jury's ability to weigh credibility and
evidence was affected, and that the jury drew unreasonable inferences from
circumstantial evidence. Appellant also argues that he presented a
reasonable theory of innocence, i.e. that the presence of his semen on the
victim's bed sheet and dress and the absence of the victim's DNA on the
dress was explained by his account, which explained he had masturbated in
the victim's room when she was not there. Finally, he argues the fact that
the jury was originally hung on this charge demonstrates reasonable doubt.
{¶68} The State contends the evidence, even from Appellant's point of
view and described as "Defendant's semen on a sheet and dress taken from
the bedroom, medical exams 'consistent with' sexual conduct; and the girl's
testimony[,]" is "tantamount to a public confession of his guilt." The State
Scioto App. No. 16CA3787 50
further argues that the victim could not have directed Detective Conkel "to
her semen-laden dress and bedsheet in her bedroom had she not been raped
by him that night." Finally, the State argues that the guilt of Appellant was a
question for the jury, and that the witnesses and exhibits introduced by the
State satisfied both the sufficiency and manifest weight of the evidence
standards.
{¶69} A review of the record reveals that the State introduced the
testimony of the victim at trial, who recounted that Appellant forcibly raped
her in her bedroom on the night of June 19, 2014. She testified that she was
wearing a cheetah print dress, which Appellant removed from her before
raping her, and that when Appellant was finished she used a towel to wipe
Appellant's semen off her leg. Detective Jodi Conkel testified that she
searched the residence pursuant to a search warrant and took items for
testing including the victim's bed sheet, a cheetah print dress found in her
room, and a towel. She testified that she wasn't sure if she took the right
towel or not, but that she took a towel she found in the bedroom. She further
testified that Appellant approached her before she left and told her that his
semen would be found on the bed sheets because he had laid in the bed and
masturbated. Sexual Assault Nurse Examiner Jamie Myers testified on
behalf of the State. She testified regarding the sexual assault kit, or rape kit,
Scioto App. No. 16CA3787 51
she collected on the victim on June 23, 2014. She testified that the victim
reported to her that Appellant had raped her by putting his penis into her
vagina, but that there was no injury or bleeding. She testified the victim
further reported to her that since the rape she had changed her clothes and
had taken a bath or shower. She further testified that upon physical exam of
the victim she observed a "dip" or "notch" in the victim's hymen indicative
of a "healed cut area" consistent with sexual assault. She testified that this
constituted an abnormal finding and that less than five percent of the
children she examined resulted in abnormal findings. Based upon her
findings, Myers testified she referred the victim to the Child Protection
Center for follow-up. She further testified upon cross-examination that the
results of the testing performed on the rape kit collected from the victim
failed to identify the presence of semen or DNA foreign to the victim. She
also agreed with defense counsel on cross-examination that the vaginal
swabs taken during the rape kit collection showed no Y-Chromosome.
{¶70} Dr. Jathish Setty also testified. He testified that he met with
and physically examined the victim some time in July, after a forensic
interview was conducted on the child. He testified that his physical
examination of the victim revealed tears to her vagina and hymen, consistent
with the history provided by the victim. He also testified that her injury was
Scioto App. No. 16CA3787 52
consistent with penetration from a blunt object, which according to the
history provided by the child was a penis, rather than another object. Thus,
he testified that his exam indicated penetration had occurred. He conceded
on cross-examination that he could not state from his exam the number of
times or when penetration had occurred. He further testified that a rape kit,
if performed within seventy-two hours of a rape and if the victim had not
showered or "done anything since then[,]" would reveal the presence of
semen. However, he further agreed upon re-direct examination that the
absence of semen from the rape kit performed on the victim herein was
consistent with the history provided by the victim, which described that
Appellant pulled his penis out of her and then a white substance came out
onto her leg, which she wiped off with a towel.
{¶71} Erica Jimenez, a forensic scientist with BCI, also testified on
behalf of the State, stating that forensic testing indicated the presence of
Appellant's semen on the bed sheet and the victim's dress, but not the towel.
When questioned upon cross-examination as to why the victim's DNA was
not found on the dress, she stated she was not surprised that it was not found
because the sample of the dress that was tested was from area below the
waist, whereas when testing is performed to establish the DNA of the wearer
of the clothing it is usually tested from an area of the clothing such as the
Scioto App. No. 16CA3787 53
armpit area, cuff or waistband. She also confirmed on cross examination
that the victim's DNA was not found on the portion of the bed sheet that was
tested, and that the towel was not tested for her DNA.
{¶72} Based upon the foregoing evidence, we conclude that the State
proved each of the elements of rape, as charged, beyond a reasonable doubt.
Contrary to Appellant's argument, the absence of semen or Y-Chromosome
identified in the rape kit analysis did not constitute "proof there was no sign
of male penetration." Dr. Jetty testified that a rape kit performed within
seventy two hours of a rape will typically identify the presence of semen if
the victim had not showered or "done anything since then." Jamie Myers
testified that the victim reported to her during the sexual assault examination
that since the rape she had changed her clothes and had taken a bath or
shower. Further, Dr. Jetty agreed with the State on re-direct examination
that the absence of semen from the rape kit performed on the victim herein
was consistent with the history provided by the victim, which described that
Appellant pulled his penis out of her and then a white substance came out
onto her leg, which she wiped off with a towel. Thus, the rape kit results do
not prove there was no sign of male penetration.
{¶73} Further, the jury heard all of the expert and medical testimony
regarding the physical findings and DNA testing, and listened to Appellant's
Scioto App. No. 16CA3787 54
testimony which offered an alternative explanation of the presence of his
semen on the victim's bed sheets and dress. It is clear that they rejected his
version of events, which decision was within their province as the trier of
fact. As explained above, weight and credibility issues are left to the jury,
and the trier of fact is free to believe all, part, or none of the testimony of
any witness, and we defer to the trier of fact on evidentiary weight and
credibility issues because it is in the best position to gauge the witnesses'
demeanor, gestures, and voice inflections, and to use these observations to
weigh their credibility. Dillard at ¶ 28; citing State v. West, supra, at ¶ 23.
{¶74} Additionally, the jury heard testimony from the victim herself.
This Court has previously acknowledged that “ ‘[i]t is well settled that a rape
conviction may rest solely on the victim's testimony, if believed, and that
‘[t]here is no requirement that a rape victim's testimony be corroborated as a
condition precedent to conviction.’ ” State v. Canterbury, 4th Dist. Athens
No. 13CA34, 2015-Ohio-1926, ¶ 62; quoting State v. Patterson, 8th Dist.
Cuyahoga No. 100086, 2014–Ohio–1621, ¶ 40; quoting State v. Lewis, 70
Ohio App.3d 624, 638, 591 N.E.2d 854 (4th Dist.1990). We reject
Appellant's assertion that the exclusion of evidence, which we have
determined was properly excluded by the rape shield law, so affected the
jury's ability to judge the evidence or the victim’s credibility that a manifest
Scioto App. No. 16CA3787 55
miscarriage of justice has occurred. Moreover, attacks on a victim's
credibility, or the tendency to “try” the victim, are exactly the types of issues
the rape shield law is designed to prevent. See State v. Gardner, 59 Ohio
St.2d 14, 17, 391 N.E.2d 337 (1979).5 Further, and importantly, forensic
evidence was consistent with the victim's version of events, which the jury
believed, and the rape kit results did not disprove the victim’s version of
events, contrary to Appellant's assertions.
{¶75} With regard to Appellant's argument that because the jury
acquitted on four counts and was initially hung on count five, that there must
have been reasonable doubt, we disagree. Instead, we believe the fact that
the jury acquitted on four of the five counts demonstrates that this was a
discriminating jury that understood the burden the State was required to
meet. It demonstrates the jury understood that acquittal was required if
reasonable doubt was present. This portion of Appellant's argument is also
without merit.
{¶76} In light of the foregoing, we cannot conclude that Appellant's
conviction is against the manifest weight of the evidence, that the jury lost
its way, or that Appellant's conviction was such a manifest miscarriage of
5
Gardner explained as follows: "Several legitimate state interests are advanced by the shield law. First, by
guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages
the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may
encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly
inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the
truth-finding process." (footnotes omitted).
Scioto App. No. 16CA3787 56
justice that it must be reversed. Moreover, “[w]hen an appellate court
concludes that the weight of the evidence supports a defendant's conviction,
this conclusion necessarily also includes a finding that sufficient evidence
supports the conviction.” State v. Adkins, 4th Dist. Lawrence No. 13CA17,
2014-Ohio-3389, ¶ 27. Having already determined that Appellant's rape
conviction is not against the manifest weight of the evidence, we necessarily
reject Appellant's additional claim that this conviction is not supported by
sufficient evidence. Therefore, Appellant's third and final assignment of
error is overruled. Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Scioto App. No. 16CA3787 57
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment and Opinion.
Hoover, P.J.: Concurs in Judgment Only.
For the Court,
BY: ______________________________
Peter B. Abele, Judge
BY: ______________________________
Matthew W. McFarland, Judge
BY: ______________________________
Marie Hoover, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.