State v. Zahn

[Cite as State v. Zahn, 2021-Ohio-267.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-20-08
v.
TABITHA P. ZAHN, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 19 CR 0091
Judgment Affirmed
Date of Decision: February 1, 2021
APPEARANCES:
John M. Kahler, II for Appellant
Angela M. Boes for Appellee
Case No. 13-20-08
PRESTON, J.
{¶1} Defendant-appellant, Tabitha P. Zahn (“Zahn”), appeals the March 26,
2020 judgment of sentence of the Seneca County Court of Common Pleas. For the
reasons that follow, we affirm.
{¶2} This case arises from several alleged sexual encounters in May 2017
and February 2018 between Zahn and a minor child.
{¶3} On May 9, 2019, the Seneca County Grand Jury indicted Zahn on seven
counts: Counts One, Two, and Three of sexual battery in violation of R.C.
2907.03(A)(1), (B), third-degree felonies; Counts Four through Six of unlawful
sexual conduct with a minor in violation of R.C. 2907.04(A), (B)(1), fourth-degree
felonies; and Count Seven of sexual battery in violation of R.C. 2907.03(A)(7), (B),
a third-degree felony. (Doc. Nos. 1, 5, 6). On June 19, 2019, Zahn appeared for
arraignment and pleaded not guilty to the counts in the indictment. (Doc. No. 16).
{¶4} On June 28, 2019, Zahn filed a motion to suppress evidence. (Doc. No.
20). Specifically, Zahn sought the suppression of any and all evidence obtained by
Detective Sergeant Kevin Reinbolt (“Detective Sergeant Reinbolt”) during the
course of his investigation, including Zahn’s admission that she engaged in sexual
conduct with the minor victim. (Id.). On August 12, 2019, the State filed its
memorandum in opposition to Zahn’s motion to suppress evidence. (Doc. No. 24).
That same day, a hearing was held on Zahn’s motion to suppress evidence. (Doc.
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No. 26). On February 14, 2020, the trial court denied Zahn’s motion to suppress
evidence. (Id.).
{¶5} On March 11, 2020, Zahn filed a motion to dismiss the indictment for
a violation of her right to a speedy trial. (Doc. No. 28). In her motion, Zahn argued
that the 186 days that elapsed between the hearing on her motion to suppress
evidence and the trial court’s decision on that motion was unreasonable and
constituted a violation of her right to a speedy trial. (Id.). On March 19, 2020, the
State filed its opposition to Zahn’s motion to dismiss the indictment. (Doc. No. 37).
That same day, a hearing was held on the motion. (Doc. No. 39). At the conclusion
of the hearing, the trial court denied the motion. (Id.); (Mar. 19, 2020 Tr. at 16-17).
{¶6} Pursuant to a negotiated plea agreement, on March 25, 2020, Zahn
pleaded no contest to Counts Four, Five, and Six of the indictment. (Doc. Nos. 42,
44). In exchange, the State agreed to recommend dismissal of Counts One, Two,
Three, and Seven of the indictment. (Doc. Nos. 40, 42, 43, 44). The trial court
accepted Zahn’s no contest pleas and found her guilty. (Doc. No. 44). (See Doc.
No. 42). In addition, the trial court dismissed Counts One, Two, Three, and Seven
of the indictment. (Doc. No. 43). (See Doc. No. 44).
{¶7} That same day, the trial court sentenced Zahn to 17 months in prison as
to Count Four, 17 months in prison as to Count Five, and 17 months in prison as to
Count Six. (Doc. No. 45). The trial court further ordered for the sentences to be
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served consecutively to each other for an aggregate term of 51 months’
imprisonment. (Id.). The trial court filed its judgment entry of sentence on March
26, 2020. (Id.).
{¶8} On April 21, 2020, Zahn filed a notice of appeal. (Doc. No. 49). She
raises one assignment of error for our review.
Assignment of Error
The trial court erred in overruling Appellant’s motion to
discharge for delay in right to speed [sic] trial.
{¶9} In her assignment of error, Zahn argues that the trial court erred by
denying her motion to dismiss the indictment for a violation of her right to a speedy
trial. Specifically, Zahn argues that even providing for a reasonable delay for the
trial court to consider her motion to suppress evidence, the trial court violated her
right to a speedy trial and should have granted her motion to dismiss the indictment
for a violation of her right to a speedy trial.
{¶10} “‘A speedy trial claim involves a mixed question of law and fact for
purposes of appellate review.’” State v. Gartrell, 3d Dist. Marion No. 9-14-02,
2014-Ohio-5203, ¶ 104, quoting State v. Hansen, 3d Dist. Seneca No. 13-12-42,
2013-Ohio-1735, ¶ 20, citing State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-
4229, ¶ 11 (3d Dist.). “‘Accordingly, a reviewing court must give due deference to
the trial court’s findings of fact if they are supported by competent, credible
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evidence but will independently review whether the trial court correctly applied the
law to the facts of the case.’” Id., quoting Hansen at ¶ 20, citing Masters at ¶ 11.
{¶11} “‘An accused is guaranteed the constitutional right to a speedy trial
pursuant to the Sixth and Fourteenth Amendments of the United States Constitution
and Ohio Constitution, Article I, Section 10.’” State v. Dahms, 3d Dist. Seneca No.
13-16-16, 2017-Ohio-4221, ¶ 102, quoting State v. Ferguson, 10th Dist. Franklin
No. 16AP-307, 2016-Ohio-8537, ¶ 12, citing State v. Taylor, 98 Ohio St.3d 27,
2002-Ohio-7017, ¶ 32. “In Ohio, the right to a speedy trial is implemented by
statutes that impose a duty on the state to bring the defendant to trial within a
specified time.” State v. Melampy, 12th Dist. Brown No. CA2007-04-008, 2008-
Ohio-5838, ¶ 9, citing Cleveland v. Sheldon, 8th Dist. Cuyahoga No. 82319, 2003-
Ohio-6331, ¶ 16.
{¶12} Ohio’s “general” speedy-trial statutes are contained in R.C. 2945.71
et seq. “R.C. 2945.71 provides the timeframe for a defendant’s right to a speedy
trial based on the level of the offense.” State v. Matland, 7th Dist. Mahoning No.
09-MA-115, 2010-Ohio-6585, ¶ 19. Here, Zahn was charged with violations of
R.C. 2907.03(A)(1), (B), 2907.03(A)(7), (B), and 2907.04(A), (B)(1), which are
third-degree and fourth-degree felonies. R.C. 2945.71 provides 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.” R.C. 2945.71(C)(2). This 270-
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day period may be extended for one or more of the reasons listed in R.C.
2945.72(A)-(I). Absent any such extension, failure to bring a defendant to trial
within the 270-day period subjects the case to dismissal upon motion of the
defendant. R.C. 2945.73(B). “When an accused is discharged pursuant to [R.C.
2945.73(B)] * * *, such discharge is a bar to any further criminal proceedings
against [the defendant] based on the same conduct.” R.C. 2945.73(D). “The
provisions of R.C. 2945.71 et seq. * * * are mandatory and must be strictly complied
with by the trial court.” State v. Smith, 140 Ohio App.3d 81, 86 (3d Dist.2000),
citing State v. Cloud, 122 Ohio App.3d 626 (2d Dist.1997) and State v. Pudlock, 44
Ohio St.2d 104 (1975).
{¶13} “R.C. 2945.72 allows for an extension of the time that the accused
must be brought to trial under certain circumstances.” State v. Taylor, 3d Dist. Allen
No. 1-13-46, 2014-Ohio-1793, ¶ 29. Excluded from the speedy-trial calculation is
“[a]ny period of delay 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). Also
excluded from the speedy-trial calculation is “[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(H). “As long as
the trial court’s disposition occurs within a reasonable time, a defendant’s motion
to suppress tolls the speedy trial clock from the time the defendant files the motion
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until the trial court disposes of the motion.” State v. Curtis, 3d Dist. Marion No. 9-
02-11, 2002-Ohio-5409, ¶ 12, citing State v. Arrizola, 79 Ohio App.3d 72, 76 (3d
Dist.1992). Accordingly, the 270-day limit within which the state had to bring Zahn
to trial was extended pursuant to R.C. 2945.72(E) by reason of Zahn filing a motion
to suppress evidence. However, this court has held that filing a motion to suppress
does not extend the time for trial indefinitely. Arrizola at 76. Rather, the speedy-
trial time limit “is ‘merely extended by the time necessary in light of the reason for
delay.’” Arrizola at 75, quoting Committee Comment to H.B.511. See also State
v. Johnson, 3d Dist. Marion No. 9-10-47, 2011-Ohio-994, ¶ 22.
{¶14} Zahn argues that the 186 days that the trial court took to decide her
motion to suppress was unreasonable and amounted to a violation of her statutory
right to a speedy trial. In support of her contention that the trial court took an
unreasonable amount of time to decide her motion to suppress, thereby violating her
statutory right to a speedy trial, Zahn relies principally on this court’s decision in
State v. Arrizola.
{¶15} In Arrizola, the defendant was charged with two first-degree
misdemeanors—driving under the influence of alcohol and driving with an expired
license. Id. at 73-74. On September 13, 1990, Arrizola filed a motion to suppress
evidence. Id. at 74. On October 19, 1990, the trial court held a hearing on Arrizola’s
motion to suppress. Id. On November 2, 1990, the parties filed briefs with the trial
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court relating to the motion to suppress. Id. On April 29, 1991, 228 days after
Arrizola’s motion to suppress was filed, the trial court issued its decision denying
Arrizola’s motion to suppress. Id. Arrizola filed a motion to dismiss the pending
charges alleging that the trial court violated his right to a speedy trial. Id. In
reversing the trial court’s judgment overruling Arrizola’s motion to dismiss, we held
that the trial court failed to render a decision on Arrizola’s motion to suppress
evidence in a reasonable time, thereby violating his right to a speedy trial. Id. at 76.
{¶16} Zahn uses our decision in Arrizola to advance her position that the trial
court took an unreasonable amount of time to issue a decision on her motion to
suppress evidence. Specifically, Zahn argues that the trial court took a longer time
to decide her motion to suppress evidence than the trial court in Arrizola took to
issue a decision. Therefore, Zahn reasons, the trial court in her case took an
unreasonable amount of time to issue a decision on her motion to suppress and
violated her right to a speedy trial. For the reasons that follow, we disagree.
{¶17} First, Arrizola did not create a bright line rule with respect to what
constitutes a reasonable amount of time to issue a decision on a motion. Rather, we
held that “[i]n determining the reasonableness of the time in which a trial court must
rule on a motion, careful examination of the particular circumstances of the case
must be made.” Arrizola, 79 Ohio App.3d at 76. Further, “[t]he complexity of the
facts and the difficulty of the legal issues to be resolved must be considered.” Id.
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“A reviewing court must also be cognizant of the time constraints placed on a trial
judge’s schedule.” Id.
{¶18} Accordingly, rather than simply comparing the number of days the
trial court took to reach its decision in both cases, as Zahn invites us to do, we must
carefully examine the particular circumstances of the case. Zahn filed her motion
to suppress on June 28, 2019, and a hearing was held on August 12, 2019. The trial
court filed its judgment entry denying Zahn’s motion to suppress on February 14,
2020, which was 231 days after Zahn’s motion to suppress was filed and 186 days
following the hearing on the motion to suppress.
{¶19} Here, Zahn was charged with seven felony charges—four third-degree
felonies and three fourth-degree felonies—all alleging sexual conduct with a minor.
Further, if found guilty of the offenses charged in the indictment, Zahn faced a
possible maximum prison term of 24.5 years in prison and a mandatory sex offender
registration for 25 years to life. As the trial court stated, because of the stakes
involved for the parties, the trial court required additional time to consider Zahn’s
motion to suppress. (Doc. No. 39). In contrast, the defendant in Arrizola was
charged with first-degree misdemeanors. We note that the Rules of
Superintendence for the Courts of Ohio and the statutory speedy trial provisions
both suggest that it is reasonable for more time to elapse between arrest and trial in
felony cases than in misdemeanor cases. See Sup.R. 39(B)(1) (“In common pleas
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court, all criminal cases shall be tried within six months of the date of arraignment
on an indictment or information. In municipal and county court, all criminal cases
shall be tried within the time provided in Chapter 2945. of the Revised Code.”);
R.C. 2945.71 (providing that a person charged with a felony shall be brought to trial
within 270 days after arrest and a person charged with a misdemeanor should be
brought to trial within 30 to 90 days after arrest or service of summons depending
on the level of misdemeanor charged).
{¶20} Further, at the hearing on the motion to suppress, the trial court heard
testimony from two witnesses offering competing versions of events. In addition,
State’s Exhibit 1, which consisted of a lengthy recorded audio interview of Zahn
and several telephone calls made between Zahn and Detective Sergeant Reinbolt,
was admitted into evidence. (See State’s Ex. 1). The audio recordings in State’s
Exhibit 1 were nearly two hours long, and one of the audio files, which totaled
approximately 80 minutes, was difficult to understand. (See Doc. No. 39). As the
trial court noted, the 80-minute audio file “was of very poor quality” and “needed
to be heard and reviewed more than once.” (Doc. No. 39). (See State’s Ex. 1).
{¶21} In its judgment entry denying Zahn’s motion to dismiss the charges,
the trial court disclosed some details regarding its schedule during the time period
between the hearing on Zahn’s motion to suppress and its decision on Zahn’s motion
to suppress. (Doc. No. 39). The trial court noted that it is involved in a specialized,
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multi-jurisdictional drug-recovery court which totaled 27 full days in the trial
court’s schedule, including a weekly full-day hearing. (Id.). Additionally, the trial
court presided over a two-day jury trial and was involved in seminars, conferences,
and trainings for 10 days. (Id.). Court holidays, illness of the judge, and vacation
time comprised another 28 days. (Id.). Further, the trial court was not open during
an additional 50 days, including weekends. (Id.).
{¶22} In support of her contention that the trial court took an unreasonable
amount of time to decide her motion to suppress, Zahn referenced a motion to
suppress in another case that was filed in the trial court on August 13, 2019, the day
after the hearing on her motion to suppress. That motion was decided on September
3, 2019, only 21 days later. (Appellant’s Brief at 10-11). Although Zahn references
this case to further her contention that the trial court took an unreasonable amount
of time to issue a decision on her motion to suppress evidence, we note that this
example can also be used to demonstrate that the trial court typically issues
decisions on motions to suppress evidence in a timely manner, and the fact that the
trial court took considerably more time to decide Zahn’s motion to suppress
evidence highlights the complexity of the issues presented in her motion to suppress
evidence.
{¶23} Accordingly, after carefully considering the particular circumstances
of the case, the complexity of the facts and difficulty of the legal issues to be
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resolved, and the time constraints placed on the trial court’s schedule, we find that
the trial court decided Zahn’s motion to suppress evidence in a reasonable amount
of time. See Arrizola, 79 Ohio App.3d at 76; State v. Driver, 7th Dist. Mahoning
No. 03 MA 210, 2006-Ohio-494, ¶ 36 (holding that a 204-day delay between the
time Driver’s motion to suppress was heard and the trial court’s ruling on the motion
was reasonable). Thus, Zahn’s speedy-trial rights were not violated and the trial
court did not err by denying Zahn’s motion to discharge her case.
{¶24} Accordingly, Zahn’s assignment of error is overruled.
{¶25} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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