State v. Ferguson

[Cite as State v. Ferguson, 2011-Ohio-4285.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 08CA0050
vs. : T.C. CASE NO. 07CR1011
JAMES FERGUSON : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 26th day of August, 2011.
. . . . . . . . .
David W. Phillips, Atty. Reg. No. 0019966, Clark County Special
Prosecutor for the State of Ohio, Union County Justice Center,
221 West Fifth Street, Marysville, OH 43040
Attorney for Plaintiff-Appellee
David R. Miles, Atty. Reg. No. 0013841, 125 West Main Street, Suite
201, Fairborn, OH 45324
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, J.:
{¶ 1} Defendant, James Ferguson, appeals from his conviction
and sentence for child endangering, permitting child abuse, and
felonious assault.
{¶ 2} Defendant and his wife, Vonda Ferguson, adopted six
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children: Sherita, Jermaine, Joseph, Julius, Valnita, and Vivian.
The family lived in Clark County from 2000 until 2004, when they
moved to Union County. In November 2004, Vonda Ferguson, while
talking on the phone with a Union County social worker, threatened
to stab one of the children. An investigation ensued, following
which the children were removed from the Ferguson home. The State
sought permanent custody of the children. In 2005, the Fergusons
relinquished custody of the children.
{¶ 3} In August 2006, Defendant James Ferguson was indicted
in Union County on thirty charges relating to the abuse of his
children. That case was dismissed by the State in March 2007.
On October 16, 2007, Defendant was indicted by the Clark County
grand jury on the same charges: twenty counts of endangering
children, R.C. 2919.22(B), five counts of permitting child abuse,
R.C. 2903.15(A), and five counts of felonious assault, R.C.
2903.11(A)(1). The matter was tried before a jury in April 2008,
and Defendant was found guilty of seventeen counts of endangering
children, five counts of permitting child abuse, and three counts
of felonious assault. The trial court sentenced Defendant to
prison terms totaling sixty-five years.
{¶ 4} Defendant timely appealed to this court from his
conviction and sentence.
Facts
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{¶ 5} The children testified at trial regarding the abuse they
suffered. Joseph testified that Defendant beat him with a “Honda
belt,” a white belt Defendant wore to work at the Honda
manufacturing plant in Marysville, an extension cord, and a
duct-taped wooden paddle. Defendant also held Joseph under water,
pushed him off a roof, starved him for days at a time, and duct-taped
him to a chair. The abuse began when Joseph was seven or eight
and the family lived in Clark County. Defendant would beat Joseph
for five to ten minutes, four to five times per week. Defendant
held the belt in both hands and hit Joseph with a lot of force.
Joseph bled a lot and has scars on his buttocks, legs, and back.
If Joseph cried out, socks would be stuffed in his mouth to silence
him.
{¶ 6} Defendant was aware that his wife, Vonda Ferguson, had
stabbed Joseph with a pen and burned him with an iron. Defendant
threatened to kill Joseph if he told anyone about the abuse. Joseph
had to wear soiled underwear on his head and eat the excrement
if he soiled himself. He also had to stand against a wall for
prolonged periods of time, even overnight.
{¶ 7} Valnita testified about being beaten with a duct-taped
stick and a white Honda belt. She further testified that all of
the children, except the baby Vivian, were beaten with the belt.
During the beatings by Defendant, Vonda Ferguson would laugh.
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Defendant kicked the children with his steel-toed work boots, and
struck Valnita with a hammer, smashing one of her fingers. Valnita
had welts, bruises, scars, and scabs on her back. Valnita was
responsible for caring for Vivian. If Vivian woke up Defendant
or his wife during the night, Valnita would be required to stand
against a wall overnight, or Defendant would beat her. Valnita
testified about being burned by a curling iron.
{¶ 8} Julius testified that he was beaten and hit a lot for
minor things. He was struck with a belt or a stick, and had marks
on the back of his thighs and buttocks.
{¶ 9} Sherita testified that she was duct-taped to a table and
beaten with a bat, a belt, and a stick by Defendant. She was beaten
so hard that she bled through her panties and could hardly walk.
She has scars on her legs, buttocks, and back. Sherita was forced
to put soiled garments in her mouth, and Vonda Ferguson struck
her toes and fingers with a hammer hard enough that her nails would
turn black and fall off. The children had to stand against a wall
for hours. Sherita would steal food because she was hungry.
{¶ 10} Jermaine testified that the atmosphere in the Ferguson
home was warlike, and a lot of violence was inflicted on the
children. Jermaine was beaten on his bare buttocks with a
duct-taped stick for up to ten minutes at a time, and as a result
he has scars. Defendant kicked and punched Jermaine, and forced
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him to stand against a wall, sometimes overnight. Jermaine lied
for his parents because things would get worse for the other
children if he told about the abuse. Jermaine indicated that he
and the other children were beaten with the Honda belt and
duct-taped. Jermaine did the laundry for the family and he
testified that everybody bled. He found scabs and blood in the
children’s underwear.
{¶ 11} Examinations of Jermaine, Valnita, and Joseph by Dr.
Applegate and Dr. Scribano revealed scarring on the children’s
thighs, backs, and buttocks that was consistent with physical
abuse. Burn marks were observed on Valnita and Joseph, and a stab
wound was found on Joseph.
{¶ 12} All of the abused children, except Sherita, were examined
by a psychologist, Dr. Jolie Brahms. Jermaine was very damaged
by the abuse, Julius was suicidal as a result of severe depression,
and Valnita indicated that she needed counseling to adapt to a
family. Dr. Brahms found that “there was no Joseph.”
{¶ 13} Early in the investigation of the Fergusons’ treatment
of their children, Defendant was interviewed by Union County
Sheriff’s Detective Jon Kleiber. The interview took place at
Defendant’s place of employment, Honda of America, and Defendant
was not in custody. Defendant admitted whipping the children with
his white Honda belt until they bled. Defendant also admitted
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hitting the children with a duct-taped stick, which left welts
and bruises on them. Defendant indicated that beating one or more
of the children was a daily activity. Defendant admitted that
the children were beaten so frequently that their skin did not
have time to heal between the beatings. Defendant hung some of
the children from a second story bannister to make them afraid,
and he admitted kicking Jermaine in the chest or stomach. He put
soiled washrags in Sherita’s and Jermaine’s mouths. Defendant
admitted that his wife, Vonda, ordered him to beat the children
until they bled, and he would then continue to beat the children.
Vonda Ferguson would use make-up to cover the children’s scars
and injuries so she did not get caught by the local authorities,
teachers, or school officials.
{¶ 14} Defendant’s defense at trial was that the children’s
allegations of abuse were grossly exaggerated and a contrived
attempt to escape a disciplined home, and that the allegations
were induced by leading questions asked by investigators.
FIRST ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION
TO AMEND FIFTEEN CHILD ENDANGERING COUNTS OF THE INDICTMENT DURING
THE TRIAL.”
{¶ 16} During the trial the Stated filed a motion to amend
fifteen of the twenty counts of endangering children to include
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the culpable mental state of recklessness, which was inadvertently
omitted from the indictment. Defendant objected, and requested
a continuance of the trial and to discharge the jury pursuant to
Crim.R. 7(D). The trial court permitted the amendment and denied
Defendant’s request for a continuance or discharge of the jury.
Relying upon State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624(Colon I), Defendant now argues that the failure to include an
essential element of the child endangering charges, the culpable
mental state of recklessness, is a fatal defect that cannot be
cured by amendment of the indictment, and that the trial court
erred in permitting the State to amend the indictment to add the
omitted culpable mental state.
{¶ 17} Crim.R. 7(D) provides that the court may at any time
before, during, or after trial amend the indictment with respect
to any defect or omission, provided no change is made in the name
or identity of the crime charged. In State v. O’Brien (1987),
30 Ohio St.3d 122, the Ohio Supreme Court held that the amendment
of the indictment to include the culpable mental state of
recklessness did not change the name or identity of the crime of
endangering children, nor did it change the penalty or the degree
of the offense. Accordingly, the amendment made in the present
case was proper per Crim.R. 7(D). Id., at 126.
{¶ 18} In State v. Hamilton, Montgomery App. No. 22895,
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2009-Ohio-4602, we concluded that Colon I implictly overruled
O’Brien. Id., at ¶17. After our decision in Hamilton, and the
Supreme Court’s decision in Colon I, the Ohio Supreme Court on
March 25, 2010, decided State v. Pepka, 125 Ohio St.3d 124,
2010-Ohio-1045, wherein it held that an amendment to an indictment
for endangering children that added language that the victim
suffered serious physical harm was proper per Crim.R. 7(D). The
Supreme Court cited O’Brien with approval, stating that as long
as the State complies with Crim.R. 7(D), it may cure a defective
indictment by amendment, even if the original indictment omits
an essential element of the offense with which Defendant is charged.
Pepka, at ¶15.
{¶ 19} In light of the Supreme Court’s approval of O’Brien in
Pepka, a decision released after Colon I and II, and our decision
in Hamilton, we conclude that the holding in O’Brien regarding
the amendment of indictments remains good law. See also State
v. Rice, Hamilton App. No. C-080444, 2009-Ohio-1080. Under O’Brien,
an amendment to include an omitted essential element of the offense
is proper if the name or the identity of the crime is not changed,
and the accused has not been misled or prejudiced by the omission
of the element from the indictment. O’Brien, at paragraph two
of the syllabus. That is the case here.
{¶ 20} Defendant states in conclusory fashion that he was misled
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and prejudiced by the permitted amendment. Defendant, however,
offers no explanation of how or why he was prejudiced. He does
not claim that he would have defended the case any differently
or otherwise have altered his trial strategy. Neither does
Defendant claim he was surprised. In that regard, we note that
the first count of child endangerment pertaining to each child,
counts one, five, nine, thirteen and seventeen, did in fact include
the culpable mental state of recklessness. That culpable mental
state was inadvertently omitted from the remaining counts of child
endangering pertaining to each child. Defendant had adequate
prior notice and was fairly informed about the elements of the
charge against which he must defend, which is the purpose of an
indictment. Pepka. The amendment cured any error resulting from
the further omissions.
{¶ 21} Because this record does not demonstrate that Defendant
was misled or prejudiced by the omission of the mens rea element
from some, but not all, of the child endangering counts, or by
the permitted amendment, the amendment to include that omitted
essential element was proper, and Defendant was not entitled to
a continuance or discharge of the jury. Pepka; O’Brien; Crim.R.
7(D).
{¶ 22} Defendant’s first assignment of error is overruled.
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SECOND ASSIGNMENT OF ERROR
{¶ 23} “APPELLANT’S FIVE CONVICTIONS FOR PERMITTING CHILD ABUSE
SHALL BE REVERSED BECAUSE THE TRIAL COURT LACKED JURISDICTION.”
{¶ 24} Defendant argues that because the indictment failed to
include a culpable mental state for the permitting child abuse
charges, it failed to charge an offense and accordingly the trial
court lacked subject matter jurisdiction over those offenses.
Therefore, Defendant’s convictions for those offenses must be
reversed. We disagree.
{¶ 25} R.C. 2903.15(A) sets forth the offense of permitting
child abuse as follows:
{¶ 26} “No parent, guardian, custodian, or person having
custody of a child under eighteen years of age or of a mentally
or physically handicapped child under twenty-one years of age shall
cause serious physical harm to the child, or the death of the child,
as a proximate result of permitting the child to be abused, to
be tortured, to be administered corporal punishment or other
physical disciplinary measure, or to be physically restrained in
a cruel manner or for a prolonged period.”
{¶ 27} R.C. 2903.15(A) is silent as to any culpable mental
state. Furthermore, that provision does not plainly indicate a
purpose to impose strict liability. In that circumstance,
recklessness is the default culpable mental state that applies.
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R.C. 2901.21(B). We note that the Ohio Jury Instruction Committee
states that recklessness is the appropriate culpable mental state
that applies to permitting child abuse as a result of the
application of R.C. 2901.21(B). See Ohio Jury Instructions, §CR
503.15, and the Comment thereto. We agree. See also State v.
McGee (1997), 79 Ohio St. 3d 193, interpreting child endangering
in violation of R.C. 2919.22(A).
{¶ 28} Even though the indictment omitted the mens rea element
of recklessness from the permitting child abuse charges, this is
not the rare case where that error permeated the entire trial and
resulted in multiple errors, resulting in a structural error,
rather than a plain error, analysis. State v. Colon, 119 Ohio
St.3d 204, 2008-Ohio-3749 (Colon II). The prosecutor argued to
the jury that recklessness was required for the permitting child
abuse charges. Even more importantly, the trial court instructed
the jury on the culpable mental state of recklessness as it applies
to permitting child abuse in accordance with Ohio Jury Instructions
§CR 503.15. With respect to each count of permitting child abuse,
the court instructed the jury that they must find that Defendant
recklessly permitted the abuse. The omission of the mens rea
element from an indictment does not require reversal where, as
here, the trial court properly instructs the jury. State v.
Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, at ¶16; Colon II.
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We cannot say that but for the failure of the indictment to specify
that Defendant acted recklessly in permitting his children to be
abused, he would have been acquitted of those charges. No plain
error is demonstrated. State v. Long (1978), 53 Ohio St.2d 91.
{¶ 29} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 30} “APPELLANT’S ENTIRE INDICTMENT IS VOID DUE TO THE
IMPROPER APPOINTMENT OF A SPECIAL PROSECUTOR.”
{¶ 31} The prosecution of this case in Clark County was
conducted by Union County Prosecuting Attorney David Phillips,
several of his assistant prosecuting attorneys, and assistant Ohio
Attorney General Chris Wagner. Defendant argues that his
indictment is void due to the improper appointment of a special
prosecutor. Defendant cites no authority to support that claim.
{¶ 32} At the outset we note that Defendant’s claim was not
raised in the trial court below. Accordingly, Defendant has waived
all but plain error. Plain error does not exist unless it can
be said that but for the error, the outcome of the trial would
clearly have been different. State v. Long, supra.
{¶ 33} Objections based upon defects in the institution of the
prosecution, such as this, must be raised by motion prior to trial
or they are waived. Crim.R. 12(C)(1), (H). In any event, the
court of common pleas has broad discretion to appoint counsel to
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assist the prosecuting attorney in a pending criminal case whenever
it is of the opinion that the public interest so requires. State
ex rel. Williams v. Zaleski (1984), 12 Ohio St.3d 109; R.C. 2941.63.
{¶ 34} At the request of the Clark County Prosecuting Attorney,
and pursuant to R.C. 2941.63, the Clark County Common Pleas Court
appointed special prosecutors to handle this matter, finding the
request for a special prosecutor to be appropriate. No hearing
into the appointment of a special prosecutor was required.
Zaleski. Defendant does not even allege, much less demonstrate,
how he was prejudiced by the appointment of a special prosecutor.
The prejudice, if there was any, was waived by Defendant’s failure
to timely object. No plain error has been demonstrated.
{¶ 35} Defendant’s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 36} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
TO SUPPRESS STATEMENTS.”
{¶ 37} Defendant argues that the trial court erred by overruling
his motion to suppress statements he made to police.
{¶ 38} During the previous criminal proceedings against
Defendant in Union County, on the same charges that he abused his
children, Defendant filed a motion to suppress statements he made
to Union County Sheriff’s Detective Jon Kleiber during an interview
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at Defendant’s place of employment on April 18, 2005. A hearing
was held on September 11, 2006. On September 27, 2006, the trial
court overruled Defendant’s motion to suppress. The court found
that Defendant was not in custody when he made the statements,
that in any event Defendant was properly advised of his Miranda
rights, and that Defendant’s statements were voluntary. On March
23, 2007, the trial court granted the State’s request to dismiss
the case against Defendant without prejudice.
{¶ 39} After criminal proceedings were subsequently filed
against Defendant in Clark County, Defendant filed the same motion
to suppress his oral statements he previously filed in the Union
County case. The trial court held a hearing on February 20, 2008,
at which no witnesses testified. The court instead heard the oral
arguments of counsel. On April 10, 2008, the trial court overruled
Defendant’s motion to suppress his statements.
{¶ 40} The State argues that the doctrine of res judicata bars
relitigation of the motion to suppress Defendant’s statements that
Defendant previously litigated in the Union County proceedings.
We disagree. Res Judicata bars all subsequent actions based on
any claim arising out of a transaction or occurrence that was the
subject matter of a previous action in which a valid, final judgment
was entered. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379.
The judgment of the Union County Common Pleas Court overruling
15
Defendant’s motion to suppress his statements was interlocutory,
not final, and no final judgment on the charges in that indictment
was entered by the Union County court, which instead dismissed
those charges without prejudice.
{¶ 41} In arguing that the trial court erred in overruling his
motion to suppress his statements, Defendant claims that he was
in custody at the time he gave his statements to police, and that
his statements were not voluntary. However, whether Defendant
was in custody is immaterial, because it is undisputed that Miranda
warnings were given and that Defendant waived his Miranda rights
prior to questioning.
{¶ 42} With respect to Defendant’s claim that his statements
were not voluntary, in State v. Moore, Greene App. No. 07CA93,
2008-Ohio-6238, at ¶12-13, we stated:
{¶ 43} “The Due Process Clause requires an inquiry separate
from custody considerations and compliance with Miranda regarding
whether a suspect's will was overborne by the circumstances
surrounding the giving of a confession. Dickerson v. United States
(2000), 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405. Voluntariness
of a confession and compliance with Miranda are analytically
separate inquiries. State v. Pettijean (2000), 140 Ohio App.3d
517, 748 N.E.2d 133. Even if Miranda warnings are not required,
a confession may be involuntary if the defendant's will was
16
overborne by the totality of the facts and circumstances
surrounding the giving of his confession. Dickerson; Pettijean.
{¶ 44} “The due process test takes into consideration both the
characteristics of the accused and the details surrounding the
interrogation. Id. Factors to be considered include the age,
mentality, and prior criminal experience of the accused; the
length, intensity and frequency of the interrogation, the existence
of physical deprivation or mistreatment, and the existence of
threats or inducements. State v. Edwards (1976), 49 Ohio St.2d
31, 358 N.E.2d 1051. A defendant's statement to police is voluntary
absent evidence that his will was overborne and his capacity for
self-determination was critically impaired due to coercive police
conduct. Colorado v. Spring (1987), 479 U.S. 564, 107 S.Ct. 851,
93 L.Ed.2d 954; State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711,
1996-Ohio-108.”
{¶ 45} The record demonstrates that following Defendant’s
waiver of his Miranda rights, Defendant was coherent, straight
forward, and very cooperative in answering questions. Although
Defendant was questioned by police for a total of five and one-half
hours, he used the restroom during a break, and there was at all
times food and water available nearby, although Defendant never
requested any of those things. There was no physical deprivation,
mistreatment, or coercive police conduct. No threats or promises
17
were made to Defendant to induce his statements. After the
interview concluded, Defendant left with his wife.
{¶ 46} The totality of the facts and circumstances surrounding
Defendant’s interrogation do not demonstrate that Defendant’s will
was overborne by coercive police conduct and that his confession
was involuntary.
{¶ 47} Defendant’s fourth assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶ 48} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
TO DISMISS FOR DUE PROCESS AND SPEEDY TRIAL VIOLATIONS.”
{¶ 49} On February 5, 2008, Defendant filed a motion to dismiss
the indictment for a violation of his speedy trial rights. On
March 11, 2008, the State filed a memorandum in opposition to
Defendant’s motion. On April 11, 2008, the trial court filed an
Entry overruling Defendant’s motion. The court’s Entry did not
contain any findings of fact or conclusions of law, and merely
stated:
{¶ 50} “Upon review of the Court record, written and oral
arguments of counsel, the Court finds that the Defendant’s motion
to dismiss on grounds of speedy trial and due process violations
is not well taken and the same is denied.”
{¶ 51} On April 14, 2008, Defendant filed a request for written
findings of fact and conclusions of law with respect to the trial
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court’s denial of Defendant’s motion to dismiss on speedy trial
grounds. Prior to the commencement of trial, the court, by oral
pronouncement, denied Defendant’s request for written findings
of fact and conclusions of law.
{¶ 52} By Decision and Entry filed on December 16, 2010, we
remanded this case to the trial court for findings of fact and
conclusions of law with respect to the trial court’s denial of
Defendant’s motion to dismiss for a violation of his speedy trial
rights. We further provided the parties with ample opportunity
to file additional briefs on this issue after the trial court’s
findings were filed.
{¶ 53} On May 11, 2011, the trial court filed an Entry containing
its findings of fact and conclusions of law with respect to the
trial court’s denial of Defendant’s motion to dismiss on speedy
trial grounds. No additional briefs on the speedy trial issue
have been filed by either party.
{¶ 54} The Sixth Amendment to the United States Constitution
and Article I, Section 10 of the Ohio Constitution guarantee a
criminal defendant the right to a speedy trial. In Ohio that right
is implemented by the statutory scheme imposing specific time
limits in R.C. 2945.71 et seq. State v. Pachey 91980), 64 Ohio
St.2d 218. The particular rights which that statutory scheme
confers attach when criminal charges are placed against a
19
defendant. They continue in operation so long as those charges
remain pending, until he is brought to trial.
{¶ 55} R.C. 2945.71(C)(2) requires the State to bring a person
against whom a felony charge is pending to trial within two hundred
and seventy days after the person’s arrest, unless the time for
trial is extended pursuant to the provisions in R.C. 2945.72.
Each day the person is held in jail in lieu of bail on the pending
charge is counted as three days. R.C. 2945.71(E). For a violation
of the rights these sections confer, a defendant may seek a
discharge from criminal liability pursuant to R.C. 2945.73. The
merits of a motion for discharge for a violation of speedy trial
rights made pursuant to R.C. 2945.73 are determined as of the date
the motion is filed, not when it is decided or when, after a denial,
a defendant is brought to trial. State v. Morris, Montgomery App.
No. 19283, 2003-Ohio-1049.
{¶ 56} The time limits for bringing a defendant to trial may
be extended or tolled by R.C. 2945.72, which provides in relevant
part:
{¶ 57} “The time within which an accused must be brought to
trial, or, in the case of felony, to preliminary hearing and trial,
may be extended only by the following:
{¶ 58} “* * *
{¶ 59} “(E) Any period of delay necessitated by reason of a
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plea in bar or abatement, motion, proceeding, or action made or
instituted by the accused;
{¶ 60} “* * *
{¶ 61} “(H) 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.”
{¶ 62} A review of the files and records in this case reveals
that at the time Defendant filed his motion to dismiss for want
of a speedy trial on February 5, 2008, far more than the 270 days
allowed for trial by R.C. 2945.71 had elapsed since Defendant was
first served with a summons on the original indictment in Union
County, Ohio, on August 7, 2006. Thus, Defendant established a
prima facie case for discharge pursuant to R.C. 2945.73, and the
burden shifted to the State to demonstrate that Defendant was
brought to trial within the time required by R.C. 2945.71 and
2945.72. State v. Geraldo (1983), 13 Ohio App.3d 27. The State
has met its burden in this case.
The Union County Case
{¶ 63} Defendant was indicted on these same charges in Union
County, Ohio, on August 4, 2006. On August 7, 2006, Defendant
was served with a summons on that indictment, at which point the
speedy trial time began to run. Defendant was not arrested on
these charges. Speedy trial time ran from August 7, 2006 until
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August 15, 2006, at which time Defendant filed several pretrial
motions including a motion for a change of venue, a demand for
discovery, a motion to dismiss the indictment, and a motion to
suppress evidence, which tolled the time for trial pursuant to
R.C. 2945.72(E). From August 7, 2006, until August 15, 2006, eight
days chargeable to the State for speedy trial purposes elapsed.
From August 15, 2006, until September 27, 2006, when the trial
court ruled on many of Defendant’s pending pretrial motions, the
time for trial was tolled pursuant to R.C. 2945.72(E).
{¶ 64} On September 27, 2006, the speedy trial time began
running again and ran until October 20, 2006, when Defendant began
filing from that date onward a number of additional pretrial
motions, including a motion to compel the State to produce one
of the child victims for trial, a motion for a protective order,
a motion to compel discovery, a motion in limine, and a motion
for a directed verdict. Those motions tolled the time for trial
pursuant to R.C. 2945.72(E). Furthermore, on January 30, 2007,
the trial court granted a reasonable continuance of the trial at
the State’s request. That continued the time for trial pursuant
to R.C. 2945.72(H). On March 22, 2007, the State dismissed this
case without prejudice.
{¶ 65} As the trial court correctly points out in its findings
of fact and conclusions of law on the speedy trial issue, throughout
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the pendency of these proceedings in Union County, Ohio, Defendant
filed many pretrial motions, several of which extended the time
for trial pursuant to R.C. 2945.72. Defendant concedes this fact
in his appellate brief. Some of those pretrial motions remained
pending at the time the State dismissed this case on March 22,
2007. As the trial court noted, nearly every delay of the trial
was occasioned by motions made by the defendant.
{¶ 66} Between September 27, 2006, and October 20, 2006,
twenty-three days chargeable to the State for speedy trial purposes
elapsed. From October 20, 2006, until March 22, 2007, when the
State dismissed this case, the time for trial was tolled as a result
of Defendant’s pretrial motions that were still pending, R.C.
2945.72(E), and the granting of a reasonable continuance of the
trial other than upon the accused’s own motion, R.C. 2945.72(H).
At the time the State dismissed this case on March 22, 2007, which
ended the Union County proceedings, a total of thirty-one days
chargeable to the State for speedy trial purposes had elapsed.
The Clark County Case
{¶ 67} Defendant was reindicted on these same charges in Clark
County, Ohio, on October 16, 2007. The time period between the
State’s dismissal of this case on March 22, 2007, and Defendant’s
reindictment on these same charges on October 16, 2007, is not
included in the speedy trial computations because no charges were
23
pending against Defendant during that time. State v. Broughton
(1991), 62 Ohio St.3d 253. However, upon reindicting Defendant
in a subsequent indictment premised upon the same facts alleged
in the original indictment, the State does not get a fresh 270
day time period to bring Defendant to trial. Rather, any time
period that elapsed under the original indictment is tacked onto
the time period commencing with the second indictment. Id.{¶ 68} On October 17, 2007, Defendant was served with a summons
on the Clark County indictment and the speedy trial time began
to run. Defendant was not arrested on these charges. Speedy trial
time ran from October 17, 2007, until February 5, 2008, at which
time Defendant filed a motion to dismiss and a motion to suppress
the evidence which tolled the time for trial pursuant to R.C.
2945.72(E). From October 17, 2007, until February 5, 2008, one
hundred and eleven days chargeable to the State for speedy trial
purposes elapsed. From February 5, 2008, until April 10, 2008,
when the trial court overruled Defendant’s motion to dismiss and
his motion to suppress the evidence, the time for trial was tolled
pursuant to R.C. 2945.72(E).
{¶ 69} On April 10, 2008, the trial court overruled Defendant’s
motion to dismiss and his motion to suppress, and the speedy trial
time began running again, and ran until April 14, 2008, at which
time Defendant’s jury trial commenced. Between April 10, 2008,
24
and April 14, 2008, four days chargeable to the State for speedy
trial purposes elapsed.
{¶ 70} At the time Defendant filed his motion to dismiss on
February 5, 2008, claiming a violation of his speedy trial rights,
thirty one days chargeable to the State for speedy trial purposes
had elapsed during the Union County proceedings, and one hundred
and eleven days chargeable to the State for speedy trial purposes
had elapsed during the Clark County proceedings, for a total of
one hundred and forty-two elapsed days. That is well within the
two hundred and seventy day limit allowed by R.C. 2945.71 for
bringing Defendant to trial.
{¶ 71} Furthermore, at the time Defendant’s jury trial
commenced in Clark County, on April 14, 2008, a total of one hundred
and fifteen days chargeable to the State for speedy trial purposes
had elapsed in the Clark County proceedings. That figure added
to the thirty-one days chargeable to the State for speedy trial
purposes that elapsed during the Union County proceedings, results
in a total of one hundred and forty-six days chargeable to the
State for speedy trial purposes that had elapsed. Again, that
is well within the allowable two hundred and seventy day limit
for bringing Defendant to trial. R.C. 2945.71. Defendant’s
speedy trial rights were not violated in this case.
{¶ 72} Defendant also complains that his constitutional speedy
25
trial rights were violated when, following a failed prosecution
in Union County, Ohio, there was a seven month delay in
re-initiating charges in Clark County, Ohio, which were identical
to and based upon the same facts as the Union County charges.
In determining whether this delay violated Defendant’s
constitutional speedy trial rights, it is necessary to balance
and weigh the conduct of the prosecution and the defendant by
examining four factors: (1) the length of the delay; (2) the reason
for the delay; (3) Defendant’s assertion of his speedy trial rights;
and (4) the prejudice to Defendant as a result of the delay. Barker
v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
The first factor, the length of the delay, performs a gate-keeping
function to the extent that a delay approaching one year typically
is required to establish “presumed prejudice,” the existence of
which is necessary to trigger an inquiry into the other three Barker
factors. Barker, at 530; Doggett v. United States (1992), 505
U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520; State v. Triplett (1997),
78 Ohio St.3d 566; State v. Bailey, Montgomery App. No. 20764,
2005-Ohio-5506.
{¶ 73} Here, the seven month delay between dismissal of the
Union County, Ohio, proceeding by the State and Defendant’s
reindictment on those same charges in Clark County, Ohio, is legally
insufficient to establish presumed prejudice and trigger a review
26
of the other Barker factors. Defendant’s constitutional speedy
trial rights were not violated.
{¶ 74} Defendant’s fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 75} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
FOR A CONTINUANCE OF THE JURY TRIAL.”
{¶ 76} The grant or denial of a continuance is a matter entrusted
to the broad, sound discretion of the trial court, and an appellate
court must not reverse the trial court’s decision absent an abuse
of discretion. State v. Unger (1981), 67 Ohio St.2d 65. An abuse
of discretion means more than a mere error of law or an error in
judgment. It implies an arbitrary, unreasonable, unconscionable
attitude on the part of the trial court. State v. Adams (1980),
62 Ohio St.2d 151.
{¶ 77} In Ungar v. Sarafite (1964), 376 U.S. 575, 589-90, 84
S.Ct. 841, 11 L.Ed.2d 921, the United States Supreme Court stated:
{¶ 78} “The matter of continuance is traditionally within the
discretion of the trial judge, and it is not every denial of a
request for more time that violates due process even if the party
fails to offer evidence or is compelled to defend without counsel.
Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377.
Contrariwise, a myopic insistence upon expeditiousness in the face
of a justifiable request for delay can render the right to defend
27
with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3,
75 S.Ct. 1, 99 L.Ed. 4. There are no mechanical tests for deciding
when a denial of a continuance is so arbitrary as to violate due
process. The answer must be found in the circumstances present
in every case, particularly in the reasons presented to the trial
judge at the time the request is denied. Nilva v. United States,
352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Torres v. United States,
270 F.2d 252 (C.A.9th Cir.); cf. United States v. Arlen, 252 F.2d
491 (C.A.2d Cir.).”
{¶ 79} The Ohio Supreme Court has adopted a balancing test that
weighs against any potential prejudice to a defendant, concerns
such as the court’s right to control its own docket, and the public’s
interest in the prompt and efficient dispatch of justice. Unger,
67 Ohio St.2d at 67. In evaluating a motion for a continuance,
the court should consider: the length of the delay requested;
whether other continuances have been requested and received; the
inconvenience to litigants, witnesses, opposing counsel and the
court; whether the requested delay is for legitimate reasons or
whether it is dilatory, purposeful, or contrived; whether the
defendant contributed to the circumstances which give rise to the
request for a continuance; and other relevant factors, depending
on the unique facts of each case. Id. at 67-68.
{¶ 80} On February 12, 2008, the court ordered trial of this
28
case to commence on April 14, 2008. On February 20, 2008, the
trial court ordered the State to provide Defendant with a bill
of particulars, which the State filed on March 28, 2008, but which
Defendant did not receive until April 1, 2008. On April 4, 2008,
Defendant filed a motion to dismiss and/or continue the trial,
claiming that because of the State’s late filing of the bill of
particulars, Defendant needed more time to both file motions
raising new legal issues that arise as a result of the bill of
particulars and prepare for trial. That same day, April 4, 2008,
the State filed its response, a memorandum contra Defendant’s
motion to dismiss and/or continue the trial.
{¶ 81} The State argued that Defendant’s request for a
continuance, based upon the fact that the bill of particulars filed
by the State raised new legal issues and was merely a delaying
tactic, because Defendant had received essentially the same bill
of particulars on August 29, 2006, over a year before, during
the Union County proceedings, and Defendant at all times had open
access to the State’s entire file in this matter and therefore
knew the facts and issues in this case. On April 11, 2008, the
trial court filed its Entry denying Defendant’s request for a
continuance of the trial. On April 14, 2008, Defendant filed a
motion seeking reconsideration of the court’s previous ruling
denying a continuance. Just prior to the start of trial on April
29
14, 2008, Defendant again orally moved for a continuance of the
trial. After hearing the arguments of counsel, the trial court
again denied Defendant’s motion for a continuance.
{¶ 82} The principal reason for Defendant’s request for a
continuance was his claim that the bill of particulars filed in
2006 in the Union County proceedings had been found by that court
to lack specificity sufficient to fairly put Defendant on notice
of what conduct on his part constituted the criminal offense(s)
with which he was charged, and that the nearly identical bill of
particulars filed on March 28, 2008, in the Clark County
proceedings, suffered from the same deficiencies, because it failed
to provide specific dates, times, and places the offenses occurred,
and that those deficiencies had to be cured by a more specific
bill of particulars before Defendant could properly prepare his
defense. Simply stated, Defendant wanted a continuance to compel
a more specific bill of particulars.
{¶ 83} Although there is no indication that a previous
continuance had been sought by Defendant, the delay Defendant
sought was of unspecified length. The State argued that the trial
should not be delayed because the victims were prepared to go
forward, so they could move on with their lives. Furthermore,
as discussed in more detail in Defendant’s seventh assignment of
error, in addition to the bill of particulars filed on March 28,
30
2008, the State also filed an amended indictment and bill of
particulars on April 18, 2008, but was unable to provide an exact
date, time, and place for every offense because it did not possess
any more particular or specific information than that already
provided. In that regard, we note that the abuse of these children
involved a continuing course of conduct that occurred just about
every day, over a prolonged period of several years, when the
victims were young children. Moreover, Defendant has failed to
demonstrate how he was prejudiced by the bill of particulars.
{¶ 84} On these facts and circumstances, an abuse of discretion
on the part of the trial court in denying Defendant’s requested
continuance has not been demonstrated. Defendant’s sixth
assignment of error is overruled.
SEVENTH ASSIGNMENT OF ERROR
{¶ 85} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
FOR AN ORDER COMPELLING THE STATE TO PROVIDE A PROPER AND SPECIFIC
BILL OF PARTICULARS.”
{¶ 86} On March 28, 2008, two weeks before trial, the State
filed a bill of particulars in compliance with the trial court’s
previous order that a bill of particulars be filed. Defendant
complains that this bill of particulars filed by the State was
strikingly similar to the one the Union County Court of Common
Pleas found to be deficient. On the morning of trial, April 14,
31
2008, Defendant filed a motion to compel the State to file a proper
and more specific bill of particulars. The trial court addressed
the matter prior to the commencement of trial and overruled
Defendant’s motion. The court concluded that given the nature
of the alleged offenses, the State could not provide more specific
information.
{¶ 87} The offenses charged in this case involved the horrendous
physical abuse of five young children that occurred almost daily
over an extended period of time. The indictment filed on October
16, 2007, the bill of particulars filed on March 28,2008, and the
amended indictment and bill of particulars filed on April 18, 2008,
all specified that the offenses occurred during a four-year period
of time, from July 24, 2000 through November 19, 2004.
{¶ 88} Defendant was charged with multiple counts of
endangering children, R.C. 2919.22(B)(1)-(4), permitting child
abuse, R.C. 2903.15(A), and felonious assault, R.C. 2903.11(A)(1).
The precise date and time of the offenses are not essential
elements of those crimes. State v. Barnecut (1988), 44 Ohio App.3d
149. Thus, a certain degree of inexactitude in averring the date
of the offense is not per se impermissible or fatal to the
prosecution. State v. Sellards (1985), 17 Ohio St.3d 169; State
v. Lawrinson (1990), 49 Ohio St.3d 238.
{¶ 89} Nevertheless, where an accused requests a bill of
32
particulars, the State must supply specific dates and times for
the alleged offense if it possesses that information. Sellards,
supra. Furthermore, even if the State is unable to supply more
specific dates for the offenses charged because it does not possess
such information, the absence of specific dates may yet be fatal
to the prosecution if it results in material detriment to the
accused’s ability to fairly defend himself, as where the accused
asserts an alibi or claims that he was indisputably elsewhere during
part, but not all, of the interval specified. Sellards, supra.
{¶ 90} In many cases involving child abuse the victims are young
children who are simply unable to remember exact dates and times,
particularly where the crimes involve a repeated course of conduct
over an extended period of time. Barnecut, supra. That is the
case here. Furthermore, there is no evidence that the State knew
of any more specific dates for the offenses than those in the
indictment and bill of particulars. The State was simply unable
to supply specific dates when each of these many offenses occurred
because it did not have that information.
{¶ 91} The only remaining question is whether the State’s
inability to supply more specific dates and times for each of these
many offenses that occurred over a four-year period resulted in
material detriment to Defendant’s ability to defend himself.
Defendant claims in conclusory fashion that is the case, but fails
33
to identify how he was prejudiced by the lack of precise dates
and times. He claims only that it was strikingly similar to the
bill of particulars the Union County Common Pleas Court had found
deficient. That bare contention fails to demonstrate prejudice.
{¶ 92} Defendant’s defense at trial was not that he was
indisputably elsewhere during part, but not all, of the times
specified for when these offenses occurred. Instead, Defendant’s
defense was that the children’s stories about being abused were
grossly exaggerated and therefore lies, that they were induced
by leading questions and coaching by investigators, that
Defendant’s punishment of the children was proper parental
discipline, and that it was Defendant’s wife, Vonda Ferguson, not
Defendant, who abused the children. The inexactitude in supplying
dates and times that these offenses occurred would not be a material
detriment to Defendant’s ability to defend himself on those
theories. Barnecut. No violation of Defendant’s right to a fair
trial or due process has been demonstrated.
{¶ 93} Defendant’s seventh assignment of error is overruled.
EIGHTH ASSIGNMENT OF ERROR
{¶ 94} “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A
CUMULATIVE SIXTY-FIVE YEAR SENTENCE.”
{¶ 95} Defendant argues that the trial court abused its
34
discretion in sentencing him to a sixty-five year prison term,
which Defendant claims is excessive.
{¶ 96} In State v. Jeffrey Barker, Montgomery App. No. 22779,
2009-Ohio-3511, at ¶36-38, we wrote:
{¶ 97} “The trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is
not required to make any findings or give its reasons for imposing
maximum, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, at
paragraph 7 of the syllabus. Nevertheless, in exercising its
discretion the trial court must consider the statutory policies
that apply to every felony offense, including those set out in
R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio St.3d 54,
846 N.E.2d 1, 2006-Ohio-855, at ¶ 37.
{¶ 98} “When reviewing felony sentences, an appellate court
must first determine whether the sentencing court complied with
all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the
sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,
896 N.E.2d 124, 2008-Ohio-4912. If the sentence is not clearly
and convincingly contrary to law, the trial court's decision in
imposing the term of imprisonment must be reviewed under an abuse
of discretion standard. Id.35
{¶ 99} “‘The term “abuse of discretion” connotes more than an
error of law or judgment; it implies that the trial court's attitude
is unreasonable, arbitrary, or unconscionable.’ State v. Adams
(1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.”
{¶ 100} A review of the sentencing hearing demonstrates that
the trial court considered the presentence investigation report,
the purposes and principles of felony sentencing, R.C. 2929.11,
the seriousness and recidivism factors, R.C. 2929.12, statements
by all parties at sentencing, and the victim impact statements.
The court also informed Defendant about post-release control
requirements. Accordingly, the trial court complied with all
applicable rules and statutes in imposing its sentence.
Furthermore, although the eight-year prison terms imposed for the
endangering children and felonious assault counts and the five
year prison terms imposed for the permitting child abuse counts
were the maximum sentences allowed by law for felonies of the second
and third degrees, respectively, those terms are nevertheless
within the authorized range of available punishments. R.C.
2929.14(A)(2), (3). Defendant’s sentence is not clearly and
convincingly contrary to law. Kalish.
{¶ 101} In arguing that his sixty-five year prison term is
excessive and constitutes an abuse of the trial court’s discretion,
Defendant points out that he has no previous convictions, he has
36
lost his job at the Honda plant where he worked for twenty years,
he does not drink alcohol, smoke, or use drugs, and he is an
extremely religious man who often does volunteer work at his church.
As the trial court noted, however, Defendant’s conduct constitutes
multiple counts of child abuse involving horrific physical and
mental abuse and torture of his young children that occurred on
an almost daily basis for several years. That abuse resulted
in serious physical and psychological harm to Defendant’s children.
R.C. 2929.12(B)(2). Defendant’s relationship with the victims,
their parent, facilitated the offense. R.C. 2929.12(B)(6).
There are no grounds that mitigate the seriousness of Defendant’s
conduct. Accordingly, Defendant’s conduct constitutes the worst
form of the offense. Furthermore, although Defendant has no prior
criminal record and was a law abiding citizen for many years,
Defendant shows no genuine remorse. R.C. 2929.12(D)(5). A
minimum prison term would demean the seriousness of these offenses.
{¶ 102} Although the trial court imposed the maximum sentence
allowable for each offense, it ran some sentences concurrently
and others consecutively for a total sentence of sixty-five years.
The record before us justifies the sentence imposed on Defendant.
No abuse of discretion on the part of the trial court is
demonstrated.
{¶ 103} Defendant’s eighth assignment of error is overruled.
37
NINTH ASSIGNMENT OF ERROR
{¶ 104} “THE TRIAL COURT ERRED IN NOT MAKING A COMPLETE RULING
ON THE ISSUE OF COURT COSTS AND RESTITUTION.”
{¶ 105} In his ninth and final assignment of error, Defendant
argues only one issue with respect to the imposition of court costs
and restitution: that the trial court’s original June 10, 2008
Judgment Entry of Conviction did not constitute a final, appealable
order because it did not include court costs and instead indicated
that issue was still before the court and would be set for a hearing
at a later date. In its brief, the State agreed with Defendant
that the trial court’s Judgment Entry of Conviction is not a final,
appealable order because it did not include the costs of
prosecution, and requested that we remand the matter to the trial
court to calculate and impose court costs.
{¶ 106} In our Decision and Entry filed on July 14, 2010, we
concluded that because the record in this case demonstrates that
when the trial court filed its Judgment Entry of Conviction it
clearly intended to impose court costs but deferred determination
of the amount of those costs, the court’s failure to calculate
and include court costs in its Judgment Entry of Conviction
constitutes a clerical error that may be corrected per Crim.R.
36, and does not render the Judgment Entry of Conviction non-final.
We remanded the matter to the trial court to determine the amount
38
of court costs and restitution, if any, Defendant must pay, and
include those matters in its Judgment Entry of Conviction. On
October 28, 2010, the trial court filed its Amended Judgment Entry
of Conviction wherein it reimposed the same terms of imprisonment
upon Defendant and ordered Defendant to pay costs of the prosecution
in the amount of $20,681.92, but declined to order any restitution
due to the length of Defendant’s sentence and his financial state.
The court also ordered Defendant to pay additional court costs
in the amount of $9,786.49.
{¶ 107} No notice of appeal has been filed by either party from
the trial court’s October 28, 2010 Amended Judgment Entry of
Conviction, and neither party has filed a supplemental brief
challenging the amount of costs imposed by the trial court in this
case, or the trial courts’ refusal to order restitution.
Accordingly, Defendant’s finality argument in this assignment of
error has become moot by virtue of the trial court’s October 28,
2010 Amended Judgment Entry of Conviction. There being no other
issue raised relevant to court costs or restitution, Defendant’s
ninth assignment of error is overruled.
{¶ 108} The judgment of the trial court will be affirmed.
FROELICH, J., concurs
BROGAN, J. concurring separately.
39
(Hon. James A. Brogan, retired from the Second District Court
of Appeals, sitting by assignment of the Chief Justice of
the Supreme Court of Ohio.)
BROGAN, J., concurring:
{¶ 109} I concur in the well-reasoned opinion of Judge Grady
in all respects except whether the court’s judgment entry of July
14, 2010 was a final appealable order. In State v. Threatt, 108
Ohio St.3d 277, 2006-Ohio-905, the Ohio Supreme Court held that
a sentencing entry is a final appealable order as to costs. Justice
Stratton writes in pertinent part the following:
{¶ 110} “ ‘A judgment that leaves issues unresolved and
contemplates that further action must be taken is not a final
appealable order.’ Bell v. Horton (2001), 142 Ohio App.3d 694,
696, 756 N.E.2d 1241. For example, an order that determines
liability but defers the determination of damages is not a final
appealable order, because it does not in effect determine the action
and prevent a judgment or otherwise meet the definition in R.C.
2505.02(B)(1). State ex rel. A&D Ltd. Partnership v. Keefe (1996),
77 Ohio St.3d 50, 53, 671 N.E.2d 13. However, when the remaining
issue ‘is mechanical and unlikely to produce a second appeal because
only a ministerial task similar to asserting costs remains,’ then
the order is final and appealable. (Emphasis added.) State ex
40
rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d
543, 546, 684 N.E.2d 72.
{¶ 111} “Pursuant to R.C. 2947.23, it is undisputed that trial
courts have authority to assess costs against convicted criminal
defendants. When a court assesses unspecified costs, the only
issue to be resolved is the calculation of those costs and creation
of the bill. Calculating a bill for the costs in a criminal case
is merely a ministerial task. Therefore, we hold that failing
to specify the amount of costs assessed in a sentencing entry does
not defeat the finality of the sentencing entry as to costs. See
State v. Slater, Scioto App. No. 01CA2806, 2002-Ohio-5343, 2002
WL 31194337, ¶ 5, fn. 3.”
{¶ 112} More than two years before the court imposed the
sentence upon Ferguson, the State filed a motion to certify the
costs of prosecution as “court costs” under R.C. 2947.23. There
is a dispute in Ohio appellate courts whether the “costs of
prosecution” provision in R.C. 2947.23 includes special prosecutor
fees. See State v. Sales (Aug. 6, 1985), Carroll App. No. 504
and State v. Perz (May 16, 2008), Lucas App. No. L-07-1330. See
also State v. Noe (December 31, 2009), Lucas App. No. 06-1393,
L-09-1193. Certainly this issue is not mechanical and unlikely
to produce a second appeal because it is a “ministerial” task such
as calculating a bill for costs as performed by court clerks.
41
{¶ 113} I therefore believe the July 14, 2010 judgment entry
was not a final appealable order because it required the trial
court to determine the threshold question of whether the special
prosecutor fees were costs as encompassed by R.C. 2947.23. The
court’s order did not involve a “clerical error” as contemplated
by Crim.R. 36. The trial court clearly intended to address that
legal issue at a later date. Therefore, Ferguson’s first appeal
should have been treated as a premature appeal until the court
finally resolved all legal issues before it including the issue
of special prosecutor fees as costs. After the court determined
that issue upon remand, the appeal was in a final appealable
posture. Since Ferguson did not challenge this Court’s costs award
upon remand, I would affirm the trial court’s judgment in all
respects.
. . . . . . . . .
Copies mailed to:
David W. Phillips, Esq.
David R. Miles, Esq.
Hon. Richard J. O’Neill