State v. High

• Decision Date: 24 January 2001
• Docket Number: No. 98-C.A.-119.,98-C.A.-119.
• Citation: 757 NE 2d 1176,143 Ohio App.3d 232
• Parties: The STATE of Ohio, Appellee, v. HIGH, Appellant.
• Court: Ohio Court of Appeals

143 Ohio App.3d 232

757 NE 2d 1176

The STATE of Ohio, Appellee, v. HIGH, Appellant.

No. 98-C.A.-119.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided January 24, 2001.

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Paul J. Gains, Mahoning County Prosecuting Attorney, and Deena R. Calabrese, Assistant Prosecuting Attorney, for appellee.

Dennis A. DiMartino, for appellant.

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WAITE, Judge.

This timely appeal arises from the conviction of appellant, Jessie High, in the Court of Common Pleas of Mahoning County on the rape of his twelve-year-old daughter, H.D., and his subsequent designation as a sexual predator. For the following reasons, we affirm the judgment and sentence of the trial court.

On May 14, 1997, twelve-year-old H.D. arrived home from school at 2:30 p.m. She lived with her mother on the north side of Youngstown. Thirty minutes later appellant, H.D.'s forty-nine-year-old father, arrived at her home on a motorcycle and drove her to the home of his ex-girlfriend Loretta Wells. Appellant lived in Wells's apartment at some time in the past and had never returned the keys. Ms. Wells was not home at the time. H.D. watched television in the living room and appellant was in the bedroom when appellant asked H.D. to bring him a bottle of wine. When H.D. did so, appellant asked her to get on the bed. H.D. refused and a struggle ensued wherein appellant pushed her on the bed and told her to pull down her pants. He threatened to kill her if she did not comply but she still refused. Appellant struck H.D. in her face and on the head before pulling down her clothing, putting a pillow over her head and proceeding with vaginal intercourse.

After the assault, appellant took H.D. to the home of her aunt, Darnell Brown, who drove H.D. home. When she arrived home, H.D. told her mother what had happened. Her mother immediately took H.D. to Tod Children's Hospital. Dr. Adarsh Gupta examined H.D. and found that she was sensitive to the touch around the head and face and that there was a milky white substance in and around her vaginal area. An immediate urinalysis indicated the presence of semen. Dr. Gupta collected evidence using a standard rape kit.

On June 6, 1997, the Mahoning County Grand Jury indicted appellant on one count of rape of a person less than thirteen years old, in violation of R.C. 2907.02(A)(1)(b), with a force specification pursuant to R.C. 2907.02(B).

Appellant was arrested on July 24, 1997, and arraigned on July 29, 1997. Bond was set at $200,000 and he remained in jail in lieu of bond from the day he was arrested until the day of his trial.

In early August 1997, an October 1, 1997 trial date was set. On September 12, 1997, appellant signed a consent to search form, agreeing to the collection and removal of saliva samples for scientific testing. This form was filed with the court on September 15, 1997. Also on September 15, 1997, appellee filed a motion to continue trial for the reason that laboratory test results were not expected to be returned by October 1, 1997, the scheduled date of trial. On September 19, 1997, the trial court filed a judgment entry granting appellee's motion to continue and resetting the trial date for November 3, 1997.

The record does not establish on what date appellee may have received the results of the saliva tests, although there is indication in the record that the lab itself obtained these on or about September 18, 1997. On October 28, 1997, appellee delivered evidence to appellant, including the results of the saliva tests, in the normal course of discovery. Results indicated that appellant could not be excluded as the source of the semen found in H.D. On October 31, 1997, appellant filed a motion for testing, seeking to have the court order DNA tests to determine the source of the semen found in H.D. On November 5, 1997, the court sustained the motion to conduct DNA tests and reset trial for November 19, 1997.

On November 19, 1997, appellant filed a motion for continuance so that the DNA test results could be returned. On November 24, 1997, the trial court filed a judgment entry granting appellant's motion for continuance and resetting trial for December 10, 1997.

On December 9, 1997, appellant's original trial counsel filed a motion to withdraw as court-appointed counsel.

On December 10, 1997, the court filed a judgment entry postponing trial until January 14, 1998, stating that DNA testing was not completed and that there was a pending motion to withdraw. On January 6, 1998, the court sustained the motion to withdraw and appointed new counsel.

On January 14, 1998, the court filed a judgment entry postponing trial to January 28, 1998, due to the court's engagement in the case of State v. Willie Herring, but on that date the trial was again postponed due to the Herring matter and trial was reset for February 9, 1998.

On the day of trial, February 9, 1998, appellant filed a motion to dismiss, alleging a violation of his speedy trial rights. A hearing was held on the motion which the court denied by judgment entry on February 11, 1998. In this entry, the judge reasoned that appellant had consented to the collection and removal of saliva samples, which necessitated the delay until November 3, 1997, and that appellant had initiated all of the other delays.

After a three-day trial, a jury found appellant guilty of the rape of H.D. and found a force specification. On April 2, 1998, the trial court held a combined sentencing and sexual predator determination hearing. On April 6, 1998, the court filed its judgment entry, finding that appellant was a sexual predator pursuant to R.C. 2950.09 and sentencing appellant to life in prison as required by R.C. 2907.02(B). On April 14, 1998, appellant filed his notice of appeal.

Appellant's first assignment of error alleges:

"Defendant-appellant was denied his right to a speedy trial in violation of the Ohio speedy trial statute, the Ohio Constitution, Section 10, Article I, and the Sixth Amendment to the United States Constitution."

Appellant argues that he was not tried within the time specified by Ohio's speedy trial statute, R.C. 2945.71. He contends that he did not expressly or implicitly waive his right to speedy trial at any time during the proceedings. Appellant also argues that the journal entry granting a continuance and extending speedy trial time was deficient, as it lacked sufficient explanation of the reason for the continuance. Appellant further contends that a trial court cannot extend speedy trial time by a journal entry filed after the expiration of the statutory time limit.

Appellee responds that R.C. 2945.72(E) allows the time period for a case to be brought to trial to be extended for "any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused." Appellee argues that when appellant signed the September 15, 1997 motion to consent to search for purposes of collecting and testing his saliva, he implicitly consented to allow enough time for the test results to be returned. Appellee argues that the saliva tests might have exonerated appellant and therefore that he had as much an interest in the outcome of those tests as did the state. Appellee maintains that the signing of the consent form was an act done by appellant that necessitated a period of delay. Based on the record before us, we hold that appellant's assignment of error lacks merit.

Contrary to the tone of appellant's brief and his oral argument, this matter does not involve a question of waiver of the right to speedy trial. This appeal presents us with a question of the permissible extension of the speedy trial time. Our standard of review of a speedy trial issue is to count the days of delay chargeable to either side and determine whether the case was tried within the time limits set by R.C. 2945.71. Oregon v. Kohne (1997), 117 Ohio App.3d 179, 180, 690 N.E.2d 66, 67; State v. DePue (1994), 96 Ohio App.3d 513, 516, 645 N.E.2d 745, 746-747. Our review of the trial court's decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixed question of law and fact. State v: McDonald (June 30, 1999), Mahoning App. Nos. 97 C.A. 146 and 97 C.A. 148, unreported, 1999 WL 476253. Due deference must be given to the trial court's findings of fact if supported by competent, credible evidence. Id. However, we must independently review whether the trial court properly applied the law to the facts of the case. Id. Furthermore, when reviewing the legal issues presented in a speedy trial claim, an appellate court must strictly construe the relevant statutes against the state. Id., citing Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706, 708-709.

In the present case, appellant was arrested on July 24, 1997, and held in lieu of $200,000 bond. Pursuant to R.C. 2945.71(E), Appellant was to be tried by October 22, 1997. However, as appellee notes, R.C. 2945.72 provides:

"The time within which an accused must be brought to trial * * * may be extended only by the following:

"* * *

"(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;

"* * *

"(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 * * *." (Emphasis added.)

It is obvious that the timeliness of appellant's trial hinges on the continuance granted pursuant to the state's motion for testing. That continuance extended the trial date to November 3, 1997, eleven days past the technical trial deadline....