State v. Masters
| Decision Date | 20 August 2007 |
| Docket Number | No. 3-06-20.,3-06-20. |
| Citation | 876 N.E.2d 1007,2007 Ohio 4229,172 Ohio App.3d 666 |
| Parties | The STATE of Ohio, Appellee, v. MASTERS, Appellant. |
| Court | Ohio Court of Appeals |
Stanley E. Flegm, Crawford County Prosecuting Attorney, and Clifford Murphy, Assistant Prosecuting Attorney, for appellee.
Patrick T. Murphy, Painesville, for appellant.
{¶ 1} Defendant-appellant Scott Masters appeals from the October 24, 2006 judgment entry of the Court of Common Pleas, Crawford County, sentencing him to two years in prison for his conviction of felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1).
{¶ 2} This matter stems from events of April 20, 2005, in Crawford County. On this date, Masters went to the home of his friend, Larry Whittington, after receiving information from his wife that she and Larry had had an affair approximately 20 years ago. When Masters arrived at Larry's home, he became upset, lost his composure, and struck Larry in the face.
{¶ 3} On May 10, 2005, the Crawford County Grand Jury indicted Masters on one count of felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(1). On May 13, 2005, Masters appeared for his arraignment and entered a plea of not guilty. Masters was released on bond with the restriction that he have no contact with the victim.
{¶ 4} On September 28, 2005, the trial court entered a pretrial scheduling order and set this matter for a January 12, 2006 jury trial.1 However, on January 5, 2006, Masters filed a motion requesting a continuance of the trial date. In his motion, Masters stated that the prosecutor joined in this request so as to allow the parties to pursue the possibility of resolving this matter without a trial. Masters also advised the court in the motion, "Defendant waives time herein." The trial court granted Masters's request for a continuance and ordered that the trial be reassigned by the court's assignment commissioner. Although this matter was initially reset for trial on May 4, 2006, the trial was subsequently continued to September 7, 2006.
{¶ 5} On June 27, 2006, Masters filed a motion to dismiss the indictment and all charges against him, alleging that he had been denied his right to a speedy trial. This motion was denied by the trial court on June 30, 2006.
{¶ 6} On September 1, 2006 Masters filed a jury-trial waiver. Accordingly, this matter proceeded to a trial to the court on September 7, 2006. At the close of evidence, the court found Masters guilty of felonious assault. On October 23, 2006, the trial court conducted Masters's sentencing hearing and sentenced him to two years in prison for his conviction. The trial court also ordered Masters to pay restitution in the amount of $1,253.62.
{¶ 7} Masters now appeals, asserting five assignments of error.
The trial court committed plain and reversible [sic] in it's [sic] failure to dismiss the case as the defendant was not afforded his right to a speedy trial as guaranteed by Section 2945.71 of the Ohio Revised Code, Article I Section 10 of the Ohio Constitution, and the 6th and 14th Amendments to the United States Constitution.
The trial court committed plain and reversible error when over objection the trial court allowed lay witnesses to testify without foundation, knowledge and expertise to an essential element of the offense that involved medical diagnosis and prognosis.
The trial court committed plain and reversible error when it convicted the defendant of felonious assault in violation of Section 2903.11 of the Revised Code when there was no competent evidence of serious physical harm.
The trial court committed reversible error by failing to grant a Rule 29 motion to acquit at the conclusion of the states [sic] case as again argued after the conclusion of all the evidence on the grounds there was no competent evidence to suport [sic] a conviction of feloneous [sic] assault.
The verdict was unsupported by and against the manifest weight of the evidence.
{¶ 8} In his first assignment of error, Masters argues that the trial court erred in failing to dismiss this case when Masters was not afforded his right to a speedy trial pursuant to the Ohio and United States Constitutions and R.C. 2945.71.
{¶ 9} Both the United States and Ohio Constitutions guarantee a criminal defendant the right to a speedy trial. State v. Baker (1997), 78 Ohio St.3d 108, 110, 676 N.E.2d 883. Additionally, R.C. 2945.71 through 2945.73 provide specific time requirements in which the state must bring an accused to trial. Id. The Ohio speedy-trial statute is mandatory and constitutional and must be construed strictly against the state. State v. Steinke, 158 Ohio App.3d 241, 2004-Ohio-1201, 814 N.E.2d 1230, ¶ 5, citing State v. Singer (1977), 50 Ohio St.2d 103, 4 O.O.3d 237, 362 N.E.2d 1216. Pursuant to R.C. 2945.71(C)(2), a person against whom a felony charge is pending must be brought to trial within 270 days from the date of his arrest, not including the date of his arrest. State v. Davenport, 12th Dist. No. CA2005-01-005, 2005-Ohio-6686, 2005 WL 3454876, ¶ 7, citing Baker, 78 Ohio St.3d at 110, 676 N.E.2d 883. R.C. 2945.71(E), known as the "triple count provision" states that when an accused is held in jail in lieu of bail on the pending charge, each day shall be counted as three days. Id.
{¶ 10} Once a criminal defendant shows that he was not brought to trial within the permissible period, the accused presents a prima facie case for release. State v. Steinke, 158 Ohio App.3d 241, 2004-Ohio-1201, 814 N.E.2d 1230, ¶ 5, citing State v. Caudill (Dec. 2, 1998), 3d Dist. No. 05-97-35, 1998 WL 833729; see, also, State v. Howard (1992), 79 Ohio App.3d 705, 707, 607 N.E.2d 1121. At that point, the burden shifts to the state to demonstrate that sufficient time was tolled or extended under the statute. State v. Butcher (1986), 27 Ohio St.3d 28, 31, 27 OBR 445, 500 N.E.2d 1368. Furthermore, a defendant's right to a speedy trial may be waived provided that such waiver is either expressed in writing or made in open court on the record. State v. King (1994), 70 Ohio St.3d 158, 637 N.E.2d 903, syllabus.
{¶ 11} Appellate review of speedy-trial issues involves a mixed question of law and fact. State v. High (2001), 143 Ohio App.3d 232, 242, 757 N.E.2d 1176. A reviewing court must give due deference to the trial court's findings of fact if they are supported by competent, credible evidence, but will independently review whether the trial court correctly applied the law to the facts of the case. Id.
{¶ 12} Our review of the record reveals that Masters was arrested on May 13, 2005. Time starts to run from the date of the arrest; however, the day of the arrest itself is not counted when computing the statutory time period. State v. Stewart (Sept. 21, 1998), 12th Dist. No. CA98-03-021, 1998 WL 640909. Therefore, the first date that counts for Masters's speedy-trial purposes is May 14, 2005.2
{¶ 13} On January 5, 2006, Masters requested a continuance of the January 12, 2006 trial date, which was granted by the trial court. Masters's motion for continuance also stated, "Defendant waives time herein." A defendant's motion for a continuance will toll the speedy-trial time period. R.C. 2945.72(H). Accordingly, in this case, the speedy-trial time period was tolled on January 5, 2006. Therefore, from May 14, 2005, to January 5, 2006, 237 days had elapsed for speedy trial purposes.
{¶ 14} On February 15, 2006, the trial court entered a second pretrial scheduling order and reset this matter for a jury trial on May 4, 2006. This order contained the exact language regarding continuances or substitution of counsel with the time-waiver provision as the court's September 28, 2005 pretrial scheduling order: (Emphasis added.)
{¶ 15} Therefore, the time between Masters's filing his motion for a continuance on January 5, 2006, and the May 4, 2006 jury trial date set by the court equals 119 days. This time is charged to Masters for speedy-trial purposes and tolls the calculation of the speedy-trial time.
{¶ 16} However, on April 12, 2006, the court's assignment commissioner sent notice to the parties advising them that the jury trial set for May 4, 2006, had been cancelled but that the matter had been rescheduled for a 15-minute hearing on that date.3 At the May 4, 2006 hearing, the parties advised the court of their proposed negotiated plea and recommended sentence. However, the court advised the parties that the proposal would not be approved. On the same day, the trial court issued an order continuing this matter and resetting it for a jury trial on September 7, 2006.
{¶ 17} We note that the trial court's May 4, 2006 order of continuance and pretrial scheduling order contained the exact same language regarding continuances or substitution of counsel with the time-waiver provision as contained in the September 28, 2005, and February 15, 2006 pretrial scheduling orders: (Emphasis added.)
{¶ 18} On June 27, 2006, Masters filed a motion to dismiss, requesting that the court dismiss the indictment and all charges against him, because he had been denied his right to a speedy trial. Specifically, Masters argued that he did not cause the delay that caused this matter to be set for trial outside of the 270-day requirement.
{¶ 19} The trial court denied Masters's motion to dismiss and found that...
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