[Cite as State v. Rocha, 2014-Ohio-495.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99826




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     ARTHUR ROCHA
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-568953

        BEFORE: E.T. Gallagher, J., Boyle, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: February 13, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Defendant-appellant, Arthur Rocha (“Rocha”), appeals three convictions.

We find no merit to the appeal and affirm.

      {¶2} Rocha was charged with various offenses in two separate cases: CR-568920

and CR-568953.1 The indictments in these cases, which were joined for trial, charged

Rocha with two counts of aggravated burglary, aggravated menacing, intimidation of a

crime victim, criminal damaging, and drug possession.

      {¶3} The victim, Floyd Samples (“Samples”), testified at trial that Rocha visited

his mentally disabled roommate at their house in Cleveland a few times over a period of

years. However, because Rocha would “get an attitude” while visiting, Samples stopped

inviting him into the house.        Rocha came to Samples’s house unannounced

approximately six times, and Samples refused to let him in. During these times, Rocha

banged on the door and windows and yelled threats.

      {¶4} On July 27, 2012, Rocha came to Samples’s front door and Samples

instructed him to leave the property. Rocha “started cussing” and “kicked the door in.”

Rocha was holding a knife with a three-to four-inch blade when he came through the

door, and Samples called the police, but Rocha left the house before they arrived.




      1   CR-568920 contains the superseding indictment for CR-565669.
CR-568953, which is the instant case, contains the superseding indictment in
CR-565296. CR-565296 and CR-565669 were dismissed when trial commenced in
CR-568953.
Samples described Rocha’s appearance and location to the police who apprehended him

within minutes.

       {¶5} The police transported Rocha to Samples’s house, and Samples identified him

as the man who broke into his house and threatened him. In the presence of Officers

John Romoga (“Romoga”), Anthony Tatum (“Tatum”), and other officers of the

Cleveland Police Department, Rocha screamed the following threats at Samples: “I’ll get

you for calling the cops, you fucking bitch, cop-snitching bitch,” and “You cop-snitching

bitch, I’ll be back for you.” According to Tatum, after being told to quiet down, Rocha

screamed: “You’re all going to find him with broken arms, legs, and mouth.”

       {¶6} Prior to the conclusion of trial, the state dismissed the drug possession

charge. The jury found Rocha not guilty of the two burglary charges but guilty of

aggravated menacing, intimidation of a crime victim, and criminal damaging. The court

sentenced Rocha to three years in prison for intimidation of a crime witness, a

third-degree felony, to be served concurrently with jail sentences of 180 days on the other

two counts. Rocha now appeals and raises two assignments of error.

                  Ineffective Assistance of Counsel and Speedy Trial

       {¶7} In the first assignment of error, Rocha contends he was denied his

constitutional right to the effective assistance of counsel. He contends that had his trial

counsel not delayed in responding to the state’s discovery requests, which tolled speedy

trial time, the charges against him would have been dismissed on speedy trial grounds.
       {¶8} To prevail on a claim of ineffective assistance, the defendant must establish

that counsel’s performance was deficient and that the defendant was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

Counsel will only be considered deficient if his or her conduct fell below an objective

standard of reasonableness. Strickland at ¶ 688.

       {¶9} When reviewing counsel’s performance, an appellate court must be highly

deferential and “must indulge a strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.” Strickland at 689. To establish

resulting prejudice, a defendant must show that the outcome of the proceedings would

have been different but for counsel’s deficient performance. Id. at 694.

       {¶10} Under R.C. 2945.71(C)(2), the state is required to bring a defendant to trial

on felony charges within 270 days of arrest.         State v. Taylor, 98 Ohio St.3d 27,

2002-Ohio-7017, 781 N.E.2d 72, ¶ 31-32. Under the “triple count provision” contained

in R.C. 2945.71(E), each day a defendant is held in jail in lieu of bail counts as three days

in the speedy trial time calculation. Id. Thus, a defendant held in jail without bail

pending a felony charge, must be tried within 90 days. Speedy trial time may be tolled

by certain events delineated in R.C. 2945.72, including continuances at the defendant’s

request and where the defendant causes delay. R.C. 2945.72(D) and (H).

       {¶11} Rocha argues that defense counsel’s delay in responding to the state’s

discovery requests beyond 30 days tolled the speedy trial clock for an unreasonable period
of time.   He contends that if counsel had responded to discovery in a more timely

fashion, speedy trial time would have expired before trial, and Rocha would have been

discharged.   However, a trial court has an inherent right to control its own docket and

trial schedule.   State v. Powell, 49 Ohio St.3d 255, 259, 552 N.E.2d 191 (1990).

Rocha’s argument assumes the trial court would not have rescheduled the trial within the

speedy trial period to prevent the expiration of speedy trial time if the time had not been

tolled by defense counsel’s delay. This argument is based on pure speculation.          We

therefore cannot say there was a strong probability that but for counsel’s delay, the

outcome would have been different.

       {¶12} The first assignment of error is overruled.

                               Sufficiency of the Evidence

       {¶13} In the second assignment of error, Rocha argues the evidence adduced at

trial is insufficient to sustain his intimidation of a crime victim conviction. He contends

Rocha’s threatening statements cannot establish that he had the “specific intent to alter

the victim’s conduct in relation to reporting or prosecuting the crime.”

       {¶14} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is

insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency

requires a determination of whether the prosecution met its burden of production at trial.

State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶15} R.C. 2921.04(B) states, in relevant part:

       No person, knowingly and by force or by unlawful threat of harm to any
       person or property or by unlawful threat to commit any offense or calumny
       against any person, shall attempt to influence, intimidate, or hinder * * *
       [t]he victim of a crime or delinquent act in the filing or prosecution of
       criminal charges.

(Emphasis added.) The term “hindering” suggests an intent to prevent the victim from

reporting a crime or following through with criminal prosecution.      However, the statute

also prohibits one from attempting to influence the victim and from threatening a victim,

regardless of an intent to hinder the victim.       The General Assembly’s use of the

disjunctive “or,” as opposed to the conjunctive “and,” indicates the legislature intended

the three prohibited acts to be read separately from each other. Columbia Gas Transm.

Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 20 (holding that

legislative use of disjunctive “or,” as opposed to the conjunctive “and,” indicates that the

classifications are intended to be read separately from each other.)

       {¶16} Thus, despite Rocha’s argument to the contrary, proof of “specific intent to

alter the victim’s conduct in relation to reporting or prosecuting the crime” is not

necessarily required under R.C. 2921.04(B). Proof of threats made to the victim with

intent to punish the victim for reporting the crime is sufficient.      The deterrence of

retaliatory threats is just as important in the promotion of crime reporting as protecting

the victim who has not yet reported a crime.
       {¶17} In this case, Rocha concedes that he made threats of serious physical harm

to the victim. According to Samples, Romoga, and Tatum, Rocha threatened: “I’ll get

you for calling the cops, you fucking bitch, cop-snitching bitch” and “You cop-snitching

bitch, I’ll be back for you.” After being told to quiet down, Rocha screamed: “You’re all

going to find him with broken arms, legs, and mouth.” Rocha’s threats were evidently

made to punish Samples for reporting the crime because he called the police. Therefore,

viewing the evidence in a light most favorable to the state, we find there is sufficient

evidence to sustain Rocha’s intimidation of a crime victim conviction.

       {¶18} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the common

pleas court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
