[Cite as State v. Boone, 2012-Ohio-3142.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26104

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
WILLIE L. BOONE                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 10 09 2627

                                 DECISION AND JOURNAL ENTRY

Dated: July 11, 2012



        BELFANCE, Judge.

        {¶1}     Willie Boone appeals his convictions for robbery, resisting arrest, and escape.

For the reasons set forth below, we affirm.

                                                I.

        {¶2}     A man wearing a wig entered a bank and demanded money from a clerk. An off-

duty Akron police officer who was working security at the bank approached the man from

behind and ordered him to the ground. The robber lay down on the floor but, before the officer

could handcuff him, he attempted to run away. The officer grabbed the robber and a scuffle

ensued. The robber managed to escape, jumping into the passenger seat of a SUV waiting

outside the bank, but he left his wig behind.

        {¶3}     The police investigation led them to Mr. Boone, who could not be ruled out as a

contributor to genetic materials discovered in the wig. Mr. Boone was indicted on two counts of

robbery and one count of resisting arrest. Via supplemental indictment, Mr. Boone was also
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indicted for an additional count of robbery and for escape. The State dismissed the first robbery

count, and the remaining counts were renumbered.

       {¶4}    The jury acquitted Mr. Boone of one of the robbery charges but found him guilty

of the remaining charges. The trial court sentenced Mr. Boone to an aggregate term of eight

years, and he has appealed.

                                               II.

                                 ARRAIGNMENT PROCEDURE

       {¶5}    Though it is clear that Mr. Boone believes his arraignment was improper, his

argument is unclear. He appears to suggest that, when he first appeared before the magistrate, he

was not properly arraigned because the indictment was not read aloud to him and he did not enter

a plea. Mr. Boone also argues that his Sixth Amendment right to counsel was violated because

counsel was not appointed prior to his initial appearance in court. He argues that, had counsel

been appointed prior to his arraignment, he would have been able to preserve the defectiveness

of the arraignment for appeal.

       {¶6}    Crim.R. 10(A) provides:

       Arraignment shall be conducted in open court, and shall consist of reading the
       indictment, information or complaint to the defendant, or stating to the defendant
       the substance of the charge, and calling on the defendant to plead thereto. The
       defendant may in open court waive the reading of the indictment, information, or
       complaint. The defendant shall be given a copy of the indictment, information, or
       complaint, or shall acknowledge receipt thereof, before being called upon to
       plead.

       {¶7}    While it appears from the transcript that the magistrate did not read the indictment

aloud to Mr. Boone, the magistrate entered a not guilty plea for him and informed him that he

could change that plea at the first pretrial hearing, by which time an attorney would have been

appointed to represent him. However, there is no transcript, or an appropriate substitute, of that
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pretrial hearing, and, in light of an incomplete record, we must presume regularity in the

proceedings below. State v. Morris, 9th Dist. No. 25519, 2011-Ohio-6594, ¶ 5.

       {¶8}    Nevertheless, based on the record on appeal, it appears that Mr. Boone forfeited

his arguments. Mr. Boone acknowledges that he appeared at the first pretrial with counsel and

that he did not object to the arraignment proceedings. A defendant who is represented by

counsel, pleads not guilty, and proceeds to trial without objection forfeits objections to errors in

his arraignment on appeal. State v. McIntyre, 9th Dist. Nos. 24934, 24945, 2012-Ohio-1173, ¶ 5.

After about a month of being represented by counsel, Mr. Boone proceeded pro se throughout

the rest of the pretrial period before being represented by counsel during his trial. At no point

did Mr. Boone raise the arguments he now makes on appeal. Furthermore, when Mr. Boone

objected to his arraignment proceedings on a different basis, the trial court remarked that it

believed Mr. Boone’s attorney had waived service and the reading of the indictment at the first

pretrial hearing. Therefore, while we must presume regularity given the limited record on

appeal, see Morris at ¶ 5, the record available to us indicates that Mr. Boone forfeited the

arguments he now makes through his actions and the actions of his counsel subsequent to Mr.

Boone’s initial appearance before the magistrate.

       {¶9}    Mr. Boone does argue that he preserved these arguments for review, pointing to

his motion to dismiss the indictment as well as his statements to the trial court prior to his trial.

However, the arguments Mr. Boone now makes on appeal are different from the ones he made to

the trial court, where he argued that, before he could be indicted by the grand jury, he had to be

arraigned in a municipal court. He also argued that the prosecution should have served him with

the indictment when he was being held in Lorain County Jail instead of waiting until he was
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transferred to Summit County. However, on appeal he now argues that he was not properly

arraigned when he first appeared before the magistrate.

       {¶10} Mr. Boone appeared with counsel before the trial court and a not guilty plea to the

charges was entered into the record. At no point in the proceedings did Mr. Boone raise an

objection to his arraignment on the basis that the indictment had not been read aloud. Given the

record before us, it appears that Mr. Boone waived the reading of the indictment aloud, see

Hamilton v. Brown, 1 Ohio App.3d 165, 168 (12th Dist.1981), and, regardless, appears to have

forfeited the argument he now makes by not raising it below. Furthermore, the record is

incomplete, and we are compelled to presume regularity. Morris, 2011-Ohio-6594, at ¶ 5.

Accordingly, we must conclude that Mr. Boone has failed to demonstrate any reversible error

with respect to his arraignment.

                                            ESCAPE

       {¶11} Mr. Boone argues that his conviction for escape, which required a finding that he

had been arrested for committing a felony of the first or second degree, was inconsistent with the

jury acquitting him of second-degree robbery. However, consistency between verdicts is not

required, and a conviction may not be disturbed solely because it is inconsistent with another

verdict. State v. Zander, 9th Dist. No. 24706, 2010-Ohio-631, ¶ 57. See also United States v.

Powell, 469 U.S. 57, 65 (1984); State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 81.

Mr. Boone’s argument is without merit.

                                       DNA EVIDENCE

       {¶12}    Mr. Boone argues that the trial court should not have allowed the State’s expert

to testify about her findings regarding the DNA found on the robber’s wig because he had not

been provided funds to have the samples independently analyzed. He also suggests that the
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expert’s testimony was unduly prejudicial because it was based on a “proven questionable

scientific method * * *.”

       {¶13} However, Mr. Boone does not actually point to any evidence in the record that

would support the conclusion that the State’s expert used a questionable method to analyze the

DNA samples. See App.R. 16(A)(7). Instead, he makes vague assertions without any citations

to any authority. For example, he asserts that “[i]t is commonly known that it is misleading to

talk of DNA profiling as ‘genetic fingerprinting[.]’” He also claims that “[t]he use of match

probabilities has been criticized on the basis that jurors, as ordinary members of the community,

generally do not understand probabilities * * *.” In the absence of any evidence in the record

that would call the validity of the State’s expert’s testimony into doubt, Mr. Boone’s challenge to

the method used by the State’s expert would be more properly raised in a postconviction

proceeding where new evidence could be admitted than on appeal.

       {¶14} Regarding Mr. Boone’s contention that he should have been given funds to

conduct an independent analysis of the DNA evidence, an indigent criminal defendant must

       be provided funds to obtain expert assistance at state expense only where the trial
       court finds, in the exercise of a sound discretion, that the defendant has made a
       particularized showing (1) of a reasonable probability that the requested expert
       would aid in his [or her] defense, and (2) that denial of the requested expert
       assistance would result in an unfair trial.

State v. Mason, 82 Ohio St.3d 144 (1998), syllabus. However, Mr. Boone merely requested an

independent DNA expert to test the physical evidence recovered at the crime scene. He did not

make any argument that there was a reasonable probability that the expert would aid his defense

or that denial of the request would result in an unfair trial. While Mr. Boone was proceeding pro

se at the time he made his request and his request should be liberally construed, “[a] pro se

litigant is not given greater rights than represented parties, and must bear the consequences of his
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mistakes.” (Internal quotations and citations omitted.) Akron v. Harris, 9th Dist. No. 25993,

2012-Ohio-1713, ¶ 8. Accordingly, based on the arguments made to the trial court, we cannot

say the trial court abused its discretion when it did not provide Mr. Boone with funds for a DNA

expert. See Mason at syllabus (providing funds for expert assistance at state expense is within

the court’s discretion).

                                           SPEEDY TRIAL

       {¶15} Mr. Boone argues that the State failed to comply with R.C. 2941.401 and,

therefore, violated his rights to a speedy trial. Specifically, he argues that the trial court should

not have granted the State’s May 2, 2011 request for a continuance because its reasons did not

qualify as good cause under the statute.

       {¶16} R.C. 2941.401 provides, in pertinent part:

       When a person has entered upon a term of imprisonment in a correctional
       institution of this state, and when during the continuance of the term of
       imprisonment there is pending in this state any untried indictment, information, or
       complaint against the prisoner, he shall be brought to trial within one hundred
       eighty days after he causes to be delivered to the prosecuting attorney and the
       appropriate court in which the matter is pending, written notice of the place of his
       imprisonment and a request for a final disposition to be made of the matter,
       except that for good cause shown in open court, with the prisoner or his counsel
       present, the court may grant any necessary or reasonable continuance. The request
       of the prisoner shall be accompanied by a certificate of the warden or
       superintendent having custody of the prisoner, stating the term of commitment
       under which the prisoner is being held, the time served and remaining to be
       served on the sentence, the amount of good time earned, the time of parole
       eligibility of the prisoner, and any decisions of the adult parole authority relating
       to the prisoner.

       {¶17} Initially, we note that Mr. Boone admitted that he never sent the written notice

required, and, thus, he never invoked the statute. See State v. Siniard, 6th Dist. No. H-03-008,

2004-Ohio-1043, ¶ 12. Furthermore, based on remarks made by Mr. Boone and the prosecutor

to the trial court, Mr. Boone was being held in Lorain County Jail awaiting disposition of charges
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against him, not serving “a term of imprisonment.” R.C. 2941.401. See State v. Hairston, 101

Ohio St.3d 308, 2004-Ohio-969, ¶ 25 (“In its plainest language, R.C. 2941.401 grants an

incarcerated defendant a chance to have all pending charges resolved in a timely manner, thereby

preventing the state from delaying prosecution until after the defendant has been released from

his prison term.”). Additionally, it is unclear that R.C. 2941.401 even applies to county jails.

See Siniard at ¶ 9 (“The statute itself does not apply to an accused being held in jail rather than a

state prison.”). But see State v. Brown, 84 Ohio App.3d 414, 422-423 (8th Dist.1992). Thus, it

is unclear that R.C. 2941.401 would have applied in Mr. Boone’s case; however, even assuming

that it did, Mr. Boone never sent the notice required by the statute and, therefore, failed to invoke

it. Accordingly, he has not demonstrated any error in the trial court’s granting of the State’s

continuance.

                                               III.

       {¶18} Mr. Boone has not demonstrated that the trial court committed any reversible

error. The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



WHITMORE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

THOMAS W. WATKINS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
