       [Cite as State v. Wright, 2018-Ohio-668.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


State of Ohio                                          Court of Appeals No. L-16-1164

       Appellee                                        Trial Court No. CR0201502648

v.

Michah Tekere Wright                                   DECISION AND JUDGMENT

       Appellant                                       Decided: February 23, 2018

                                                   *****

       Julia R. Bates, Lucas County Prosecuting Attorney, and
       Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

       Stephen D. Long, for appellant.

                                                   *****
       JENSEN, J.

                                            I. Introduction

       {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, sentencing appellant, Michah Wright, to a total of nine years in prison after he was
found guilty of felonious assault, discharge of a firearm upon or over a public road or

highway, and having weapons while under disability. Finding no error in the proceedings

below, we affirm.

                         A. Facts and Procedural Background

       {¶ 2} On October 23, 2015, appellant was indicted in case No. CR15-2783. The

indictment arose out of an incident that occurred eight days earlier, during which

appellant allegedly shot another individual, Sim White, in the foot. Within the

indictment, appellant was charged with one count of felonious assault in violation of R.C.

2903.11(A)(2) and (D), a felony of the second degree, and one count of discharge of a

firearm upon or over a public road or highway in violation of R.C. 2923.162(A)(3) and

(C)(4), a felony of the first degree. Firearms specifications were also attached to each of

the foregoing counts under R.C. 2941.145.

       {¶ 3} Six days after the indictment was filed, appellant appeared for arraignment

and entered a plea of not guilty. Counsel was appointed for appellant at this time.

Appointed counsel submitted a demand for discovery with the trial court pursuant to

Crim.R. 16 the following day. An additional request for discovery and a bill of

particulars was filed on November 2, 2015. Defense counsel then filed a motion for

funds to hire a criminal investigator the following day, which was granted by the trial

court on November 9, 2015. The state filed its initial discovery response on November

18, 2015.

       {¶ 4} On November 30, 2015, appellant appeared for trial, but moved the court to

continue the trial. The court granted appellant’s request and rescheduled the matter for

       2.
trial on December 14, 2015. On that date, appellant filed a motion to suppress evidence

obtained as a result of a search of his residence, as well as a motion to continue the trial

date. The trial court granted the motion to continue and rescheduled the trial for January

25, 2016. The state responded to the motion to suppress on December 23, 2015, and a

hearing on the motion was held on January 12 and 15, 2016. The January 25, 2016 trial

date was then converted to a pretrial at the request of appellant, and the motion to

suppress was taken under advisement by the trial court. At the pretrial hearing on

January 25, 2016, appellant filed a written waiver of his speedy trial rights and consented

to a trial date of February 29, 2016.

       {¶ 5} On February 25, 2016, the trial court granted the state’s request for a

continuance of the trial date over appellant’s objection, and the trial was rescheduled for

March 7, 2016. According to the trial court’s docket, the parties did not appear for trial

on March 7, 2016. Rather, the parties appeared for a pretrial on March 29, 2016. One

week prior, on March 22, 2016, the state filed another indictment in case No. CR16-1539,

charging appellant with the same two counts as those that were contained in the prior

indictment, along with attendant firearms specifications, as well as the addition of a

repeat violent offender specification attached to the felonious assault charge and a charge

of having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of

the third degree. As a result of the reindictment, the state dismissed the charges in case

No. CR15-2783 on April 5, 2016. Per appellant’s request, all pending motions, including

appellant’s motion to suppress, were transferred to case No. CR16-1539.



       3.
       {¶ 6} On April 8, 2016, appellant filed a motion to dismiss with the trial court, in

which he argued that his speedy trial rights were violated insofar as he was not brought to

trial within the statutory time limit found in R.C. 2945.71(C). After receiving the state’s

response to the motion to dismiss, the trial court denied the motion on May 6, 2016.

       {¶ 7} Three days later, appellant again moved the trial court for a continuance,

which the trial court granted. Pursuant to appellant’s request, the trial date was

rescheduled for June 13, 2016. On June 9, 2016, the trial date was further postponed by

the trial court, sua sponte. A three-day jury trial finally commenced on June 27, 2016.

       {¶ 8} As one of its witnesses, the state called Sim White. During White’s

testimony, the state questioned him as to a hole that was found in one of his shoes, which

was created when a bullet fragment entered the shoe. The state introduced the shoe into

evidence and market it as an exhibit. During the state’s closing arguments, the state

referenced the shoe and placed a paperclip into the shoe where the bullet fragment was

located. Appellant’s counsel objected to the state’s use of the paperclip, and the

following exchange took place:

              THE COURT: What’s your objection?

              [DEFENSE COUNSEL]: My objection is this, Your Honor. I do not

       know the size of anything that would have gone through the hole, if there

       was a hole. He’s inserted an object that was not involved in this shoe in

       any form or fashion prior to it coming to the court. Paperclip had nothing

       to do with the shoe any time during this trial.



       4.
       If this was done and it was done yesterday afternoon, whereby the

State had access to the evidence –

       THE COURT: I think did you just do it now?

       [THE STATE]: I did it once yesterday, and I did it once today. I did

it once today.

       THE COURT: Was it there?

       [THE STATE]: I put this in now.

       THE COURT: He just did it now for the jury. Okay. Go ahead.

       [DEFENSE COUNSEL]: Well, the point I’m making I that

yesterday when the State took this evidence that had been admitted into

evidence down to the – assuming down to the prosecutor’s office –

       [THE STATE]: No. It was done in the courtroom this morning. I

did it in the custody and in the witness of the court reporter who had

custody of the shoe.

       [DEFENSE COUNSEL]: Okay. All right. I understand that. But

you conducted an experiment on a piece of evidence that had been

admitted.

       [THE STATE]: I’m sorry.

       [DEFENSE COUNSEL]: Can I finish? Thank you. You conducted

an experiment on a piece of evidence ex parte, the defense. You took it

upon yourself to, as you indicated, yesterday afternoon stick a paperclip



5.
       through this defect in the shoe. I don’t know whether it went all the way

       through yesterday. I didn’t see it.

              [THE STATE]: I know that it did.

              THE COURT: Okay.

              [DEFENSE COUNSEL]: I know that you’re telling me that now.

              THE COURT: Here’s the thing. What I would say for the record is

       that the State took a paperclip, partially straightened it out and inserted it

       through the obvious defect in the rubber sole of the shoe to the inside of the

       shoe where the foot would be. And because of the nature of this

       straightened-out paperclip, it’s similar to a needle which could go through it

       even if there wasn’t a hole.

              So I’m finding that this line of argument is not justified and telling

       counsel for the State to move onto a different line or argument. If you were

       to talk about the hole and there being a defect, do so, but not with using a

       straightened-out paperclip.

       {¶ 9} Following the foregoing exchange, defense counsel asked the trial court to

provide a curative instruction concerning the state’s use of the paperclip. The trial court

then instructed the jury to “disregard those very latest arguments relative to the paperclip

as it relates to Mr. Sim’s shoe.” The state then proceeded with its closing arguments.

       {¶ 10} At the conclusion of the closing arguments, the jury was instructed and

began its deliberations. Thereafter, the jury returned guilty verdicts to the three charges

and the attendant specifications contained in the indictment. The court then continued the

       6.
matter for sentencing and ordered the preparation of a presentence investigation report.

Ultimately, the court sentenced appellant to six years in prison on the felonious assault

charge, six years on the charge for discharge of a firearm upon or over a public road or

highway, and 30 months on the charge for having weapons while under disability. The

court ordered these sentences to be served concurrent to one another. The court then

merged the two firearms specifications, and imposed the mandatory consecutive sentence

of three years as to those specifications. In sum, appellant was ordered to serve a prison

sentence of nine years. Thereafter, appellant filed his timely notice of appeal.

                                  B. Assignments of Error

         {¶ 11} In his brief to this court, appellant presents the following assignments of

error:

                A. The trial court erred in failing to declare a mistrial based on the

         prosecution’s tampering with evidence before and during closing

         arguments.

                B. Imposition of a sentence for the “discharge of a firearm upon or

         over a highway” with the addition of an enhancement of the sentence with a

         “firearm specification” is a double punishment for the same conduct and,

         thus, a violation of [the] double jeopardy clause of the United States and

         Ohio Constitution and a violation of substantial due process.

                C. The trial court erred, as a matter of law, by denying appellant’s

         motion to dismiss based upon his speedy trial rights being violated and for



         7.
       failing to dismiss the case after appellant was reindicted with the additional

       charge of [having] weapons under a disability.

              D. The trial court committed reversible error by failing to dismiss

       the charges against the appellant after the state of Ohio failed to preserve

       probative relevant exculpatory evidence.

              E. Appellant was denied the effective assistance of counsel where

       counsel failed [to] renew the motion to dismiss for speedy trial violation

       and failure to move to dismiss for failure to preserve exculpatory evidence.

                                    II. Analysis

                                  A. Closing Arguments

       {¶ 12} In his first assignment of error, appellant argues that the trial court erred in

failing to declare a mistrial based upon the state’s handling of White’s shoe during its

closing arguments.

       {¶ 13} “The Ohio Supreme Court has declared that ‘[a] mistrial should not be

ordered in a cause simply because some error has intervened. The error must

prejudicially affect the merits of the case and the substantial rights of one or both of the

parties.’” State v. Griffin, 10th Dist. Franklin No. 10AP-902, 2011-Ohio-4250, ¶ 12,

quoting Tingue v. State, 90 Ohio St. 368, 108 N.E. 222 (1914), syllabus. “Moreover,

‘[m]istrials need be declared only when the ends of justice so require and a fair trial is no

longer possible.’” Id., quoting State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1

(1991).



       8.
       {¶ 14} Review of a trial court's decision denying a motion for mistrial ordinarily

falls under an abuse of discretion standard. State v. Rossbach, 6th Dist. Lucas No. L-09-

1300, 2011-Ohio-281, ¶ 39, citing State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343

(1987). Here, however, appellant failed to move for a mistrial. Thus, the trial court’s

refusal to declare a mistrial is reviewed under plain error analysis. Id. In State v. Barnes,

94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240, the Supreme Court of Ohio

articulated the following three-part test for finding plain error:

              First, there must be an error, i.e., a deviation from a legal rule.

       Second, the error must be plain. To be “plain” within the meaning of

       Crim.R. 52(B), an error must be an “obvious” defect in the trial

       proceedings. Third, the error must have affected “substantial rights.” We

       have interpreted this aspect of the rule to mean that the trial court’s error

       must have affected the outcome of the trial. Id. at 27 (internal citations

       omitted).

       {¶ 15} An appellate court should only take notice of plain error under exceptional

circumstances and only to prevent a manifest miscarriage of justice. State v. Landrum,

53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990).

       {¶ 16} Here, appellant contends that the trial court should have declared a mistrial

after the state inserted a paperclip into White’s shoe during its closing argument.

Appellant insists that the state’s act of inserting the paperclip into the shoe constituted an

“experiment” that broke the chain of custody. Further, appellant asserts that the state’s

conduct affected the fairness of the trial by altering the shoe to fit the state’s theory that

       9.
appellant intentionally shot at White rather than the injury resulting from an unintended

ricochet. Under these circumstances, appellant argues that the trial court should have

cautioned the jury to judge the credibility of the shoe as a piece of evidence in light of the

alterations made to the shoe by the state, rather than simply providing a curative

instruction for the jury to disregard the state’s arguments related to the shoe.

       {¶ 17} At the outset, we highlight the fact that the jury was instructed to disregard

the state’s argument concerning the paperclip that was inserted into White’s shoe. A jury

is presumed to follow such an instruction. State v. Garner, 74 Ohio St.3d 49, 59, 656

N.E.2d 623 (1995). We find that appellant has not overcome this presumption. Further,

we conclude that the court’s curative instruction eliminated any prejudice that could have

flowed from the state’s alleged alteration of the shoe.

       {¶ 18} Notably, appellant has failed to point to any evidence of actual alteration in

the record. Indeed, while the trial court explained that the paperclip was capable of

altering the shoe, it did not make a finding that the shoe was in fact altered, nor has

appellant demonstrated such alteration. Regardless, the remaining incriminatory

evidence contained in the record belies any claim of prejudice appellant might advance.

The state’s witnesses consisted of individuals that were present on the scene and

witnessed appellant firing a weapon. The testimony establishes that appellant was the

only individual with a firearm at the time of the shooting. Further, two of the state’s

witnesses actually saw appellant shoot White.

       {¶ 19} In light of the curative instruction that was provided to the jury, as well as

the incriminating evidence that was presented by the state in this case, we find that

       10.
appellant was not prejudiced by the trial court’s failure to sua sponte declare a mistrial.

The state’s alleged alteration of White’s shoe did not deprive appellant of a fair trial, and

appellant has failed to establish plain error in the trial court’s handling of the matter.

Accordingly, appellant’s first assignment of error is not well-taken.

                                 B. Firearm Specifications

       {¶ 20} In his second assignment of error, appellant contends that his due process

rights, as well as constitutional protections against double jeopardy, preclude the trial

court’s imposition of the mandatory three-year prison term on the firearm specification

that was attached to his conviction for discharge of a firearm upon or over a highway.

       {¶ 21} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” Similarly, Article I, Section 10 of the Ohio Constitution

states: “No person shall be twice put in jeopardy for the same offense.” The Double

Jeopardy Clause protects against a number of abuses. State v. Ruff, 143 Ohio St. 3d 114,

2015-Ohio-995, 34 N.E.3d 892, ¶ 10. Pertinent to this case is the protection against

multiple punishments for the same offense. Id. To that end, the General Assembly

enacted R.C. 2941.25, which provides:

              (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or

       information may contain counts for all such offenses, but the defendant

       may be convicted of only one.



       11.
              (B) Where the defendant’s conduct constitutes two or more offenses

       of dissimilar import, or where his conduct results in two or more offenses

       of the same or similar kind committed separately or with a separate animus

       as to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 22} The argument raised by appellant in his second assignment of error

was addressed by the Ohio Supreme Court in State v. Ford, 128 Ohio St.3d 398,

2011-Ohio-765, 945 N.E.2d 498. In that case, the court found that a firearm

specification is a penalty enhancement, not a criminal offense. Id. at paragraph

one of the syllabus. Because a firearm specification is not an offense, it does not

merge with its predicate offense under R.C. 2941.25, and can therefore be imposed

in addition to the underlying charge. Id. at ¶ 19. Thus, the court held that the trial

court properly sentenced the defendant for discharging a firearm at or into a

habitation in addition to sentencing the defendant for the firearm specification. Id.

at ¶ 20.

       {¶ 23} On the authority of Ford and its progeny, we find that the trial court did not

violate double jeopardy principles by imposing sentences as to both the firearm

specification and the charge for discharge of a firearm upon or over a highway.

Additionally, we find no merit to appellant’s as-applied challenge, in which he contends

that double jeopardy principles are violated when the predicate offense includes the use

of a firearm as one of its elements. Notably, the predicate offense in Ford also included

the use of a firearm as an element.

       12.
       {¶ 24} Accordingly, appellant’s second assignment of error is not well-taken.

                                  C. Speedy Trial Rights

       {¶ 25} In his third assignment of error, appellant asserts that the trial court erred in

denying his motion to dismiss, which was premised upon the alleged violation of his right

to a speedy trial.

       {¶ 26} A trial court’s decision denying a motion to dismiss based on an alleged

violation of the speedy trial statutes presents a mixed question of law and fact. State v.

Rumer, 6th Dist. Lucas No. L-07-1178, 2009-Ohio-265, ¶ 7, citing State v. Brown, 131

Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist.1998). While we accord reasonable

deference to the trial court’s findings of fact if supported by competent, credible

evidence, we independently determine whether the trial court properly applied the law to

the facts of the case. Id.

       {¶ 27} R.C. 2945.71(C)(2) requires that the state bring a person charged with a

felony to trial within 270 days after the person’s arrest. If the person is held in jail,

however, each day spent in jail counts as three days. R.C. 2945.71(E). Appellant was in

custody during the pendency of this matter. Thus, the state was required to bring him to

trial within 90 days of his arrest. Appellant was not brought to trial within 90 days of the

date of his arrest, and therefore he has established a prima facie case for dismissal. State

v. Arrington, 6th Dist. Erie No. E-16-050, 2017-Ohio-2578, ¶ 14.

       {¶ 28} Because appellant has made a prima facie case for dismissal, the burden

shifted to the state to demonstrate that sufficient time was tolled or extended pursuant to

R.C. 2945.72 such that no violation occurred. State v. Hohenberger, 189 Ohio App.3d

       13.
346, 2010-Ohio-4053, 938 N.E.2d 419, ¶ 35 (6th Dist.). In calculating the speedy trial

time, and considering the possible extensions of that time, the provisions of R.C. 2945.72

are to be strictly construed against the state. State v. Singer, 50 Ohio St.2d 103, 108-109,

362 N.E.2d 1216 (1977).

         {¶ 29} “R.C. 2945.72 contains an exhaustive list of events and circumstances that

extend the time within which a defendant must be brought to trial.” State v. Ramey, 132

Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 24. Of particular relevance here,

R.C. 2945.72(E) operates to toll the speedy trial clock for any period of delay caused by a

motion filed by the accused. Further, R.C. 2945.72(H) tolls the clock for any period of

delay brought about by the continuance of the trial date at the request of the accused.

{¶ 30} We have examined the record in this matter with the foregoing provisions in mind.

The timeline of events in this case is as follows:

 Date:            Party         Nature of Filing                                     Total
                                                                                     Days
                                                                                     Elapsed
 10/15/2015       State         Arrest                                               0
 11/02/2015       Appellant     Request for Discovery and Bill of Particulars        18
 11/18/2015       State         Discovery Response                                   18
 11/30/2015       Appellant     Motion to Continue Trial                             30
 12/14/2015       Appellant     Motion to Suppress and Motion to Continue Trial      30
 01/25/2016       Appellant     Limited Waiver of Speedy Trial Rights                30
 02/25/2016       State         Motion to Continue Trial (motion to suppress         30
                                remained pending)
 04/08/2016       Appellant     Motion to Dismiss                                    30
 05/06/2016       Court         Denial of Motion to Dismiss and Motion to            30
                                Suppress
 05/09/2016       Appellant     Motion to Continue Trial                             33
 06/09/2016       Court         Trial Date Postponed                                 33
 06/27/2016       Court         Jure Trial Commences                                 51


         14.
       {¶ 31} As is evident from an examination of this timeline, appellant filed several

motions in this case that operated to toll the speedy trial clock under R.C. 2945.72. After

deducting such tolling periods from the number of days that elapsed between appellant’s

arrest and his trial, we find that 51 days are chargeable to the state. Because appellant

was brought to trial within the 90 day speedy trial period, his speedy trial rights were not

violated and the trial court properly denied his motion to dismiss.

       {¶ 32} Accordingly, appellant’s third assignment of error is not well-taken.

                       D. Preservation of Exculpatory Evidence

       {¶ 33} In his fourth assignment of error, appellant argues that the trial court erred

in failing to dismiss the charges against him after the state failed to preserve probative

relevant exculpatory evidence consisting of the bullet removed from White’s foot.

       {¶ 34} “[T]he Due Process Clause of the Fourteenth Amendment to the United

States Constitution protects a criminal defendant from being convicted of a crime where

the state either fails to preserve materially exculpatory evidence or destroys in bad faith

potentially useful evidence.” (Internal citations omitted.) State v. Benton, 136 Ohio

App.3d 801, 805, 737 N.E.2d 1046 (6th Dist.2000). The Supreme Court of Ohio has

concluded that evidence is materially exculpatory “only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” State v. Jackson, 57 Ohio St.3d 29, 33, 565

N.E.2d 549 (1991), quoting State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988),

paragraph five of syllabus.



       15.
       {¶ 35} In his brief to this court, appellant acknowledges that the medical records

that were supplied during discovery contain numerous references to the bullet that was

recovered from White’s foot. Thus, appellant was aware of the existence of the bullet

prior to trial. There is no evidence that the state wrongfully withheld the bullet from

appellant during discovery. While the state did not enter the bullet into evidence at trial,

there is no indication that it failed to disclose the bullet to appellant prior to trial.

       {¶ 36} Accordingly, appellant’s fourth assignment of error is not well-taken.

                            E. Ineffective Assistance of Counsel

       {¶ 37} In his fifth assignment of error, appellant contends that he was denied

effective assistance of trial counsel.

       {¶ 38} In order to demonstrate ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694.

       {¶ 39} In the case at bar, appellant argues that his counsel was ineffective for

failing to renew the motion to dismiss that was premised upon alleged speedy trial

violations, and failing to file a motion to dismiss based upon the state’s failure to preserve

the bullet from White’s shoe. Because we have already concluded that appellant was

brought trial within the 90-day speedy trial period and that his argument concerning the



       16.
bullet from White’s shoe lacks evidentiary support, we find no merit to appellant’s

ineffective assistance argument.

       {¶ 40} Accordingly, appellant’s fifth assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 41} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay costs of this appeal pursuant to

App.R. 24.

                                                                      Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.



       17.
