[Cite as State v. Gall, 2019-Ohio-4907.]


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

STATE OF OHIO                                        C.A. No.      18CA011445

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PATRICK GALL                                         COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   18CR098906

                                  DECISION AND JOURNAL ENTRY

Dated: December 2, 2019



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, Patrick Gall, appeals his convictions by the Lorain County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     On July 6, 2018, W.F. was shot at close range in an overgrown area behind a

business in Elyria. His injuries proved to be fatal. A series of security cameras captured the

crime on video, and Mr. Gall was soon taken into custody along with two other men. Mr. Gall

was charged with aggravated murder in violation of R.C. 2903.01(A), murder in violation of

R.C. 2903.02(A) and (B), felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2), and

tampering with evidence in violation of R.C. 2921.12(A)(1). Each charge was accompanied by

a firearm specification. Prior to trial, Mr. Gall moved to dismiss all of the charges against him,

arguing that he had not been brought to trial within the time period provided by R.C. 2945.71(C).

The State informed the trial court that Mr. Gall was also being held on a holder issued from
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Cuyahoga County. The trial court denied the motion to dismiss, but agreed to seat a jury within

the ninety-day time period provided by R.C. 2945.71(E) nonetheless.

         {¶3}    The jury found Mr. Gall guilty of all of the charges and specifications. The trial

court merged the murder and felonious assault charges with the aggravated murder charge for

purposes of sentencing and sentenced Mr. Gall to life in prison for aggravated murder and two

years in prison for tampering with evidence, to be served concurrently. The trial court also

sentenced him to consecutive prison terms for the two accompanying firearm specifications. Mr.

Gall appealed.

                                                 II.

                               ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ERRED IN DENYING MR. GALL’S MOTION TO
         DISMISS IN VIOLATION OF ORC 2945.71 AND ORC 2945.72 AS WELL AS
         THE UNITED STATES AND STATE OF OHIO CONSTITUTIONS AS MR.
         GALL’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

         {¶4}    In his first assignment of error, Mr. Gall argues that the trial court erred by

denying his motion to dismiss for a violation of his right to a speedy trial. This Court does not

agree.

         {¶5}    “When a trial court denies a motion to dismiss on speedy trial grounds, this Court

reviews questions of law de novo, but considers whether the trial court’s factual determinations

are clearly erroneous.” State v. Burroughs, 9th Dist. Lorain No. 14CA010595, 2016-Ohio-1139,

¶ 4, citing State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 36. Under R.C.

2945.71(C)(2), an individual charged with a felony must be brought to trial within 270 days after

arrest. R.C. 2945.71(E) provides that for purposes of calculating this time period, “each day

during which the accused is held in jail in lieu of bail on the pending charge shall be counted as

three days.” This “triple-count” provision, however, only applies when the defendant is being
                                                 3


held solely on the charge at issue. State v. McDonald, 48 Ohio St.2d 66 (1976), paragraph one of

the syllabus. When a defendant is also held under a parole holder, the triple-count provision

does not apply because a parole violation is a separate offense. State v. Brown, 64 Ohio St.3d

476, 479 (1992); Burroughs at ¶ 4.

       {¶6}    Mr. Gall does not dispute that if the State had 270 days after his arrest in which to

bring him to trial, his speedy trial rights were not violated. Consequently, he has argued that by

operation of the triple-count provision of R.C. 2945.71(E), he was not brought to trial within

ninety days.

       {¶7}    Mr. Gall’s first argument is that the trial court erred by denying his motion to

dismiss because the State failed to demonstrate the existence of a holder. When the parties

appeared before the trial court to address the speedy trial issue, however, Mr. Gall did not

dispute the existence of the holder from Cuyahoga County. Instead, his attorney acknowledged

that a valid holder had been placed on Mr. Gall and informed the trial court that he had been

aware of the holder since Mr. Gall was arraigned. Under these circumstances, this Court may

presume that the facts support the trial court’s decision to deny the motion to dismiss. State v.

Nixon, 9th Dist. Lorain Nos. 00CA007638, 00CA007624, 2001 WL 422885, *9 (Apr. 25, 2001),

citing Brown at 481. In addition, however, the State also stated the following on the record:

       The fact of the matter is, Your Honor, since July 12th, [Mr. Gall] has had a holder
       on him. It’s been filed with the jail from the Cuyahoga County Sheriff’s
       Department, which lists, “This warrant is good. Please place hold. Thank you.”

       That was based on a juvenile case * * * with Judge Michael Ryan. Whereon, the
       11th day of January, 2018, the defendant failed to appear. It says, “The Court
       finds that the following parties were present for hearing: [R.L.], community
       control officer; [A.H.], the GAL for the child. Notwithstanding receipt of the
       notice, the child has failed to appear upon the calling of the case without good
       cause shown. Therefore, it is ordered said matter is continued indefinitely for the
       arrest of the child.”
                                                  4


       That was based on a juvenile case in which [Mr. Gall] has already been
       committed to a locked facility, not DYS, for a period of time. This is a review
       hearing. That warrant has been out since January 12th of 2018.

Under these circumstances, this Court does not agree that the State failed to demonstrate the

existence of the holder for the record, and Mr. Gall’s first argument is not well-taken.

       {¶8}      Mr. Gall’s second argument is that a holder that originates from a juvenile court

does not toll the triple-count provision for the reasons articulated by the Ohio Supreme Court in

State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478.            In Sanchez, the Supreme Court

considered whether a detainer filed by the United States Bureau of Immigration and Customs

Enforcement (“ICE”) prevented application of the triple-count provision. The terms of the ICE

detainer were not part of the record, so in considering this question, it was necessary for the

Supreme Court to look to federal law and policy to determine the effect of ICE detainers in

general. See id. at ¶ 12-19. Having surveyed these resources, the Supreme Court reasoned that

because an ICE detainer indicates that ICE will seek to hold the subject in custody upon release

from confinement but does not hold the subject in custody, the triple-count provision remains

applicable. Id. at ¶ 16-17.

       {¶9}    In this case, the terms of the holder are reflected in the record. That holder

subjected Mr. Gall to immediate arrest and detention while he was confined on the charges

pending in this case. In other words, he was not held before trial solely on the charges at issue in

this case, so the triple-count requirement of R.C. 2945.71(E) did not apply, and the State had 270

days after Mr. Gall’s arrest in which to bring him to trial.

       {¶10} Mr. Gall’s final argument is that his trial did not commence on November 5,

2018, because the trial court seated a jury, then continued the trial for eight days before

proceeding.    This Court need not reach the merits of this argument because whether the
                                                  5


commencement of trial is measured from the date the jury was seated or from the date that trial

resumed, it is undisputed that Mr. Gall was brought to trial well within 270 days after the date of

his arrest, as required by R.C. 2945.71(C)(2).

         {¶11} Mr. Gall’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR NO. 2

         THE TRIAL COURT VIOLATED MR. GALL’S DUE PROCESS RIGHTS
         AND HIS RIGHT TO A FAIR TRIAL WHEN IT PERMITTED AND
         INSTRUCTED TWO DEPUTIES POSITIONED BESIDE MR. GALL DURING
         THE TRIAL IN THE PRESENCE OF THE JURY ERODING THE
         PRESUMPTION OF INNOCENCE.

         {¶12} Mr. Gall’s second assignment of error is that the trial court erred by permitting

the presence of two uniformed deputy sheriffs in the courtroom during trial. This Court does not

agree.

         {¶13} The presumption of innocence is a “basic component” of the fair trial that is

guaranteed to criminal defendants by the Fourteenth Amendment. Estelle v. Williams, 425 U.S.

501, 503 (1976). Courtroom practices that tend to erode the presumption of innocence, when

“inherently prejudicial[,] * * * should be permitted only where justified by an essential state

interest specific to each trial.” Holbrook v. Flynn, 475 U.S. 560, 568-569 (1986). On the other

hand, some practices are not inherently prejudicial because they permit a “wider range of

inferences that a juror might reasonably draw.” Id. at 569.

         {¶14} The deployment of identifiable law enforcement officers in a courtroom during

trial is one such practice. Id. In concluding that this practice is not inherently prejudicial, the

United States Supreme Court reasoned:

         While shackling and prison clothes are unmistakable indications of the need to
         separate a defendant from the community at large, the presence of guards at a
         defendant’s trial need not be interpreted as a sign that he is particularly dangerous
         or culpable. Jurors may just as easily believe that the officers are there to guard
                                                6


       against disruptions emanating from outside the courtroom or to ensure that tense
       courtroom exchanges do not erupt into violence. Indeed, it is entirely possible
       that jurors will not infer anything at all from the presence of the guards. If they
       are placed at some distance from the accused, security officers may well be
       perceived more as elements of an impressive drama than as reminders of the
       defendant’s special status. Our society has become inured to the presence of
       armed guards in most public places; they are doubtless taken for granted so long
       as their numbers or weaponry do not suggest particular official concern or alarm.

Id. The State’s interest in deploying law enforcement officers in a courtroom is also “intimately

related to the State’s legitimate interest in maintaining custody during the proceedings.” Id. at

572. Turning to the question at hand in Holbrook, the Court concluded that there was not an

unacceptable risk of prejudice to the defendant posed by “four such officers quietly sitting in the

first row of a courtroom’s spectator section” during a trial of multiple defendants. Id. at 571. In

that situation, the Court observed, “[f]our troopers are unlikely to have been taken as a sign of

anything other than a normal official concern for the safety and order of the proceedings.

Indeed, any juror who for some other reason believed defendants particularly dangerous might

well have wondered why there were only four armed troopers to six defendants.” Id.

       {¶15} Even when courtroom security measures may pose a risk of eroding the

presumption of innocence, the decision to implement them is entrusted to the discretion of the

trial court. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 79, citing State v. Richey, 64

Ohio St.3d 353, 358 (1992), abrogated on other grounds as noted in State v. McGuire, 80 Ohio

St.3d 390, 402-403 (1997). Applying this standard, the Sixth District Court of Appeals has

determined that the presence of a uniformed deputy sheriff in a courtroom does not deny a

defendant a fair trial. State v. Washington, 6th Dist. Ottawa No. OT-12-032, 2014-Ohio-1008, ¶

19-20. The Eighth District Court of Appeals has concluded that the placement of one deputy

sheriff near a defendant did not deny the defendant a fair trial and, in another case, that a

defendant was not denied a fair trial when he was escorted to the witness stand by uniformed
                                                 7


deputies. State v. Gray, 8th Dist. Cuyahoga No. 92303, 2010-Ohio-240, ¶ 47; State v. Mitchell,

8th Dist. Cuyahoga No. 56575, 1995 WL 527599, *7 (Sept. 7, 1995). Similarly, the Seventh

District Court of Appeals has declined to reverse a conviction when the defendant argued that the

presence of three deputy sheriffs in the courtroom denied him a fair trial “absen[t] * * * an

affirmative demonstration of prejudice.” State v. Hill, 7th Dist. Columbiana No. 90-C-56, 1992

WL 356182, *6-7 (Nov. 25, 1992).

       {¶16} In this case, defense counsel objected to the presence of two deputy sheriffs in the

courtroom during the trial, and the following exchange with the trial court occurred:

       [DEFENSE COUNSEL]:             Your Honor, I’m concerned if we have law
       enforcement sitting behind the defendant, it gives the impression to the jury - - I
       don’t like that. I mean, I don’t think it’s appropriate. He’s presumed innocent.

       THE COURT: I understand that. Well, where would you prefer - - I mean, I’m
       going to have somebody on that half of the courtroom.

       [DEFENSE COUNSEL]:             Okay.

       THE COURT: He’s got to be in front of that rail to protect everybody here.

       [DEFENSE COUNSEL]:             Okay. I’d just note my objection for the record. I’d
       like the record to indicate we have two Lorain County sheriff’s deputies in the
       courtroom, and I understand that. One is seated right behind the defendant, and I
       believe that gives the jury the impression that my - - I think it - - it’s challenging
       to the presumption of innocence, that gives the impression that he’s being
       surrounded by law enforcement.

       THE COURT: The Court will just clarify that statement in that there are two
       deputies, one on each side of the courtroom; as the defendant is on one side, that’s
       where one of the deputies is, and the other deputy is clear across the other side of
       the courtroom.

       [DEFENSE COUNSEL]:             Agreed, Judge.

Based on this exchange, it appears that the trial court determined that two deputies were needed

to provide security during Mr. Gall’s trial and that they were not, as Mr. Gall now maintains,

both positioned directly behind him. Instead, the record reflects that they stood on opposite sides
                                                   8


of the courtroom. With respect to the deputy who stood in close proximity to Mr. Gall, the trial

court’s comments indicate that the deputy was positioned in front of the barrier that separated the

spectators from the rest of the courtroom and that in the trial court’s opinion, the deputy’s

presence there was necessary to protect the participants in the trial. Under these circumstances,

the presence and position of the deputies were “unlikely to have been taken as a sign of anything

other than a normal official concern for the safety and order of the proceedings.” Holbrook at

571. The trial court’s decision to deploy the deputies in this way did not, therefore, deny Mr.

Gall a fair trial.

        {¶17} Mr. Gall’s second assignment of error is overruled.

                                  ASSIGNMENT OF ERROR NO. 3

        THE TRIAL COURT VIOLATED MR. GALL’S RIGHT TO PRESENT A
        DEFENSE UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF
        THE UNITED STATES CONSTITUTION BY REFUSING TO GIVE THE
        JURY INSTRUCTIONS OF “RECKLESSLY” AND “NEGLIGENTLY.”

        {¶18}        In his third assignment of error, Mr. Gall argues that the trial court erred by

denying his request for jury instructions that included the definitions of negligent and reckless

mental states. Specifically, he argues that although the culpable mental states at issue were

purposely and knowingly, “the jury does not fully understand the mens rea that they are asked to

decide[]” unless they are instructed on “all four * * * mental states.” This Court disagrees.

        {¶19} “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact

finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus; R.C. 2945.11

(“In charging the jury, the court must state to it all matters of law necessary for the information

of the jury in giving its verdict.”) Although trial courts enjoy broad discretion in fashioning jury

instructions, they must “present a correct, pertinent statement of the law that is appropriate to the
                                                9


facts.” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46, citing State v. Griffin, 141

Ohio St.3d 392, 2014-Ohio-4767, ¶ 5, and State v. Lessin, 67 Ohio St.3d 487, 493 (1993). This

Court reviews a trial court’s decision not to provide a requested jury instruction for an abuse of

discretion. State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion is present when

a trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly

unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola

v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.

       {¶20} The State of Ohio suggests that because Mr. Gall did not formally object after the

jury instruction was given, but before the jury retired, he has forfeited all but plain error in

connection with this assignment of error. Under Crim.R. 30(A), it is true that “a party may not

assign as error the * * * failure to give any instructions unless the party objects before the jury

retires to consider its verdict, stating specifically the matter objected to and the grounds of the

objection.” When a party requests a jury instruction and the record demonstrates that the trial

court has been fully apprised of the law governing the disputed instruction, however, the failure

to formally object does not forfeit the issue on appeal. See Wolons at paragraph one of the

syllabus. Mr. Gall’s attorney objected on the record after counsel discussed the instructions with

the trial court in chambers. The substance of his objection is clear from the record, and both his

attorney and the State of Ohio presented legal arguments to the trial court about the proposed

instruction. We cannot conclude that Mr. Gall forfeited his objection under these circumstances.

       {¶21} Although a trial court must instruct the jury regarding the culpable mental state

required by the offenses charged against a defendant, there is no corresponding duty to provide

comparative instructions defining other culpable mental states. See State v. Howell, 137 Ohio

App.3d 804, 815-816 (11th Dist.2000). See also State v. Vansickle, 12th Dist. Fayette No.
                                                 10


CA2013-03-005, 2014-Ohio-1324, ¶ 30; State v. Wood, 2d Dist. Greene No. 2006 CA 1, 2007-

Ohio-1027, ¶ 20-21. The intent behind a request for such instructions is “presumably to contrast

[the culpable mental states] in the hope that the jury would find that [defendant’s] conduct rose

to the former, but not to the more stringent latter state of mind.” Howell at 815. Although some

courts have recognized that a comparative instruction regarding mental states could be helpful in

limited circumstances, even those courts have declined to find error when a trial court’s

instruction on the culpable mental state required for commission of the charged offense is

consistent with the statutory definition. See State v. D.H., 169 Ohio App.3d 798, 206-Ohio-

6953, ¶ 36 (10th Dist.); Wood at ¶ 21-22.

       {¶22} In this case, the trial court instructed the jury regarding the relevant mental states

by defining actions that are done purposely and knowingly in terms that tracked the language of

the applicable statutes. In this respect, therefore, the trial court provided the jury with all of the

necessary and relevant instructions to discharge its duty. See Comen, 50 Ohio St.3d 206 at

paragraph two of the syllabus; R.C. 2945.11. The trial court did not abuse its discretion by

omitting the definitions of reckless and negligent conduct from the jury instructions.

       {¶23} Mr. Gall’s third assignment of error is overruled.

                                                 III.

       {¶24} Mr. Gall’s assignments of error are overruled.           The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.



       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, 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

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.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

GIOVANNA A. BREMKE, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
