[Cite as State v. Smith, 2016-Ohio-150.]




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


State of Ohio                                        Court of Appeals No. L-14-1224

        Appellee                                     Trial Court No. CR0201401147

v.

Homer Lee Smith, Jr. a.k.a.
Mydrell Braswell                                     DECISION AND JUDGMENT

        Appellant                                    Decided: January 15, 2016

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Dexter L. Phillips, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                              *****

        YARBROUGH, P.J.

                                           I. Introduction

        {¶ 1} Appellant, Homer Lee Smith, Jr., appeals the judgment of the Lucas County

Court of Common Pleas, convicting appellant of tampering with evidence, a felony of the

third degree. For the following reasons, we affirm.
                         A. Facts and Procedural Background

      {¶ 2} On January 17, 2014, Toledo police responded to a shots fired call at 1001

Heston Street, within the city limits of Toledo, Ohio. Upon arrival, officers observed

appellant standing in the middle of the street, acting in a non-aggressive manner. Officer

Haney patted appellant down for officer safety, and recovered a spent shell casing in

appellant’s pocket. Appellant was arrested and placed into custody.

      {¶ 3} On January 29, 2014, a Lucas County Grand Jury delivered a three-count

indictment, charging appellant with having weapons while under disability in violation of

R.C. 2923.13(A)(2), a felony of the third degree, tampering with evidence in violation of

R.C. 2921.12(A)(1) and (B), a felony of the third degree, and receiving stolen property in

violation of R.C. 2913.51, a felony of the fourth degree. Appellant was arraigned on

February 6, 2014, and an attorney was appointed to represent him. On February 26,

2014, appellant, through his attorney, filed a motion to suppress evidence. That motion

was heard by the court on April 3, 2014, and the court’s decision denying appellant’s

motion was issued on July 3, 2014.

      {¶ 4} The matter was called for trial on August 4, 2014, at which point appellant’s

attorney requested a continuance to review evidence recently provided to him by the

prosecution. Appellant openly voiced his displeasure with this course of action, however,

the court granted a one-week continuance. Two days later, appellant, acting pro se, filed

a document entitled “motion to withdraw present counsel and request new counsel be

appointed.” The matter was set for pretrial on August 8, at which point appellant’s




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attorney asked for leave to withdraw as counsel. The court explained to appellant that if

counsel was allowed to withdraw from the case, the trial could not proceed as scheduled

on August 11, 2015. Appellant stated that he understood this and asked the court to

accept the attorney’s request. The court then granted the request, and the trial date of

August 11 was converted to a pretrial. On August 11, new counsel was appointed to

represent appellant. After a bench conference with the state and appellant’s new counsel,

the court announced, without objection, the new trial date of September 15, 2014.

       {¶ 5} On the morning of trial, appellant, through counsel, filed a motion to dismiss

his case based on a violation of his speedy trial rights. Arguments were made and that

motion was denied. The matter proceeded to trial on September 16, 2014. At the outset,

the state asked to dismiss the charge of receiving stolen property. That request was

granted, without objection, and the matter proceeded to trial on the first two counts of the

indictment. After a two-day trial, the jury found appellant guilty of tampering with

evidence, a third degree felony. On September 24, 2014, appellant was sentenced to 30

months in prison. His timely appeal followed.

                                 B. Assignments of Error

       {¶ 6} On appeal, appellant assigns the following errors for our review:

              1) The State of Ohio failed to bring appellant to trial within the

       statutory speedy trial time in violation of his rights under the Sixth

       Amendment of the United States Constitution and the Ohio Constitution.




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              2) The trial court erred in not suppressing evidence obtained through

       an illegal search of appellant’s person.

              3) The State of Ohio failed to provide legally sufficient evidence to

       sustain a conviction of tampering with evidence.

              4) Appellant’s convictions were against the manifest weight of the

       evidence.

                                        II. Analysis

                                      A. Speedy Trial

       {¶ 7} In reviewing a denial of a motion to dismiss based on an appellant’s right to

a speedy trial, we apply a de novo standard of review. State v. Browand, 9th Dist. Lorain

No. 06CA009053, 2007-Ohio-4342, ¶ 10.

       {¶ 8} The right to a speedy trial is guaranteed by the United States and Ohio

Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Pursuant

to R.C. 2945.71(C)(2), a person charged with a felony must be brought to trial within 270

days of his arrest. Further, R.C. 2945.71(E) codifies the “triple count provision,”

computing each day an accused is held in custody as three days, for purposes of

computing the speedy trial timeframe. Appellant was held in custody while he awaited

trial, thereby invoking the “triple count” provision, and effectively setting the speedy trial

time at 90 days.

       {¶ 9} In this case, appellant was arrested on January 17, 2014. Absent any tolling

periods, the state was required to try the case on or before April 18, 2014. This case




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proceeded to trial on September 15, 2014, constituting a duration of 240 days. However,

R.C. 2945.72 provides that time may be tolled for a number of reasons, including:

              (E) Any period of delay necessitated by reason of a plea in bar of

       abatement, motion, proceeding, or action made or instituted by the accused;

              ***

              (H) The period of any continuance granted on the accused’s own

       motion, and the period of any reasonable continuance granted other than

       upon the accused’s own motion[.]

       {¶ 10} Here, there is no contention between the parties that there were several

tolling events throughout the course of the trial court proceedings. The first tolling event

occurred on February 10, 2014, when appellant filed a motion for discovery along with a

motion for a bill of particulars. The state responded to this motion on February 18, 2014,

thereby concluding an eight-day tolling period.

       {¶ 11} Time was also tolled when appellant filed a motion to suppress evidence on

February 26, 2014. The trial court announced its decision on this motion on June 25,

2014, ending the tolling period at 120 days. The final uncontested tolling event began on

August 4, 2014, when appellant requested a continuance of the trial date, which the court

set on August 11, 2014. For this event, time was tolled for a period of seven days.

Ultimately, there is no dispute that time was tolled in the case for a cumulative period of

135 days.




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       {¶ 12} The disputed time period begins on August 11, 2014, when appellant

contends that the court, sua sponte, continued his trial date until September 15, 2014.

Appellant contends that those 34 days should be counted against the state, while the state

argues that time was properly tolled during that period. For the following reasons, we

agree with the state.

       {¶ 13} Appellant’s reliance on the Ohio Supreme Court’s decision in State v.

Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, is misguided. Ramey

involved codefendants, only one of which filed pretrial motions. Id. The Supreme Court

held that Ramey merely acquiesced to the new dates necessitated by his codefendant’s

motions, and in order for the days to be tolled, R.C. 2945.72(H) required the continuance

to be reasonable, and also required the court to record reasons for the continuance in its

journal entry. Id.

       {¶ 14} In the present case, the delay was necessitated by appellant’s action on

August 6, 2014, filing what purported to be a pro se motion to withdraw his counsel and

have new counsel appointed. On August 8, 2014, the court held a pretrial hearing, at

which the court allowed appellant’s counsel to withdraw from the case based on a

breakdown of the attorney-client relationship, stemming from the motion filed by

appellant two days earlier. At that hearing, the court clearly explained to appellant that a

withdrawal of counsel would necessitate the trial date to be continued. An excerpt of the

colloquy between the court and appellant is found in the transcript of the August 8

hearing and reads as follows:




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             THE COURT: * * * Now, I know that you want to go to trial, and I

      know that you were unhappy about all the times that it had to be continued

      for various reasons, whether it was a motion to suppress that was pending,

      whether there was evidence to be reviewed. And so now your attorney

      wants to withdraw, so that means you’re not going to have a trial on

      Monday.

             THE DEFENDANT: That’s all right with me.

             THE COURT: That’s all right with you?

             THE DEFENDANT: Yes ma’am.

             THE COURT: Do you know that I don’t know when this matter

      will be rescheduled for trial?

             THE DEFENDANT: Well, you’ll come up with a court date, I’m

      pretty sure.

             THE COURT: Well, I’ll come up with a court date. But if you get

      new counsel, that’s going to depend on your new Counsel’s schedule, the

      Court’s schedule, and how much time it takes that new lawyer to prepare

      your case.

             THE DEFENDANT: I’m satisfied with that.

      {¶ 15} Clearly, the delay between August 11, 2014, and the new trial date of

September 15, 2014, was necessitated by the actions of appellant, as explained to him by

the court at the August 8, 2014 hearing. We find that the 34 days in dispute were




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properly tolled in accordance with R.C. 2945.72(E). Adding the 34 days to the

uncontested 134 days properly tolled, we find that the September 15, 2014 trial date was

on the 72nd day of the speedy trial clock, and within the 90-day requirement. Therefore,

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

                                   B. Motion to Suppress

       {¶ 16} For his second assignment of error, appellant contends that the trial court

erred in denying his motion to suppress evidence. Appellate review of a decision on a

motion to suppress presents a mixed question of law and fact. State v. Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “When considering a motion to

suppress, the trial court assumes the role of trier of fact and is therefore in the best

position to resolve factual questions and evaluate the credibility of witnesses.” Id., citing

State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). “[A]n appellate court

must accept the trial court’s findings of fact if they are supported by competent, credible

evidence.” Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “[T]he

appellate court must then independently determine, without deference to the conclusion

of the trial court, whether the facts satisfy the applicable legal standard.” Id., citing State

v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). Further, we must

evaluate the suppression judgment in accordance with State v. Bobo, 37 Ohio St.3d 177,

524 N.E.2d 489 (1988), which held in pertinent part, “[W]here a police officer, during an

investigative stop, has a reasonable suspicion that an individual is armed based on the




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totality of the circumstances, the officers may initiate protective search for the safety of

himself and others.”

       {¶ 17} The record in this case reflects that on January 17, 2014, Officer Melvin

Haney of the Toledo Police Department, responded to a shots fired call at 1001 Heston

Street in Toledo, Ohio. Upon arrival, within two minutes of the call, appellant was found

walking in the street at that location, and approached the officer in a calm, non-

threatening manner. Officer Haney stated that, for officer safety, he patted down

appellant for weapons. The officer gave several reasons why he felt the minor intrusion

was necessary.

       {¶ 18} Officer Haney testified that 1001 Heston was a known drug house and he

had personally been there in the past when the house had been “shot up.” He testified

that he was on high alert due to the nature of the call and the fact that it was dark outside.

The state solicited testimony that as appellant approached Officer Haney, he told the

officer that he was inside the house and “they were shooting at me,” providing

confirmation that appellant was in some way involved in the incident. Officer Haney

testified that appellant’s story did not make sense to him. The officer did not understand

why someone who was being shot at minutes earlier would be standing alone in the

middle of the street outside that same location. When Officer Haney patted the suspect

down, he testified that he felt what was immediately identifiable to him as a spent shell

casing in the pant pocket of appellant. At that point, Officer Haney believed appellant to




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be the shooter and the casing was removed as evidence of a crime. Appellant was then

placed under arrest.

       {¶ 19} Viewing the evidence as it would have been seen through the eyes of

Officer Haney who was reacting to the events as they were unfolding, the court found

that, based on the facts available to him at the time of the pat-down, Officer Haney’s

actions were appropriate, and the motion to suppress was denied.

       {¶ 20} Upon our review of the record in this case, applying the applicable

standards, we find that the officer possessed a reasonable suspicion so as to warrant a pat-

down of appellant for his own protection. This determination is supported by the facts

and circumstances articulated by Officer Haney at the suppression hearing. Some of the

relevant circumstances include: the time of day, the location as a known drug house, the

recent report of gunfire, appellant’s statement to the officer that he was inside the house

where the shots originated from, and the fact that appellant’s story did not make sense to

the officer. Therefore, appellant’s second assignment of error is not well-taken.

                             C. Sufficiency of the Evidence

       {¶ 21} In his third and fourth assignments of error, appellant contends that his

conviction was not supported by sufficient evidence and was also against the manifest

weight of the evidence. “The legal concepts of sufficiency of the evidence and weight of

the evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78

Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).




10.
       {¶ 22} In reviewing whether or not the state of Ohio provided legally sufficient

evidence to support a conviction, this Court must:

       examine the evidence admitted at trial to determine whether such evidence,

       if believed, would convince the average mind of the defendant’s guilt

       beyond a reasonable doubt. 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.

       {¶ 23} In order to support a conviction for tampering with evidence, pursuant to

R.C. 2921.12(A)(1), the state must show that:

              (A) No person, knowing that an official proceeding or investigation

       is in progress, or is about to be or likely to be instituted, shall do any of the

       following:

              (1) Alter, destroy, conceal, or remove any record, document, or

       thing, with purpose to impair its value or availability as evidence in such

       proceeding or investigation.

       {¶ 24} To support this charge, the record indicates appellant stated that he had

picked up the shell casings with a shirt, and tossed them outside into the snow. Appellant

argues that these actions were not meant to impair the value of the evidence, and that he

did not know an investigation was likely to be in progress. It is, however, reasonable for




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a jury to infer that appellant should have known that gunfire in a residential area would

lead to police investigation. It is also reasonable for a jury to infer that the actions by

appellant of picking up spent shell casings from inside a home where a shooting had just

taken place, and throwing them outside into the snow, was an attempt to impair the

availability of evidence. Therefore the conviction was supported by sufficient evidence

and appellant’s third assignment of error is not well-taken.

                                    D. Manifest Weight

       {¶ 25} When reviewing a manifest weight claim,

              The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must

       be reversed and a new trial ordered. State v. Martin, 20 Ohio App.3d 172,

       175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 26} “The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.” Id. It

has been long held that the weight to be given to the evidence and the credibility of the

witnesses is primarily for the trier of fact to decide. State v. Thomas, 70 Ohio St.2d 79,

79-80, 434 N.E.2d 1356 (1982). The standard of review is therefore high, and the trial

court, with its unique position to resolve the factual issues, enjoys significant deference to




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determine the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d

972 (1992).

       {¶ 27} This is not the exceptional case in which the evidence weighs heavily

against the conviction. Appellant admitted at trial that he was inside a house that had

been the target of a barrage of gunfire. The state presented evidence that the shots were

all fired from inside the house. Appellant admitted on the stand that he picked up the

shell casings with a t-shirt and threw them outside into the snow. The jury heard

appellant’s testimony that he was simply cleaning the residence and did not know that the

police would have been called. The jury determined that the story advanced by appellant

was not credible and found the defendant guilty of tampering with evidence. That

determination is not against the manifest weight of the evidence, and appellant’s fourth

assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 28} Based on the foregoing, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs are hereby assessed to appellant in accordance with

App.R. 24.


                                                                       Judgment affirmed.




13.
                                                                      State v. Smith
                                                                      C.A. No. L-14-1224




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




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, 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.




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