[Cite as State v. Powell, 2011-Ohio-4112.]


                                        COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   Sheila G. Farmer, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 10-COA-040
                                               :
                                               :
DALE L. POWELL, JR.                            :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Ashland County
                                                    Court of Common Pleas Case No.
                                                    10-CRI-041

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             August 17, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RAMONA ROGERS                                       DOUGLAS A. MILHOAN
Ashland County Prosecutor                           P.O. Box 347
110 Cottage Street, 3rd Floor                       Middlebranch, Ohio 44652
Ashland, Ohio 44805
[Cite as State v. Powell, 2011-Ohio-4112.]


Edwards, J.

        {¶1}     Appellant, Dale L. Powell, Jr., appeals a judgment of the Ashland County

Common Pleas Court convicting him of possession of marihuana (R.C. 2925.11(A)),

trafficking in marihuana (R.C. 2925.03(A)(2)), possessing criminal tools (R.C.

2923.24(A)), and endangering children (R.C. 2919.22(A)).           Appellee is the State of

Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     On March 31, 2010, Lt. Scott Smart of the Ashland County Sheriff’s

Department met with an informant concerning an investigation into an individual who

was scheduled to deliver a large shipment of marihuana to Ashland County. On April 1

and April 2, 2010, the informant made two controlled calls to appellant, who was using

the name “Big Dell,” concerning the shipment.

        {¶3}     On April 2, 2010, appellant told the informant he was leaving Texas with

the marihuana and was driving a Chevy Avalanche. He thought he would be back in

Ashland County in 22 hours. Police obtained a search warrant for the vehicle. Appellant

met the informant at Walmart in Richland County, Ohio. Police officers instructed the

informant to have appellant follow him. Shortly after appellant entered Ashland County,

officers stopped the Avalanche. Appellant’s girlfriend and three young children, ranging

in age from an infant to around ten years old, were in the vehicle. A drug detection dog

indicated that there were drugs in the vehicle.

        {¶4}     Lt. Smart spoke with appellant at the scene. Initially appellant denied that

there were drugs in the car. Appellant did eventually acknowledge that there were

drugs in the vehicle, claiming there was one trash bag containing marihuana in the
Ashland County App. Case No. 10-COA-040                                                   3


vehicle. Officers found two trash bags containing marihuana, one containing two large

bales and one containing a single bale.

       {¶5}   Appellant was then taken to the Ashland County Sheriff’s Office where he

was interviewed by Lt. Smart. Appellant stated that he desperately needed money to

support his family so he agreed to travel to Texas to collect a shipment of marihuana to

transport to Ohio. He met with a Mexican man at a car wash who gave him $1,000 to

transport the marihuana from Texas to Ohio. He paid $250 in child support, leaving him

with $750. He and his family traveled to the Houston area. Appellant took his family

because his “old lady” was from Texas and if stopped by police, they could claim to be

visiting family. Appellant was instructed to eat at a Hooters restaurant and leave the

keys in the Avalanche. While appellant was eating, someone took the vehicle and

placed three bales of marihuana inside. After dinner, appellant and his family checked

into a hotel. Appellant took the marihuana inside and weighed it, finding it weighed

around 60 pounds. He placed one bale in one trash bag, and two in a second trash

bag. He also placed towels from the hotel in the bags. Appellant told police he planned

to keep one bale for his own personal use.

       {¶6}   Appellant was indicted by the Ashland County grand jury with one count of

possession of marihuana, one count of trafficking in marihuana, one count of

possessing criminal tools and one count of endangering children. Following jury trial he

was convicted of all counts.     At the sentencing hearing, the State agreed that the

possession and trafficking accounts merged, and elected to have appellant sentenced

for trafficking. The court sentenced appellant to ten years incarceration for trafficking in

marihuana, twelve months for possessing criminal tools and 180 days for endangering
Ashland County App. Case No. 10-COA-040                                                   4


children, with all sentences served concurrently.       Appellant assigns two errors on

appeal:

       {¶7}   “I. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION

TO DISMISS FOR A VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

       {¶8}   “II.   THE   JURY    VERDICT      FINDING      APPELLANT       GUILTY     OF

TRAFFICKING IN MARIHUANA WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED

STATES CONSTITUTION.”

                                                 I

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

overruling his motion to dismiss on speedy trial grounds. Appellant filed a motion to

dismiss on October 8, 2010. On October 13, 2010, the court overruled the motion to

dismiss, finding that State had 90 days within which to bring appellant to trial, 51 days of

the speedy trial clock had run when appellant filed a motion to suppress on May 24,

2010, and the time was tolled until the court ruled on the motion on September 10,

2010. Appellant’s trial began 35 days later on October 15, which according to the

court’s calculation came on the 86th day of the 90 day time limit.

       {¶10} The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to

these constitutional mandates, R.C. 2945.71 through R.C. 2945.73 prescribe specific

time requirements within which the State must bring an accused to trial. State v. Baker,

78 Ohio St.3d 108, 110, 1997-Ohio-229, 676 N.E.2d 883. R.C. 2945.71 provides, in

pertinent part:
Ashland County App. Case No. 10-COA-040                                                                 5


        {¶11} “(C) A person against whom a charge of felony is pending:

        {¶12} “(2) Shall be brought to trial within two hundred seventy days after the

person's arrest....

        {¶13} “(E) For purposes of computing time under divisions (A), (B), (C)(2), and

(D) of this section, 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 division does not apply for

purposes of computing time under division (C)(1) of this section.”1

        {¶14} However, the time limit can be tolled, or extended, pursuant to R.C.

2945.72, which states, in relevant part:

        {¶15} “The time within which an accused must be brought to trial, * * * may be

extended only by the following:

        {¶16} “* * *(E) Any period of delay necessitated by reason of a .... motion,

proceeding, or action made or instituted by the accused.”

        {¶17} Speedy trial statutes are to be strictly construed against the State. State v.

Miller (1996), 113 Ohio App.3d 606, 681 N.E.2d 970. In reviewing a speedy trial claim,

an appellate court must count days chargeable to each side and determine whether the

case was tried within the statutory time limits. City of Oregon v. Kohne (1997), 117 Ohio

App.3d 179, 690 N.E.2d 66.

        {¶18} Appellant agrees that the time was tolled by his motion to suppress.

However, he argues that the clock began to run again on August 3, 2010, when the

parties submitted their written closing arguments on the motion to suppress, rather than



1
  Appellant remained in prison during the pendency of the case, thus triggering the triple count provision
of R.C. 2945.71(E).
Ashland County App. Case No. 10-COA-040                                                  6


on September 10, 2010, when the court ruled on the motion. Appellant relies on R.C.

2937.21, which provides:

       {¶19} “No continuance at any stage of the proceeding, including that for

determination of a motion, shall extend for more than ten days unless both the state and

the accused consent thereto. Any continuance or delay in ruling contrary to the

provisions of this section shall, unless procured by defendant or his counsel, be grounds

for discharge of the defendant forthwith.”

       {¶20} However, the Ohio Supreme Court has expressly held that R.C. 2937.21

does not apply to proceedings in the common pleas court:

       {¶21} “A second basis for holding that the trial judge was not limited by this

statute in ruling on the appellee's motion is the decision of this court in State v. Fowler

(1963), 174 Ohio St. 362, 189 N.E.2d 133. This court specifically held, at page 364, 189

N.E.2d at page 134, that the requirements of R.C. 2937.21 should not be imposed upon

the operation of the Court of Common Pleas, as follows:

       {¶22} “‘This section was enacted as a part of Amended Substitute Senate Bill

No. 73 by the One Hundred and Third General Assembly, ‘relative to making practice

and procedure in the trial of criminal offenses uniform in courts Inferior to the court of

common pleas.’ Thus, since the present proceeding was begun in the Court of Common

Pleas, Section 2937.21 is not applicable thereto.’ (Emphasis added.)

       {¶23} “In light of the foregoing, therefore, R.C. 2937.21 does not operate to

impose a statutorily mandated maximum time frame in which a motion, such as that in

the present appeal, has to be decided. The 90 day time limit was extended for the full

22 days consumed in deciding that motion and was properly charged to the defendant
Ashland County App. Case No. 10-COA-040                                                 7


as ‘delay’ caused by a ‘motion * * * made or instituted by the accused,’ pursuant to R.C.

2945.72(E).” State v. Martin (1978), 56 Ohio St.2d 289, 296-97, 384 N.E.2d 239.

      {¶24} The motion to suppress in this case consumes three volumes of transcript

and was heard on three separate days: July 19, July 20, and July 22, 2010. The

parties submitted written closing arguments to the court on August 3, 2010. The time

did not start to run again until the court ruled on the motion on September 10, 2010.

      {¶25} In finding a speedy trial violation where the trial court did not rule on a

motion to suppress for 311 days, this Court has held that 120 days is a reasonable

amount of time to rule on a motion to suppress:

      {¶26} “Upon our review of the record, we find that the trial court's delay in ruling

on appellant's Motion to Suppress was unreasonable and that, therefore, appellant's

speedy trial rights were violated. In the case sub judice, three hundred and eleven (311)

days passed between the date the Motion to Suppress was filed on April 28, 2004, and

the date that appellant, on March 4, 2005, filed his Motion to Dismiss on speedy trial

grounds. Pursuant to Sup .R. 40, which is analogous to former M.C.Sup.R. 6, 120 days

is a reasonable amount of time within which to rule on appellant's April 28, 2004, Motion

to Suppress, leaving a balance of one hundred ninety (191) days. Therefore, appellant

clearly was not brought to trial within ninety (90) days as required by R.C. 2945.71. See

State v. Edwards, Tusc.App. No.2002 AP 08 0065, 2003-Ohio-334.” State v. Fields,

Guernsey 05-CA-17, 2006-Ohio-223, ¶28.

      {¶27} We do not find the 37 days which passed while the court ruled on the

motion to suppress in the instant case was an unreasonable period of delay.
Ashland County App. Case No. 10-COA-040                                                 8


      {¶28} Pursuant to the court’s calculations, trial began on day 86 of the 90 days

within which appellant was to be brought to trial. We further note that the time was

tolled on October 8, 2010, by appellant’s motion to dismiss, and remained tolled until

the court ruled on the motion on October 13, 2010. Further, appellant filed a motion in

limine on October 14, 2010, the day before trial, again tolling the clock. Appellant’s

speedy trial rights were not violated as he was brought to trial in less than 90 days as

required by R.C. 2945.71(E).

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

                                               II

      {¶30} In his second assignment of error, appellant argues that the judgment

finding him guilty of trafficking in marihuana is against the manifest weight of the

evidence.    His sole argument is that based on his statement to the police that he

intended to keep one bale of marihuana for himself, he did not exceed the bulk amount

of 20,000 grams required to sustain the conviction. Appellant argues that the jury could

not believe part of the story he told police concerning transporting the drugs from Texas,

while choosing to disbelieve that one statement concerning his intention for one bale of

marihuana.

      {¶31} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, ‘weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387, 678
Ashland County App. Case No. 10-COA-040                                                 9

N.E.2d 541, 1997-Ohio-52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175,

485 N.E.2d 717.

      {¶32} R.C. 2925.03(A)(2) provides:

      {¶33} “(A) No person shall knowingly do any of the following:

      {¶34} “(2) Prepare for shipment, ship, transport, deliver, prepare for distribution,

or distribute a controlled substance, when the offender knows or has reasonable cause

to believe that the controlled substance is intended for sale or resale by the offender or

another person.”

      {¶35} R.C. 2925.03(C)(3)(f) provides:

      {¶36} “(f) Except as otherwise provided in this division, if the amount of the drug

involved equals or exceeds twenty thousand grams, trafficking in marihuana is a felony

of the second degree, and the court shall impose as a mandatory prison term the

maximum prison term prescribed for a felony of the second degree. If the amount of the

drug involved equals or exceeds twenty thousand grams and if the offense was

committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in

marihuana is a felony of the first degree, and the court shall impose as a mandatory

prison term the maximum prison term prescribed for a felony of the first degree.”

      {¶37} Appellant does not dispute that the total weight of the marihuana found in

his vehicle was 27,223 grams.       However, he argues that the jury lost its way in

convicting him when he intended to keep 1/3 of the marihuana for his own personal use.

      {¶38} The trier of fact is free to believe or disbelieve any or all of the testimony

presented. E.g., State v. Kaufman, 187 Ohio App.3d 50, 931 N.E.2d 143, 2010-Ohio-

1536, ¶83. Appellant told police he was desperate for money to support his family and
Ashland County App. Case No. 10-COA-040                                              10


agreed to transport drugs to help support his family. He claimed to be in fear of the

drug dealers he was involved with during this transaction.      Certainly the jury could

choose to disbelieve his statement that he intended to keep around 20 pounds of

marihuana for his own personal use when by doing so he was missing an opportunity to

make money from the marihuana and would be deceiving the drug dealers he claimed

to be in fear of. The judgment is not against the manifest weight of the evidence.

      {¶39} The second assignment of error is overruled.

      {¶40} The judgment of the Ashland County Common Pleas Court is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                               JUDGES

JAE/r0616
[Cite as State v. Powell, 2011-Ohio-4112.]


               IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
DALE L. POWELL, JR.                               :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10-COA-040




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Ashland County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
