[Cite as State v. Jones, 2016-Ohio-4766.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                        No. 15AP-596
v.                                                 :                 (C.P.C. No. 13CR-6230)

Obryan D. Jones,                                   :               (REGULAR CALENDAR)

                 Defendant-Appellant.              :




                                            D E C I S I O N

                                       Rendered on June 30, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Barbara J. Farnbacher, for appellee. Argued: Barbara J.
                 Farnbacher.

                 On brief: Todd W. Barstow, for appellant Argued:
                 Todd W. Barstow.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Obryan D. Jones, appeals from a judgment of
conviction entered by the Franklin County Court of Common Pleas. For the following
reasons, we affirm that judgment.
I. Factual and Procedural Background

        {¶ 2} On November 22, 2013, a Franklin County Grand Jury indicted appellant
and two others with multiple counts of kidnapping in violation of R.C. 2905.01,
aggravated robbery in violation of R.C. 2911.01, felonious assault in violation of R.C.
No. 15AP-596                                                                                    2

2903.11, kidnapping in violation of R.C. 2905.01, and rape in violation of R.C. 2907.02.1
The charges arose from a horrific series of events that occurred inside appellant's house
on July 15, 2013. On that day, Jerry Tipton, Amber Pascol, and Jasan Harman were
forced into appellant's house, where Tipton and Harman were beaten and Pascol was
raped.
           {¶ 3} Appellant entered a not guilty plea to the charges. At his arraignment, the
trial court appointed George Leach to represent appellant. At appellant's request, Leach
sought leave to withdraw as counsel in March and December 2014. The trial court
permitted Leach to withdraw on December 15, 2014 and, the next day, the trial court
appointed Paul Scott to represent appellant.
           {¶ 4} By April 2015, appellant had again become dissatisfied with his legal
representation and filed a request to terminate Scott's representation. Simultaneously, he
filed a "Notice of Waiver of Counsel Pursuant to R.44" in which he wrote that he "does
voluntarily [with] full knowledge, understanding and intelligence waive his right to
counsel." On April 20, 2015, the trial court held a hearing on appellant's request to
represent himself. The trial court advised him of the perils involved in representing
himself at trial. Appellant indicated that he understood. The trial court advised appellant
of the charges he faced as well as the possible penalties he faced. Appellant told the trial
court that he understood the risks and that he still wanted to represent himself. (Tr. Vol. 1
at 39-49.) Appellant did ask for Scott to be his standby counsel at trial. The trial court
concluded that appellant understood what he was doing and, therefore, granted
appellant's request to represent himself at trial. (Id. at 53.) However, appellant asked the
trial court if he later changed his mind and wanted Scott to represent him, could Scott
represent him at trial? The trial court told appellant that it would give him a little more
time to decide whether he wanted Scott to represent him at trial. Therefore, the trial court
scheduled another hearing a week later.                  At that second hearing on April 27, 2015,
appellant indicated that he still wanted to represent himself. (Tr. Vol. 2 at 60.) Appellant
also requested a continuance of the trial date. The trial court denied his request for a
continuance but permitted appellant to represent himself.                    Ultimately, appellant
represented himself at trial, with Scott acting as stand-by counsel.

1   The counts all included firearm specifications as well.
No. 15AP-596                                                                                    3

          {¶ 5} All three of the victims testified at trial. None of the victims initially went to
the police to report what had occurred in the house. However, a short time after the
alleged attacks, the police initiated an investigation to determine if appellant was selling
bath salts. During that investigation, police questioned Tipton. He still had visible
bruises on his face and a swollen eye. Tipton ultimately told the police about the events
that occurred inside the house. As a result of that conversation, police also questioned
Pascol, who also eventually told the police what had occurred inside the house.
          {¶ 6} Tipton testified that he went to appellant's house to buy bath salts from
appellant. Appellant sold bath salts out of his house and all three victims were his
customers. (Tr. Vol. 5 at 654-56.) Pascol was already at the house. Once there, appellant
told them that someone had stolen his phone, which allegedly contained the name and
contact information for his customers. Pascol told him that she thought her cousin was
there the night before and had taken it, so Tipton and Pascol went to find her cousin to get
the phone back for appellant. On their way to get the phone, they stopped at Harman's
house. Harman apparently knew that the cousin's boyfriend had the phone. Harman
gave the boyfriend some bath salts in exchange for the phone. They then called appellant
to tell him they had the phone and that they wanted more bath salts in exchange for
returning the phone. They then drove back to appellant's house and when they got out of
the car, several men approached them with guns and told them to go inside the house. Id.
at 295.
          {¶ 7} Once inside, appellant questioned them about the phone and who they were
working for. Id. at 413. Appellant and the other men then forced the three into the
basement, where they were tied up, blindfolded, and forced to lay down on the ground.
Throughout the ordeal, Tipton and Harman were physically beaten by the men. One hit
Harman with a baseball bat. A circular saw was placed close to Tipton's and Harman's
face to threaten them and to get them to answer questions. Appellant threatened to pull
out Harman's teeth with a set of pliers. Appellant then brutally beat Harman. Pascol was
in another room but could hear Tipton and Harman being beaten and screaming in pain.
One man came into that room and took Pascol into another room. He held a knife to her
and forced her to perform oral sex on another man. Id. at 522.
No. 15AP-596                                                                             4

       {¶ 8} Appellant and several other men continued to question Tipton and Harman
about the stolen phone. They wanted to know the identity of the person who sought
appellant's customer information. Id. at 317. After someone fired a gun between the two
men, Tipton began to disclose how they got the phone back. Ultimately, Tipton was
untied and his blindfold was removed. Tipton was told to go to Harman's house and get
all of his bath salts and guns and to bring those items back to the house. Appellant's
brother took Tipton to Harman's house. When Tipton left, Harman was still tied up and
laying on the ground and Pascol was being held in another room. Tipton returned to
appellant's house with the bath salts and a gun he had retrieved from Harman's house.
Id. at 327. Upon his return, Tipton, Harman, and Pascol were released.
       {¶ 9} Appellant's girlfriend at the time, Belynda Coffman, testified for the state
against appellant. She was originally charged as a co-defendant in this case but ultimately
entered a guilty plea to three counts of abduction in exchange for her testimony against
the men involved in these events. (Tr. Vol. 5 at 708.) She was inside appellant's house
during these events and her testimony was largely consistent with that of the victims. She
identified appellant as the man in charge of the events that occurred in the house and also
as one of the men who beat Tipton and Harman. Id. at 657-58, 687.
       {¶ 10} The jury found appellant guilty of all counts and specifications. The trial
court sentenced him accordingly.
II. Appellant's Appeal

       {¶ 11} Appellant appeals his convictions and assigns the following errors:
              [1]. The trial court erred and deprived appellant of due
              process of law as guaranteed by the Fourteenth Amendment
              to the United States Constitution and Article One Section Ten
              of the Ohio Constitution by finding him guilty of rape,
              kidnapping, aggravated robbery and felonious assault as those
              verdicts were not supported by sufficient evidence and were
              also against the manifest weight of the evidence.

              [2]. The trial court abused its discretion and erred to the
              prejudice of appellant by denying his request for a
              continuance of his jury trial.

              [3]. The trial court erred to the prejudice of appellant and
              abused its discretion by not holding a hearing on appellant's
No. 15AP-596                                                                              5

              pretrial request for a competency evaluation pursuant to
              Revised Code Section 2945.37.

       {¶ 12} For clarity, we will address the assignments of error out of order.
   A. Appellant's Second Assignment of Error–The Trial Court's Denial of
      his Motion to Continue

       {¶ 13} Appellant argues in his second assignment of error that the trial court
abused its discretion by denying his motion to continue his trial. We disagree.
       {¶ 14} At the April 27, 2015 hearing to determine whether appellant still wanted to
represent himself, appellant orally requested a continuance of his trial that was scheduled
for May 11, 2015. He argued that he needed more time to listen to or watch DVDs of
witness interviews that he allegedly had not previously seen to prepare for his trial. Scott
indicated to the trial court that he and appellant had previously reviewed all the DVD
interviews except for one, which Scott had just received. Scott also indicated that he
recently gave appellant's mother recordings of appellant's phone calls from jail. Id. at 67.
The trial court denied appellant's request for a continuance, advising him that he could
listen to the witness interviews and prepare for trial in the two weeks remaining before
trial. On May 7, 2015, appellant filed a written motion for continuance, again seeking
more time to review discovery such as the DVDs. The trial court denied that motion on
the morning of trial.
       {¶ 15} The grant or denial of a continuance is a matter that is entrusted to the
sound discretion of the trial court. State v. Presar, 10th Dist. No. 09AP-122, 2009-Ohio-
5127, ¶ 7, citing State v. Unger, 67 Ohio St.2d 65 (1981), syllabus. An appellate court must
not reverse the denial of a continuance unless there has been an abuse of discretion. Id. at
67. Although an abuse of discretion is typically defined as an unreasonable, arbitrary, or
unconscionable decision, no court has the authority, within its discretion, to commit an
error of law. State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7. Whether a
trial court has abused its discretion in denying a continuance depends upon the
circumstances of each case, including the length of the requested delay, prior
continuances requested and received, the presence or absence of legitimate reasons for
the requested delay, appellant's participation or contribution to the circumstances giving
No. 15AP-596                                                                               6

rise to the request for a continuance, and any other relevant factors. Unger at 67-68;
State v. Jordan, 10th Dist. No. 11AP-691, 2012-Ohio-1760, ¶ 9.
         {¶ 16} Applying these factors, we conclude that the trial court did not abuse its
discretion by denying appellant's request for a continuance. This was not appellant's first
request for a continuance of his trial date. Two trial dates in October 2014 were continued
for appellant to obtain different representation.       His trial was again continued in
December 2014 and January 2015 after new counsel was appointed.               Yet again, on
March 23, 2015, appellant asked for another continuance, through his then-appointed
counsel, to review discovery responses recently obtained from the state. The trial court
granted that request and continued the trial until May 11, 2015. In requesting yet another
continuance several weeks before trial, appellant alleged he needed more time to review
the witness interviews. However, Scott indicated that he and appellant had already
reviewed most of the DVDs. (Tr. Vol. 2 at 67.) The remaining DVDs, as well as recorded
jail phone calls, had just been received by appellant. Scott offered to review them with
appellant before the trial date. Appellant fails to identify any prejudice resulting from the
trial court's denial of his motion for continuance. State v. Brooks, 44 Ohio St.3d 185, 195
(1989) (denial of motion to continue was not an abuse of discretion where defendant
failed to demonstrate how he was prejudiced by denial); State v. Harris, 6th Dist. No.
WM-09-015, 2010-Ohio-3526, ¶ 18 (no demonstration of prejudice); State v. Stange, 10th
Dist. No. 03AP-519, 2004-Ohio-1300, ¶ 19 (considering absence of prejudice in affirming
decision to deny continuance). In fact, appellant appeared well prepared at trial to
question the witnesses and to present evidence on his own behalf.
         {¶ 17} The trial court did not abuse its discretion when it denied appellant's
motion for a continuance. Accordingly, we overrule appellant's second assignment of
error.
   B. Appellant's Third Assignment of Error–Did Appellant Request a
      Competency Evaluation?

         {¶ 18} In his third assignment of error, appellant contends that he made a request
for a competency evaluation pursuant to R.C. 2945.37 and that the trial court erred by
refusing to grant him a hearing on his request. We disagree.
No. 15AP-596                                                                                 7

          {¶ 19} On the morning of his scheduled trial date, appellant appeared before the
trial court, who proceeded to address the numerous pre-trial motions that had been filed.
After resolving those motions, the trial court started to call the potential jurors to the
courtroom to begin voir dire. At that point, appellant told the trial court that he no longer
wished to represent himself. (Tr. Vol. 1 at 93.) The trial court told him that it was too late
to change his mind and reminded appellant that he had been before the court two weeks
ago and reiterated that he wanted to represent himself. Appellant told the trial court that
he did not want to represent himself because he was not prepared. Id. at 93-98. The trial
court again indicated it would not continue the trial date. Appellant then asked the trial
court for "a competency evaluation pursuant to R.C. 2954.71.             I don't feel like I'm
competent to stand trial. I don't understand anything what's going on." Id. at 99.2 The
trial court again told appellant that it was too late to change his mind and proceeded with
the trial. Appellant continued: "I don't understand anything that's going on. I have no
idea. I don't feel like I'm competent to stand trial whatsoever. I don't understand the
charges. I don't understand the procedure. I don't understand anything." Id. The trial
court proceeded with the trial and called the potential jurors into the courtroom.
          {¶ 20} After a lunch break, the prosecutor pointed out to the trial court that in the
almost two years that appellant's case had been pending, no one had ever suggested that
appellant was not competent to stand trial. Appellant replied that "I don't want to
proceed pro se. I'm incompetent to do this. I don't have any prior criminal record. I
never been through a trial before. The only reason why I chose to be pro se was because
me and Mr. Scott was having communication issues." Id. at 105. The trial court again
told appellant that the trial would proceed and that it would not permit appellant "to play
these kind of games." Id.
          {¶ 21} R.C. 2945.37(B) provides that if the issue of a defendant's competency to
stand trial is raised before trial, the court shall hold a hearing on the issue. State v. Bock,
28 Ohio St.3d 108, 109 (1986) (noting the mandatory nature of a hearing if the issue is
raised). Appellant's comments, however, when read in context, do not raise the issue of
his competency to stand trial. Instead, appellant's comments indicate that he felt as if he



2   R.C. 2954.71 does not exist.
No. 15AP-596                                                                               8

was not competent to represent himself and did not want to do so anymore. Thus, the
trial court did not err when it failed to hold a competency hearing.
       {¶ 22} Even if we were to interpret appellant's comments as a request for a
competency hearing, the failure to hold a competency hearing is harmless error when the
record fails to reveal sufficient indicia of incompetence. Id. at 110; State v. Almashni, 8th
Dist. No. 92237, 2010-Ohio-898, ¶ 13-14; State v. Austin, 7th Dist. No. 09 MA 167, 2010-
Ohio-6583, ¶ 36. Here, there is nothing in the record that indicates appellant might be
incompetent to stand trial. First, counsel who represented appellant for almost two years
never raised the issue of appellant's competency to stand trial. Second, appellant filed
many motions on his own before trial that were well articulated and coherent. These
motions do not reveal any indicia of incompetence.          Moreover, appellant's conduct
representing himself during the trial did not reveal any indications of incompetency to
stand trial. Appellant questioned all of the witnesses presented by the state and presented
witnesses on his own behalf. His behavior before and during the multi-day trial does not
reflect any indicia of incompetence. Bock at 111 (considering behavior during trial to
determine whether indicia of incompetency warranted a hearing); State v. Murphy, 173
Ohio App.3d 221, 2007-Ohio-4535, ¶ 35-36 (12th Dist.) (same). Accordingly, even if we
were to interpret appellant's remarks as challenging his competency to stand trial, any
error in not holding a hearing on that issue would be harmless.
       {¶ 23} For these reasons, we overrule appellant's third assignment of error.
   C. Appellant's First Assignment of Error–The Sufficiency and Manifest
      Weight of the Evidence

       {¶ 24} In this assignment of error, appellant contends that his convictions are not
supported by sufficient evidence and are also against the manifest weight of the evidence.
Although sufficiency and manifest weight are different legal concepts, manifest weight
may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is
supported by the manifest weight of the evidence necessarily includes a finding of
sufficiency. State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 11, citing State
v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. "[T]hus, a determination
that a conviction is supported by the weight of the evidence will also be dispositive of the
issue of sufficiency." Id. In that regard, we first examine whether appellant's convictions
No. 15AP-596                                                                                9

are supported by the manifest weight of the evidence. State v. Gravely, 188 Ohio App.3d
825, 2010-Ohio-3379, ¶ 46 (10th Dist.).
       {¶ 25} The weight of the evidence concerns the inclination of the greater amount of
credible evidence offered to support one side of the issue rather than the other. State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). When presented with a challenge to the
manifest weight of the evidence, an appellate court may not merely substitute its view for
that of the trier of fact, but must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine whether in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. Id. at 387. An appellate court should reserve reversal of a conviction as being
against the manifest weight of the evidence for only the most " 'exceptional case in which
the evidence weighs heavily against the conviction.' " Id., quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983); State v. Strider-Williams, 10th Dist. No. 10AP-334,
2010-Ohio-6179, ¶ 12.
       {¶ 26} In addressing a manifest weight of the evidence argument, we are able to
consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6.       However, in conducting our review, we are guided by the
presumption that the jury, or the trial court in a bench trial, " 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons
Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great deference
to the jury's determination of witness credibility. State v. Redman, 10th Dist. No. 10AP-
654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-
6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the
syllabus (credibility determinations are primarily for the trier of fact).
       {¶ 27} Appellant argues that his convictions are against the manifest weight of the
evidence because the victims were drug users who were under the influence of drugs at
the time of the offenses and who told differing versions of the events and lied to the police
when initially confronted. Appellant also notes that Pascol continued to buy drugs from
him and to live in his house after these events and still maintained a relationship with the
No. 15AP-596                                                                                         10

men who she claimed helped appellant assault and rape her. Lastly, appellant points out
that Coffman testified against him after entering into an agreement with the state, for
which she received a reduced sentence.3 In essence, appellant argues that the jury should
not have found any of the witnesses' testimony credible. We disagree.
       {¶ 28} The jury was aware of all these points. Each victim testified about their
drug use and why they did not originally tell the police about what had occurred. Tipton
testified that these events caused him to be terrified of appellant and, as a result, he still
bought bath salts from him because he did not want appellant to think that he was
crossing him by using another drug dealer. (Tr. Vol. 4 at at 356.) Pascol testified that she
had a relationship with one of the men involved because he continued to provide her with
drugs. Id. at 575. She also brought appellant customers after these events in exchange for
more bath salts. Id. at 586. Coffman testified about the plea agreement she entered into
with the state. Id. at 706-07. The jury heard all of these points and was in the best
position to weigh and determine these witnesses' credibility and was entitled to believe or
disbelieve the testimony. State v. Green, 10th Dist. No. 11AP-526, 2012-Ohio-950, ¶ 11.
There is nothing in these witnesses' testimony that would make it so incredible as to
render appellant's convictions against the manifest weight of the evidence. State v.
Thompson, 10th Dist. No. 07AP-491, 2008-Ohio-2017, ¶ 35.
       {¶ 29} Additionally, while there may be some slight inconsistencies in the victims'
testimony, a defendant is not entitled to a reversal on manifest weight grounds merely
because inconsistent evidence was offered at trial. State v. Campbell, 10th Dist. No.
07AP-1001, 2008-Ohio-4831, ¶ 23. The trier of fact is in the best position to take into
account the inconsistencies in the evidence, as well as the demeanor and manner of the
witnesses, and to determine which witnesses are more credible. State v. DeJoy, 10th Dist.
No. 10AP-919, 2011-Ohio-2745, ¶ 27. In fact, the victims' testimony was largely consistent
in describing the horrific series of events that occurred inside appellant's house and
Coffman's testimony corroborated significant portions of their testimony.
       {¶ 30} Given the evidence presented at trial, which revealed brutal beatings
suffered by Tipton and Harman, as well as the rape of Pascol, the jury did not lose its way

3 While appellant argues that Coffman received a four-year prison sentence, at the time of her testimony
she had not been sentenced and faced a maximum possible sentence of nine years in prison. (Tr. Vol. 5 at
706). There was no promised sentence as part of her agreement.
No. 15AP-596                                                                           11

or create a manifest miscarriage of justice. Accordingly, appellant's convictions are not
against the manifest weight of the evidence. That conclusion is also dispositive of his
claim that his convictions were not supported by sufficient evidence.           Gravely.
Accordingly, we overrule appellant's first assignment of error.
III. Conclusion

       {¶ 31} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.


                                                                    Judgment affirmed.
                        DORRIAN, P.J., and SADLER, J., concur.
