[Cite as State v. Johnson, 2019-Ohio-5335.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 107929
                 v.                                 :

QUANTRAIL JOHNSON,                                  :

                 Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 26, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-18-628906-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Brandon Piteo and Tasha L. Forchione,
                 Assistant Prosecuting Attorneys, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 David Martin King, Assistant Public Defender, for
                 appellant.



RAYMOND C. HEADEN, J.:

                   Defendant-appellant Quantrail Johnson (“Johnson”) appeals his

conviction following a bench trial. For the reasons that follow, we affirm.
Procedural and Substantive History

              This case stems from a shooting that occurred on April 15, 2018. That

day, Jason Gain (“Gain”) and his girlfriend Monalisa McCoy (“McCoy”) went to

McCoy’s father’s house on Nevada Avenue in Cleveland, Ohio, to do laundry. Gain

had been staying at this house before he moved in with McCoy, and Johnson was

staying at this house on the date of the incident. Johnson and Gain were friends,

and McCoy met them both through her father.

              McCoy testified that she started her laundry and then went outside

and sat in her car. Johnson came outside and asked her if she could take him to get

some of his belongings. She told him to ask Gain if it was all right for her to do so.

Johnson went back inside the house and, shortly thereafter, returned to McCoy’s car

and got in on the passenger side. McCoy began to drive away and called Gain.

Hearing that Gain was upset, McCoy turned around and went back to her father’s

house. McCoy and Johnson went back inside the house, and Johnson began arguing

with Gain. Gain went outside to his truck, and Johnson followed him outside to

continue the argument. Several minutes later, Johnson came back inside. At this

point, McCoy had called her father to come home because Gain and Johnson’s

argument was escalating and she was nervous about what might happen. McCoy

testified that she witnessed Johnson retrieve a shotgun from inside the house, load

the gun, and go back outside. McCoy went to the bathroom, called her father again,

and then heard a gunshot and proceeded to call 911. McCoy then went outside,
where she observed Johnson standing over Gain, who had been shot and was tying

a pair of pants around his leg to stop the bleeding.

               Gain testified that he had gone out to his truck to drink a Mike’s Hard

Lemonade and Johnson approached him and pointed a shotgun in his face. Gain

testified that he tried to grab the gun and then was shot in his leg. Gain testified that

Johnson helped him tie up his leg and that McCoy drove Gain to the hospital. At the

hospital, police interviewed Gain and McCoy. Both stated in their initial interviews

that they did not know the identity of the person who shot Gain. At trial, Gain

testified that he had been reluctant to tell police that his friend had shot him. McCoy

testified that Gain told her not to identify Johnson to the police. Both identified

Johnson as the shooter at trial.

               Johnson was arrested on May 15, 2018. On May 22, 2018, the

Cuyahoga County Grand Jury indicted Johnson on one count of felonious assault in

violation of R.C. 2903.11(A)(2), one count of felonious assault in violation of

R.C. 2903.11(A)(1), one count of discharge of a firearm on or near prohibited

premises in violation of R.C. 2923.162(A)(3), and one count of having weapons while

under disability in violation of R.C. 2923.13(A)(2). The first three counts carried

one- and three-year firearm specifications. Johnson was appointed counsel, and

pretrial hearings were held on May 31, 2018; June 11, 2018; July 2, 2018;

July 19, 2018; July 26, 2018; and August 2, 2018. At each of these hearings, defense

counsel requested a continuance for discovery and ongoing negotiations, and the

trial court granted each continuance.
               On August 8, 2018, Johnson filed a pro se “notice to deny consent to

any continuances ‘at the request of the defendant’” and a motion to dismiss. On

August 29, 2018, the trial court overruled Johnson’s pro se motion to dismiss. On

September 27, 2018, Johnson waived his right to a jury trial and the case proceeded

to a bench trial. On September 28, 2018, the court found Johnson guilty of both

counts of felonious assault with one- and three-year firearm specifications, and one

count of having weapons while under disability. The court found Johnson not guilty

of discharge of a firearm on or near prohibited premises.

               On October 29, 2018, the court held a sentencing hearing. Both

counts of felonious assault were merged for sentencing, and the court imposed a

sentence of three years for felonious assault, to be served consecutively to three years

for the firearm specifications and concurrently to one year for having weapons while

under disability, for an aggregate prison term of six years.

               Johnson now appeals, presenting six assignments of error for our

review.

Law and Analysis

I. Manifest Weight

               In his first assignment of error, Johnson argues that his convictions

were against the manifest weight of the evidence. Specifically, Johnson challenges

the credibility of both eyewitnesses and emphasizes that only one witness, the

victim, actually saw the shooter.
               Unlike a challenge to the sufficiency of evidence, a manifest-weight

challenge attacks the quality of the evidence and questions whether the state met its

burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819, 2014-

Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-

3598, ¶ 13. When reviewing a manifest weight challenge, a court reviews the entire

record, weighing all evidence and reasonable inferences and considering the

credibility of the witnesses, to determine whether the trier of fact clearly lost its way

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

reversed. State v. Thompkins, 78 Ohio St.3d, 380, 387, 678 N.E.2d 541 (1997).

               In asserting that his conviction was against the manifest weight of the

evidence, Johnson argues that the police investigation in the case was lacking and

that the eyewitness testimony was not credible. With respect to the investigation,

any allegations of inadequate police work have no bearing on whether Johnson’s

conviction was against the manifest weight of the evidence. A manifest weight

challenge looks at the quality of the evidence that the state presented at trial. A

consideration of evidence that was not presented against Johnson at trial, regardless

of why it was not presented, is irrelevant to our review of this assignment of error.

               With respect to the testimony from McCoy and Gain, Johnson

emphasizes minor inconsistences in their testimony. While we acknowledge the

inconsistencies in their testimony, a thorough review of the record reveals that as to

the critical questions in this case, the witnesses provided consistent and generally

credible testimony. McCoy testified that she saw Johnson load a gun and go outside,
and shortly thereafter she heard a gunshot. Gain testified that Johnson shot him.

Additionally, no evidence was presented at trial to suggest that anyone other than

Johnson shot Gain. We do not find that any of the alleged inconsistencies in the

witness testimony significantly undermined the witnesses’ credibility so as to have

created a manifest miscarriage of justice. In light of the foregoing, we do not find

that Johnson’s convictions were against the manifest weight of the evidence.

Johnson’s first assignment of error is overruled.

II. Prosecutorial Misconduct

              In Johnson’s second assignment of error, he argues that certain

statements the prosecutor made during her opening statement constituted

misconduct and violated Johnson’s right to a fair trial. Johnson argues that the

prosecutor mischaracterized McCoy’s testimony by stating that McCoy witnessed

the shooting. He also argues that the prosecutor mischaracterized the nature of

Gain’s injuries by referring to the gunshot as causing a fatal wound. In her opening

statement, the prosecutor summarized the incident and investigation as follows:

      [T]he Court will hear from Jason Gain as well as other witnesses to this
      matter that [on] or about April 15th, 2018, he was shot in his leg by the
      defendant, Quantrail Johnson. It was witnessed by his girlfriend,
      Monalisa McCoy. And he bled out.

      Bled out. And he was driven to the hospital by his girlfriend, Monalisa
      McCoy. He had to undergo very severe surgery. Currently, had to have
      plates installed in his leg for this.

      And that victim, Jason Gain, did meet with the officers. He’s been
      cooperative through this whole process. Even provided detectives
      photographs of the defendant and named him as the person who
      administered that fatal wound.
Johnson argues that these mischaracterizations were intentional and inflammatory.

With respect to the description of the injury, Johnson argues that the only

interpretation of the prosecutor’s words is that death was caused by the injury

inflicted.

               In order to find prosecutorial misconduct, this court must determine

that the prosecutor’s comments were improper and that they prejudiced Johnson’s

substantial rights. State v. Smith, 14 Ohio St.3d 13, 14-15, 470 N.E.2d 883 (1984).

During opening and closing statements, prosecutors are entitled to some latitude as

to what the evidence will show or has shown and what inferences can be drawn.

State v. Richey, 64 Ohio St.3d 353, 362, 595 N.E.2d 915 (1992). Further, the focus

of our analysis is on the “fairness of the trial, not the culpability of the prosecutor.”

Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

               Johnson is correct that McCoy did not witness the shooting itself.

Johnson is also correct that the shooter in this case did not inflict a fatal wound on

Gain. We disagree that any reference to either by the prosecutor constitutes

prosecutorial misconduct. Johnson characterizes the conduct in this case as “a

desire to couch the matter as a murder with direct eyewitnesses.” This argument is

undermined by the context of both the opening statement and the trial as a whole.

The prosecutor made it clear that Gain did not die as a result of the gunshot by

describing his injuries in detail. Further, of course, Gain’s presence and testimony

at trial would certainly have been sufficient to negate any attempt by the prosecutor
to make his injuries seem worse than they were. In addition, it is clear from McCoy’s

testimony that she did not witness the shooting itself.

               Even if we were to conclude that the prosecutor’s statements were

improper, Johnson has not shown how the statements had any impact on the trier

of fact — in this case, the judge — let alone a prejudicial impact. Whether Gain was

the victim of a gunshot wound and the severity of his injuries were not issues to be

determined by the trier of fact in this case. The primary issue in this case was the

identity of the shooter, and the state presented ample evidence that Johnson shot

Gain. Therefore, the prosecutor did not commit misconduct that denied Johnson

due process. Johnson’s second assignment of error is overruled.

III. Access to the Proceedings

               In Johnson’s third assignment of error, he argues that he was denied

due process when the court denied him access to pretrial proceedings and granted

continuances despite his notice to the court that he would not consent to any

continuance.

               While a defendant “‘has a fundamental right to be present at all

critical stages of his criminal trial[,]’” this right is not absolute. State v. White, 82

Ohio St.3d 16, 26, 693 N.E.2d 772 (1998), quoting State v. Hill, 73 Ohio St.3d 433,

444, 653 N.E.2d 271 (1995), and citing State v. Meade, 80 Ohio St.3d 419, 421, 687

N.E.2d 278 (1997). Even if a defendant has the right to be present at a given stage,

his absence only constitutes prejudicial error where “a fair and just hearing * * * [is]

thwarted by his absence.” Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct.
330, 78 L.Ed. 674 (1934). Here, Johnson has not articulated any way in which his

due process rights were particularly impacted by his absence from pretrial hearings.

              Johnson argues that because he made clear his desire to be present

for all proceedings, the trial court’s failure to provide him access to pretrial

proceedings is error. Johnson’s desire to be present for pretrial proceedings does

not alone amount to prejudicial error. Therefore, Johnson’s third assignment of

error is overruled. To the extent that Johnson also argues that his stated desire that

the trial court not grant any further continuances has somehow violated his due

process right to be present at pretrial proceedings, we do not see his stated desire

relating to continuances alone leads to the trial court’s orders violating his

constitutional or statutory rights. We will address this issue more thoroughly in the

following assignment of error.

IV. Speedy Trial

              In Johnson’s fourth assignment of error, he argues that he was denied

his constitutional right to a speedy trial. Relatedly, Johnson argues that he was

denied his right to a preliminary hearing pursuant to Crim.R. 5.

              Crim.R. 5(A)(4) provides:

      When a defendant first appears before a judge or magistrate, the judge
      or magistrate shall permit the accused or the accused’s counsel to read
      the complaint or a copy thereof, and shall inform the defendant:

      (4) Of the right to a preliminary hearing in a felony case, when the
      defendant’s initial appearance is not pursuant to indictment.
Crim.R. 5(B)(1) goes on to provide that a preliminary hearing shall be scheduled no

later than 10 days following the arrest, but that “[t]he preliminary hearing shall not

be held, however, if the defendant is indicted.” Here, Johnson was arrested on

May 15, 2018, and indicted on May 22, 2018. His indictment, which occurred before

the 10-day time period for holding a preliminary hearing had elapsed, negated

Johnson’s right to a preliminary hearing.

              The Sixth Amendment to the U. S. Constitution, and Article 1, Section

10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy

trial. Ohio has codified this right in R.C. 2945.71. R.C. 2945.71(C) provides that a

person facing felony charges must be brought to trial within 270 days after their

arrest. Where, as here, the defendant is jailed in lieu of bail awaiting trial on a

pending charge, each day shall be counted as three days pursuant to R.C. 2945.71(E).

R.C. 2945.72 sets forth circumstances under which the statutory time period may be

tolled, including a continuance at the defendant’s request.

              Time began to run on May 15, 2018, when Johnson was arrested.

Johnson was granted continuances on May 31, 2018, June 11, 2018, July 2, 2018,

July 19, 2018, July 26, 2018, and August 2, 2018, all of which tolled his speedy trial

time pursuant to R.C. 2945.72(E). On August 8, 2018, Johnson filed a motion to

dismiss, which again tolled his speedy trial time. The court denied this motion on

August 29, 2018, and trial began on September 27, 2018. Considering these tolling

events, 53 days elapsed between Johnson’s arrest and trial.         Pursuant to the

statutory triple-counting provision, 159 days of the 270-day limit had elapsed.
Therefore, Johnson was brought to trial within the statutory time period and his

right to a speedy trial was not violated.

               Johnson also argues that the multiple continuances allowed by the

court “at the request of the defendant” were improper because Johnson expressly

declined to consent to any continuances and attempted to assert his right to a speedy

trial through a pro se notice and motion. We disagree. “‘A defendant’s right to be

brought to trial within the time limits expressed in R.C. 2945.71 may be waived by

his counsel for reasons of trial preparation and the defendant is bound by the waiver

even though the waiver is executed without his consent.’” State v. Shepherd, 8th

Dist. Cuyahoga No. 97962, 2012-Ohio-5415, ¶ 21, quoting State v. McBreen, 54 Ohio

St.2d 315, 376 N.E.2d 593 (1978), syllabus. Further, Johnson’s notice to the trial

court that he denied consent to any continuances was filed after numerous pretrials

in which his counsel had requested and received continuances for the reasonable

purpose of conducting discovery and engaging in negotiations with the state of Ohio.

Finally, as we laid out above, even with numerous continuances operating to toll

Johnson’s speedy trial time, he was brought to trial within the statutory period. For

these reasons, Johnson’s fourth assignment of error is overruled.

V. Ineffective Assistance of Counsel

               In his fifth assignment of error, Johnson argues that he received

ineffective assistance of counsel because his attorney failed to object to statements

made during the prosecutor’s opening statement and failed to move for dismissal on

speedy trial grounds.
               To establish ineffective assistance of counsel, a defendant must

demonstrate that (1) counsel’s performance at trial was seriously flawed and

deficient and fell below an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. at 687-688.

               We have determined that the prosecutor’s comments during opening

statements did not constitute prosecutorial misconduct, in part because the

statements did not prejudice Johnson. It is entirely possible that counsel had a

legitimate strategic reason for not objecting during opening statements. Even

assuming arguendo that the failure to object was deficient, Johnson is unable to

show how he was prejudiced by this. Johnson has failed to show a reasonable

probability of a different outcome had his counsel objected.

               Similarly, we have concluded that Johnson’s right to a speedy trial

was not violated. Therefore, his argument that his counsel was ineffective for failing

to move for dismissal on this ground necessarily fails. For these reasons, Johnson’s

fifth assignment of error is overruled.

VI. Cumulative Error

               In Johnson’s sixth and final assignment of error, he argues that the

cumulative impact of the errors in his trial amounted to a denial of due process. We

disagree.   Because none of the alleged errors prejudiced Johnson, we cannot
conclude that he was prejudiced by their cumulative effect.         Johnson’s sixth

assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

convictions having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



RAYMOND C. HEADEN, JUDGE

LARRY A. JONES, SR., P.J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY
