[Cite as State v. Cobb, 2013-Ohio-4630.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2013-T-0020
        - vs -                                 :

DERRICK LAMAR COBB,                            :

                 Defendant-Appellant.          :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CR
00087.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from a final judgment of the Trumbull County Court of

 Common Pleas. Following trial, appellant Derrick Lamar Cobb was found guilty of

 felonious assault in violation of R.C. 2903.11(A), a felony of the second degree and

 kidnapping in violation of R.C. 2905.01(A)(3) and (C)(1), a felony of the first degree.

 On appeal, Cobb alleges that the trial court abused its discretion in not granting a

 continuance so that Cobb could obtain nicer clothes for trial. He also claims that the
verdict is against the manifest weight of the evidence. For the following reasons, the

denial of the continuance and his conviction are affirmed.

      {¶2}   On December 19, 2011, Cobb and Debora Roberts, the victim, were

drinking heavily and taking various amounts of cocaine as they visited several

individuals throughout the later part of the afternoon and into the evening. At sometime

between 8:00 p.m. and 9:00 p.m., Cobb and Roberts arrived at Cobb’s brother’s house

where they obtained more cocaine from a local drug dealer. The two continued to use

drugs into the night.

      {¶3}   According to Roberts, at around midnight, Cobb and Roberts began to

argue. Cobb accused Roberts of taking his drugs and sleeping with his ex-girlfriend.

To demonstrate to Cobb that she did not take any of his drugs or money, she stripped

naked. She offered Cobb her clothes so that he could search for the money and drugs.

Roberts claims that Cobb became enraged after she stripped and began to hit her. At

one point during the confrontation, Cobb told Roberts he was going to kill her.

      {¶4}   Roberts attempted to escape by running to a bathroom; however, Cobb

grabbed her by her hair and dragged her back to the living room area where he hit

Roberts in the face, ribs, and arms. Whenever she fell to the ground he kicked her in

the head.    Throughout the confrontation in the living room Roberts claims Cobb

continued to say he was going to kill her and at one point brandished a knife. Upon the

brandishing of the knife, Roberts began to beg for her life. Eventually, Cobb calmed

down and Roberts left the house at approximately about 2:00 a.m.

      {¶5}   Upon leaving the house, Roberts walked in her injured condition to a

friend’s house. After arriving, at approximately 5:00 a.m., the friend immediately called




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the police. Warren Patrolman Eric Laproicina, arrived at Roberts’ friend’s house, where

she identified Cobb as the assailant and explained how she became injured.             An

ambulance drove Roberts to Trumbull Memorial Hospital where the trauma surgeon on

call diagnosed her with two broken ribs, a fractured nose and a partially collapsed lung.

At the hospital, Roberts identified Cobb as the cause of her injuries to the trauma

surgeon and was confined to a bed for three days while being hospitalized.

      {¶6}   Cobb’s version of events is markedly different from Roberts’ testimony

starting from when the two arrived at Cobb’s brother’s house. Testifying on his own

behalf, Cobb claimed that Roberts took some of her prescribed psychotropic

medications as the two continued to ingest cocaine. Approximately 20 minutes later,

Cobb claims Roberts speech started to become slurred and Roberts became

belligerent. Roberts, according to Cobb, began to demand the additional cocaine that

was left and that Cobb was stealing from her. Cobb responded to her demands by

telling her to leave. When Roberts refused to leave, Cobb grabbed her by the pants

and pushed her out the front door at sometime between 12:00 a.m. and 12:30 a.m.

      {¶7}   Immediately before voir dire and outside the presence of the jury, defense

counsel objected to the trial going forward because his client would have to wear a T-

shirt and jeans (which were the clothes he was arrested in) and sought more time for

Cobb to furnish other clothes for trial. According to Cobb, the jail lost some nicer

clothes that he intended to wear. The trial court judge told the state to use best efforts

to find the clothes he had brought to the jail, treated defense counsel’s objection as a

motion for a continuance, and subsequently denied the motion.

      {¶8}   Appellant alleges the following as his first assignment of error that:




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      {¶9}      “The trial court erred and abused its discretion by denying the appellant’s

motion for a short continuance of appellant’s trial and the appellant suffered prejudice

as a result.”

      {¶10} In reviewing the decision on a motion for a continuance, this court must be

cognizant that the decision to grant or deny a continuance in a criminal proceeding lies

within the sound discretion of the trial court. State v. Griesmar, 11th Dist. Lake No.

2009-L-061, 2010-Ohio-824, ¶17. The trial court’s decision must be more than “simply

an error of law or judgment; rather, it implies that the trial court's attitude was

unreasonable, arbitrary, or unconscionable.” State v. Mays, 11th Dist. Trumbull No.

2001-T-0071, 2003-Ohio-63, ¶14 (citations omitted). To determine whether an abuse

of discretion has occurred, the court must look to the following factors: the length of the

delay requested; whether other continuances have been requested and received; the

inconvenience to litigants, witnesses, opposing counsel and the court; whether the

requested delay is for legitimate reasons or whether it is dilatory, purposeful, or

contrived; whether the defendant contributed to the circumstance which gives rise to

the request for a continuance; and other relevant factors, depending on the unique

facts of each case.” State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078 (1981).

      {¶11} In our case, we cannot say the trial court abused its discretion.

Previously, the Sixth District held that an indefinite delay of time is sufficient to find that

the trial court acted within its discretion. State v. Adkins, 6th Dist. Lucas No. L-02-

1190, 2003-Ohio-7250 ¶62. Here, it was not appellant’s fault that his clothes were

misplaced. Nevertheless, at the time of ruling, the trial court was not given a time when




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the issue could be remedied by appellant to have alternative clothing available in the

event his clothing was not located at the jail.

      {¶12} In support of his appeal, Cobb directs our attention to State v. Short,

claiming that forcing him to wear the clothes he was arrested in during trial would

cause the jury to draw negative inferences about Cobb’s respect for the jury and court.

Cobb’s reliance on Short is misplaced. In Short, the defense requested a continuance

so that the defendant could obtain clothes to avoid wearing his prison garb to trial.

12th Dist. Warren No. CA2009-07-102, 2010-Ohio-1526, ¶25. After Short indicated he

could procure the clothes he wanted from his mother within one week, the trial court

ordered him to get in touch with his mother. Id. After several attempts to contact his

mother failed, the trial court found that Short was dilatory by waiting until trial to procure

clothes. The trial court proceeded to trial and the trial court gave a curative instruction

to the jury about Short’s appearance in prison garb. Id. ¶¶26, 30-31.

      {¶13} Cobb’s present situation is distinguishable from Short.               Under the

Fourteenth Amendment, the U.S. Supreme Court has held that the state cannot compel

an accused to stand trial before a jury while dressed in identifiable prison clothes.

Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L. Ed. 2d 126 (1976). Because the

appearance of a jail uniform could unpalatably tempt jurors to disregard the

presumption of innocence, it should be the preferred practice of trial courts to allow

defendants to procure other clothes for trial, and use a curative instruction as a last

resort.

      {¶14} But where the defendant is not compelled to wear an identifiable prison

uniform, the trial court’s discretion in electing to grant or deny a continuance is




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substantially broader. For instance, in State v. Huling, the Ninth District upheld the

denial of a motion for a continuance in a similar situation to Cobb’s because the

defendant’s prison uniform had no distinguishing features making it noticeable prison

garb. 9th Dist. Summit No. 8792, 1978 Ohio App. LEXIS 8511, *4 (July 26, 1978).

      {¶15} As there is no dispute that Cobb was not tried in prison garb, the only

issue is whether it was error to deny an indefinite continuance and have him tried in

civilian clothes not of his choosing. We cannot say it was unreasonable for the trial

court to deny the continuance.

      {¶16} Consequently, the first assignment of error is without merit.

      {¶17} As his second assignment of error, Cobb alleges:

      {¶18} “The appellant’s convictions for felonious assault and kidnapping are

against the manifest weight of the evidence.”

      {¶19} In determining whether evidence is sufficient to sustain a conviction, the

reviewing court asks whether reasonable minds could differ as to whether each

material element of a crime has been proven beyond a reasonable doubt. State v.

Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978). If reasonable minds could

differ as to whether each material element has been proven, a Crim.R. 29 motion for

acquittal must be overruled. Id. at 263-64.     The evidence adduced at trial and all

reasonable inferences must be viewed in the light most favorable to the state. State v.

Maokhamphiou, 11th Dist. Portage No. 2006-P-0046, 2007-Ohio-1542, ¶20.

      {¶20} In contrast, a manifest weight challenge requires the reviewing court to

play the role of a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). A reviewing court should be cognizant of the fact that the jury is in




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the best position to assess the credibility of the witnesses. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus (1967). For an appellate

court to overturn a conviction as being against the manifest weight of the evidence, it

must be found that “‘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.

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.’” Thompkins, 78

Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1983).

      {¶21} Cobb attacks the verdict in two ways. Neither one is persuasive when

considered individually or together. First, he claims that the various inconsistencies in

Roberts’ statements, lies and criminal record make her an incredible witness.

Specifically, Cobb relies upon the differing accounts of Roberts and Cobb over who

started the fight, a comparison of Roberts’ and Cobb’s criminal records, the trauma

surgeon’s testimony that some bruises on Roberts were old and that Roberts lied to

both police and hospital personnel about her previous drug use that night. Though it is

true that the trauma surgeon said one injury below the eye was old, the trauma

surgeon also confirmed that several of Roberts’ injuries were recently inflicted upon

her. Moreover, Roberts explained that she initially lied about her previous drug use

because it was illegal and she did not want to get in trouble. As for the criminal records

and the genesis of the argument between Cobb and Roberts, the jury was entitled to

credit Robert’s testimony over that of Cobb and weigh how previous convictions

affected their respective character for truthfulness.




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      {¶22} Cobb also attacks the verdicts because according to Roberts’ version of

events she left Cobb’s brother’s house at 2:00 a.m. but the police were called at 5:00

a.m., thereby leaving an unaccounted for three-hour time window.         Again, Roberts

explained that she did not keep track of time that night and did not have use of her cell

phone which she normally uses to track time. Given Roberts’ consistent identification

of Cobb as the perpetrator of her injuries, the jury could have concluded that Roberts

was mistaken as to the time she was assaulted, but not about the conduct and identity

of the perpetrator.

      {¶23} Finally, when both attacks on the verdict are considered together, they fail

to show the jury lost its way. Neither attack attempts to show an element of either

offense was not met.       Rather, at best, Cobb’s assignment of error seeks to

demonstrate that the sum of all Roberts’ inconsistencies, lies, and previous convictions

makes her an incredible witness as to all elements of the offenses.           Given the

deference we must give to the jury in the area of credibility, we cannot agree. Cobb’s

second assignment of error is without merit.

      {¶24} Accordingly, the judgment of the Trumbull County Court of Common Pleas

is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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