[Cite as State v. Linder, 2018-Ohio-3951.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                            No. 106600



                                             STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                      CHARLES E. LINDER, JR.

                                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-615950-A

        BEFORE:           Jones, J., Eileen A. Gallagher, A..J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 27, 2018




ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Jonathan Block
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, SR., J.:

       {¶1} In this appeal, defendant-appellant Charles Linder, Jr. (“Linder”) challenges his

conviction, which was rendered after a jury trial, for several crimes associated with the assault of
Kimyata Luckey (“Luckey”). Linder also challenges the denial of his (1) motion to suppress,

(2) motion to dismiss on speedy trial grounds, and (3) request to merge two of the charges for the

purpose of sentencing. For the reasons that follow, we affirm.

                                     I. Procedural History

       {¶2} The date of the incident giving rise to this case was March 4, 2017. Linder was

arrested on March 31, 2017, and charged by a Cuyahoga County Grand Jury on April 18, 2017.

He remained in jail from the date of his arrest through the pendency of the case.

       {¶3} As mentioned, the victim was Luckey, and the indictment charged that Linder

committed the following crimes against her: Count 1, attempted murder; Counts 2 and 3,

felonious assault; and Count 4, kidnapping.     Counts 1 through 4 contained one- and three-year

firearm specifications. Additionally, Linder was charged in Count 5 with having weapons while

under disability. Linder was declared indigent, and the court appointed counsel to represent

him.

       {¶4} Discovery and pretrial motion practice occurred throughout the spring, summer, and

fall of 2017, and included counsel filing a motion to suppress and Linder filing a pro se motion to

dismiss on speedy trial grounds, that counsel adopted. A hearing was held on the motions, and

both motions were denied.

       {¶5} The case then proceeded to a jury trial on all the indicted charges on October 10,

2017. After the state presented its case, the defense made a Crim.R. 29 motion for judgment of

acquittal that was denied.   Linder testified, and after the defense rested, it renewed its Crim.R.

29 motion that was again denied.           The state presented a rebuttal witness.       After its

deliberations, the jury found Linder guilty on all counts.

       {¶6} At sentencing, the court found that the attempted murder charge in Count 1 and the
felonious assault charges in Counts 2 and 3 were allied offenses and merged them; the state

elected to proceed to sentencing on the attempted murder charge. The court sentenced Linder to

ten years for the attempted murder, plus three years for the firearm specification. The trial court

further sentenced Linder to ten years on Count 4, kidnapping, plus three years for the firearm

specification, and 36 months for Count 5, having weapons while under disability.         All counts

(and, over the state’s objection, gun specifications) were ordered to be served concurrently.

Thus, Linder was sentenced to an aggregate 13-year term.

                                            II. Facts

A.   Suppression Hearing

       {¶7} Linder gave an incriminating statement during his interview with Detective Aaron

Reese (“Detective Reese”) and sought to suppress it. Specifically, Linder’s motion to suppress

was based on the following allegations: (1) the statement was taken while Linder was under the

influence of PCP; and (2) Linder requested the presence of an attorney. The state presented the

testimony of the investigating detective, Detective Reese, at the suppression hearing.    Detective

Reese testified that he was assigned to this case on March 4, 2017. He reviewed the police

report and learned that the victim, who at that time had not been identified, was hospitalized and

unconscious after witnesses said she had been shot in the head.    The detective identified Linder

as the suspect and talked to Linder several times over the phone; the detective urged Linder to

come to the police station and talk to him.    Eventually, Linder voluntarily came to the police

station and Detective Reese interviewed him.      The interview was recorded on video, and the

video was admitted into evidence.
       {¶8} Detective Reese advised Linder of his Miranda1 rights, and Linder indicated that he

understood them. Detective Reese testified that Linder never asked for an attorney. Detective

Reese asked Linder if he was under the influence of anything, and Linder said he was not.

Detective Reese further testified that Linder did not appear to be under the influence of anything

and described him as being “calm.”

       {¶9} The trial court questioned Detective Reese about what the protocol is when he

interviews someone who he suspects might be under the influence.          The detective answered, “I

would stop the interview — * * * certainly it’s happened in the past, and it’s been used as a

defense, so I’ve learned from that to say that I would stop and [ask the person being interviewed

to] come back again later.” Detective Reese further stated that PCP, that he knew Linder had

previously used, has a “very, very strong odor, and even if someone’s smoking it, you could

smell it on their clothing.” He told the court that there was “no indication that [Linder] was

under the influence. [He] certainly didn’t smell [or] display any of the behavior [of being under

the influence of PCP] that I’m familiar with.”

       {¶10} After listening to Detective Reese’s testimony and watching the video of the

interview, the trial court denied Linder’s suppression motion. The court noted that there was

“no evidence that the defendant was in fact intoxicated at the time.” The court further found

that the “video clearly shows the detective giving the Miranda warnings, which included the

right to halt the interview at any time and request an attorney at any time during the course of the

interview,” and that “no such request by the defendant for an attorney or no such request to stop

the interview” was ever made.


       1
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
B.   Trial Testimony

       {¶11} On the day in question, the victim, Luckey, was at her friend, Erica Caryle’s

(“Caryle”) apartment that was owned by the Cuyahoga Metropolitan Housing Authority

(“CMHA”). Linder came to the residence and went to sleep.

       {¶12} Luckey testified that after Linder went to sleep, Caryle decided to steal PCP from

him. Luckey told Caryle she wanted nothing to do with the plan; Caryle, however, stole the

drugs from Linder.   Luckey testified that Caryle acted on her own.

       {¶13} A few minutes later, Linder woke up and confronted the women about his missing

drugs; both denied knowing anything about it. Luckey testified that Linder then attacked her,

first punching her several times on the head, followed by beating her in the head with a pistol.

After several blows to the head, Luckey fell unconscious — the last thing she remembered was

being inside the apartment.   Her next memory was 15 days later, when she woke up in a

hospital.

       {¶14} The state presented the testimony of another resident from the CMHA complex,

Mariah Montanez (“Montanez”), to help fill in the gaps.   Montanez, a resident on the first-floor,

testified that she came out of her apartment after hearing loud noises from the hallway. She

heard a woman yelling “get off of me,” and a man responding, “you should have never stole from

me.” Although Montanez initially testified that she did not see the man, she later admitted that

she did see him, and it was Linder. Montanez testified that she saw Linder shaking the woman,

and then drop her, head first, from the second floor to the first floor. There was another woman

with Linder, and she was yelling “just take her down, beat her ass, kill her.” Montanez called

the police and was interviewed by them on the scene when they arrived.

       {¶15} Both Cleveland and CMHA police responded to the scene. The officers testified
to finding Luckey unconscious, bleeding from her head and nose in the complex’s courtyard.

One of the officers found a spent shell casing next to her head. The officer also found a blood

trail that led from inside the stairwell to the third floor.   Luckey was transported to the hospital

by ambulance; her identity, however, was initially unknown.

        {¶16} The emergency room physician who treated Luckey testified. Luckey arrived at

the hospital unresponsive and was labeled as a “category 1” patient, which is the “highest

concern level for a patient’s care.”       Her injuries were life threatening.     She immediately

required resuscitation. She was then placed on a ventilator and put in a medically-induced

coma to keep her breathing appropriate.

        {¶17} Luckey’s mother testified about her recovery after the incident, which involved her

having to relearn how to walk and talk, and how it has negatively affected Luckey mentally.

        {¶18} Linder’s former girlfriend and the mother of two of his children, Tanisha Stone

(“Stone”), testified; she was a reluctant witness who appeared pursuant to a bench warrant.

According to Stone, she spoke with Linder after the incident and he told her that he “did

something bad.” Specifically, Linder told her that he was getting high with Luckey and Caryle

and his money “came up missing” after he fell asleep. He believed Luckey had it, so he hit her,

dragged her down the stairs, and shot off a gun.

        {¶19} Detective Reese testified at trial that he went to the CMHA complex to attempt to

locate witnesses to the incident. While there, he noticed an apartment with the door open and a

television on at a high volume. The detective asked CMHA officials to do a welfare check of

the apartment. Reese learned that the apartment had belonged to Caryle, who, at that time, was
jailed on an unrelated matter.2   After obtaining consent from Caryle, the detective searched the

apartment and saw what he suspected to be blood in it. He also found an identification card

belonging to Luckey, and that was how her identity was discovered, and thereafter, her family

was notified.

       {¶20} The detective also testified at trial about his interview with Linder. During the

interview, Linder admitted that he was at Caryle’s apartment at the time in question and stated

that he was just trying to get his money back.         Linder also told the detective that Luckey

attacked him. While outside, an unknown man saw Luckey attacking Linder and came to

Linder’s aid; the unknown man was the person who beat Luckey. Linder gave two different

possible names for the unknown man. Linder gave inconsistent statements about who fired a

gun — at one juncture saying he did, and at another saying the unknown man did. Detective

Reese admitted that he engaged in tactics such as lying to and leading Linder during the

interview.

       {¶21} The detective also admitted that Caryle told him that another person was there.

Other than Linder’s and Caryle’s statements that another person was there, Detective Reese could

never obtain any other corroborating evidence. The detective also testified though that he felt

like Caryle was “playing games” with him.

       {¶22} Detective Reese testified that swabs of blood were taken from the scene, but

admitted that they were not tested. The shell casing removed from where Luckey was found

was also not tested. According to the detective, the testing was not necessary because his

investigation demonstrated that Linder was the perpetrator.


       2
        Caryle was jailed for allegedly attacking her (Caryle’s) mother.   The alleged attack occurred
at the CMHA complex, but in a different apartment.
          {¶23} As mentioned, after the state rested its case and the defense’s motion for a Crim.R.

29 judgment of acquittal was denied, Linder testified.    According to Linder, he went to Caryle’s

apartment on the date in question to get high; once there, he and Caryle smoked PCP.        He and

Caryle were the only two in the apartment at the time.        After smoking the drugs, Linder fell

asleep.

          {¶24} Linder testified that he woke up because Caryle was tapping his leg.    As was his

custom, Linder checked his pocket for his money and discovered that his wallet, that he had had

in his back pocket, was in his front pocket. According to Linder he had cashed his social

security check and “got money off his card” prior to going to Caryle’s apartment. Upon looking

through his wallet, Linder discovered that the approximately $800 he had was gone. He also

discovered that his drugs, which he had in another pocket, were missing. Linder asked Caryle

where his money was, and she looked at Luckey, who was now at the apartment.

          {¶25} Luckey denied having Linder’s money, however, and “jumped up” from the chair

she was sitting in. When she jumped up, Linder saw what he believed was his money and drugs

in her pocket. He “grabbed” his money and drugs out of Luckey’s pocket, and Luckey started

hitting him.    Caryle told them to leave, so Linder walked outside, but Luckey continued to “hold

on” to him; he was “trying to get away from her.”

          {¶26} Once outside, Linder continued to try to “get loose from” Luckey. Eventually,

Linder “yanked away from her and she fell.” Meanwhile, Caryle was yelling at Luckey that she

got what she deserved for stealing from Linder.        At the same time, one of Linder’s friends,

“Joseph,” happened on the scene. Upon hearing Caryle’s claim that Luckey had stole from

Linder, the friend entered the fray and started “beating [Luckey] with his hands” and “stomping”

on her. Linder told the man “stop it. Man, I’m cool. I got my money back. You know,
everything cool, leave her alone * * *.” Linder denied firing a gun.

       {¶27} Linder testified that he then returned to Caryle’s apartment to get his belongings.

While in the apartment, he saw that the police had arrived and were by Luckey. Upon leaving

the apartment, he saw “Joseph” and asked him for a ride. The two walked by the police — one

of the officer’s was holding Luckey up and her eyes were open — and Linder asked the officer if

Luckey was all right, but got no response. So Linder just left the scene.

       {¶28} Linder also testified about his interview with Detective Reese. Linder testified

that he had to get his “nerve up” to go see the detective so he could tell him who had beat

Luckey. On the day he went to see Detective Reese, he was intoxicated and forgot the name of

the man (“Joseph”) who had done this. Linder testified that he was rattled by the detective from

the start: the detective met him in the police station parking lot, and told Linder he remembered

him as a former gang member who “baked PCP.”

       {¶29} Linder testified that another man was in the interview room and he did not know

why that man did not appear on the video of the interview.   Linder further testified that he asked

for an attorney right away, but Detective Reese told him “this is not a video-recorded * * *

interrogation.”

       {¶30} According to Linder, he could not remember much from the interview because he

was high.   Detective Reese was “putting things in his head and making him believe these things

occurred.” Linder told the jury that he believed the detective “had something against him.”

       {¶31} The state called Detective Reese on rebuttal.    The detective testified that Linder

was not high on PCP at the time of the interview, as he would have been able to smell it even if

Linder had taken a shower or put cologne on.

       {¶32} Further facts will be discussed as necessary below.
                                   III. Assignments of Error

       {¶33} Linder now raises the following six assignments of error for our review:

       I. Appellant’s Sixth and Fourteenth Amendments Rights under the United States
       Constitution were violated based on ineffective assistance of counsel.

       II. The trial court erred by denying Appellant’s motion to suppress statements in
       violation of his constitutional rights.

       III. The trial court erred when it denied Appellant’s motion for acquittal under
       Crim.R. 29 because the state failed to present sufficient evidence to establish
       beyond a reasonable doubt the elements necessary to support the convictions.

       IV. Appellant’s convictions are against the manifest weight of the evidence.

       V. The trial court erred by failing to merge all allied offenses of similar import
       and by imposing separate sentences for allied offenses which violated Appellant’s
       state and federal rights to due process and protections against double jeopardy.

       VI. Appellant’s federal and state constitutional right to a speedy trial and due
       process were violated and his conviction should be vacated and dismissed.

                                     IV.   Law and Analysis

Ineffective Assistance of Counsel

       {¶34} In his first assignment of error, Linder contends that his trial counsel was

ineffective.   He bases his claim on his attorney’s failure to:    (1) move to have the having

weapons while under disability count bifurcated from the other charges and tried to the bench;

(2) object to Detective Reese’s testimony about his belief that Linder was not under the influence

of PCP at the time of the interview and testimony that he had the ability to tell if someone is

lying; and (3) subpoena Caryle to testify for the defense.

       {¶35} The Ohio Supreme Court has repeated the well-established standard for reviewing

claims of ineffective assistance of counsel:

       Reversal of convictions for ineffective assistance of counsel requires that the
       defendant show, first, that counsel’s performance was deficient and, second, that
        the deficient performance prejudiced the defense so as to deprive the defendant of
        a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052,
        80 L.Ed.2d 674.

State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 109.

        {¶36} Counsel’s performance may be found to be deficient if counsel “made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland at 687; see also, State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraph two of the syllabus.            To prove that counsel’s deficient performance

prejudiced the defense, a defendant must establish that “counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.”   Strickland at id.; Bradley

at paragraph three of the syllabus.

        {¶37} Moreover, when a reviewing court considers an ineffective assistance of counsel

claim, the reviewing court should not consider what, in hindsight, may have been a more

appropriate course of action. See State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643

(1995). Rather, the reviewing court “must be highly deferential.” Strickland at 689. As the

Strickland court stated, a reviewing court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id., quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158, 100 L.Ed.83 (1955).

A. Failure to Request Bifurcation

        {¶38} Linder contends that his trial attorney was ineffective because he failed to bifurcate

the having weapons while under disability and have it tried to the bench rather than have the jury

consider it along with the other charges.
       {¶39} This court has held that failure to bifurcate a having weapons while under disability

charge can contribute to ineffective assistance of counsel.        See State v. Jenkins, 8th Dist.

Cuyahoga No. 91100, 2009-Ohio-235. But in Jenkins, for example, this court found that this

failure alone would not constitute ineffective assistance of trial counsel; rather it “add[s] to the

cumulative nature of counsel’s errors,” because it could not “conceivably be considered a trial

tactic” under the facts and circumstances of the case.     Id. at ¶ 17; see also State v. Thompson,

8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, ¶ 39-40 (although “troubled by defense counsel’s

decision not to request that the weapons while under disability charge be bifurcated from the

other charges,” this court declined to reverse defendant’s conviction where the failure to bifurcate

the having weapons while under disability charge “did not taint the entirety of the proceedings to

the extent that a reasonable probability exists that the outcome of trial would have been different

had the charge been separated”); State v. Griffin, 9th Dist. Lorain No. 11CA10128,

2013-Ohio-416, ¶ 43-44 (defense counsel’s failure to bifurcate having weapons while under

disability charge “does not constitute per se ineffective assistance of counsel”).

       {¶40} Upon review, we do not find merit to Linder’s ineffective assistance of counsel

claim on this ground. Because Linder testified at trial, he opened the door to the jury learning

about his criminal record. Moreover, even had he not testified, based on the other evidence

presented against him, we do not find that the outcome of the trial would have been different.

B.   Failure to Object to Testimony

       {¶41} Linder next claims that his trial counsel was ineffective by not objecting to portions

of Detective Reese’s testimony.    According to Linder, the detective impermissibly testified that

“he had the ability to tell when someone was lying,” and that “in his opinion he could be an

expert on PCP use.”
        {¶42} It is true that a witness may not express his or her belief or opinion as to the

credibility of another witness. State v. Boston, 46 Ohio St.3d 108, 128, 545 N.E.2d 1220

(1989). But Detective Reese did not state his opinion or belief as to the veracity of any witness

in this case.

        {¶43} Rather, on direct examination, the assistant prosecuting attorney asked the

detective about any specialized training he had received since becoming a detective.            The

detective answered that he had been to a school that focused on interrogation and interview

techniques. The assistant prosecuting attorney questioned the significance of that training for

his job, to which Detective Reese responded, “[m]uch of my job as a detective is interacting with

people, suspects, witnesses, victims, and so certainly identifying deceptive behavior would be

something of great importance to my position.”

        {¶44} The detective defined deceptive behavior as “somebody that’s being untruthful is

basically what it comes down to. Someone who’s showing deception when speaking to the

police or speaking in general but somebody’s not being truthful.” As to the importance of

recognizing deceptive behavior, Detective Reese testified that “as a police detective often I’m

assigned to investigate a certain criminal offense that occurred, so it’s important for me to figure

out what happened, who did what, who saw, and so on.”

        {¶45} Thus, the detective did not testify about any witnesses’s credibility in this case.

There was nothing improper about his testimony.

        {¶46} Regarding the detective’s testimony about PCP, that testimony was elicited when

the state called the detective on rebuttal, after Linder testified that he was under the influence of

PCP at the time the detective interviewed him.        Specifically, Linder testified that Detective

Reese had smelled the drug on him.
        {¶47} In rebuttal, the detective testified that Linder’s statement (that he smelled PCP on

Linder) was untrue and about his 21 years of police experience and the “hundreds of times” he

encountered people under the influence of PCP.

        {¶48} Rebuttal evidence has been defined as,

        “that which is given to explain, repel, counteract, or disprove facts given in
        evidence by the adverse party. It is that evidence which has become relevant or
        important only as an effect of some evidence introduced by the other side. * * *”

        The scope of rebuttal testimony is limited by the evidence adduced by the
        opposing party.

Nickey v. Brown, 7 Ohio App.3d 32, 35, 454 N.E.2d 177 (9th Dist.1982), quoting 31 Corpus

Juris Secundum 818, Evidence, Section 2.

        {¶49} Thus, the purpose of the rebuttal portion of trial is to allow the state to refute

evidence offered by the defense. State v. Moore, 47 Ohio App.2d 181, 353 N.E.2d 866 (9th

Dist.1973). Furthermore, the scope of a witness’s rebuttal testimony is left to the discretion of

the trial court. State v. Graven, 54 Ohio St.2d 114, 115, 374 N.E.2d 1370 (1978); State v.

Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976).

        {¶50} Upon review, the testimony that Linder complains of was proper rebuttal

testimony, presented by the state to rebut Linder’s testimony that Detective Reese smelled PCP

on him. Thus, counsel was not ineffective for not objecting to it, and the trial court did not

abuse its discretion in allowing the testimony.

C.   Failure to Subpoena Caryle

        {¶51} Linder further claims that his trial counsel was ineffective because he did not

subpoena Caryle to testify at trial.

        {¶52} “Generally, counsel’s decision whether to call a witness falls within the rubric of
trial strategy and will not be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio

St.3d 460, 490, 739 N.E.2d 749 (2001), citing State v. Williams, 74 Ohio App.3d 686, 600

N.E.2d 298 (8th Dist.1991); see also State v. Matthews, 10th Dist. Franklin No. 03AP-140,

2003-Ohio-6307, ¶ 31 (observing that “failure to call a witness is not ineffective assistance if

calling that witness opens the door to unfavorable testimony that counsel might reasonably

conclude would likely outweigh the value of any favorable testimony the witness might offer”).

       {¶53} Here, Linder fails to show how counsel’s decision prejudiced him; he only offers

speculation as to how Caryle would have testified. Under such facts and circumstances, we

cannot conclude that defense counsel was ineffective because he failed to call Caryle to the stand

in Linder’s defense.

       {¶54} In light of the above, the first assignment of error is overruled.

Denial of Motion to Suppress

       {¶55} For his second assignment of error, Linder contends that the trial court erred by

denying his motion to suppress. We disagree.

       Appellate review of a motion to suppress presents a mixed question of law and
       fact. 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. Consequently, an appellate court must
       accept the trial court’s findings of fact if they are supported by competent,
       credible evidence. Accepting these facts as true, the appellate court must then
       independently determine, without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶

8.

       {¶56} Linder sought to suppress his pretrial statements made during the interview with

Detective Reese, contending that they were not voluntarily made.
       {¶57} In determining whether a pretrial statement is voluntary, a court “‘should consider

the totality of the circumstances, including the age, mentality, and prior criminal experience of

the accused; the length, intensity, and frequency of interrogation; the existence of physical

deprivation or mistreatment; and the existence of threat or inducement.’” State v. Mason, 82

Ohio St.3d 144, 154, 694 N.E.2d 932 (1998), quoting State v. Edwards, 49 Ohio St.2d 31, 358

N.E.2d 1051 (1976), paragraph two of the syllabus. A defendant’s statements to police after a

knowing, intelligent, and voluntary waiver of the individual’s Miranda rights are presumed to be

voluntary. Miranda, 384 U.S. at 478, 86 S.Ct. 1602, 16 L.Ed.2d 694.

       {¶58} According to Linder, the videotape of the interview supports his contention that he

was under the influence of PCP at the time. However, a confession made while a person is

under the influence of alcohol or drugs does not render the confession inadmissible, although it

may affect its weight and credibility.   State v. Thieken, 3d Dist. Marion No. 9-2000-09, 2000

Ohio App. LEXIS 3048, 9 (June 29, 2000); Middletown v. Dennis, 67 Ohio Law Abs. 362, 120

N.E.2d 903 (M.C.1954). There must be some evidence presented that the confession given was

obtained as a result of diminished capacity to exercise free will. State v. Combs, 62 Ohio St.3d

278, 285, 581 N.E.2d 1071 (1991).

       {¶59} Here, the trial court reviewed the videotape of the interview, considered it along

with Detective Reese’s testimony, and concluded that Linder was not under the influence. Our

review of the videotape and suppression testimony supports that same conclusion. Thus, the

trial court properly denied Linder’s motion to suppress.

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

Sufficiency of the Evidence

       {¶61} In his third assignment of error, Linder contends that his conviction was not
supported by sufficient evidence. On review of the sufficiency of the evidence to support a

criminal conviction, “the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” (Emphasis sic.)         Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶62} Linder contends that his conviction for attempted murder, felonious assault with a

deadly weapon, having weapons while under disability, and all the firearm specifications should

have been dismissed under Crim.R. 29 because no weapon was recovered and “most witnesses

did not see a weapon.” (Emphasis added.) However, the fact that “most” witnesses did not

see a weapon is not dispositive under a sufficiency-of-evidence review. Rather, the issue is

whether there was any evidence that a weapon was used in this crime, and the answer is “yes.”

Specifically, Luckey, the victim, testified that Linder had a gun in his hand and used it to hit her

in the head.   Stone testified that in his “confession” to her, Linder stated that he had and used a

gun on the evening in question. Moreover, Linder admitted to Detective Reese as well that he

had and used a gun.

       {¶63} Linder further claims, in regard to the felonious assault and attempted murder

convictions, that the state failed to present sufficient evidence as to his mens rea. According to

Linder, all he wanted to do was get his money back from Luckey, who then attacked him.         But,

again, Luckey testified that Linder hit her in the head with his gun, while she pleaded with him to

stop. The evidence presented that a violent and prolonged confrontation occurred, which left

Luckey on the verge of death. The evidence was sufficient to sustain the attempted murder and

felonious assault convictions.

       {¶64} In light of the above, the evidence was sufficient to sustain all of the convictions
and gun specifications. The third assignment of error is therefore overruled.

Manifest Weight of the Evidence

       {¶65} Linder, in his fourth assignment of error, challenges his convictions as being

against the manifest weight of the evidence.

       {¶66} A court considering a manifest-weight claim “review[s] the entire record, weighs

the evidence and all reasonable inferences, [and] considers the credibility of witnesses.” State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The question is “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.” Id.; see also State v. Thompkins,

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

       {¶67} Linder contends that the following renders the convictions against the weight of the

evidence: (1) lack of testing of the blood swabs to “eliminate any confusion”; (2) Montanez’s

“nonsensical” testimony; (3) Stone’s (Linder’s ex-girlfriend) lack of credibility; and (4) Detective

Reese’s “sloppy” investigation.

       {¶68} After having considered Linder’s claims, we do not find that the result in this case

represents a manifest miscarriage of justice, such that a new trial must be ordered. Most of

Linder’s claims about the weight of the evidence go to the credibility of the witnesses, which the

jury was in the best position to determine.     The jury likewise was best able to consider and

weigh the investigation that was conducted in this case — we find there was nothing incredible

about it. For example, Detective Reese testified that he did not feel the need to test the blood

found in Caryle’s apartment to determine whether it was blood from Caryle’s mother or Luckey

because the alleged incident involving the mother occurred in a different location altogether.

       {¶69} Several witnesses at trial identified Linder as the perpetrator of the crimes
committed against Luckey.     Her injuries as a result of the assault were severe — Luckey, her

mother, and the treating emergency room physician testified about them. Further, Linder twice

confessed to the crimes — once to Stone (his ex-girlfriend) and once to Detective Reese.

       {¶70} On this record, the weight of the evidence supports the convictions and the fourth

assignment of error is overruled.

Merger

       {¶71} For his fifth assigned error, Linder contends that the trial court erred by not

merging Counts 1 and 4 for the purpose of sentencing. We disagree.

       {¶72} Under R.C. 2941.25(A), “[w]here the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import, the indictment or information may

contain counts for all such offenses, but the defendant may be convicted of only one.”

However,

       [w]here the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or
       similar kind committed separately or with a separate animus as to each, the
       indictment or information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

R.C. 2941.25(B).

       {¶73} Two or more offenses are of dissimilar import within the meaning of R.C.

2941.25(B) “when the defendant’s conduct constitutes offenses involving separate victims or if

the harm that results from each offense is separate and identifiable.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph two of the syllabus.

       {¶74} “At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant’s conduct.”     Id. at ¶ 26. In Ruff, the Supreme

Court held that if a defendant’s conduct supports multiple offenses, the defendant can be
convicted of all of the offenses if any one of the following is true: “(1) the conduct constitutes

offenses of dissimilar import or significance, (2) the conduct shows the offenses were committed

separately, or (3) the conduct shows the offenses were committed with separate animus or

motivation.” Id. at paragraph three of the syllabus, citing R.C. 2941.25(B).

       {¶75} When determining whether two offenses are allied offenses of similar import, we

apply a de novo standard of review. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699,

983 N.E.2d 1245, ¶ 28.

       {¶76} At sentencing, the court found that the attempted murder charge in Count 1 and the

felonious assault charges in Counts 2 and 3 were allied offenses and merged them; the state

elected to proceed to sentencing on Count 1, attempted murder. The court agreed with the state

that Counts 1 and 4, attempted murder and kidnapping, respectively, did not merge.

       {¶77} Upon review, we find the court’s decision was proper.             The trial testimony

established that Linder’s assault on Luckey started inside Caryle’s apartment. It ended in the

courtyard of Caryle’s complex, and a witness, Montanez, a resident at the complex, testified that

she saw Linder and Luckey in the hallway of the complex; Linder was shaking Luckey, and then

he dropped her, head first, from the second floor to the first floor.              Thus, the record

demonstrates that the initial assault of Luckey in the apartment was distinct from his kidnaping of

her, that is, his purposeful removal of her, by force, from the place where she was found (inside

the apartment) for the purpose of terrorizing or inflicting serious physical harm upon her. See

R.C. 2905.01(A)(3).

       {¶78} We find no merit to the fifth assignment of error, and overrule it.

Denial of Motion to Dismiss

       {¶79} In his final assignment of error, Linder contends that his speedy trial rights were
violated and, therefore, that the trial court erred in denying his motion to dismiss.

          {¶80} Our review of a trial court’s decision regarding a motion to dismiss based upon a

violation of the speedy trial provisions involves a mixed question of law and fact. State v.

Brown, 131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist.1998). An appellate court must

give due deference to a trial court’s findings of fact if supported by competent, credible evidence,

but independently review whether the trial court properly applied the law to the facts of the case.

  Id. When reviewing legal issues presented in a speedy trial claim, we must strictly construe the

relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706

(1996).

          {¶81} “An accused is guaranteed the constitutional right to a speedy trial pursuant to the

Sixth and Fourteenth Amendments of the United States Constitution and Ohio Constitution,

Article I, Section 10.” State v. Carmon, 10th Dist. Franklin No. 11AP-818, 2012-Ohio-1615, ¶

13. R.C. 2945.71 et seq., Ohio’s speedy trial statutes, were implemented to enforce those

constitutional guarantees.    Id., citing Brecksville at 55; State v. Blackburn, 118 Ohio St.3d 163,

2008-Ohio-1823, 887 N.E.2d 319, ¶ 10.

Statutory Speedy Trial Rights

          {¶82} Under R.C. 2945.71(C)(2), the state must bring a defendant arrested on felony

charges to trial within 270 days of his or her arrest. If the defendant is held in jail in lieu of bail

on the pending charge, as Linder was here, each day counts as three days. R.C. 2945.71(E);

Carmon at ¶ 14. If an accused is not brought to trial within the speedy trial time limits, upon

motion, the court must discharge the defendant. R.C. 2945.73(B); Carmon at id. A defendant

establishes a prima facie case for dismissal based on a speedy trial violation when the defendant

demonstrates that more than 270 or 90 days elapsed before trial. Id. at ¶ 15 (stating that the
“proper standard of review in speedy trial cases is to simply count the number of days passed,

while determining to which party the time is chargeable, as directed in R.C. 2945.71 and

2945.72”).

       {¶83} “However, the time period in which to bring a defendant to trial may be extended

for any of the reasons enumerated in R.C. 2945.72.”            Id. at ¶ 14.    For example, R.C.

2945.72(E) provides that the speedy trial time may be tolled by “[a]ny period of delay

necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or

instituted by the accused.” The extensions or tolling relevant to this case will be detailed below.

       {¶84} The statutory time for speedy trial purposes begins to run on the day after the date

of the arrest. State v. Olverson, 10th Dist. Franklin No. 02AP-554, 2003-Ohio-1274, ¶ 35, citing

State v. Stamps, 127 Ohio App.3d 219, 223, 712 N.E.2d 762 (1st Dist.1998). Linder was

arrested on March 31, 2017; his statutory speedy rights began to run therefore on April 1, 2017.

       {¶85} From April 1 through April 21, 2017, 21 days ran. On April 22, 2017, Linder

filed a demand for discovery.   “A demand for discovery * * * is a tolling event pursuant to R.C.

2945.72(E).” State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus.

The state responded to the demand on April 26, 2017, thereafter lifting the toll.

       {¶86} The toll was lifted from April 27, 2017, through May 14, 2017, at which time

Linder filed a motion for a bond reduction.     Thus, from April 27, through May 14, 2017, 18

days ran. The time was tolled from May 15, 2007, through May 17, 2017, the date on which

the trial court denied Linder’s motion for bail reduction. Time started running again on May 18,

2017, and ran until May 24, 2017, at which time the defense requested a competency evaluation;

thus, 7 days ran.

       {¶87} The state calculates time being tolled for the competency evaluation from May 24,
2017, through June 23, 2017, but does not indicate what occurred on June 23, and neither the

docket nor our independent review of the record demonstrates the significance of June 23, 2017.

But elsewhere in the record (i.e., the transcripts), it is indicated that the psychiatric clinic issued

its report on May 31, 2017,3 finding Linder competent.         Because we are required to construe

any issues that arise in calculating time against the state, we will use the May 31st date. See

State v. Rieves-Bey, 8th Dist. Cuyahoga Nos. 70827 and 70828, 1997 Ohio App. LEXIS (Oct. 23,

1997), 12 (time is tolled during period which the accused is incompetent to stand trial or his

mental competence to stand trial is being determined). So beginning on June 1, 2017, the

speedy trial time started running again. From June 1, 2017, through the next tolling date of July

5, 2017, 35 days ran.

       {¶88} On July 5, 2017, Linder filed a motion to continue, which the court granted; it reset

the pretrial for July 18, 2017, and trial for August 9, 2017.       The time was tolled during this

period of time.      On the rescheduled August 9 trial date, the court was unavailable, a tolling

event under R.C. 2945.72(H) as a “reasonable continuance granted other than upon the accused’s

own motion[.]” See State v. Brown, 7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 43.

The court rescheduled the trial for September 11, 2017.

       {¶89} From July 5, until the October 10, 2017 trial date, the time was tolled because of

the following: (1) on September 6, 2017, days before the rescheduled trial date of September

11, 2017, Linder filed a motion to continue, which the court granted and reset trial for October 2,

2017; (2) on September 28, 2017, Linder filed the motion to suppress; and (3) on October 3,

2017, he filed the motion to dismiss.    The motions to suppress and dismiss were considered and


       3
           See transcript, page 29.
denied on the day of the start of trial, October 10, 2017.

       {¶90} In light of the above, our calculation is that 81 days counted against the state for

the purpose of speedy trial. We note that our calculation differs from the state’s calculation,

which is a “possible” 57 or 58 days, and that the discrepancy is due, in large part, as to the

accounting relative to the tolling period for the competency evaluation; but under either

calculation, Linder was brought to time within the statutory constraints for speedy trial.

Constitutional Speedy Trial Rights

       {¶91} Linder also summarily asserts that the state also violated his constitutional speedy

trial rights, which we briefly consider.   In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182,

33 L.Ed.2d 101 (1972), the United States Supreme Court set forth four factors to consider when

evaluating whether an appellant’s right to a speedy trial was violated:       (1) whether the delay

before trial was uncommonly long, (2) whether the government or the defendant is more to blame

for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether he

suffered prejudice as a result of the delay.   See also State v. Selvage, 80 Ohio St.3d 465, 467,

687 N.E.2d 433 (1997) (adopting the Barker four-part test). These factors are balanced in a

totality of the circumstances setting with no one factor controlling.   Barker at 530.

       {¶92} After balancing the Barker factors, we conclude that under the particular facts of

this case, Linder was not deprived of his right to a speedy trial as guaranteed under the Sixth and

Fourteenth Amendments to the United States Constitution.       Linder was arrested in March 2017,

and his case went to trial in October 2017.

       {¶93} In the interim, Linder filed several motions, including motions for discovery and

bond reduction. He also filed a request for a competency evaluation. Additionally, he filed
two motions to continue,4 a motion to suppress, and a motion to dismiss, both of which were

filed after the trial court had already granted his two requests to continue the trial.   Further,

Linder has neither alleged nor demonstrated that he suffered any prejudice because of the delay.

       {¶94} Because Linder has failed to establish that either his statutory or constitutional

speedy trial rights were violated, his sixth assignment of error is overruled.

       {¶95} Having found no merit to any of the assigned errors, the judgment of the trial court

is affirmed.

       It is ordered that appellee recover of 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 conviction having been affirmed,

any bail pending appeal 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.




LARRY A. JONES, SR., JUDGE


       4
        As mentioned, one other continuance was had because of the trial court’s unavailability.
The state did not seek any continuances.
EILEEN A. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
